Ski group plans water rights lawsuit

A leading ski industry group is

planning to sue the U.S. Forest Service over a new permit clause

that assigns water rights at resorts on federal land to the federal

government.

The National Ski Area Association is

planning to file the complaint. NSAA is a trade association for

U.S. ski areas and represents 325 ski resorts, including Whitefish

Mountain Resort.

Much of the ski terrain at Whitefish

Mountain Resort is on National Forest land. The resort currently

has limited water rights to the unnamed tributaries of First Creek.

First, Second and Third creeks converge below Big Mountain to

create Haskill Creek, which meets the Whitefish River near Monegan

Road.

NSAA argues the new permit clause takes

from ski resorts tens of million of dollars in private water

rights, the Associated Press reports.

“Water rights in the West are part of

the asset base of the ski areas that they acquired in the

marketplace and they are an important part of the balance sheet of

a ski area,” NSAA president Michael Berry told the AP.

Vail Ski Resorts, for example,

reportedly owns about $18 million in water rights.

The Forest Service argues the new

clause protects the long-term viability of ski areas by keeping

resources tied to the land, not the operator.

“If they establish water rights on the

national forest, those rights need to remain with the federal

government to protect the public’s right to the land,” Jim Pena,

acting chief deputy for the Forest Service, told the AP.

A handful of lawmakers from Wyoming,

Idaho and Colorado asked the Forest Service to place a moratorium

on the new clause. Their request was declined, which prompted the

lawsuit from NSAA.

Whitefish Mountain Resort spokesperson

Riley Polumbus says they support the lawsuit. Although Big

Mountain’s current water-rights permit doesn’t include the new

clause, that permit will eventually have to be renewed. Also,

Polumbus points out, the resort signs an operating plan with the

Forest Service every year, which would present an opportunity for

the Forest Service to add the new clause.

Polumbus says the clause raises

uncertainty in the ski industry.

“Especially in the West where water is

precious,” she said. “In a year like this, having those water

rights in huge.”

Big Mountain uses their limited rights

to fill snowmaking ponds. The drinking water for Whitefish Mountain

Resort is supplied by four drilled wells that feed three

reservoirs.

Snowmaking water is fed into Rainbow

Pond below the Base Lodge, then pumped to reservoirs near the Good

Medicine slope. Big Mountain typically makes snow at the beginning

of the season in high-traffic areas near the village. This year,

Polumbus said, snowmaking was vital to opening for the winter

season.

“Even though we have a smaller

snowmaking capacity, it’s still a sizable investment for us,”

Polumbus said. “This year we needed [that water] to open and put

employees to work. The reason we were able to open when we did is

because we made snow.”

Pena said the new clause isn’t

finalized and that the Forest Service will work with permit holders

going forward.

Berry argues that with the new clause,

there is no guarantee that the Forest Service will continue to use

the water for purposes of ski area business.

“The government could decide to use the

water and apply it to other uses or even sell it to urban water

systems,” Berry told the AP.

Colorado water attorney Glenn Porzak

last month made his argument to a House Subcommittee on National

Parks, Forest and Public Lands.

“It is unprecedented to require the ski

industry to surrender ownership of valuable assets to the U.S.

Government without any compensation,” Porzak said. “Requiring ski

areas to transfer ownership or limit the sale of water rights

without compensation is no different than the government forcing

the transfer of ownership of gondolas or chair lifts, snowcats, or

snowmobiles or even exercising eminent domain without any

compensation. All water right owners, not just ski areas, should be

concerned about this precedent.”

—  This artice has been updated to

clarify that Whitefish Mountain Resort has limited surface water

rights to the unnamed tributaries of First Creek. The Associated

Press contributed to this article.