Snow fight on the slopes


A tussle over water rights has broken out between the ski industry and the U.S. Forest Service. And, like the conditions this winter, things are a bit nasty.

The dispute is over a new clause in ski area permits that prohibits ski companies from selling or transferring some water rights to cities, farms or other resorts. The Forest Service maintains that in order to ensure future ski operators will be able to continue to make snow and flush resort toilets, water rights originating on federal lands must remain connected to

those lands. If water rights were to, say, become more valuable than a skiing business and a company sold them off, potential future operators would be left high and dry, and the public would be left with one less place to ski.

The clause, the agency says, applies only to water rights jointly held by ski companies and the federal government, not private rights solely held by the companies.

But according to the National Ski Areas Association, the language of the clause is broad enough to cover both types of water rights, and is therefore tantamount to theft. "The ski industry has no choice but to defend itself against this outright taking of private property by the U.S. Government," said NSAA president Michael Berry, in a Jan. 9 statement announcing a lawsuit against the USFS. Losing control of these rights, says the NSAA, lessens the value of an operator's business, making it harder for them to borrow money, pay their loans or expand operations in the future.

The Forest Service shoots back that since ski operators still have the right to divert and use water on permitted areas, there should be no discernible impact on daily operations.

Until 2004, none of this was an issue. Via the Vail Business Journal:

The original 1986 ski area permitting act required water rights to be acquired in the name of the United States. Those permit conditions remained effective for many years without any major problems.

That didn't change until 2004, when the water-rights clause (in the permits) was changed after high-level meetings between the ski industry and top-level U.S. Department of Agriculture officials in the Bush administration.

The 2004 language marked a turning point in administration of water rights, and, reversing the ski industry's argument around, could be seen as a huge giveaway of publicly owned assets — a decision made in the political arena, with no input from the public or resource experts.

Under the 2004 clause, ski areas all of a sudden took almost absolute control over certain types of water rights associated with ski area operations — to the point that a resort could potentially sell at least some of the water rights, potentially leaving a future ski area permittee without the water needed to sustain ski resort operations.

The new condition reverses the 2004 clause, which according to Ed Ryberg, who oversaw of the Service's ski area program between 1992 and 2005, exploited the lax regulatory environment characteristic of George W. Bush's administration.

In a letter dated Jan. 6 to Colorado Senator Mark Udall, who had opposed the updated clause, Ryberg wrote:

"This [new] clause will not negatively impact ethical ski areas who met their agreed-to obligations of their permits. It will only impact the bad actors in the ski industry who welshed on their agreements with the United States, and obtained water rights, justly belonging to the American people, through fraud and deception. These, he writes, are the ski areas on who's [sic] behalf NSAA has been lobbying."

The ski industry says businesses have collectively invested hundreds of millions of dollars in acquiring and managing water rights for their operations. If they can no longer sell their water rights, they ought to be compensated.

In testimony given Nov. 15, 2011 in front of a House committee, Glenn Porzak, an attorney acting on behalf of the NSAA said, "Requiring ski areas to transfer ownership or limit the sale of water rights without compensation is no different than the government forcing a transfer of ownership of gondolas or chairlifts, snowcats, or snowmobiles, or even exercising eminent domain without any compensation." He went on to say that agency was acting outside its own authority, violating the Property Clause of the U.S. Constitution.

This may, however, be a lot of bluster. "I’m surprised the ski areas are taking this position on the issue," said Mark Squillace, director of the Natural Resources Law Center at the University of Colorado. Squillace explains that the lawsuit makes two main complaints [PDF]: that the Forest Service issued and acted on the directive without the opportunity for public notice and comment, and that its actions were "arbitrary and capricious."

"Despite claiming to the press that the 2011 directive is a 'taking' of their property in violation of the 5th Amendment to the Constitution," wrote Squillace by email, the ski industry doesn't actually make that claim in the lawsuit.

"If they were really serious about this claim, it would have been a separate item in the complaint."

Danielle Venton is an intern at High Country News.

Image of skiier courtesy of Flickr user 416style.