Environmental Law, 0221 COBJ, Vol. 50, No. 2 Pg. 28

PositionVol. 50, 2 [Page 28]

50 Colo.Law. 28

Managing Hotspots in Wildfire Risk at Public Lands Ski Areas

Vol. 50, No. 2 [Page 28]

Colorado Lawyer

February, 2021



This article addresses proactive fire prevention efforts that ski areas can take to lessen financial impacts from forced closures and evacuations as well as potential wildfire-related liabilities.

Visits to public lands—many of which include a visit to a ski area—have increased by about 15% over the last decade.[1] During that same period, the frequency and intensity of wildfires in the American West have also increased, fueled by climate change and a reckoning of decades of fire suppression.[2] Compounding the financial strain of wildfires, the ski area industry lost an estimated $2 billion when COVID-19 clipped the 2019-20 ski season short, and the challenges continue as resorts attempt to operate while keeping guests safe and complying with pandemic-related restrictions.[3]

This article surveys the landscape of ski area management with a focus on the challenges facing ski areas in managing wildfire risks. It covers the legal framework governing fire mitigation projects on public lands and proposes measures ski areas can take to meet their legal obligations, build relationships with decision makers, increase preparedness in the event of a wildfire, and, ultimately, reduce their risk.

Public Lands Ski Areas

Federal public lands make up nearly half of the total land area of the American West.[4] In terms of land management, ski areas account for only a minute portion of a much vaster system—one tenth of one percent of all national forest lands—but in managing the impacts of human use, ski resorts require a great deal of attention.[5] And they drive revenue. Ski areas pay $37 million in annual rental payments to the U.S. Forest Service (Forest Service), the managing federal agency, and contribute billions of dollars each year to the economy.[6] The unique history of this ski area/agency partnership has resulted in challenges that require attention and resources to address the growing threat of wildfire.

Managing the Ski Areas

Relatively remote western national forest lands offer ideal mountain terrain for ski areas. Indeed, after hiking, downhill skiing/snowboarding is the second most popular use of national forests.[7] Of the 160 ski areas that operate in the American West,[8] 122 of them operate on Forest Service land.[9] As a result, there is a long history of agency management of skiing and other alpine sports on public lands.

For most of the twentieth century, the permitting process for ski areas on public lands was, in the Forest Service's own words, both "cumbersome and confusing."[10] In the 1960s and 1970s, Congress increasingly endorsed a multiple-use philosophy for public lands, giving the Forest Service greater discretion in management.[11]

To simplify the permitting process for ski areas and to balance competing management interests, Congress passed the National Forest Ski Area Permit Act of 1986 (the 1986 Act),[12] which established a single, more streamlined permitting process for ski areas on national forest lands, allowing the Forest Service to issue 40-year special-use permits (SUPs) for ski area operations.[13]

Expanding Summer Operations

Starting in the early 2000s, ski areas began to shift their formerly winter-dependent business model by installing or increasing summer operations.[14] Several considerations drove this shift. Changing climate patterns have led to unpredictable snow pack levels from year to year,[15] causing swings in revenue as ski seasons vary in quality and length.[16] By 2050, the winter season at ski areas could be reduced by as much as a third, an issue that snow making cannot sustainably solve.[17] Many ski areas have filled that gap with increased summer activities to round out their annual revenues.[18]

Initially, as ski areas developed summertime recreational offerings, the extent of the Forest Service's authority over these additional activities was uncertain.[19] While permits for these activities were largely approved at the discretion of the Forest Service, the 1986 Act expressly allowed for only Nordic and alpine skiing, not activities like mountain biking, ziplining, or other summer recreation.[20] In response, Congress enacted the Ski Area Recreational Opportunity Enhancement Act of 2011. This legislation allowed ski areas on federal lands to offer summer activities without the burden of obtaining new permits and, as a result, expanded opportunities for ski areas to offer recreational activities year-round.[21]

Ski areas have benefited from investing in more summer infrastructure and staffing, and they now host hundreds of thousands of visitors each summer who infuse millions into ski town economies during what was once the off season.[22] For example, at Utah's Sundance Mountain Resort, the summer of 2015 was more profitable than any previous winter.[23] Even before accounting for summer activities, the ski industry is a powerful economic driver, contributing approximately $29 billion to the country's gross domestic product.[24] The ski industry in Colorado alone generates nearly $5 billion annually, a significant economic impact to the state.[25] With summer offerings increasing, the economic force of ski areas will likely remain significant, despite the impacts of the COVID-19 pandemic on the industry.

Climate Change and Poor Wildfire Management

The catastrophic 2020 wildfire season (a season is defined as the range between what is typically the year's first large fire to the year's last) was a powerful reminder that the changing climate is affecting the American West in many ways.[26] Increasing average temperatures, extreme variances in precipitation levels from year to year, more frequent and intense droughts, and more severe weather events will present ongoing challenges for mitigation and adaptation.[27] One of these challenges, wildfire, is the perennial bane of the American West.[28] Eight of the top 10 most wildfire-prone states—Arizona, California, Colorado, Idaho, Montana, New Mexico, Utah, and Wyoming—are Western states with significant ski area operations on public lands.[29]

In addition to climate change, years of poor forest management have contributed to an increase in the frequency and intensity of wildfires. Decades of fire suppression, once practiced as part of normal forest management and made famous by the mascot "Smokey Bear,"[30] have created unmanageable swaths of dense fuel.[31] Without natural burns to periodically clear downed trees and brush, national forest lands have become tinder boxes. And climbing annual temperatures have increased the length of summers and the number of hot days, drying out fuel.[32] As a result, wildfires have become larger, hotter, and more destructive than ever.[33]

The increase in wildland-urban interface (WUI) (the area where human development meets the forest) across the West further contributes to the growing destructive power of wildfire.[34] From 1990 to 2010, WUI grew dramatically in terms of the number of new houses in the interface (41%) and land area classified as WUI (33%).[35] In Colorado, the number of people living in WUI increased by 45% from 2013 to 2018.[36] The growth in WUI means that firefighting must increasingly focus on structure protection, causing shifts in technique and planning.[37]

At the same time, the Forest Service has struggled to meet the demands of fighting fire on the millions of acres of Western public lands.[38] Wildland fire management comprises 45% of the Forest Service's 2021 budget request, compared to only 16% of the agency's budget in 1995.[39] In 2017—the Forest Service's most costly fire season to date[40]—the agency spent more than $2.4 billion on fire suppression.[41] This focus on firefighting has diverted funding from the Forest Service's other programs, including, ironically, fire mitigation initiatives.[42] To address this issue, in 2018 Congress passed a "fire fix," granting the Forest Service and Department of the Interior (DOI) authority to tap into additional funds ($2.35 billion in 2021) when wildfire suppression funding is exhausted.[43] But even with the fire fix, wildfire management costs dominate the Forest Service's discretionary budget,[44] and non-fire Forest Service personnel have decreased by 39% since 1995.[45] And, for the foreseeable future, the demand for firefighting is not going away. Since 2010, an average of more than 64,000 wildland fires have burned about 6.5 million acres of land in the U.S. annually, and about 63 million acres of national forest lands are "at risk of uncharacteristically severe wildfires."[46]

Ski areas are at the center of these concerns, regardless of good snow seasons, as climate impacts are felt regionally. In June 2019, for example, snowpack in high elevations in the American Rocky Mountains was much higher than average, reducing fire danger in these areas.[47] At the same time, the Canadian Rockies in Alberta burned, and fire activity there was at or above average for that same period.[48] With increasing summer activities and a shift toward year-round business models, the economic risk to ski areas from wildfires will only grow, whether or not the inches of snow pile up during the winter.

The Legal Framework for Wildfire Risk Mitigation

Ski areas operating on national forest lands must adhere to extensive federal laws and regulations. The most prominent and demanding are the procedural requirements of the National Environmental Policy Act (NEPA).[49] NEPA requires the Forest Service and other federal agencies to consider environmental impacts before approving activities...

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