50 Colo.Law. 28
Managing Hotspots in Wildfire Risk at Public Lands Ski Areas
Vol. 50, No. 2 [Page 28]
Colorado Lawyer
February, 2021
ENVIRONMENTAL
LAW
BY
HEIDI RUCKRIEGLE, LAUREN MERCER, AND LEAH FUGERE
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...
