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Attorney Debra D'Agostino Lends Insight on Wolf Creek Controversy

Written by: Federal Practice Group
Written by: Federal Practice Group

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The Durango Herald recently turned to Attorney Debra D’Agostino for her insight into the long-standing legal battle over Colorado's Wolf Creek. The national site has been targeted for an "Aspen-like" resort development since the 1980s by Texas media and energy magnate Red McCombs. Due to new emails released via FOIA, the Forest Service is now suspected of colluding with the billionaire to finally further the project and attempting to evade FOIA by violating the federal record keeping regulations.

"They could be sanctioned," Attorney D’Agostino told the paper, referring to the Forest Service’s attempts to evade FOIA. "It’s really an undeveloped issue given that it seems government officials come up with endless new tactics to skirt around FOIA requests. The question is, can anything be done about it, and does anybody care?"

At the center of the newest Wolf Creek debate is environmental testing that was conducted by the Rio Grande Forest Service that opponents believe was influenced by McCombs in order to approve the land swap. The emails released by the FOIA request seemingly illustrate that the Forest Service anticipated such an investigation and conspired to destroy documents related to McCombs’ plans. The activist group Friends of Wolf Creek has filed suit against the Rio Grande Forest Service and demanded new testing.


According to the Friends of Wolf Creek, the emails demonstrate a specific fear that the Forest Service's dealings with McCombs' representatives could be exposed with a FIOA request. In several emails, Rio Grande Forest Service staffers attempt to take evasive measures to protect their communications.

"Dan [Dallas’s] main concern wasn’t the letter, but the emails around the letter that might be a little damaging in the event they are not all deleted in case we get a foia," wrote Ranger Thomas Malecek in 2012. "remember we are swimming with sharks and need to keep the emails from even the remote appearance of whatever, so make sure you burn this once read!”

A year later, Wildlife Program Manager Randy Ghormley also urged caution about communications with McCombs' people, insisting employees submit hardcopy communications when possible. "I’ll have (our lawyer) send it electronically through an email ... so it will remain attorney-client privilege and not subject to FOIA,” Ghormley also wrote.


McCombs' decades-long effort to legally acquire the land to build "The Village at Wolf Creek" hit a critical point in May 2014, when the Forest Service granted approval of a land swap. The swap, which was only approved due to the aforementioned environmental testing, gave McCombs access to U.S. Highway 160—a critical feature in giving the public access to the proposed resort.

The complaint against Rio Grande Forest Service is anticipated to be settled in Federal District Court in Denver later this year. As both sides prepare, the Friends of Wolf Creek insist that the emails are just the tip of the iceberg. "The willingness to stonewall us is stunning," said Attorney Travis Stills, who is representing the coalition. "The emails are indicative of the fact they do have something to hide. We’re still letting the sun shine in on what really happened."

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