I wake up each day torn between a desire to save the world and a desire to savor the world. It makes it hard to plan my day.

:: E. B. White


Public Counsel Conservation projects include:

Public Access to the Hunter Creek Valley Permanently Protected: A 17 Year Saga
Snowmass Creek:  Community-Based Campaign Secures Storage to Protect Stream Flow
Sanders Ranch: A New Town Shot Down
Spurious Claims to Wilderness Lands Defeated

Public Access to the Hunter Creek Valley Permanently Protected: A 17 Year Saga

“Hunter Creek in Winter” © Dottie Fox

In this celebrated case, wealthy new landowners clashed with public access advocates in Aspen over the status of the 100 year-old mining era Hunter Creek Toll Road which traversed their 70-acre parcel bordering the National Forest.  Built during the mining era, the road had been used by the public for over a century to traverse Red Mountain roads and trails from town to public national forest and wilderness lands.  In l988 the landowners closed the road that had traditionally provided access to the 82,450 acre Hunter-Frying Pan Wilderness and to the valley floor, the “backyard” of Aspen. After 17 years and three separate litigations, all stakeholders settled on a compromise guaranteeing 24/7 public recreational access and insuring that the landowners would not be subject to motorized traffic except during hunting season.

In 1988, in Aspen, “FREE HUNTER CREEK” was emblazoned on T-shirts and bumper stickers. Hardly a week went by the next four years without a County Commission or Court hearing, a front-page article or lead editorial, a full-page ad announcing a picnic or ski-in, or an incident of harassment on public roads and trails accessing this popular recreation area.  The landowners, their caretakers and their “attack poodles” were occasionally ticketed by the Sheriff or sued by private citizens.  From the outset, the Friends were represented pro bono by Tim McFlynn.  Within a few years, nearly 1000 people had joined the Friends, including Elizabeth Paepcke and five former Aspen Mayors.

Elizabeth Paepcke

Today, thanks to Pitkin County and the Friends of Hunter Creek, the public enjoys perpetual rights of public access from Aspen to the nearby Hunter Creek Valley — the back yard of Aspen — and to the pristine 82,450 acre Hunter-Frying Pan Wilderness beyond. This is the culmination of one state and two federal court litigations, a 50-witness trial in U.S. District Court in 1993, and interminable years awaiting Court rulings and participating in stop-and-go settlement negotiations.

In 2002, following issuance of the federal court’s Order locating the route of the public road — from Aspen, through the maze of high-end homes on Red Mountain, and on to the national forest boundary — the landowners’ appeal to the 10th Circuit was gath

ering momentum. Public Counsel immediately retained former Colorado Supreme Court justice Jean Dubofsky as the appellate attorney for the Friends of Hunter Creek. During the next three years, Ms. Dubofsky skillfully guided the case through 10th Circuit mediation to a long-awaited final settlement.

Wisely, Pitkin County, the Friends, and all of the affected Red Mountain landowners settled for limited rather than unlimited public access. In so doing, the interests of all parties were harmonized so as to preserve as much as possible the sanctity of this very special place — for tomorrow’s flora and fauna as well as for all who find time for a lunch hour walk or ski, an afternoon ride, a day or two of hiking or fishing, a summer or winter hut trip, a week of hunting, or an extended adventure into permanently protected wilderness.

The settlement protects these lands from being overrun by “too much access”(e.g., vehicular, dirt bike, snowmobile, tour bus … even asphalt). As the Agreement recites, a balance has been struck that will “guarantee suitable public access to the Hunter Creek Valley and aid in the preservation of the Hunter Creek Valley.”

Hunter Creek Valley

The Friends of Hunter Creek was the torch bearer from the outset, founded in 1988 by two former Aspen Mayors when the landowners closed and barricaded the historic North Road as it passed through their 70 acres. Pitkin County had to be convinced to assert public ownership of these historic roads and trails and not abandon public access to public lands. Through the entire 17-year saga, the Friends were led by the same dedicated conservationists and backcountry enthusiasts who had worked together in the early ’70s on another project to protect this land — securing Congressional approval of the federal purchase of the entire Hunter Creek valley floor from McCulloch Oil Company. This averted a planned 1,200-house subdivision with a planned gondola serving the subdivision from Aspen.

Highlights of the 2005 settlement include:

  • 24/7 motorized access and parking at the national forest boundary guaranteed for handicapped or senior citizens or school children on educational outings.
  • 24/7 motorized as well as non-motorized access to the much larger BLM parking lot (for general public parking).
  • Perpetual easements for mountain bike users and hikers along a ravine route.
  • A perpetual conservation easement granted by the landowners to Aspen Valley Land Trust along Hunter Creek.
  • A perpetual Nordic Trail easement granted by the landowners to Pitkin County and prohibiting snow plowing.
  • Hunter access from 7 days before until 7 days after hunting season.

Public Counsel acknowledges that funding for this project has been generously provided by hundreds of Roaring Fork Valley citizens and contributors.

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Snowmass Creek:  Community-Based Campaign Secures Storage to Protect Stream Flow

Snowmass Creek

Since 1978, the Snowmass-Capitol Creek Caucus has organized and directed a long series of initiatives to protect instream flows in Snowmass Creek and to preserve its aquatic environment and extraordinary riparian ecosystem.

The nearby Town of Snowmass Village and Snowmass Ski Area, while in the separate and much smaller Brush Creek watershed, depend on Snowmass Creek for virtually all domestic water supplies. In 1978 the Army Corps of Engineers granted a Section 404 Clean Water Act permit to the Snowmass Water & Sanitation District which allowed the construction of a trans-basin diversion structure and pump station sending up to 6 cfs of creek water to the Town’s Water Treatment Plant, or to snowmaking equipment, for the expansion of the ski area and the resort. Virtually all of East Snowmass Creek has long been diverted year-round by ditch and pipeline to furnish the main municipal water supply for the town.

Colorado Supreme Court Victory

Litigation in the 1990s culminated in the Colorado Supreme Court’s striking down of the Colorado Water Conservation Board’s attempt to drop minimum winter streamflow in Snowmass Creek to from 12 to 7 cfs to facilitate snowmaking for which the Aspen Skiing Company needed 5 cfs.  Following lengthy negotiations with the CWCB, Water District and Caucus, a “stairstep” instream flow regimen was adopted in 1996. While the stairstep would be set each October based on whether the year was wet, average or dry and was scientifically based, it was still junior to the Water District’s senior rights. “Build-out” of the resort would still imperil Snowmass Creek if “direct draws” based on periods of peak demand occurred when streamflows were perilously low, especially in late winter when ski resorts are fully booked.

In 2000, Public Counsel hired Denver environmental attorney Lori Potter to represent the Caucus and a coalition of national and local conservation groups including American Rivers, the Sierra Club, Trout Unlimited, Audubon, the Wilderness Workshop, Windstar Land Conservancy and High County Citizens Alliance. The coalition petitioned the U.S. Army Corps of Engineers to modify the 1978 diversion permit so as to add an additional condition — compliance with the 1996 stairstep minimum stream flows, except in true emergencies such as landslide, wildfire or contamination. The Corps accepted jurisdiction under its duty to protect the public interest and ordered scientific monitoring for 10 years to determine whether the diversion and pumping was causing “significant degradation” to the fishery. Each year since 2002 both the Caucus and the Colorado Division of Wildlife conduct studies using “electro fishing” to stun, count and return trout to the stream.

Streamflow Protection Campaign Contintues

Following the drought of 2002-03, Public Counsel and the Caucus retained water engineer Lee Rozaklis to preform an engineering study of how to best protect the creek. The Hydrophere Report in 2004 recommended the creation of an adequate on-mountain raw water storage reservoir and automation of the pump station on Snowmass Creek, in order to allow withdrawals to occur during periods of excess flow rather than at times of peak demand.

Following Town approval of the Aspen Skiing Company/Intrawest’s massive “Base Village” project, the District projected a 25% increase in water demand.  The Caucus stepped up its efforts to encourage the Water District to reduce its 30% loss of treated water in the pressurized grid by better leak management, and to consider water conservation incentives in its rate structure.

In 2007, Public Counsel facilitated an all-day mediation between the Water District and the Ziegler family, providing renown water law mediator and professor Larry MacDonnell.  A conceptual agreement was reached whereby, on a strict timeline and with strict revegetation and other conservation conditions, the District could purchase the small Lake Deborah reservoir on Ziegler lands.  When the proposed and much enlarged 260 acre-foot Ziegler Reservoir came before Pitkin County Commissioners for land use approval in 2009, the Caucus was an active supporter.  The Reservoir was completed and became operational in the summer of 2012 following the one-year delay for the “Snowmastodon” archaeological excavation of well-preserved Ice Age birds, mammals and plants. In 2012, Public Counsel assisted in funding ongoing half-market professional services of Lori Potter and Lee Rozaklis to the Caucus.

Public Counsel acknowledges that the principle funding for this project has been generously provided by the New-Land Foundation.

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Sanders Ranch: A New Town Shot Down

Dramatically escalating land values make every Rocky Mountain resort town a prime target for real estate developers. In 2000, an out of state developer proposed a new town on 280 acres of classic Colorado ranchland dominated by views of 12,953-foot Mount Sopris and almost exactly halfway between the communities of Glenwood Springs and Carbondale. Public Counsel organized testimony by land use experts and attorneys which — along with massive public protest — defeated the proposal.

© Jonathan Kloberdanz

In 2000, developer George Hanlon proposed a new town on 280 acre of classic Colorado ranchland, dominated by views of 12,953-foot Mount Sopris and almost exactly halfway between the communities of Glenwood Springs and Carbondale. Sanders Ranch would become home to 561 new residences, a community center, 300,000 square feet of retail, and the first freeway-style overpass on Highway 82 as it heads toward Aspen and Independence Pass.

The proposal already had preliminary plan approval in 1998 on a 4 to 3 vote from the Garfield County Planning & Zonging Commission. But as the day for final County approval or denial approached, opposition grew like a range fire from neighborhood, environmental and community groups. The Town Councils of Glenwood and Carbondale weighed in against such sprawl as did scores of professionals, business leaders, and other ranchers.

Contacted on short notice by Roaring Crystal Alliance leaders, Public Counsel was asked to provide critical legal analysis of the voluminous PUD proposal and to insure that a strong record was made at the BOCC public hearing which would support denial should the developer file suit. Public Counsel recruited and hired nationally prominent land use attorney Gerald Dahl, then a partner at the Denver law firm of Gorsuch Kirgis, who mobilized quickly since the assignment required ’round-the-clock work.

At the BOCC public hearing, Mr. Dahl’s presentation was flawless, and following 14 hours of testimony, the Board unanimously denied PUD approval to Sanders Ranch. The Board heard testimony from 155 of the over 500 folk who attended the session. And 212 letters, emails and transcribed phone calls were entered as citizens’ exhibits opposing the project. In the end, the PUD was determined not to conform with the Garfield County Comprehensive Plan and judged to have disastrous impacts on the surrounding rural area. Because the record supporting denial was so strong, no suit against the County ever materialized.

Public Counsel acknowledges that funding for this project has been generously provided by hundreds of Roaring Fork Valley citizens and contributors.

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Spurious Claims to Wilderness Lands Defeated

“American Lake at Dawn” © David Hiser

Between 2001 and 2006, Public Counsel acted on behalf of the The Wilderness SocietyWilderness WatchAspen Wilderness Workshop and Aspen Valley Land Trust to help Pitkin County and the U.S. Forest Service block a “land grab” by those seeking to privatize and develop sixty-six national forest and wilderness inholdings. Spurious claims of ownership were made based on “wild deeds” to old (1890s) mining claims. The deeds were issued by a convicted swindler.

Development in these wilderness areas would have resulted in roads, houses, pets, and lights, destroyed critical wild lands, open space, and wildlife habitat, and threatened historic routes of public trail access (e.g., Conundrum Creek, American Lake, Independence, Lenado, etc.). In 2001, a massive litigation was filed in federal court in Denver threatening critical lands in the Maroon Bells-Snowmass, Hunter-Frying Pan, and Collegiate Peaks wilderness areas. On the same day, just as the statute of limitations was to expire, 53 spurious cases were filed asserting ownership of some 66 mining claim “inholdings” in these sensitive areas.

Almost immediately, Public Counsel engaged Denver environmental lawyer Lori Potter to represent The Wilderness Society, Wilderness Watch, Aspen Valley Land Trust and Aspen’s Wilderness Workshop as amicus (“friends of the court”). Through careful investigation, public records revealed that each of the claimants had purchased — typically for a little cash and with no title insurance — deeds issued by or through a convicted swindler. He had created “wild deeds” to these old mining claims by reincorporating new entities which used the identical name of long-abandoned and dissolved corporate owners of these lands in an earlier era — 50, 75 or even 100 years ago.

Lori Potter Bio

In May of 2004, Public Counsel helped Pitkin County secure favorable rulings from the Colorado Supreme Court in the pivotal Timroth tax deed case, which gave Colorado trial courts the right to admit extrinsic proof to explain a County’s untimely sale of property — decades earlier — for delinquent taxes or to explain the untimely issuance of the treasurer’s deed (i.e., no staffing during “The Quiet Years” in Aspen, etc). This ruling on procedure was important to the federal court’s analysis of pending cross motions for summary judgment.

In July of 2004, Public Counsel helped secure favorable rulings from the United States District Court in all eight “test” cases, dismissing on summary judgment the plaintiffs’ claims of ownership as groundless and awarding attorneys’ fees against all eight plaintiffs. The plaintiffs’ appeal was unsuccessful.

Public Counsel acknowledges that funding for this project has been generously provided by hundreds of Roaring Fork Valley citizens and contributors.

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© David Hiser

© Burnie Arndt

© Gino Hollander