‘Forty Rod West’ slowed by wildlife hurdles

Daniel subdivision is in core sage-grouse habitat

By Joy Ufford
Posted 10/31/24

SUBLETTE COUNTY – After two years of designs, surveys and some agency reviews, owner/ developer Jason Moyes still faces obstacles for “FortyRod West,” a higher-end subdivision …

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‘Forty Rod West’ slowed by wildlife hurdles

Daniel subdivision is in core sage-grouse habitat

Posted

SUBLETTE COUNTY – After two years of designs, surveys and some agency reviews, owner/ developer Jason Moyes still faces obstacles for “FortyRod West,” a higher-end subdivision designed for 43 residential lots north of Daniel.

The 291.3-acre project is crisscrossed by the known historic Sublette Mule Deer and Sublette Pronghorn migration routes and state-designated mule deer habitat – and Wyoming’s state-designated sage-grouse habitat rules will influence its final design.

At the Oct. 17 meeting of the Sublette Planning & Zoning Commission, Sublette County Planner Dennis Fornstrom told members Blake Greenhalgh, Ken Marincic, chair Chris Lacinak and Holly Roberts that this preliminary plat followed the previous layout with community, county commissioner and Wyoming Game and Fish’s earlier comments in mind.

P&Z commissioner Chase Harber, who spoke in support of the subdivision before being appointed, arrived shortly before Moyes’ presentation. He was not asked to recuse himself.

Game and Fish

In a July 12 letter, Wyoming Game and Fish (Game and Fish) Department made “strong but standard recommendations” in a letter to Aaron Seehafer of Rio Verde Engineering to protect mule deer and pronghorn migration corridors crossing Forty Rod West.

Gov. Mark Gordon’s executive orders to maintain functional migration corridors cannot require, only recommend actions on privately owned land.

“The proposed subdivision is also within the designated Sublette Mule Deer Migration Corridor and the identified Sublette Pronghorn Migration Corridor,” wrote Game and Fish habitat protection supervisor Will Schultz.

“Landowners are encouraged to manage for the functionality of migration corridors and concern over impacts to migrating big game was expressed by Sublette County during discussions when rezoning from agricultural to Rural Residential-5 was approved,” the letter says.

However, the Governor’s Sage-Grouse Executive Order (SGEO) of 2019 will require the developer to mitigate disturbances in the Daniel Sage-Grouse Core Population Area.

Planner Fornstrom called a meeting for Oct. 17, from 6-9 p.m., for Sublette County Planning & Zoning Commission members to hear two simpler requests first.

The Forty Rod West preliminary plat was third on the agenda, with two more items to be heard after. The Forty Rod West preliminary plat motion was finalized, 3-2 in favor, around 11 p.m., with many citizens signing off before then.

With two more agenda items, the meeting ran until 1 a.m. on Oct. 18, and board members reported driving home in near whiteout conditions.

Greater sage-grouse

Fornstrom confirmed the Forty Rod West subdivision will be Sublette County’s first under the SGEO.

“You haven’t mentioned sage-grouse,” Marincic said several hours into the Oct. 17 meeting.

Moyes said they talked with Game and Fish and “some officials” said the total subdivision, in the Daniel core habitat area, might require him to pay $11.2 million to buy mitigation credits at Pathfinder Ranch.

They started a sage-grouse disturbance analysis discussion last year but he believes the state’s formula has “discrepancies” and “miscalculations” so they quit the “exercise in futility,” Moyes said. He and Seehafer will “re-engage” once they have a final subdivision map, they said.

Rezoning, extension

Moyes received conditional rezoning of the entire 299-acre agriculture property on Sept. 6, 2022, with the requirement for “substantial development” within two years with a final plat presented to county commissioners. Otherwise, the parcel’s rezoning to Rural Residential-5 (acres) parcels would revert to its previous agricultural zoning.

On July 9, Moyes asked Fornstrom to extend the preliminary plat process for 12 months.

“We have been working diligently over the last two years to create a Preliminary Plat that would address comments and concerns of the Commissioners and the Community,” Moyes wrote. “These considerations have led to a substantial decrease in density and number of available lots. However, we believe these changes have largely addressed the Commissioner and Community concerns that have come to light during the planning process.”

Fornstrom had presented the extension request to the Sublette County Board of County Commissioners at its July 16 meeting. Chair Sam White, Tom Noble and Mack Bradley granted the extension until Sept. 5, 2025, opposed by commissioners Dave Stephens and Doug Vickrey.

Moyes wrote: “With this revised plan, we mistakenly first sought to obtain the necessary permits and approvals from the various government agencies i.e. Game and Fish, D.E.Q., etc. Throughout this process, we discovered we have put the cart before the horse and found that we would need an approved Preliminary Plat to receive the approvals from the outside agencies.”

The Sublette County Board of Commissioners must approve a preliminary plat before the next round of studies and a final plat. First, it faces scrutiny by the Planning & Zoning Commission for a thorough review and possible recommended approval.

With large agricultural ranch parcels selling to new owners who envision residential and commercial development, they would approach Sublette County and state officials asking for the ag parcels – usually ranches and large pastures – to be rezoned.

“I don’t know what else to say about this,” Fornstrom said, citing reports from the Sublette County Conservation District (SCCD), Wyoming Department of Environmental Quality (DEQ), Wyoming State Engineer’s Office (SEO), Wyoming Game and Fish (Game and Fish), Wyoming Department of Transportation (WYDOT) and Sublette County Road & Bridge Supervisor Billy Pape, whom Fornstrom said did not “see problems” with accessing Forty Rod West from Pape Road at its cross-intersection with Forty Rod Road and Highway 189/191.

“(The preliminary plat) has been in a lot of hands and a lot of eyeballs have seen it,” he said.

Those agency reviews hold some caveats, though, about groundwater, water quality, unstable soil composition and individual owners’ livestock management.

Seehafer and Moyes told the P&Z Commission they reduced 51 original RR5 lots to 43 as of Oct. 17. They placed larger lots with building envelopes to the west, where GPS-collared mule deer migrate and stop over in spring and autumn.

“The first call (after the 2022 rezone) was to Wyoming Game and Fish because there was a low-density migration corridor through the area,” Seehafer said.

They freed up 7 acres on Lot 9 as sufficient for mule deer “stopovers” and to accommodate irrigation water flows. Both said Game and Fish first suggested a migration buffer of 150 meters, then 300, 400 to 600 meters, and most recently, 500 meters.

“We tried to accommodate these as we can to still make it a functional project,” Moyes said.

The subdivision would not create a migration bottleneck, he added. Game and Fish is “applying high-use recommendations on a low-use corridor.”

“It’s kind of a moot point in my opinion,” he said. “There’s plenty of open space for (wildlife) to go around. … We feel like with our buffer on the 10-acre lots on the west side, we’re trying to mitigate. In a high-use area, you want to maintain the open area.”

Moyes said a balance of “95 percent for wildlife” could be advantageous. The subdivision will bring jobs, attainable homes and economic benefits to Sublette County.

“Game and Fish needs to understand to negotiate, to find common ground,” he said. “I’m starting to think maybe Game and Fish is using this for a different agenda (to stop the project).”

July 12 letter

A July 12 letter signed by Schultz provided “standard recommendations to avoid and minimize the impacts to wildlife and wildlife habitat” for county commissioners’ July 16 meeting to discuss an extension.

While Game and Fish “appreciates” Moyes’ efforts, Schultz wrote, “the measures … are insufficient to promote continual seasonal passage of big game through the subdivision and will likely result in the functional loss of migratory habitat. (That loss) should be considered an adverse impact.”

Game and Fish further recommended maintaining “open space” with no structures, fences or other improvements on Lots 8, 9 and 31-37 to likely allow seasonal migrations through the proposed subdivision.

Other recommendations were limiting road construction; preventing pets from roaming;

limiting overall loss of native vegetation, including sagebrush and expecting wildlife damage to shrubs and livestock feed. Game and Fish recommended limiting livestock to established pastures rather than individual corrals.

It also recommended wildlife-friendly fencing, which Seehafer said is included, and avoiding ground disturbance and construction activities during migration periods, Oct. 15 through Nov. 30, and April 15 to May 31, and the crucial winter period, Nov. 15 to April 30.

Greenhalgh said on Oct. 17, “It would be nice if someone from Game and Fish would come here and explain to us, not just a letter from July 12.”

Pinedale Wildlife Management Coordinator Brandon Scurlock did not respond to an email asking why Game and Fish personnel did not attend.

Water topics

Moyes successfully arranged sole access for the adjoining Pape and Vandersloot ranches to the Apex Ditch, which supplies irrigation water to them but not to Moyes’ property. The new property line follows the Apex Ditch.

Forty Rod West has 1952 adjudicated water rights from the Canyon Ditch and those water rights would be transferred to individual lot purchasers. Seehafer said a monitor well was installed to provide data showing ample water. He will submit a new water rights maps to the SEO, he said.

Moyes inappropriately removed sagebrush and made roads to feed horses, several people commented, not appropriate at this point in the process, they said.

The subdivision includes an area where Sublette County can manage water storage for fire protection.

Buyers will install approved onsite water wells and leach-field septic systems, which DEQ declared “nonadverse,” as part of their personal home construction, according to Seehafer.

DEQ noted that the Green River is 1 mile west. Each lot has sufficient room to separate wells and leach fields, with each lot needing individual tests depending on soil conditions and slope steepness.

“Because of the shallow (ground) water table depths,” most leach fields will probably need to be mounded to separate septic effluent from “the saturation zone,” it added.

Livestock

The SCCD looked at the proposed subdivision from a small-acreage grazing and livestock perspective, noting a potential “significant impact” on soil, plants and water – especially wells – from livestock corrals.

“Care should be taken to ensure agricultural activities such as grazing, corrals, pastures feeding areas, animal waste storage or spreading does not take place within any wellhead protection zone,” it says. Practices to ensure animal wastes do not contaminate surface waters during high water, snowmelt or storm runoff could include berms, swales and catch ponds. Lot owners can get free site-specific grazing and waste management plans from the SCCD.

Two minor fixes

Two simple fixes were required, that the Planning and Zoning Office submit the preliminary plat to the Pinedale school district and that the developer must expand all Forty Rod West lots of less than 5 acres.

At the start of the meeting, Seehafer praised the office’s “flexibility” to allow RR5 lots of less than 5 acres for higher density along Highway 191.

“RR5 gave us a lot of flexibility,” he said. “We could do 4.79, 5, 7 acres to play with and massage the layout.”

Later, though, Lacinak asked how Fornstrom reviewed the preliminary plat in the absence of a county plat review committee. Formstrom said he looked at road widths, easements and other details and gave it to the county surveyor; comments were returned to the developer and engineer.

Lacinak said county regulations do not allow RR-5 lots of less than 5 acres.

“We did 4.7 acres in the past,” said Seehafer. “That’s always been allowed in Sublette County. Dennis (Fornstrom) did not bring any of that up.”

Fornstrom said the subdivision’s average lot size was well over 5 acres, which was how he reviewed it. “You’re looking at a subdivision that does not follow straight lines.”

Sublette County Attorney Clayton Melinkovich confirmed Lacinak’s reading of the county regulation, adding,” Somewhere along the line someone was given the impression they could do this.”

Seehafer said those 10 lots will be redrawn.

The board considered tabling the process but eventually agreed to work through it, which ended with conditions attached to several of the nine findings when Marincic made a motion to approve at 11 p.m.

Greenhalgh and Lacinak voted against recommending the preliminary plat approval; Harber, Roberts and Marincic voted to recommend approval.

Public comments

Starting at 8:15 p.m., public comments from Dan Bailey of Bondurant, Jocelyn Moore and Carmel Kail of Pinedale and Sublette County Commissioner-rancher Vickrey of Daniel questioned Harber’s potential conflict of interest as owner of High Mountain Real Estate.

Sublette County Commissioner Dave Stephens attended the meeting as did Commissioner-Elect Lynn Bernard.

Lacinak explained that Harber wouldn’t abstain from voting on Moyes’ application after the board discussed its bylaws.

Harber later wrote: I dont share any business dealings with the Moyes. I represented my father (John Harber) in Jason’s purchase of their BloomField properties several years ago. I disclosed and discussed with the P&Z board prior to the (Oct. 17) meeting as Mr. Lacinak explained, and they were in agreement that there was no conflict or grounds for recusal.”

John Carter of Bondurant, Paul Knopf of Evanston, Jana Weber of Pinedale and Katharine Wipfler also submitted written and verbal comments, questioning traffic and public safety, scenic values, open space, wetlands, cumulative effects “random” developments and the county-required nine findings of no significant adverse impacts to approve the preliminary plat.

Seehafer said WYDOT would not require a traffic study and Moyes said he would not voluntarily undertake one. Seehafer said he did not conduct a wetlands delineation as he stated in 2022, saying it wasn’t needed.

Moyes said a conservation easement suggestion to open migration came from the Game and Fish, without any takers. “This is a fully functional corridor.”

Mixed findings

The Moyes team came away from the many-hours-long public meeting with conditional approval of sorts.

Before approving a subdivision’s preliminary plat, the county’s (volunteer) board and later, five elected county commissioners, must make nine findings that the development will not cause negative adverse effects.

County Attorney Clayton Melinkovich told the board that it must be very clear in designing a motion on the nine findings. “If one of the nine findings is not in the affirmative, it would be erroneous to have the BOCC vote on it.”

P&Z members talked through mixed opinions in their “straw polls” over the findings, especially with adverse impacts to wildlife and traffic concerns.

Seehafer and Moyes said the subdivision’s access onto Pape Road to the highway, across from the long-developed Forty Rod Road, would not cause traffic problems.

According to WYDOT, the burden to order a traffic study or install turning lanes falls to the county to accommodate 43 new households, deliveries and other vehicles.

Moyes and Seehafer challenged Lacinak late in the board’s work.

Moyes said the board has no real power, and that the elected officials make final decisions.

Lacinak reminded Seehafer that they needed to actively collaborate with Game and Fish.

“In my opinion, the applicant has gone above and beyond for wildlife,” Harber said.

Marincic said he “had problems” with Moyes paying $11.2 million to Pathfinder Ranch for the SGEO. “It looks to me like they have tried to mitigate in good faith the issues that are coming up here.”

Greenhalgh asked Moyes what he would do if the state required an $11.2-million mitigation fee. “Then we did not create affordable housing. I don’t see anything good for Sublette County.”

Moyes said he hoped the cost is lower to add to lots’ purchase prices.

He defined “affordable housing” as a cycle created when owners of entry-level homes sell them and move into higher-priced home. “It may not be affordable housing but it’ll open up affordable housing.”

Next

The required “no adverse impacts to wildlife” finding, where the P&Z board motion called for stricter conditions and other changes will be formalized before the Sublette County Board of County Commissioners’ next meeting on Friday, Nov. 8, at 9 a.m.

 

– Forty Rod West owner/ developer Jason Moyes responded to questions about working on a subdivision in a wildlife-heavy property. “I appreciate you reaching out, but I will not be providing answers or comments regarding your inquiries. Based on your demonstrated bias in reporting on certain projects in our county, I find it pointless to engage further. It is essential for journalists to strive for objectivity and remove personal biases from their work. Unfortunately, I believe your coverage tends to reflect a personal agenda that undermines the positive contributions these projects make to our community.

Thank you for understanding.

Jason Moyes”