Court lifts some confidentiality requirements in dispute between Vail, Vail Resorts

News News | Aug 30, 2023

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Eagle County District Court Chief Judge Phil Dunkelman issued an order on Tuesday, Aug. 29, that will open the door for Vail and Vail Resorts to talk publicly about some aspects of their ongoing negotiations amid the condemnation proceedings over the Booth Heights parcel in East Vail.

The order comes in response to the town’s Aug. 9 filing, which requested the judge rescind an order that prohibited both parties from speaking publicly about ongoing negotiations in the condemnation case. On Aug. 21, Vail Resorts responded, asking the court to leave the order intact, arguing that it would impact its right to a fair valuation trial, which is scheduled for Sept. 5-8.

The mediation order was put in place on Jan. 20, 2023, as Vail and Vail Resorts entered court-ordered mediation ahead of an immediate possession hearing — which occurred in May — to determine the fate of the 23-acre parcel in East Vail. The town wants to acquire the parcel to preserve it as a winter habitat for the area’s herd of bighorn sheep. Vail Resorts wants to keep the parcel in order to build workforce housing on the site.

In June, the judge granted the town of Vail immediate possession of the property. The upcoming valuation hearing will determine the price Vail owes Vail Resorts for the parcel.

The Aug. 29 order from the grant modifies the order slightly but leaves some confidentiality requirements in place.

According to the court’s most recent judgment, the mediation order had three parts.

The first follows confidentiality provisions with the state’s Dispute Resolution Act, which disallows “any employee, elected or appointed official, member, shareholder, lawyer, agent, representation, contractor, or consultant with the Mediating Parties” to discuss any “mediation communication.”

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This part will remain in effect as the two parties continue with ongoing condemnation proceedings.

“There is no reason for this provision to be modified,” Dunkelman wrote in the Aug. 29 order.

The second part of the initial mediation order was a provision that disallows those same party representatives to “release or authorize the release of information about the mediation services, the status of mediation or any details about a potential settlement.”

The third provision dictates a response that those parties must give if information is requested. This response was: “The parties are engaged in mediation pursuant to a court order and have been ordered by the court not to discuss this matter while mediation is ongoing.”

With regard to the second and third provisions, Dunkelman notes that they go above typical Dispute Resolution Act restrictions and were agreed upon by the town and Vail Resorts “in an effort to facilitate negotiations and potential settlement.”

“Despite the efforts of the parties, they were unable to resolve the pending issues. The Court resolved the immediate possession issue. The commissioners will resolve the valuation issue. There is no reason at this time for restrictions beyond the Dispute Resolution Act to continue in place.”

With these two provisions lifted and one remaining in place, the parties will be able to talk about negotiations and interactions that occurred outside of the court-ordered mediation, but those that occurred in court-ordered mediation with the mediation judge present will remain confidential under the order.

However, in response to Vail Resorts’ concerns that removing these provisions would impact next week’s valuation trial, Dunkelman wrote that these modifications will not be made until after the valuation trial has concluded.

“While the Court will modify the Mediation Order as requested by the Town, each party releases information at their own risk,” Dunkelman notes.