May & June 2006
The long-awaited second draft of A User’s Guide to Accessing Inholdings in a National Park Service Area in Alaska was released on March 27, 2006. Last fall, as the comment period for Draft One was drawing to a close, Wrangell - St. Elias Park Superintendent Jed Davis advised us that he would be asking his administrators for a simplified process to document access to inholdings without permits, fees, or environmental assessments (EAs.) He hoped to provide each landowner with an official document, attached to the land in perpetuity, to guarantee permanent access.
Despite being diagnosed with liver cancer last October, Superintendent Davis took our cause to the Department of the Interior’s Solicitor’s Office lawyers in Washington, D.C. and fought on our behalf for those concessions. Unfortunately, the lawyers took a hard line on granting special conditions for Alaskans, despite the promise in the Alaska National Interest Lands Conservation Act (ANILCA) that Alaskan inholders would be treated differently. Davis invited a few of us from the McCarthy area to meet with him just days before Draft Two was released to outline the changes. He told us that the National Park Service (NPS) wants the guide to abide by current regulations and procedures that apply nationwide.
The Alaska Region of NPS proposes to implement a policy to waive application, EA, processing, monitoring and rental fees for any right-of-way needing an EA. Policy is set at the discretion of each new administration and can be easily changed. No new federal rulemaking will clarify that fees are inappropriate in Alaska under ANILCA law.
According to Draft Two, all inholders who access their land other than by snowmachine, motorboat or airplane would require an access permit unless their access is an established public right-of-way or park-designated road. Each permit would outline the location and width of the route, which vehicles may be used, the frequency of their use, and the number of passes allowed. Possible seasonal restrictions may be imposed, along with stipulations to prevent or compensate for resource damage. Any trail maintenance would require a permit. The term of the permit was increased from 10 to “up to” 30 years, but it would be attached to the landowner, not to the land itself. Renewals should be automatic if uses have not changed and no resource damage has occurred. Any sale or inheritance would require a transfer, approved by the superintendent. Permits may be revoked for violation of their terms and conditions, and periodic inspections would occur. Additional restrictions may be imposed by NPS at any time.
NPS would prepare EAs for all routes in existence as of January 1, 2006. Where “numerous existing routes have relevant similarities,” they will conduct one programmatic EA (PEA), at their expense. NPS states that any permit application for access across national park areas will require an EA. Whether future requests for access across undisturbed land will also apply to the PEA is not addressed. Fees will not be waived for more complex routes which require an Environmental Impact Statement (EIS); those inholders would have to negotiate fees with the NPS.
Draft Two claims that “...the specific history of the access route or facility, if any, will make a difference in how the authorization will be processed.” Also, “Some existing access routes may not be sustainable and may require extensive construction, realignment and/or investigation of alternative access means...” which would require individual attention and the authorization process would “...more closely resemble that for a new access route or facility.” The draft gives a great deal of discretion to the NPS to decide how these permits will be issued.
The Residents of the Wrangells (ROW) organization agrees with the governor that a categorical exclusion (CE) should be developed to allow for ANILCA’s special circumstances and eliminate the need for permits, fees, and EAs altogether. In lieu of a CE, routes may be designated as historical trails or park-designated roads. We suggested a simple registration form which could document ownership, location, and uses of all routes used today, rather than a permit. Each landowner should receive a document from NPS, attached to the land in perpetuity, guaranteeing permanent access across their chosen route. No circumstances should allow the access to be revoked. Federal rulemaking changes should clarify that fees and EAs are not acceptable for Alaskans under ANILCA law. Traditional use of motor vehicles, and a certain amount of minimal maintenance should be allowed without a permit. Stipulations and conditions which perceive future harm to the resources and saddle inholders with restrictions are inappropriate.
ROW recommended that a state appeals board, as suggested by the governor, be established to settle ANILCA disputes which arise. Extreme and fanatical interpretation of the regulations should be avoided. We asked that inholders be allowed to participate in the draft-writing process, but were told that we could not.
We believe that the construction of future routes should abide by the same conditions. We asked that local volunteers be allowed to maintain and repair existing and closed routes, and that section lines and RS2477 right-of-ways be recognized as valid access for those inholders that use them.
Very few of these requests have been addressed in Draft Two. Granted, waiver of fees and development of the PEA would reduce some of the burden placed upon inholders under Draft One. But, NPS continues to refuse to officially recognize that ANILCA law mandates Alaskans be treated differently from other parks nationwide. Last fall, Jed Davis told a McCarthy audience that NPS and residents should continue to work together, with as many rewrites of the draft as necessary to “get it right.”
Until NPS realizes that they must recognize and respect the unique rights of Alaskan inholders, the guide will not significantly change. Lawyers and officials in Washington, D.C. cannot by law require Alaskans to abide by standardized nationwide regulations. Draft Two is unacceptable, and many residents would like assurances that, after receiving Draft Two comments, NPS will begin working on a significantly different process of rulemaking the third time around which includes a CE for all Alaskans.
Second Draft Access Handbook still lacking
