May & June 2006
Residents had high hopes for Draft Two of the National Park Service (NPS) Access Guide after Superintendent Jed Davis assured us that he would fight for no permits, fees or environmental assessments (EAs). Unfortunately, some in the Interior Department do not share his willingness to address our issues.
The cover letter for Draft Two claims “...owners and other valid occupants are entitled to adequate and feasible access to their property, but the process of obtaining legal access across public land has never been well described in a single document.” The letter goes on to say , “The draft describes how landowners and valid occupants can secure rights under Section 1110(b) of ... ANILCA.”
Alaskan inholders do not need to obtain or secure their legal access or rights; the Alaska National Interest Lands Conservation Act (ANILCA) unequivocally granted those rights in 1980.
Department of the Interior (DOI) Solicitor’s Office lawyers told Davis that the Alaskan guide must be designed to fall under current nationwide regulations. ANILCA legislation mandated that access to inholders in Alaskan parks be handled differently. This issue is the core of our inability to come to mutually acceptable terms. As long as this dichotomy exists, residents and NPS will find it difficult to come to any agreement.
The State eloquently presented its objections to a permitting system in its Draft One comment. They reinforced the fact that adequate and feasible inholder access is not discretionary and requested a formal document for residents, needed to “...assure that future managers do not take away or unduly diminish that right.” They have “...researched the legislative and regulatory history of permit requirements pursuant to Section 1110(b) and believe the Service has some flexibility to modify or relax procedures to establish adequate and feasible access to inholdings.” They suggest that NPS “...quickly and simply provide inholders with the security of a permanent authorization.”
We agree.
The State also recommends that NPS have as their goals: deference to the inholder’s definition of adequate and feasible access; minimal administrative burden; guidelines for NPS use of discretion; clarification that access cannot be denied; a substantial role for inholders in the process; permanency of rights; minimal maintenance without further approval; the ability to transfer property without administrative approval; and the pursuit of rulemaking to amend the existing regulatory process to allow for ANILCA law.
These issues were not properly addressed in Draft Two of the Handbook.
The University of Alaska also commented on Draft One. They strongly objected to the development of a guide without inholder representation and participation, viewing this omission as “...an important signal of a lack of impartiality and fairness in the process followed to date and certainly affects the outcome of the process.” As a matter of fact, they objected to the entire idea of the Guide, and recommended ordinary rulemaking processes be followed to adopt “...regulations under the Administrative Procedures Act, not the issuance of rules in the form of a User’s Guide....Section 1110(b) contemplates that its protections of the CSUs (Conservation System Units) would be administered by regulation.”
The University also felt that the draft “...asserts a level of discretion in the Secretary that is not supported by the Statute.” The Secretary’s discretion is limited to the protection of the CSU resources. Draft Two allows NPS managers even more leeway in deciding the level of assessment, fees, vehicle usage, maintenance options, and stipulations for each right-of-way. It fails to recognize or identify discretionary limits.
Section 1110(b) of ANILCA opens with a powerful phrase, “Notwithstanding any other provisions of this Act or other law...” The State asserts that this language “...clarifies that requirements of other laws cannot be used to override the substantive grant of access provided by this section,” and “...exempts the required use of NEPA in implementation of Section 1110(b).” Yet NPS insists on applying NEPA to our situation.
A Categorical Exclusion (CE) is defined (40 CFR 1508.4) as “..a category of actions which do not individually or cumulatively have a significant impact on the human environment, and which have been found to have no such effect in procedures adopted by a Federal agency in adoption of those procedures (Section 1507.3) and for which, therefore, neither an environmental assessment or environmental impact statement is required.” Governor Frank Murkowski requested the use of a CE in his letter to Secretary of the Interior Gale Norton, written April 15, 2004. Draft One comment letters from the State, University of Alaska, Residents of the Wrangells, McCarthy Area Council, and Slana Alaskans Unite, among others, all call for the development of an unique ANILCA CE.
NPS has never seriously considered the use of the CE to carry out the ANILCA mandate. How can the suggestions of so many affected landowners be completely ignored? Alaskan park residents deserve a permanent solution through rulemaking to eliminate the use of EAs and fees and provide a simple document which assures access in perpetuity. Thirty-year term renewals to evaluate the situation are unnecessary since NPS plans to periodically monitor routes to ensure that resources are protected and uses have not changed. Davis said that he came very close to convincing the D.C. lawyers of recognizing access in perpetuity; even he agreed that it was worth pursuing further. Our heirs should not have to deal with the ambiguities of transfer approvals thirty years down the road. Now is the time to resolve the access situation permanently.
Sadly, Jed Davis passed away on April 3. He brought a new kind of management to our park by listening to and respecting the desires of the residents. His hard work won some important concessions, but Draft Two falls short of even his vision of our access solution; he told us in McCarthy last fall that he supported no permits, no fees, no EAs, and a permanent access document attached to the land in perpetuity. Alaskans must not be forced to abide by the same permitting procedures as the rest of the nation. If the State continues to press for a CE as a better alternative to the Draft Two document, perhaps NPS’ third attempt will more closely resemble the unhampered, permanent access that is our ANILCA-mandated right.
Access Guide needs more work
