Should ANILCA Access Provisions Apply Outside Alaska? New Case by Wilderness Workshop and Rocky Mountain Wild

The White River National Forest has approved year-round access and paving of Forest Service Road 780, a summer-only route above Edwards, to provide access to the proposed 19-home Berlaimont Estates project. (Jason Blevins, The Colorado Sun)
This is usually Jon territory, but since it’s in Colorado…
Interesting story by Jason Blevins at the Colorado Sun. Basically the plaintiffs are charging that ANILCA shouldn’t apply outside Alaska. Calling its use by Supervisor Fitzwilliams an “artful dodge” (plaintiffian hyperbole) is kind of silly in my view. TSW veterans of the great Village at Wolf Creek controversy (or as I called it “reasonable access for unreasonable people”) and other access issues across the country will know that Scott didn’t just dream it up.. after all, as the article says, the FS has been using the legal precedent since the 9th Circuit called it in 1981, and is certainly what FS folks are told by their lawyers.

has been deployed many times in the West and in Colorado to force the Forest Service to provide roads across public land to access islands of private property.

To me it says reasonable access and reasonable is in the eye of the beholder. Should this be changed to “not required to provide any kind of access?” Seems to me that that question should go back to Congress. Many of us could help with stories on the difficulties of interpreting “reasonable,” and ideas for useful clarifications. That’s one reason I prefer not to let courts handle these things..they can say what’s wrong, but can’t tell us what’s right, or what could work better.

Extra points to Jason for explaining this complex stuff accurately (or at least as far as I can tell) and attaching the complaint and a link to the precedent case Montana Wilderness Association v. US Forest Service. And Bob Zybach and others will appreciate that he spelled out how to pronounce FLPMA and ANILCA. If you appreciate his work, please consider sending him a note. Remember that old management idea “catch people doing something right”?

You don’t hear much about FLPMA and the Forest Service, since FLPMA is generally regarded as a BLM statute, based on the definition of public lands in it. See here.

This Complaint involves Forest Service decisions regarding National Forest System lands in Western Colorado. Defendants applied the mandatory access provisions of the Alaska National Interest Lands Conservation Act of 1980, 16 U.S.C. §§ 3101 et seq. (“ANILCA”) instead of the discretionary access provisions in the Federal Land and Policy Management Act of 1976 (“FLPMA”) that apply to federal public lands outside of Alaska, including National Forests. 43 U.S.C. § 1740 of 1976 (“Secretary of Agriculture, with respect to lands within the National Forest System, shall promulgate rules and regulations to carry out the purposes of [FLPMA]” when considering access requests.). The National Forest Management Act of 1976, 16 U.S.C. § 1600 et seq., (“NFMA”) also applies to the National Forests, but because access issues were inadvertently omitted from NFMA, the access provisions involving National Forests were included in FLPMA. Applying ANILCA’s Alaska-specific provisions to an access request
involving the National Forest in the Lower 48 States is contrary to the plain language of ANILCA and FLPMA.

It sounds like the FS was supposed to promulgate rules in NFMA.. did they? Lands people out there?

Check out the judges’ decision in that case, which goes back to mind-curdling details of the legislative history. And it returns to Colorado.

The appellees, however, have uncovered subsequent legislative history that, given the closeness of the issue, is decisive. Three weeks after Congress passed the Alaska Lands Act, a House-Senate Conference Committee considering the Colorado Wilderness Act interpreted § 1323 of the Alaska Lands Act as applying nation-wide:

Section 7 of the Senate amendment contains a provision pertaining to access to non-Federally owned lands within national forest wilderness areas in Colorado. The House bill has no such provision.
The conferees agreed to delete the section because similar language has already passed Congress in Section 1323 of the Alaska National Interest Lands Conservation Act.

Should be an interesting case..

The specific White River case seems to be about a summer only unpaved road being changed to an all-season paved road. We discussed it here, but it seemed like that story was used to take a swipe at Trump-era NEPA regs. And yet, here we still are…

6 thoughts on “Should ANILCA Access Provisions Apply Outside Alaska? New Case by Wilderness Workshop and Rocky Mountain Wild”

  1. With regard to the legislative history issue, here are a couple of key paragraphs from the complaint:

    189. Application of ANILCA to National Forest System lands in Colorado is precluded
    by the plain language of the statute. All judicial interpretations applying ANILCA outside of
    Alaska are based on post-enactment legislative history. The D.C. Circuit has not addressed the
    plain language and purpose of ANILCA, and has not directly ruled on the application of
    ANILCA in Colorado. The Ninth Circuit has applied ANILCA outside of Alaska based on postenactment legislative intent. Other circuits have been critical of that conclusion and opinions
    following the Ninth Circuit interpretations. See United States v. Srnsky, 271 F.3d 595, 602-03
    (4th Cir. 2001).

    190. A series of U.S. Supreme Court opinions have reversed Ninth Circuit
    interpretations of ANILCA’s language, structure and purposes and confirmed that Congress
    adopted ANILCA to address the unique situations presented by Alaskan statehood. …

    That last sentence is unaccompanied by citations, but the general principle that courts will not rely on post-enactment legislative history has almost certainly gained ground since the 9th Circuit’s ANILCA decision in 1981.

    This new litigation features strange bedfellows: environmental plaintiffs are relying on a plain language argument worthy of Scalia, while the Forest Service seems to be relying on that 1981 case from the hated 9th Circuit.

  2. Interesting case indeed. While I’m normally for requiring the Forest Service to provide access to private property, in this case I kind of hope this falls through since the road in question is a fun 4×4 road. I drove it last fall and I can’t imagine how they’re going to make it a 2 lane paved road.

  3. That Montana case never made much sense to me, but it was “before my time,” so I’ve always considered it gospel (like Roe v. Wade). I’m glad to see it challenged.

    Your question about Forest Service regulations for access – take a look at 36 CFR §251.110: It looks to me like they are basically applying the ANILCA language to any request for access anywhere (§§c): “landowners shall be authorized such access as the authorized officer deems to be adequate to secure them the reasonable use and enjoyment of their land.” §§f directly addresses ANILCA, confusingly to me, but I think just reiterates that permits for access under §1110(b) of ANILCA (which is the section we are talking about) would fall under these same regulations. While these regulations may have been written under the authority of NFMA, they were probably written to conform to the 9th Circuit decision on ANILCA, which they would have had the discretion to do. So I don’t know if the invalidity of ANILCA in Colorado would help plaintiffs much if the Forest Service regulations require the same thing.

    If the Forest Service were free to say “no” (and their attorneys could have at least pointed out that Colorado is not in the 9th Circuit), that would have meant considering other alternatives, and having to take personal responsibility for a hard decision. It’s easier to blame ANILCA.

    • Jon, thanks for finding that. So the plaintiffs would have to argue that the CFRs are illegal because they were promulgated in response to a court decision? If the court decision is changed, then wouldn’t the FS have to promulgate different regulations? Unless this lawsuit is about the regulations also? And then just finding that they were promulgated wrongly??? All very confusing.

      FWIW, I think that not letting people do things is an easy decision, not the hard one, particularly in the political environment of that part of Colorado (what I liked to call “Gucci gulch”).

      Let’s see .. you make one potential enemy (the developer) and lots of new friends.. what’s not to like?

      In the world of natural resources and federal lands it seems to me that continuing what is already there (leaving the road alone) is the easy decision. Upgrading it or closing it are hard decisions.

  4. I assume this is an example of something that IS political, but I don’t know how that plays here.

    I haven’t read the whole complaint, but here’s a couple of key sentences.

    “Interpretations of the Forest Service access regulations to apply ANILCA standards outside of Alaska are precluded by the plain language and purposes of FLPMA and ANILCA.”
    “The Forest Service did not consider approval of the proposal pursuant to the
    substantive standards set forth in FLPMA.”

    I don’t think it takes an “interpretation;” the regulation uses the same language as ANILCA. So this sounds like a challenge to the regulation, but they’re not doing that. And I don’t see the language of FLPMA they say precludes them from using the ANILCA language.

    “The regulations applicable to public lands outside Alaska confirm that granting
    additional access to parcels with adequate access is not mandatory”

    This is probably the fundamental issue. Resolution may depend on how much deference the court gives to the agency to determine what “adequate access” and “reasonable use” mean, which are mandatory under the regulations.

    • Well, see I don’t see that as political so much as just a plain old disagreement. But that’s just my opinion.

      As to “adequate access” and “reasonable use” that seems to have traditionally been up to the agency.. I guess the court could give more sideboards or just make the decisions themselves. But most access decisions are not that controversial, in my experience.


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