Sunday, August 26, 2012

VWC-DEIS 1.10 ANILCA 1980 - road access rights

{updated 9/2/12}
Reviewing the VWC-DEIS you'll notice a number of points worth a closer look. To facilitate that I will use this blog for my study notes, organized into single issue threads. Each will quote the USDA Forest Service - Village at Wolf Creek Access Project - Draft Environmental Impact Statement section in question.

{For clarity I have added breaks between sentences and highlights where appropriate.  Wording has not been altered.}
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Draft Environmental Impact Statement - Village at Wolf Creek Access Project

Page 1-15   Chapter 1.  Purpose and Need for Action

1.10 The Alaska National Interest Lands Conservation Act of 1980

Section 3210(a) of the Alaska National Interest Lands Conservation Act (ANILCA, Public Law 96-487) specifically addresses the right of access to privately owned inholdings within Forest Service lands.  Section 321 reads as follows:(3)

Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment thereof; provided, that such owner comply with rules and regulations applicable to ingress and egress to or from the National Forest System.
The regulations interpreting and implementing this section of ANILCA are set out in the Code of Federal Regulations at 36 CFR §251.110 – 114, Subpart D – Access to Non-Federal Lands. “Adequate access” to an inholding is defined by CFR as a route and method of access to non- Federal land that provides for reasonable use and enjoyment of the non-Federal land consistent with similarly situated non-Federal land and that minimizes damage or disturbance to National Forest System lands and resources.” (emphasis added)
“In issuing a special-use authorization for access to non-Federal lands, the authorized officer shall authorize only those access facilities or modes of access that are needed for the reasonable use and enjoyment of the land and that minimize the impacts on the Federal resources. The authorizing officer shall determine what constitutes reasonable use and enjoyment of the lands based on                               (Page 1-16   Chapter 1.  Purpose and Need for Action)
contemporaneous uses made of similarly situated lands in the area and any other relevant criteria.”(5) The authorizing officer, prior to issuing any access authorization, must also ensure that:(6)

(1) The landowner has demonstrated a lack of any existing rights or routes of access available by deed or under State or common law;

(2) The route is so located and constructed as to minimize adverse impacts on soils, fish and wildlife, scenic, cultural, threatened and endangered species, and other values of the Federal land;

(3) The location and method of access is as consistent as reasonably possible with the management of any congressionally designated area and is consistent with Forest Land and Resource Management Plans or the plans are amended to accommodate the access grant, and;

(4) When access routes exist across the adjacent non-Federal lands or the best route as determined by the authorizing officer is across non-Federal lands, the applicant landowner has demonstrated that all legal recourse to obtain reasonable access across adjacent non-Federal lands has been exhausted or has little chance of success.
Draft Environmental Impact Statement - Village at Wolf Creek Access Project

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It seems to me, this whole land swapping is because the Rio Grande National Forest doesn’t want Forest Service Road 391 turned into a high traffic road and the ski area parking lot and all that mess.  That’s as it should be.  But that’s what Mr. McCombs bought into during the original 1986 landswap.  The one where he was promising everyone that he would build a nice exclusive private getaway for very wealthy people.  He was talking a couple hundred cabins or so.  FSR391 and the ski area could probably have been modified to accommodate that without too much pain.

But then, after Mr. McCombs acquired this special piece of land he did a total flip on everyone and wants a village of ten thousand.  Well that didn’t work and now he keeps whittling away, but a village of thousands they still dream of.

Why does the USDA-USFS feel an obligation to Mr. McCombs because he went back on his promise and now wants to build some incredibly over ambitious luxury village?  ANILCA was intended for folks who suddenly found themselves surrounded by Federal Lands.  Why would it apply to a speculator who traded into a special landlocked piece of National Forest Land?  Under false pretense at that!  

Why doesn’t the USDA-USFS-RGNF fight to regain and protect that headwaters watershed to the Rio Grande River Basin?

I hear there are an assortment of offers, possibilities for LMJV to swap that land for something more realistic at lower elevations.  Also, rumor has it there are various land conservancy organizations waiting at the phone for that call from Clint Jones or Red McCombs.  Why doesn’t the USDA-FS pro-actively encourage that sort of a resolution to this impasse?

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Needing a Lawyer...  ASAP
My question would be:

Can it be argued that ANILCA’s previsions regarding road access were passed because of the massive amount of Federal acquisitions in Alaska at the time - so that the many people who suddenly found themselves surrounded by USDA Forest Service and other Federal Lands would have a legal right to gain road access to their land?

Therefore could it be argued that it is inappropriate for a speculator who knowingly swapped/purchased a prime parcel of landlocked US Forest Service real estate within the boundaries of the established Rio Grande US National Forest - to claim that ANILCA gives him a legal standing to demand access for a high traffic road to said parcel?

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Dear Friends of Alberta Park and Wolf Creek, 
we have this one moment to tell the Rio Grande Forest Service and the US Department of Agriculture's powers-that-be what a destructive boondoggle this luxury Village at 10,500± elevation would be.

But, they'll never listen to you, if you don't contact them!
Here's where to do that, but you need to do it now, September:

Commenting on This Project
The Forest Service values public input. Comments received, including respondents’ names and addresses, will become part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered; however, anonymous comments will not provide the agency with the ability to provide you with project updates. The Forest Service wishes to provide you with as many opportunities as possible to learn about our activities.

Official Deadline for comments: 9/30/2012. (or is that Friday the 28th, or Monday the 1st?)

1 comment:

  1. I received the following in reply to a letter I had sent to the legal staff of The Wilderness Society.

    Unfortunately, it would take a lawyer and $$$ to find those precedents and to write out a convincing argument and I have neither of those.
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    “There is certainly precedent for arguing that the desired level of use would not be within the realm of the “reasonable” access that would be provided to a private parcel.”