A message for concerned citizens:
“... Regardless of any legal action, the Wolf Creek Village plan will require many more years of planning, with the developer needing a permit from the Colorado Department of Transportation to access U.S. 160 and permits from Mineral County.
“There are a lot of opportunities for public participation on upcoming decisions that will probably stretch out for quite a long time,” Mark Pearson (with the San Juan Citizens Alliance) said. “There are enormous physical and structural limitations for a village up there. Is there enough water to support the city they are proposing to build? How are they going to get power up there? All this will require some significant planning and public scrutiny.” ( reported by Jason Blevins )
This post is a collection of information regarding ANILCA (the Alaska National Interest Lands Conservation Act,), and it will be updated as new information becomes available.
It’s important because a controversial section of that Act has become LMJV’s trump card in forcing the USDA-USFS into supporting their development wishes, rather than pursuing a strategy of ecological caution and getting Alberta Park returned to the RGNF.
As for ANILCA §3210(a), basically when vast tracks of Alaska lands became part of the Federal Land Policy and Management Act of 1976, this provision was added to the follow up ANILCA Act of 1980. The intention was to guarantee private land owners (that now found themselves landlocked within the newly established federally owned lands) road access.
Whereas at Alberta Park, RGNF, is a situation where the parcel of land was torn away from the Rio Grande National Forest by some heavy handed '80 style Washington DC political wheeling and dealing, that had USDA rejecting their own Rocky Mtn. Region USDA-USFS experts' considered facts and reversing their decision to reject Red McComb original devious land swap offer.
The Alberta Park parcel, in the middle of Wolf Creek watershed should never have been removed from the Rio Grande National Forest to begin with. It was and is a mistake that I believe deserves being reversed in light of contemporary Rio Grande River Basin water issues, and ecological common sense.
ANILCA §3210. Access by owner to nonfederally owned land
(a) Reasonable use and enjoyment of land within boundaries of National Forest System
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 non-federally 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.
(b) Reasonable use and enjoyment of land surrounded by public lands managed by Secretary
Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of the Interior may prescribe, the Secretary shall provide such access to non-federally owned land surrounded by public lands managed by the Secretary under the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701–82) 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 access across public lands.
(Pub. L. 96–487, title XIII, §1323, Dec. 2, 1980, 94 Stat. 2488.)
In Colorado’s White River National Forest, there’s a similar situation that Jason Blevins reported on last year:
An Alaska law. A Colorado road. A lawsuit argues those two do not belong together.
Jason Blevins - March 17, 2023, Colorado Sun, Denver
The lawsuit filed this week in D.C.’s U.S. District Court by Wilderness Workshop and Rocky Mountain Wild refreshes the argument that federal land managers should not be applying a 1980 federal law that addressed access issues in Alaska to other states. That legislation — the Alaska National Interest Lands Conservation Act, or ANILCA, which everyone calls Uh-Nil-Cuh — 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.
The act requires federal land managers to provide “adequate access” for a landowner’s “reasonable use and enjoyment” of their property. The battle over “adequate” and “reasonable” has stretched more than 40 years. Many argue that the legislation should not be applied outside of Alaska. That’s the focus of the lawsuit filed this week. …”
“The lawsuit filed this week — four days after Fitzwilliams issued his decision — aims to test the application of ANILCA outside Alaska. …
“That legislation gives the Forest Service discretion — important word there, discretion — to grant rights of way over forest land. So the question is whether the 1980 ANILCA eclipsed or repealed the discretionary authority granted to Forest Service bosses under FLPMA. …
“I would think that a court taking a serious look at this would conclude that ANILCA belongs in Alaska and would question why we are letting it cause so much trouble down here when FLPMA already does the job,” said Travis Stills, a conservation law attorney representing Wilderness Workshop and Rocky Mountain Wild in the lawsuit. …
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Blevins also reported on the Wolf Creek Village story:
A rare win after nearly 40 years for Texas investors planning Wolf Creek Village
Jason Blevins - May 7, 2024 - Colorado Sun
… After almost a quarter century of lawsuits challenging the late Red McCombs’ proposal for a 1,700-unit village on 300 remote acres next to Wolf Creek ski area — and three court decisions siding with environmental groups battling the plan — the 10th Circuit U.S. Court of Appeals in Denver last week threw out previous rulings and affirmed the Forest Service’s 2019 approval of an access road connecting U.S. 160 with the island of private land.
“We are obviously pleased and feel like this was the right decision,” said Clint Jones, who has worked for the McCombs family on the Wolf Creek Village project since 2008.
Lawsuits have stalked the Wolf Creek Village plan since its inception as McCombs reworked his project, abandoning a plan for a second land swap and focusing on an access road to the inholding of private acreage surrounded by the Rio Grande National Forest. McCombs, who died in 2023, had argued that the 1980 Alaska National Interest Lands Conservation Act — known as ANILCA — required the Forest Service to provide “adequate access” to islands of private land surrounded by public forest.
Environmental groups across the West have spent decades arguing that the clause in the act that requires the Forest Service to allow “adequate access” so private landowners can have “reasonable use and enjoyment” of inholdings does not apply outside of Alaska. …
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Colorado Wild, Inc. v. United States Forest Service ("October 2007 Order")
In Summary
In Colorado Wild, Inc. v. United States Forest Service ("October 2007 Order"), Judge Kane noted that the ANILCA provides that USFS "must determine what constitutes reasonable use and enjoyment of the lands, what access is adequate to allow for those reasonable uses and what, if any, terms and conditions should be placed on that access to meet other statutory and regulatory obligations and goals."
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Highlights
https://caselaw.findlaw.com/court/us-10th-circuit/116071682.html
ROCKY MOUNTAIN WILD v. Tamara Whittington, in her official capacity as Deputy Regional Forester, et al., Respondents. (2024)
United States Court of Appeals, Tenth Circuit.
No. 22-1438, No. 22-1439
Decided: April 19, 2024
Before McHUGH, EID, and ROSSMAN, Circuit Judges.
I. BACKGROUND
A. Factual History
In 1986, LMJV's predecessor and USFS prepared to enter a land exchange, in which LMJV would trade 1,631 acres of land for 420 acres of USFS land in the Rio Grande National Forest adjacent to Wolf Creek Ski Area. Rocky Mountain Wild v. Dallas, No. 15-cv-01342-RPM, 2017 WL 6350384, at *1–*2 (D. Colo. May 19, 2017). The 420 acres USFS offered in the exchange would overlay Highway 160 and facilitate LMJV's development of a ski village adjacent to the Wolf Creek Ski Area. Id. at *1–*3. USFS reduced the conveyance to 300 acres after finalization of the relevant appraisals, and the parcel became an inholding which could access Highway 160 only by a USFS-managed road closed to “motorized traffic” during the winter. Id. The final exchange occurred in 1987. Id. at *1.
The USFS also imposed the Scenic Easement on the plot conveyed to LMJV, limiting development on the property to residential, commercial, and recreational uses “typical to an all-season resort village.” Agencies App. Vol. I at 236.
B. Land Exchange Litigation
C. Right-of-Way Alternative
D. Right-of-Way Litigation
II. DISCUSSION
We start by assessing whether we have jurisdiction over this appeal and whether the Conservation Groups have standing to pursue it. Deciding these questions in the affirmative, we then assess the district court's application of the law of the case doctrine. We conclude the district court erroneously applied that doctrine. Finally, we assess the Conservation Groups' APA challenge to the 2019 ROD and 2018 BiOp under ANILCA, NEPA, and the ESA, ultimately affirming the USFS's grant of the right-of-way and the Agencies' extension of the § 7 ITS to cover the LMJV Parcel.
- Jurisdiction
- Administrative Remand Rule
2. Practical Finality Rule
3. Standing
B. Law of the Case Doctrine
Accordingly, the district court erred in its application of the law of the case doctrine to this matter.
C. APA Standard of Review
D. ANILCA
In our merits review of this matter, we first address the Conservation Groups' challenge to the USFS's understanding of ANILCA, 16 U.S.C. § 3210(a), as requiring it to grant access to the LMJV Parcel. The Conservation Groups argue that the plain language of the statutory framework does not extend ANILCA § 3210(a)'s coverage to land outside of Alaska.7 Although the Conservation Groups raise cogent arguments and the parties extensively discuss this issue in their briefing before this court, our precedent reads § 3210(a) as extending to National Forest inholdings outside of Alaska. Therefore, we are bound to mandate that the USFS grant LMJV access to the Parcel. …
Section 3210(a) of ANILCA states in relevant part:
Reasonable use and enjoyment of land within boundaries of National Forest System
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[.] ․
E. NEPA
We next address the Conservation Groups' challenge to the 2019 ROD under NEPA. They claim that the 2019 ROD improperly fails to classify LMJV's development proposal as part of a federal action, while also alternatively arguing that the 2019 ROD erred by not considering the development proposal as a direct effect of the federal action. They also assert that the USFS improperly declined to work with cooperating agencies in preparing the underlying EIS. Upon review of these arguments and of the agency record, we conclude there are no violations of NEPA warranting vacatur.9
1. NEPA Overview
2. Direct and Indirect Effects
3. Cooperating Agencies
The Conservation Groups also challenge the USFS's decision not to proceed with any cooperating agencies in developing the EIS. Under our precedent, this challenge is unreviewable.
4. Major Federal Action
Finally, the Conservation Groups argue that the EIS arbitrarily and capriciously failed to categorize LMJV's development as part of a major federal action, despite the district court's prior questioning of the USFS on this issue and despite the alleged power the USFS retained when it exchanged land with LMJV's predecessor in 1987.13 But the Conservation Groups fail to show how this alleged mischaracterization of the development in the EIS impacted the 2019 ROD. And in any event, the USFS properly categorized LMJV's proposed development as a nonfederal action that does not rise to the level of a major federal action.
F. ESA
Finally, we address the Conservation Groups' challenge to the 2018 BiOp and accompanying ITS under the ESA. “[I]n examining whether the [FWS's] actions violate the ESA, we rely on the standards of review provided in the APA.” Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249, 1252 (10th Cir. 1998). We conclude the Agencies did not violate the ESA by extending a permit for the incidental take to the LMJV Parcel under § 7, nor was any conclusion of the 2018 BiOp or corresponding ITS arbitrary and capricious.
1. ESA Overview
2. Propriety of § 7 Analysis
The Conservation Groups challenge the Agencies' decision to include LMJV's proposed development within the scope of its § 7 review for the right-of-way. Under the plain language of the ESA and relevant authorities, we conclude the Agencies committed no legal error by extending the ITS in the 2018 BiOp to cover LMJV's proposed development.
3. Other Conclusions of the 2018 BiOp and ITS
III. CONCLUSION
We VACATE the district court's order and AFFIRM the 2018 BiOp and 2019 ROD.
Original source, caselaw.findlaw.com
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The following strays far from Colorado, taking us back to the origins of the ANILCA. I believe this historical background is important, since it has created the world we are confronted with today.
Aaron Siegle does an excellent job of animating the past. He helped this high school grad of ’73 reanimate my memories of these important events, along with the public debate and other driving forces of the day.
Which is why I find it worth sharing.
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Thunder in the Tundra: The Enduring Legacy of the Alaska National Interest Lands Conservation Act
By Aaron Siegle
“… The battle for ANILCA (Alaska National Interest Lands Conservation Act) was on the surface a continuation of the age-old tension between developers who saw the land solely as a resource to exploit versus environmentalists tapping Americans' growing consciousness of the fragility of the country’s rapidly shrinking wilderness.
Yet, ANILCA was more than this. Many environmentalists saw Alaska as “the last chance to do it right,”2 a chance for redemption for the many mistakes made in the development of the continental United States—with irreversible costs paid by Native Americans and the environment.
Despite these tensions, the competing stakeholders were eventually able to hash out a compromise leading to the passage of ANILCA in 1980. The legislation doubled the size of the National Parks system and established a sustainable revenue flow for Alaskan residents, while respecting the interests of Native Americans.
ANILCA, thus, represents a triumph of the American environmental movement and democracy, providing a template for future environmental and land policy. …”
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WIKI: Alaska National Interest Lands Conservation Act
The Alaska National Interest Lands Conservation Act (ANILCA) is a United States federal law signed by President Jimmy Carter on December 2, 1980.[1] ANILCA provided varying degrees of special protection to over 157,000,000 acres (64,000,000 ha) of land, including national parks, national wildlife refuges, national monuments, wild and scenic rivers, recreational areas, national forests, and conservation areas. It was, and remains to date, the single largest expansion of protected lands in history and more than doubled the size of the National Park System.
The Act provided for 43,585,000 acres (17,638,000 ha) of new national parklands in Alaska; the addition of 9,800,000 acres (4,000,000 ha) to the National Wildlife Refuge System; twenty-five wild and scenic rivers, with twelve more to be studied for that designation; establishment of Misty Fjords and Admiralty Island National Monuments in Southeast Alaska; establishment of Steese National Conservation Area and White Mountains National Recreation Area to be managed by the Bureau of Land Management; the addition of 9,100,000 acres (3,700,000 ha) to the Wilderness Preservation System, and the addition of 3,350,000 acres (1,360,000 ha) to Tongass and Chugach National Forests.[2] …
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The Federal Land Policy and Management Act of 1976
The Federal Land Policy and Management Act of 1976, as amended,
is the Bureau of Land Management’s “organic act” that establishes the agency’s multiple-use and sustained yield mandate to serve present and future generations. …
FLPMA defines our mission as one of multiple use and sustained yield. This means thoughtful development in the right places to drive economic opportunities for local communities. It also means protecting natural, cultural, and historical resources that are simply too special to develop. And above all, it means working with a changing nation to make decisions that are balanced and forward looking. …
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Also see,
The BLM is an agency within the U.S. Department of the Interior with an annual budget of about $1.1 billion and 9,600 employees. President Harry S. Truman created the BLM in 1946 by combining two existing agencies: the General Land Office and the Grazing Service. The mission of the BLM is “to sustain the health, diversity, and productivity of the public lands for the use and enjoyment of present and future generations.” The BLM’s holdings were described originally as “the land nobody wanted” because homesteaders had passed them by. Today, the BLM manages public lands under the provisions of its organic act, the Federal Land Policy and Management Act of 1976 and other related laws. For more information about the history of the BLM, see the BLM’s history website page, Opportunity and Challenge: The Story of BLM, and Our Heritage, Our Future: the BLM and America’s Public Lands.
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Trustees for Alaska Celebrating 35 Years of ANILCA
02 DEC, 2015
The Alaska National Interest Lands Conservation Act (ANILCA) is considered by some to be the most important conservation legislation ever passed. President Jimmy Carter signed ANILCA into law thirty-five years ago today, on December 2, 1980, after decades of legislative and advocacy efforts. The goals were primarily twofold: to protect and safeguard Alaska’s exceptional ecological and natural resources for the national public interest and to protect them for subsistence use by Alaska Natives.
History of ANILCA’s Passage
ANILCA Supports Strong Economies
Looking Toward the Next 35 Years
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