Does law about access to inholdings apply to cases in the Lower 48?
By: Jonathan Romeo, The Durango Herald
Thursday, November 29, 2018
What has been lauded as one of the most important pieces of legislation protecting the environment is now being used to pave the way for a proposed resort atop Wolf Creek Pass in Southwest Colorado.
For more than 30 years, the Leavell-McCombs Joint Venture, spearheaded by Texas billionaire B.J. “Red” McCombs, has tried to build a new ski village adjacent to the remote and relatively small Wolf Creek Ski Area.
But the project has met resistance every step of the way from the public and environmental groups fighting to protect the scenic backcountry of the southern San Juan Mountains.
The proposed Village at Wolf Creek would be located at an elevation of about 10,000 feet, more than 20 miles from the nearest town.
What’s held the development up all these years, in part, is that the property – known as an “inholding” – is surrounded by U.S. Forest Service lands and lacks access to the nearest road, U.S. Highway 160.
For the past three decades, the Village at Wolf Creek, which could accommodate up to 8,000 people, has been wrapped up in lawsuits and the court system.
In July, however, Rio Grande National ForestSupervisor Dan Dallas granted the would-be developer access to Highway 160 through a law known as the Alaska National Interest Lands Conservation Act, commonly referred to as ANILCA.
The law, passed in 1980 to resolve public land issues in Alaska, was seen as one of the greatest conservation achievements in U.S. history, protecting more than 105 million acres in America’s last frontier.
But in subsequent decades, the law has been engulfed in controversy, as conflicts arise over whether regulations laid out in ANILCA apply to the Lower 48.
By all accounts, Southwest Colorado and the fight over the Village at Wolf Creek, will become the next battleground.
Reining in the last frontier
Alaska, which spans 375 millions acres, and its vast natural resources of oil, timber, fish and minerals have long drawn the interest of industry.
After the territory became the 49th state in 1959, a concerted effort was made to draft a comprehensive lands bill that would protect the region’s wild areas while allowing for sustained economic growth.
As part of the agreement to become a state, Alaska was allowed to select about 104 million acres to use as its economic base. In 1971, Congress passed an act that granted Alaska Natives 44 million acres of federal land for their own use.
That same act authorized the U.S. to temporarily designate new conservation areas, allowing the secretary of the Interior Department to select 80 million acres of federal lands to be studied for possible national protection status.
That study was completed in 1973, and Congress had five years to come to an agreement for permanent protections. But by 1978, Congress had failed to act, and the entire agreement was at risk of falling through.
To prevent this, President Jimmy Carter and the secretary of the Interior issued an executive order in 1978 to protect huge portions of Alaska from development, setting aside 105 million acres.
Angry Alaskans, who saw the move as an infringement of their rights, took to the streets to protest, even burning effigies of Carter. Several local elected officials went as far as to declare that the U.S. government and Alaska were at war.
But the move sparked a legislative compromise in 1980, creating ANILCA, which Carter signed into law Dec. 2. As a result, nearly a third of the state – 105 million acres – was protected in national parks, wildlife refuges and wilderness areas.
The amount of land protected is larger than the state of California.
The Trustees of Alaska, a nonprofit public interest environmental law firm formed in 1974, deemed ANILCA the “crown jewel of the national conservation systems.”
The Lower 48
The act’s passage left many Alaskans, who owned private land surrounded by the newly protected public lands, without access to their property.
Foreseeing this conflict, legislators included a clause in the act that ensures landowners a right to access their inholding.
Just a year after the act was passed, a timber company, which lacked road access to an area it wanted to log surrounded by Forest Service land in Montana, argued it was entitled to an entry point to its inholding through ANILCA.
This set off a legal question that bewilders many to this day: Do the protections laid out in ANILCA apply to the Lower 48?
Ultimately, in the case of the timber company, the 9th Circuit Court of Appeals, which covers the western portion of the U.S., ruled that ANILCA does apply outside Alaska.
But many say this interpretation is misguided.
“This really remains an unsettled question,” said Tim Preso, managing attorney for Earthjustice’s Northern Rockies office.
For starters, the 9th Circuit Court first held ANILCA didn’t apply to the Lower 48, only to reverse course after the U.S. government asked the court to reconsider the decision.
In its final decision that ANILCA applies outside Alaska, the 9th Circuit Court relied heavily on letters between lawmakers and remarks made on the Senate floor – all made after the act was passed.
“It was really an unusual sequence of rulings,” Preso said.
In the late 1980s, seven years after the timber company litigation in the 9th Circuit, the U.S. Supreme Court opined that ANILCA is about allocating federal lands in Alaska only, not beyond.
“By ANILCA’s plain language, (the act) applies only to federal lands within the state of Alaska’s boundaries,” the Supreme Court wrote in a case called Amoco Production Co. v. Gambell.
“I think there’s a strong argument it’s a misconstruction (to apply ANILCA outside Alaska) based on the Supreme Court ruling alone,” Preso said.
Most recently, in Sturgeon v. Frost, the 9th Circuit Court contradicted its 1980s ruling that ANILCA applied nationwide. In 2016, the 9th Circuit said application of ANILCA outside Alaska is inconsistent with the act as an Alaska-specific statute. In that case, an Alaska resident is challenging the National Park Service over whether he can use a hovercraft to cross a national preserve to reach his personal hunting grounds.
When the Supreme Court also picked up Sturgeon v. Frost, it reinforced the notion that ANILCA applies to the unique circumstances in Alaska.
But because of how U.S. law works, the 10th Circuit Court of Appeals – which includes Colorado – has not explicitly analyzed and ruled on whether ANILCA’s reach extends to the Lower 48.
Preso said that, for years, the Forest Service and other agencies have relied on the 9th Circuit’s 1980s ruling that ANILCA applies nationwide. But these subsequent decisions make it likely this is no longer the precedent in the 9th Circuit, let alone in other circuits that have not directly ruled on ANILCA’s reach.
“Anybody who’s contesting ANILCA access in the Lower 48 has a good reason to find out if it’s legally viable,” Preso said.
That’s exactly where the Village at Wolf Creek may come into play. Colorado is located within the 10th Circuit Court, which has never specifically ruled on the ANILCA access question and is not bound by the 9th Circuit.
It takes a village
In 1986, McCombs and the Leavell-McCombs Joint Venture first sought to trade 1,631 acres of degraded land for 420 acres of Forest Service land near the base of Wolf Creek Ski Area for the proposed ski village.
Maribeth Gustafson, a deputy forester for the Forest Service, wrote to a colleague in 2014 that, “The Forest Service initially turned down the proposal but reversed course several weeks later, without any explanation, and approved the land exchange.”
“It is commonly understood that Mr. McCombs brought political pressure to bear to realize his dream to develop the ski area,” Gustafson wrote in the email, which was obtained in a Freedom of Information Act request.
The Village at Wolf Creek’s scope and size has changed over the years, but the one remaining constant is that the proposed resort has never had road access.
In November 2014, the Rio Grande’s Dallas issued a draft “Record of Decision” that examined three options to provide access to the inholding: a land swap, access through the ANILCA clause or a “no-option alternative.”
The no-option alternative would provide no additional road access, other than a Forest Service road that is only open over the summer months, effectively limiting the development.
The preferred option to provide access, according to Dallas, was a land swap that would transfer 177 acres of private land to the Forest Service, in exchange for 205 acres of Forest Service land for the Village at Wolf Creek’s main access road.
Aside from the no-option alternative, the land swap was seen as a better choice than the ANILCA clause in terms of having the least environmental impact, saving valuable wetlands and protecting future skiable terrain.
But a federal judge in May 2017 found rampant faults, inconsistencies and errors in the dealings between the Forest Service and Leavell-McCombs Joint Venture, calling the Forest Service’s actions an “artful dodge of its responsibility.”
As a result of these faults, the judge invalidated the land exchange. Leavell-McCombs Joint Venture has since filed appeals to reverse the decision, and the process is ongoing in the courts.
Headed to the 10th?
In speaking to The Durango Herald this week, Dallas said he was mandated by law to issue his decision this July to enact ANILCA to grant the developer access after the land exchange was denied.
“What I fell back to is the baseline legal requirement,” he said, “which is we have to abide by ANILCA and provide access.”
Dallas said the Forest Service is confident its interpretation that ANILCA applies to lands outside Alaska is correct. Bill Leone, an attorney representing Leavell-McCombs Joint Venture, agreed.
“That question has been answered clearly,” said Leone, who referenced a 10th Circuit Court case called U.S. v. Jenks, in which a rancher was trying to obtain access to his property across federal lands.
But Travis Stills, an attorney representing a coalition of environmental groups called the Friends of Wolf Creek, which has opposed the project for nearly three decades, said U.S. v. Jenks never properly challenged the reach of ANILCA.
“The 10th Circuit has not made any careful, reasoned analysis on the statute itself,” Stills said.
If the ANILCA clause ends up being the route for the Village at Wolf Creek to acquire its road, it’s more likely than not the coalition of environmental groups will push the matter up the chain of courts, letting the 10th Circuit decide.
“The Forest Service has put ANILCA front and center, and I’m sure there will be a lot of people watching this case to see how it might play out,” Stills said.
Dallas said a final determination on the Record of Decision will be released in mid-December.
If not ANILCA, then what?
There is a federal law that intended to resolve access issues in the Lower 48: the Federal Land Policy Management Act, or FLPMA.
Stills said the Forest Service has intentionally avoided it because it would force the agency to realize it has some control over what the overall impacts of the Village at Wolf Creek would be.
Under ANILCA, the Forest Service has claimed it has the authority only to look at what the impacts of the access road would be. The agency says the overall impact of the project would have to be evaluated locally.
“The scale isn’t in our jurisdiction,” Dallas said. “Scale would be in Mineral County’s jurisdiction.”
But Stills said this interpretation is another attempt by the Forest Service to green-light the Village at Wolf Creek, which for years, environmental groups say has been influenced by McCombs and his political clout.
“FLPMA would put the Forest Service’s decision-making under very clear, unassailable federal control,” Stills said. “But the Forest Service wants to wash its hands over this private development, and FLPMA would pretty much kill their ‘artful dodge.’”
Read the full article with timelines and links to sources from The Durango Herald.