Road Warrior Sacked by the National Park Service

Some quick history - 28 years ago, President Jimmy Carter using the authority granted him through the Antiquities Act, protected 56M acres of Alaska as National Monuments. Two years later, Congress refined these federal protections under the Alaska National Interest Lands Conservation Act, or ANILCA for short. Among other things, Carter's original designation doubled the size in acreage of the National Park Service overnight. The act didn't "just happen", it was instead, the last note in a twenty year process between federal, state, private, and native land wrangling. There is an excellent brief story of ANILCA's creation in a newer book called "The Antiquities Act" in a chapter called "President Carter's Coup". When presented with the option of protecting 56 million acres with the stroke of a pen, Carter asked "can I do that?". Secretary of Interior Andrus responded, "yes sir, you can, you have the authority". To which Carter replied, "let's do it."

Wrangell-St. Elias Entrance Sign : NPS PhotoFast forward to the new millennium. Some folks up in Alaska bought 410 acres of land which happens to be entirely surrounded by Wrangell-St. Elias National Park and Preserve. The best way to access the property had been along a single track trail, on horseback. In early 2003, the house on that property burned down, and the landowners wanted to rebuild. They asked the park service if they could bring in an 11 foot wide, 21,000 pound bulldozer hauling a 5000 pound trailer with supplies on their little trail. To do this would have required greatly expanding the road (trail) with heavy equipment including a road grader. Damage to the environment could not be avoided; the process would have involved crossing a creek with a sensitive fish population of Dolly Varden 230 times.

To make a long story short ---

NPS: You can't do that, you'll destroy the environment.

Land Owner: I can too do that, the ANILCA assures me rights necessary for adequate and feasible access to my land.

NPS: Yeah but, you'll destroy a park in the process, you can't do that.

Land Owner: Can too.

NPS: Why don't you wait until winter when everything is frozen over. Then you won't hurt the environment. That's what everyone else does anyway.

Land Owner: Stop telling me what to do. LET ME BUILD MY ROAD.

NPS: Whatever. It doesn't matter what right-of-way access you think you have, if you really want to build that road, you'll have to apply for a permit. [sigh] Once we get the permit, we'll have to do an extensive review under the National Environmental Policy Act (NEPA). That means an Environmental Assessment is coming. Can you guess what it's going to say?

Land Owner: You guys really have it in for me. I have rights too, ya know? I think my rights trump your rights. I'm gonna sue.

NPS: Have it your way. Call me in 4 years when the courts come to a decision.

through time and space, we travel now to the 9th Circuit Court of Appeals, in the year 2007

Judge: Hear ye, hear ye. We decisively reject the argument that the NPS lacks the power to regulate travel to an inholding across federally protected land. The Secretary of Interior's power to "conserve the scenery and the nature and historic objects and wildlife therin ... " applies with equal force to regulating an established right-of-way within the parks. The ANILCA does provide access rights, but these are subject to reasonable regulations issued by the DOI to protect the natural value of the land. The NPS appears to have done everything it could to accommodate the Land Owner, but the Land Owner has refused to cooperate in the process.

trumpets sound as verdict is read from the courthouse steps

Announce: In the matter of whether the ANILCA favors the rights of land owners over the rights of Federal land managers, we decide in favor of the land managers.

The NPS wins, the NPS wins! For the complete unedited/uninterpreted/unfun version, here is the Feb 5th decision from the 9th Circuit Court: "Hale v Norton" [pdf]

note: The idea for this story comes directly from the tip line. Thanks for the head's up Z.
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Comments

Your quick history is just a bit too quick. Carter did not use his authority under the Antiquities Act to sign in to law the Alaska National Interest Lands Conservation Act (ANILCA). 28 years ago (not 26), on Dec 1, 1978, Carter did use his Antiquities Act authority to establish 17 national monuments covering just under 56,000,000 acres in Alaska. Then two years later, Congress used its authority to pass ANILCA, which Carter then signed into law (on Dec 2, 1980). The Congressional action effectively rescinded or undid Carter's proclamations and replaced them with the national parks, monuments and preserves (and other federal lands) that exist today. Carter's monuments no longer exist, but that does not mean we should discount the importance of his actions in using the Antiquities Act to preserve the Alaska lands and force the Congress into taking the action that it had thus far failed to do.
Bob,
Thanks very much for the clarification. I've re-written the first paragraph to more accurately reflect history, and not my memory. And I agree, that the history of the ANILCA is far too interesting and complex to be summed up very well in a single short paragraph. It sounds as if you are already familiar with the story, but for others who are not, I would recommend the chapter in the book "The Antiquities Act". One of that chapter's co-authors is Cecil Andrus, who was Sec. of Interior at the time. As you suggest, without Carter's decisive action in '78, the opportunity for federal protection of those lands may have been lost altogether. Thanks a lot for your comments Bob.
Hi....I co-wrote that piece on Alaska and the Antiquities Act with Cecil Andrus. He also writes about it in his book. Thanks very much for the reference!

John Freemuth