This story first appeared in The Outsider, the premium outdoor newsletter by Jason Blevins.
In it, he covers the industry from the inside out, plus the fun side of being outdoors in our beautiful state.
Environmental groups 10 years into fighting a plan to build a luxury home community above Edwards have sued the Forest Service to overturn the agency’s approval of a road across public land to access the island of private property.
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.
White River National Forest boss Scott Fitzwilliams last week issued his final approval of the paved road across forest land to reach a 680-acre parcel where a pair of Florida developers want to build 19 luxury homes. The proposal does not require intensive local review because each home is on 35 acres. Fitzwilliams said the 2.4-mile road would damage wildlife habitat but said he had to provide adequate access under ANILCA.
Opponents of the Berlaimont Estates project argue the seasonal dirt road winding up to the property is adequate and maybe a community of mansions is not a reasonable use. The lawsuit filed this week — four days after Fitzwilliams issued his decision — aims to test the application of ANILCA outside Alaska.
In 1980, when Congress federally protected 104 million acres of land in Alaska as “conservation system units,” ANILCA left about 800,000 acres of private property surrounded by public forest. Those islands are called inholdings. So a part of that legislation gave those inholding owners some strong access rights. The legislation “provides sufficient protection” of public lands in Alaska while “at the same time provides adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people,” reads ANILCA.
The lawsuit calls the Forest Service’s application of ANILCA for access to Berlaimont Estates “an artful dodge,” arguing that a nationwide application of the legislation swerves around other federal public lands laws. The lawsuit contends the agency’s decision skirts the 1976 Federal Land Policy and Management Act, or FLPMA. Everyone calls that one Flip-Muh.
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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. ANILCA did not mention amending or repealing FLPMA. Fitzwilliams cited ANILCA, saying he was required to provide access, when he dismissed a possible alternative that would have left the developers using the dirt track to the parcel they bought in 2008 for $9.5 million.
If he used FLPMA, he would have broader authority to deny the paved road, the lawsuit argues.
“Granting expanded access pursuant to ANILCA’s inapplicable provisions provides a windfall to the developer, at the expense of the National Forest System,” reads the 77-page lawsuit that deploys the ANILCA acronym 139 times. “The application of ANILCA in the Lower 48 is a question of nationwide importance and impact.”
The lawsuit, which names five Forest Service officials as well as the agency and Department of Agriculture, argues that had Fitzwilliams expanded his application of legislation to include FLPMA with “a full review of impacts and federal power to deny or condition approvals” his decision would “likely … result in denial of the Berlaimont proposal.”
Environmental groups have called for years for a federal court to do a deep analysis of the “does ANILCA apply outside Alaska?” question. ANILCA was barely a year old when the U.S. 9th Circuit Court of Appeals, considering a case involving a Montana logging company seeking a road across wilderness, ruled that the legislation applied in all states. Since then, most other challenges to ANILCA have fallen back to that case.
“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.