A federal judge has ruled that a law created for Alaska definitely does apply in Colorado, marking a win for the developers of a planned luxury community above Edwards who want to build a paved road accessing a 680-acre mountaintop parcel where they plan 19 homes.
The developers — Petr Lukes and Jana Sobatova — acquired the private land surrounded by White River National Forest in 2008, and they have spent more than 15 years seeking Forest Service approval for a road crossing public land to access their inholding, where they plan to develop their Berlaimont Estates community.
The developers argued before Judge Jia M. Cobb of the U.S. District Court for the District of Columbia that the 1980 Alaska National Interest and Lands Conservation Act — or ANILCA — required Forest Service officials to provide “adequate access” for “reasonable use” of private property surrounded by public land.
“Judge Cobb correctly ruled that the Forest Service must provide Berlaimont with adequate access to its planned ultra-low density residential development proposed on 680 acres of private land within the I-70 corridor near the Vail and Beaver Creek ski areas,” the developers said Wednesday in a prepared statement. “After more than 15 years of thorough environmental analysis by the USFS, Berlaimont remains committed to carrying out a family vision of just 19 homes, with significant environmental and wildlife enhancements, and accessed by a safe road for both residents and emergency service providers.”
The 1980 Alaska National Interest Land Conservation Act protected 104 million acres in Alaska but isolated about 800,000 acres of private land surrounded by newly protected federal land. Those islands of private property in a sea of public acreage — called inholdings — were protected with a clause in ANILCA that required land managers to provide access that is “adequate to secure to the owner the reasonable use and enjoyment” of their property.
That clause has been tested more than 20 times in U.S. courts south of Alaska since 1981 as developers erect homes on inholdings and demand that the Forest Service allow them to build roads to access those homes. Environmental groups have long argued that “adequate” access does not always mean a paved, year-round road. And that “reasonable use and enjoyment” should not always mean 365-day access to alpine cabins in winter landscapes. The basis of their questions around the words “adequate” and “reasonable” revolve around the argument that ANILCA was only for Alaska, not the rest of the country.
Wilderness Workshop and Rocky Mountain Wild in 2023 sued the Forest Service, seeking to overturn the White River National Forest’s March 2023 approval of a 2.4-mile paved road up to the parcel from the valley floor.
No lawsuit has ever persuaded a court to support the argument that ANILCA does not apply outside Alaska.
“The word ‘National’ suggests the provision applies, well, nationally,” Cobb wrote in her ruling.
More claims pending
The two environmental groups issued a statement on Wednesday saying there are more claims in their lawsuit that are pending, including the argument that the Forest Service did not follow federal law when approving the road.
“The suit implicates several other legal violations as well, including violations of the National Environmental Policy Act and the Federal Land Policy and Management Act, that weren’t addressed by the court. These numerous remaining questions will be briefed in the coming months,” reads the statement from the two groups.
The groups also noted that the developer still must secure permits from the Forest Service and Eagle County, which may present opportunities for more public input. The proposal has garnered more than 1,000 public comments from opponents, who include a long list of local, regional, state and federal elected officials.
“Public opposition to the proposal has never been higher,” reads the statement. “People don’t like the idea of paving sensitive wildlife habitat on National Forest lands to facilitate a billionaire’s speculative real estate development.”
Colorado U.S. Sen. Michael Bennet in January proposed legislation that would have prevented the Forest Service from directing any federal funding toward the Berlaimont project, arguing the agency’s budget was too strapped to support “pet projects of the very wealthy.” Bennet’s proposed amendment did not make it into the Senate appropriations bill passed by Congress in January.
“Yesterday’s partial ruling does not change the fact that critical health and safety projects on the White River National Forest should be a higher priority than the development of 19 luxury homes,” Bennet said in a prepared statement. “I remain committed to ensuring that federal staff time — which is already severely limited due to Trump’s staff cuts — is used on projects squarely in the public good, rather than for the ultra-wealthy.”
The developers, as with most environmental review processes, reimbursed the Forest Service for the analysis of the road plan. The developers have said they will reimburse the agency for all costs involved in the permitting of the road.
The Alaska argument
In their lawsuit, the conservation groups argued the intent and purpose of ANILCA was to address specific management issues “unique to Alaska” and “it would be absurd to conclude that Congress explicitly enacted a sweeping national policy in a statute otherwise devoted to Alaskan federal lands.”
Cobb, however, noted that Congress often addresses national issues in legislation focused on a smaller region.
“There is nothing improper or even all that surprising, then, about Congress tucking a provision with national applicability into a law principally concerned with Alaska,” she wrote in her ruling.
Environmental groups also pursued another angle. That one concerned the 1976 Federal Land Policy Management Act. That legislation gives the Forest Service broader discretion in granting access over federal land.
Lawsuits that question ANILCA’s application in the Lower 48 often point to FLPMA, saying federal land managers already have rules governing access and ANILCA did not eclipse or repeal those rules. If the White River National Forest supervisor, now-retired Scott Fitzwilliams, had used FLPMA, not ANILCA, when considering the Berlaimont road, the environmental groups argued in their lawsuit that he could have more easily denied the paved access.
Cobb noted that ANILCA was for owners of inholdings and FLPMA more generally addressed rights of way for anyone hoping to build things like pipelines, tunnels or canals across federal land.
Applying ANILCA “outside of Alaska does not repeal the right-of-way provision in the FLPMA,” Cobb wrote. “The statutes simply do different things.”