PO Box MXY - #63B McCarthy
Glennallen, Alaska 99588

May 27, 2006



We appreciate the time that the National Park Service (NPS) has taken to revise the first draft of the User’s Guide to incorporate into the second draft a waiver of fees, suggested use of a Programmatic Environmental Assessment (PEA), and extension of terms.  These are indeed a step in the right direction. However, most of our suggestions (and in fact those of other commenters) were largely ignored. Before his unfortunate passing, Wrangell - St. Elias Park (WRST) Superintendent Jed Davis informed us that the Department of the Interior’s Solicitor’s Office lawyers refused to treat Alaska differently and held firm that the guide must fall within current regulations used nationwide.   Obviously Congress declared otherwise in ANILCA.  Yet the NPS refuses to consider other alternatives to the standard right-of-way permit and that other options clearly exist within the regulations which would be more appropriate for our situation in Alaska. Superintendent Davis was commendably seeking  a better solution.

The regulations are also quite likely wrong and not in accordance with the statutes and guarantees of ANILCA and the U.S. Constitution.

We understand that rulemaking is a long and politically sensitive process. However, to avoid abuse from future unscrupulous managers, like those of the all too recent past,
we feel that a different approach needs to be developed after true consultation with the directly affected landowners.  The accesses have already been granted by ANILCA.  It is documentation that is desired by the NPS.  The permit labyrinth that NPS continually tries to set up is not necessary for that nor for reasonable protection of park resources.  If the attempt persists, it may be necessary for a permanent rulemaking with clear and concise guidelines that will make sure landowners know ahead of time that limits of NPS interference in the use of their accesses has clearly been defined.

 Entirely too many decision processes are arbitrary, left to the discretion of the superintendent without the inclusion of limits or guidelines. In lieu of rulemaking, we would ask you to make use of policy, as in the fee waiver, to boldly create a process that implements the ANILCA compromise and guarantees implementation of its vision for access. Of greatest concern is the lack of permanency represented by policy.
Without a part in the draft-writing process, landowners feel helpless. We are told that the comment process is our form of participation. When our most crucial suggestions are largely ignored, in reality we have no input at all. We fear that the final document will fall far short of carrying out the intent of ANILCA law, yet NPS will demand that we comply. Many affected landowners in other areas of the State have never been contacted by NPS and are unaware of the entire guide process, although they will be expected to abide by it. An appeals committee, as suggested by Governor Murkowski, should be in place to deal with the inevitable controversy such an action would create.

A large number of landowners have rights-of-way which pre-date the park. Upon entry to their parcels, they were told by the Bureau of Land Management (BLM) that as a provision of the Homestead Act, their access was guaranteed. These valid existing rights are now being challenged by NPS if residents are forced to comply with a non-permanent permitting system, coupled with initial and possible future stipulations at the whim of NPS managers.

Landowners  are increasingly telling the Residents of the Wrangells organization that if NPS refuses to give them their access rights under ANILCA 1110(b), they will begin the RS2477 assertion process with the State for documentation and use of their rights-of-way. Others suggest the use of park-designated road status for their routes. Although NPS balks at the idea of public use of these routes, many residents would gladly accept use by the general public as an alternative to the abuse of an arbitrary and subjective NPS permitting process.

Recent events would have us believe that this second round of comments will have little effect on changes to the Draft Two document, which may either stand as is, or may omit some of our most important points.


Residents have been working in good faith with the NPS to find a mutually agreeable solution for documenting existing and future access. However, statements made by NPS State Office Lands Chief Chuck Gilbert at the May 11, 2006 Anchorage Draft Two comment meeting leave us wondering if the agency is honoring the process. We got the distinct impression that:

1.  NPS wants to finalize Draft Two before the comment period has even ended and written comments have been read and considered. Apparently, our suggestions made at the May 3 McCarthy and May 4 Slana meetings have not been considered substantive enough to warrant a third draft.
2. The ANILCA 1110(b) clause :...occupier shall be given by the Secretary such rights as may be necessary to assure adequate and feasible access...” is incorrectly being interpreted to mean that inholders do not yet have access rights until NPS authorizes use of our rights-of-way. This is a clear violation of the intent of ANILCA law.

3. NPS is beginning and trying to finalize the National Environmental Protection Act (NEPA) assessment process on our routes this summer, before the guide is even finalized or the need for NEPA compliance is realized. Clearly, residents, the State, the University and other landowners want the obvious solution, the categorical exclusion option, to remain on the table.

4. NPS will not honor the intent of the March, 2006 Gale Norton memo to authorize the traditional use of asserted RS2477 rights-of-way. Since most of the State’s routes have not been adjudicated, the NPS (Gilbert) says they are not legitimate and do not apply to the memo.  The NPS does not even recognize the authority of its own leader, Secretary Gale Norton.

Late WRST Superintendent Jed Davis brought a new era of NPS cooperation and opened the possibility of trust between the agency and local residents. After speaking with
landowners and understanding our needs, he sought to find an access solution without the obstacles of permits, fees, or environmental assessments, and felt we should have an access document attached to the land in perpetuity. He understood our situation and clearly saw the just solution. Chuck Gilbert’s statements set us back, and raised the old specter of the agency’s past agenda before even receiving comments on Draft Two!


We were disappointed that any mention of RS2477 routes being used as access to inholdings has been removed from Draft Two. This is contrary to the General Management Plan for WRST which states that the park was created subject to valid existing rights, including rights-of-way established under RS2477. Park managers are instructed to validate assertions on a case-by-case basis, something that has not been done in 26 years of park history.

Recent guidance from Secretary of Interior Gale Norton now makes this easier for your land managers as she sets forth a number of ways that the routes can be validated. The new guidelines recognize a number of options for Interior land managers to address claimed rights of way:

1. Where a claimant wishes to do no more than maintain the existing status quo of a road and the current use and maintenance are consistent with the land manager's duty to protect the surrounding and underlying federal lands, the parties may utilize a road maintenance agreement;

2. Where title to the road is already vested in an entity other than the federal government, the parties may utilize a recordable disclaimer, which formalizes that the federal government itself does not dispute the entity's road claim;

3. Where a road has an unclear R.S. 2477 status but the land manager and a claimant agree on the need for the road, the BLM, pursuant to FLPMA Title V, may grant rights of way irrespective of R.S. 2477;

4. Where a claimant wishes to perform construction or expand use beyond the status quo, the land manager may make an informal, non-binding determination (NBD) of whether the R.S. 2477 claim is valid and whether the proposed improvements are reasonable and necessary in light of the traditional uses that established the claimed right of way. A land manager would allow improvement only if the land manager determines that the improvement is consistent with the traditional uses and is consistent with Interior's duty to protect surrounding and underlying lands;

5. Where a claimant seeks a binding determination of a claimed right of way, the claimant may file a quiet title action. A court would then make a determination.

In cases where this validity has already been ascertained by the State of Alaska the routes should be accepted by the NPS with little further process. Other cases, not yet established, should be investigated for validity.


Most comments from Draft One have already been ignored. We have summarized the comments submitted by some of the largest landowners and inholder organizations into a table (Attachment 1) indicating which suggestions were addressed. These comments were prepared by the State of Alaska, University of Alaska, Residents of the Wrangells (ROW), Slana Alaskans Unite (SAU), McCarthy Area Council (MAC), and the Alaska Miners Association (AMA).

The vast majority of these comments were not mentioned in or incorporated into Draft Two. NPS shows a lack of cooperation and an unwillingness to consider inholders’ needs. There is no question that other drafts must continue to be formulated. We ask that NPS attach an appendix to Draft Three which addresses all comments with their rationale for acceptance or rejection. Until inholders are allowed to participate in the draft writing process and NPS has a change of heart, we fear that a mutually acceptable process will never be realized.


After doing a side by side comparison of the changes between the two drafts, we are alarmed at the direction that these modifications are taking. We have included a table (Attachment 2) of those changes that are of concern to our organization. References to ‘adequate and feasible’ have been removed, and further restrictions are included in the second draft. Almost all of these references benefit the NPS, not the inholder. If this process is going to move in the right direction, these attempts to further restrict inholder access and increase the use of NPS discretion in the guide must cease, especially after so many comments to the contrary.


We object to the format of the guide itself. The first few pages describing the permitting process have been pulled straight from the federal regulations and show no insight or understanding of our unique circumstances in Alaska. The question and answer pages do not adequately represent a policy which should be spelled out in a rulemaking-style format. Clear definitions should be included for, among other topics:

1.  Triggers which force the compilation of an Environmental Impact Statement (EIS) rather than an Environmental Assessment (EA),

2. Common circumstances which allow routes to qualify for the PEA,

3. Specifics with respect to NPS-perceived revocation and transference,

4. Minimal common maintenance criteria,
5. Limits to the agency’s use of discretion, and

6. Standards for construction of new routes which allow the use of the PEA.


The fact that NPS has not compiled a list of inholders affected by this document is
deplorable. The agency certainly knows the location of all inholdings within WRST, the largest collection within any Alaskan Conservation System Unit (CSU). Even though land ownership documents need not be recorded in our area, online searches and information from landowners in the immediate areas should certainly identify most owners. An investigation should be undertaken to compile a mailing list of these landowners and all should be notified of each step in the draft process.  At least one of these notifications must be done by certified mail with return receipt requested. Newspaper press releases are an inappropriate and ineffective means of informing anyone of such a critical and important proceeding, especially for remote residents without newspaper delivery. We are still finding landowners who are unaware of the entire access guide process. This is unacceptable for an agency that has a multi-million dollar annual Alaska budget.


NPS is not being honest by changing the definition of a right-of-way permit in the guide. Both federal regulations and the SF299 TUS application form include the “...lease, license, certificate, or other authorization...” options in addition to the NPS admitted “permit”. This omission indicates to residents that the agency does not want us to know that right-of-way permits may take other forms. We ask for a different type of right-of-way authorization.

A right-of-way permit, by federal regulation, is revocable. It must also specify a term and expiration, and must be attached to the landowner. Inholder access rights under ANILCA are guaranteed to occupiers and their successors. Therefore, the classic federal right-of-way permit is inappropriate for our unique circumstances. A simple certificate should instead be provided, attached to the land in perpetuity.  NPS views a permit attaching to the land as a prohibited granting of a land right, when in fact, anything less is a taking of a land right, and therefore access must attach to the land.


Draft Two, Step 4 states, “The application process and related deadlines begin when the application is determined to be complete”.  Meanwhile, there is no limit to the information that it requires prior to the application process from the landowner nor is there a time limit for the NPS to determine what information it must gather or studies it determines to undertake.  A landowner can be in the “pre-application” process for an indeterminately long amount of time.  “Processing time depends on several factors, including the complexity of the access, availability of information, and staff availability.”  Obviously, the process (from pre-application to final permitting) can take a very long time and this is entirely in the control of the NPS which has a bad faith history to live down as described in this account of NPS processing of mining plans in the Kantishna district in Denali NP:

“...the Park Service refused to determine whether plan submittals were complete within the regulatory requirements.  Kantishna miners were uniformly told to come again another day with more paperwork...Kantishna miners perceived that NPS was imposing onerous requirements in the review of mining plans. Moreover, the miners suspected NPS was not dealing in good faith and had a hidden agenda to frustrate their rights. Through litigation discovery years later, their suspicions are well substantiated...two former NPS employees...Larry Brown and Tom Ford, were substantially involved in reviewing mining plans of operation for the Kantishna Hills between 1986 and 1992...Brown believed that supervisory NPS personnel provided guidance that plan reviews should be as complicated and prolonged as much as possible...After Brown and Ford’s departure in 1992, NPS continued its dilatory practices.  From the period of the 1985 injunction until condemnation actions were filed in 1998, not one plan of operation for commercial mining operations was approved for Kantishna. Additionally, NPS refused to process plans for commercial operations on grounds that they were incomplete and required more information.”  From Chapter 7. ANILCA Promises Broken: The Demise of the Kantishna Mining District, by Lawrence V. Albert, Esq. in:  ANILCA - J.P. Tangen, editor, D(2), part 2 : a report to the people of Alaska on the land promises in ANILCA : 20 years later.  2000, Alaska Miners Association, Anchorage, Alaska, p 44-46.

Additionally, the NPS will not issue permits until permits and authorizations from other agencies (for example, State of Alaska, AK Dept. of Natural Resources, U.S. Army Corps of Engineers) are obtained.  How is that in keeping with “Notwithstanding any other provisions of this Act or other law”?  Also it is understood that permits from other federal agencies must be secured prior to commencing access but the NPS has no standing or interest in permits from the state or other agencies. These references should be deleted from any NPS conditions.


Draft Two states that “The NPS will provide you with a right-of-way permit UNLESS you can access your property using methods that do not require a permit” (i.e. motorboat, airplane, snowmachine, non-motorized).  And in Step 4, “An important consideration in the process is whether existing access or another route or method than that requested could assure access for the land use objective.  For example, if an inholding is on the shore of a large lake, and access is available by float or ski-equipped plane . . . if such air access would suffice, there would be no need for a permit for overland access.”  

 Overland motorized access should not be denied any landowner because land is accessible by air or boat.  The landowner, not the NPS, should determine feasibility and sufficiency of non-overland access and mode of transport.  Q&A NEPA #2, states, “Your access is assured under ANILCA, and the regulations require NPS to issue an access permit UNLESS adequate and feasible access already exists without one.”  Nowhere under ANILCA does it say “UNLESS” or imply that motorboat, airplane, snowmachine, or non-motorized methods are adequate and feasible.  Access is not limited to a landowner merely getting to and from his property, but for economic and other purposes as well.

  Q&A NEPA #2 continues, “UNLESS it causes significant adverse resource impacts, would jeopardize public health and safety, and is inconsistent with the park’s management plan.”  The park’s management plan must instead be consistent with providing landowner access!  This manual needs to be expanded and detailed discussion of the agency decision process and guidelines used to determine when an access “is inconsistent with the park’s management plan.”


Categorical Exclusions (CEs) were suggested by Governor Murkowski as well as many other Draft One commenters to eliminate the need for NEPA assessments. This topic was never addressed in Draft Two. The NPS itself uses CEs to modify or revise existing regulations, change or amend plans, and perform routine maintenance and repair on trails. They are also used for  trail relocation or development of compatible trail networks on established routes, and construction of minor structures. Certainly inholders passing through park lands to reach their property over Congressionally mandated access merit the same exemption from the NEPA process.

Section 1110(b) of ANILCA clearly states, “Notwithstanding any other provision of this Act or other law...” Any reference to NEPA is omitted in this section and, coupled with the “Notwithstanding” language, it does not apply.


We feel that the NPS continues to promote an extreme interpretation of the regulations rather than the reasonable approach mandated by ANILCA 1110(b). The NPS  can’t seem to release its tentacles over landowners and wants to insist on continuing its permit labyrinth that allows micro-management of every aspect of access to private lands.  Proposals to require permits with 30-year terms, transfers only with NPS approval, routine maintenance only by permit, no written guarantees that motorized tools and equipment may be used for maintenance, vagueness as to duration and steps of the application process and pre-application process, and limitless stipulations provide an unreasonable procedure.

ANILCA limits the agency’s role only to protection of the CSU resources. Draft Two offers a fanatical approach for authorizing the use of existing routes, many developed and used without NPS interaction since long before the establishment of the CSUs. There has to be a new approach and, at an absolute minimum, there must be a third draft, and probably others to follow, written in a new spirit of cooperation and understanding of inholder’s needs and access rights already granted by ANILCA law.


                                      Go to Attachment 1 - Table of Draft One Suggestions Ignored   

                                      Go to Attachment 2 - Table of Changes Between Draft One and Draft Two