FOR YOUR CONSIDERATION

While we support the concept of the Users’ Guide, we strongly object to language in the Draft Users’ Guide, issued on February 11, 2005, that would improperly impose National Environmental Policy Act (“NEPA”) requirements on access determinations made under §1110(b) of ANILCA.

Although Congress makes clear that §1110(h) determinations are not subject to NEPA review, “Step 4” of the Draft Users’ Guide erroneously requires NEPA compliance for access determinations under §1110(b).

We are committed to working with NPS to develop a comprehensive Users’ Guide to Accessing Inholdings in a National Park Service Area in Alaska; however, the Guide must be consistent with ANILCA and not impede §1110(b) access determinations, Accordingly, we cannot support the Draft Users’ Guide as it constitutes an illegal extension of the Secretary’s authority. —Alaska State Legislature

Valid Existing Rights “1109 Nothing in this title shall be construed to adversely affect any valid existing right of access.”

We, as a community body, and in a single voice, state that a permit process and fee structure for access to private property DOES adversely affect our “valid existing rights of access.” The documentation process that we wish to assist with should reaffirm our right of access in perpetuity. Our valid existing right of access should not be subject to review by future park administrations, either per arbitrary schedule or at time of property transfer. —McCarthy Area Council

The draft document is based upon the flawed notion that Alaskan inholders must secure the right to access their properties. Section 1110(b) of ANILCA states “...the State or private owner or occupier shall be given by the Secretary such rights as may be necessary to assure adequate and feasible access for economic and other purposes.” Obtaining a permit forces residents to exchange their Congressional-mandated right to access for a privilege granted by the National Park Service (NPS) which may be revoked or subject to frequent renewals and crippling stipulations. We already have the right to access our properties; at question is how the NPS will recognize and document that right. —Residents of the Wrangells

The requirement in the 43 CFR Part 36 regulations for inholders to complete the Standard Form 299 is not appropriate. SF 229 was designed for the “transportation and utility” sections of Title XI. The Guide should address the discretion of the park managers to modify this form to require only the information originally envisioned in the 36 CFR Part 13 regulations that fit the circumstances and minimum information for new access applications to fulfill the needs of inholders. The managers should not require information unrelated to determining “adequate and feasible” access. The Guide should include a specific modified form for this use. –Alaska Miners Association

The process underlying the User’s Guide is flawed because NPS failed to include any stakeholders in its creation or preparation, and because it amounts to a rule-making without use of rule-making processes. Further, the User’s Guide provides for a burdensome and unpredictable process that denies “adequate and feasible” access by inholders of their lands. The fees set forth in the User’s Guide far exceed the costs of accessing inholdings but instead reflect NPS’s attempt to burden inholders with paying for the costs of protecting unit resources. Those costs should be paid by the NPS. —Doyon Limited

NPS agency regulations should be changed to provide an exception for Alaskan inholders and comply with ANILCA law. Monitoring fees should not be paid by residents since NPS budgets should contain funding for normal NPS oversight of parklands. ANILCA law gives the right to access “for economic and other purposes”; neither private nor commercial landowners should have to pay annual rental fees for their access. —Residents of the Wrangells

Rather than limit access, Congress’s main concern in ANILCA was to ensure “adequate and feasible,” and safe, access. Congress stated that Inholders and their successors in interest have “the right to traverse the federal land with aircraft, motor boats, or land vehicles, and to use such parts of the federal lands as are necessary to construct safe routes for such vehicles.” The draft User’s Guide, on the other hand, claims NPS could require access by “float or ski-equipped plane,” rather than allow an Inholder to use a driveway. The draft User’s Guide also has route determination backwards. Early Federal Regulations implementing ANILCA made clear that the Inholder had the right to select “the routes and methods desired” for access. The draft User’s Guide, however, states that NPS “is responsible for determining the specific terms and conditions, including the route, in the right-of-way permit.” –Slana Alaskans Unite

In summary, while we concur that a consistent policy for access to inholdings within CSUs in Alaska is desirable, we find the current users guide as drafted to be ill conceived. Without wholesale changes the document will only entrench the agency’’s unwillingness to provide the reasonable access as envisioned by Congress. The agency should step back and recognizing that 1110 of ANILCA is not withstanding other provisions of federal law, develop a streamlined means of adjudicating these preexisting access rights devoid of fees and cumbersome procedures. Such access rights when adjudicated should be perpetual and appurtenant to the inholding. —Chugach Alaska Corporation

On page one of the Draft User’s Guide the NPS states, “We want the process of obtaining access across park areas to be as straightforward as possible, while also assuring protection of park resources.” Relying upon the NEPA process, charging unnecessary fees and establishing an arbitrary 10-year lifespan for right-of-way permits are actions inconsistent with the goal of making park access as straightforward as possible. RDC believes the NPS can employ other, less burdensome, means to ensure inholders exercise their property and access rights appropriately. —Resource Development Council for Alaska, Inc.

Restrictions on types of vehicles used, frequency and number of passes, seasonal use, ranger escorts, and maintenance represent a form of closure imposed before any resource damage is assessed. Any perceived damage should be discussed with residents to correct the situation before any type of stipulations are imposed. Closures should be made only after failure to reach a compromise with the resident, public meetings in the affected area and through normal NPS closure procedures. Residents should not be held responsible or punished for damages to their rights-of-way incurred by the general public. —Residents of the Wrangells

SAU proposes this draft be scrapped in its entirety. Instead, NPS should promulgate a User’s Guide which includes a categorical exclusion for access established prior to ANILCA as well as certain other types of access. Most of all, the finished User’s Guide should be based upon accurate principles of law. It should streamline, rather than simply promote unfettered NPS discretion over, the access process. —Slana Alaskans Unite

Also as a general comment, we recommend that the NPS recognize and treat existing pre-park access and associated access facilities different from access rights that involve new construction. This would be much less burdensome for both the inholders and the NPS. There needs to be a clear mechanism to assure that the access accompanies the title of the inholding so the existing access is properly documented as a permanent right, which was as intended by Congress. –Alaska Miners Association

Our primary comment is one of tone. We recommend greater emphasis be given to the fact that access requests may be modified to protect park resources. What’s guaranteed is “adequate and feasible” access, not necessarily the applicant’s preferred mode of access. Since the document is primarily about the process of making a request, some readers may inadvertently conclude that if they correctly apply for a permit and provide all the requested information they will be granted a permit with the terms and conditions they seek. — National Parks and Conservation Association

Our mission is to advocate for the natural integrity of Denali National Park and environs. We support the fee structure listed here. NPS needs to make clear that this is for permit applications, and that costs of an EA or EIS will be higher.

Protection of designated and de facto wilderness: The guide should stipulate that access through designated Wilderness, though legal under ANILCA, may be subject to more stringent regulation to protect park resources. —Denali Citizens Council