Pilgrim family access

U.S. District Judge Ralph Beistline denied the Pilgrim family's motion for a temporary restraining order, saying the National Park Service was justified in wanting to assess the environmental impact of reopening the road. But some area residents are wondering where the judge got the information that he based his decision on.

“Vehicular travel over the roadway in question has not occurred for more than 65 years. This was not a secret at the time plaintiffs purchased the property, as many living within the park boundaries lack vehicular access to their property,” Beistline wrote in his 18page ruling. “Therefore, it is reasonable to allow the Park Service time to investigate the issue before making a decision.”

A number of local residents testified of using the road in recent years at a meeting in McCarthy on April 18. “When I moved to McCarthy there was no road to McCarthy but there was a good road up McCarthy Creek beyond the Motherlode. Everybody in McCarthy used that road on a regular basis. And we have through the years,” said Gary Green, who has lived in the area for nearly 30 years. Superintendent Candelaria was present at that meeting.

This, and other information that came out in the case prompted Pacific Legal Foundation Attorney Russell Brooks to file a motion for reconsideration on November 26. The judge denied that request.

“For the six months we’ve been involved in this case, a lot of our time has been taken up undoing and investigating lies and misinformation spread by the Park Service,” said Chuck Cushman, Executive Director of the American Land Rights Association that has been helping the Pilgrims gain access to their home. “This ruling was based on written affidavits and it appears that Judge Beistline may have relied heavily on misstatements made by the National Park Service in their affidavits,” Cushman said.

“The judge did not rule on the big and important RS 2477 or the ANILCA 1110b RightOfWay issues. He said that it was reasonable for the Park Service to require a permit,” Cushman said. The family has been trying to obtain a permit since June 6, when Papa, David and attorney J.P. Tangen met with then NPS Regional Director Rob Arnberger and discussed permitting requirements. Shortly after the meeting, on July 8, Pilgrim requested a permit from Superintendent Gary Candelaria. That was followed by two more attempts in September. Candelaria said he would need to do an Environmental Assessment first, a procedure that would take a minimum of 9 weeks. Candelaria did offer to waive the considerable expense normally associated with the process.

“For the Pilgrim family, access means survival,” said Brooks. “Rather than being a responsible regulatory agency, the National Park Service has forced a standoff with Papa Pilgrim, who merely wants to continue use of the road to provide for his family’s needs. The Pilgrims are in an emergency situation. Yet, the Park Service callously claims that the family’s predicament isn’t considered an emergency ‘under federal regulations.’ The Park Service has drawn a line in the sand, dismissing the urgent needs of people—including small children living in Arctic conditions,” said Brooks.

Supporters of the family said Beistline's ruling is just the beginning of their legal battle. The ruling was largely based on procedural grounds, said Chuck Cushman. “This is just round one of a 15round bout.”

Enviros make it clear they do not like property rights groups like Cushman’s. “It is clear that propertyrights extremists are using this case to further their own special interest political agenda,” said Eleanor Huffines, Alaska regional director for The Wilderness Society. “The Park Service has a duty to protect national parks for all Americans. Secretary Gale Norton has repeatedly said that bogus road claims like this one won't be allowed in national parks and other protected places. Now is the time for her to live up to that promise and vigorously defend the park.”

At the heart of the dispute is the Park Service’s concern for spawning fish and possible damage to unfrozen ground. The road to the Pilgrims’ property crosses McCarthy Creek several times. The Park Service contends that by using the road, the fish swimming in the creek might be subjected to harm. The Park Service has demanded that an Environmental Impact Study be completed before discussions about a permit for the Pilgrims could begin. Such an expensive study would take nearly nine weeks to complete.

The Pilgrims did get a boost from state officials, even as they were losing in federal court. The state Department of Natural Resources said it does not consider McCarthy Creek to be an anadromous stream. (Fish that go to sea and return to fresh water to spawn—typically salmon). A recent Park Service effort had turned up some Dolly Varden trout, including one that appeared to come from the sea. As things stand now, the Pilgrims won't need to get stream-crossing permits from the state as part of the national park permit process.

The Pacific Legal Foundation filed an emergency motion on December 24 in the 9th U.S. Circuit Court of Appeals in San Francisco, asking the court to overturn the Beistline decision.

“The Park Service is seeking to lock up national parks and prevent access to private land. This is nothing more than another chapter in the federal government’s ongoing land grab,” said Brooks. “Tragically, women and children are being placed in harm’s way.”