ATV Decision Could Inform Pebble Mine Case

Back in July, the Alaska Supreme Court ruled that the state was inappropriately granting permits for ATV usage on park land. The decision affected about 200 families who use their four wheelers to cross park lands to get to their property. Last week, the Court reissued their decision, and the way they handled the case could offer a clue on how they’ll handle other questions of land management, including one involving the proposed Pebble Mine. APRN’s Alexandra Gutierrez reports.

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The Nancy Lake State Recreation Area covers a broad swath of land along the Parks Highway. It’s mostly a quiet spot for hiking, camping, and fishing. And for the most part, you need to travel out there on foot.

“The general rule is no ATVs,” says Patrick Gilmore. He’s an attorney who represents SOP Inc. –which stands for “save our parks” — and he recently fought against an exception to that rule.

Since the 1970s, the Department of Natural Resources has been issuing permits to people who own property near the park, so they could drive along an old pioneer trail to get to their land.

(Credit: Alaska Department of Natural Resources)
(Credit: Alaska Department of Natural Resources)

According to the Supreme Court opinion issued on the case, land that was supposed to be fly-in only was suddenly being advertised as ATV accessible. The Division of Parks tried to limit ATV access about a decade ago, but Gilmore says it became an access rights controversy.

“So the people that were being ticketed went to their legislators, who then started threatening the Division of Parks that they were going to cut their budget if they kept enforcing the law here.”

In 2002, the Division set up a system where they would give out permits to private land owners if they agreed to maintain the ATV trail at their own expense. A couple hundred permits were issued. That system was supposed to limit damage to the area. But Gilmore says it didn’t quite work out that way.

“Last time I was out there, the beavers had gotten into one of the ruts and were damming the drainage to it and were trying to make pond out of this road. So they just kind of made a mess of the area.”

So, SOP Inc. decided to sue, arguing that by allowing ATVs on a stretch of park terrain, you’re basically handing over the rights to the land. The Supreme Court agreed with that argument in an opinion this summer. Neither Gilmore nor the Division of Parks think the Supreme Court ruling should have an impact on ATV use in other parks.

But there was one part of the decision that wasn’t exactly narrow. In a footnote toward the end of the opinion, the Court said that because the ATV usage was having “long-term and harmful” consequences on the environment and because no permits have ever been revoked despite the damage to land, the permits in the Nancy Lake situation fail a major judicial test — a test that could come up in some other important land management cases that go way beyond parks. Again, Gilmore.

“I think the state has a real concern that this is going to impact them in some of these other cases. The biggest one that I’m aware of involves Pebble Mine.”

The lawsuit he’s referring to was filed by Nunamta Aulukestai, a group of Bristol Bay Native groups. Nunamta Aulukestai believes the state permits issued to the Pebble Limited Partnership for exploratory work are unconstitutional because they have resulted in long-term and harmful consequences to the land and can’t be revoked at will. A party close to the Pebble lawsuit said they eyed the footnote with interest, because it could impact how the court may rule in their own case.

So, with a major question of land management in play, the State applied for a rehearing. They wanted a new version of the opinion that took the footnote out. John Baker, the state attorney who handled the case, says that yes, the expansiveness of that footnote could have had legal consequences.

“The concern was in the state’s view, it suggested a much broader application of the test in that earlier case — the Northern Alaska Environmental Center case — than we believed was originally intended by the court’s decision there.”

Baker says that the state didn’t have a specific case in mind. And he’s not sure how the language would have affected the Pebble case.

In the end, the Supreme Court got rid of the footnote. So the Nancy Lake case probably won’t go down in Alaska legal history as a precedent-setting permitting decision. But it may give a hint of how this court feels about land management and how the state is handling it. And if they apply the same logic to the Pebble case, it could affect more than just a group of ATV users.

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agutierrez (at) alaskapublic (dot) org | 907.209.1799 | About Alexandra