Law firm sues for Pilgrim family to get access land in McCarthy

Anchorage Daily NewsNovember 4, 2003 

A national constitutional-rights law firm sued the National Park Service on Monday on behalf of the Pilgrim family, charging that federal officials have illegally denied access to the family's land outside McCarthy in Wrangell-St. Elias National Park.

In a suit filed in federal court in Anchorage, the Pacific Legal Foundation said the family of 17 should be granted access because of two federal laws, one governing Alaska's national parks and the other preserving historic routes across federal lands.

"The Park Service seeks to lock up national parks and prevent access to private land in nothing short of a federal land grab," the lawsuit said. The law firm is asking U.S. District Judge Ralph Beistline for a restraining order that would allow the Pilgrims immediate access via "tracked vehicle" over a historic mining road.

Robert Hale, the family patriarch who goes by the name Papa Pilgrim, reopened the grown-over road with a bulldozer a year ago. The Park Service ordered the road closed to motorized vehicles in the spring, touching off controversy in McCarthy and high-profile attention from national property rights groups. Federal officials have said they are preparing a damages lawsuit against the family for the bulldozer trip.

Park officials say both laws cited by the Pilgrims' attorneys require going through a public process that has not been undertaken.

National Park Service spokesman John Quinley said Monday the government is still ready to work with the Pilgrims on getting the necessary permits for the road up McCarthy Creek, described as 13 to 15 miles long.

The Park Service says it will have to do an environmental assessment, taking at least nine weeks, before granting an access permit for the road, which crosses the streambed a dozen times or more.

At stake is access to 410 acres of former mining properties bought by the Pilgrim family in 2002. The family's situation worsened when a fire last winter destroyed one of the two habitable dwellings and much of their personal gear. With winter closing in, supporters of the Pilgrims, including a national land-rights group, have organized volunteer flights carrying supplies to the remote family.

An environmental group, the National Parks and Conservation Association, said Monday that the lawsuit is an attempt to avoid following access rules for Alaska parks that were written during the Reagan administration. The group is planning to intervene with the help of the environmental law firm Trustees for Alaska.

"We want to ensure that procedures are followed and park values are protected," Trustees lawyer Bob Randall said.

The two laws in question should guarantee park inholders like the Pilgrims access to their land, said Russ Brooks, a lawyer with the Pacific Legal Foundation, a Sacramento-based nonprofit law firm. It's the Park Service that should have to go through a public process to close the road, he said.

A key law in the case is known as RS 2477, an 1866 law that allowed access across federal land on historic rights of way. The law was repealed in 1976 but existing claims were allowed to stand, including the Green Butte Road up McCarthy Creek.

The Bush administration and Western states have been negotiating over how to sort out these claims. The Pacific Legal Foundation lawsuit seeks to short-circuit that process by arguing that the road is automatically a state right of way and no further federal action is warranted.

"It will be a defining case. There's no clear precedent from the (federal appeals court) on this," Brooks said. He said it is a good case because the mining road has long been in use. Randall, the environmentalist lawyer, disagreed. He said states must go through a procedure known as "quiet title" to transfer a right of way from federal ownership.

"That's something states could pursue, but it's not something for the Hale family to take into their own hands," he said.

Randall said a 9th U.S. Circuit Court of Appeals decision has resolved that permits are necessary to cross protected federal land, even on a valid RS 2477 route.

"We believe the courts will find that a permit is required if you bulldoze a road across public land, whether portions of that route may or may not be adjudicated at some point as RS 2477," Park Service spokesman Quinley said.

The Pilgrim lawyers also argued that access should be guaranteed under the Alaska National Interest Lands and Conservation Act of 1980, which created the Wrangell-St. Elias park and guaranteed "adequate and feasible" access to inholders. They say the Park Service has gone beyond "reasonable regulation" in preventing the Pilgrims from using their bulldozer. No environmental studies should be necessary, they said.

The family contends it has been seeking permission to use the road since July. The Park Service contends the family has still not filed for a permanent access permit. An application for emergency access was filed under protest in September.

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