Peter A. Appel Alex W. Smith Professor University of Georgia School of Law Presented via Webinar Sponsored by the Carhart Center May 15, 2013 Section 4(c): “subject to existing private rights....” (Most post-1964 wilderness additions use the term “valid existing rights”) Section 4(d)(1): Discretion to allow continued motorboat use and aircraft landings Section 4(d)(3): Allows for location of minerals; expired at midnight, 12/31/1983 Section 4(d)(4)(2): “[T]he grazing of livestock, where established prior to September 3, 1964, shall be permitted to continue subject to such reasonable regulations as are deemed necessary by the Secretary of Agriculture Section 5(a): “In any case where Stateowned or privately owned land is completely surrounded by national forest lands within areas designated by this Act as wilderness, such State or private owner shall be given such rights as may be necessary to assure adequate access to such State-owned or privately owned land by such State or private owner and their successors in interest....” Section 5(b): In any case where valid mining claims or other valid occupancies are wholly within a designated national forest wilderness area, the Secretary of Agriculture shall, by reasonable regulations consistent with the preservation of the area as wilderness, permit ingress and egress to such surrounded areas by means which have been or are being customarily enjoyed with respect to other such areas similarly situated. Brown v. USDOI, 679 F.2d 747, 751 (8th Cir. 1982): “A careful reading of [the Wilderness Act] reveals ... that it applies only to mining activities within national forest lands designated as wilderness.... This provision of the Wilderness Act is not applicable to lands ... which are not national forest lands....” (Park Service lands) For BLM lands, once lands made wilderness, all WA provisions “which apply to national forest wilderness areas shall apply [to these] including ... Ingress and egress for mining claimants and occupants.” FLPMA § 603(c), 43 U.S.C. § 1782(c) Most post-1964 acts have extended authority to other agencies—check your statute Nelson 1999) v. US, 64 F. Supp. 2d 1318 (N.D. Ga. • Forest Service case • Property accessible by two roads; one (Brasstown Wagon) closed because it was in wilderness; the other (Yewell Cove) crossed private property • Property owners wanted to develop one portion of property; inaccessible from Yewell Cove road because there was a cliff Gate in Brasstown Wilderness Court finds that limiting inholder to one road did not provide adequate access to property • Partly based on fact that access crossed private property • Partly based on inholders’ plans for developing property • Partly based on USFS regulation, which defines “adequate access” as “a route and method of access to non-Federal land that provides for reasonable use and enjoyment of the non-Federal land consistent with similarly situated non-Federal land and that minimizes damage or disturbance to National Forest System lands and resources.” 36 CFR § 251.111. Other agencies have similar regulations; see, e.g., 43 CFR § 6305.10 (BLM) Barnes v. Babbitt, 529 F. Supp. 2d 1141 (D. Ariz. 2004) • 5 grazing allotments within Arrastra Mountain Wilderness • Prior to ownership, predecessor to the Barnes family accessed via foot or horseback; grazing operations on private inholding had ceased before the Barnes family bought land, but they used private property as base property for grazing allotment Cattle trail in Arrastra Mountain Wilderness Barnes v. Babbitt, 529 F. Supp. 2d 1141 (D. Ariz. 2004) • The Barnes family wanted to have improved access, including using mechanized equipment for some roads • BLM said that some access allowed; court disagreed because “the wilderness designation was determined by Congress” (P.1155). BLM went through NEPA process Access to lands over federal lands existed (even if not what the Barnes family wanted) • RS 2477 rejected • Common law rights of access (e.g., easement by necessity) rejected • Plaintiffs allowed “adequate access” under Section 5(a), but that does not guarantee motorized access or maintenance of routes • “Grazing guidelines” in congressional report, do not authorize anything other than occasional motorized uses Gate in Arrastra Mountain Wilderness Stupak-Thrall v. US, 89 F.3d 1269 (6th Cir. 1996) (en banc) • Rights of private lakefront owner on Crooked Lake in Sylvania Wilderness • Lake is 95% in wilderness and 5% out of wilderness; plaintiffs own lakefront outside of wilderness boundary • Initial regs forbade sailboats, houseboats, disposal containers within wilderness, etc. Motorboating not addressed Photo by Parkcamper.com Michigan Wilderness Act provides that “valid existing rights” are protected Government’s view: • “Valid existing rights” are rights recognized and protected by state law, which, for littoral property in Michigan, include right to obtain drinking water, right to “wharf out,” and right to surface access of entire lake (but not necessarily means of navigation) • “Valid existing rights” provision violated if it would constitute a taking of private property Circuit court equally divides and thus affirms district court upholding regulation Stupak-Thrall v. Glickman, 988 F. Supp. 1055 (W.D. Mich. 1997) • New amendment to Forest Plan restricting motorboats • Amendment allows “motorboats equipped with electric motors up to a maximum size of 24 volts or 48 pounds of thrust and a slow no-wake speed.” • Stupak-Thrall wants to use gasoline-powered motorboat throughout entire surface of Crooked Lake Crooked Lake. Photo by Friends of Sylvania District court finds: • Littoral rights in state law include right to motorboat: “Under Michigan law riparian owners share in common the right to use the entire surface of the lake for boating and fishing, so long as they do not interfere with the reasonable use of the waters by the other riparian owners.” (P.1062) • Valid existing rights: “These riparian rights include the right to continue their pre-existing right to engage in motor boating on the surface waters of the entire lake.” (P.1064) Crooked Lake Boat Landing. Photo by W. Brinkman Government appeals, but eventually dismisses voluntarily Current status? Clouser v. Espy, 42 F.3d 1522 (9th Cir. 1994) • Access sought to 3 mining claims in USFS areas 2 within wilderness areas (Robert E. & Thunderbolt) 1 on Wild and Scenic River (Wilson) • Wilderness mining claims Robert E. USFS challenged validity Plan of operations approved during validity challenge; pack animal access approved Thunderbolt # 2 Sign in Kalmiopsis Wilderness Pack animal access allowed Also use of suction dredge (motorized equipment) Determining validity of claim (Robert E.): • Validity of mining claim determined by whether the claim is commercially viable—miners argue that lack of access will affect commercial viability • “While Congress has assigned to Interior authority to adjudicate claim validity, it is free to allocate regulation authority as it chooses and in [the WA] it has empowered [USFS] to make decisions regarding a particular issue that happens to have collateral consequences for claim validity.” (P.1529) • “The issue here concerns how an agency should treat a putative claim during the interim while validity is being assessed. Interior has taken one position, Agriculture another, and we see no reason why such a divergence is impermissible as a matter of law.” (P.1535) Thunderbolt # 2 (acknowledged to be valid) • Limited to pack animals and 5” suction dredge; USFS tested ability to take suction dredge in on pack animal • Miners limited to means “essential” to operation or “customarily used”; no evidence of essential need nor customary use of motorized access Mining operation in Kalmiopsis Wilderness • Access regulations did not “materially interfere” with mining claim General provision: Section 1323(a), 16 USC 3210(a): • “Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment thereof: Provided, That such owner comply with rules and regulations applicable to ingress and egress to or from the National Forest System.” Denali Wilderness • Has been interpreted to apply outside of Alaska. Mont.Wilderness Ass’n v. USFS, 655 F.2d 951 (9th Cir. 1981). Similar provision for Interior lands (§ 1323(b)) which apparently does not apply outside of Alaska Also specific access provisions regarding subsistence uses—oddly, these have not been litigated Absaroka Trust (Johnson is trustee) seeks access to lands under both WA § 5(a) and ANILCA general provision USFS finds that “hiking, stock, and helicopter access” existed and were adequate for Trust’s needs Not entitled to most convenient or desirable access, only adequate access Speculator Rd., Absaroka-Beartooth Wilderness Access subject to agency discretion in many instances This means evaluating access under NEPA, ESA, NFMA, and other acts Individual access for established uses are where courts are most leery of restrictions—consult agency counsel Phone: (706) 542-5097 Email: appel@uga.edu