11/18/2003

From: alra@governance.net
Subject: Pilgrims Win State Access Ruling  For Immediate Release

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Pilgrims Win State Access Ruling  For Immediate Release


For Immediate Release
November 18, 2003

The Alaska Department of Natural Resources has just released its ruling that no state permit is required for the Pilgrims to cross McCarthy Creek 13 times each trip when they use the McCarthy Green Butte Road.  The complete ruling is below.

Ray Kreig, Chairman of the Kantishna Inholders Association and long time Alaska representative of the American Land Rights Association praised the report.   Weve said all along that there was virtually no damage likely from using a tracked vehicle to pull a trailer load of supplies up the McCarthy-Green Butte Road.  The State of Alaska now agrees that crossing McCarthy Creek is not going to harm the stream or its fish.  This brings the beleaguered Pilgrim Family one step closer to gaining access to its home.

A positive action for Alaskans who care about access, said Paula Easley, President of the new statewide access group, the Alaska Land Rights Coalition.  Ive been to McCarthy, visited the Pilgrim Family, and seen the road.   This is an entirely appropriate ruling.   Tracked vehicles are traditional modes of transportation in rural Alaska.  The Federal land agencies should not be allowed to shut down access to people who need to get to their homes and property all over Alaska.

Wednesday, Judge Ralph Beistline is expected to release his ruling on the emergency request by the Pilgrim Family (ROBERT HALE, ET AL. vs. GALE NORTON, ET AL.      HEARING RE: APPLICATION FOR TEMPORARY RESTRAINING) to use a small D4 Cat and trailer to bring supplies up the McCarthy-Green Butte Road to allow them to get through the winter.  Their home burned last spring.

Were hoping for a positive ruling from Judge Beistline, said Chuck Cushman, Executive Director of the American Land Rights Association.  But no matter what happens in court now, this fight will go on to gain the Pilgrim Family fair and reasonable access to its homestead.   American Land Rights will continue to support the Pacific Legal Foundation in its quest for a binding judgment that will force the National Park Service to obey the law.  In the meantime, families who care about access to Federal lands across America are watching the Pilgrim Family case.  Well find out if Congress really protected access in ANILCA or if the National Park Service is going to get away with trampling on peoples rights.

For a complete sound recording of the court hearing before Judge Beistline held Monday, go to http://www.landrights.org/ak/wrst/Pilgrims.htm 

Paula Easley, President of Alaska Land Rights Coalition:  (907) 274-6800 landrights@gci.net   

Ray Kreig, Chairman of the Kantishna Inholders Association and Alaska Representative for the American Land Rights Association:  (907) 276-2025.

Chuck Cushman, Executive Director of the American Land Rights Association:  (360) 687-3087  ccushman@landrights.org

JP Tangen, Pilgrim Family attorney:  (907) 222-3986

Russ Brooks, Pacific Legal Foundation:  (206) 931-8624


State of Alaska letter follows:


State of Alaska
FRANK H. MURKOWSKI, GOVERNOR
	
1300 COLLEGE ROAD
FAIRBANKS, ALASKA 99709-1551
PHONE:(907) 459-7289
FAX:(907) 456-3091
DEPARTMENT OF NATURAL RESOURCES

OFFICE OF HABITAT MANAGEMENT & PERMITTING

	

Date Determination Issued:  November 18, 2003
Date Determination Expires: April 31, 2004 
	 

Mr. J.P. Tangen, Attorney at Law
1600 A Street, Suite 310
Anchorage, AK  99501-5148

Dear Mr. Tangen:

RE:	Equipment Stream Crossing; McCarthy Creek  Green Butte Road; McCarthy Creek.

Pursuant to AS 41.14.870(b) and AS 41.14.840, the Alaska Department of Natural Resources  Office of Habitat Management and Permitting (OHM&P) has reviewed your email application dated October 29, 2003 for authorization to make multiple stream crossings of McCarthy Creek along the historic McCarthy Creek  Green Butte wagon road for purposes of transporting supplies from McCarthy to the Motherload Mine.  Up to six round trips are anticipated.  Equipment to be used includes a sled and D-4 dozer.  Your permit request was made on behalf of Joseph Pilgrim (Nava S. Sunstar), owner of the Motherload Mine.  

AS 41.14.870 (Anadromous Fish Act) requires that an individual or government agency provide prior notice and obtain permit approval from OHMP to construct a hydraulic project or use, divert, obstruct, pollute, or change the natural flow or bed of a specified anadromous waterbody.  All activities within or across specified anadromous waterbodies, including the use of vehicles or equipment in the waterway, require permit approval.  

AS 41.14.840 (Fishway Act) requires that an individual or government agency notify and obtain authorization from OHMP for activities within or across a stream used by fish, both anadromous and resident species, if OHMP determines that such use or activity could represent an impediment to the efficient passage of fish.  

At this time, McCarthy Creek is not legally specified as an anadromous waterbody pursuant to AS 41.14.870(a).  We are aware that the U.S. National Park Service has conducted fish surveys in McCarthy Creek and captured Dolly Varden at all sample locations.  One was a ripe 435 mm male that likely was anadromous.  However, until such time as McCarthy Creek is legally specified, an AS 41.14.870 permit is not required.  Be advised that this determination could change in the future if McCarthy Creek is legally specified under AS 41.14.870(a).

Winter crossings of McCarthy Creek are not likely to create an impediment to the efficient passage of fish.  Therefore, permit authorization under AS 41.14.840 is not required at this time.  Be advised, however, that OHMP may order removal of any fish passage barrier caused by the equipment crossing, such as operating within the stream bed with the dozer blade down or creating rutting that impedes passage at low flow (french draining), pursuant to AS 41.14.860.  In addition to the prescribed penalty provisions, this may include declaration of the barrier as a public nuisance subject to abatement. 

Please be advised that this determination applies only to activities regulated by OHMP.  This determination does not relieve you of the responsibility for securing other state, federal or local permits.  You are still required to comply with all other applicable laws.

Please accept my apologies for the delay in responding to your request.  Your email was addressed to robert_mclean@dnr.state.ak; whereas my email address is mac_mclean@dnr.state.ak.us.  Please use the updated email address in any future correspondence.  

Sincerely,

Dick LeFebvre, Deputy Commissioner

Electronic Final (Signed Original Sent Via Mail)

BY:	Robert F. McLean, Area Office Manager
	Office of Habitat Management and Permitting
	
cc:	Elizabeth Barry, DOL, Anchorage	Dick Mylius, ADNR, Anchorage
	Kerry Howard, OHMP, Juneau	Al Ott, OHMP, Fairbanks
	Pete McGee, ADEC, Fairbanks	Don Kohler, COE, Anchorage	
	Steve Borell, AMA, Anchorage	Ann Rappoport, USFWS, Anchorage
	Jeanne Hanson, NMFS, Anchorage

MAC:




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