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NPS Regs Rule Revision on right-of-way (ROW) permits for NPS lands

ANILCA Resources (ALRA)

6/10/24 - Proposal Published in the Federal Register <<< also includes all comments

8/9/24 - Comment Deadline (11:59 ET or 7:59 Alaska Time) - Comments:

Alaska Miners Association - AMA’s concern arises in part from the Proposed Rule’s complete failure to acknowledge the existence of ANILCA’s access provisions that are critical for future access across Federal lands, including National Park lands, in Alaska.

Sally Gibert (State of Alaska’s ANILCA Implementation Program Coordinator for 27 years until her retirement in 2011) - If the final rule continues to sow doubt or ambiguity about what portion(s) of the Title XI regulations are intended to be supplanted or modified, NPS personnel in the Alaska Region will be caught painfully between a rock (ANILCA) and a hard place (inconsistent national regulations), with the potential for expensive administrative and/or judicial remedies. ANILCA and its implementing regulations, policies and procedures generally suffice to address the unique access and ROW needs of Alaska under ANILCA. So regardless of what the authors understand or intend, I urge the final rule to include a blanket exemption for Alaska. At a minimum the final rule should clarify that in case of conflict between the Proposed Rule and ANILCA and its Title XI regulations that the Alaska-specific direction shall prevail.

Doyon (Sarah Obed, Senior VP External Affairs) [Comprehensive 11 pages of comment] - NPS must ensure that any final rule is fully consistent with its obligations under ANILCA and that it ensures that Doyon will, throughout the duration of the plan, enjoy reasonable access over NPS lands to make economic and other use of its inholdings. Accordingly, any final rule should appropriately address Doyon’s and other inholders’ rights to access pursuant to Title XI of ANILCA as well as Title XI’s other access provisions. Consistent with its goal to improve the ROW permitting process, it should provide clarity and certainty for those who own inholdings within National Park System unit in Alaska and who require access across NPS-managed lands in order to access those inholdings, as well as for ROW permit holders more broadly.

Chuck Gilbert (retired NPS Alaska Region Realty Officer) - The proposed rule includes no reference to Title XI of the Alaska National Interest Lands Conservation Act (ANILCA), P.L. 96-487, or to ANILCA’s Title XI implementing regulations at 43 CFR Part 36... Title XI and its implementing regulations have governed right-of-way (ROW) authorizations on National Park System lands and other Department of Interior lands in Alaska since 1986.

Title XI and its implementing regulations contain specific requirements for the NPS in Alaska in reviewing and processing applications for access and to authorizing access when appropriate. There are significant areas of conflict between the current proposed rule and the existing authority of Title XI and its implementing regulations that are not addressed in the proposed rule. In such areas of conflict, Title XI and 43 CFR are controlling.

Examples of conflicts are:           [one example]

43 CFR 36.10 addresses applications for access to inholdings within NPS units, and implements the legislative right of access to inholdings contained in ANILCA section 1110(b). Although ROW permits issued for access to inholdings can and should contain terms to protect park resources, the issuance of ROW permits for access to inholdings is not discretionary. The proposed rule is in direct conflict with the ANILCA 1110(b) and 43 CFR 36.10, which are existing and applicable authorities.

State of Alaska (Catherine Heroy, Federal Program Manager) - The proposed rule to revise NPS ROW regulations fails to make any reference to Alaska, nor to the Department of Interior (DOI) regulations at 43 CFR 36 that implement Title XI. The State requests the NPS add language to the final regulations to acknowledge that Title XI of the ANILCA applies to applications for rights-of-way in Alaska. ANILCA Title XI, and its implementing regulations at 43 CFR Part 36, outlines the process by which federal agencies must adjudicate applications for transportation and utility system rights-of-way across NPS lands in Alaska.

Ray Kreig, Anchorage, Alaska