Moses crosses McCarthy Creek a final time before reaching the Pilgrim home. The 14-mile right of way from McCarthy crosses the creek at least a dozen times. (Photo by Marc Lester / Anchorage Daily News archive 2003)
Wrangell-St. Elias National Park, McCarthy, Alaska - The National Park Service said Thursday it will grant a temporary permit allowing the Pilgrim family winter access via bulldozer to their land in Wrangell-St. Elias National Park outside McCarthy.
The decision was immediately criticized by the family's attorneys as too little, too late and by environmental groups as too generous for opening the door to more travel by bulldozers across national parks.
Coincidentally, the Pilgrim family's legal case against the park got a boost Thursday when the 9th U.S. Circuit Court of Appeals reconsidered an earlier decision and decided to hear their legal appeal of the park's access rules.
The new park permit will allow the Pilgrim family to make 18 trips in the coming year along a historic road while the ground is snow-clad and frozen to a depth of at least six inches of frost. Trips not made by April 15 could begin again next October.
The park said it was granting the trips on an emergency basis, primarily to haul in building materials to replace a house that burned a year ago.
A separate permit would be necessary to get permanent access over the road.
Park officials loosened several requirements since first proposing the permit in January, based on public comments.
But they didn't go far enough, said the family's Anchorage lawyer, J.P. Tangen.
"We're extraordinarily disappointed," Tangen said Thursday. "What seems to be lost on the Park Service is it is relatively dangerous to run a tracked vehicle on frozen ground that's not laterally flat. There's a risk of side-slipping when traversing ice or packed snow above the river."
The family's next move was uncertain.
Park officials had planned to hand-deliver the permit to the remote homestead Friday but were told to wait until next week, said park superintendent Gary Candelaria.
Family patriarch Robert Hale, who goes by the name Papa Pilgrim, was away from the family home for medical reasons, Tangen said.
The 17-member Pilgrim family, whose legal name is Hale, bought the old mining site in 2002.
The property is located 14 miles up McCarthy Creek from the remote town of McCarthy.
The access battle erupted in 2003 after Papa Pilgrim used a bulldozer to clear a disused road to gain access.
The faceoff has drawn attention from national property rights groups who think the park is trying to squeeze out inholders, as well as from environmental groups concerned about precedents affecting other parklands.
Backed by the national groups, including the Pacific Legal Foundation, the family went to federal court last year contending they did not need a park permit because the road was a historical access route and because federal law provides special access rights to Alaska inholders. They lost. U.S. District Judge Ralph Beistline ruled last November the family had to comply with the permit process first, then return to court if the permit is unsatisfactory.
The 9th Circuit declined to hear an appeal in January, saying it lacked jurisdiction, but reconsidered this week.
However, the appeals court refused the family's request for an injunction granting them emergency access.
Meanwhile, the family's request for emergency access resulted in a 126-page environmental assessment [EA] and 30-day comment period. Park officials said they received 239 comments, 176 of them filled-out questionnaires distributed by park critics.
Rick Kenyon, publisher of the Wrangell-St. Elias News in McCarthy, submitted comments calling the environmental study a "sad misuse" of funds better spent on visitor facilities.
"I have watched over the past 12 months as the Park Service has attempted in numerous and devious ways to deny access to this family," Kenyon wrote. "More distressing, park rangers have used intimidation and slander in an attempt to demoralize and frustrate the Pilgrims. Shame on the National Park Service."
Local supporters in the group Residents of the Wrangells, calling bulldozer access customary and traditional, said, "Fastidious care taken to protect vegetation, rocks and soil on an alignment trampled by decades of bulldozer usage is absurd."
But environmental groups argued that the Hale family should depend on airplanes and snowmachines like countless other residents of remote Alaska. Permission to use a bulldozer will encourage similar bids by other landowners, they said. They also argued it was wrong to base the impact analysis on an open access road, which was overgrown before it was cleared by the family.
"Impairment caused by the applicants' illegal activities should not be used as a baseline for environmental analysis," said The Wilderness Society.
A damage assessment that could result in civil penalties against the Pilgrims is still under way, park officials said.
The permit approved this week was modified to make access easier on the family, said Candelaria. Among other changes, it allows a refueling cache in the park and more flexibility about notifying park rangers of travel plans.
But Tangen said the permit still does not satisfy the Pilgrims' needs since it denies access in summer and fall, when construction materials are most needed.
The Pacific Legal Foundation, which is representing the Pilgrims for free in federal court, said the permit "is so burdened with conditions that it will make it extremely onerous, if not impossible, for the Pilgrims to use the road."
In a prepared statement, the conservative public-interest law firm called the 9th Circuit appeal "potentially precedent-setting" as a test of Revised Statute 2477, the century-old federal law invoked by states to claim historic rights of way across federal land, including the McCarthy Creek road. The appeal will also test access provisions of the Alaska National Interest Lands and Conservation Act, the 1980 law that created Wrangell-St. Elias and many other parks and refuges here.
Briefs for the appeal are due in April and May.
Tangen said the family also plans to appeal recent misdemeanor convictions of two Pilgrim sons. One was found guilty of taking an undercover park agent on a guided horseback ride in the park without a business permit. The other was convicted of trespassing and vandalism for opening a mine shaft sealed by the park to gain access to a mine owned by the family.
There are signs of improved relations, however. Earlier this week, park rangers met with the Pilgrims and granted them a business permit for guiding horseback trips in the park.
Copyright 2004 The Anchorage Daily News