Court Affirms State's Property Rights Across Tongass National Forest
Posted & Edited By MARY KAUFFMAN
June 20, 2019
This dispute stemmed from a Forest Service announcement in March 2014 changing its interpretation of Section 4407. According to the Alaska Department of Law, the Alaska Department of Transportation and Public Facilities suffered serious project delays from the Forest Service’s withholding easements to construct and operate roads across federal lands.
In 2015, Alaska’s congressional delegation passed a clarifying amendment to Section 4407 in 2015 intended to remove all obstacles being raised by the Forest Service and have the easements issued.
After the 2015 amendment to the law, all pending Section 4407 easements were released by the Forest Service except the easement for the State’s Shelter Cove Road project in Ketchikan, which resulted in this lawsuit.
Judge Beistline’s June 11, 2019 order declares the property rights held by the State of Alaska in what have come to be known as Section 4407 easements. These easements were created pursuant to a land exchange ratified by Congress in Section 4407 of a 2005 federal transportation funding bill.
“This decision is a great win for the State and for Southeast Alaska in particular," said Attorney General Kevin Clarkson. "This allows the State to connect the communities of Southeast Alaska without unnecessary Forest Service restrictions such as the Roadless Rule.”
The court clarified that the Forest Service has no legal authority to withhold or deny the State’s request for an easement to accommodate a transportation or utility project under the Section 4407 easements.
The State and federal governments’ easement exchange in 2005 was designed to preserve the State’s infrastructure development rights, if the Roadless Rule were to become applicable to the Tongass National Forest, by establishing easements for transportation and utility corridors to connect the communities of Southeast Alaska. In exchange, the Forest Service received easements over state-owned tidelands for hundreds of federal-owned facilities—docks, floats, boat ramps, breakwaters, log transfer facilities.
In a prepared statement, Alaska Congressman Don Young (R-Alaska) said, “While this court ruling is a good and encouraging step forward, there is still much work ahead. Alaska still needs a complete exemption from the Roadless Rule to ensure that the economy in Southeast grows and remains strong. SAFETEA-LU had several far-reaching and important provisions – among them was a provision to ensure communities in Southeast Alaska were able to develop roads and utilities through easements. Through this ruling, the courts have sent a strong message to the federal government: the intent of Congress must be respected."
The proposed Shelter Cove project would extend the Ketchikan Road system from Revilla Road to the Shelter Cove road system on Carroll Inlet.
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