ELR Citation: ELR 20037
No(s). 03-36032 (9th Cir. Aug 25, 2006)

The court upholds the dismissal of property owners' claims against the National Park Service (NPS) concerning the use of an abandoned road crossing federally protected land to access their property within the Wrangell-St. Elias National Park and Preserve in Alaska. The property owners sought an injunction requiring the NPS to provide what they deemed adequate and feasible access to their property, a declaratory judgment that the NPS was violating their right-of-way over the road by requiring a permit, and a declaratory judgment that issuing a permit for temporary use of the road did not constitute a major federal action subject to the requirements of the National Environmental Policy Act (NEPA). Contrary to the lower court's finding, the court has jurisdiction over the matter because the property owners challenge an administrative decision that satisfies the "conclusiveness," "separability," and "unreviewability" prongs of the collateral order doctrine. Nevertheless, the lower court properly dismissed their claims. Even if the property owners have a valid right-of-way over the abandoned road, their use of the road is subject to reasonable regulation by the NPS. Consequently, the property owners are required to apply for a permit regardless of any right-of-way they might possess. In addition, the incorporation of NEPA into the permit-granting procedure is consistent with the Alaska National Interest Lands Conservation Act.

[This decision was withdrawn and and replaced by 37 ELR 20037.]