The Alaska National Interest Lands Conservation Act (ANILCA) guarantees that, “[n]othwithstanding any other provision of law,” the owner of land surrounded by national forest will receive access to the land “adequate to secure to the owner the reasonable use and enjoyment thereof.” 16 U.S.C. § 3210(a). In 1987, the Leavell-McCombs Joint Venture (LMJV) acquired 300 acres of land near the Wolf Creek Ski Area that is wholly surrounded by national forest. LMJV intended to develop a resort village, which required LMJV to obtain access to its property across national forest land.
Yet despite ANILCA’s guarantees, LMJV’s access was stymied for more than 37 years by environmental litigation. Three times, the United States Forest Service (USFS) granted LMJV access. Three times, environmental groups sued to block the access. And three times, the U.S. District Court for the District of Colorado struck down the grant, citing supposed failures of USFS’ analyses under the National Environmental Policy Act and Endangered Species Act.
A different firm represented LMJV in the prior litigation, but after the third loss, LMJV hired Faegre Drinker’s appellate team to lead the appeal in the U.S. Court of Appeals for the Tenth Circuit and coordinate with the United States to defend the most recent grant of access. See Rocky Mountain Wild, et al. v. Dallas, et al. and LMJV, Case Nos. 22-1438, 22-1439. Faegre Drinker had to convince the Tenth Circuit not only that the district court's decision was wrong but also that the Tenth Circuit should address arguments that had not been previously addressed. Although United States only sought reversal, Faegre Drinker argued that 37 years of delay was enough and asked the Tenth Circuit to cut to the access and affirm the grant of access without a remand for further proceedings.
On April 19, 2024, the Tenth Circuit agreed and ordered that LMJV be given road access to its property. In a unanimous, 63-page opinion, the Tenth Circuit rejected every argument plaintiffs made, refused to remand for more delay, and affirmed the grant of access. Due to the efforts of the Faegre Drinker team, LMJV can finally move forward with development of the resort village it envisioned nearly four decades ago.
