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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. SOP, Inc. v. State, Dept. of Natural Resources, Division of Parks and Outdoor Recreation (7/19/2013) sp-6800
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SOP, INC., )
) Supreme Court No. S-14541
Appellant, )
) Superior Court No. 3AN-11-05670 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF NATURAL ) No. 6800 - July 19, 2013
RESOURCES, DIVISION OF PARKS )
AND OUTDOOR RECREATION, )
BEN ELLIS, in his capacity as )
Director, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Patrick J. McKay, Judge.
Appearances: Patrick Gilmore, Atkinson, Conway &
Gagnon, Anchorage, for Appellant. John T. Baker, Senior
Assistant Attorney General, Anchorage, and Michael C.
Geraghty, Attorney General, Juneau, for Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger,
Justices, and Carpeneti, Senior Justice pro tem.*
STOWERS, Justice.
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
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I. INTRODUCTION
1
The Nancy Lake State Recreation Area ("the Park") was established by the
Alaska Legislature for public recreation. The Park's governing regulations prohibit the
use of motorized vehicles off of the Park's paved roads. However, the Park issues
special use permits to owners of private property abutting the remote boundary of the
Park that grant them the right to use all-terrain vehicles (ATVs) along the Butterfly Lake
Trail to access their private property. The ATVs have damaged the Butterfly Lake Trail
and the surrounding wetlands.
SOP, Inc. sued to enjoin the Park from issuing these ATV permits. SOP
moved for summary judgment, and the Park filed a cross-motion for summary judgment.
Superior Court Judge Patrick J. McKay denied SOP's motion and granted the Park's
motion, concluding "there is nothing in the statutes or regulations that justifies court
intervention and invalidation of the permits."
SOP appealed. We hold that the permits created easements because the
Park cannot revoke the permits at will. Easements are disposals of property. The Alaska
Constitution prohibits the Park from disposing of property that the legislature has set
aside as a state park. Thus, we find the permits are illegal and we reverse.
1 Nancy Lake State Recreation Area is a unit of the Alaska Department of
Natural Resources, Division of Parks and Outdoor Recreation. The special use permits
that are the subject of this appeal are entitled "Alaska State Parks - Special Park Use
Permit," and the permits bear the imprint of the Alaska State Parks emblem. SOP's
complaint names as defendants the Department of Natural Resources, Division of Parks
and Outdoor Recreation and its Director. For purposes of simplicity, we refer to Nancy
Lake State Recreation Area and to the defendants/appellees as "the Park."
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II. FACTS & PROCEEDINGS2
A. History Of Nancy Lake State Recreational Area And The Butterfly
Lake Trail
In 1966 the Alaska Legislature established Nancy Lake State Recreation
Area for the purpose of public recreation.3 The Park's lands "are reserved from all uses
incompatible with their primary function as public recreation land."4 The Commissioner
of the Department of Natural Resources has the authority to designate incompatible uses
in the Park by regulation.5 The Park is located near Willow and contains a chain of lakes
connected by canoe portages.
In the 1960s, before the Park's establishment, a local property owner
created a trail for winter snowmobile use from Lynx Lake to Butterfly Lake. This trail
is now within the boundaries of the Park, and the Park converted part of it into a park
2 The facts are drawn from the evidence in the record including depositions,
sworn affidavits, and DNR internal records.
3 AS 41.21.455(a) states:
The presently state-owned land and water and all that
acquired in the future by the state, lying within the following
described boundary, are hereby designated as the Nancy Lake
State Recreation Area, are reserved from all uses
incompatible with their primary function as public recreation
land, and are assigned to the department for control,
development, and maintenance.
See also ch. 61, 2, SLA 1966.
4 AS 41.21.455(a).
5 AS 41.21.460 states: "The commissioner shall designate by regulation
incompatible uses within the boundaries of the Nancy Lake State Recreation Area in
accordance with the requirements of AS 41.21.450, and those incompatible uses
designated shall be prohibited or restricted, as provided by regulation."
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trail known as the Butterfly Lake Trail. The Butterfly Lake Trail is the only practical
way to travel via land to certain areas of remote private property outside the Park.
The Matanuska-Susitna Borough plat denotes these private properties as
having only fly-in access. The plat's designation of fly-in-only access was a condition
of its approval by the borough's planning board, and some landowners specifically
purchased land there because they valued a remote homestead with limited access.
However, more recently, the owners of some of these properties have placed their
properties for sale and are advertising them as having ATV access; a few of the newer
landowners may have bought their land believing there was motorized access.
In the 1960s, motorized use of the Butterfly Lake Trail was limited to the
winter when the wetlands were frozen; tracked vehicles driving over the snowpack
caused little damage to the trail. At that time, ATVs were not yet powerful enough to
traverse the muskeg in non-winter months. However, ATVs evolved with greater
engine power and capabilities in the 1970s and thereafter, becoming more popular, and
individuals owning fly-in-only property outside the Park started illegally using ATVs on
the trail for summer access to their land. The ATVs damaged the Park's wetlands,
causing the trail to become nearly unusable for recreational hikers. The number of ATV
permits that the Park issued during this time is unclear. In 1973 the Park granted at least
one permit to a nearby property owner with unusual circumstances to use the trail for
motorized access to his property.6 The Park was unable to find documentation of any
other permits from this time period, though it alleges other permits were issued. In
contrast, former Park Superintendent Dennis Heikes stated that there was no legal
6 This 1973 permit specifically stated that it was a "temporary measure" and
that it was "revocable at any time."
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motorized use of the Butterfly Lake Trail in 1983 when the Park adopted its Management
Plan and that no such use was contemplated.
The 1983 Management Plan is still in effect, and it explains that "[t]he Lynx
Lake road provides private access to authorized users who lived within and beyond
NLSRA and were using the road for access to their property at the time of the recreation
area's establishment in 1966." The Management Plan further provides that "[u]se of the
unimproved pioneer road by the landowners will be allowed to continue on a permit
basis. . . . Entry and use is controlled by the Division of Parks." At the time of the
Management Plan's creation, the Park had not intended to permit summer ATV use
beyond Lynx Lake.
Throughout the 1980s, park rangers ticketed some ATV users near
Butterfly Lake, but this did not stop the abuse, and by 2000 ATV users had significantly
damaged the Butterfly Lake Trail. They had gouged out sections of black mud over two
feet deep along the trail. The mud eventually became impassible even to ATVs, so the
ATV users repeatedly widened the trail to go around the muck. The widened trail
sections ranged from 32 to 73 feet in breadth. This rerouting increased the damage to
the surrounding plant life, and the wetlands section of the trail suffered nearly continuous
damage, including denuded plants, crushed grass and succulents, and destroyed
vegetative mats and root structures.
B. Recent ATV Permitting
In July 2000 the Park superintendent wrote a letter to nearby property
owners regarding the ATV problem. The letter stated that "no summer off-road
motorized use [would be] allowed" because the terrain "is too wet to support this type
of use. . . . The swampy areas along the trail cannot sustain the traffic they have received
in recent years. As a result, the vegetative root mat has been destroyed and cannot
recover due to the repeated damage by motorized vehicles in the summer." The letter
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declared that the superintendent was "revoking any outstanding permits. No further
permits for this activity will be issued for the foreseeable future. This action is being
taken to prevent further resource damage."
In September 2000 Park representatives met with several property owners
about the ATV damage to the trail. The property owners wanted to upgrade the trail so
that it could support ATV use, but they did not want the Park to permit the general public
to use ATVs on the trail because they did not want the public to be able to reach their
private property. In 2002 the Park agreed to the property owners' request and allowed
them to use private funds to upgrade and maintain the trail. Also, according to Dennis
Heikes, the then-superintendent of the Park, "some Valley legislators were supportive
of the private property owners and this threatened to become a 'right of access' issue that
could have had budget and regulatory impacts to the division."
Since this meeting, the Park has allowed nearby landowners, and only
nearby landowners, to use ATVs on the trail under "special park use" permits. The
landowners may not use the trail for recreation, and they must "upgrade the trail at their
own expense to a standard that would not degrade park resources." The first page of
each permit states that "the State reserves emergency closure rights for just cause." The
"General Stipulations" section of each permit reiterates that "[i]t is understood and
agreed that this permit may be revoked for cause at any time at the discretion of the
director or his/her designee without compensation to the permittee or liability to the
state." The permits expire each December, and the Park reissues them each spring. No
property owner has ever been turned down for a permit, nor has a permit ever been
revoked since the Park began issuing the special use permits, apart from the
superintendent's 2000 letter, which was quickly countermanded.
The original homesteads along Butterfly Lake have been subdivided into
over 200 lots, and the number of landowners receiving ATV permits has steadily
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increased. Despite the agreement between the property owners and the Park that the
property owners would upgrade the trail so that the ATV use would not damage it, the
trail continues to suffer harm. By 2006 some of the trail's wetter areas had turned into
"mud bogs with all vegetation destroyed." By 2008 water-filled ATV tracks lined the
trail, which was only traversable "by staying up on the high dry sides" and by "dry land
hopping."
Also, in reliance on their ATV access, landowners began to store barges at
the north end of Butterfly Lake, within Park boundaries, to freight ATVs across the lake.
The barges are stored on Park property year round, and the permittees have cleared
landing areas. Though the creation of landing areas and the storage of barges on park
property are also illegal,7 the Park has issued special use permits to private landowners
(only) for this use as well.
C. Proceedings
In February 2011 SOP sued to enjoin the Park from issuing permits for
ATV use within Nancy Lake. SOP moved for summary judgment and the Park filed a
cross-motion for summary judgment. The superior court denied SOP's motion for
summary judgment and granted the Park's cross-motion. The court concluded that
"there is nothing in the statutes or regulations that justifies court intervention and
invalidation of the permits." While it admitted that SOP's concerns "are certainly
legitimate," the court found that "these concerns arise under fair interpretations of duly
adopted statutes and regulation." The court advised SOP "to address their concerns in
the new management plan or within the rulemaking procedures."
SOP appeals. On appeal, it argues that: (1) the permits constitute disposals
of state park land in violation of Alaska law; (2) the permits violate the Park's governing
7 11 Alaska Administrative Code (AAC) 12.140 (1985); 11 AAC 12.235.
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statutes and thus are illegal; (3) the Park superintendent's new findings in support of the
8
permits were retroactively adopted and "are a sham"; (4) the Park's regulations grant
impermissibly broad discretion to the Park superintendent; (5) the permits actually create
a regulation, which is impermissible because the regulation was not adopted in
accordance with the Administrative Procedure Act; and (6) "issuance of the permits
violates public policy by circumventing the constitutional restrictions on dispositions of
state land."
III. STANDARD OF REVIEW
"We review a grant of summary judgment de novo."9 We apply our
independent judgment to constitutional questions.10 Whether a permit creates a
"disposal" of state land is a question of law.11 In this case, whether an easement exists
8 To issue permits under 11 AAC 18.010, the Park is required to make
explicit findings that: "(1) park facilities and natural and cultural resources will not be
adversely affected; (2) the state park is protected from pollution; (3) public use values
of the state park will be maintained and protected; (4) the public safety, health, and
welfare will not be adversely affected." However, for years the Park issued the contested
ATV special use permits without making the required findings. SOP argued in the
superior court that the permits were illegal because the Park had not made the required
findings. After SOP advanced this argument, the Park quickly retroactively adopted
findings. On appeal SOP argues that the new findings are a sham.
9 Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp. , 189 P.3d 1032,
1036 (Alaska 2008).
10 State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc.,
28 P.3d 904, 908 (Alaska 2001).
11 Laverty v. Alaska R.R. Corp. , 13, P.3d 725, 731 (Alaska 2000).
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is a question of law.12 "We review questions of law de novo and adopt the rule of law
most persuasive in light of precedent, reason, and policy."13
IV. DISCUSSION
A. A Non-Revocable Permit Is An Easement.
Article VIII, 7 of the Alaska Constitution provides that "[t]he legislature
may provide for the acquisition of sites, objects, and areas of natural beauty or of
historic, cultural, recreational, or scientific value. It may reserve them from the public
domain and provide for their administration and preservation for the use, enjoyment, and
welfare of the people." This provision, allowing the legislature to reserve recreational
lands for public use, means that those lands cannot be conveyed by the executive branch
for private use.14 In addition, Article VIII, 10 provides that "[n]o disposals or leases of
state lands, or interests therein, shall be made without prior public notice and other
safeguards of the public interest as may be prescribed by law." The grant of an easement
is a conveyance or disposal of an interest in land within the meaning of these provisions,
but the transfer of a license or permit generally is not.15
12 See Williams v. Fagnani, 175 P.3d 38, 40 (Alaska 2007); see also Hansen
v. Davis, 220 P.3d 911, 915 (Alaska 2009).
13 Williams, 175 P.3d at 40.
14 See Minutes of the Alaska Constitutional Convention, January 17, 1956,
Comments of Delegate Riley: "Section 8 reflects some delegate proposals whereby
particular areas of sites or objects may be set aside apart from the disposable public
domain for their historic, recreational, or cultural interest to the people." (Emphasis
added.)
15 See Laverty 13 P.3d at 736 & n.54.
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Both parties agree that if the Park grants a private easement over state park
land, that easement is a disposal that would violate these constitutional provisions.16
However, they disagree over whether the ATV permits constitute easements. SOP
argues that the plain language of the ATV permits makes them easements, not licenses,
and thus disposals of park land.17 The Park argues that the ATV permits create only a
license, not an easement, for the permit holders to use the Butterfly Lake Trail. We agree
with SOP and conclude that the special park use permits create an easement through the
plain language of their text.
Though licenses and easements share many characteristics, there are
fundamental differences. According to the First Restatement of Property, "[a]n easement
is an interest in land in the possession of another which . . . is not subject to the will of
the possessor of the land."18 The Restatement explains:
A license resembles an easement in that it authorizes a use of
land in the possession of another. A license, however, always
16 See N. Alaska Envtl. Ctr. v. State, Dep't of Natural Res., 2 P.3d 629, 637
(Alaska 2000) (holding that a right-of-way permit with the characteristics of an easement
is considered a disposal).
17 The Park contends that SOP waived this argument (that the text of the
permits makes them easements) by failing to raise it in the superior court. However,
SOP did argue to the superior court that "the permits are, in effect, a private access
easement through a state park for the benefit of private property outside the park." Even
if this argument was not one of the primary arguments, we will consider new arguments
as long as they "do not depend on new facts and are sufficiently related to a theory
argued below such that they could have been gleaned from the pleadings." Palmer v.
Municipality of Anchorage, Police and Fire Ret. Bd. , 65 P.3d 832, 838 n.16 (Alaska
2003). SOP's easement argument fits within this exception because the theory that the
language on the permits make them easements may be gleaned from SOP's argument
that "[t]he permits are, in effect, a private access easement."
18 RESTATEMENT (FIRST) OF PROPERTY 450 (1944).
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lacks one or more of the requirements essential to the creation
of an easement. It may be no more than a license . . . because
it was in terms created to endure only at the will of the
licensor.[19]
The Restatement's commentary further fleshes out this distinction, noting that:
[I]nterests in land which entitle the owner thereof to the use
of land in the possession of another, but which are subject to
the will of the possessor, have legal attributes which are so
different in their nature and extent from those of easements
that such interests, though they may in many respects
resemble easements, are given a different name and treated in
a different category. Such interests are called licenses . . . .[20]
The requirement that an easement cannot be terminated at the will of the possessor of the
servient estate is "the most important characteristic that distinguishes an easement from
a license."21 "The title of an instrument is not controlling in determining whether the
right conferred is a license or an easement; rather, the intent of the parties will be the
determining factor."22
The Third Restatement of Property's commentary further confirms that
"[i]rrevocable licenses . . . are easements. The difference between a license to enter and
use land and an easement to make the same use is that the license is revocable at will by
19 Id. 512 (internal citations omitted).
20 Id. 450 cmt. i.
21 4 RICHARD R. POWELL & PATRICK J. ROHAN , POWELL ON REAL PROPERTY
34.02[1] n.5 (Michael Allan Wolf, ed., 2013) (citing RESTATEMENT (FIRST) OF
PROPERTY 450 cmt. i and 512 (1944)); see also JON W. BRUCE & JAMES W. ELY , JR .,
THE LAW OF EASEMENTS AND LICENSES IN LAND , 11:1 (2013) ("The most significant
distinction is that an easement constitutes a nonpossessory interest in land and is not
subject to revocation at will.").
22 25 AM . JUR . 2d Easements and Licenses 2 (2004).
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the owner of the burdened land."23 Therefore, "[i]f the license becomes irrevocable, or
revocable only on the occurrence of a condition, it is indistinguishable from an
easement."24
B. The Special Park Use Permits Are Not Revocable At Will; Therefore,
The Interests They Grant Are Easements.
The plain text of the ATV permits makes clear they are revocable only for
cause. The first page of each permit states that "the State reserves emergency closure
rights for just cause." Under the "General Stipulations" section, each permit again
informs its holders that "[i]t is understood and agreed that this permit may be revoked
for cause at any time at the discretion of the director or his/her designee without
compensation to the permittee or liability to the state." The permits list several
conditions that constitute "for cause," including if the Park amends its off-road vehicle
policy or if the permittee fails to fulfill any of the permit's terms. Nowhere do the
permits state that the Park can terminate them at will.25 Thus, the permits are clearly
revocable only for cause.26 This compels the conclusion that the interests granted by the
permits are easements, not licenses.
23 RESTATEMENT (THIRD) OF PROPERTY 1.2 cmt. g (2000).
24 Id.
25 See Tetlin Native Corp. v. State, 759 P.2d 528, 533 (Alaska 1988) (stating
that "because the easements are property interests which can only be cancelled for cause,
holders of such interests are entitled to due process before those interests are
extinguished").
26 This conclusion is further supported by Superintendent Biessel's assurance
to the property owners that they "would be in a status quo manner until the management
plan revision had been completed."
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C. No Other Considerations Prevent The Permits From Being Easements.
The fact that the permits expire after half a year does not prevent them from
being easements, as easements can be created for a limited duration.27 As well,
easements can be created for seasonal use only,28 so the Park's practice of restricting the
permits to the summertime does not stop them from being easements.
The use authorized by the permits is essentially a right-of-way. It is well
established that "[a] right-of-way is an easement to pass or cross the lands of another."29
"Rights-of-way are easements of a certain type, or legally recognized property interests,
of which the owner likewise is entitled to reasonable use."30
In further support of our conclusion, we note that these permits have other
characteristics more commonly found with easements than with licenses. For instance,
licenses are normally in gross, or assigned to a given person: "A license does not pass
with the title to the property, but is only binding between the parties, expiring upon the
27 28 C.J.S. Easements 138 (2008). "Where the parties have clearly
manifested an intention to limit the duration of an easement, the courts will enforce the
limitation. Where the parties have agreed that the easement shall continue until
terminated in a certain manner, the easement ordinarily will continue until so
terminated." Id. at 139.
28 See Price v. Eastham , 75 P.3d 1051, 1058 (Alaska 2003) (noting that
"courts have limited use of . . . easements to specific times of the year").
29 28 C.J.S. Easements 10; Cowan v. Yeisley, 255 P.3d 966, 972 (Alaska
2011) (noting that "[t]he general rule is that the term 'right of way' is synonymous with
'easement' " (quoting Dillingham Commercial Co., Inc. v. City of Dillingham , 705 P.2d
410, 415 (Alaska 1985))).
30 25 AM . JUR . 2d Easements and Licenses 1 (2004).
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death of either party."31 In contrast, easements frequently do transfer with the title to the
property.32 Here, the Park issues one ATV permit per property, and multiple people
living on the same property can operate multiple ATVs under that permit. The Park only
issues permits to private property owners near Butterfly Lake, meaning that if an owner
sells his property, he loses the right to have a permit. The Park has never turned down
an application for a permit from a nearby property owner, rather it "issue[s] . . . permits
fairly and uniformly to property [owners]." In practice, it appears that owning private
property on or near Butterfly Lake entitles the property owner to a permit, and that
ownership is the sole factor controlling who has a right to obtain a permit to use an ATV
on the Butterfly Lake Trail. For these reasons, the permits function similarly to
easements appurtenant. Given these facts, we infer the parties intended that private land
owners will be granted a seasonal right of ATV use that runs with the property that no
one else is entitled to receive. We conclude the rights of use granted by the Park are
easements, and therefore they are illegal.33
31 Id. 120.
32 Id. 8 (stating that "[a]n 'easement appurtenant' is a right to use a certain
parcel, the servient estate, for the benefit of another parcel, the dominant estate. Grantors
create easements appurtenant to benefit a dominant estate, and such easements run with
the land"). (Internal footnotes omitted.)
33 We do not reach the Northern Alaska Environmental Center v. State,
Department of Natural Resources , 2 P.3d 629 (Alaska 2000) analysis because, unlike the
permits in Northern Alaska which claimed to be revocable at will, the ATV permits
issued by the Park openly state they are revocable only for cause. Id. at 633. Thus we
do not need to consider whether they are functionally irrevocable. However, we note
that were the Northern Alaska test to be applied, these permits might well be found to be
functionally irrevocable.
Northern Alaska establishes a two-prong test for functional revocability:
(continued...)
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V. CONCLUSION
Because Nancy Lake State Recreation Area special park use permits that
are revocable only for cause convey easements, not licenses, and because the granting
of easements is an impermissible disposal of state park land, we REVERSE the superior
court's grant of summary judgment to the Park and its denial of summary judgment to
SOP and REMAND for further proceedings consistent with this opinion.34
33(...continued)
(1) "likelihood of revocation" and (2) "the long-term and harmful character of the
environmental impact." Id. at 638. Given that the Park has been issuing the ATV
permits for over a decade and has never revoked a permit despite the adverse effects of
the ATVs on the trail, the permits are unlikely to be revoked and thus fail the first part
of the test. Furthermore, the ATV use is having "long-term and harmful" consequences
for the environment, and thus the permits also fail the second prong of the test. The
ATVs have caused "degradation of the trail," and the damage varies from "denuding the
woody plants . . . of their leaves and crushing the grasses and other succulents" to "the
destruction of the vegetative mat and root structures." "Some of the worst areas have
knee-deep and deeper black mud," and ATV riders have repeatedly widened the trail in
these places to avoid the mud, broadening some sections until they reached 73 feet in
width. A recreationalist observed that "[s]ome of the wet areas on the trail have been
converted to mud bogs, with all vegetation destroyed." When the property owners
repaired the trail in an effort to make it substantial enough for ATVs, they cut entirely
new sections of trail out of the forest in order to bypass the most heavily damaged older
sections, which had become impassable. Now the new sections of trail are themselves
suffering degradation from the ATVs. Biessel admitted that signs of the environmental
damage from the ATVs will probably be visible for "many, many years." Thus, these
ATV permits might well be found to fail both prongs of the Northern Alaska analysis for
functional revocability.
34 In light of this resolution of the appeal, we do not reach the other arguments
raised by SOP.
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