North of 60 Mining News - The mining newspaper for Alaska and Canada's North

In almost fifty years of having practiced law, it has consistently been my counsel to my clients to avoid litigation wherever possible, subject to a lengthy list of qualifications. Certain miscreants are entitled to a trial of their peers before lengthy incarceration or worse. Some bad actors simply don't understand the law. Occasionally, there are issues that require a referee in the personae of a judge. And then, there are matters of principle.

Principles are tricky things. Oftentimes, in matters of principle, the ultimate question is how much justice a complainant can afford. The issue becomes moot when someone is going against the federal government over a matter of principle, because the government gets to print money. The wicket is a tad stickier when the State government is involved because the hard-earned dollars of the affected taxpayers have to be voted on by politicians who are concerned about re-election by folks they actually have to live among.

Politics is where the plot thickens.

Take the case of the Klutina Lake Road which traverses 26 miles of undeveloped Ahtna land from the Richardson Highway to the outlet of Klutina Lake. The Klutina Lake Road is part of the access route pioneered by sourdoughs starting in 1898 headed from Valdez to Copper Center. By dint of that historic usage, the right-of-way belonged to the state, as of the moment of statehood, under the provisions of Revised Statute 2477. RS 2477 was repealed in 1976 with the passage of the Federal Land Management and Planning Act; however, that repealer did not extinguish valid existing rights. Title to the Klutina Lake Road was formally asserted by the state with the adoption of AS 19.30.400.

In 2001, a little over 250,000 acres of land were patented to Ahtna, Inc. under the Alaska Native Claims Settlement Act. This patent included a "17(b) easement" that corresponded to the Klutina Lake Road.

The relative rights of the state and Ahtna have been in contention ever since. In 2008, Ahtna filed a complaint for declaratory relief against the State of Alaska. In 2014, Ahtna unsuccessfully attempted to secure legislation to have the state relinquish its property rights under RS 2477. In January of this year, Ahtna and the state stipulated to a stay of the litigation pending a settlement.

This case illustrates an instance where principles and politics collide. Ahtna obviously wants exclusive right to the Klutina Lake area. The state owns those rights, and as a matter of law cannot relinquish them without either obtaining a reasonably comparable alternate right-of-way or the approval of the state legislature. Since there is no reasonably comparable alternate right-of-way, and since the legislature has declined to approve the relinquishment of the RS 2477 right of way, any settlement that satisfies Ahtna is unlikely to be legal.

Any such relinquishment would not be in the public interest, because it would foreclose the existing access to Klutina Lake to the general public. The state does not hold access routes, whether by road or by water, as a casual property interest. It holds such corridors in trust for the general public.

As such, the legal principles affecting Ahtna's private rights must be construed as subordinate to the higher interest of all the people of the state. In this case and for this reason, Ahtna's patent makes it clear that the conveyance from the United States to Ahtna is subject to valid existing rights. Further, the attorney general of Alaska has opined that §17(b) easements and RS 2477 rights of way may overlap and that neither supplants the other.

While it is easy enough to understand why the private landowner may not want public access to the lake within its holdings, what is somehow lost in the sauce is the recognition that the 600 odd RS 2477 rights of way that the state has asserted on behalf of the public comprise over 20,000 miles of trails and potential roads to otherwise inaccessible and remote areas of northern and western Alaska.

Alaska is a resource-rich state; our ability to exist depends upon the development of our resources. Our ability to harvest those resources depends upon access. If private landowners are able to thwart access along the RS 2477 rights of way that the state has asserted, our future is placed at risk.

As a matter of principle, this pending litigation must be pursued to a judicial precedent and not be settled prematurely.