News

War of roads’

early Klutina campers

Early day campers along the Klutina River/State of Alaska photo

Public hearings on a plan to settle a lawsuit over public access to a remote road in East Central Alaska were a sham, says a vice-president of Safari Club International.

 

Communications with the state Department of Law since the settlement with Ahtna Inc. were inked make it clear the public hearings were just a way for the state to make it appear it was listening to Alaskans, Eddie Grasser said this week.

In talking to state attorneys, he said, their main concern as to a limited-use plan for the Klutina Road appears to focus on whether Safari Club or the Alaska Outdoor Council will sue. Both are contemplating that action, but concede it is extremely costly.

Meanwhile, leaders of the state Senate Majority have objected to the settlement, arguing it could end up costing the cash-starved state “hundreds of thousands and perhaps millions of dollars.”

The costs are associated with road improvements and parking lots promised Ahtna, an Alaska Native corporation formed by the Alaska Native Claims Settlement Act (ANCSA). The act settled aboriginal claims to the territory of Alaska by granting 13 regional corporations nearly $1 billion and agreeing the 12 corporations resident in the 49th state could select 44 million acres of land.

Along with selecting large tracts of land along the Copper River, Ahtna selected a lot of land along the Klutina River, a popular fishing stream, that contained a historic trail, later a road, that gold-rush miners used to reach the Interior of the state.

There have been issues almost ever since.

Trespassers

Ahtna recognizes a federal easement along the Klutina Road, but considers as trespassers the non-shareholders of the corporation who cross Ahtna lands to get from the road to the river, along with those who decide to camp along the road. The state has in the past held a different view.

Miners, it argued, were camping along the road long ago and hiked from there down to the river to build boats to float out to the Copper River. Camping is thus a historic use of the road right-of-way, and such public-use should be protected, the state argued.

Ahtna and the state were headed to court over this and other issues that might seem small to many, but are big to the corporation and public-access advocates in Alaska where private lands along roads and rivers regularly complicate public access to hundreds of thousands of acres of public land.

As with so many issues in the modern 49th state, a simple lack of trust has complicated any sort of agreement between the parties. In the past, Ahtna didn’t trust the state would treat its interests fairly, and many in the state didn’t and don’t trust Ahtna, which convinced the Alaska Federation of Natives to pass a resolution arguing any state road right of way should be limited to “transportation purposes only (i.e., no rest areas, parking lots, overnight camping, or recreation sites).” 

That was widely viewed as part of an Ahtna effort to cut off whatever access it could to Klutina Lake and the river that flows east from there to a pass under bridge on the Richardson Highway before joining the Copper River.

The AFN resolution notes that what angered Ahtna was a 2007 move by the state to widen “several miles of the road to 100 feet in width, clearing adjacent Ahtna land, cutting trees in the process and removing one of Ahtna’s permit fee stations as an unauthorized encroachment on its claimed right-of-way.”

Ahtna set up fee stations to collect for permits for parking or camping on Ahtna land. The corporation charges fees that range from $15 for parking and fishing up to $1,500 for the use of Ahtna land by anyone who draws a state permit to hunt bison in the Copper Center area. 

Fishing and hunting have led to a lot of hard feelings between corporation shareholders along the road system and other Alaskans. Ahtna shareholders living in the Copper River basin, understandably feel invaded by the annual outpourings of fishermen and hunters from the Anchorage and Fairbanks metropolitan areas who flood the Ahtna homeland.

Ahtna considers its restrictions on road use perfectly reasonable.

The settlement “would allow the public access to Klutina River, Klutina Lake and nearby state land that is accessed over Ahtna’s property. Ahtna permits recreational use on Ahtna lands for fees no higher than what is charged by the State of Alaska for the same use on state lands,”  Ahtna President Michele Anderson said in a press release as the settlement neared in April.

But many of the people who live in what passes for “urban” Alaska are offended by the fact that Ahtna charges fees for what has historically been a public right-of-way, and bans non-shareholders from moose hunting on its lands while at the same time demanding a subsistence priority for Glennallen-area residents to permit longer hunting seasons and community permits for hunting moose and caribou on public lands.

The compromise

Attorney General Jahna Lindemuth, who prior to her appointment had represented two Native regional corporations other than Ahtna, stepped into this toxic environment to try to negotiate a settlement to avoid litigation between the state and Ahtna that began after the state land clearing in 2007.

Ahtna the next year sued the state for trespass. The state countered that an old federal statute – R.S. 2477 – designed to protect historic travel routes established the Klutina Road as a public right-of-way.

A mediator called in to the case at one point couldn’t settle the dispute. But, Lindemuth said in July 17 press release, that “parties continued discussions and agreed upon a settlement framework.”

Lindemuth’s past associations immediately raised suspicions among some, and those suspicisions have not faded. Grasser; Rod Arno, the director of the Alaska Outdoor Council, and others believe Lindemuth negotiated a settlement to favor Ahtna over average Alaskans, including any of the members of the 11 other Native regional corporations that might use the Klutina Road.

Grasser called the settlement a “scam,” and the public hearings on it “a dog and pony show. She (Lindemuth) made it pretty clear to me that they don’t need to have public meetings…(because) it’s been a done deal since January.”

Lindemuth contends the “agreement is a good-faith effort to balance private ownership and public access needs.

“While every settlement involves give and take, both sides were able to address the issues most important to them in this proposed settlement, including maintaining reasonable public access, and avoid the uncertainty of a long trial and likely appeal. The state will go to court when it makes sense, but we believe a settlement in this case provides a better opportunity to protect access to state lands and waters.”

Lindemuth sees no problem in the state settling for a 100-foot-wide federal easement across the Klutina land, but giving up overnight parking along the road, general public use of the right-of-way for camping or berry picking, and limiting public trailered-boat launching along the route to two launch sites within the existing right-of-way.

“Camping and overnight parking opportunities (would be) provided by Ahtna for a reasonable fee outside of the Klutina Lake Road right-of-way,” she argues, although no one has defined reasonable.

Previous state attorneys general, Ahtna said in July press release,  claimed “an obscure 1866 law called Revised Statute (R.S.) 2477, which was repealed in 1976, entitled the state to a property interest in the road.  The state asserted that some use in the early Twentieth Century and some more in the 1960s gave the public greater rights on Ahtna’s land than over 11,000 years of use and occupancy by the Ahtna Athabascan people.”

Others see those same facts in a distinctly different light. The issue isn’t greater use or lesser use over time, but public use now by everyone. Arno agrees on the likelihood of Ahtna use prior to recorded history, but has an entirely different interpretation of what that uses means.

“Did those folks stop to rest? Did they camp, gather firewood, eat berries, harvest a grouse?” he asked in an email. “If so, that’s part of the historical use of R.S. 2477. (Ahnta) was making the point that the trail was Ahtna’s first. Well, so what? Didn’t ANCSA extinguish any right to prior aboriginal uses?

“If not, tell us now. If you cannot pick berries, wild plants or gather firewood (in the negotiated road right-of-way), why not say that in the settlement? Why not say that public can no longer trap marten or shoot grouse. It’s disingenuous for the settlement to have left that part out” of the public disclosure of what the settlement means.

“There is shortage of the deception from the (Walker) administration and their departments regarding their perception of what the settlement actually says and does.”

RS2477

Alaska’s spiderweb of R.S.  2477 corridors

Make law

Given that the Klutina Road is but one of dozens of R.S. 2477 routes crossing Native lands in Alaska, some have argued the state has an obligation to take the issue to court and get a legal ruling that defines the parameters on R.S. 2477 once and for all.

The Klutina settlement sets no legal precedent, but it clearly establishes a political precedent.

If Ahtna can successfully negotiate terms establishing limits on the use of historic road corridors, why wouldn’t every other Native corporation try to do the same?

Tina Cunning, the retired co-chair of the state’s public access team, said that’s the big problem with the settlement. She doesn’t like what is happening and points the finger at Gov. Bill Walker as the responsible party.

“All of the knowledgeable staff in the Department of Natural Resources, Department of Transportation and Departments of Fish and Game, and Law were removed from the case when (Lindemuth) was appointed and have been kept out of it,” she said. “Obviously, it was a political decision to settle with Ahtna for less uses than court has granted right-of-ways elsewhere.”

CORRECTION: This story was corrected on Aug. 26, 2017 to reflect the two boat launches which remain available for public use.

 

 

 

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4 replies »

  1. Stick with it Craig. I have been following the process closely and, in my opinion, it is a scam. The Klutina RS 2477 is probably one of the most historical trails in Alaska. Once the precedent is established, rest assured that other Corporations will all be lining up, as well, to assert claims. Another problem with the settlement is that the state is entering into a land exchange with Ahtna on a completely unrelated parcel at the Gulkana boat launch. There are procedures to follow to do exchanges, including fair market value estimates, etc. But, by bundling the land exchange into the Klutina settlement, those requirements are avoided. This whole thing has been done under wraps and behind closed doors. The hearings are nothing more than designed to make the kids happy in my opinion. The overarching question, in my mind, is whether or not the state even has the legal authority to give away an established RS 2477. That is the elephant in the room.

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  2. Craig, in your article you mention that trailered boat launching won’t be permitted until the State builds boat launches. That’s incorrect. The three areas identified in the agreement, Mile 14, Airstrip and Boys Camp, already have areas where boats are launched from trailers. Those are and will continue to be available. (Boys Camp is currently not in the 100′ ROW, so Ahtna can charge fees.)

    I would also note that Judge Guidi’s court order in this case would restrict the road to only ingress and egress (no parking, camping, etc.). This is still subject to appeal but represents the major risk in the case going forward that could impact all RS 2477s.

    Thanks! Just wanted to make sure you knew.

    Cori Mills

    Sent from my iPhone

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    • thanks. i didn’t get into Guidi’s decision because it’s far from final, does need to be appealed, and will be out there one way or another no matter what. it’s already on the record, and the state is going to need to deal with it. it’s certainly a risk. i fixed the other.

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  3. Political solutions always trump any other solution in our system. Eventually, our government attorneys cave in because they want to get it off their desk.

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