Ahtna, Inc. v. State of Alaska (3PA-08-1600)
Aka Klutina Lake Road, RS 2477
This purpose of this briefing paper is to introduce and explain the problem of RS 2477
rights-of-ways on ANCSA land, present the Klutina Lake Road controversy as a case study,
and propose a legislative solution that would protect ANCSA property from State of Alaska
overreach.
The RS 2477 Problem
RS 2477 is an obscure Civil War era mining statute that granted rights-of-way (“ROWs”)
across unreserved federal lands throughout the United States, including Alaska. The law
remained in effect until Congress repealed it in 1976. In Alaska, however, the opportunity to
establish new RS 2477 ROWs generally ended in December 1968, when the government
issued PLO 4582, known as the “land freeze,” to prepare for settlement of Alaska Native
land claims. Although no new ROWs could be established after federal land was reserved or
appropriated, or after the law as repealed, these actions did not extinguish pre-existing RS
2477 rights.
RS 2477 grants are self-executing, meaning a ROW automatically comes into existence if a
public trail, road or highway was used or constructed across public land in accordance with
state law. RS 2477 ROWs either exist or not as a matter of historic fact. They do not
require any formal administrative procedures—no application or request is needed and no
official act of acknowledgment or acceptance is required. These ROWs are often referred to
as “ghost roads” because they arise from historic use of a trail and may exist as a legal matter
although there is no official record of acceptance or even though the trail is no longer visible
or in public use. The only way to confirm the legal existence of an RS 2477 ROW is through
a quiet title action in state or federal court.
There are two ways to establish an RS 2477 ROW in Alaska. The first is by way of public
use over a period of time and under such conditions to demonstrate that the grant has been
accepted. While the route need not be significantly developed—even a rudimentary trail can
qualify—the public use must be relatively frequent. Also, the trail itself must be necessary or
convenient to the public such that it has a beginning and ending destination that is useful to
the public. The other way to accept an RS 2477 ROW is for the State to take an affirmative
action that clearly manifests the intent to accept the grant—such as legislation adopting a
road or the actual construction of a road. Under any method of acceptance, the subject
lands must be, at the time of acceptance, public in character and unreserved in status.
“Unreserved” simply means that the land was not set aside for a specific purpose, such as
for a national park or wildlife refuge by way of example.
The Alaska legislature has funded an aggressive campaign to research, identify, and assert
title to RS 2477 ROWs throughout the state. These ROWs crisscross lands owned by the
federal government, private individuals, and Alaska Native Corporations (“ANC”). The
apparent purpose of the State’s RS 2477 campaign is to preserve access to public lands and
resources for development, hunting, fishing, and recreation. The State has a full-time
attorney and staff dedicated to the project and has, at last count, claimed 669 distinct RS
2477 trails across the state. Some of these ROWs are well over 100 miles in length and
many cross native allotments and land owned by ANCs. The attached map shows the
State’s claimed RS 2477 ROWs in relation to lands owned or selected by ANCs.
RS 2477 ROWs are a significant burden on the underlying landowner. The State claims that,
in general, RS 2477 ROWS are a 100 feet wide and can be relocated as necessary if natural
conditions make the route impassable or unsafe. The State also claims the right to enter
property to perform maintenance and repair work such as paving, leveling, grading,
installation of culverts and rip rap, maintenance of drainage ditches, clearing vegetation, and
realigning the road. The State contends that the public has extensive use rights within the
ROW that include not only transportation, but also rest stops, pullouts, boat launches, picnic
areas, fishing access and campgrounds. Particularly troubling is that even if a trail is not
presently visible or in use, the State can, without warning, assert title to the ROW and, if
proven, establish a 100 foot thoroughfare through the property with all the attendant uses
and maintenance activities described above. The underlying landowner has very little power
to interfere with the State’s conduct once the RS 2477 ROW is established.
The issue of RS 2477 ROWs on ANCSA lands is particularly problematic because the lands
selected by ANCs are often traditional tribal lands that are important to the culture, heritage
and economic development of the corporation and its shareholders. The State’s
management of an RS 2477 ROW is routinely inconsistent with the landowner’s stewardship
or traditional uses of the underlying land. Establishment of RS 2477 ROWs often leads to
increased public use, additional pressure on the surrounding resources, and trespass to
ANCSA lands. Compounding the problem is that the Alaska State Troopers have limited
resources and generally will not invest the time and effort into enforcing trespass laws on
ANCSA property. The State’s aggressive approach to opening up ANCSA land to public
use and its general refusal to enforce trespass laws on ANCSA property have created an
untenable situation for ANC landowners.
2
Ahtna’s Klutina Lake Road Experience
For the last five years, Ahtna has been engaged in a legal dispute with the State over the
existence of an RS 2477 ROW to the Klutina Lake Road. The Road traverses 26 miles of
undeveloped Ahtna land from the Richardson Highway to the outlet of Klutina Lake. Ahtna
recognizes the Road as a 60-foot wide 17(b) public easement reserved by the federal
government. The 17(b) easement is limited to point-to-point transportation and emergency
stopping. The State, however, contends that the Road is part of a much larger 100-foot wide
RS 2477 ROW that runs unimpeded from Copper Center to Valdez, some 103 miles in
length. The State further contends that the ROW includes numerous recreational amenities
that would open up public access to the Klutina River, including pullouts, boat launches,
campgrounds, picnic areas, fishing access sites and trails. The State also claims that it can
relocate the Road on Ahtna’s land in areas where erosion and sloughing have damaged the
route.
Ahtna, Inc. manages the land surrounding the Road in a way to preserve its traditional
character and maintain the integrity of the undeveloped landscape. If the State were to
prevail on its claim, the RS 2477 ROW would completely change the character and dynamic
of the area. Ahtna’s lands adjacent to the Road and the River would, against its will, be
opened up to extensive public access and use. The Klutina River would become a recreation
destination resulting in extensive public use that would rival that of the Kenai River and
Lake Louise.
Ahtna has made a good faith effort to settle the dispute with the State in order to preserve
the Klutina drainage, but each attempt has failed because the State refuses to place any
limitation on the expansive scope of its claimed RS 2477 ROW and associated recreational
amenities. Accordingly, the parties are preparing to litigate the case in state court with trial
expected sometime in 2015.
One of Ahtna’s central legal arguments against the RS 2477 ROW is that the land at issue
was never “public land” for purposes of accepting the grant. Whether an RS 2477 ROW has
been acquired must be determined by the conditions as they existed when action was taken
to acquire it. Thus, if the conditions were such that the lands were not public, then the RS
2477 grant was not in effect and there would be at that time no offer which the public could
accept. At the time the State claims to have accepted the ROW, the entire Klutina River
drainage was subject to a then-unextinguished claim of Indian title, based on historic use and
occupancy. Although ANCSA later extinguished that claim, at the time of the 1899 gold
3
rush and the construction of the Road in the 1960s, Ahtna claimed the land by original title
and so the Klutina drainage was not “public” in character. Ahtna has filed a motion for
summary judgment on this issue, which the court has stayed until certain other parties are
joined to the case. Ahtna intends to renew its motion in the coming months and would
appreciate the support of amicus briefing from other interested parties, particularly the AFN
and other ANC landowners.
A Legislative Solution for All ANCSA Lands
Ahtna’s situation on the Klutina River is by no means unique. The State has asserted RS
2477 claims across hundreds of miles of ANCSA land. Indeed, approximately 529 miles of
the State’s claimed RS 2477 ROWs overlap with existing 17(b) easements on lands owned by
ANCs. Ahtna has drafted legislation that would not only resolve the Klutina dispute, but
would also limit the scope of RS 2477 ROWs across all land owned by ANCs. This
legislation was introduced, in slightly compromised form, last session as Senate Bill
94/House Bill 194.
For RS 2477 ROWs established on lands conveyed to an ANC under ANCSA, the proposed
legislation would:
 Limit the scope of use of the ROW to transportation purposes only (i.e., no rest
areas, parking lots, overnight camping, or recreation sites);
 Limit the physical width of the ROW to the established usage of the route, but in no
event shall the width exceed 60 feet (i.e., if the route was a 3 feet wide walking trail, it
would stay three feet and would not in the future become a 20 foot wide road);
 Limit the State’s authority to maintain, repair and improve the ROW;
 Require consultation with the Native Corporation prior to engaging in anything other
than routine maintenance or improvement activities; and
 Require consultation with the Native Corporation prior to realigning damaged
segments of the ROW and requiring payment of just compensation to the landowner
for any additional acreage burdened by the realigned ROW.
The legislation would also specifically vacate the RS 2477 ROW along the Klutina Lake
Road, effectively ending Ahtna’s litigation with the State.
In essence, the proposed legislation would reduce the State’s RS 2477 ROWs to an interest
similar to that of a 17(b) easement. This would not only preserve Native control over its
own ANCSA land, but would also address the confusion resulting from overlapping RS
2477 ROWs and 17(b) easements.
4
We hope you will join Ahtna in support of this important legislation. For it to be successful,
the Native community will need to speak with one, unified voice in Juneau and collectively
stand up to the State’s improper land grabs and overreach that threaten the land rightfully
conveyed to Alaska Natives in exchange for settling their land claims. If you have any
questions or need further clarification, please do not hesitate to contact Michelle Anderson,
President of Ahtna, Inc., [email protected], (907) 822-8151, or Jana Turvey, VicePresident of Legal Affairs & General Counsel, [email protected], (907) 868-8230.
5