State and Ahtna Agree to Right-of-Way

ANCHORAGE—Attorney General Kevin G. Clarkson announced that the State has settled the longstanding dispute over Klutina Lake Road (officially named Brenwick-Craig Road). The parties have agreed that there is a 100-foot right-of-way along the length of the road, starting at the New Richardson Highway and extending to the end of the road at Klutina Lake.

“This settlement is a long time coming, and I appreciate the hard work of our attorneys and Ahtna’s attorneys in reaching an agreement,” said Attorney General Clarkson. “This settlement recognizes the State’s right-of-way and protects the public’s access to Klutina River and Klutina Lake. It also allows both parties to appeal the rulings from the judge that they disagree with. For the State, this means we will have the Alaska Supreme Court determine what the scope of use is—namely can the public camp, launch boats, and park within the right-of-way?”

The settlement includes the following terms:

–       100-foot right-of-way established under federal Revised Statute 2477 along the road in its current location from Copper Center to Klutina Lake (50 feet on each side of the centerline of the road);

–       100-foot rights-of-way (extending from the road to the ordinary high water mark of Klutina River) at the Airstrip and Boys’ Camp to ensure public access to the river;

–       Ahtna, Inc.’s trespass and nuisance claims will be dismissed with prejudice;

–       The State’s claim for a right-of-way along the north shore of the lake will be dismissed without prejudice (meaning the State’s claim to this right-of-way is preserved and can be decided in the future);

–       The appeal rights of both parties are preserved (including issues regarding the scope of use, width, and aboriginal title); and

–       Each side will bear its own costs and fees.

This case began in 2008 when Ahtna sued the State alleging trespass. The State responded by asserting the existence of a State owned R.S. 2477 right-of-way over which the public has a right to travel, and that, like other State-owned rights-of-way, the public may camp, park, and launch boats from within the right-of-way. Revised Statute 2477 is the old mining law that established public rights-of-way by public use or a State’s acceptance of the right-of-way, over certain federal or former federal lands.

Under the settlement, the parties agree that the State has a right-of-way over the Klutina Lake Road, but the parties can also appeal certain points of law that had been determined by the superior court. The State will appeal Judge Guidi’s ruling that restricted the use of the road to only ingress and egress; the State believes overnight camping and parking are also lawful uses by the public. Until the appeal is complete, these questions remain unresolved, and the public should be cautious in how they use the road until the Alaska Supreme Court has ruled. The public should be aware that unless and until the appeal is resolved in favor of the State, Ahtna’s land use policy requires a land use permit for activities on Ahtna lands, including camping or parking, unless in an emergency. Other questions that may be appealed also include whether Ahtna’s claim of aboriginal title prevented the creation of an R.S. 2477 right-of-way.