‘RS 2477’ BARELY MENTIONED IN THE WALKER-AHTNA SETTLEMENT
The public meetings are in the rearview mirror. Comments are due in nine days.
The Walker Administration’s proposed settlement with Ahtna, Inc. regarding all Alaskans’ access to Klutina Lake and associated waters will become part of the Walker legacy — good or bad, depending on where you stand on the issue of a corporation’s control over access to the public’s lake.
About 40 people showed up for the Aug. 7 Fairbanks public meeting. They had questions, such as where are the exhibits? How can we comment on a land settlement when there is so little information?
What also became clear to Fairbanks participants was that the State and Ahtna have mixed two separate settlements into one.
And that the State Attorney General has gone to great lengths to not use the term RS 2477 anywhere in the settlement; RS 2477 — the public’s right to use historic trails and roads — is what the case is really about. There were questions about that.
SENATORS POST COMMENTS
Alaska Senate President Pete Kelly, Sen. Cathy Giessel (Senate Resources Committee Chair), and Sen. John Coghill (Senate Judiciary Committee Chair) weighed in last week with their concerns about Walker’s settlement, which could diminish access to fishing grounds.
Limiting access for some Alaskans preserves the resource for the shareholders of Ahtna, which is the corporation’s likely goal. Otherwise, it would not fight to restrict the right of way.
Because it’s a legal document, the proposed settlement creates a precedent, whether Attorney General Jahna Lindemuth admits it or not. That has implications for other public roads that were in place before Native lands were established under the Alaska Native Claims Settlement Act.
The senators, in their objection, tell Gov. Bill Walker, Lt. Gov. Byron Mallott, and Lindemuth that there are separate and distinct issues in the settlement — so distinct that there needs to be two separate settlements. The attorney general has blended at least two major and separate matters into one.
The first portion of the settlement focuses on the historic trails issue, also known as RS 2477, across Ahtna’s lands. While the settlement never uses the term RS 2477, that is the discussion. RS 2477 refers to “grandfathered in” historic pathways, trails, and roads the public is entitled to use.
Historically, the term “highway” included foot trails, pack trails, sled dog trails, crudely constructed wagon roads and other corridors of transportation. State law (AS 19.45.001(9)) includes roads, streets, trails, walks, bridges, tunnels, drainage structures and other similar or related structures or facilities.
The Federal Land Policy Management Act repealed RS 2477 in 1976, but all existing rights were protected, not only on federal land but state and privately held lands. There are more than 600 of these rights-of-way in statute, with the most prominent one being the Klutina Lake Road.
The second settlement, which is mixed in with the first, is a land exchange between Gulkana Village Council and the State.
The senators point out that the Gulkana Village Council and Ahtna are two separate entities, with different laws that apply to them, and different degrees of sovereign immunity. Gulkana Village Council is a federally recognized tribe. Ahtna is a Native corporation established through law.
“The state may be harmed at a future date if they fail to recognize that distinction,” the letter warns.
The senators also state that Ahtna needs to be held to specific deadlines for fulfilling its end of the obligations in the settlement, such as construction of parking areas for the public. Although the state has timeframes, Ahtna does not.
“Ahtna, unfortunately, historically, has exhibited difficult behavior on this issue in the past (putting up gates, aggressive litigation, issuing citations, delays, etc.). There needs to be accountability,” the senators propose.
The letter goes on to suggest that all Alaskans should have the ability to camp on the right-of-way until Ahtna completes construction of the campground. This would discourage Ahtna from dragging its feet.
“On paper, the state may pursue the agreed upon surveying, construction, etc. But in reality, because of financial constraints, those processes may take years. Meanwhile access to all Alaskans will be restricted, with other viable options being severely limited,” the senators write.
The letter also points out that there is no “true dollar amount” attached to the proposed settlement. The required funding could be hundreds of thousands, or even millions, but it is unknown.
This may lead to it being thrown out or unfunded, since the governor does not have the power to appropriate — that is a legislative authority. The governor may be putting the state on the hook for millions of dollars in costs at at a time the state is essentially broke.
The Gulkana cemetery issue is also a concern since it was not a part of the original dispute, and the senators pointed out that from a practical standpoint, the land exchange proposed would make it very difficult for vehicles with trailers to turn around, and that if there is future erosion of the access point, the public will be robbed of its access unless the state ensures it has condemnation authority to restore access.
“Many in the Senate were hopeful the state’s interests would be adequately protected during this lawsuit. Upon review of the proposed language, it’s clear the state isn’t there yet. There is still much work to be done,” the letter says.
Work to be done includes ensuring that the Gulkana Village must yield its “sovereign immunity” in the matter if it does not fulfill its end of the agreement.
The senators do not address the fact that there are no known grave sites where the current boat launch is and no documentation as to why a simple fence around graves would not be sufficient, but others have raised the question during public meetings.
At the Fairbanks meeting, the point was raised by fishing guides that locals in the area frequently race ATVs through the area that is now being called “sacred” for the purpose of negotiations.
The terms of the settlement as described by the Governor’s Office are:
- Relocation of public parking and other facilities at the Gulkana River boat launch to protect historic townsite and cemetery
- A 100-foot-wide state highway right-of-way along Klutina Lake Road
- Fishing, daytime parking, and boating access (without a trailer) from the Klutina Lake Road right-of-way
- Just three locations along Klutina Lake Road where the public can launch boats using trailers
- Camping and overnight parking opportunities provided by Ahtna for a reasonable fee outside of the Klutina Lake Road right-of-way, including at Boys’ Camp — no time frame given.
- A new 50-foot-wide state right-of-way to connect Klutina Lake Road to state land on Klutina Lake.
Written comments may be sent to firstname.lastname@example.org or mailed to Department of Law, c/o Natural Resources Section – Klutina/Gulkana Comments, 1031 W. 4th Ave., Suite 200, Anchorage, AK 99501-1994. Written comments must be received by 4 pm Aug. 30.
The full settlement agreement is posted on the governor’s web site.