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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Caywood v. State, Dept. of Natural Resources (11/23/2012) sp-6726
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ROBERT CAYWOOD, PAULA )
CAYWOOD, MICHAEL ) Supreme Court No. S-14253
CAYWOOD, HAROLD BRYANT, )
ANN BRYANT, JUBAL BRYANT, ) Superior Court No. 3AN-09-10487 CI
MELVIN GROVE, CHERYL )
GROVE, SETH GROVE, TOM ) O P I N I O N
ANDERSON, BRAD KRUEGER, )
BRUCE CARTER, GREG SHAFFER, ) No. 6726 - November 23, 2012
JOHN BRADSHAW, STEPHEN R. )
JONES, JACK J. JONES, DANIEL )
McCABE, RON WOODS, CRAIG, )
WOODS, JEFF WOODS, FRANK )
HOLLIS, WILLIAM EVERETT, )
DAVID DICKEY, DAVIE MALZAC, )
GREGORY E. DABNEY, and THE )
ALASKA OUTDOOR ACCESS )
ALLIANCE, )
)
Appellants, )
)
v. )
)
STATE OF ALASKA, )
DEPARTMENT OF NATURAL )
RESOURCES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Daniel Schally, Judge pro tem.
----------------------- Page 2-----------------------
Appearances: Darryl L. Thompson, Darryl L. Thompson,
P.C., Anchorage, for Appellants. Cameron M. Leonard,
Senior Assistant Attorney General, Fairbanks, and John J.
Burns, Attorney General, Juneau, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices, and Matthews, Senior Justice.*
MATTHEWS, Senior Justice.
I. INTRODUCTION
The Department of Natural Resources restricted the non-winter use of large
vehicles on the Rex Trail. The main question in this case is whether these restrictions
are within the Department's authority. Because the Department has broad authority to
manage public lands in general and specific authority to manage rights-of-way such as
the Rex Trail, and the restrictions do not violate any statutory limitations on this
authority, we conclude that they are authorized.
II. FACTS AND PROCEEDINGS
A. Facts
The Rex Trail is a route extending some 50 miles between the Parks
Highway and the Wood River north of the Alaska Range. Except for a portion about
one-and-a-half miles in length nearest the Parks Highway the trail has not been
improved. The trail almost exclusively crosses state and federal land. It was established
in the early twentieth century as a transportation route to mining claims, and in light of
its historic use, the Alaska Legislature has recognized it as an R.S. 2477 right-of-way.1
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
1 See AS 19.30.400(d) (RST Number 0119). The Rex Trail is referred to in
(continued...)
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In the 1970s the trail was used for access to remote parcels that were made available for
sale by the State. The trail has also traditionally been used by hunters to gain access to
productive moose habitat. In 2004 the Board of Game legalized antlerless moose hunts
on lands adjacent to the trail. The amount of traffic on the trail increased substantially
due to this hunt. Many different types of vehicles use the Rex Trail including light 3-
and 4-wheel all-terrain vehicles (ATVs) as well as heavier, large-tired and tracked
vehicles.
In 2007 the State Department of Natural Resources (DNR) received
numerous complaints about the deteriorating condition of the trail. DNR personnel
inspected the trail several times and determined that vehicular use of the trail was causing
extensive rutting, with some ruts as deep as four feet. They noted that in some places the
trail had essentially become a long channel filled with water. In order to avoid ruts,
vehicles would create new paths along the trail. These new paths would themselves
become rutted resulting in a continual process of widening and degradation. The DNR
observers concluded that the rutting of the trail made travel for ATVs and snowmachines
both dangerous and difficult. They also noted that the trail conditions were much worse
than when they had checked the same route in the winter of 2002.
B. Proceedings
In May 2008 DNR's northern region manager issued a decision restricting
vehicles weighing more than 1,500 pounds from using the Rex Trail every year from
April 15 to October 31. The stated goals of the restrictions were "to slow the
degradation of access conditions, reduce the risks to public safety during trail travel, and
to reduce the potential for more significant resource damage." The restrictions did not
1 (...continued)
this statute as the Kobi-Bonnifield Trail to Tatlanika Creek.
-3- 6726
----------------------- Page 4-----------------------
include the 1.5 miles of the trail nearest the Parks Highway that have been hardened for
general vehicle use. As grounds for the decision, DNR indicated that heavy-vehicle use
during the summer was particularly damaging:
In its current unimproved state, the Rex Trail is most suitable
for safe, reliable travel and most resistant to damage in
winter, when frozen conditions and snow cover stabilize and
protect wet, permafrost-underlain soils. Traditionally,
summer motorized use by standard ATVs has not been
reliable for continuous access from the highway to Wood
River (due to presence of wetlands and river crossings), but
was possible in dry years/seasons, and certainly possible in
discontinuous sections of the trail.
In response to public reports of intense seasonal motorized
use, increased travel with large off-road vehicles (such as
Nodwells and large-tired "moose buggies") and degrading
travel conditions on the eastern Rex Trail, DNR conducted an
evaluation of information including DNR field work (a
preliminary trail condition assessment), land records, current
statutes and regulations, scientific studies, varying public
reports and concerns, data from other agencies, and possible
trail management options. The report documenting this
preliminary evaluation (attached to this decision) noted that
the type and intensity of motorized use of the eastern Rex
[T]rail has changed in recent years, that travel conditions on
the trail are deteriorating due to seasonal rutting and thermal
degradation, and that public resources are being damaged and
wasted due to off-trail travel. The report also noted that the
resource damage which contributes to deteriorating travel
conditions cannot be attributed to a single operator or vehicle
type - impacts are cumulative, and public interpretations of
"damage" vary. Certain conditions on the trail and nearby
lands observed this fall and winter, however, are
unquestionably due to the operation of wheeled and tracked
vehicles larger than standard ATVs or snowmachines. Ruts
in excess of 3 feet deep with tracks too wide for an ATV or
snowmachine to span, and wide swaths of downed trees left
-4- 6726
----------------------- Page 5-----------------------
in newly-created trails originating from the Rex represent
forms of travel disruption and resource damage above and
beyond what is possible for traditional off-road vehicles. The
poor trail conditions interfere with traditional travel both in
summer (which has always been variable, depending on wet
or dry years) and in winter, which has traditionally been very
reliable. Most of the summer large equipment use has
occurred without DNR permitting, in violation of current
regulations. The report listed several options for both short-
and long-term management; this decision is based on the
most feasible short-term management option evaluated, given
the available information.[2]
Robert Caywood and numerous other trail users (Caywood) appealed this
decision to the DNR commissioner. The commissioner denied the appeals on August 27,
2009.
Meanwhile, on August 25, 2009, the northern region manager amended the
restrictions to allow tracked vehicles heavier than 1,500 pounds to use the trail on an
individual permit basis. This modification was made "so that DNR can monitor impacts
of this additional use." DNR explained that "[t]he goal of the monitoring program will
be to gather trail/travel conditions, use and impact data, and to evaluate the usefulness
of the program for making future management decisions."
Caywood also appealed the amended decision to the commissioner, who
again denied the appeal. Caywood then appealed both decisions to the superior court.
The superior court affirmed the commissioner, and Caywood now brings the appeal to
this court.
2 State of Alaska, Department of Natural Resources, Division of Mining,
Land and Water, Northern Region, Administrative Decision, Rex Trail - RST 119, ADL
412566, ADL 401880 (May 12, 2008).
-5- 6726
----------------------- Page 6-----------------------
III. STANDARD OF REVIEW
Where the superior court has acted as an intermediate appellate court
reviewing an agency decision, we review the agency decision directly.3
The questions in this case are whether the restrictions imposed on the use
of the trail are (1) authorized by statute and (2) arbitrary or unreasonable. The first
question is a question of law to which we apply our own independent judgment without
affording significant deference to the agency's decision.4 The second question involves
a discretionary decision of the agency. We review it deferentially, asking primarily
whether the agency has taken a hard look at the problem under review and has engaged
in reasoned decision making.5
IV. DISCUSSION
A. Statutory And Regulatory Background
Under the Alaska Land Act, the Department of Natural Resources is
charged with administering state lands.6 Within the Department, the Division of Mining,
Land and Water bears this responsibility.7 Specifically, the director of the Division of
Mining, Land and Water has the delegated authority to manage and control state lands.8
3 Interior Alaska Airboat Ass'n v. State, Bd. of Game , 18 P.3d 686, 689
(Alaska 2001).
4 Stevenson v. Burgess, 570 P.2d 728, 731 (Alaska 1977).
5 Interior Alaska Airboat Ass'n , 18 P.3d at 690.
6 AS 44.37.020.
7 AS 38.05.005. The Division of Mining, Land and Water is referred to as
"division of lands" in the statute.
8 AS 38.05.035(a)(2) provides that the director shall "manage, inspect, and
control state land and improvements on it belonging to the state and under the
(continued...)
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----------------------- Page 7-----------------------
Under AS 19.30.400(a), R.S. 2477 rights-of-way such as the Rex Trail are
"available for use by the public under regulations adopted by the Department of Natural
Resources . . . ."9 One such regulation is 11 Alaska Administrative Code (AAC) 51.100,
which vests the commissioner with management authority and permits the commissioner
to restrict right-of-way uses in order to protect public safety, the right-of-way, and the
servient estate.10
The statute primarily in controversy in this case is AS 38.04.058 which
provides:
The commissioner may, under terms agreed to in writing by
a grantee, lessee, or interest holder of state land, restrict the
8 (...continued)
jurisdiction of the division."
9 This is not true if the particular right-of-way in question has been
transferred to the Department of Transportation and Public Facilities. AS 19.30.400.
This has not occurred with respect to the Rex Trail.
10 11 AAC 51.100(a) (2005) provides in relevant part:
The commissioner has management authority over the use of
any R.S. 2477 right-of-way that is not on the Alaska highway
system. Certain land use actions on R.S. 2477 rights-of-way,
including road construction, may require a permit under
11 AAC 96.010, or other authorization by the department.
Based on a written determination by the commissioner, the
commissioner will, in the commissioner's discretion, close or
restrict the use of an R.S. 2477 right-of-way over which the
commissioner has management authority in order to
(1) protect public safety;
(2) protect the right-of-way and servient estate
against damage that may be caused by use during storms,
floods, thawing conditions, or construction and maintenance
operations . . . .
-7- 6726
----------------------- Page 8-----------------------
use of an easement or right-of-way reserved under
AS 38.04.050, 38.04.055, or other law in order to protect
public safety or property. The commissioner may not agree
to or enforce a restriction under this section unless the
restriction is narrowly tailored to achieve the protection of
public safety and property while preserving access to the
maximum extent practicable and the commissioner makes a
written finding identifying how the restriction will protect
public safety and public or private property.
The text of the statutes to which section .058 refers, AS 38.04.050 and
AS 38.04.055, is set forth in the margin.11
11 AS 38.04.050 provides:
Wherever state land is surveyed for purposes of private use,
legal rights-of-way and easements shall be reserved for
access and, where appropriate, for utility services to each
parcel of land. A right-of-way or easement shall be located
to assure adequate and feasible access for the purposes for
which the right-of-way or easement was intended. Where
necessary and appropriate for the use intended or where
required by local subdivision ordinances, the director shall
arrange for the development of surface access as part of the
land availability program. The direct cost of local access
development shall be borne by the recipient of the land unless
otherwise provided by state statutes or regulations.
AS 38.04.055 provides:
The commissioner shall reserve easements and rights-of-way
on and across land that is made available for private use as
necessary to reach or use public water and public and private
land. An easement or right-of-way reserved under this
section shall include trails that have an established history of
use for commerce, recreation, transportation, or providing
access to a traditional outdoor activity. In this section,
"traditional outdoor activity" has the meaning given in
-8- 6726
----------------------- Page 9-----------------------
Alaska Statute 38.04.200 limits the authority of the commissioner of the
Department of Natural Resources to restrict traditional means of access for the purpose
of protecting "aesthetic values" except under certain conditions and for certain
12
purposes.
11 (...continued)
AS 38.04.200.
12 AS 38.04.200 provides:
(a) The commissioner may not manage state land,
water, or land and water so that a traditional means of access
for traditional outdoor activities is restricted for the purpose
of protecting aesthetic values of the land, water, or land and
water or is prohibited unless the restriction or prohibition is
(1) for an area of land, water, or land and water that
encompasses 640 contiguous acres or less;
(2) temporary in nature and effective cumulatively
less than eight months in a three-year period;
(3) for the protection of public safety and public or
private property;
(4) for the development of natural resources and a
reasonable alternative for the traditional means of access
across the land, water, or land and water for traditional
outdoor activities on other land, water, or land and water is
available and approved by the commissioner; or
(5) authorized by act of the legislature.
(b) In this section,
(1) "aesthetic values" means those values that exist
as an expression of the social or cultural viewpoint held by a
portion of the population;
(2) "traditional means of access" means those types
(continued...)
-9- 6726
----------------------- Page 10-----------------------
Regulation 11 AAC 96.020, in effect since 1970, defines generally allowed
uses of state land that may be engaged in without a permit. These include using a
highway vehicle with a curb weight of up to 10,000 pounds and using a recreational off-
road or all-terrain vehicle with a curb weight of up to 1,500 pounds.13
12 (...continued)
of transportation on, to, or in the state land, water, or land and
water, for which a popular pattern of use has developed; the
term includes flying, ballooning, boating, using snow
vehicles, operation of all-terrain vehicles, horseback riding,
mushing, skiing, snowshoeing, and walking;
(3) "traditional outdoor activities" means those
types of activities that people may use for sport, exercise,
subsistence, including the harvest of foodstuffs, or personal
enjoyment, including hunting, fishing, trapping, gathering, or
recreational mining, and that have historically been
conducted as part of an individual, family, or community life
pattern on or in the state land, water, or land and water.
13 In relevant part 11 AAC 96.020 provides:
(a) A permit or other written authorization is
required for uses and activities not appearing on the list in
this subsection. Unless otherwise provided in (b) of this
section or in a special use land requirement in 11 AAC
96.014, or in a public use area land requirement under
11 AAC 96.016, the following land uses and activities, alone
or in combination, are generally allowed uses on state-owned
public domain land without any permit or other written
authorization from the department, except that a land use or
activity for a commercial recreation purpose requires prior
registration under 11 AAC 96.018:
(1) travel or travel-related activities, as follows:
(A) hiking, backpacking, skiing, climbing, or other
foot travel;
(continued...)
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----------------------- Page 11-----------------------
B. The Restrictions Are Authorized By Law.
The northern region manager relied on AS 38.04.058 and 11 AAC 51.100
as the authority for the initial restrictions. The commissioner's decision of August 27,
2009 relied on the same statutory section and regulation.
In his brief before us, Caywood's primary focus is on AS 38.04.058. He
contends that this statute only applies where a grantee, lessee, or interest holder of state
land is involved, and only then when the grantee, lessee, or interest holder agrees in
writing with the restrictions imposed by DNR. He argues:
Reasonable application of this statute would be applying it to
situations where the State enters into a mineral lease and both
the lessee and the State agree to certain restrictions on an
easement running through the leasehold interest because it
would be unsafe for the public to cross the area in light of the
use of heavy equipment, explosives or strip mining on the
leasehold.
13 (...continued)
(B) bicycling;
(C) travel by horse or dogsled or with pack animals;
(D) using a highway vehicle with a curb weight of
up to 10,000 pounds, including a pickup truck and four-
wheel-drive vehicle, on or off an established road easement,
if the use off the road easement does not cause or contribute
to water quality degradation, alteration of drainage systems,
significant rutting, ground disturbance, or thermal erosion;
(E) using a recreational-type off-road or all-terrain
vehicle with a curb weight of up to 1,500 pounds, including
a snowmachine and four-wheeler, on or off an established
road easement if use off the road easement does not cause or
contribute to water quality degradation, alteration of drainage
systems, significant rutting, ground disturbance, or thermal
erosion . . . .
-11- 6726
----------------------- Page 12-----------------------
Such limited applications, Caywood argues, bear no resemblance to the restrictions
imposed on the 50-mile-long Rex Trail; therefore section .058 does not authorize the Rex
Trail restrictions.
We agree that section .058 is a statute of limited application.14 It does not
apply to this case because, among other reasons, the restrictions here were not mutually
agreed upon between the commissioner and interested grantees, lessees, or interest
holders. We thus agree that section .058 does not supply authority to restrict the use of
the Rex Trail.
But our conclusion that the restrictions on the Rex Trail could not be based
on section .058 does not mean that the restrictions are not authorized. They clearly are
authorized under 11 AAC 51.100(a). This regulation, as noted above, was promulgated
under AS 19.30.400(a). It recognizes the commissioner's management authority over
R.S. 2477 rights-of-way. Specifically, the commissioner is authorized to restrict right-of-
14 Section .058 was added to chapter 4 of title 38 as part of a general revision
of the statutes concerning public lands. See Ch. 152, § 14, SLA 1984. Section .058 was
based on an amendment suggested by a large land owner, Sealaska Corporation.
Sealaska explained the purpose of the new section as follows:
Under existing law, Alaska Department of Natural Resources
is authorized to reserve easements across state lands
(including tidelands) as part of a land disposal or tideland
lease. Existing law does not provide authority for the
department to condition a reserved easement or to restrict
public access in order to protect property or public safety.
This amendment will allow the private owner or lessee to
cooperate with the department in setting terms and conditions
for public use of reserved easements to protect property or
public safety.
Written testimony of Robert Loescher on S.B. 375 Before the Sen. Resources Comm.,
13th Leg., 2nd Sess. (Feb. 20, 1984).
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----------------------- Page 13-----------------------
way uses as necessary to promote public safety, or to protect the right-of-way or the
servient estate from damage caused by use during thawing conditions. In this case the
written decision of the DNR northern region manager, ratified by the commissioner's
decisions on appeal, indicates that these conditions have been satisfied.
In addition, insofar as the right-of-way crosses state land and also because
it is a state-owned interest in land, the general management authority delegated to the
Division of Mining, Land and Water under AS 38.05.035(a)(2) serves as authority for
the restrictions. In its brief on appeal before this court the State has relied on section
.035(a)(2), and other related provisions of the Alaska Land Act, arguing that the
management of trails across state land falls under the general statutory duties and powers
of DNR. We agree. We also note that even though DNR's general management
authority was not relied upon by the agency in imposing the restrictions such authority
nonetheless can serve as a basis for affirming the agency.15
C. The Restrictions Are Not Arbitrary Or Unreasonable.
Caywood acknowledges that AS 38.04.200 permits restricting traditional
means of access for the protection of public safety and property, but he argues that the
protection of public safety and property rationale in this case is merely a ruse and the
restrictions are "not supported by substantial evidence of restrictions necessary for public
safety or protection of property."
The State responds to Caywood's reliance on AS 38.04.200 on a number
of grounds. One is that the statute only applies to restrictions on access imposed to
protect aesthetic values and the restrictions here were not imposed for this purpose.
"Aesthetic values" in section .200 are defined to mean "those values that exist as an
15 A reviewing court when affirming an administrative appeal may rely on
legal grounds different from those actually used by the agency. Plumber v. Univ. of
Alaska Anchorage , 936 P.2d 163, 165 n.1 (Alaska 1997).
-13- 6726
----------------------- Page 14-----------------------
expression of the social or cultural viewpoint held by a portion of the population."16 The
State contends that the restrictions on the Rex Trail were imposed for the purpose of
protection of public safety and public property and that these purposes do not fall within
the meaning of aesthetic values under the statute.
We agree with the State on this point. Further, even if restrictions to protect
public safety and property could also be categorized as for the protection of aesthetic
values, subsection (a)(3) of section .200 excepts restrictions for the purpose of protecting
public safety and property from the coverage of the act.
Caywood's point that the restrictions are not supported by substantial
evidence misconceives the substantial evidence standard. We review administrative
adjudications to determine whether they are supported by substantial evidence.17 Policy
decisions such as whether to impose restrictions on the use of state land are reviewed
16 AS 38.04.200(b)(1).
17 See State, Alcoholic Beverage Control Bd. v. Decker, 700 P.2d 483, 486
(Alaska 1985):
Although AS 44.62.570(c) enables us to independently weigh
the evidence by a two-part standard, we have consistently
adhered to the substantial evidence on the whole record test
under AS 44.62.570(c)(2) for reviewing administrative fact
findings in quasi judicial proceedings subject to the APA. . . .
Application of the substantial evidence test prevents a
dislocation of the respective functions of administrative
agencies and the courts. . . .
On the other hand, we apply the reasonable basis test
when reviewing an agency's discretionary public policy
decisions.
-14- 6726
----------------------- Page 15-----------------------
under the deferential reasonable basis test.18 Under this test we ask whether the decision
is reasonable and not arbitrary.19 In making this determination courts may not "substitute
their judgment for the judgment of the agency."20 Rather "review consists primarily of
ensuring that the agency has taken a hard look at the salient problems and has genuinely
engaged in reasoned decision making."21
We consider Caywood's argument that the restrictions are not based on
substantial evidence to raise the question of whether the restrictions are reasonable and
not arbitrary. The question is easily answered. The record amply supports the agency's
decision that deep rutting along the Rex Trail presents a safety hazard, especially in
winter to travelers on snowmachines. There is also record support for the conclusion that
heavy vehicles are responsible for the worst of the rutting along the Rex Trail and that
the resulting level of degradation is unacceptable. Further, the record reflects that DNR
has given considerable attention and study to the question of whether restrictions should
be imposed on the use of the Rex Trail and if so what they should be. The agency
therefore has satisfied the "hard look" and reasoned decision-making requirements of the
reasonable basis standard.
V. CONCLUSION
For these reasons the judgment of the superior court affirming the decisions
of the Department of Natural Resources is AFFIRMED.
18 Galt v. Stanton, 591 P.2d 960, 963 (Alaska 1979).
19 Interior Alaska Airboat Ass'n v. State, Bd. of Game , 18 P.3d 686, 690
(Alaska 2001).
20 Id .
21 Id.
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