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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ahtna, Inc. v. State of Alaska, Department of Transportation & Public Facilities, et al. (9/16/2022) sp-7619
Notice: This opinion is subject to correction before publication in the P ACIFIC 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@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
AHTNA, INC., )
) Supreme Court Nos. S-17496/17526/
Appellant and ) 17605 (Consolidated)
Cross-Appellee, )
) Superior Court N o. 3AN-08-06337 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF NATURAL ) No. 7619 - September 16, 2022
RESOURCES and DEPARTMENT OF )
TRANSPORTATION & PUBLIC )
FACILITIES, )
)
Appellees a nd )
Cross-Appellants. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Matthew Singer and Peter A. Scully, Holland
& Knight LLP, Anchorage, for Appellant/Cross-Appellee.
Jessica M. Alloway, and Max D. Garner, Assistant Attorneys
General, Anchorage, and Kevin G. Clarkson, Attorney
General, Juneau, for Appellees/Cross-Appellants.
Before: Bolger, Chief Justice, Winfree, Maassen, and
Carney, Justices. [Borghesan, Justice, not participating.]
CARNEY, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
The State claimed the right under Revised Statute 2477 (RS 2477) to clear
land and permit the use of boat launches, camping sites, and day use sites within an
alleged 100-foot right of way centered on a road on land belonging to an Alaska Native
corporation. The Native corporation sued, arguing that its prior aboriginal title prevented
the federal government from conveying a right of way to the State or, alternatively, if the
right of way existed, that construction of boat launches, camping sites, and day use sites
exceeded its scope.
After years of litigation and motion practice the superior court issued two
partial summary judgment orders. It held as a matter of law that any preexisting
aboriginal title did not disturb the State's right of way over the land. It also concluded
as a matter of law that the right of way was limited to ingress and egress. Because the
superior court did not err when it granted the State's motion regarding aboriginal title,
we affirm that grant of partial summary judgment. But because the scope of a particular
RS 2477 right of way is a question of fact, we reverse its conclusion as a matter of law
that the State's right of way is limited to ingress and egress.
FACTS AND PROCEEDINGS
II.
A. The Dispute
Klutina Lake Road, known locally as the Brenwick-Craig Road, is a single-
lane dirt road running approximately 25 miles along the Klutina River from Copper
Center on the Richardson Highway to the outlet of Klutina Lake. Much of the road
travels over land owned by Ahtna, Inc., the regional Alaska Native corporation.1 The
Ahtna Athabascan people have used and occupied the land for hundreds of years.
1 The road also travels over land referred to as Lot 3 and owned by a number
of private landowners. While those property owners are parties to the underlying
dispute, they are not involved in this appeal.
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In 2007 the State cleared a swath of land along the road and removed one
of the "permit fee stations" Ahtna had erected to collect fees for use of its land. The
State claimed that it had established a 100-foot wide RS 2477 right of way for the cleared
land "as early as 1899" and then again in the 1960s when the State "constructed a more
official road." The State claimed its RS 2477 right of way included a broad scope of
activities, such as day use, camping, boat launching, parking, and fishing, as well as the
right to travel over the road.
Ahtna objected to the State's land clearing and destruction of Ahtna's
property. It disputed the existence and width of any State right of way, and it argued that
any right of way that might exist permitted only ingress and egress. In early 2008 Ahtna
filed a complaint for declaratory judgment and an injunction regarding the State's alleged
trespass on its land. Years of litigation ensued, culminating in the current appeal.
B. Statutory Background
2
Congress enacted RS 2477 in 1866 as part of the Lode Mining Act.
RS 2477 stated in its entirety: "The right of way for the construction of highways over
public lands, not reserved for public uses, is hereby granted."3 The federalgovernment's
grant of rights of way under RS 2477 "was self-executing, meaning that an RS 2477
right-of-way automatically came into existence 'if a public highway was established
across public land in accordance with the law of Alaska.' "4
2 Lode Mining Act of 1866, ch. 262, § 8, 14 Stat. 251, 253 (codified as 43
U.S.C. § 932, Revised Statute 2477), repealed by FederalLand Policy and Management
Act of 1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743, 2793 (1976).
3
43 U.S.C. § 932 (repealed 1976).
4
Price v. Eastham, 75 P.3d 1051, 1055 (Alaska 2003) (quoting Fitzgerald
v. Puddicombe, 918 P.2d 1017, 1019 (Alaska 1996)).
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----------------------- Page 4-----------------------
5
Congress repealed RS 2477 in 1976 but left existing rights of way intact.
In Alaska, however, authorization for RS 2477 rights of way ended no later than
January 1969, when the Secretary of the Interior withdrew all public lands not already
reserved.6 Because the statute was self-executing and did not require rights of way to be
recorded, the existence of an RS 2477 right of way is frequently a matter of controversy.7
When determining the existence and scope of an RS 2477 right of way over
Native corporation land, courts must also be mindful of the Alaska Native Claims
Settlement Act (ANCSA).8 Congress enacted ANCSA in 1971 "to settle all land claims
5 Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579,
§701, 706, 90 Stat. 2743, 2786, 2793 (1976) ("Nothing in this Act, or in any amendment
made by this Act, shall be construed as terminating any valid . . . right-of-way . . .
existing on the date of approval of this Act."); Dickson v. State, Dep't of Nat. Res. , 433
P.3d 1075, 1083 (Alaska 2018).
6
Public Land Order (PLO) 4582, 34 Fed. Reg. 1025 (Jan. 17, 1969). The
parties have both cited January 17, 1969, the date Secretary Udall signed PLO 4582, as
the date lands were withdrawn. Other sources suggest that the withdrawal was instead
effective on December 14, 1968, the date the notice of application for withdrawal was
published. See Betty J. (Thompson) Bonin, 151 IBLA 16, 26 n.8 (1999) (describing
December 13 as "the earliest date which would not run into the controversy as to when
the lands affected by PLO 4582 had been removed from entry and location"); Notice of
Application for Withdrawal of Unreserved Lands, 33 Fed. Reg. 18591 (Dec. 14, 1968).
Because the parties agree that withdrawalwas effective as of January 1969, and because
this case does not require us to determine whether withdrawal was effective sooner, we
do not decide whether withdrawal was effective earlier than January 1969.
7
See S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 742
(10th Cir. 2005), as amended on denial of reh'g (Jan. 6, 2006) ("[T]he definition of
R.S. 2477 rights of way across federal land, which used to be a non-issue, has become
a flash point, and litigants are driven to the historical archives for documentation of
matters no one had reason to document at the time.").
8
43 U.S.C. §§ 1601-1642.
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9
by Alaska Natives." ANCSA "extinguished all claims of the Native people of Alaska
based on aboriginal title in exchange for 962.5 million dollars and 44 million acres of
10 Section 4 of ANCSA addresses aboriginal title:
public land."
(a) Aboriginal title extinguishment through prior land
and water area conveyances
All prior conveyances of public land and water areas in
Alaska, or any interest therein, pursuant to Federal law, and
all tentative approvals pursuant to section 6(g) of the Alaska
Statehood Act, shall be regarded as an extinguishment of the
aboriginal title thereto, if any.
(b) Aboriginal title and claim extinguishment where
based on use and occupancy; submerged lands
underneath inland and offshore water areas and hunting
or fishing rights included
All aboriginal titles, if any, and claims of aboriginal title in
Alaska based on use and occupancy, including submerged
land underneath all water areas, both inland and offshore, and
including any aboriginal hunting or fishing rights that may
exist, are hereby extinguished.
(c) Aboriginal claim extinguishment where based on
right, title, use, or occupancy of land or water areas;
domestic statute or treaty relating to use and occupancy;
or foreign laws; pending claims
All claims against the United States, the State, and all other
persons that are based on claims of aboriginal right, title, use,
or occupancy of land or water areas in Alaska, or that are
based on any statute or treaty of the United States relating to
Native use and occupancy, or that are based on the laws of
any other nation, including any such claims that are pending
9 Alaska v. Native Vill. of Venetie Tribal Gov't , 522 U.S. 520, 523 (1998).
10 Kenai Peninsula Borough v. Cook Inlet Region, Inc. , 807 P.2d 487, 490
(Alaska 1991).
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before any Federal or state court or the Indian Claims
Commission, are hereby extinguished.[11]
C. Proceedings
Ahtna's 2008 lawsuit sought a declaration that the land in question was
"free and clear of an RS 2477 [right of way]" and an injunction to prevent the State from
"further trespass u pon Ahtna's lands." Ahtna acknowledged that the United States had
a 60-foot-wide easement allowing public travel on the road, but argued that the State did
not have an additional 100-foot-wide RS 2477 right of way. The State counterclaimed,
seeking to quiet title to the claimed right of way and arguing that its RS 2477 right of
way was s uperior to the federal one. The parties repeatedly postponed trial in the hope
of reaching a settlement. In 2014 Ahtna filed a second amended complaint, which forms
the basis f or the present litigation.
In 2016 Ahtna moved for partial summary judgment, seeking a declaration
that RS 2477 rights of way permit only ingress and egress. The State opposed. In May
2016 the superior court granted the motion. The court determined that "RS 2477, which
granted rights-of-way for 'highways o ver public lands,' conveyed the right to pass o ver
the land, and nothing more."
Ahtna separately moved for summary judgment "to establish that there is
no RS 2477 right-of-way along the Klutina Lake Road" because then-existing aboriginal
title prevented conveyance of an RS 2477 right of way. The State opposed. In June
2018 the superior court denied Ahtna's motion for summary judgment based on
aboriginal title. The court assumed without deciding that " aboriginal title land was not
public land before Congress enacted ANCSA and Ahtna possessed aboriginal title to the
11
43 U.S.C. § 1603.
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12
land at issue." It then concluded that ANCSA applied retroactively and that ANCSA
extinguished Ahtna's aboriginal title.
The parties eventually stipulated to entry of final judgment under Alaska
Civil Rule 54(b). Ahtna stipulated to the existence of a 100-foot RS 2477 right of way,
"50 feet on each side of the centerline of the current location of Klutina Lake Road," and
two additional 100-foot RS 2477 rights of way between the Klutina Lake Road and
Klutina River, subject to its right to appeal on the basis of aboriginal title. Both parties
dismissed claims, some with prejudice and some without prejudice. However, the parties
"agree[d] to preserve the right to appeal legal issues already decided . . . on motions for
summary judgment."
Ahtna appeals the superior court's denial of summary judgment concerning
aboriginal title. Ahtna also requests that we confirm the court's assumption "that the
Ahtna Athabascan people held aboriginal title to the Klutina River Valley." The State
cross-appeals the court's partial summary judgment order declaring that any right of way
pursuant to RS 2477 is limited to the right of ingress and egress.
III. STANDARD OF REVIEW
13 "We review a court's
"We review grants of summary judgment de novo."
interpretation of statutes de novo and 'apply our independent judgment, adoptingthe rule
of law that is most persuasive in light of precedent, reason, and policy.' "14
12 This preliminary assumption that the land was not public was significant
because RS 2477 stated: "The right of way for the construction of highways over public
lands, not reserved for public uses, is hereby granted." 43 U.S.C. § 932 (emphasis added)
(repealed 1976).
13
Christensen v. Alaska Sales & Serv., Inc. , 335 P.3d 514, 516(Alaska 2014).
14 Ruerup v. Ruerup, 408 P.3d 1203, 1206 (Alaska 2018) (quoting Stephanie
(continued...)
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IV. DISCUSSION
A. The Superior Court Did Not Err By Denying Ahtna's Motion For
Summary Judgment Based On Aboriginal Title.
1. We need not decide whether the land at issue was public or non-
public as a matter of law.
The superior court narrowed the issues by assuming without deciding that
"aboriginal title land was not public land before Congress enacted ANCSA and Ahtna
possessed aboriginal title to the land at issue." On appeal Ahtna urges us to confirm the
superior court's assumption and explicitly hold that Ahtna possessed aboriginal title to
the land surrounding Klutina Lake Road prior to the passage of ANCSA. But such a
determination is not necessary. As discussed below, even if Ahtna did possess aboriginal
title prior to ANCSA, passage of the statute retroactively validated the RS 2477 right of
way. We therefore decline to decide the issue.15 Like the superior court, we assume
without deciding that Ahtna possessed aboriginal title to the land surrounding Klutina
Lake Road prior to the passage of ANCSA.
2. The superior court's decision that ANCSA precluded Ahtna's
aboriginal title arguments is consistent with precedent.
The superior court held that aboriginal title did not prevent an RS 2477
right of way because ANCSA § 4(a) "extinguished aboriginal title as a defense to pre-
14 (...continued)
F. v. George C., 270 P.3d 737, 746 (Alaska 2012)).
15 See Paug-Vik, Inc. v. Wards Cove Packing Co., 633 P.2d 1015, 1018
(Alaska 1981) (affirming trial court's decision without deciding preliminary issue when
trial court found it "unnecessary to reach the complex issues of whether aboriginal title
ever existed in Alaska, what criteria must be met in order to acquire aboriginal title,
whether the Natives of Naknek in fact met those criteria and whether any title they might
have acquired was abandoned"); United States v. Atl. Richfield Co., 612 F.2d 1132, 1134
(9th Cir. 1980) ("For the purposes of this appeal, we assume that the Inupiats retained
unrecognized aboriginal title to the North Slope until 1971.").
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ANCSA conveyances of federal land encumbered by aboriginal title at the time of
conveyance." Ahtna does not claim that it still possesses aboriginal title over the land
surrounding Klutina Lake Road. Instead, it argues that because it had aboriginal title
when the federal government was offering RS 2477 rights of way, the land was not
"public land" under RS 2477 and was therefore not eligible for an RS 2477 conveyance.
Ahtna argues that because the land was never eligible under RS 2477, there was no
conveyance, and ANCSA could not have validated a conveyance that did not occur.
Ahtna also claims that its argument is not precluded by ANCSA § 4(c),
which extinguishes "[a]ll claims . . . based on claims of aboriginal right, title, use, or
16 According to Ahtna, § 4(c) precludes
occupancy of land or water areas in Alaska."
only claims, not defenses.
But we have previously rejected the same arguments. "The stare decisis
doctrine rests on a solid bedrock of practicality: 'no judicial system could do society's
work if it eyed each issue afresh in every case that raised it.' "17 Because this case is not
distinguishable from our prior cases addressing the same issues, we affirm the superior
court's order denying Ahtna's motion for summary judgment based on aboriginal title.
a. Section 4(a) of ANCSA validated the RS 2477 right of
way.
Assuming aboriginal title prevented a conveyance of a valid RS 2477 right
of way for Klutina Lake Road, the first issue is whether Section 4(a) of ANCSA
retroactively validated the RS 2477 right of way. Section 4(a) of ANCSA states: "All
prior conveyances of public land and water areas in Alaska, or any interest therein,
16 43 U.S.C. § 1603(c).
17
Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska
2004) (quoting Pratt & Whitney Canada, Inc. v. United Techs. , 852 P.2d 1173, 1175
(Alaska 1993)).
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----------------------- Page 10-----------------------
pursuant to Federal law, and all tentative approvals pursuant to section 6(g) of the Alaska
Statehood Act, shall be regarded as an extinguishment of the aboriginal title thereto, if
18
any."
Ahtna argues that Section 4(a) did not validate the conveyance of an
RS 2477 right of way for Klutina Lake Road because aboriginal title prevented such a
conveyance from occurring in the first place. The question of whether ANCSA validated
conveyances that would otherwise be barred by aboriginal title has already been
answered in Paug-Vik, Inc. v. Wards Cove Packing Co.19 In Paug-Vik a cannery sought
and was granted a declaration confirming its right to use water from Seagull Lake.20
Wards Cove Packing Company claimed that the 1930 appropriation of water by its
predecessor in interest entitled it to water rights under 43 U.S.C. § 661.21 Paug-Vik, Inc.,
the localNative corporation, protested the appropriation, arguing that "prior to ANCSA's
passage in 1971 Seagull Lake was used or occupied by the Natives of Naknek, thus
conferring 'aboriginal title' on them and rendering the lake unavailable for appropriation
by non-natives."22 When the appropriation was nonetheless granted, Paug-Vik
appealed.23
We started our analysis in Paug-Vik by observingthat "Congress has settled
the question of whether conveyances of aboriginal title land under the federal public land
18 43 U.S.C. § 1603(a).
19
633 P.2d 1015 (Alaska 1981).
20
Id. at 1016.
21
Id. ; see 43 U.S.C. § 661 (concerning recognition of water rights).
22
Paug-Vik, 633 P.2d at 1017.
23 Id.
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laws are valid" because "Congress has declared in § 1603(a) of ANCSA that such
24 After holding that water appropriation rights were
conveyances are effective."
conveyances covered by ANCSA, we concluded that such conveyances "therefore must
be regarded as extinguishing aboriginal title to the same interest."25 We emphasized that
our interpretation of ANCSA was consistent with ANCSA's purpose, "which is that the
extinguishment provisions of that section should be construed broadly to eliminate every
claim resting on the assertion of aboriginal title."26 Our decision in Paug-Vik is directly
applicable to this case.
Ahtna attempts to distinguish Paug-Vik by arguingthat Paug-Vik addressed
different statutory language and answered a different question by focusing on "the nature
of the right acquired by an appropriation of water." But Ahtna ignores Paug-Vik 's key
holdings. While the main issue in Paug-Vik was whether the appropriation of water
rights fell under the umbrella of § 1603(a) conveyances,27 we also held that conveyances
extinguish aboriginal title under ANCSA § 4(a).28
Ahtna's attempt to distinguish the relevant statutory language is not
persuasive. The statute at issue in Paug-Vik conveyed a right to water appropriation
"[w]henever, by priority of possession, rights to the use of water for mining, agricultural,
manufacturing, or other purposes, have vested and accrued."29 There is no reason
24 Id. at 1018.
25 Id. at 1020 (emphasis a dded).
26 Id.
27
Id. at 1018-19.
28 Id. at 1020.
29 43 U.S.C. § 661; see Paug-Vik, 633 P.2d at 1017.
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Ahtna's theory - that aboriginal title meant there was no conveyance rather than an
invalid conveyance curable by ANCSA - would not have applied in Paug-Vik. If that
theory were correct, no conveyance could have occurred in Paug-Vik because aboriginal
title would have prevented water rights from accruing in the first place. As the superior
court observed, Ahtna's reading of ANCSA § 4(a) "would only extinguish aboriginal
title on land that was not encumbered by aboriginal title. Or, in other words, it would do
nothing."
Federal cases interpreting ANCSA also support the superior court's
holding. In United States v. Atlantic Richfield Co. the Ninth Circuit addressed trespass
30 The Ninth Circuit held that ANCSA applied
claims based on aboriginal title.
retroactively and "extinguished not only the aboriginal titles of all Alaska Natives, but
also every claim 'based on' aboriginal title in the sense that the past or present existence
of aboriginal title is an element of the claim."31 In Edwardsen v. Morton a federal district
court rejected a challenge to pre-ANCSA conveyances despite recognizing that the
conveyances were "void when granted."32 As the court explained, "Congress could
constitutionally, and did in effect, give the State good title . . . . by removing the only
impediment to the validity of the approvals rather than by making a new conveyance of
title."33 Because its decision was mandated by precedent, the superior court did not err
when it decided that ANCSA § 4(a) retroactively validated the conveyance of an
RS 2477 right of way for Klutina Lake Road.
30 612 F.2d 1132, 1134 (9th Cir. 1980).
31 Id. at 1134 (emphasis a dded).
32 369 F. Supp. 1359, 1377 (D.D.C. 1973).
33 Id. at 1378.
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b. ANCSA does not distinguish between claims anddefenses.
Ahtna attempts to distinguish these earlier cases by arguing that ANCSA's
34 Ahtna points out that
language applies only to affirmative claims, not defenses.
ANCSA § 4(c) refers to "claims" but argues that "[n]o court has ever held that § 4(c)
precludes a litigant from defending against an RS 2477 claim on the basis of . . . then-
unextinguished aboriginal title." But Paug-Vik made just such an argument when it used
aboriginal title as a defense to a pre-ANCSA conveyance.35 As the superior court noted,
"[t]here is no meaningful distinction between the circumstances in Paug-Vik and this
case."
Ahtna supports its theory by citing Edwardsen , in which the court
differentiated between "challenges to the validity of certain titles to land" and "claims
for compensation for alleged trespasses."36 While it is true that Edwardsen interpreted
ANCSA's extinguishment of claims more narrowly than Atlantic Richfield, Edwardsen
did not distinguish between defensive claims and affirmative claims. Instead, the
Edwardsen court distinguished between trespass claims and claims based on the loss of
34 Even if we accepted Ahtna's argument that ANCSA should be read to
extinguish only affirmative claims and not defenses, that argument would apply only to
§ 4(b) and § 4(c) of ANCSA. Section 4(a) of ANCSA, through which prior conveyances
are "regarded as an extinguishment of aboriginal title," does not refer to "claims" at all.
That section would still validate the State's RS 2477 right of way regardless of whether
§ 4(c) applied to defenses.
35
Paug-Vik, Inc. v. Wards Cove Packing Co. , 633 P.2d 1015, 1017
(Alaska 1981).
36 369 F. Supp. at 1365.
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37 38
aboriginal title. It rejected claims invoking aboriginal title to invalidate a conveyance.
Thus, even the Edwardsen court's narrower interpretation of ANCSA would not support
Ahtna's theory. Because Ahtna's argument that ANCSA extinguishes only affirmative
claims has no support in the statute or precedent, the superior court did not err in
rejecting that argument.
B. It Was Error To Conclude As A Matter Of Law That The Klutina
Lake Road RS 2477 Right Of Way Was Limited To Ingress And
Egress.
The State cross-appeals, arguing that the superior court erred when it held
the RS 2477 right of way is inherently "limited to ingress and egress, and cannot, as a
matter of law, accommodate activities associated with travel in Alaska such as boat
launching, camping, parking, and day use." We agree in part: RS 2477 rights of way
are limited to highway purposes, which are broader in scope than mere "ingress and
egress" but narrower in scope than the State advocates. Because the superior court took
such a narrow view of the RS 2477 right of way's scope as a matter of law without
actually considering the factual underpinning of each use the State proposed, we remand
for further proceedings about specific uses consistent with the following discussion of
relevant law.
RS 2477 was self-executing; a "right-of-way automatically came into
existence 'if a public highway was established across public land in accordance with' "
37 Id. at 1379.
38
Id. at 1378 ("In [passing ANCSA], Congress fully intended that there
should be no further 'cloud' on land titles in Alaska stemming from aboriginal land
claims, and that legal challenges to title based on such claims should be barred.").
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39
state law. Alaska law recognizes RS 2477 rights of way through two means: "the
public must use the land 'for such a period of time and under such conditions as to prove
that the grant has been accepted,' or appropriate public authorities of the state must act
40 After considerable
in a way that clearly manifests their intention to accept the grant."
litigation the parties in this case stipulated that the Klutina Lake Road is a 100-foot wide
RS 2477 right of way centered on the roadway.
RS 2477 rights of way are limited in scope.41 The full text of the statute
stated: "The right of way for the construction of highways over public lands, not
reserved for public uses, is hereby granted."42 "Highways" granted by RS 2477 are
rights of ways synonymous with easements, not fee simple interests, and therefore create
only a right of use.43 Subject to the limitations inherent in the federal grant of a highway
39 Price v. Eastham , 75 P.3d 1051, 1055 (quoting Fitzgerald v. Puddicombe ,
918 P.2d 1017, 1019 (Alaska 1996)); see also Sierra Club v. Hodel , 848 F.2d 1068,
1078, 1080 (10th Cir. 1988) (affording "great weight" to agency interpretation of
RS 2477, after agency deferred to "State law specifying widths of public highways
within the State . . . to determine the width of the RS 2477 grant"), overruled on other
grounds by Village of Los Ranchos De Albuquerque v. Marsh , 956 F.2d 970 (10th Cir.
1992).
40
Dickson v. State, Dep't of Nat. Res. , 433 P.3d 1075, 1083 (Alaska 2018)
(alteration in original) (quoting Price, 75 P.3d at 1055).
41
"The 'scope' of a right-of-way refers to the bundle of property rights
possessed by the holder of the right-of-way. This bundle is defined by the physical
boundaries of the right-of-way as wellas the uses to which it has been put." Sierra Club,
848 F.2d at 1079 n.9. An easement holder's use of the easement is also limited by the
ESTATEMENT (THIRD) OF PROPERTY: S ERVITUDES § 4.10 at 592
terms of the easement. R
(A
M. L. I NST . 1998).
42 43 U.S.C. § 932 (repealed 1976).
43 Dillingham Com. Co. v. City of Dillingham, 705 P.2d 410, 415 (Alaska
(continued...)
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easement, the scope of the easement's use is defined by, and occasionally limited by,
44 The relevant state law is the law in effect when the offer of RS 2477 grants
state law.
was withdrawn - not contemporary highway laws and regulations.45 Federal Public
Land Order 4582 withdrew public lands in Alaska and prevented the establishment of
new or expanded RS 2477 rights of way after January 17, 1969.46 Congress then
preserved existing rights of way when it repealed RS 2477 on October 21, 1976.47 The
scope of RS 2477 highway easements in Alaska therefore had to be established by
43 (...continued)
1985) (stating, with reference to RS 2477 right of way grants, that the public road "may
be used for any purpose consistent with public travel" (citation omitted), but that: "The
general rule is that the term 'right of way' is synonymous with 'easement.' Thus, a right
of way creates only a right of use." (quoting Wessells v. State, Dep't of Highways, 562
P.2d 1042, 1046 n.5 (Alaska 1977))).
44
See S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 768
(10th Cir. 2005) ("We therefore conclude that federal law governs the interpretation of
R.S. 2477, but that in determining what is required for acceptance of a right of way under
the statute, federal law 'borrows' from long-established principles of state law, to the
extent that state law provides convenient and appropriate principles for effectuating
congressional intent.").
45
Id. at 741 ("[E]ven as Congress repealed R.S. 2477, it specified that any
'valid' R.S. 2477 rights of way 'existing on the date of approval of this Act' (October
21, 1976) would continue in effect. The statute thus had the effect of 'freezing'
R.S. 2477 rights as they were in 1976." (citations omitted)).
46
PLO 4582, 34 Fed. Reg. 1025 (Jan. 17, 1969); see Doyon, Ltd. , 181 IBLA
148, 155 n.7 (May 31, 2011) ("We know that PLO 4582 precluded establishment of R.S.
2477 [rights of way] because it was subsequently amended by PLO 4676 to specifically
allow for the establishment of an R.S. 2477 [right of way] from Livengood to the Yukon
River.").
47
See S. Utah Wilderness All., 425 F.3d at 741 (noting repeal statute froze
RS 2477 rights of way as of 1976).
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48
January 17, 1969. In 1969 former AS 19.05.130(8) defined "highway" to include "a
highway (whether included in primary or secondary systems), road, street, trail, walk,
bridge, tunnel, drainage structure and other similar or related structure or facility, and
right-of-way thereof, . . . whether operated solely inside the state or to connect with a
Canadian highway, and any such related facility." 49
Although RS 2477 rights of way tend to be liberally construed such that
"[w]hatever may be construed as a highway under State law is a highway under
[RS 2477]," state law does not "override federal requirements or undermine federal land
policy."50 For example, the Ninth Circuit Court of Appeals held that even though
"Montana law in 1901 [allegedly] recognized a right to run utilities along a highway
right of way, . . . Congress had adopted a federal rule that power transmission is not
within the scope of an R.S. 2477 highway right of way and had excluded any implied
48 We reject the State's arguments that the scope of highway-related activities
reflected in current statutes and regulations is relevant to its dispute with Ahtna.
49
Former AS 19.05.130(8) (1962); former AS 19.45.001(8) (1981)
(indicating section renumbered but language unchanged); see also former 13 Alaska
Administrative Code (AAC) 300(a)(6) (1959) (" 'Highway' means a public highway
heretofore or hereafter established as a public way by Acts of Congress or of the
Territorial or State Legislatures, or by the construction or adoption thereof for public
purposes by any public body or agency, or any route or vehicular travel in continuous
use by the public for the statutory period required to vest prescriptive ownership thereof
in the public as a general body; and all such public ways expressly adopted by the
Division."); former 13 AAC 101.214 (1966) (defining "[h]ighway" as "[t]he entire width
between property lines of every way or place of whatever nature when any part thereof
is open to the public, as a matter of right, for purposes of vehicular traffic").
50
S. Utah Wilderness All., 425 F.3d at 766 (alteration in original) (quoting
Limitation of Access to Through-Highways Crossing Pub. Lands, Solicitor's M-Op. M-
36274, 62 I.D. 158, 161 (1955)); see also Humboldt County v. United States, 684 F.2d
1276, 1280 (9th Cir. 1982) ("Any doubt as to the extent of the [RS 2477] grant must be
resolved in the government's favor.").
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51
borrowing of state law on this point." And the Tenth Circuit Court of Appeals has
similarly recognized "that R.S. 2477 rights of way are limited to highway purposes, and
do not encompass ancillary uses such as utility lines, notwithstanding state law to the
52 We have previously construed RS 2477 grants to permit "only a right of
contrary."
use" as a right of way, not the construction of ancillary facilities such as a park.53
The legal concepts of "right of way" and "highway" in 1969 similarly
suggest a relatively narrow scope for RS 2477 rights of way. Black's Law Dictionary
defined "right of way" as "a servitude imposed by law or by convention, and by virtue
of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of
burden or carts, through the estate of another."54 A "highway" was defined as
[a]n easement acquired by the public in the use of a road or
way for thoroughfare. A free and public roadway, or street;
one which every person has the right to use. Its prime
essentials are the right of common enjoyment on the one hand
51 United States v. Gates of the Mountains Lakeshore Homes, Inc. , 732 F.2d
1411, 1413 (9th Cir. 1984); cf. United States v. Okla. Gas & Elec. Co. , 318 U.S. 206
(1943) (holding scope of federal right of way, granted under federal law specifically
incorporating state law, included transmission lines in accordance with state law),
discussed in Mountains Lakeshore Homes , 732 F.2d at 1414.
52
S. Utah Wilderness All., 425 F.3d at 766 (referencing1974 Bureau of Land
Management regulation). But cf. Fisher v. Golden Valley Elec. Ass'n, 658 P.2d 127, 130
& n.9 (Alaska 1983) (holding, expressly based on easement case law not pertaining to
RS 2477 rights of way due to inadequate briefing, that utility could construct power lines
on RS 2477 easement). The continued vitality of Fisher is not before us in this case.
53
Dillingham Com. Co. v. City of Dillingham, 705 P.2d 410, 415 (Alaska
1985).
54
Right Of Way, BLACK'S LAW DICTIONARY (4th ed. 1968).
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[55]
and the duty of public maintenance on the other.
Black's Law Dictionary also listed examples of highways: "carriage-ways, bridle-ways,
56
foot-ways, bridges, turnpike roads, railroads, canals, ferries or navigable rivers."
The State urges us, based on Dillingham Commercial Co. v. City of
Dillingham, to hold that RS 2477 rights of way include any use "consistent with public
travel," including boat launches, camping, and day use. The State's quotation is correct,
but Dillingham merely permitted an existing RS 2477 right of way across the servient
estate to a beach for cargo loading to include access to a new loading dock that did not
exist when the right of way was established and was not located on the servient estate;
it does not support expanding the right of way's scope to include uses other than travel-
related activities.57 In Dillingham we explicitly rejected the argument that an RS 2477
right of way allowed the government to "use the land for any purpose, such as a park."58
And although the State is correct that in Dickson v. State, Department of Natural
Resources we disavowed any notion that historic use is relevant once an RS 2477 right
of way is established, we did not address whether the right of way's scope included uses
inconsistent with relevant definitions of "highway."59
Akin to typical right of way easements, where the holder is limited to
reasonable use of the easement, the holder of an RS 2477 right of way is "authorized to
55 Highway, BLACK'S LAW DICTIONARY (4th ed. 1968) (citations o mitted).
56 Id.
57 705 P.2d at 414-15.
58 Id.
59 433 P.3d 1075, 1084-85 (Alaska 2018) (affirming that RS 2477 right of
way previously primarily used as p art of historic Iditarod trail was n ot limited to winter
use or dog-mushing but could "be used for any purpose consistent with public travel"
(quoting Dillingham, 705 P.2d at 415)).
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make any use . . . reasonably necessary for the convenient enjoyment of the easement" 60
subject to the terms and "purposes for which the servitude was created."61 The State may
maintain and modernize the road, but any expansions must be consistent with the scope
of the federally granted right of way: as a highway defined and limited by relevant state
law.62 For example, we recently affirmed a superior court's determination that
maintenance activities - such as "grading and compacting the road and plowing snow
and other debris off the side of the road" - which caused an "[i]ncidental widening" of
a right of way easement did not constitute unreasonable interference with the servient
estate despite damage to the bordering "trees and brush."63
60 RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.10 cmt. c, at 593
(A
M. L. I NST . 1998); see Andersen v. Edwards, 625 P.2d 282, 286 (Alaska 1981)
(rejecting argument that holder of non-RS 2477 right of way easement had "an absolute
right to clear [a] right-of-way within the 100-foot limit of the reservation").
61 RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.10 cmt. d, at 592,
594-95 (A M. L. I NST . 1998).
62 See id.; S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735,
746 (10th Cir. 2005) (noting that RS 2477 right of way was not required "to be
maintained in precisely the same condition . . .; rather, it could be improved 'as necessary
to meet the exigencies of increased travel,' so long as this was done 'in the light of
traditional uses to which the right-of-way was put' as of repeal of the statute" (quoting
Sierra Club v. Hodel, 848 F.2d 1068, 1083 (10th Cir. 1988))); see Wayson v. Stevenson,
___ P.3d ___, Op. No. 7614 at 11-13, 20-22, 2022 WL 3331495, at *13 (Alaska Aug.
12, 2022; Case No. S-17874) (stating that even if deed granting right of way use
"without restriction" had been ambiguous, extrinsic evidence made clear that grantee
intended to use easement commercially and subsequently balancing maintenance needs
for commercial use of road with harms to servient estate owner).
63
Wayson, ___ P.3d ___, Op. No. 7614 at 20-22 (alteration in original) ("The
manner, frequency, and intensity of [easement] use may change over time to take
advantage of developments in technology and to accommodate normal development of
the dominant estate or enterprise benefitted by the servitude.").
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Fact finding is necessary to determine which of the State's proposed
projects along Klutina Lake Road are reasonably necessary for and within the scope of
a highway, as the term was used in 1969. This requires the superior court, within its
64 In light of the
discretion, to balance the interests of the servient and dominant estates.
length, condition, and purpose of the RS 2477 right of way, some of the State's proposed
projects may more reasonably relate to those factors than others. Projects such as
occasional pull-outs for travelers to rest or a restroom facility may better fit within the
scope of a 1969 highway than removing vegetation to provide river views or potential
fishing sites. A boat ramp at the end of the road, like the dock in Dillingham, may be
more reasonable than a series of ramps with associated parking lots along the length of
the road. In short, the State must demonstrate that its proposed projects relate to
facilitating highway transportation, i.e, that the projects are reasonably necessary for
highway purposes as defined in 1969, not simply that the projects would be nice facilities
along the highway. And the superior court must use its discretion to determine whether
the State's proposed projects would unreasonably interfere with Ahtna's reasonable use
of the land. Because the State has not had an opportunity to present its proposed projects
to the court and litigate Ahtna's opposition to those proposed projects, a remand for
further proceedings on this aspect of the dispute is required.
V. CONCLUSION
The superior court's grant of partial summary judgment regarding
aboriginal title is AFFIRMED. But its grant of partial summary judgment establishing
64 See id. at 3-4, 20-22 (reaffirmingthat superior court's balancingis reviewed
for abuse of discretion and discussing balancing test: "[T]he interests of the parties must
be balanced to strike a reasonable accommodation that maximizes overall utility to the
extent consistent with effectuating the purpose of the easement." (quoting Sykes v.
Lawless, 474 P.3d 636, 645 (Alaska 2020))).
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that as a matter of law the scope of the RS 2477 right of way use is limited to ingress and
egress is VACATED and REMANDED for further proceedings consistent with our
decision.
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