The Road Goes Ever on and On: a Path Through the Wilderness of R.s. 2477 Litigation in Alaska

• Publication year: 2019

§ 36 Alaska L. Rev. 193. THE ROAD GOES EVER ON AND ON: A PATH THROUGH THE WILDERNESS OF R.S. 2477 LITIGATION IN ALASKA

Alaska Law Review
Volume 36, No. 2, December 2019
Cited: 36 Alaska L. Rev. 193

THE ROAD GOES EVER ON AND ON: A PATH THROUGH THE WILDERNESS OF R.S. 2477 LITIGATION IN ALASKA

Michelle Jackson ^[*]

ABSTRACT

Seeking to encourage people to settle the public domain, the federal government established the R.S. 2477 right of way, a grant to construct highways over land in the public domain. There are now thousands of miles of highway across the Western United States constructed pursuant to the authority in R.S. 2477, but most of these rights of way were never documented by any formal process. Alaska has made it a priority to document existing R.S. 2477 rights of way in an effort to manage and develop public lands. Identifying existing R.S. 2477 rights of way is essential for economic development, but the State's aggressive litigation strategy threatens the rights of private property owners, the integrity of land allotments under the Alaska Native Claims Act, and federal conservation efforts in Alaska. After examining the history of R.S. 2477, Alaska's litigation strategy, and how these rights of way conflict with interests of Native Corporations and federal wilderness and conservation efforts, this Note offers possibilities for resolving the conflict over R.S. 2477 rights of way in Alaska.

I. INTRODUCTION: DOGSLEDS, DIPHTHERIA, AND THE DEPARTMENT OF NATURAL RESOURCES

Located two degrees below the Arctic Circle, the former goldrush boomtown of Nome was isolated. ^[1] During winters when the Bering Sea froze over, the only path across the frozen landscape was the Iditarod trail, a dogsled trail of roughly 1,000 miles winding over the mountains to the sea at Seward. ^[2] In January 1925, after a series of mysterious deaths among young children, the only doctor in the city diagnosed a three-year old boy with diphtheria. ^[3] Although he previously requested a new shipment of diphtheria antitoxin, it never arrived. ^[4] Without the antitoxin, the population in the surrounding area faced an imminent risk of epidemic and a possible mortality rate of 100 percent. ^[5]

The doctor sent urgent telegraphs across Alaska seeking assistance. ^[6] After hearing of the need, an Anchorage surgeon discovered some 300,000 vials of the antitoxin. ^[7] The board of health rapidly organized a dogsled relay to transport the serum across the state. ^[8] Despite whiteout conditions and temperatures reaching sixty degrees below Fahrenheit, more than twenty mushers and 150 dogs traveled 674 miles in five and a half days to deliver the serum and save the city of Nome. ^[9]

The "Great Race of Mercy" has been celebrated in popular culture ^[10] and commemorated in the Iditarod Trail Sled Dog Race. ^[11] The Iditarod is an annual dogsled race retracing the roughly 1,100 miles from Anchorage to Nome. ^[12] The race attracts between 50-100 participants from all over the world. ^[13] The increasing popularity of the Iditarod and the historic significance of the trail led to the dedication of portions of the Seward-to-Nome trail system as the Iditarod National Historic Trail. ^[14]

The State of Alaska has made it a priority to preserve public access to historic trails, such as the Iditarod. ^[15] In a recent case, the State successfully defended an attempt to restrict access to a portion of the Historic Iditarod Trail. ^[16] The dispute began in 1983, after the State sent Benjamin Cowart a letter informing him that the Historic Iditarod Trail crossed his property. ^[17] Cowart responded by placing a metal post reading "NO TRESPASSING" in the middle of the pathway. ^[18]

The case eventually went to trial in 2016. ^[19] After a 27-day bench trial, the superior court found that the Historic Iditarod Trail crossed the property on a R.S. 2477 right of way. ^[20] A right of way gives people the right to travel on a route, regardless of who owns the underlying land. ^[21] A R.S. 2477 right of way is a grant from the federal government, which gave people the right to construct highways over land in the public domain. ^[22] The grant was intended to encourage people to settle the public domain, and it was largely successful. ^[23] Across the Western United States, thousands of miles of highways were constructed across the public domain pursuant to the authority in R.S. 2477. ^[24] However, most of these rights of way were never documented by any formal process. ^[25] Now that most of the public domain has been settled, state governments have started trying to document the existence of R.S. 2477 rights of way to ensure that the public has access to the roads and trails that were constructed on these rights of ways. ^[26]

The State of Alaska has made it a priority to document existing R.S. 2477 rights of way, so it can "reasonably manage, maintain and develop the lands, resources and opportunities it owns and holds for the public." ^[27] Although Alaska is the largest state in the country, it has fewer public roads than Connecticut. ^[28] To develop more roads or provide public access to land that can only be reached by remote trails, the State needs to clarify that the right of way given in R.S. 2477 actually exists. ^[29] The R.S. 2477 routes provide a transportation network between rural communities and "create significant entrepreneurial, recreational, and tourism opportunities." ^[30] In 1998, after years of researching R.S. 2477 rights of ways, Alaska passed a statute documenting the existence of hundreds of potential R.S. 2477 rights of way. ^[31]

Many of these potential rights of way, however, provide public access to a path that crosses privately owned land. ^[32] One citizen expressed concern that asserting title to these rights of way could have a "profound effect on adjacent land holders . . . [including] many native corporations and other private land owners who look to the integrity of their lands for the protection of important subsistence habitat as well as economic development consistent with local goals." ^[33] These concerns continue to remain true twenty years later. Ultimately, any vision of Alaska's future development must take into account the complex history and preexisting claims to land.

Identifying existing R.S. 2477 rights of way is essential for economic development, but the State's aggressive litigation strategy threatens the rights of private property owners, the integrity of land allotments under the Alaska Native Claims Act, and federal conservation efforts in Alaska. Part II will trace the history of R.S. 2477 from its origin as a tool for developing the Western United States to a main focus of the controversy over land control. Part III will focus on R.S. 2477 litigation in Alaska by detailing the State's litigation strategy and demonstrating how these cases work in practice. Part IV will examine how these rights of way conflict with the interests of Native Corporations and federal wilderness and conservation efforts. Part V will examine possibilities for resolving the conflict over R.S. 2477 rights of way in Alaska in a way that balances private ownership interests with the need for continued economic development in Alaska.

II. HOW THE WEST WAS PAVED: 19TH-CENTURY MINING LAW MEETS 21ST-CENTURY DEVELOPMENT

After the Civil War, the federal government encouraged settlement of the Western United States by granting rights of way for various purposes, most commonly for railroad construction. ^[34] In 1866, Congress passed the Lode Mining Act, which authorized various rights of ways and mining rights. ^[35] Section 8 provided a simple grant for highway construction: "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." ^[36]

This simple grant has been understood as an offer "to legitimize existent miners' and homesteaders' access routes that had developed across the public domain during the expansion of the western frontier." ^[37] The grant also encouraged the further construction of roads to reach undeveloped natural resources in the west. ^[38] One federal judge described the statute as a necessary corollary to the grant of mineral or homesteading rights:

One need but to raise their eyes, when traveling through the West to see . . . where some prospector has found a stake or broke his heart or a homesteader has found the valley of his dreams and laboriously and sometimes at very great expense built a road to conform to the terrain. ^[39]

If the right of access to the natural resources was not protected and could be revoked at will by the federal government, the mining claim and investment would be "a delusion and a cruel and empty vision." ^[40]

Public lands are "lands that are open to settlement or other disposition" under United States land laws. ^[41] The grant in R.S. 2477 excludes any land subject to a valid claim or right of another. ^[42] Thus, a R.S. 2477 right of way could only be created on purely public lands. ^[43] Once someone claimed the land as private property, a public right of access under R.S. 2477 could not be created across the land. ^[44] The rights of way grants also do not apply to public lands reserved for public uses, such as a National Park, National Forest, or Wilderness refuge. ^[45]

Creating a R.S. 2477 right of way required "no administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act...