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State seeks appeal of decision on Chicken trails

Dermot Cole

FAIRBANKS -- The state of Alaska plans to appeal a federal court ruling rejecting the state’s claim to rights of way across two Native allotments near Chicken.

“The court’s ruling impedes the state’s ability to preserve and adjudicate state property interests and protect public rights of way for public use,” Assistant Attorney General Z. Kent Sullivan wrote in an email.

The court order from Judge Ralph Beistline came Monday in a case in which the state argued for rights of way established a century ago near Chicken across Native allotments applied for by Agnes Purdy and Anne Purdy four decades ago.

The rights of way are part of a broader state campaign to demonstrate access rights under the 1866 law known as Revised Statute 2477.

That law allowed for rights of way on public land in states and territories. While the provision has long since been repealed, the state contends that the rights of way established in the early 1900s and beyond should be recognized by the federal government.

The test case concerns six trails in eastern Alaska, two of which were established as part of the early 20th century trail from Valdez to Eagle, used by gold seekers, dog mushers and the military. The trails have been used for generations by miners, hunters, fishermen and others, the state argues.

Beistline said federal courts do not have the authority to say that state rights of way take precedence in this matter because the federal government has not given consent to be sued over Native allotments.

"In the absence of clear authority to do so, this court is disinclined to abrogate the sovereign authority of the United States," Beistline said.

The Purdys and the U.S. Justice Department argued that the court has no authority in this case. The federal government said that the state claims of “amorphous” RS 2477 rights of way that date back more than a century are not sufficient to prove that the rights existed before the Native allotments were filed for in 1971 and 1972.

The state said the Agnes Purdy allotment is crossed by the Chicken-to-Franklin Trail, the Chicken Ridge Trail, the Chicken Ridge Alternate Trail and the Myers Fork Sur Trail.

The federal lawyers said the only public trail recognized in the allotment certificate is the Chistochina-Eagle Trail.

In a nine-page ruling, Beistline wrote that his final judgment would be entered right away, recognizing that the legal battle would continue.

“An immediate appeal would hopefully serve to resolve this issue once and for all,” he wrote.

Sullivan said the Beistline decision “recognized the importance of the issues involved to the state’s case and invited an immediate appeal. “

“While the state is disappointed with the judge’s decision, it is inclined to agree regarding the appropriateness of an immediate appeal. Therefore, the state will be appealing this decision,” he said. The appeal will be to the Ninth Circuit Court of Appeals.

The Beistline decision means the state “lacks jurisdiction to sue to impose RS 2477 public roads,” said Fairbanks attorney Mike Kramer, who represents the Purdys.

Under a 1906 federal law, Alaska Natives could claim allotments of up to 160 acres. The law was repealed with the 1971 land claims settlement, but before that happened about 10,000 Alaska Natives applied for allotments.

The state contended that the allotments were subject to the existing state rights of way.

Revised Statute 2477 is a portion of an 1866 mining law that gave states and territories rights of way on federal lands. "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted," the law said.

The state contends that more than 600 old trails around Alaska justify rights of way under the 1866 law, but the federal government has acknowledged only a few of them.

Contact Dermot Cole at dermot(at)alaskadispatch.com. Follow him on Twitter @dermotmcole