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Point MacKenzie landowner claims Coast Guard's tree cutting illegal, destroyed property

Laurel Andrews

Standing on his property on the tip of Point MacKenzie, with downtown Anchorage rising to the east across Knik Arm, Fred Thoerner points to overgrown tree stumps where the U.S. Coast Guard unexpectedly cleared his land three years ago.

The trees they cut down, he says, were holding the crumbling bluff together against the churning waters of Cook Inlet. With the trees gone -- thanks to a cut he claims was illegal -- erosion has accelerated, shrinking a parcel of land his family has owned for generations.

The Coast Guard says it had to clear Thoerner's land to maintain a navigational beacon that has been in place since World War II. The beacon went out of service sometime after 2009 and remains out of service today pending the resolution of the dispute with Thoerner.

The Coast Guard has serviced and replaced the beacon over the decades, part of a navigational system leading into the Port of Anchorage. The federal agency says it has the right to do so. Thoerner, who inherited the land from his grandfather, claims otherwise.

In August 2011, the Coast Guard arrived on Thoerner's property, cut down 44 trees near the bluff and began digging holes to install a new navigational beacon. The last beacon had succumbed to erosion and today still remains overturned on the shoreline where it tumbled down the bluff.

While cutting the trees, the Coast Guard was confronted by a "local resident," wrote Stanley Fields, judge advocate with the Coast Guard. Thoerner said that resident was his aunt, and she challenged their right to be on the property.

"The situation escalated, and at least one local resident arrived with a firearm," Fields wrote. The Alaska State Troopers later arrived on scene but failed to remedy the dispute. Fields says due to the "tense" situation, the Coast Guard postponed its plans to rebuild the light.

DYNAMIC LANDSCAPE

Traveling to Thoerner's property takes only 15 minutes via skiff from the small boat harbor in downtown Anchorage across Knik Arm. After scaling a steep bluff loose with silt and sand, you walk onto land thick with devil's club, arctic rose, grasses and deciduous trees. Stumps and brush are piled near the northern edge, and Thoerner says that's where the Coast Guard dumped the debris.

Over the decades, erosion has continually eaten away at Thoerner's land. A survey from the 1950s marks the land as being 1.78 acres. That has since shrunk to under an acre, according to a 2012 survey.

"I don't think (Thoerner's lot) is going to exist at all in 50 years," Thoerner's attorney Jason Ruedy said.

From the shoreline, erosion is most noticeable where the trees were cut. Felled trees are strewn down the side of the bluff. With the trees uprooted and no longer stitching the soil together, "basically my land is disappearing at an exorbitant rate," Thoerner said.

Thoerner hopes to eventually build a cabin on an adjacent lot that he owns on Point MacKenzie but worries that erosion will eventually wash his plans away.

After the clearing of the land, Thoerner had the trees appraised and in April 2013 filed a damage claim with the Coast Guard. A year later, he received a denial of the claim, with the justification that the U.S. has continuously reserved an easement to the property.

Even in Alaska -- with only 1.2 people per square mile, according to the U.S. census -- land disputes are a relatively common occurrence.

Ruedy said land disputes are "hot button issues" that cross his desk regularly. That's partially due to how the state was developed, he said, with large portions of undeveloped land being carved into sections, and the ways in which various reservations, such as rights-of-way, were laid out when the land was being divided.

Erosion issues are also a common problem in the Last Frontier, said Wyn Menefee, chief of operations for the Division of Mining, Land and Water. "That is the nature of Alaska because it is a dynamic landscape," he said.

Glacial rivers and oceans erode the land and can threaten or destroy property. Such was the case when the Matanuska River swept homes into the water several years ago, Menefee said.

Further complicating some older land transactions is "vague language" written in patents, Menefee said, which can lead to disputes.

RIGHT OF WAY WASHED AWAY?

Such appears to be the case for Thoerner, as a patent laid out in 1955 reserves rights to an easement that the Coast Guard claims is still valid. The patent allows for a right-of-way of up to 33 feet on the north and west boundaries of the land, for roadway and public utilities purposes.

Thoerner says those reservations don't cover the area where the trees were cut down. He and his attorney maintain that the Coast Guard cut trees on the south side of the land, where the bluff meets the sea, which is not reserved in the patent. "They have no right to do what they did," Thoerner said.

Coast Guard spokeswoman Veronica Colbath wrote that the beacon "was established on federally owned land, but when the land was subsequently subdivided and sold to private parties, the easements were created to ensure access through the property would be memorialized. ... Removing obstructions such as trees was done to maintain the (beacon), not to traverse through the property to maintain the (beacon)."

Regardless, the land's continual erosion means that the Coast Guard keeps marching the easement back. The Coast Guard has moved the beacon inland several times since it was first installed in 1944, at times as much as 25 to 50 feet, Fields wrote.

Thus, "that area that would have been subject to that easement is no longer even in existence," Ruedy said.

Without a clear representation of where the right of way begins and ends, it renders the land "pretty much useless," Ruedy said. "As a property owner you're going to have a difficult time trying to develop anything on that land."

Meandering easements do exist -- where the easement moves along with a body of water -- Menefee said, but generally speaking need to be described in the patent.

Colbath wrote that the beacon "was moved back out of necessity. Had it not been moved back the (beacon) was at risk of falling off the cliff which would have defeated the purpose of establishing and maintaining the (beacon) in the first place, which is to ensure the safety of mariners and vessels operating on the waters near Point MacKenzie."

HISTORY REPEATS ITSELF

The dispute also appears to be a case of history repeating itself.

Thoerner's grandfather David Ring came to Alaska in 1953. Ring "flipped a coin in Tok" as to whether he would head to Fairbanks or Anchorage, Thoerner said. The coin sent him to Anchorage, and he wound up homesteading in a cabin on Point MacKenzie. His original homestead was 160 acres, granted in 1955, Thoerner said.

Documents obtained from the Coast Guard show that the agency had a near-identical conflict with Ring in September 1966, when the agency went onto the land to service the light. A memo from a Coast Guard representative identified as A.H. Clough states that the Coast Guard entered the property, cut down trees, left construction debris and angered the property owner as they attempted to service the light.

"There is nothing of record on this matter in Coast Guard files," Clough wrote in 1966. He suggests the Coast Guard determine the legal status of the light, write a conciliatory letter to the landowner, and direct the Coast Guard to clean up the area on the last visit.

A few weeks later, Clough wrote in a second memo that there was a clause in the title permitting the agency to maintain the beacon, but that "it is preferred that this work be accomplished with ... cooperation."

Ring died in 2008, and Thoerner's family began to divide the land. He and his sisters still share 50 acres out on Point MacKenzie, where Ring's homestead used to be. Ring never mentioned the Coast Guard's actions on the land, Thoerner said.

In 2011, Thoerner was not notified of the Coast Guard's plans to cut the trees, a fact that angers Thoerner and Ruedy. "More troubling than anything (is) ... just the fact that this has been an ongoing issue," Ruedy said.

Fields wrote that the Coast Guard attempted to contact Thoerner, with no success.

For now, Thoerner will be asking for a reconsideration of the Coast Guard's decision. Ruedy said they are still weighing whether to enter into litigation.

"If you can't rely on the written documentation, or what the law says, I don't know where we're at," Ruedy said.

 


By LAUREL ANDREWS
laurel@alaskadispatch.com
Contact Laurel Andrews at or on