A trial three years in the making began this month in an Anchorage courtroom as a pair of landowners suing the state Department of Natural Resources over access to two trails -- including a portion of the historic Iditarod Trail that cuts through their inherited homesteads -- hope to keep people off their land.
Plaintiffs Kelly Dickson and Donna Defusco, who originally filed the suit in May 2012, say two trails on four parcels aren't subject to the right-of-way access sought by the state.
But the trails have a long history of public use, and blocking access to the land would halt a long tradition of sled dog teams racing and training there, according to state attorney Kent Sullivan.
The property is in the Knik area, near the intersection of Burma and Moore roads. The plaintiffs' father, Benjamin Cowart, homesteaded it in 1958 and he received a patent from the federal government in 1962 documenting true ownership of the land, according to the plaintiffs' trial brief.
Two public rights-of-way cross the Cowart homestead parcels, Sullivan said. They include a portion of the historic Iditarod Trail known as the Knik to Susitna Trail. The second right-of-way is called Homestead Road, established in 1958 and used by homesteaders to access their property, according to the state.
The right-of-way designation allows use for access and recreation, said Jim Walker, natural resource manager leading the Public Access Assertion and Defense Unit within the Division of Mining, Land and Water.
"In addition to recreation, they provide access so that landowners can reach their own property; so that parties can reach state lands, waters, parks and other destinations; so that parties can use and enjoy the natural resources of the state; etc.," Walker said in an email.
Adolf Zeman, attorney for Dickson and Defusco, said access is not an issue, as three roads around the property eliminated the required use of the two private routes.
Walker said he is not aware of any other state court litigation involving rights of way and the Iditarod Trail. Similar instances were discussed, and agreements were reached out of court, he said. The Iditarod National Historic Trail encompasses 1,500 miles of trails open to public use, according to the Bureau of Land Management. It runs from Seward to Nome and includes portions like Crow Pass between Girdwood and Eagle River and passes through the Palmer Hay Flats State Game Refuge. The current Iditarod Trail that serves as the route for the famous sled dog race begins farther north, in Willow.
During opening statements at the Nesbett Courthouse on Monday, the plaintiffs told the judge the state carries a heavy burden of proof -- to prove its claims, the state must prove the existence and exact location of the alleged trails and how long they've been used by the public. Zeman said the state has constructed a convoluted story to satisfy its narrative.
"In order to lay their claim, they have to make this case as complicated as possible," Zeman said.
He argued that Cowart, being one of the first homesteaders in the area, would have seen two routes cutting through the property and chosen another parcel. The daughters brought the lawsuit against the state, but they didn't express their reason for not wanting rights of way to run through the lands, and Zeman spent most of his opening statement casting doubt on the state's legal arguments.
Zeman also alluded to larger implications for the case.
"If the state is allowed to secure these (rights of way), then every landowner east of our client's property to Knik will be subject to them, which will certainly come as a surprise," he said.
Sullivan said part of the case centered on a piece of the rich, colorful history of the state, specifically the historic Iditarod Trial. But he argued the state can demonstrate the routes across the plaintiffs' property existed before homesteading by means of one or two legal arguments, and "it matters little that it was the historic trail, or called by some other name."
The state is asserting ownership of both routes under a federal law dealing with unreserved federal public land.
Sullivan said the state will show the two trails on the land were accepted as public rights-of-way before Cowart planted his flag there.
"The (Knik-Susitna segment) was used long before Mr. Cowart homesteaded. It was originally used by miners to access Interior Alaska," Sullivan said. Since 1967, many sanctioned dog races occurred over the property, he said.
The state also intends to argue both the Iditarod Trail and Homestead Road have continuously had a "high level of use" even after the land was homesteaded, Sullivan said, and the state found an "unlimited" number of witnesses to testify about that use. The number of people with relevant knowledge totaled more than 4,500 at one point, which was eventually culled down to 100 witnesses.
Witnesses will include well-known mushers, like the Redington family, Martin Buser, Dan Seavey and Dave Olson, among others.
Barb Redington said the Knik-Susitna Trail had been used for the Junior Iditarod, though the race was moved to Eureka or along the Denali Highway because of low snow over the past two years.
"To me, it's a shame that it's come to this, because that section (of trail) is used in the wintertime for training. (Trainers) aren't staying and camping, they're just going through," Redington said.
Martin Buser said he's heard of the problems with access to the trails in Knik, and he feels lucky he has not had to deal with the same issues near Big Lake. He said he used the Knik-Susitna Trail when it was used for past races.
"It either needs to be made official or we need to find a workaround," he said.
As for Homestead Road, Sullivan said the person who built the road will testify that when he built the road, other homesteaders were "following in his fumes" to grab up available land. Homestead Road is still in use, according to the state.
The trial is set to last up to a month.