by Jenny Chissus
On Tuesday, November 27th, BLM representatives arrived in Seldovia to post the sign for the 17(b) easement, marking the start of the easement access to public lands in the hills surrounding Seldovia. The beginning of the easement is just past the landfill on Rocky Street, and the sign was posted adjacent to the gate that currently marks the beginning of Seldovia Native Association land.
There are many avid hikers, skiers and fishermen who remember the days when access was open and available – leading back to the head of Seldovia Bay and Seldovia River, with access to Seldovia Lake.
From what I have gathered, (though it is very complicated – see SNA position stated below) the simplified version according to the Seldovia Native Association, is that the easement location on the posted map by BLM does not follow the original trail, and is therefore not the legal access to state lands or the lake. Because the location of the old trail (easement) is difficult to determine and very rough going, and only 25 feet wide it is not a valid easement for individuals to use, as they would have to trespass on native lands in order to viably gain access. Realistically, this trail was difficult to travel on foot – let alone on an ATV or motorized vehicle of any sort. Liability is also an issue for SNA as individuals may get lost or hurt in the hills due to poor conditions and unmarked easements.
I have gathered commentary on both sides of this issue, which is posted below. Even though there doesn’t appear to be an agreement as to the ability for public access of this easement at this time, my hope is that we are one step closer to resolving the issue.
Please see the map below (click on it to enlarge), provided by BLM to view the easements in the Seldovia area. You may also click here to go directly to the BLM site to view the maps of the entire area. (Thank you Jere for that link!)
I had a chance to speak with Nikki Moore, Deputy Division Chief (BLM representative who was here on the 27th), as well as Teresa McPherson about BLM’s position regarding this easement, and Teresa provided me with the following statement:
BLM’s Position on the 17(b) easement
The Seldovia Lake trail easement was reserved in Patent No. 50-2006-0381 (see attached pdf – Seldovia Patent 50-2006-0381 ) under Sec. 17(b) of the Alaska Native Claims Settlement Act. The conveyance documents describe the easement from BLM:
(EIN 19 C5) An easement twenty-five (25) feet in width for an existing access trail from the village of Seldovia in Sec. 32, T. 8 S., R. 14 W., Seward Meridian, southerly to Seldovia Lake in Sec. 2, T. 10 S., R. 14 W., Seward Meridian.
The uses allowed on a twenty-five (25) foot wide easement as stated in the patent are travel by foot, dogsled, animals, snowmobiles, two and three-wheeled vehicles, and small all-terrain vehicles (AVT’s) (less than 3,000 lbs. Gross Vehicle Weight (GVW)).
BLM has worked with SNA, the City of Seldovia, and State of Alaska for many years regarding this easement. More recently, the BLM discussed options with all parties for pursuing an alternative easement route, but no agreement was reached.
GPS coordinates taken from the official easement quad were located in the center of the road where SNA has placed a locked gate. On Nov. 27, BLM posted a metal sign on the east side of the gate. This standard easement sign reads “Access Route to Public Lands.” BLM also posted a copy of the official easement quad and a Web link where the public can download coordinates for the easement route.
At this time, the BLM has no further plans to clear trail or mark additional points (via signs) along the easement.
If at a later date, SNA reaches an agreement with the State of AK and City of Seldovia re a reasonable alternative route, BLM could work with all parties to potentially relocate the easement.
BLM has also offered the 2006 Patent Seldovia Patent 50-2006-0381 from the case file. The case file is available for public viewing in our Public Room via appointment during regular business hours.
While I was out on Rocky Street, I had the opportunity to interview a few Seldovians who came out to witness the posting of the easement. Please excuse the poor sound quality. Thank you to Walter McInnes, Jere and Sandy Murray and Shad Haller for sharing their thoughts on the 17(b) easement.
I also had the opportunity to speak with Leo Barlow, the Chief Executive Officer of the Seldovia Native Association, and he put together the following response to the posting of the easement:
SELDOVIA NATIVE ASSOCIATION POSITION REGARDING
ANCSA SECTION 17(b) 25-FOOT TRAIL EASEMENT TO SELDOVIA LAKE
In section 17(b) of the Alaska Native Claims Settlement Act (ANCSA) Congress directed that when he conveys to a village corporation title to the surface estate of federally-owned land the Secretary of the Interior shall “reserve such public easements as he determines are necessary.”
In 1993 and 2006 the United States issued the Seldovia Native Association (SNA) Patent Nos. 50-93-0522 and 50-2006-0381 in which the Secretary of the Interior purported to convey to SNA the title to the surface estate of federally-owned land in the Seldovia Valley. However, the Secretary actually conveyed that title to SNA on October 17, 1975 when BLM issued Interim Conveyance No. 16 to SNA. (In section 22(j)(1) of ANCSA, Congress directed that an “interim conveyance” shall “convey to and vest in the recipient exactly the same right, title, and interest in and to the lands as the recipient would have received had he been issued a patent by the United States.”)
In Interim Conveyance No. 16 BLM reserved to the United States “a 25-foot trail easement for the existing trail from the village of Seldovia to Seldovia Lake.” (emphasis added).
The location of the trail to Seldovia Lake that existed on October 17, 1975, i.e., on the date BLM issued Interim Conveyance No. 16, is a question of fact about which only someone who on October 17, 1975 had personal knowledge of the location of the trail can provide reliable evidence. For that reason, at BLM’s request, during summer 2009 SNA had Kim Collier walk the trail with Stephen Fusilier, the Lands Branch Manager of the BLM Anchorage Field Office, and several other BLM employees. Mr. Collier is a life-long resident of Seldovia who has personal knowledge of the location of the trail on October 17, 1975.
Despite the efforts of SNA to work with BLM to ensure that the location of the 25-foot trail easement is accurately marked, in a Memorandum to File regarding the matter dated January 6, 2012 Mr. Fusiler first noted that
In August 2009, I and other BLM personnel reviewed and inspected the shoreline route which SNA proposes as the 17(b) easement. That inspection showed the route to be extremely difficult and potentially unsafe at some points for foot traffic. The shoreline trail as shown to BLM personnel would require extensive work and require significant expenditure of funds to bring it to a standard that would meet the conditions of a 25-foot trail as outlined below.
In disregard of the evidence regarding the location of the trail that he had been provided by Mr. Collier, Mr. Fusiler then announced that “the exact location of the historic trail is impossible to determine as logging through the region and improvements by the [Kenai Peninsula Borough] have obliterated the potential for clearly identifying the exact easement location.”
Mr. Fusiler concluded his Memorandum to File by announcing that since he had decided that “the exact location of the historic trail is impossible to determine,” his recommendation was that “BLM contact SNA and work with them to mark the 17(b) easement based on the records available that will in portions follow the line of or be adjacent to the existing road (in those sections containing the road) and staying inland . . . .”
The “existing road” to which Mr. Fusiler referred is a private road that SNA built in the 1980s to facilitate the commercial logging of land that SNA owns in the Seldovia Valley. As Mr. Collier explained to Mr. Fusiler, the route of SNA’s logging road does not follow the route of the “trail from the village of Seldovia to Seldovia Lake” that existed on October 17, 1975.
In addition, in 1975 when it issued Interim Conveyance No. 16 BLM represented to SNA and all other ANCSA village corporations that 25-foot trail easements were being reserved for “foot trails and snowmachine trails” and 50-foot easements were being reserved for “all-terrain vehicle trails.”
Three years after BLM issued Interim Conveyance No. 16 the Secretary of the Interior promulgated 43 C.F.R. 2650.4-7 (1978). That regulation for the first time identified the modes of transportation the public could use to travel on ANCSA section 17(b) easements of various widths. With respect to those modes, the regulation divided all-terrain vehicles into two categories – “small” and “large,” and announced that henceforth small all-terrain vehicles – i.e., vehicles that weigh less than 3,000 lbs. – could be operated on 25-foot trail easements.
Fifteen years later, in 1993 the United States attempted to issue Patent No. 50-93-0522 to SNA to replace Interim Conveyance No. 16. The text of the patent tracked the text of 43 C.F.R. 2650.4-7 (1978) by asserting that the 25-foot trail easements reserved in the patent can be used for “travel by foot, dogsleds, animals, snowmobiles, two and three- wheel vehicles, and small all-terrain vehicles (less than 3,000 lbs. gross vehicle weight).” (emphasis added).
However, the 25-foot trail easements described in Patent No. 50-93-0522 actually were created in eighteen years earlier in Interim Conveyance No. 16. And as has been described, in Interim Conveyance No. 16 BLM did not reserve the 25-foot trail easement from “the village of Seldovia to Seldovia Lake” for travel utilizing all-terrain vehicles. As a consequence, the attempt in Patent No. 50-93-0522 (and Patent No. 50-2006-0381) to expand the modes of travel permitted on the easement was unlawful.
On November 27, 2012 several BLM employees flew from Anchorage to Seldovia where they planted a post on SNA property next to the gate across SNA’s private road that SNA keeps closed and locked in order to prevent vandals from using the road to trespass on SNA’s private property in the Seldovia Valley. To the top of the post the BLM employees attached a sign and a map.
The sign announces to the public that the ANCSA section 17(b) 25-foot trail easement that runs to Seldovia Lake begins at that location and follows the route of SNA’s private road past the locked gate. The sign also invites the public to use all-terrain vehicles that weigh 3,000 pounds or less to travel on the easement. The map purports to depict the route of the easement that begins at the sign post.
SNA has informed the BLM Alaska State Director that the post BLM employees planted is in trespass on SNA land, that the location that the sign on the post informs the public is the beginning of the 25-foot trail easement to Seldovia Lake is not the location at which the easement begins, and that, as a matter of law, the public is prohibited from operating all-terrain vehicles on the easement. SNA has requested the State Director to promptly remove the post, sign, and map, and has informed the State Director that, if BLM does not do so, SNA will remove them.
SNA also cautions members of the public not to trespass on SNA’s private road either in front of or behind the locked gate.
If you have any questions, please feel free to contact:
Public Affairs Specialist
BLM Anchorage Field Office
4700 BLM Road,
Anchorage, AK 99507
Chief Executive Officer
Seldovia Native Association
700 East Dimond Blvd.
Anchorage, Alaska 99515