I had long been proud of the fact that over the course of my career I had managed to avoid dealing with the possibility of section line easements associated with protracted section lines. This changed during my employment with R&M on this project, which involved the development of a ROW Acquisition plat for a new airport at Newtok and on another project related to ANCSA lands. (Protracted Section Line Easements on ANCSA Lands - 2017)
The village of Newtok is to be relocated to the Mertarvik Townsite as a result of catastrophic erosion. As is typical with most ANCSA lands, BLM only monumented the exterior township boundaries at 2 mile intervals. To the casual observer, this would suggest that the internal section lines had not been surveyed or monumented. The U.S. government holds that the RS-2477 "federal" section line easement cannot exist as the plain reading of the RS-2477 grant requires that they be "constructed". The State of Alaska continues to hold to the December 18, 1969 "1969 Opinions of the Attorney Genera No. 7 - Re: Section Line Dedications for Construction of Highways" as its policy on section line easements. Footnote 15 of that opinion states "Note, however, that the Alaska statutes apply to each section line in the state. Thus, where protracted surveys have been approved, and the effective date thereof published in the Federal Register, then a section line right-of-way attaches to the protracted section line subject to the subsequent conformation with the official public land surveys." Essentially, this is interpreted to mean that while the section line, and the section line easement was established as of the date the protraction diagram was published in the federal register, it just can't be used until surveyed, monumented and platted.
For this project, the surveyor of the Mertarvik Townsite Subdivision, where Newtok was to be relocated, issued a written opinion that no existing SLEs affected the townsite plat. This was based on their statement that these lands were entirely a federal interest prior to acceptance of the Township plat and issuance of the Interim Conveyance to the ANCSA corporation. However, the Townsite surveyor limited their analysis to whether the rights of the ANCSA corporation preceded the approval date of the BLM township plat without consideration of the status of the section lines by protraction. While DNR continues to assert the validity of protracted section line easements, they are a bit timid in forcing the issue on a plat as this assertion has never been tested in court. As a result, the R&M draft ROW Acquisition plat carries the following note: "At the time of submittal of the preliminary plat, the existence of section line easements within the airport and access road boundaries shown hereon has not yet been resolved." This type of note and the absence of a graphical depiction of the protracted SLE may temporarily avoid rocking the boat, but it may also constitute a cloud on the title for the land owners. Documents below continue to indicate DNR's assertion of protracted SLEs such as vacations of protracted SLEs and a 2010 letter from the AGO to BLM asserting the validity of protracted SLEs.
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2019 |
March 2019 Newtok RWAP - draft ROW Acquisition Plat |
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2/5/19 |
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2/5/19 |
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2/6/19 |
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2/6/19 |
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2/6/19 |
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2/19/19 |
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| From BLM | |
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9/30/59 |
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8/13/18 |
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7/15/59 |
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1/11/08 |
TWP S0080N0870W - Township Plat |
| From R&M | |
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2018 |
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n/a |
8N 87W HI - Online Historical Index |
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n/a |
Abstract for AKAA 085363 - Newtok Village |
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n/a |
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12/29/17 |
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6/14/18 |
PA 2018-0057 - Newtok Native Corporation Patent |
| From DNR | |
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1/4/18 |
Draft MH SLE Determination - guidance |
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11/17/17 |
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2/12/10 |
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10/30/18 |
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1964 |
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n/a |
Protraction
Diagram Index - (10mb) |
| Laws - Orders | |
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2/27/09 |
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2/27/22 |
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1/20/69 |
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3/15/72 |
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2/11/80 |
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11/17/03 |
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12/18/71 |
Public
Law 92-203 ANCSA - (6mb) |
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n/a |
SDMS Abstract FF-014904 - BLM Online |
| Recorders Office |
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2018 |
Plat 2018-15 - Newtok Airport Survey Control Diagram |
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3/8/18 |
Plat 2018-2 - Metarvik Townsite ROS |
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9/22/20 |
402-2020-000895-0 - Special Warranty Deed |
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9/22/20 |
402-2020-000896-0 - Special Warranty Deed |