Parks Highway MP 166 Pass Creek Material Site - 2020

This project did not involve the determination of a ROW location or width.  The focus was related to title, authority and a legal doctrine referred to as "Merger of Title".  This doctrine originates from the idea that a person cannot have an easement in his or her own land because their general right of ownership encompasses all possible uses. For example: your neighbor granted you an easement to cross their property so you could access your lot.  At a later date you purchase your neighbor's property.  You no longer need an easement for your benefit across that property...it serves no purpose and it is said that your easement interest has now "merged" with your fee interest and the easement is now terminated.

Merger of Title has been a bone of contention between the federal government and the State as well as between DOT&PF and DNR.  The 1959 Omnibus Act Quitclaim Deed conveyed more than 5,000 miles of federally owned highway ROW as well as other property interests to the State of Alaska.  The federal grants of easements for highways to DOT&PF continued after statehood.  Most of the highway ROW are considered to be easement interests.  Alaska subsequently selected and was issued patent to thousands of acres of land, many of which are crossed by these highway easements.  Upon issuing a township patent that may have been crossed by these highway easements, the federal government would often issue a "Merger of Title" decision noting that the easement interest was now terminated.  Generally, material site grants were also considered to be highway easements. The DNR position was that the federal material site grants had been terminated by "merger" and so required DOT to apply for new State material sales agreements to continue use of the existing federally granted material sites.  In addition, DNR required DOT to pay for the material removed by the cubic yard.  DNR did not however, consider the federally granted highway ROW corridors to have been terminated by "merger" or if they did, they turned a blind eye to it. While private easements may be subject to the Merger doctrine, there is case law to suggest that the same result does not apply to public  easements. 

The client in this assignment is a general contractor who had been awarded the Parks Highway MP 163-168.5 and 169.5-174 Rehabilitation project.  They had identified a viable existing material site at Pass Creek, MP 166 on the Parks Highway.  Although this site had been federally granted to the Department of Highways in1961, the underlying fee estate was subsequently patented to the State of Alaska triggering the merger issue.  In addition, this site was now within the boundaries of the Denali State Park from which material sales were prohibited. A formal report was not prepared for this project and instead a briefing on the issues was presented to the DOT&PF Regional Director and the DOT&PF Commissioner for consideration.  As a result, the DOT&PF Commissioner was able to convince the DNR Commissioner that the federally granted material site was still valid and under DOT&PF jurisdiction.  Our client was permitted to extract material from this site for their project.  At the time there was discussion that the Governor would issue an Administrative Order that would require DNR to reject the "Merger of Title" doctrine with regard to federally granted easements over State patented lands.  This was never accomplished likely due to conflicting priorities.  It is unclear whether this interpretive conflict between DNR and DOT&PF will continue in the future.