In early 2021, I was forwarded a copy of an agreement titled Concurrence on Applicability of Section Line Easements on Alaska Mental Health Trust Land - 12/30/2020. This document, signed by the DOT&PF Commissioner, the DNR Deputy Commissioner and the Trust Land Office (TLO) Executive Director states that these entities have "...agreed on the existence and applicability of statutory section line easements under AS 19.10.010 and its predecessors, and related plat issues...".
The DOT&PF and DNR signatures are critical as the they represent the two primary state agencies involved in management of section line easements. Section line easements (SLE) are generally considered to be easements for highway purposes and are referred to as either "federal" or based in the RS-2477 offer of a right-of-way (ROW) grant or "state", based on A.S. 19.10.010 Dedication of land for public highways. RS-2477 based SLEs are managed by DNR under 11 AAC 51.100 unless the RS-2477 is a part of the state highway system or DNR transfers the ROW to DOT&PF. DNR may also transfer the ROW to a municipality. An RS-2477 may only be vacated with the joint approval of DNR & DOT&PF. The Alaska Mental Health Trust is a state corporation that generates revenue through the management of lands by the TLO on behalf of the Trust beneficiaries. The beneficiaries are a subset of the Alaska population and it is reasonably expected that the TLO would advocate for their beneficiaries as opposed to all Alaska citizens. This is only being noted due to my view that any "agreement" on public access rights should address the rights of all Alaskans and not be tailored to benefit a specific class of land owner.
SLE Width: A significant error in the "agreement" comes in Paragraph 1 with the statement "If the land was selected under the AMHEA prior to April 7, 1963, the section line is 33' on each side of the center line of the surveyed section line. (FN2) If the land was selected under the AMHEA on or after April 7, 1963, the section line is 50' on each side of the surveyed section line." FN2 states "This is the date AS 19.10.015 was enacted, which provides that 'all officially proposed and existing highways on public land not reserved for public uses are 100 feet wide.' This modified the width of federal section line easements that were accepted under AS 19.10.010, where the land was still unreserved federal land..."
This statement asserts that it was AS 19.10.015 that established the widths for section line easements and increased the width of "federal" SLEs from 33' on each side of the section line to 50' on each side. This incorrect interpretation likely comes from the title of AS 19.10.015 Establishment of Highway Widths and the fact that SLEs are easements for "Highway" purposes. AS 19.10.015 was proposed to resolve an issue that arose in the early 1960’s when the Fairbanks Farmer’s Loop Road was being realigned and widened by the Department of Highways (DOH). During the condemnation of a parcel, the existing Farmer’s Loop ROW was deducted from the area that the owner was to be compensated for. This was claimed as an existing public ROW based on the RS-2477 trail. DOH asserted a 66-foot width, presumably based upon the federal section line easement width. The Superior Court ruled in State v. Fowler (Alaska Law Journal April, 1963) that the state was without authority to assert the 66-foot width and would only allow the width as used or “ditch to ditch”. To avoid this problem on future projects, in 1963 the state passed AS 19.10.015 Establishment of Highway Widths. This statute established a width of 100-feet for “all officially proposed and existing highways on public land not reserved for pubic uses” and is the basis for asserting a width of 100-feet for the ROW width on RS-2477 trails. [As a side note, it would appear that the 2018 RS-2477 trail case Dickson v. State, Department of Natural Resources served to establish an earlier date than provided in AS 19.10.015 to fix the width of an RS-2477 trail ROW at 100-feet. The Court states the following: "But we agree with the superior court that the 100-foot width was dictated both by federal land orders and by AS 19.10.015.” The earliest PLO to set “Local” road widths to 100-feet was PLO 601 dated August 10, 1949 or nearly 14 years earlier than the effective date of AS 19.10.015.]
A November 6, 1963 Legislative Council Memorandum titled Highway Right-of-Way Law and Pending Legislation discusses Senate Bill No. 165 (that was to become AS 19.10.015) and companion legislation, Senate Bill No. 166 that was to modify AS 19.10.010. The purpose of SB 166 was to increase the acceptance of the RS-2477 grant on "federal" SLEs to 100-feet and in doing so make them the same width as proposed for "highways" in SB 165. The second paragraph on page 2 notes that SB 165 is to establish a uniform width for highways "...except on section lines." SB 165 was passed with an effective date of April 7, 1963. For reasons unknown to me, SB 166 increasing the acceptance on "federal" SLEs to 100-feet was not passed. As a result, any surveyor, ROW or title professional who advises clients regarding the existence and width of "federal" RS-2477 based SLEs and use the MHT/DNR/DOT&PF "agreement" for guidance may end up placing their clients into trespass. I notified DNR Cadastral regarding the width error in the "agreement" in March of 2021. As a result, while they review the issue, they modified their copy of the "agreement" with red text across both pages stating that it was a "Document in Error". At a minimum, anyone receiving a copy of it from DNR Cadastral will be on notice that it is not to be considered as correct guidance. Further confirmation of SLE widths can be found in the Editor's Notes for 11 AAC 51.025 Section-Line Easements.
Utilities Within SLEs: Paragraph 5 of the "agreement" states that the "...TLO will not challenge or charge for any public roads that were actually constructed by a state or local governmental entity or private party, with required approvals and authorizations, within a valid section line easement on trust land prior to the date HB 201 (as amended) became effective in 1994, whether the road is platted or not...For the purposes of this agreement, 'road' includes associated facilities necessary for a road, including signs, bike paths, turnouts, and rest areas, drainage, and slopes. It does not include utilities unless state-owned and operated."
It is not clear exactly what might be intended by this paragraph but it appears to suggest that utilities, not owned by the state that were located within a valid SLE on trust land may be in trespass. If the SLE is in fact valid, it would be subject to the Alaska Case Fisher v. Golden Valley Electric, Ass'n, Inc. This 1983 Alaska Supreme Court case states the following: "The question on the merits in this case is whether a utility may construct a powerline on an unused section line easement reserved for highway purposes under AS 19.10.010. The superior court answered this question in the affirmative. We agree and affirm...In our view this statute places Alaska among those states which permit powerline construction as an incidental and subordinate use of a highway easement...The fact that the section line easement was not actually used for highway purposes does not dictate a different result." Given this language, it is difficult to see how a valid SLE on Trust Lands could be limited to the placement of "state-owned and operated" utilities.
SLEs on Original Trust Land: Paragraph 3 of the "agreement" holds that there are no SLEs on "original trust land" meaning "...original trust land when it was legislatively designated as general grant land in 1978, because such legislation was void. State v. Weiss, 706. P.2d 681 (Alaska 1985)"
A December 19, 1996 letter from Attorney Thomas E. Meacham to the Alaska Mental Health Trust Land Office discussed the status of SLEs across MHT lands. With regard to "State" SLEs established under AS 19.10.010, the letter states that "The plain language of the statute imposes this easement on all tracts of land owned by the Territory and State of Alaska, whether they are unrestricted general grant lands, community grant lands, original Mental Health grant lands, University grant lands, school section, state parks, or any other category of land." It then continues to note that while AS 19.10.010 holds no exemption for trust lands, the US Supreme Court in Lassen v. Arizona Highway Dept. (1966) prohibits uncompensated use of federally-granted trust lands. That is, the case might not prevent application of a State SLE on original trust lands, but might require compensation for their imposition. Meacham notes that while Lassen may prevent these State SLEs from attaching to original Trust lands, ultimately, an SLE vacation or litigation could be necessary. To the extent that original trust lands were subject to State SLEs when they were reconstituted under HB 201 in 1994, the bill's provision that "All land designated as mental health trust land under this section remains subject to all encumbrances or interests of record, noted on records maintained by the Department of Natural Resources..." This provision is restated in 11 AAC 99.140 Application of other state and local law.
Recognizing these ambiguities in determining State SLEs over original trust lands, DNR Cadastral has typically avoided issuing general guidance regarding them to surveyor, ROW and title professionals. As an alternative, they have offered direction on a case-by-case basis. But this can lead to potential land surveyor/client conflict where the landowner, in this case MHT/TLO, directs the surveyor as to the existence and nature of encumbrances (SLEs) affecting the land to be surveyed and how they will be shown on the plat, if at all.
Plat 2020-29, Iron Horse Run Subdivision was filed in the Palmer
Recording District by SurvBase, LLC for the Alaska Mental Health Trust
Land Office. The plat contains the following note: "Section
Line Easements: This drawing depicts only section line
easements (SLEs) that the Mental Health Trust Land Office (TLO)
agrees exist within the subdivision boundary. The TLO and the
surveyor currently disagree about whether or not other SLEs exist on
Original Trust Land (OTL) within the subdivision boundary, and they
each recognize that this is a legal issue that will not be resolved
in the context of this survey. To date, the courts have not
ruled on this specific issue. This note serves to notify users
that the surveyor preparing this plat normally would have depicted
50' SLEs on the OTL within this subdivision under the authority of
AS 19.10.010. However, given the unsettled legal issue, the
TLO's position that these additional 50' SLEs do not exist, and in
light of the TLO's request to not depict them, additional SLEs are
not being shown hereon. Instead, users of this plat are hereby
notified of this disagreement and informed that additional SLE's may
exist on OTL within the subdivision boundary. It is the user's
responsibility to form their own opinion about whether or not
additional section line easements may exist and to research this
issue further to satisfy any concerns a user may have."
So, what does this all mean? It means that future purchasers of MHT lands where SLEs are an issue have a potential cloud on their title. And it misinterprets AS 19.10.015 as having increased the width of "federal" SLEs. The MHT/DNR/DOT "agreement" appears to have been an attempt by MHT to lend credence to their SLE interpretations that will specifically benefit Trust lands. I question whether knowledgeable DNR/DOT & AGO staff were involved in drafting the 12/30/20 agreement.
In the Spring of 2021 began communicating with DNR Cadastral and NR ROW Engineering staff regarding the problems I had seen with the MHT/DNR/DOT "agreement". After hearing little response, in December of 2021, I emailed DOT&PF Commissioner Ryan Anderson and explained the issue to him. On 3/1/22, I discussed edits proposed by DNR Cadastral with their staff. At this point I still look forward to movement on the issue and resolution of the conflicts created by the 12/30/20 "agreement" ~ 5/7/22-jfb