The purpose of this page is to provide notes of interest and other items relating to current or changing ROW research issues.
October 21, 2024 - ROWAlaska.net Website Update -
It's been quite a while since I've added any new materials to the website. Initially this was due to scheduling conflicts with other projects along with personal activities. I committed the ultimate Alaskan sacrilege by leaving the state in mid-summer for a two-week cruise around the UK. But, it must have been a good choice as we were never dampened by a drop of rain the entire time. The other reason there have been no updates is related to a Bluehost upgrade that crashed the "Search" page. The Bluehost hosting package that I initially set up was limited as to the number of files that could be stored. I could see that I was going to exceed that limit and so upgraded the hosting package in the beginning of June. It wasn't until yesterday that I was able to find the problem and with a simple permissions change to one file, the Search page is now working again. Now I have no excuse to avoid updating the site!
May 1, 2023 - Campbell Lake Section Line Easement Law Suit -
On September 18, 2022, I wrote a Journal article about the Alaska Landmine [Follow link to article below...]. The Landmine is an online Alaskan political news site that had published a pair of fairly intense stories relating to right-of-way issues. The first story was about the Stewart Trail and the other about Campbell Lake, both in the Anchorage vicinity. The Campbell Lake story had two issues. First was whether Campbell Lake was a public water accessible to all or whether it was a private lake, to be used only by lot owners in the surrounding subdivision. The second issue had to do with the validity of a section line easement that straddles the line between Sections 14 & 15, Township 12 North, Range 4 West, SM, both on the north and south sides of the lake. These easements would provide direct access to the lake. The section line easements were not shown on the original subdivision plats, however, a current evaluation of the federal SLE parameters has resulted in a conclusion that these public rights-of-way, 33-feet wide on each side of the section line, do in fact exist and have never been vacated. As the validity of these SLEs was not considered at the time of the original subdivision platting, they now appear to be in conflict with several very high end homes.
While this was an interesting case study, I initially didn't dwell on it for a long time as it was an Anchorage problem and not one that I believed would be cause for concern on a broad scale. At least not for me. But then I received an email on April 28 with the following attachment:
"Gordon Franke and John Frost v. Alaska DNR".
This law suit, filed in Federal District Court by two lot owners directly impacted by the SLEs in part argues that the 1923 Territorial Legislative acceptance of the RS-2477 grant, creating what we refer to as "federal" section line easements was a violation of federal law and the lot owners constitutional rights.
[See April 28, 2023 article by the Alaska Landmine]
When you think about how much and for how long legal access has been provided throughout the State of Alaska using federal SLEs, the thought that they might be all declared invalid is a bit concerning. But lets look at the possibilities: The 2013 Alaska Supreme Court case McCarrey v. Kaylor" changed everything we thought we knew about Small Tract patent reservations. ROW and Title professionals always considered the road and utility easements stated in the patents to be express reservations that were established by the patent. The Court, however, found that the patent statements were an offer of a common law dedication that might not be created if there was no public use over them while the Small Tract Order was in effect. Another reality that relates to the federal filing of the Campbell Lake SLE case is that the federal government considers the SLEs we believe were established by the 1923 Territorial Legislative acceptance to be "unconstructed" RS-2477 trails, and therefore invalid.
On the plus side is the 2016 Alaska Supreme Court case Pursche v. Matanuska-Susitna Borough. This case holds that “A ‘patent’ is the conveyance by which the federal government passes its title to portions of the public domain and is [generally] necessary to accomplish a transfer of ownership from the United States…Once [a land] patent issues, the incidents of ownership are, for the most part, matters of local property law to be vindicated in local courts.” This might suggest, at least from the perspective of the State of Alaska, that the federal court would not have jurisdiction to hear this case. And if that happens, I would expect the State courts to uphold our traditional understanding of "federal" SLEs. Our traditional understanding is best outlined in the "1969 Opinions of the Attorney General No. 7" regarding Section Line Dedications for Construction of Highways and the 1975 Alaska Supreme Court case Girves v. Kenai Peninsula Borough. This new SLE law suit will definitely a case to watch!
April
6, 2023 - 19 SLA 1923 - Happy 100th Anniversary! - George Horton, PLS, CFeds reminded me
that on this date, 100 years ago, the Alaska Territorial Legislature passed Ch 19 SLA 1923 in
which it accepted a 4-rod (66 foot) wide section line easement based on the offer of the federal
RS-2477 grant. These are commonly referred to as "federal" section line easements as opposed to
the 100-foot wide "state" SLEs established under A.S. 19.10.010. For many years, George has been
the go to guy at DNR for SLE issues but will be retiring from DNR Cadastral at the end of April.
Have a great retirment George! The SLEs will miss you!
March 28, 2023 - Hoover Dam: Nevada/Arizona Border
I was taking a walk with Lisa across the top of Hoover Dam today. About mid-way on the North side
I noticed a gleaming USC&GS Benchmark labeled "H 174 1935". So it was set as the Hoover Dam
construction was nearing completion. As you would expect, I got down on one knee to take a photo
with my cell phone. As I got back up I noticed an elderly lady looking at me with concern. (I
rarely look at myself in the mirror any more...) She said, "Are you all right?". I said that I was
a surveyor and I just couldn't help myself and I had to take a picture of the monument. She said,
"well I saw that you were down on your knees and you know...we are in that age group..." I said
"Well, thank you so much for noticing...". I was hoping that I didn't sound offended. For those
that require a bit more technical detail, the NAD 83(1986) POSITION is 36 00 58.82 - 114 44 14.33
and the elevation is NAVD 88 ORTHO HEIGHT - 376.389 (meters) 1234.87 (feet) ADJUSTED.
The photo to the right is the BM that I knelt before. To those of you visiting the area I would highty recommend a tour of the Dam and visitor's center. It is mind boggling to view the videos of the dam construction given the year and construction equiptment available. And of course, they were all led by the lowly surveyor! I also added to my National Parks survey control mark pins by purchasing the "Hoover Dam 1935 Benchmark" at the Hoover gift shop. It really makes me wonder how many of these are sold as one would think that the people who would understand what they are purchasing are primarily surveyors. Whatever... I think that will be one of my retirement habits...to collect one from every national park we visit.
December 26, 2022 - U.S. Mineral Surveyors - Recently, a colleague posed a
question regarding location dates and surface rights for unpatented federal mining claims. I told
him that a key issue was PL 167, the Act of July 23, 1955 aka “Multiple Surface Use Act” (30 USC
612). Unpatented claims with a valid location date prior to the Act in most cases would have an
exclusive right of use to the surface. A mining claim located after the Act would be subject to
the rights of the federal government to grant third party uses that did not interfere with the
rights of the mining claimant. If a post Act locator eventually obtained patent for the claim,
they would end up with both the mineral rights and the surface rights. (Although I haven’t seen an
example of this, I would expect that a patent based on a post 1955 location could be made subject
to any surface rights permitted to third parties by the federal government.)
My colleague
also noted that with the recent passing of Richard Heieren and the 2021 passing of Pat Kalen, both
long time Fairbanks land and mineral surveyors, I was one of four remaining U.S. Deputy Mineral
Surveyors remaining in Alaska, and the only one in Fairbanks. The 2022-2025 Mineral Surveyor
Roster listed 19 Mineral Surveyors throughout the United States. As the last USMS residing in
Fairbanks, it almost feels as if a part of the extensive mining history that Fairbanks is based on
is slowing fading into the past. And with most of the other remaining USMS growing quite long in
the tooth, it appears that that this area of surveying is coming to a close.
I received
my initial appointment in September of 1986. Having spent my post high school years with a third
generation Fairbanks mining family and starting to pursue education and experience as a surveyor,
it only seemed appropriate to seek an appointment as a U.S. Mineral Surveyor. The USMS appointment
allows a surveyor to perform surveys for patent of mining claims throughout the federal lands in
the US. An appointment as a USMS for a surveyor residing in Nevada or Montana would still permit
them to perform a patent survey in Alaska or any other state where federal mining claims existed.
Licensing as a Professional Land Surveyor in any specific state was not required. Wayne Larson, a
Fairbanks professional engineer, operated Larson Mineral Surveys as a USMS although he was not a
licensed professional surveyor in Alaska. His business card stated “Mineral Patent Surveys Are Our
Only Business”.
The opportunity to obtain the USMS appointment was somewhat rare. It was,
in a sense offered on a “market based” schedule rather than annual basis similar to the state
professional land surveyor exams. That is, when BLM determined that there existed an insufficient
number of US Mineral Surveyors necessary to service the existing or expected backlog of patent
survey requests, they would hold an exam. And you might end up having to travel a long distance to
the exam site. At one time it might be held in Colorado and another time in Nevada. So, when I
heard that a USMS exam would be held in Anchorage in the spring of 1986, I jumped at the chance.
It was a two-day exam held April 23 & 24, 1986 at the Anchorage District Office off of
Abbott Loop Road. The first day consisted of multiple-choice questions, a practical problem and
the writing of field notes and preparation of a preliminary plat. The second day was dedicated to
taking and computing a solar observation for azimuth. I remember while reading the questions that
this exam would cover more of the Manual of ’73 than I was ever asked as a part of my Alaska land
surveyor exam. There were so few questions relating to federal land surveys in my PLS exam that it
was hard to believe that Alaska was a PLSS state.
I completed one and only one mineral survey out at Ester for James and George Lounsbury. The
patent was issued on December 21, 2000 and George told me a few years after the survey was
performed that theirs was the last mining claim patent issued in Alaska prior to the October 1,
1994 Congressional moratorium. It was the family lode claim known as the Grass Valley aka the
Clipper Gold Mine (USMS No. 2493). The survey was performed in June of 1988 which was almost 2
years after I started with DOT Right of Way. At the time, I came to the realization that with a
full-time job, performing surveys on the side had the potential of occupying most of my spare
time. I didn’t want it to get in the way of family life so I decided to not go looking for more
survey work. Also, the claim was a lode mine which meant that I had to crawl on my hands and
knees down a dark, wet tunnel in the hillside to map it out. I’m not that claustrophobic but I
couldn’t help thinking about how many folk songs had been written about the hundreds of lives
claimed in mining disasters and yet none had been written about ROW mappers working in public
office buildings.
After the congressional moratorium on mineral patents in 1994, BLM
continued to occasionally send a letter to all USMS asking whether they wanted their appointment
extended. It didn’t cost anything so I always said yes and so I now have a certificate that says
I will continue to have a valid appointment until December 31, 2025. While BLM issues a very nice
certificate of appointment, I can’t help but think that the days of taking mining claims to patent
are long gone. Oh well…
November 27, 2022 - New R&M Website! - As I continue to associate part-time
with R&M Consultants, Inc., it seems appropriate to provide a plug for their entirely new and
well-designed web site: www.rmconsult.com. One
fairly unique feature that sets it aside from most other professional services websites is that it
includes background pages for each and every employee rather than just those in management. While
I consider myself to be somewhat of an introvert, I feel compelled to note my inclusion on the
Right of Way Services
page. The link on my photo then leads to my personal page that
includes references to projects and presentations I have been involved in as well as notes
relating a few of my lesser-known characteristics. Links on this page also will serve up a few
papers and presentations that are already included in the rowalaska.net site. The difference being
that the R&M site serves them with better graphics and in a far more professional format:
November 1, 2022 - Recorder's Office - Historic
Books. A couple of days ago, Eric Fuglestad, PLS, who retired from DOT&PF
Central Region ROW Engineering in December of 2021, suggested that I provide some information on
the Recorder's Office Historic Books. Those of you who have spent time performing basic searches
with the online system know that the indices won't include all documents back to and prior to
statehood. Their online "About" page
says " We have a Grantor/Grantee alphabetical index, as well as a location index (by legal
description) which reflect documents recorded from 1970 to current. Searching for information
prior to 1970 requires a search of Historic Books." Actually, I have performed test
searches prior to 1970 and found documents, but I can't say for certain how far back they go. So,
that leads us to the Historic Books Search Menu which can be a bit tricky without spending a lot
of time becoming familiar with it. I had always wished that the Recorder's site provided the
ability to perform random text searches. For example, you can perform a "Document Type Search" and
you are provided with a list of document types that you might search for. But if it isn't on
the list, it's not of much use. What if I wanted to see if anyone had ever recorded a
"Boundary Agreement" and I just wanted to see what their format looked like. There is no easy way
to type in "Boundary Agreement" as a search type to see what is out there.
In July
of 2016, Ryan Quigley, PLS, also at the time with DOT&PF Central Region ROWE and now with DNR
Cadastral, obtained a hard drive copy of the Recorder's Office Historic Books current as of that
date. The data consisted of 127,188 TIF files in 1,821 folders for a total size of 297GB.
Ryan then proceeded to OCR the files using Adobe Acrobat while I did the same using another
program. Even on my not terribly ancient desktop computer, the OCR exercise commenced on
November 26, 2016 and ran almost 24/7 to March 23, 2017 before it was completed. I then
paired my copy of the files with an open source portable text indexing search engine named
"DocFetcher" that can perform random text searches on the text layer of a mass of .pdf
files. Note that prior to 1915, documents submitted for recording were originally copied
into the record book by longhand, so there will be files in the Historic Books that could not be
OCR'd. As my intent of indexing the Historical Books was to locate documents related to highway
rights-of-way, I tested the following DocFetcher search terms: (Keep terms as short as
possible to get more hits.)
"Alaska Road Commission" - Hits: 336
"Road Commission"
- Hits: 380
"Right of Way Deed" - Hits: 465
"easement and right of way" - Hits: 3,222
"easement road"~20 - Hits: 2,820 (easement within 20 words of road)
"Bureau of Public
Roads" Hits: 774
"Public Roads" Hits: 1,782
"Alaska Rural Rehabilitation" Hits: 651
"Rural Rehabilitation" Hits: 688
"Homestead Location" Hits: 474
"Relinquishment of
Homestead" Hits: 16
Eric Fuglestad wanted me to post that any person with a desire to
set up their own indexed search of the Historic Books database can contact Central Region ROW
Engineering staff and arrange to bring in a hard drive of sufficient size and they will provide a
you with a copy. You may find that the Recorder's Office Search Menu for the Historic Books
already meets your needs. But on the other hand, without my indexed search engine, I would have
never found the 1913 Bill of Sale from the Alaska Road Commission for "One white horse named
Sam". You might also consider OCRing and re-indexing the files with more advanced
software for better results.
October 16, 2022 - Today I updated and uploaded my paper titled "Alaska Rights-of-Way & Boundaries - Terms
& Definitions with References to Alaska Court Decisions". This paper was
prepared with the recognition that it is better to have legal definitions directly related to
Alaska case law, where they are available, than to rely entirely on a "Learned Treatise" such as
Brown, Clark and so on. Brown and Clark are great references, but they draw upon law
throughout the country which may or may not be all consistent with the rulings of our Alaska
Supreme Court. Use with caution...and consult with an attorney if necessary!
September 18, 2022 - Near the bottom of these notes on May 14, 2022 I posted an
item discussing the 2021 Alaska Supreme Court Opinion, Ahtna,
Inc v. State of Alaska DNR/DOT&PF. This case is about the status of the
RS-2477 ROW along the Klutina Lake trail near Copper Center. I noted that in December of 2021, the
Supreme Court granted a petition for rehearing and withdrew their 2021 opinion. This last
Friday on September 16, 2022, the Supreme Court issued their revised
opinion on the case. The Court reaffirmed that prior aboriginal title did
not invalidate the RS-2477 ROW and concluded as a matter of law that the State's ROW was not
limited to ingress and egress as they had stated in the initial opinion. But it is not that
easy. The scope of use of the RS-2477 trail is a question of fact and so there will continue
to be controversy and argument regarding allowable uses of the ROW. I will add more in the
future but at this point I believe I need to read the latest opinion several more times before I
fully grasp the outcome.
September 18, 2022 - Dawn
of the Mapmaker: The Surveyor Girl and the Forbidden Knowledge : I don't think we
are going to see a Netflix series in the near future that focuses on the mystical adventures and
bravery of land surveyors, but who knows. I seem to be finding more and more literary
references to land surveyors that dwell on the fantasy and supernatural aspects of our profession,
of which there are many.
This first reference is an anime eBook by Akira Nashiki: Synopsis - " Knowledge is power, and
that most certainly applies to maps too. Few appreciate that more than Unen, a 15-year-old
girl so slender that she often gets mistaken for a young boy. She aspires to be a good enough
cartographer so she can catch the attention of the king, who would then sponsor her on a
journey to map the world, and indeed, she's already being recognized by the name Sparrow Eyes
for her talent at drawing incredibly detailed maps. While such maps may be a boon to some,
they are a threat to others, as Unen finds out the hard way." Review -
"We take incredibly detailed maps for granted these days, so it's easy to lose sight of just
how powerful maps actually are as tools. That is the crux of the premise behind the first
novel in this new e-book series: that maps have enough power to be worth killing over, thus
making the job of a cartographer far more dangerous and adventuresome than one would normally
expect."
The next literary reference was totally unexpected. It comes from
the latest bestseller by Stephen King titled Fairy
Tale. One of the primary characters in the book is an old man who had an earlier
career as a forester/land surveyor. The book does not dwell on his surveying career except
for a couple of references, but they were good ones. The old man is telling his caretaker how he
ended up becoming a land surveyor: " But in Buffington – where the Forest Preserve is now – I
saw a sign saying LAND SURVEYOR WANTED. And below that, something that looked made for me:
MUST BE WISE IN THE WAYS OF MAPS AND THE WOODS. I went into the county office, and after
reading some maps – latitude, longitude, contours and such – I got the job. Son, I felt like
the man who fell into a pile of shit and came up with a rose in his teeth. I got to spend
every fucking day tramping the woods, blazing trees and making maps and charting old woods
roads, of which there were many. Some nights I stayed with a family willing to take me in and
some nights I camped under the stars. It was grand. There were times when I didn’t see another
living soul for days. That’s not for everyone, but it was for me."
For those of
us who happened to fall into our careers as land surveyors and were very happy with the outcome,
we can appreciate the " rose in the teeth" analogy.
September 18, 2022 - The Alaska
Landmine - Alaskan Right of Way Issues
Today I would like to give a shout
out to The Alaska Landmine, a political news site established by Editor-in Chief, Jeff Landfield.
Given his name similarity to "Land Field Services, Inc.", Jay Sullivan's land acquisition firm
that was responsible for acquiring the ROW for the Trans Alaska Pipeline, it only made sense that
the "Landmine" would be the publication to develop a series of articles relating to controversial
right-of-way issues.
In the Special Features section of the Landmine website, there are
two ROW stories: "One Man's
Mountain" and "The
Bizarre Story of Campbell Lake, The Private Lake That Isn't". Note that both
of these stories are based on reporting by Jeff Landfield and Paxson Woelber, a Landmine
associate. The Campbell Lake story relates to the history of the man-made lake and attempts to
limit public access to it. This case discusses to the legal status of Campbell Lake and the
available access to it via a section line easement that exists across residential properties. "One
Man's Mountain" relates to access to the Chugach State Park along an old homestead trail referred
to as the "Stewart Trail". The trail had been blocked where it crossed property owned by Franklin
Pugh. On September 1, 2022, Superior Court concluded that access across the Pugh property
had been secured by a public prescriptive easement.
These stories are not a few column
inches of text that you might find it your average news publication. They represent a significant
level of research and analysis supported by court documents, correspondence, maps, photographs and
interviews. I found it interesting that in 2018, Jeff Landfield walked the trail with then
State Representative Chris Birch to investigate the access issue. Chris (since passed in
2019), was the DOT&PF Northern Region Right-of-Way Chief who hired me in October of 1986 as
the Regional ROW "Engineer" (Surveyor). ROW/Title/Survey professionals will find these
articles very interesting and educational. I'm looking forward to more controversial
access/ROW stories from the Landmine.
The Stewart Trail story is published in three
articles:
August
17, 2022 - A little bit of "Highway" humor - "Adopt a Highway"...
August
7, 2022 - Generally I don't do book reviews but then I rarely have found a novel about mapping
that involves both mystery and magic. I'm still reading it but the book titled "The
Cartographers" by Peng Shepherd was published in March of 2022. The main
character is Nell Young who has a doctorate in cartography and worked with her father at the NY
Public Library mapping archives until her father fires her for unclear reasons. The story
revolves around a 1939 highway map of New York state and the mystical town of Agloe which may or
may not exist, depending on whether you have a copy of the map showing the town. This is referred
to as a "phantom settlement" or one that doesn't exist but is intentionally placed on a map as a
"copyright trap" or a tool to defeat copyright infringement. If your competitor publishes a map
showing the same fictional town that you have shown on yours, then this will be the evidence that
they have stolen your original work and not performed their own mapping. This concept is
based in fact...see the Wikipedia article: Agloe, New York. The book
also discusses the Sanborn Insurance maps that can be found for many towns in Alaska. The
premise so far is that if a person holds a copy of a map showing the "phantom settlement", then it
will exist when they are in the vicinity. If their map does not show the "phantom
settlement", then it will not exist. A lot of the text involves the relationships between a
group of cartography students who discovered the phenomena. I'm easily distracted so some of this
is slow going for me. And as I have about a quarter of the book to go, I can't say for
certain yet whether the "magic" is real or perceived. I may be back later to edit this post
when I have finished the read.
June
22, 2022 - I was perusing some old Alaska Road Commission Files and came upon one that was
apparently of significant concern to ARC management more than 7 decades ago. The issue was
coffee breaks and the need to ensure that they were not being abused by staff, particularly in the
Juneau office. See SUBJECT:
Recess for Coffee. Today I forwarded the memo to our current DOT&PF
Commissioner with the suggestion that he review this weighty issue and impose controls on staff
coffee breaks as may be warranted.
June
21, 2022 ~ I decided to change my first photo on the "Author" page. The initial image was my official R&M
employment photo with the bad haircut and the forced smile that reminds me of '60's & '70's
high school yearbook photos. It had to go. In its place I'm now using one that my
daughter had made for me from a site called "StampYoFace". They take your portrait photo and
turn it into a rubber stamp. I have so far resisted stamping it on all of my correspondence
and reports.
June
21, 2022 ~ "Circular No. 5"...the holy grail? Maybe not, but still a document I would like to
see. At one point in time the earliest authority I have seen in Alaska specifying the width
of a highway ROW was the Territorial Act of 1917. Section 13 of the Act stated " The
lawful width of right-of-way of all roads or trails shall be sixty feet." However, page 37
of Claus-M Naske's 1986 "Paving
Alaska's Trails", cites "Circular No. 5", dated July 10, 1907 and specifies that
"... all roads and trails located, constructed and maintained by the board are to be 60 feet
wide, 30 feet on each side of the center-line, except in special cases where a lesser width
might be employed." An internet search found a publication reference in the Dawson Daily News
in the July 26, 1907 edition. At some point when time permits, I hope to spend more time up at the
Rasmuson Library in hope that I can find an actual copy of Circular No. 5.
May 7,
2022 ~ Section Line Easements
on Mental Health Trust Land - 12/30/20 MHT-DOT&PF-DNR Agreement- Beware of
this Agreement and don't attempt to determine the width of an SLE on Trust land without reading
this page and discussing the current status of the Agreement with DNR Cadastral.
May
14, 2022 - In the Klutina Lake Road
RS-2477 project page I discuss the many years of controversy and lawsuits that
resulted in the March 12, 2021 Supreme
Court Opinion. The opinion concluded that aboriginal title could not
invalidate an otherwise valid RS-2477 ROW and that the scope of use for the Klutina Road RS-2477
ROW was limited to ingress and egress. While I was gathering documents for this page, I
found that the Supreme Court issued an Order
on 12/17/21 granting a petition for rehearing. The rehearing was requested by the
State. More importantly, the 2021 Opinion issued by the Court in this case was
"Withdrawn". So, it would appear that validity issue of the Klutina Lake Road RS-2477
ROW and the scope of use is now right back where we started.
Web Log Zion National Park - Angel's Landing 
Visited Zion National Park in January of 2022 for the first time. The Park was amazing...but the gift shop included an item that only a surveyor could love. Apparently, many of the National Parks have these token pins available. The text on the back of the card reads: " Overlooking the Zion Canyon at 5,785 feet, Angels Landing is marked with a U.S. Geological Survey Bench Mark. A bench mark is a point whose position is known to a high degree of accuracy and is normally marked in some way. The marker is often a metal disk made for this purpose, but it can also be a church spire, a radio tower, a mark chiseled into stone, or a metal rod driven in to the ground. Bench marks can be found at various locations all over the United States. They are used by land surveyors, builders and engineers, map makers, and other professionals who need an accurate answer to the question, 'Where?'"