CLAYTON WALKER, JD
Original Opinion JULY 20, 2013
Rehearing October 10, 2011
STATE OF ALASKA,
DEPARTMENT OF NATURAL RESOURCES
DIVISION OF PARKS AND OUTDOOR RECREATION
Supreme Court No. S-14541
OPINION No. 6800 – July 19, 2013
The Alaska Supreme Court revoked Nancy Lakes area homeowner’s motorized ground based access to their properties along ATV trails by invalidating their special use permits as unlawfully issued easements.
The Alaska Legislature created The Nancy Lake State Recreation Area (“the Park”) for public recreation. The Park’s governing regulations prohibit the use of motorized vehicles off of the Park’s paved roads. The Park issued special use permits to owners of private property abutting the remote boundary of the Park. The property owners permits granted them the right to use all-terrain vehicles (ATVs) along the Butterfly Lake Trail to get access to their private property. The owners use of the ATVs damaged the Butterfly Lake Trail and the surrounding wetlands.
SOP, Inc. sued to enjoin the Park from issuing these ATV permits. SOP moved for summary judgment, and the Park filed a cross-motion for summary judgment. Superior Court Judge Patrick J. McKay denied SOP’s motion and granted the Park’s motion, concluding “there is nothing in the statutes or regulations that justifies court intervention and invalidation of the permits.”
SOP appealed. The Supreme Court held that the permits created easements because the Park cannot revoke the permits at will. Easements are considered disposals of government property. The Alaska Constitution prohibits the Park from disposing of property that the legislature has set aside as a state park. Thus, the court we found that the permits were illegal.
So, you might ask, who is SOP, Inc? SOP, Inc. is an Alaska nonprofit corporation founded on September 27, 2010, just five months before they filed their original court action. Lisa Weimer, Jolene Hotho and Deborah Pratt formed SOP, Inc.. The initial directors were Wayne Blank, Paul Spiro and Casey Gilmore. The registered agent was Patrick Gilmore. Patrick Gilmore was also SOP’s counsel in the underlying matter and on appeal. The opinion suggests that these people all have float planes to access property in the area. Those with float planes don’t appreciate all the encroachment by the ATV masses.
SOP, Inc. does not appear to have a web site or any other indication of performing public services other than the pursuit of this case. While nonprofits file federal tax returns and those returns are available publicly, there doesn’t appear to be any returns filed for the entity. It appears that they created the for the purpose of pursuing this particular litigation. Perhaps they intended to reduce the risk of an adverse attorney fee award in Alaska. However, the litigation is probably protected from attorneys fees under the Alaska Supreme Court doctrine of public service litigant. Creation of SOP, Inc. may also been simply a way to keep the interested parties name off the caption.
The court invalidated the permits on a narrow basis. The court determined that these permits were actually easements. An easement is an interest in real property that is not terminable at will by the grantor. Even though the permits only allowed access for six months duration the court focused on the fact that the permit was only revocable for cause. Accordingly, the court left open for consideration whether the department could still grant permits, so long as, the permits allowed the department to revoke the permit for any reason at any time.
This would only be a short-term duration solution for the ATV crowd. The permits have granted them the right to improve the trail so they don’t cause more damage. None of the ATV crowd have apparently seen fit to address the core problem that their activities have caused extensive trail damage. The opinion suggests that there are 200 affected property owners. If the trail were a paved road then there would be no grounds for SOP, Inc. to proceed. Perhaps it is time that they organize an Nancy Lakes ATV Property Owners nonprofit corporation to gain equal footing with the SOP, Inc. float plane crowd. The entity should be charged with raising money to design and construct trail improvements to stop the damage. It is not clear whether the Department would need to approve the design. Another purpose for the entity would be funding, organizing and performing annual maintenance to make the trail passable by foot. Another suggestion would be to form a lobbying group to seek the legislatures recognition of the public access route. The legislature would have this authority, while an administrative agency would not. A third course of action would be to intervene in this case so that the Nancy Lakes ATV Property Owners interests are adequately represented. The agency records are spotty on the issue of the early history of the ATV uses on the trail.
For an appointment call