| Trails in the park |
| Where can I go, and how can I go there? |
| By Rick Kenyon |
| “There seems to be some confusion about the phrase 13 trails,” says Chief Ranger Hunter Sharp. “The phrase 13 trails refers to the 13 trails in [WRST] that the Park will grant recreational users an ORV /ATV permit to use. There are far more than 13 trails in Wrangell_St. Elias. However the remainder of trails are not open to recreational ORV/ATV use.” |
| If you live in, say, Anchorage, and you want to run around on park land with your 4-wheeler, you are pretty much limited to these 13 trails—none of which are in the McCarthy area. |
| Area residents engaged in subsistence have more latitude. According to Ranger Sharp, “Subsistence users engaged in traditional subsistence practices have much more opportunity and may use ORVs throughout the park both on and off trails without a permit—including areas designated as wilderness— provided that they do not harm the resource in the process. Cutting trees or brush or tundra to establish a new trail is not permitted.” |
| The above is for off-road-vehicles (ORV) and all-terrain-vehicles (ATV) only. When it comes to snowmachine use, the rules are different. Again, Ranger Sharp spells out NPS thinking on the subject. |
| “No permit is needed to use a snowmobile anywhere in Wrangell_St. Elias National Park and Preserve. There is no distinction between recreational use or subsistence use for snowmachines. The users may not damage park resources so they cannot cut new trails through the brush but we do not object to cutting brush on existing trails.” |
| “There is a regulatory requirement that there shall be sufficient snow depth, generally 6_12 inches of snow or more, or a combination of snow and frost depth sufficient to protect the underlying vegetation and soil for snowmobile activity to take place.” |
| “The only other restriction that might effect snowmobile use is that a commercial user needs a business permit from the Park Service to operate on park lands. So if a guide were retained to guide a snowmobile party for pay, that paid guide would need a business permit. The permit would outline the conditions of operation. There is no need of a commercial permit if the commercial activity is entirely on private, or state land or on a state Right-of-Way such as the McCarthy Road.” |
| Ranger Sharp later modified his comments slightly with the following: “In rereading my reply to your question about snowmobile access, I thought that I should clarify one of my comments.” |
| “I said that we would not have a problem with brushing on existing snowmobile trails. I had in mind the cutting of the occasional branch that hangs too low or the removal of a fallen tree that blocks the path. It occurred to me that someone could take my statement as a blanket approval for a larger brushing project. While we do not have a problem with minor and occasional brushing that keeps the travel route open, we are required by the National Environmental Policy Act (NEPA) to examine all of our decisions for their effect on the environment. We can usually authorize activities that do not go outside of the existing trail and that do not disturb the ground. Ground disturbing activities or activities that have a greater impact trigger more review and a thorough appraisal of the associated impacts to things like archeological resources.” |
| “If you know of anyone who is thinking of or wants to work on snowmobile trails on park lands, please ask them to contact us before commencing work. We would be glad to work with them to try to find a way to accomplish the trail maintenance.” |
| Back to summertime use with ATV/ORV. There is another option for the non-subsistence qualified user who wants to motor around in the park. |
| “As far as I know Recreational ORV users may also use public Rights-of-Way such as the State of Alaska Rights-of-Way that exist throughout the park,” says Sharp. |
| And just what are the State of Alaska Rights-of-Way that exist throughout the park? Good question. The McCarthy Road has already been mentioned as one example. Likely the road from McCarthy to the Nizina River is another. Are there others? What are they? |
| All roads lead to RS2477 |
| First, let’s look at the position of the State of Alaska. You might remember from the article in the January & February WSEN that RS2477 is a self-executing law. When the minimal conditions were met, the right-of-way grant occurred. It was not necessary for the state or local government to apply for the grant. The conditions could be met either by “some positive act on the part of the appropriate public authorities of the state, clearly manifesting an intention” to accept it, or by “public user for such a period of time and under such conditions as to prove that the grant has been accepted.” (Hammerly v. Denton, 1961) In other words, the state could simply say that they wanted a certain route, although nobody had previously used it, or a route could simply be used by the public, and the grant occurred without further action. |
| Remember that for Alaska, new roads and trails under RS2477 effectively ended with PLO 4582—the “land freeze” of late 1968. After that time, no new routes could be accepted, but all routes which predated PLO 4582 were deemed to be valid. |
| During 1993-1995, the Department of Natural Resources’ R.S. 2477 Project researched more than tho thousand trails. The project found that some 602 of these qualified as RS 2477 rights-of-way under state standards. In 1998 the Legislature listed these trails in AS 19.30.400, stating that they had been accepted as RS 2477 rights-of-way. That same legislation requires the department to continue researching trails and to prepare an annual report identifying those found to qualify as RS 2477's. Many additional trails have been reported to the Legislature since then. (Since 1998 another 57 have been added) |
| AS 19.30.400 (Identification and Acceptance of Rights_of_ Way) says in part: “The state claims, occupies, and possesses each right_of_way granted under former 43 U.S.C. 932 that was accepted either by the state or the territory of Alaska or by public users.” |
| Note the wording. “The state claims, occupies, and possesses.” The Legislature left no room for wonderment about their intention. It is also clear who may accept the grant, “accepted either by the state or the territory of Alaska or by public users.” The grant could be accepted either by the state or the territory, or by public users. Not by the federal government. |
| The legislation goes on to say, “A right_of_way acquired under former 43 U.S.C. 932 is available for use by the public under regulations adopted by the [DNR or DOT]. So, the state of Alaska says in effect, “Any RS2477 route listed in this legislation is the property of the State of Alaska and is available for use by the public.” |
| Not to say there are not some regulations. Modification, improvement, clearing, etc., even on a valid RS 2477, would require a DNR land use permit. Basically, any activity other than what is “generally allowed” on state land would require a permit. |
| If anyone might think that the above does not apply because WRST is a national park, they need only to read ANILCA or the General Management Plan for WRST. ANILCA, 16 USC 3169 says, “Nothing in this title shall be construed to adversely affect any valid existing right of access.” Since all of the routes listed in the state legislation were in use before 1968, they all fall under the category of valid existing rights. |
| In our last issue, we quoted from a note written by the Chief of Lands in the NPS regional office in Anchorage. Here is their position: “Although the State has made partial assertions that many old travel routes are RS 2477 rights-of- way, none has yet been established as a valid and actual right-of-way. Where a route crosses federal lands, validation would have to be done administratively by the managing agency or by a federal court. That has not occurred on any of them. So, as far as the NPS (USA) is concerned, no such rights-of-way are recognized or currently exist.” |
| Apparently, the wording “The state claims, occupies, and possesses each right_of_way” is thought to be a “partial assertion.” One has to wonder what a “complete assertion” would sound like. Then they make the amazing statement that “where a route crosses federal lands, validation would have to be done administratively by the managing agency or by a federal court.” All RS2477 routes started out “crossing federal lands,” or they wouldn’t be RS2477 routes to begin with! Aside from that, it would be like saying, “where a route crosses privately owned lands, validation would have to be done by the private property owner.” And, of course, if the property owner doesn’t want the right-of-way across his/her property, he/she simply fails to “validate” the route. That is not the way the system works. Most landowners are just like the NPS—they wish the right-of-way did not cross their property! If a landowner wants to get rid of a RS2477 route that crosses his/her property, there is a procedure that allows them to attempt to vacate the right-of-way. They cannot simply say “we don’t want any right-of-way across our property, so no such rights-of-way are recognized or currently exist.” |
| Perhaps it would be beneficial to look at one RS2477 route in detail. Most of us who live in the McCarthy area have used this trail, and it is the primary access for our neighbors, the Pilgrim family. It is officially known as RST 135, the McCarthy_Green Butte Trail. It has been a valid RS2477 road since at least 1922. Even if you are not all that interested in RS2477, the history makes interesting reading. |
| I. Trail Location |
| The McCarthy_Green Butte Trail is located in the Wrangell mountains. From McCarthy the trail heads southeastward, then bends northward and follows McCarthy Creek to the Mother Lode Mine. A 0.75 mile spur connects the trail with the Green Butte Mine. The trail is mapped on USGS 1:63,360 McCarthy b_5, b_6 and c_5 quadrangle maps. The route is approximately 14 miles long. |
| II. Historic Documentation |
| The McCarthy_Green Butte Trail was historically used to access the Green Butte and Motherlode mines from the community of Mccarthy. The trail is referenced in Alaska Road Commission (ARC) documentation as route #57e, “McCarthy_ Green Butte.” The route is included in the 1973 Department of Transportation and Public Facilities (DOT&PF) trails inventory on map 67 (McCarthy quadrangle) as trail #16. |
| A synopsis of historical documentation regarding construction and use includes: |
| Alaska Road Commission reports |
| 1929: Annual report says $1804.55 spent on the route; ARC states: |
| “This route extends from McCarthy up the McCarthy Creek valley to the Green Butte Mine. It was built by the mining company and maintained by them previous to last year. A flood in the fall of 1927 greatly damaged the road and its repair was undertaken by the commission. The road is passable for motor traffic;” |
| 1931: Annual report indicates the $373.87 spent on the trail; |
| 1933: Annual report indicates that $141.26 spent on the trail; |
| USGS |
| 1901: USGS report “Copper River District,” Shrader and Spencer, discusses a trail which, “from Kennicott River...leads up McCarthy Creek, which stream it crosses several times below the mouth of Nikolai creek, coming in from the east”; |
| 1915: USGS water supply paper 372, “A water power reconnaissance in South_Central Alaska, map plate VI, ‘Map of Copper River Basin’ showing location of gaging stations and measuring points,” shows the route; |
| 1938: USGS bulletin 894, “Geology of the Chitna Valley and adjacent area, Alaska,” Moffit, states, “In the Nizina district, a road 4 miles long connects the town of McCarthy with Kennecott, and another 13 miles along follows McCarthy Creek to the old Motherlode camp. This road was constructed privately but is now controlled by the Alaska Road Commission...” also, “Geology of the Chitina Valley and adjacent areas, Alaska,” shows the McCarthy_ Green Butte Trail; |
| 1951: USGS 1:250,000 scale map, McCarthy quadrangle, shows the route. |
| Other |
| 1990: “Golden Places: The history of Alaska_Yukon Mining” Hunt, 1990, states: “McCarthy was laid out on John Barrett’s homestead. Barrett, once holder of Mother Lode and Green Butte copper claims, sold the Motherlode to Kennecott in 1919. His efforts to develop Green Butte were aborted because of declining copper prices in the 1920s;” |
| 1993: Untitled map, Frank Morris, care of Department of Natural Resources, Division of Land, describes the Green Butte Road, stating: “This was one of the earliest truck roads with bridges and tunnels for ore haul to the railroad and servicing the mines at Green Butte, Motherload, and Nikolia (sic). Most of the initial construction was used by the Kennicott and Green Butte people. Maintenance and upgrading was accomplished by ARC General Foreman Bill Cameron;” |
| Land status |
| Alaska Division of Land personnel researched state status plats and Bureau of Land Management master title plats and historical indices to identify servient estates and historical federal withdrawals. Pertinent servient estates and withdrawals as identified on Alaska Division of Land and Bureau of Land Management records, are listed as follows: |
| 1. National Park Service, Wrangell St. Elias National Park and Preserve; |
| 2. 909229, homestead entry, date of entry: 12/15/22; |
| 3. 1216188, University grant, survey accepted: 6/9/22; |
| 4. Mental Health Trust Authority |
| 5. A_0288 and a_04670, right_of_way, Copper River and North West Railroad, established 12/11/08 and relinquished : 5/11/45; affected metes and bounds include: t5s r14e,crm, t6s r1e, crm, t6s r3e,crm; |
| 6. Document 060677, application for withdrawal power south classification, effective: 1/16/64, cancelled 5/26/65; affected all continuous lands below elevation 1400 ft. In drainage basin of Copper River and its tributaries; |
| 7. Bureau of land management. |
| Acceptance of grant |
| The earliest reservation along the subject route was for University grant 1216188, with a survey date of 6/9/22. The grant of the RS 2477 right_of_way for the McCarthy_Green Butte trail was accepted by construction and use, subject to valid, existing rights, when the land was not reserved for public purposes. |
| So there you have it. RS 2477 routes such as McCarthy_Green Butte clearly exist and the state believes that it is valid based on the terms set out in the grant and the historical use of the route. You may need a permit from the state for certain activities, and “every effort should be made to minimize the effect on the affected property owners.” |
| But what are we to do when the “affected property owners,” the National Park Service, disagrees? |