is road legal?

By Rick Kenyon

If you are paying attention at all, you will realize there is a dispute about the legality of the road that runs between McCarthy and the Mother Lode Mine, running up McCarthy Creek for about 14 miles.

Speaking of the Green-Butte Road, National Park Service spokesman Superintendent Gary Candelaria repeatedly told those assembled at McCarthy on April 18, “I understand that it has been asserted by individuals to be a state right-of-way. Never¬theless, neither the State of Alaska, nor the NPS, nor the Department of Interior recognize it as such.”

The Superintendent is in error. While the National Park Service may not recognize the route as a public right-of-way, the State of Alaska most assuredly does. In fact, as one Department of Natural Resources official told me, “We even passed a statute naming it as a legal road—what more do they want?”

Alaska Statute AS 19.30.400 is called “Identification and Acceptance of Rights-of-Way.” It was passed by the Alaska State Legislature in 1998, and specifically lists the McCarthy-Green Butte as right-of-way number RST 0135.

The statute states, “The state claims, occupies, and possesses each right-of-way granted under former 43 U.S.C. 932 (this is the RS2477 statute) that was accepted either by the state or the territory of Alaska or by public users. A right of way acquired under [RS2477] is available for use by the public under regulations adopted by the Department of Natural Resources...” (emphasis added)

It goes on to say, “The rights-of-way listed in (d) of this section have been accepted by public users and have been identified to provide effective notice to the public of these rights-of-way.”

Section (d) is where the McCarthy-Green Butte route is identified as RST 135.

I asked Judy Chapman at the Department of Transportation about the phrase asserted to be a right-of-way. “We don’t have to assert anything,” said Judy, “we only have to show that the conditions have been met to receive a valid RS2477 grant. It is a self-executing grant, and becomes effective at the point in time when the conditions of use are met.”

Superintendent Candelaria also said that the road had not yet been “adjudicated as a legitimate ROW.”

Again, not true. The State of Alaska has done an administra¬tive adjudication on the McCarthy-Green Butte route and it is on file with the Department of Natural Resources in Fairbanks. Joe Sullivan at the Department of Natural Resources confirmed that the route is indeed on file as having been adjudicated by the State of Alaska as a valid right-of-way.