Alaska siezes private property

Not all land grabs begin with the federal government despite its “insatiable hunger,” to quote Ronald Reagan, for people’s private property. (“Is there a concerted plan by [the federal] government to quietly gain control of land in America either by outright ownership or through regulation of private property?” declared Governor Reagan back in 1977.) That is what Americans, of all political stripes from Maxine Waters to Rush Limbaugh, discovered to their horror with the Supreme Court’s infamous Kelo v. City of New London 2005 ruling, which let a local government seize private land to give to another taxpayer whose use might generate more tax revenues. Sadly, no government-not even one whose citizens are the boldest defenders of property rights-is free of the taint of covetousness, not even Alaska.

Douglas Trucano, through two corporations he created, owns land along and beneath Lemon Creek in Juneau, Alaska. That land and the surrounding property was surveyed by the federal government-by the General Land Office (GLO), the predecessor to the current Bureau of Land Management-in May 1908, at which time the land was recognized as the “Homestead Claim of Louis Lund,” under the Homestead Act of 1898. A plat was issued for the land in February 1909. In surveying the property the federal government meandered around, that is excluded from the platted land, all navigable streams. Lemon Creek, as well as several other small streams shown on the plat, were not meandered around in the GLO’s survey because the GLO surveyors determined they were non-navigable.

In 1913, the land underlying Lemon Creek was patented and, over the years, has been treated as fee simple private property and developed extensively. From 1913 through 1959, when Alaska became a State, wide-ranging gravel mining occurred in Lemon Creek; as a result, Lemon Creek bears little resemblance to the 1909 GLO survey plat. In addition, over time, the land was subdivided and today is owned by several different private interests.

In 2011, Mr. Trucano made plans to mine, develop, and then sell his various properties on Lemon Creek. That was when the Alaska Department of Natural Resources notified Mr. Trucano that the Department claimed title to a portion of his land. The documents the Department provided to him showed new property lines cutting across private property and even splitting buildings! Mr. Trucano was not alone; the Department also made similar ownership claims throughout the State, either whenever a land owner exercised his or her property rights or as a result of the Department’s ongoing “navigability determinations.”

It seems that, back in 1980, Alaska instituted a “comprehensive navigability program” in response to federal land conveyances and land management activities under the Alaska Statehood Act, the Alaska Native Claims Settlement Act (ANCSA), and the Alaska National Interest Lands Conservation Act (ANILCA). According to Alaska, its plan is to use “proper criteria [to] determine[e] navigability” and to make “accurate navigability determinations . . . as disputes arise.” Alaska believes that, back in the early 1900s, the federal government did not apply proper surveying criteria in Alaska unlike what it did in other States. Alaska has reasons to be paranoid given the manner in which it has been used as the Nation’s federal park, preserve, and playground set aside; however, in this case Alaska is wrong and private citizens are being victimized.

Mr. Trucano does not intend to be a victim. He and another named plaintiff sued the Department officials responsible for implementing the navigability program in a class action lawsuit filed in Alaska federal district court for themselves and others who are under attack, charging that Alaska is violating federal law by claiming ownership of streambeds patented by the federal government prior to statehood. Thousand of property owners all across Alaska could be affected. Every day, we learn that Ronald Reagan was right, not just about land grabs, but also about the need to fight for freedom.

Mr. Pendley, a Wyoming ­attor­ney, is President and Chief Legal ­Officer of Mountain States Legal Foundation and a regular ­­c­olum­nist in ­Loggers World.