Anchorage Court Denies Private Property Rights

Why aren’t 70 Access Points to Chugach State Park Enough for Dani Crosby?

ALASKA RESIDENT SINCE: 1996
ALASKA COMMUNITIES LIVED IN: Sitka and Anchorage
EDUCATION:
Occidental College, B.A.
Gonzaga University School of Law, J.D.
PROFESSIONAL EXPERIENCE:
Superior Court Judge, 2016 to present
Private Practice, 1998-2016
Law Clerk for Superior Court Judge Eric Sanders, 1997-1998
Law Clerk for Superior Court Judge Brian Shortell, 1996-1997
OTHER SERVICE:
Civil Rules Committee, Chair
Trauma-Informed Courts Committee, Member

A 14-day hearing before Superior Court Judge Dani Crosby beginning January 18, 2022 and concluding March 2, 2022 has found that a public prescriptive easement exists across the property purchased by Franklin and Oksana Pugh for their personal use. The proposed trail stretches across four parcels of land beginning with Pugh’s Steamboat Drive section, crossing over the property of Christopher Cavanaugh, (who has legally changed his name to Mattanaw CMC Mattanaw), and ending at the border of the Waddell tract—thus allowing anybody and everybody full random access to these entire properties adjoining the exclusive subdivision above Potter Marsh.

Selective Justice

Beyond the Mattanaw property, two additional properties must be crossed prior to reaching Chugach State Park, which were not included in the complaint–the Waddell and Alaska Zoo (formerly also part of the Stewart Homestead) tracts.¹

Since a flashmob organization, Friends of the Stewart Public Trail was created just for this purpose, Judge Dani Crosby has ruled by court order that overrunning these private properties without regard to the owner’s interests is now legal. Former Municipality of Anchorage Attorney, Bill Falsey started this bandwagon while a public servant himself, and was allowed an “ethics exemption” by the MOA Assembly to join the gravy train in private practice.

This is Third-World stuff–just across Bering Strait from Russia.

Defendants filed a Motion for Reconsideration October 10, 2022 charging the court has erred in a myriad of ways. Specifically, the court had already ordered that: The presumption of permissive use existed from the inception of the Homestead Road. What is more, it was totally in line with the well-recognized legal principle that use of another’s land is permissive.²)³

Further: The homesteads along the Stewart Trail were not subservient estates to provide access to Chugach State Park, which did not exist when the Homestead Road was developed even to its terminus at the Stewart Homestead in approximately 1964. This was well before the public began using the Road and well before 1986, when this Court determined the prescriptive period was triggered.

The owners want users to gain permission before accessing their property. Again, from the reconsideration brief: The presumption of permissive use applies here from the inception of the Stewart Trail. Both the law and the facts so provide. Upon agreement of the parties so did the Court.

Finally, there was specific evidence that historically neighbors generally understood that the Road was private property but if they respected the private property they were welcome to use the Road for both access and recreation.

Isn’t this the natural expectation of all honorable Alaskans? It could be downright dangerous to access some Alaskan’s property without permission. In fact, there are some 70 designated access points to Chugach State Park. I wrote about the flash mob approach to this public policy issue before.

When is it necessary for a government entity to take a person’s land—when there is a prevailing public interest? When taking that land or imposing an easement on it for public use serves a small group of activists with an Entitlement Mentality? Exactly when does the hand of government override your inherent rights to real estate you have purchased for personal use?

This Case Ain’t Over

I have been active in property rights in Alaska some 40 years and have closely followed the issues of government land ownership in Alaska, explained Ray Kreig, an engineer and Alaska Land expert. In fact there is a lot of private lands in Alaska, even though it is one-third of one percent of the total land base owned by non-Native corporations. It’s a very small percentage of the land in this great state.

Kreig continued: In the 1970-80s I did a lot of land evaluation work for the Alaska Department of Natural Resources assessing subdivision projects. I have since looked at many of these projects we did and many of them are sitting there just as they were when we then assessed their suitability for sale to the public.  People purchased the property and much of it is just sitting there. I can’t say with certainty why that is but much of it is subject to onerous government requirements. Zoning, planning, all of the government requirements that are so expensive for a person to do.

Native corporations are private land owners, representing 7-8 percent of the total area collectively owned, said Kreig. Native (homestead) Allotments however—are private individually owned tracts of land also.

This previous story looks at how the Alaska Railroad has outraged some Alaskans with its easement policies:

Perhaps if this effort fails Pugh should start developing this property, selling lots for new homes so a Homeowner’s Association can take on the job of isolating the trail, and creating paid parking to minimize the number of cheapskates from all over the region who don’t want to pay the fees at State-designated parking trailheads.

Implications for every landowner in Alaska.

What’s happening in this instance is these environmental groups—facilitated by the former municipal attorney–want the ability to use Pugh’s undeveloped piece of property in this suburban fringe around a growing neighborhood in the Municipality of Anchorage without buying it, or even having the decency of asking permission to enter it, explained Kreig.

This land was for sale and Pugh’s bought it. If these users wanted to use this land perhaps they should have organized a group to do that instead of organizing a Flash Mob to try to threaten, bully and intimidate Pugh’s, using the court system to allow unfettered access.⁴

Alaska judges are nominated by the Alaska Judicial Council, currently headed by Executive Director and Attorney, Suzanne Dipietro. Dipietro is sister-in-law to Nancy Pease—a well-known trail activist who advocates for trail easements across both private and public land who was active in this case. DiPietro joined Pease and her spouse Thomas Pease in submitting an affidavit claiming use across the Pugh’s property. DiPietro may have felt compelled to do this after Pugh filed a trespassing complaint against both her sister-in-law and husband when they knowingly entered Pugh’s posted property on August 3, 2018 without permission.⁵

Kreig explained further: We are seeing suburban areas developed into subdivisions and the first people in with a subdivided home end up fighting zonings or allowance of more subdivisions to be developed after they have theirs. They find it politically convenient to protest and selfishly fight any new houses preventing others from having homes like theirs. They want buffer areas around their homes, but they don’t want to buy the land or pay taxes on it; they just want to strip away the rights of those undeveloped property owners to use THEIR property.

Potter Creek Valley homesteaders in the 1950-60-70s allowed hiking or hunting on their land. If people wanted to access the Chugach Mountains across these private lands, prior to Chugach State Park, it was allowed, continued Kreig. Most of these rural homesteaders were like rural landowners anywhere—as long as their livestock was not endangered or other threat of damage to their property—it was okay.  Before we became so litigious as a society the landowner might generally say: “Sure you can cross my property, nice to see you, have a nice hike. Sure you can rabbit hunt on my property, please close the gate on your way out…”

So for decades this was a respectful relationship between landowners and recreational users, continued Kreig. But, as the old-timers have died out, new people move into the neighborhood who have no real appreciation or understanding of what it means to be a rural tract owner. That, combined with the courts allowing people to sue for injuries when somebody goes onto a piece of property–even if the injury is due to poor judgement on the part of the visitor–creates a liability for the landowner. An injured person and too many judges and juries just look for the person with the deepest pockets to pay.

In Kreig’s observations courts in past times might be more fair and reasonable in recognizing someone should not be able to loot a property owner who gave permission—or even didn’t give permission—to go on their property. These standards and ethics have changed so that these suburban subdivision neighbors look upon undeveloped tracts as parkland for their entitled use.

In Alaska for the Wrong Reasons

Could this be symptomatic of a much greater problem we have allowed in Alaska since oil development caused our state to be overrun with people here for the wrong reasons, and our public institutions—including the Alaska Court System—allowed to run on autopilot?

It has become very convenient for the political left to create cases like the one impacting the Pughs, that can be prosecuted to elect leftwing candidates for other agendas, said Kreig. They are not just interested in access over private lands to public lands; they want to protect public employee union contracts, government giveaways to their allied supporters, and this is just one of a litany of items like the diversity stuff we are seeing now. It is one of the parts of the platform they are using to appeal to suburban homeowners who would like to freely range anywhere they want to go over private property or across routes to public property.

An Issue to Exploit

Kreig concluded: There is a serious downside to all of this. It is becoming quite dangerous for private property owners to allow somebody to hike on their property. It is dangerous for large undeveloped property owners to be good neighbors who say “sure, enjoy yourself.” It is dangerous because now these people are setting themselves up to be victims with adverse possession claims that say: “Since we have always used this property without permission we have a right to continue to do that.”  The property owners are also exposing themselves to liabilities to be sued and the courts are unwilling to recognize what is going on. Even when you win a case like this you are stuck with huge legal fees to pay.

The Left understands this; they don’t have to win the case, they just need to bankrupt the landowner.

Transcript of interaction of trespasser Nancy Pease with APD Officer Martin

AFFIDAVIT OF SUSANNE DIPIERTRO

1. Decision for Case No. 3AN-19-05746CI [↩]
2. Yuk v. Robertson, 397 P.3d 261, 266 (Alaska 2017 [↩]
3. Motion for Reconsideration: https://donnliston.net/wp-content/uploads/2022/10/Motion-for-Reconsideration-1.pdf [↩]
4. Transcript of interaction of trespasser Nancy Pease with APD Officer Martin: https://donnliston.net/wp-content/uploads/2022/10/01-2018-09-18-14.44-Officer-Martin-Nancy-Pease-Telephonic-Contact-Transcipt.pdf [↩]
5. AFFIDAVIT OF SUSANNE DIPIERTRO:https://donnliston.net/wp-content/uploads/2022/10/10-03-Pease-02-DiPietro_Susanne_10.03.2019_rfs.pdf [↩]