Feb 3

Written by:
2/3/2011 11:55 AM 

Miners dig in deep for land access battle

Outraged over BLM road closures, Alaskans prepare for legal feud with the feds

By Brad Jones
GPAA Editor / Content Director

You could say that Alaska miner Carey Mills is stuck between a rock and a hard place — namely his mining claim and federal government red tape.

Washington’s heavy hand seems to have struck a nerve with many Alaskans, including high-profile politicians, mining, prospecting and outdoors groups. The repercussions could set a legal precedent in Alaska, lead to a national court challenge and force the reopening of roads shut down by the Bureau of Land Management.

Mills, a union heavy equipment operator who lives in Fairbanks will argue in court that the federal government has denied him access to his 880-acre gold mining claim by not allowing him to use an existing trail to get there.

The 40-mile gravel road, rutted in some areas, is called the Fortymile Station - Eagle Trail, which the state of Alaska has charted as one of more than 600 right-of-way trails across the state.

While the state government says Mills has the right to use the trail,  the federal government has denied him access, he said.

Mills had been driving four miles of the trail in his pickup truck with no problems until about two years ago when neighboring miner, Scott Wood, changed his mind and denied Mills permission to use it. The trail crosses Wood’s unpatented federal mining claim.

Later, the federal Bureau of Land Management advised Mills to stop using the road until the courts determine whether he can legally use the trail to access his claim, or not. Otherwise, if Mills continued to use the road, BLM officials advised him that he could be charged with trespassing, Mills said.

Mills filed a lawsuit in U.S. District Court on Nov. 30 in the hopes of forcing the U.S. government to recognize the trail as a public right of way and allow him to use it to move equipment to his mine site.

The controversy stems from Revised Statute 2477, an 1873 federal law that allowed anyone to create a public right-of-way across unreserved federal land. The law was repealed by Congress in 1976, but it grandfathered previously established rights of way.

Then, in the early 1990s, former Gov. Walter Hickel spearheaded a program to document old trails in Alaska to show they qualified as R.S. 2477 routes. The state Legislature later passed a law claiming 602 routes, including the Fortymile Station - Eagle Trail, as public rights of way.

However, the federal government still doesn’t recognize many of those routes and others in the western United States and contends that a court ruling is needed in order to transfer the title of the so-called right-of-way trails to state ownership.

In a recent phone interview, Mills said he had little choice, but to file the lawsuit.

Besides the federal government, Mills has named five officials in the Department of the Interior, including Secretary Ken Salazar; Doyon Ltd.; Hungwitchin Corp. in Eagle; and Scott Wood, in the lawsuit.

Wood has denied Mills’ request to move heavy equipment through his claim site.

Neither Wood, who resides in Washington state, nor an official with the Hungwitchin Corp. could be reached for comment before press time.

Mills has since won the support of several state and federal government officials and mining groups, including the Gold Prospectors Association of America, Alaska Miners Association, Fortymile Mining Association, Public Lands for the People and Alaska Outdoor Council, an umbrella group for many outdoors groups which lists the National Rifle Association as one of its members.

Mills is currently awaiting a decision from the Alaska government on whether or not the state will intervene and agree to be listed as a plaintiff in the case.

He is hoping the case will evolve into a class-action lawsuit that will lead to the reopening of all R.S. 2477 right-of-way trails.

So far, Mills has enlisted the support of Rep. Don Young (R-Alaska) and Rick Schikora, chairman of the state’s Citizens’ Advisory Commission on Federal Areas, who have both requested that the state intervene in the lawsuit. Mills is also backed by state Sen. Joe Thomas, D-Fairbanks and Sen. Joe Paskvan, D-Fairbanks as well as U.S. Sen. Lisa Murkowski, R-Alaska.

Mills has requested the support of U.S. Sen. Mark Begich, D-Alaska, but has not heard back from him, yet.

Natural Resource Manager Scott Ogan of the Department of Natural Resources has also given Mills his blessing.

“This thing has almost taken on a life of its own,” he said. “I don’t have to call for support. Now, they are calling me.”

Because of the growing magnitude of the case and high-profile attorneys involved, Mills said he can no longer personally carry the burden of the estimated $500,000 legal bill to fight the case all the way to the U.S. Supreme Court, if necessary. He has asked the GPAA, PLP and other mining and outdoors groups to help fund this land rights case.

“All we need is 25,000 people to come forward and donate $20 dollars each and we could reach the $500,000 goal,” Mills said.

The case is expected to go to the Ninth Circuit Court of Appeals and then likely to the U.S. Supreme Court.

“We have a really good chance to win this one,” Mills said.

The Alaska Outdoor Council has set up a legal fund, the Access Assertion Fund, and is now accepting donations on its website to help win the case, Mills said. The AOC website is www.alaskaoutdoorcouncil.org. (Here is the direct link to the AOC donations page. The Access Assertion Fund is listed at the bottom of the page.)

Mills said he is discouraged that his lifelong dream to prospect in Alaska has been thwarted by the federal government.

“Here I am stuck in the middle of a legal battle, when all I really want to do is be out there diggin’ dirt,” Mills said.

“From years ago, I remember that Johnny Horton song, North to Alaska, my dad used to have on 8-track tape,” he said with a chuckle.

“I remember listening to that as a kid and saying, ‘Man, that’s where I want to go!’ ”

While some Alaskans have all but given up fighting the feds for land access, others are just getting geared up for battle, Mills said.

“Some of them are disheartened. They’ve been fighting for it for years and nothing ever seems to get done,” he said.

“What’s really disheartening is that a private individual has to fight the government which is supposed to be protecting their rights.”

All the problems seem to stem from the legislative changes made in 1976, when the feds passed the Federal Land Policy and Management Act, Mills said.

“The federal government started encroaching more and more and more on Alaskans’ rights to get to their locations,” he said.

The problem has gone from bad to worse in the last few years and Alaskans are finally fed up with the bureaucracy that is preventing them from getting around and hampering their ability to sustain a livelihood in some instances.

“It’s not just Alaskans, but the general American public and international tourists who come to see our great state. They can’t get out into the wilderness, because there’s no way to get there, other than fly,” Mills said.

“The state should be asserting its rights, but the bottom line is they have never stepped up,” Mills said.

“This thing  has been going on for more than 30 years now and the state has never come forward and put their money where their mouth is,” he said.

But, that could all change in the next few weeks, when Mills expects a decision on whether or not the state will intervene in the case, which will set the only precedent for R.S. 2477 case law in Alaska, since the legislative enactment in 1998, in which the state designated the 602 routes as R.S. 2477 trails.

Mills said there were only two other legal wrangles in Alaska over the use of the public rights-of-way and both were settled out of court.

“There is no precedent in Alaska because there has never been any case law to establish one. My case is going to set the case law precedent for the entire state,” Mills said.

“I’ve done everything I can by contacting legislators and outdoors groups and a lot of them have responded because this is the only legal recourse left for Alaskans,” he said.

“They’ve backed us into a corner,” he said.

Mills explained that the amount of land reserved for federal use in Alaska has already reached 168 million acres, roughly the equivalent in land mass of seven lower-48 states combined — New York, New Jersey, Pennsylvania, West Virginia, Ohio, Indiana and Illinois. Or, by comparison, the federal land grab in Alaska is almost equal to the entire area of Texas, the second largest state, which is 165.4 million acres.

“That’s part of the problem. It’s hard to get that concept in your mind. It’s huge,” he said.

Mills said it is difficult for legislators in New York and New Jersey, for example, and some of the northeastern states to grasp how much land is being swallowed up by the federal government.

He said much of urban America does not understand the degree of hardship Alaskans face every time the Bureau of Land Management decides to shut down another trail or road.

“They just don’t get it,” he said.

“There are only five roads in Alaska — five major roads. The only way to go from those major roads is by R.S. 2477s, or fly,” he said.

Road closures and restrictions have become noticeably worse for prospectors, miners and other outdoor groups in recent years because of increased pressure on Washington from radical environmentalist groups to shut down public access to wilderness areas, Mills said.

“They are trying to make it even more difficult for the public to get out there,” he said.

GPAA Claims Director Blake Harmon said that the federal government’s decision to block access to an existing road is a clear violation of the rights granted to miners.

“The federal government has closed a road that has been used for more than 120 years,” Harmon said.

The trail was originally blazed in 1885 by Lt. Henry Allen and is part of the Alaska Military Cable and Telegraph System. It begins about eight miles south of Eagle, Alaska and meanders along the north side of Teddys Fork to its headwaters and crosses over a divide to reach the headwaters of Little Champion Creek before continuing on to Fortymile Station. The trail has a well-documented history of continuous use by the military, freight-hauling dogsled teams, miners, prospectors, outdoor enthusiasts and the public.

“At this point, the BLM does not recognize those rights-of-way in most cases. We are hoping this will set a precedent that we can use to get them reopened,” Harmon said.

“These trails need to be left open and available for mining, prospecting and other recreational purposes such as hunting, fishing, hiking and anything else along those lines,” he said.

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Brad Jones is the Editor/Content Director for the Gold Prospectors Association of America.