Court rules against property owners in Iditarod lawsuit

WASILLA — Dog mushers, hikers and cyclists who use Homestead Road and a portion of a century-old trail once called the Iditarod Trail may continue to do so, an Anchorage judge has ruled.

The properties had been in public contention since at least the 1980s, when Benjamin Cowart blocked off a section of a trail across his property. His daughters have sought to void two state-claimed rights of way, one for the historic trail and the other for a road known as the Homestead Road, constructed by Chuck Sassara in the late 1950s. The property has since been divided between Cowart’s daughters, Kelly Dickson and Donna DeFusco.

A 27-day trial brought numerous famous dog-mushing names to the stand to talk about the trail’s history, and the history of its use, according to a 57-page judgment issued Tuesday by presiding judge Catherine Easter.

The judgment ends a four-year lawsuit between the property owners and the State of Alaska.

Iditarods

The trail in question is an east-west winter trail that once connected the Knik community with the community of Susitna Station, near where the Yentna River flows in to the Susitna River. It is neither part of the contemporary Iditarod Trail Sled Dog Race, nor of the Congressionally created Iditarod National Historic Trail.

Original maps of the trail date to a 1908 survey, Easter wrote.

However, expert testimony puts the trail as part of a much older series of Alaskan Native trails that connected Southcentral Alaska with Nome and environs, according to testimony summarized in the judgment. The trails were later incorporated into Russian and then American fur trading networks extending to the interior, according to Bryan Taylor, a DNR employee who testified about the history of the trail. Dickson testified that maps dated to 1899 and 1906 show the trail travelling to the north of the property, which Easter dismissed.

“Although Ms. Dickson’s observation may be correct, the Court does not find that Ms. Dickson’s testimony necessarily contradicts Mr. Taylor’s testimony,” Easter wrote. “This is because the existence of a historic trail located north of Platinffs’ (Dickson and Defusco’s) property does not meant that another historic trail cannot cross Plaintiffs’ property.”

In addition, the earlier maps weren’t a reliable source for the location of the trail, Easter wrote.

The Alaska Road Commission (ARC) maintained a re-aligned portion as late as the 1920s, but ultimately abandoned the trail. That means the ARC opted not to spend any additional resources on it, but did not cede the property right to the trail, according to the judgment.

Chuck Sassara testified that after the ARC stopped funding the trail, use dropped off but did not cease. Dog mushers including Joe Redington Sr., Dick Mackey, Lee Ellexson, Clem Tellman, Stanley Collins, Hal Cluster, Bob Bacon, Al Hibbard, and Ed Carney used the trail in the 1950s to train for dog sled races. Redington, Sr. also used the trail to ferry supplies to territory on Flathorn Lake.

In 1967, mushers used the trail to stage the 1967 Centennial Race, and again in 1969. The Centennial race is one of the precursors to the current Iditarod Trail Race, according to Dick Mackey, who testified at the trial. The 1973 Iditarod Trail dog sled race also crossed the two parcels, and continued to cross the property through at least the 1978 race.

In 1983, new surveys showed the trail crossing Cowart’s property and made the claim that the trail existed based on witness testimony, maps, and other evidence. In December 1983, apparently in response, Cowart sent a letter to two dog mushing organizations, telling them that his property was posted and that the 1984 race could not cross there.

Instead, Easter ruled that the trail did exist, and that it constituted a Revised Statute 2477 (R.S. 2477) road. The 1866 law allows the trail to be claimed by states and local governments across federal land by frequent use, without any formal claim.

Easter also gave the State more land than they had to begin with. Because the road meets the qualification for a local road, the minimum easement should be 100 feet across, Easter wrote.

“Limiting the scope of an R.S. 2477 easement to anything less than a 100-foot wide right-of-way would make R.S. 2477 scope determinations more fact intensive, make the test similar to one for prescriptive easements, and go against long-standing (State) and Federal laws setting the width at 100 feet,” Easter wrote.

Homesteads

Sassara testified that he “probably” built Homestead Road in the summer of 1958 with a D8 CAT with a nine-foot wide blade, with help from Edward Schenker, whom Sassara hired to help finish the road in one season. Sassara testified the original intention was to build a road to connect to two family homesteads off of Burma Road. The road made the area more attractive homesteaders who were “practical [following] in the exhaust fumes of the CAT,” the judgment quotes Sassara as saying.

When Cowart blocked the Iditarod trail in the early 1980s, westbound mushers had two options to cross a north-south series of hills known as Ninemile Ridge. One option was to take the section line at Moore Road through a high-elevation portion of land known as “Suicide Hill.” Mushers eventually determined Suicide Hill to be unsafe for dog mushers because sled brakes did not work on the hill, meaning sleds could overrun and injure dog teams. The other option was to take Homestead Road, which came out closer to Ninemile Hill, the lowest portion of the ridge, and dog mushers began using Homestead Road.

When Dickson inherited her father’s property in 2008, she spotted Homestead Road crossing her property using Google Maps, and blocked the road as it crossed her property by felling trees, putting up signs, and tying tape across the road, according to the judgment. Dickson also told state officials she was blocking a road her father had originally constructed, and at least one state official echoed that assertion in writing.

However, various user groups — as documented by game cameras Dickson installed — pushed the block aside and continued to use it anyway, according to the judgment. Dickson continued to try to block the road with signs and by planting trees, until agreeing to stop in 2012, when the lawsuit was filed. Hundreds of sled dog races had been run across the road since the 1980s, several dog mushers testified.

“Homestead Road is also used by landowners in the area,” Easter wrote. “For many of these landowners, this is the only access they have to their property.”

Easter ruled that a 20-foot easement existed along Homestead Road where it crossed the Dickson and Defusco properties, a claim backed up by continuous use over the years.

“Ever since the road was constructed by Mr. Sassara, homesteaders and other users have taken highway vehicles and other off-road vehicles along Homestead Road,” Easter wrote.

State officials praised the decision.

“The state is extremely pleased with the outcome of the case and the Court’s confirmation of these important and historically significant public rights-of-way,” wrote Cori Mills, an assistant attorney general.

The ruling means the Junior Iditarod, Iditabike, and snow shoe racing events, which use that section of the trail, may still use them, said Jim Walker, a natural resource manager with the Department of Natural Resources. The route is also used in the Knik 100 and Knik 200 sled dog races. The right-of-way’s existence also means that should the Iditarod Dogsled Trail Race ever wish to return, it could, Walker said.

“We believe our case was clear,” he said. “We believe our evidence was clear and convincing regarding both routes.”

Leslie Need, who represented both clients for the Landye Bennett and Blumstein law firm, issued a one-sentence comment on the ruling.

“We’re reviewing the court’s findings of fact and conclusions of law and evaluating our options with our clients,” she said.

Contact reporter Brian O’Connor at 352-2270, brian.oconnor@frontiersman.com, or on Twitter @reporterbriano.