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Nikishka Beach access denied

Borough pledges to fight Homeland Security decree 'tooth and nail'

Posted: Thursday, January 24, 2008

A right of public access to Cook Inlet's shoreline over Nikishka Beach Road that has existed since before statehood is in jeopardy from a ship loading company's federally mandated security plans.

On Dec. 27, Offshore Systems Kenai established a security checkpoint on company property beyond the end of the platted road and began restricting access to the beach to those with identification and a good reason to be there. They did so in order to fully comply with provisions of the Marine Transportation Security Act of 2002, a company spokesman said.

Area residents, many of them commercial fishers, have used Nikishka Road to reach the beach for generations. It wasn't long before calls began pouring into borough offices. At Tuesday night's meeting, several people showed up to appeal for help from the borough assembly.

"What I'm here for is that I'm curious about what's going to happen with the North Kenai beach access and to push the borough to fight on the public's behalf," said Matthew Broussard, of Nikiski.

The borough, however, has no jurisdiction in the matter. According to the borough, any resolution that might lead to resuming full access will have to be worked out by OSK, the Alaska Department of Transportation and Public Facilities, the Department of Homeland Security and the U.S. Coast Guard.

OSK's Dock Manager Mike Peek, who also serves as the facility security officer, said Wednesday that the company is now required to check the identification of all persons entering the property and to limit access. The company had little choice, he said.

"I've been telling people my hands are tied," he said. "I'm regulated. I have to follow the CFR (code of federal regulations) and I'm required to follow it by the U.S. Coast Guard."

The company has had a plan in place for several years, but was not aware it had to conduct ID checks until late last year, Peek said. The company was ordered to begin checking by Jan. 1, 2008, or face a shut down by federal authorities, he said.

But the borough isn't convinced OSK actually had the authority to close off access despite the homeland security issues. In its effort to comply with federal requirements, OSK might have assumed an authority it doesn't have, said Tim Navarre, chief of staff to Borough Mayor John Williams.

A title search conducted by the borough's Land Management Division appears to confirm the existence of a state right of way and an easement providing for public access to and along the beach.

In a report to the assembly, Land Management Officer Marcus Mueller said a state-owned 100-foot-wide right of way to the beach borders Nikishka Beach Road and extends beyond the platted portion to the shore of Cook Inlet. It is under the jurisdiction of the DOT. Meanwhile, a 50-foot-wide easement along the mean high water line provides contiguous access along the shore pursuant to state code.

"Our research has revealed that other easements and right-of-ways (sic) affecting OSK's properties may have been created through the chain of title," Mueller said in the report.

"All the documentation ... clarifies the fact there is a state right of way all the way to the beach," Navarre told the assembly Tuesday. The borough is prepared to "fight tooth and nail" to ensure public access, he said.

Williams, in Juneau seeking state funding for borough projects, was to meet Wednesday with Alaska Department of Transportation Commissioner Leo von Sheben to discuss the access problem. Meanwhile, Mueller was scheduled to go to Anchorage this week to talk with other state officials in an effort to resolve the matter and re-open access to and along the beach, Navarre said.

OSK's land was once owned by the federal government. Later, it was selected by the borough, and still later acquired by OSK. However, according to the title search, previous rights of way and easements still attach to the property.

Prior to late 2007, public access was never a problem. In fact, OSK provided an upland pathway so people on the beach could easily get from one side of their dock to the other. Now, even people on the beach could be a problem, Peek said.

"If they tried to enter the dock, that could be a maritime incident where we would need to call Homeland Security and they'd come down to find out why," he said.

OSK's security plans include provisions for allowing commercial fishers to the beach, Peek said. Some of them like the new security measures, he said, because they could cut down on vandalism at set net sites.

Navarre said state land and transportation officials might have been unaware of the existence of the beach easements. That, at least, is no longer the case. Beyond that, the peninsula's legislative contingent has been informed as well, he said.

"The borough has done its due diligence on this and we are going to stand up for the public," he said.

A resolution could come before the end of the month, Navarre said, though he also warned that the state might need time to "get its hands around this."

Assemblyman Ron Long, of Seward, said altering federally approved security plans so they provide for public access corridors through secure and restricted areas might take time to accomplish.

That the controversy erupted during the winter when there is little demand for access to the beach was a good thing, because it allows time to work out a solution, Navarre noted.

More important, perhaps, is that it has focused attention on the need for the borough to identify public access routes and work to protect them.

For the moment, at least, Nikishka Beach Road remains restricted.

Hal Spence can be reached at hspence@ptialaska.net.



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