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Pact gives public access

Posted: Friday, May 23, 2008

An agreement reached this week will allow the public to access Nikishka Beach this summer, but exactly when is unclear.

Signed Monday by a state transportation official and a representative of Offshore Systems Kenai, which operates the Nikishka Dock facility, the agreement permits temporary public access over and across existing roads through the Offshore Systems Kenai facility until an Alaska Superior Court judge rules on the dispute over the rights of public access.

The two parties -- the state of Alaska and Offshore Systems Kenai -- have yet to file court papers. Under the terms of the agreement, the state has promised not to seek injunctive relief over those access rights in their suit.

Nikishka Dock Manager Mike Peak said Thursday that it would take a week or so for Offshore Systems Kenai to modify its existing federally mandated Facility Security Plan and forward it to the U.S. Coast Guard, which must approve any changes. That, he said, could take several more weeks. He declined to speculate exactly when beach access would be realized.

Rick Feller, legislative and media liaison for DOT, could not be reached for comment.

However, Tim Navarre, chief of staff to Borough Mayor John Williams whose administration has been deeply involved in efforts to resolve the access problem, said Thursday that he believed it shouldn't take two weeks for Offshore Systems Kenai to modify its plan and that the agreement actually authorizes Offshore Systems Kenai to open the beach access much more quickly.

Indeed, one clause suggests Offshore Systems Kenai could legally open the beach by the Memorial Day weekend if the Coast Guard merely approved the concepts of Offshore Systems Kenai security plan modifications, not the final rewrite.

"We have put a tremendous amount of time in meeting with OSK, the state and the Coast Guard. We've attended every meeting, met personally with OSK and other representatives. Our intent always was to have it opened by Memorial Day weekend," Navarre said. "The tentative agreement should be enough. Public access to the beach should not be denied. We hope everybody does everything they can to make it happen."

The interim access pact sets some dated provisions specifically attached to the state's agreeing not to immediately seek injunctive relief in the upcoming court suit over access rights.

For instance, if the Coast Guard does not give conceptual approval to the modifications of Offshore Systems Kenai's plan by today, or final approval to the modified plan by June 30, or should Offshore Systems Kenai deny access following such approvals, the agreement would terminate. At that point the state would no longer be restricted from seeking injunctive relief.

It may be a matter of an interpretation at this point whether Coast Guard approval of conceptual changes is enough to allow Offshore Systems Kenai to open access. Navarre said he was still hoping for public access to the beach by this weekend.

"The Coast Guard has promised to be open, fair and quick in their decision-making," Navarre said. "This should not take weeks, but days."

The public has used Nikishka Beach Road to reach the shore of Cook Inlet since before statehood. But 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 those with identification and a good reason to be there.

The move was meant to bring Offshore Systems Kenai into compliance with provisions of the Marine Transportation Security Act of 2002.

Area residents, many of them commercial fishers, have used Nikishka Road to reach the beach for generations, and the threat of permanent loss of that access brought protest earlier this year. But because public use is primarily a summertime activity, there has been time to hash out a temporary agreement, and the two sides have been negotiating for several months.

While the borough is very interested in the outcome, the matter is beyond the borough's jurisdiction. Any resolution leading to a resumption of full access is a matter to be worked out by Offshore Systems Kenai, the Alaska Department of Transportation and Public Facilities, the Department of Homeland Security and the U.S. Coast Guard.

According to the new agreement's terms, Offshore Systems Kenai will "work diligently" with the Coast Guard for a modification of its Facility Security Plan to allow public access to the beach using existing roads from the north end of the pavement on Nikishka Beach Road to the beach beyond all Offshore Systems Kenai property.

Within 45 days of Coast Guard approval of the modified security plan, the state will erect signs explaining the rules the public must follow for beach access. They will include not stopping, standing, turning around or parking on the road, and will require people to stop at Offshore Systems Kenai's guard shack prior to proceeding on to Offshore Systems Kenai's dock or yard area.

Peak said in January shortly after news of the access closure became public that Offshore Systems Kenai had had a security plan in place for several years, but was not aware it was required to conduct ID checks until late last year when Offshore Systems Kenai was ordered to begin checking by Jan. 1, 2008, or face a shutdown by federal authorities.

A title search conducted by the borough's Land Management Division appeared to confirm the existence of a state right of way and an easement providing for public access to and along the beach, leaving the borough unconvinced that Offshore Systems Kenai had the legal authority to close off access.

"All the documentation clarifies the fact there is a state right of way all the way to the beach," Navarre told the assembly in January.

The federal government once owned Offshore Systems Kenai's land. Later, it was selected by the borough, and still later acquired by Offshore Systems Kenai. The title search showed previous rights of way and easements still attached to the property.

Offshore Systems Kenai's existing security plan includes provisions allowing commercial fishers to the beach, Peak said in January. Under the interim agreement, access would be extended to the general public. Peak said Coast Guard officials had told him they would expedite a decision.

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



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