The state of Alaska and Offshore Systems Kenai presented opening arguments Tuesday in a case involving Nikiski residents' beach access via Nikishka Beach Road, which OSK has blocked for a year and a half. Kenai Superior Court Judge Anna M. Moran is presiding over the bench trial being held at the Kenai Superior Courthouse.
Assistant Attorney General Dana Burke, representing the state, argued that although the land in question has changed hands many times over the years, nothing the state, OSK or the Kenai Peninsula Borough did during the time each entity held a lease on the land changed the fact that a public access right of way existed.
"A private business cannot turn that public access into private property," Burke said. "You can't turn a public road into a private road."
At the end of 2007, OSK erected a security checkpoint past the platted road, restricting public access to the beach. OSK blocked access in order to comply with provisions of the Marine Transportation Security Act of 2002.
OSK's land was once owned by the federal government. It was later selected by the borough, prior to being acquired by OSK. However, according to the title search, previous rights of way and easements still attach to the property.
In a report to the Borough Assembly in January of last year, 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 Alaska Department of Transportation and Public Facilities. Meanwhile, a 50-foot-wide easement along the mean high water line provides contiguous access along the shore pursuant to state code.
Burke said Nikishka Beach Road was constructed to provide access past where OSK's security gate now stands and that the gate must be removed.
He went on to say that despite the fact that the paved road ends at OSK's guard shack, public access still extends all the way to the beach.
"When you have a paved road that goes to a beach, you don't build asphalt down to sand," he said.
Weather, tides and erosion are just some of the factors that make constructing a road to the beach impractical, Burke said. Hence, it's not significant in this case that the pavement ends before it reaches the beach.
Ron Baird, representing OSK, said the existence of a physical road doesn't necessarily indicate the existence of a public right of way.
Someone can't go onto a piece of property willy-nilly, then later claim there's a right of way somewhere, Baird said.
Burke also cited several years of public use in his opening statement. He said the history of maintenance as well as decades of personal use of the road to reach the beach shows OSK's knowledge of the public access right of way boundaries.
"All of that access was through the area of where the gate now stands," Burke said, reiterating the gate should be eliminated.
Baird, on the other hand, said the original leaseholder, James Arness, built the road and a dock in the 1960s. There has never been any reference to a right of way in any the documentation surrounding the land, Baird said.
Arness' original five-year lease stated he shall not prevent the public from using the road, however, Baird said the subsequent 55-year lease did not include such language.
"That lease does not refer to Nikishka Beach Road," he said.
He said the lease only required a 60-foot right of way for existing roads to the beach.
In response, Burke said any improvements made on the road by OSK over the years doesn't change the fact that a right of way existed.
Baird contended that OSK made a private investment to make the existing road extend down to the dock. Now, the state wants the judge to seize the road and make it public access, he said.
Baird said the $1.3 million construction project, conducted in 1986, which extended the road from the bluff line to the beach, was done so at OSK's request for OSK purposes.
"The state has never spent any money constructing any road down to the dock," he said.
Although there was a failure to plat the public right of way, Burke said the continuous, uninterrupted use of the access trumps the failure to plat.
He asked the judge, if nothing else, to at least declare the existence of a public right of way past the gate, and to establish it on both sides of OSK's dock.
"It exists," Burke said, "and it exists beyond the gate."
"There was nothing to get to the beach by making a right turn at the top of the bluff," Baird said in response to Burke. He said beach-goers had to use Arness' road then make a U-turn to access the beach.
In closing, Baird said in the past OSK re-subdivided a parcel of land, giving ownership back to the borough because some cross-country ski trails intersected onto that lot. Though OSK didn't have to do it, they did so out of a sense of community, he said.
Now, Baird continued, the borough is trying to say the public has a right to pass through OSK's private, developed property.
"That's horrendous behavior by a public entity to a private owner," Baird said.
Clay Young, representing the borough, said the issue is Nikishka Beach Road, not almost-to-the-beach road.
He said though there was a failure to plat where the right of way is, documentation exists to show a right of way is there, and that that right of way goes at least to the guard shack.
It was there since 1980 and continues to be there, he said. The right of way extends past the shack to the beach, to the right and the left of the dock, Young said.
The right of way is there, it's just not platted, he added.
Young, like Burke, said the right of way was preserved during each change-over of the land to the various parties.
The borough, which has no jurisdiction in the matter, got involved in the case in August 2008 when it authorized the administration to intervene because the issue involved borough residents.
The trial continues today at 8:30 a.m.
Mike Nesper can be reached at firstname.lastname@example.org.
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