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Beach access trial continues

Posted: Thursday, July 30, 2009

Day two of the Nikishka Beach Road public access trial began the same as day one ended, with Alaska Department of Transportation and Public Facilities employee John Bennett on the stand.

Kenai Superior Court Judge Anna M. Moran deemed Bennett, right of way director for DOT's northern region, an expert witness Tuesday on rights of ways in the state of Alaska.

During questioning from Assistant Attorney General Dana Burke, Bennett said when the federal government turned the land in question over the state in 1959, a public right of way existed and it extended all the way to the beach.

When the state transitioned from a territory to a state, via a quick claim deed, highways along with improved and unimproved properties were inventoried, Bennett said, and Nikishka Beach Road was included in those classifications.

Bennett testified that the language in the quick claim deed states the route goes to the beach.

"The language in the quick claim deed is, 'to the beach,'" he said.

The deed also says the road is .8 miles, however, Bennett said the phrase "to the beach" is more significant than the measurement.

"To the beach," means to the water line, he added.

From examining a 1957 map of the area, Bennett said it's more than likely that the road was a public road and continued to the beach.

After looking at a 1963 map, Bennett again concluded the road extends to the beach.

"In looking at the photograph, it does go down all the way to the beach," he said.

The security checkpoint that Offshore Systems Kenai erected in December 2007, which has blocked citizens' beach access since, does stand on the public access road, in Bennett's opinion.

"The gate does appear to be in the right of way," he said.

At the end of Burke's questioning, Bennett said the quick claim deed conveyed the land to the state and a public land order created the right of way. Nikishka Beach Road goes from the Kenai Spur Highway to the beach, he said.

During his cross-examination testimony, Bennett was asked if the public land order in question gave specific lengths and/or widths of the right of way. He said they did not.

Bennett also said he's seen some roads without rights of ways, though, most are on Native and private lands.

Referring to the patent that turned the land over from the state to the Kenai Peninsula Borough, OSK lawyer Ron Baird said it only states an easement is needed to connect to the shoreline, but doesn't say where the easement should be. Bennett confirmed his statements.

The trial continues today at 8:30 a.m. at the Kenai Superior Courthouse.

Mike Nesper can be reached at mike.nesper@peninsulaclarion.com.



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