A disagreement between the Alaska Department of Natural Resources and the Kenai Peninsula Borough over parcels of land at Cooper Landing and Seldovia that the borough wants as part of its municipal land entitlement appears likely to stretch well into next year, according to borough officials.
When DNR agreed to convey some 9,931 acres of state land to the borough in July, it also delayed final approval on parcels in Cooper Landing and Seldovia, a decision the borough appealed in August by filing a case in Alaska Superior Court.
Borough Attorney Colette Thompson said the court filing was required by the rules governing appeals of administrative decisions and shouldn't be viewed as an escalation to a higher field of legal battle.
Nevertheless, the move requires the state to compile the administrative record regarding the land decision, and the parties have agreed to a two-month extension of time to do that job.
Meanwhile, discussions between the borough and the state continue in an attempt to resolve differences.
The borough wants 1,100 acres of bench land west of Juneau Creek at Cooper Landing known as Unit 395, as well as 12.1 acres overlooking the entrance to Seldovia Bay.
But the state wants to retain control of the land around Cooper Landing until a final decision is made on the path of a rerouted Sterling Highway, a project designed to relieve traffic delays in the area.
The state also wants to hold the right to extract gravel from the 12 acres at Seldovia even after the land is conveyed to the borough, a position the borough opposes.
According to the state's Kenai Area Plan, if the Sterling Highway were rerouted to the north side of the Kenai River through Unit 395, that land would be conveyed to the borough. The topography of the acreage located north of the highway and west of Juneau Creek is conducive to community expansion, the state said.
However, it also happens to provide a corridor for bears. If the highway route avoids Unit 395, the state would prefer to keep that land for wildlife habitat and convey a smaller parcel to the borough known as Unit 394B, land consisting of 497 acres south of the highway near Gwin's Lodge. The state says that land also would be conducive to community development.
According to Borough Mayor Dale Bagley, the borough would prefer the Juneau Creek land, Unit 395, for several reasons.
"It's already logged and has an existing road," he said. "It's more developable. It's in the sunlight instead of the shade. It's not as steep."
As far as he's concerned, if either parcel can legally be conveyed by the state -- which appears to be the case -- the borough should be able to select the one it wants, regardless of the routing of the Sterling Highway project.
The 12.1 acres the borough wants at Seldovia is located north of the city on the east side of the mouth of Seldovia Bay. The state's Kenai Area Plan stipulates the state would retain any material rights. The parcel previously has been a rock quarry.
Borough Attorney Colette Thompson said the borough and DNR officials have been discussing the issue. She said it is the Alaska Department of Transportation and Public Facilities that wants to retain control over the gravel in case that gravel is needed in the future. If the borough obtains control, the state would have to purchase any gravel it might desire from the borough.
This parcel is being treated differently than other borough selections, Thompson said.
"With no other land have they retained any gravel rights," she said.
"If the state retains that right, then what do we do with the property?" Bagley asked. "They would have that interest in it."
Max Best, borough planning director, said the borough selections are part of the its municipal entitlement, a program meant to convey some 155,000 acres to the borough that has been going on since the borough became incorporated in 1964.
"We are working on the last 44,000 acres of that," Best said.
The process has been grindingly slow at times, delayed by other entitlement programs that conveyed land to the University of Alaska and Alaska Natives, he said.
"It's been time consuming," Best said.
Bagley pointed out that while the state and the borough are at odds over the Cooper Landing and Seldovia parcels, the July decision by the state successfully approved turning over other acreage.
The borough will get some 9,451 acres at Kustatan Ridge on the west side of Cook Inlet, as well as 400 acres along Kalifornsky Beach Road and 60 acres on Ohlson Mountain near Homer.
Surveys must be completed before patent to the land is granted, Bagley said.
Dick Mylius, natural resources manager for the Division of Mining, Land and Water, declined comment at length regarding the differences between the two sides because the matter is not in litigation.
However, he said both parcels at Cooper Landing were important areas to brown bears. Once the road route is known, that parcel can be conveyed, leaving the other relatively free of human activity, he said.
As for the Seldovia gravel issue, Mylius confirmed it was DOT's opinion that the gravel rights should be retained.
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