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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. SOP, Inc. v. State, Dept. of Natural Resources, Division of Parks and Outdoor Recreation (7/19/2013) sp-6800

SOP, Inc. v. State, Dept. of Natural Resources, Division of Parks and Outdoor Recreation (7/19/2013) sp-6800

        Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER . 

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SOP, INC.,                                      ) 

                                                )       Supreme Court No. S-14541 

                Appellant,                      ) 

                                                )       Superior Court No. 3AN-11-05670 CI 

        v.                                      ) 

                                                )      O P I N I O N 

STATE OF ALASKA,                                ) 

DEPARTMENT OF NATURAL                           )      No. 6800 - July 19, 2013 


AND OUTDOOR RECREATION,                         ) 

BEN ELLIS, in his capacity as                   ) 

Director,                                       ) 


                Appellees.                      )


                Appeal from the Superior Court of the State of Alaska,  Third 

                Judicial District, Anchorage, Patrick J. McKay, Judge. 

                Appearances:        Patrick    Gilmore,     Atkinson,     Conway      & 

                Gagnon, Anchorage, for Appellant. John T. Baker, Senior 

                Assistant    Attorney    General,    Anchorage,     and   Michael    C. 

                Geraghty, Attorney General, Juneau, for Appellees. 

                Before:   Fabe, Chief Justice, Winfree, Stowers, and Bolger, 

                Justices, and Carpeneti, Senior Justice pro tem.* 

                STOWERS, Justice. 

        *       Sitting   by   assignment   made   under   article   IV,   section   11   of   the   Alaska 

Constitution and Alaska Administrative Rule 23(a). 

----------------------- Page 2-----------------------



                The Nancy Lake State Recreation Area ("the Park")   was established by the 

Alaska Legislature for public recreation.  The Park's governing regulations prohibit the 

use of motorized vehicles   off of the Park's paved roads.             However, the Park issues 

special use permits to owners of private property abutting the remote boundary of the 

Park that grant them the right to use all-terrain vehicles (ATVs) along the Butterfly Lake 

Trail to access their private property.  The ATVs have damaged the Butterfly Lake Trail 

and the surrounding wetlands. 

                SOP, Inc. sued to enjoin the Park from issuing these ATV permits.                SOP 

moved for summary judgment, and the Park filed a cross-motion for summary judgment. 

Superior Court Judge Patrick J. McKay denied SOP's motion and granted the Park's 

motion, concluding "there is nothing in the statutes or regulations that justifies court 

intervention and invalidation of the permits." 

                SOP appealed.      We hold that the permits created easements because the 

Park cannot revoke the permits at will. Easements are disposals of property. The Alaska 

Constitution prohibits the Park from disposing of property that the legislature has set 

aside as a state park. Thus, we find the permits are illegal and we reverse. 

        1       Nancy Lake State Recreation Area is a unit of the Alaska Department of 

Natural Resources, Division of Parks and Outdoor Recreation.   The special use permits 

that are the subject of this appeal are entitled "Alaska State Parks - Special Park Use 

Permit," and the permits bear the imprint of the Alaska State Parks emblem.                    SOP's 

complaint names as defendants the Department of Natural Resources, Division of Parks 

and Outdoor Recreation and its Director.   For purposes of simplicity, we refer to Nancy 

Lake State Recreation Area and to the defendants/appellees as "the Park." 

                                                 -2-                                            6800

----------------------- Page 3-----------------------


        A.	     History Of Nancy Lake State Recreational Area And The Butterfly 

                Lake Trail 

                In 1966 the Alaska Legislature established Nancy Lake State Recreation 

Area for the purpose of public recreation.3        The Park's lands "are reserved from all uses 

incompatible with their primary function as public recreation land."4           The Commissioner 

of the Department of Natural Resources has the authority to designate incompatible uses 

in the Park by regulation.5    The Park is located near Willow and contains a chain of lakes 

connected by canoe portages. 

                In   the   1960s,   before   the   Park's   establishment,   a   local   property   owner 

created a trail for winter snowmobile use from Lynx Lake to Butterfly Lake.                 This trail 

is now within the boundaries of the Park, and the Park converted part of it into a park 

        2       The facts are drawn from the evidence in the record including depositions, 

sworn affidavits, and DNR internal records. 

        3	      AS 41.21.455(a) states: 

                The    presently    state-owned     land  and   water    and  all  that 

                acquired in the future by the state, lying within the following 

                described boundary, are hereby designated as the Nancy Lake 

                State    Recreation      Area,    are   reserved     from    all   uses 

                incompatible with their primary function as public recreation 

                land,   and    are  assigned    to  the   department     for  control, 

                development, and maintenance. 

See also ch. 61,  2, SLA 1966. 

        4       AS 41.21.455(a). 

        5       AS 41.21.460 states:       "The commissioner shall designate by regulation 

incompatible uses within the boundaries of the Nancy Lake State Recreation Area in 

accordance      with   the  requirements     of  AS   41.21.450,    and   those  incompatible     uses 

designated shall be prohibited or restricted, as provided by regulation." 

                                                 -3-	                                           6800

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trail known as the Butterfly Lake Trail.          The Butterfly Lake Trail is the only practical 

way to travel via land to certain areas of remote private property outside the Park. 

                The Matanuska-Susitna Borough plat denotes these private properties as 

having only fly-in access.       The plat's designation of fly-in-only access was a condition 

of   its   approval   by   the   borough's   planning   board,   and   some   landowners   specifically 

purchased   land   there   because   they   valued   a   remote   homestead   with   limited   access. 

However,   more   recently,   the   owners   of   some   of   these   properties   have   placed   their 

properties for sale and are advertising them as having ATV access; a few of the newer 

landowners may have bought their land believing there was motorized access. 

                In the 1960s, motorized use of the Butterfly Lake Trail was limited to the 

winter   when   the   wetlands   were   frozen;   tracked   vehicles   driving   over   the   snowpack 

caused little damage to the trail.       At that time, ATVs were not yet powerful enough to 

traverse   the   muskeg   in   non-winter   months.      However,   ATVs   evolved   with   greater 

engine power and capabilities in the 1970s and thereafter, becoming more popular, and 

individuals owning fly-in-only property outside the Park started illegally using ATVs on 

the trail for summer access to their land.           The ATVs damaged the Park's wetlands, 

causing the trail to become nearly unusable for recreational hikers.  The number of ATV 

permits that the Park issued during this time is unclear.  In 1973 the Park granted at least 

one permit to a nearby property owner with unusual circumstances to use the trail for 

motorized access to his property.6         The Park was unable to find documentation of any 

other permits from this time period, though it alleges other permits were issued.  In 

contrast,   former   Park   Superintendent   Dennis   Heikes   stated   that   there   was   no   legal 

        6       This 1973 permit specifically stated that it was a "temporary measure" and 

that it was "revocable at any time." 

                                                   -4-                                               6800 

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motorized use of the Butterfly Lake Trail in 1983 when the Park adopted its Management 

Plan and that no such use was contemplated. 

                The 1983 Management Plan is still in effect, and it explains that "[t]he Lynx 

Lake road provides private access to authorized users who lived within and beyond 

NLSRA and were using the road for access to their property at the time of the recreation 

area's establishment in 1966."  The Management Plan further provides that "[u]se of the 

unimproved pioneer road by the landowners will be allowed to continue on a permit 

basis. . . .  Entry and use is controlled by the Division of Parks."               At the time of the 

Management Plan's creation, the Park had not intended to permit summer ATV use 

beyond Lynx Lake. 

                Throughout       the  1980s,    park   rangers   ticketed   some    ATV     users   near 

Butterfly Lake, but this did not stop the abuse, and by 2000 ATV users had significantly 

damaged the Butterfly Lake Trail.   They had gouged out sections of black mud over two 

feet deep along the trail.   The mud eventually became impassible even to ATVs, so the 

ATV   users   repeatedly   widened   the   trail   to   go   around   the   muck. The   widened   trail 

sections ranged from 32 to 73 feet in breadth.           This rerouting increased the damage to 

the surrounding plant life, and the wetlands section of the trail suffered nearly continuous 

damage,      including    denuded     plants,   crushed    grass  and   succulents,    and   destroyed 

vegetative mats and root structures. 

        B.      Recent ATV Permitting 

                In   July   2000   the   Park   superintendent   wrote   a   letter   to   nearby   property 

owners   regarding      the  ATV     problem.     The    letter   stated  that   "no  summer   off-road 

motorized use [would be] allowed" because the terrain "is too wet to support this type 

of use. . . .   The swampy areas along the trail cannot sustain the traffic they have received 

in recent years.     As a result, the vegetative root mat has been destroyed and cannot 

recover due to the repeated damage by motorized vehicles in the summer."                    The letter 

                                                  -5-                                             6800

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declared that the superintendent was "revoking any outstanding permits.                     No further 

permits for this activity will be issued for the foreseeable future.              This action is being 

taken to prevent further resource damage." 

                In September 2000 Park representatives met with several property owners 

about the ATV damage to the trail.   The property owners wanted to upgrade the trail so 

that it could support ATV use, but they did not want the Park to permit the general public 

to use ATVs on the trail because they did not want the public to be able to reach their 

private property.  In 2002 the Park agreed to the property owners' request and allowed 

them to use private funds to upgrade and maintain the trail.              Also, according to Dennis 

Heikes, the then-superintendent of the Park, "some Valley legislators were supportive 

of the private property owners and this threatened to become a 'right of access' issue that 

could have had budget and regulatory impacts to the division." 

                Since   this   meeting,   the   Park   has   allowed   nearby   landowners,   and   only 

nearby landowners, to use ATVs on the trail under "special park use" permits.  The 

landowners may not use the trail for recreation, and they must "upgrade the trail at their 

own expense to a standard that would not degrade park resources."                    The first page of 

each permit states that "the State reserves emergency closure rights for just cause."  The 

"General   Stipulations"   section   of   each   permit   reiterates   that   "[i]t   is   understood   and 

agreed that this permit may be revoked for cause at any time at the discretion of the 

director or his/her designee without compensation to the permittee or liability to the 

state."   The permits expire each December, and the Park reissues them each spring.  No 

property owner has ever been turned down for a permit, nor has a permit ever been 

revoked      since   the  Park    began    issuing   the   special   use   permits,    apart   from   the 

superintendent's 2000 letter, which was quickly countermanded. 

                The original homesteads along Butterfly Lake have been subdivided into 

over   200   lots,   and   the   number   of   landowners   receiving   ATV   permits   has   steadily 

                                                   -6-                                             6800

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increased.    Despite the agreement between the property owners and the Park that the 

property owners would upgrade the trail so that the ATV use would not   damage it, the 

trail continues to suffer harm.       By 2006 some of the trail's wetter areas had turned into 

"mud bogs with all vegetation destroyed."            By 2008 water-filled ATV tracks lined the 

trail, which was only traversable "by staying up on the high dry sides" and by "dry land 


                Also, in reliance on their ATV access, landowners began to store barges at 

the north end of Butterfly Lake, within Park boundaries, to freight ATVs across the lake. 

The barges are stored on Park property year round, and the permittees have cleared 

landing areas.     Though the creation of landing areas and the storage of barges on park 

property are also illegal,7 the Park has issued special use permits to private landowners 

(only) for this use as well. 

        C.       Proceedings 

                In February 2011 SOP sued to enjoin the Park from issuing permits for 

ATV use within Nancy Lake.            SOP moved for summary judgment and the Park filed a 

cross-motion   for   summary   judgment.         The   superior   court   denied   SOP's   motion   for 

summary judgment and granted the Park's cross-motion.                     The court concluded   that 

"there   is   nothing   in   the   statutes   or   regulations   that   justifies   court   intervention   and 

invalidation   of   the   permits."   While   it   admitted   that   SOP's   concerns   "are   certainly 

legitimate," the court found that "these concerns arise under fair interpretations of duly 

adopted statutes and regulation."  The court advised SOP "to address their concerns in 

the new management plan or within the rulemaking procedures." 

                SOP appeals. On appeal, it argues that: (1) the permits constitute disposals 

of state park land in violation of Alaska law; (2) the permits violate the Park's governing 

        7       11 Alaska Administrative Code (AAC) 12.140 (1985); 11 AAC 12.235. 

                                                  -7-                                               6800 

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statutes and thus are illegal; (3) the Park superintendent's new findings in support of the 


permits were retroactively adopted and "are a sham";  (4) the Park's regulations grant 

impermissibly broad discretion to the Park superintendent; (5) the permits actually create 

a   regulation,    which    is  impermissible     because    the   regulation    was   not   adopted    in 

accordance with the Administrative Procedure Act; and (6) "issuance of the permits 

violates public policy by circumventing the constitutional restrictions on dispositions of 

state land." 


                "We   review   a   grant   of   summary   judgment   de   novo."9       We   apply   our 

independent       judgment     to  constitutional    questions.10    Whether      a  permit    creates   a 

"disposal" of state land is a question of law.11         In this case, whether an easement exists 

        8       To   issue   permits   under   11   AAC   18.010,   the   Park   is   required   to   make 

explicit findings that: "(1) park facilities and natural and cultural resources will not be 

adversely affected; (2) the state park is protected from pollution; (3) public use values 

of the state park will be maintained and protected; (4) the public safety, health, and 

welfare will not be adversely affected." However, for years the Park issued the contested 

ATV special use   permits without making the required findings.                   SOP argued in the 

superior court that the permits were illegal because the Park had not made the required 

findings.    After SOP advanced this argument, the Park quickly retroactively adopted 

findings.   On appeal SOP argues that the new findings are a sham. 

        9       Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp. , 189 P.3d 1032, 

1036 (Alaska 2008). 

        10      State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc., 

28 P.3d 904, 908 (Alaska 2001). 

        11      Laverty v. Alaska R.R. Corp. , 13, P.3d 725, 731 (Alaska 2000). 

                                                   -8-                                             6800

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is a question of law.12     "We review questions of law de novo and adopt the rule of law 

most persuasive in light of precedent, reason, and policy."13 


        A.      A Non-Revocable Permit Is An Easement. 

                Article VIII, 7 of the Alaska Constitution provides that "[t]he legislature 

may   provide   for   the   acquisition   of   sites,   objects,   and   areas   of   natural   beauty   or   of 

historic, cultural, recreational, or scientific value.       It may reserve them from the public 

domain and provide for their administration and preservation for the use, enjoyment, and 

welfare of the people."      This provision, allowing the legislature to reserve recreational 

lands for public use, means that those lands cannot be conveyed by the executive branch 

for private use.14   In addition, Article VIII, 10 provides that "[n]o disposals or leases of 

state lands, or interests therein, shall be made without prior   public notice and other 

safeguards of the public interest as may be prescribed by law."  The grant of an easement 

is a conveyance or disposal of an interest in land within the meaning of these provisions, 

but the transfer of a license or permit generally is not.15 

        12      See Williams v. Fagnani, 175 P.3d 38, 40 (Alaska 2007); see also Hansen 

v. Davis, 220 P.3d 911, 915 (Alaska 2009). 

        13      Williams, 175 P.3d at 40. 

        14      See Minutes of the Alaska Constitutional Convention, January 17, 1956, 

Comments   of   Delegate   Riley:   "Section   8   reflects   some   delegate   proposals   whereby 

particular areas of sites or objects may be set aside apart from the disposable public 

domain for their historic, recreational, or cultural interest   to the people." (Emphasis 


        15      See Laverty  13 P.3d at 736 & n.54. 

                                                  -9-                                             6800

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              Both parties agree that if the Park grants a private easement over state park 

land, that easement is a disposal that would violate these constitutional provisions.16 

However, they   disagree over whether the ATV   permits constitute easements.           SOP 

argues that the plain language of the ATV permits makes them easements, not licenses, 

and thus disposals of park land.17   The Park argues that the ATV permits create only a 

license, not an easement, for the permit holders to use the Butterfly Lake Trail. We agree 

with SOP and conclude that the special park use permits create an easement through the 

plain language of their text. 

              Though     licenses  and  easements    share  many   characteristics,  there  are 

fundamental differences. According to the First Restatement of Property, "[a]n easement 

is an interest in land in the possession of another which . . . is not subject to the will of 

the possessor of the land."18  The Restatement explains: 

              A license resembles an easement in that it authorizes a use of 

              land in the possession of another. A license, however, always 

       16     See N. Alaska Envtl. Ctr. v. State, Dep't of Natural Res., 2 P.3d 629, 637 

(Alaska 2000) (holding that a right-of-way permit with the characteristics of an easement 

is considered a disposal). 

       17     The Park contends that SOP waived this argument (that the text of the 

permits makes them easements) by failing to raise it in the superior court.        However, 

SOP did argue to the superior court that "the permits are, in   effect, a private access 

easement through a state park for the benefit of private property outside the park."  Even 

if this argument was not one of the primary arguments, we will consider new arguments 

as long as they "do not depend on new facts and are sufficiently related to a theory 

argued below such that they could have been gleaned from the pleadings." Palmer v. 

Municipality of Anchorage, Police and Fire Ret. Bd. , 65 P.3d 832, 838 n.16 (Alaska 

2003).  SOP's easement argument fits within this exception because the theory that the 

language on the permits make them easements may be gleaned from SOP's argument 

that "[t]he permits are, in effect, a private access easement." 

       18     RESTATEMENT (FIRST) OF PROPERTY  450 (1944). 

                                             -10-                                       6800

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                 lacks one or more of the requirements essential to the creation 

                 of an easement.  It may be no more than a license . . . because 

                 it   was   in   terms   created   to   endure   only   at   the   will   of   the 


The Restatement's commentary further fleshes out this distinction, noting that: 

                 [I]nterests in land which entitle the owner thereof to the use 

                 of land in the possession of another, but which are subject to 

                 the will of the possessor, have legal attributes which are so 

                 different in their nature and extent from those of easements 

                 that   such    interests,  though     they   may    in  many     respects 

                 resemble easements, are given a different name and treated in 

                 a different category.  Such interests are called licenses . . . .[20] 

The requirement that an easement cannot be terminated at the will of the possessor of the 

servient estate is "the most important characteristic that distinguishes an easement from 

a license."21    "The title of an instrument is not controlling in determining whether the 

right conferred is a license or an easement; rather, the intent of the parties will be the 

determining factor."22 

                 The Third Restatement of Property's commentary further confirms that 

"[i]rrevocable licenses . . . are easements.   The difference between a license to enter and 

use land and an easement to make the same use is that the license is revocable at will by 

        19      Id.  512 (internal citations omitted). 

        20      Id.  450 cmt. i. 


   34.02[1]   n.5   (Michael   Allan     Wolf,    ed.,   2013)   (citing  RESTATEMENT        (FIRST)   OF 

PROPERTY   450 cmt. i and  512 (1944)); see also JON W. BRUCE & JAMES W. ELY , JR ., 

THE LAW OF EASEMENTS AND LICENSES IN LAND ,  11:1 (2013) ("The most significant 

distinction is that an easement constitutes a nonpossessory interest in land and is not 

subject to revocation at will."). 

        22       25 AM . JUR . 2d Easements and Licenses   2 (2004). 

                                                   -11-                                              6800

----------------------- Page 12-----------------------

the owner of the burdened land."23          Therefore, "[i]f the license becomes irrevocable, or 

revocable      only   on  the   occurrence     of  a  condition,    it  is  indistinguishable     from   an 


        B.	      The Special Park Use Permits Are Not Revocable At Will; Therefore, 

                 The Interests They Grant Are Easements. 

                 The plain text of the ATV permits makes clear they are revocable only for 

cause.     The first page of each permit states that "the State reserves emergency closure 

rights   for   just   cause." Under   the   "General   Stipulations"   section,   each   permit   again 

informs its holders that "[i]t is understood and agreed that this permit may be revoked 

for   cause   at   any   time   at   the   discretion   of   the   director   or   his/her   designee   without 

compensation        to  the  permittee    or  liability  to  the  state."   The    permits    list  several 

conditions that constitute "for cause," including if the Park amends its off-road vehicle 

policy or if the permittee fails to fulfill any of the permit's terms.                 Nowhere do the 

permits state that the Park can terminate them at will.25              Thus, the permits are clearly 

revocable only for cause.26       This compels the conclusion that the interests granted by the 

permits are easements, not licenses. 

        23	      RESTATEMENT (THIRD) OF PROPERTY  1.2 cmt. g (2000). 

        24	     Id. 

        25       See Tetlin Native Corp. v. State, 759 P.2d 528, 533 (Alaska 1988) (stating 

that "because the easements are property interests which can only be cancelled for cause, 

holders     of  such    interests   are   entitled   to  due   process    before    those   interests   are 


        26       This conclusion is further supported by Superintendent Biessel's assurance 

to the property owners that they "would be in a status quo manner until the management 

plan revision had been completed." 

                                                   -12-	                                             6800

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        C.      No Other Considerations Prevent The Permits From Being Easements. 

                The fact that the permits expire after half a year does not prevent them from 

being    easements,   as   easements   can      be  created    for  a  limited   duration.27   As   well, 

easements can be created for seasonal use only,28  so the Park's practice of restricting the 

permits to the summertime does not stop them from being easements. 

                The use authorized by the permits is essentially a right-of-way.               It is well 

established that "[a] right-of-way is an easement to pass or cross the lands of another."29 

"Rights-of-way are easements of a certain type, or legally recognized property interests, 

of which the owner likewise is entitled to reasonable use."30 

                In further support of our conclusion, we note that these permits have other 

characteristics more commonly found with easements than with licenses.   For instance, 

licenses are normally in gross, or assigned to a given person:  "A license does not pass 

with the title to the property, but is only binding between the parties, expiring upon the 

        27      28   C.J.S.  Easements         138   (2008).    "Where   the   parties   have   clearly 

manifested an intention to limit the duration of an easement, the courts will enforce the 

limitation.     Where     the  parties   have   agreed    that  the  easement     shall   continue    until 

terminated      in  a  certain   manner,     the   easement     ordinarily    will   continue    until  so 

terminated."  Id. at 139. 

        28      See   Price   v.   Eastham ,   75   P.3d   1051,   1058   (Alaska   2003)   (noting   that 

"courts have limited use of . . . easements to specific times of the year"). 

        29      28   C.J.S. Easements  10; Cowan v. Yeisley, 255 P.3d 966, 972 (Alaska 

2011) (noting that "[t]he general rule is that the term 'right of way' is synonymous with 

'easement' " (quoting Dillingham Commercial Co., Inc. v. City of Dillingham , 705 P.2d 

410, 415 (Alaska 1985))). 

        30      25 AM . JUR . 2d Easements and Licenses   1 (2004). 

                                                   -13-                                             6800

----------------------- Page 14-----------------------

death of either party."31    In contrast, easements frequently do transfer with the title to the 

property.32    Here, the Park issues one ATV permit per property, and multiple people 

living on the same property can operate multiple ATVs under that permit. The Park only 

issues permits to private property owners near Butterfly Lake, meaning that if an owner 

sells his property, he loses the right to have a permit.          The Park has never turned down 

an application for a permit from a nearby property owner, rather it  "issue[s] . . . permits 

fairly and uniformly to property [owners]."           In practice, it appears that owning private 

property on or near   Butterfly Lake entitles the property owner to a permit, and that 

ownership is the sole factor controlling who has a right to obtain a permit to use an ATV 

on   the   Butterfly   Lake   Trail.  For   these   reasons,   the   permits   function   similarly   to 

easements appurtenant.  Given these facts, we infer the parties intended that private land 

owners will be granted a seasonal right of ATV use that runs with the property that no 

one else is entitled to receive.      We conclude the rights of use granted by the Park are 

easements, and therefore they are illegal.33 

        31      Id.  120. 

        32      Id.  8 (stating that "[a]n 'easement appurtenant' is a right to use a certain 

parcel, the servient estate, for the benefit of another parcel, the dominant estate. Grantors 

create easements appurtenant to benefit a dominant estate, and such easements run with 

the land").   (Internal footnotes omitted.) 

        33      We   do   not   reach   the  Northern   Alaska   Environmental   Center   v.   State, 

Department of Natural Resources , 2 P.3d 629 (Alaska 2000) analysis because, unlike the 

permits in Northern Alaska  which claimed to be revocable at will, the ATV permits 

issued by the Park openly state they are revocable only for cause.  Id. at 633.              Thus we 

do not need to consider whether they are functionally irrevocable.               However, we note 

that were the Northern Alaska test to be applied, these permits might well be found to be 

functionally irrevocable. 

                Northern Alaska establishes a two-prong test for functional revocability: 


                                                 -14-                                            6800

----------------------- Page 15-----------------------


                Because Nancy Lake State Recreation Area special park use permits that 

are revocable only for cause convey easements, not licenses, and because the granting 

of easements is an impermissible disposal of state park land, we REVERSE the superior 

court's grant of summary judgment to the Park and its denial of summary judgment to 

SOP and REMAND for further proceedings consistent with this opinion.34 


(1)  "likelihood   of   revocation"   and   (2)   "the   long-term   and   harmful   character   of   the 

environmental impact."         Id. at 638.    Given that the Park has been issuing the ATV 

permits for over a decade and has never revoked a permit despite the adverse effects of 

the ATVs on the trail, the permits are unlikely to be revoked and thus fail the first part 

of the test.  Furthermore, the ATV use is having "long-term and harmful" consequences 

for the environment, and thus the permits also fail the second prong of the test.  The 

ATVs have caused "degradation of the trail," and the damage varies from "denuding the 

woody plants . . . of their leaves and crushing the grasses and other succulents" to "the 

destruction of the vegetative mat and root structures."           "Some of the worst areas have 

knee-deep and deeper black mud," and ATV riders have repeatedly widened the trail in 

these places to avoid the mud, broadening some sections until they reached 73 feet in 

width.   A recreationalist observed that "[s]ome of the wet areas on the trail have been 

converted   to   mud   bogs,   with   all   vegetation   destroyed."  When   the   property   owners 

repaired the trail in an effort to make it substantial enough for ATVs, they cut entirely 

new sections of trail out of the forest in order to bypass the most heavily damaged older 

sections, which had become impassable.            Now the new sections of trail are themselves 

suffering degradation from the ATVs.  Biessel admitted that signs of the environmental 

damage from the ATVs will probably be visible for "many, many years."                    Thus, these 

ATV permits might well be found to fail both prongs of the Northern Alaska analysis for 

functional revocability. 

        34      In light of this resolution of the appeal, we do not reach the other arguments 

raised by SOP. 

                                                 -15-                                              6800 

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