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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 (10/11/2013) sp-6835

SOP, Inc. v. State, Dept. of Natural Resources, Division of Parks and Outdoor Recreation (10/11/2013) sp-6835, 310 P3d 962

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

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

        corrections@appellate.courts.state.ak.us.  



                 THE SUPREME COURT OF THE STATE OF ALASKA  



SOP, INC.,                                        )  

                                                  )       Supreme Court No. S-14541  

                 Appellant,                       )  

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

        v.                                        )  

                                                  )       OPINION ON REHEARING  

STATE OF ALASKA,                                  )  

DEPARTMENT OF NATURAL                             )       No. 6835 - October 11, 2013  

RESOURCES, DIVISION OF PARKS )  

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-----------------------

I.         INTRODUCTION
  



                                                                                                      1 

                                                                                                         

                     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-                                                            6835
  


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

II.	      FACTS & PROCEEDINGS2  



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

                   Lake Trail  



                   In 1966 the Alaska Legislature established Nancy Lake State Recreation  



                                                            3  

                                                                                                

Area for the purpose of public recreation.   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  



                                    5  

                                                                                      

in the Park by regulation.             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-	                                                      6835
  


----------------------- Page 4-----------------------

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  

                                                  6  The Park was unable to find documentation of any  

                                                                                                                        

motorized access to his property.  



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-                                                            6835  


----------------------- Page 5-----------------------

                                                                                      

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-                                                        6835
  


----------------------- Page 6-----------------------

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-                                                         6835
  


----------------------- Page 7-----------------------

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  



hopping."  



                     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  

                                      7 the Park has issued special use permits to private landowners  

property are also illegal,                                                           



(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-                                                                6835  


----------------------- Page 8-----------------------

                               

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



                                                                              8 

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."  



 III.     STANDARD OF REVIEW  



                                                                                                     9  

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



                                                                             10  

independent  judgment  to  constitutional  questions.                              Whether  a  permit  creates  a  



                                                                11  

                                                                               

"disposal" of state land is a question of law.                      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-                                                       6835
  


----------------------- Page 9-----------------------

                               12  

                                                                           

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

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



IV.       DISCUSSION  



                

          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  



                       14 

                                                                                                                    

for private use.           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  

                                                                                            

added.)  



          15  

                            

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



                                                                -9-                                                         6835
  


----------------------- Page 10-----------------------

                                                                                                                                        

                         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,  



                                                            17  

and thus disposals of park land.                                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  



                                                  18  

the possessor of the land."                           The Restatement explains:  



             16          See Laverty v. Alaska R.R. Corp.                             , 13 P.3d 725, 735-36 (Alaska 2000);                                 see  



also 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-                                                                      6835
  


----------------------- Page 11-----------------------

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

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

                        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  

                                        [19] 

                        licensor.  



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  

                                                                                                                               [20] 

                            

                        a different category.  Such interests are called licenses . . . .  



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  



                   21  

                                                      

a license."             "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  



            19          Id.  512 (internal citations omitted).  



            20          Id.  450 cmt. i.  



            21          4 RICHARD R.  POWELL &  PATRICK J.  ROHAN ,  POWELL ON  REAL PROPERTY  



  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-                                                                     6835
  


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

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



                                                          23  

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



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



                    24  

easement."              



                                                                                          

            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  



                                                                                                 25  

                                                                                                     Thus, the permits are clearly  

permits state that the Park can terminate them at will. 



                                            26  

                                                                                                                  

revocable only for cause.                       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  

extinguished").  



            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-	                                                                   6835
  


----------------------- Page 13-----------------------

          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   



                                                                                                                  27  

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



                                                                                                                                   29  

                                                                                       

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



"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-                                                          6835
        


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

                                        31  

                                                                                                                                              

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



                 32  

                                                                                                                                   

property.              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.  



                                                                            -14-                                                                      6835
  


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

         

 V.            CONCLUSION  



                                                                                                                        

                               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  



                                                                                                                                                                        34  

SOP and REMAND for further proceedings consistent with this opinion.                                                                                                         



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



raised by SOP.  



                                                                                               -15-                                                                                        6835 


----------------------- Page 16-----------------------

           In the Supreme Court of the State of Alaska
  



SOP, Inc.,                                             )  

                                                       )       Supreme Court No. S-14541 

                                   Appellant,          ) 



               v.                                      )                   Order  

                                                       )           Petition for Rehearing  

State of Alaska, Dept. of Natural                      )  

Resources, Div. of Parks  and Outdoor                  )  

Recreation, and Ben Ellis, Director,                   )  

                                                       ) 

                                   Appellees.          )          Date of Order: 10/11/13  

Trial Court Case # 3AN-11-05670CI  



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



                                                 

        Having considered the State of Alaska, DNR's 7/29/13 petition for rehearing and  



SOP, Inc.'s 8/5/13 opposition,  



        IT IS  ORDERED :  The Petition for Rehearing is GRANTED .  Opinion No. 6800  



issued on 7/19/13 is WITHDRAWN .  



                                                                          

         Opinion No. 6835 is issued on this date in its place. The modifications to the new  



                                                                                               

opinion are: (1) in  footnote 16, a citation to Laverty v. Alaska R.R. Corp. , 13 P.3d 725,  



735-36 (Alaska 2000) was added; and (2) in footnote 33 all of the footnote beginning  



                                                                            

after the second sentence (beginning with "Thus we do not need to consider . . . .") has  



been deleted.
  



        Entered by direction of the court.
  



                                                           Clerk of the Appellate Courts  



                                                                     

                                                                                                                             

                                                           Marilyn May  

cc:	     Supreme Court Justices  

        Judge McKay  

        Trial Court Appeals Clerk  

        Publishers  


----------------------- Page 17-----------------------

SOP, Inc. v. State of Alaska, DNA, et al.,  

Supreme Court No. S-14541  

Order of 10/11/13  

Page Two  



Distribution:   



          Patrick B Gilmore                                                  John T Baker  

          Atkinson Conway & Gagnon Inc                                       Assistant Attorney General  

          420  L  St Ste 500                                                 1031 W 4th Ave Ste 200  

          Anchorage AK 99501                                                 Anchorage, AK 99501  

  

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