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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dickson v. State, Dept. of Natural Resources (10/5/2018) sp-7307

Dickson v. State, Dept. of Natural Resources (10/5/2018) sp-7307

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



KELLY  A.  DICKSON,  TRUSTEE  OF )
  

THE  KELLY  A.  DICKSON  2008                                )         Supreme  Court  No.  S-16468
  

TRUST,  and  DONNA  C.  DEFUSCO,   )
  

                                                             )         Superior  Court  No.  3AN-12-07260  CI  

                              Appellants,                   )  

                                                             )                            

                                                                       O P I N I O N  

                    v.                                       )  

                                                             )                                             

                                                                       No. 7307 - October 5, 2018  

                    

STATE OF ALASKA,                                             )  

                                 

DEPARTMENT OF NATURAL                                        )
  

                                             

RESOURCES, and all other persons                             )
  

                                                 

or parties unknown claiming a right,                         )
  

                                                    

title, estate, lien, or interest in the real                 )
  

                                    

estate described in this action,                             )
  

                                                             )
  

                              Appellees.                     )
  

                                                             )
  



                                                                                                        

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

                                                                                                  

                    Judicial District, Anchorage, Catherine M. Easter, Judge.  



                                                                                                    

                    Appearances:  Adolf V. Zeman and Leslie R. Need, Landye  

                                                                                                         

                    Bennett Blumstein LLP, Anchorage, for Appellants.  Z. Kent  

                                                                                                

                    Sullivan,           Assistant           Attorney           General,           Juneau;  

                                                                                              

                    Cheryl Brooking, Assistant Attorney  General, Anchorage;  

                                                                                                          

                    and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for  

                                                

                    Appellee State of Alaska.  



                                                                                                    

                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                       

                    and Carney, Justices.  



                                         

                    MAASSEN, Justice.  


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

I.        INTRODUCTION  



                                                                                                                    

                    The owners of real property near Big Lake appeal a superior court decision,  



                                                                                                                           

following trial, in favor of the State, Department of Natural Resources (DNR), that  



                                                                                                                          

recognized an RS 2477 right of way over their property for the Historic Iditarod Trail  



                                                                                                                            

and a prescriptive easement for public use of a road. The property owners argue that the  



                                                                                                                           

evidence did not support the court's findings of the right of way and the easement; that  



                                                                                                                    

the court made a number of procedural and evidentiary errors that collectively deprived  



                                                                                                                            

them of procedural due process; and that the large attorney's fees award in favor of the  



                                                                                                                             

State was excessive in light of its likely deterrent effect and the State's decision to  



                                                                       

vigorously litigate this case for its precedential effect.  



                                                                                                                             

                    We conclude that the court did not clearly err in its findings of fact, and we  



                                                                                                                          

affirm its decision recognizing the RS 2477 right of way for the Historic Iditarod Trail  



                                                                                                                       

and the prescriptive easement for the road.  We see no abuse of discretion in the court's  



                                                                                                                              

procedural  and  evidentiary  rulings.                    However,  we  conclude  that  there  may  be  a  



                                                                                                                         

compelling reason to vary the presumptive attorney's fees award under Alaska Civil  



                                                                                                                       

Rule 82(b)(3).  We remand for the superior court's further consideration of this issue.  



                                 

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                            

                    Kelly Dickson and Donna DeFusco own adjacent parcels of land near Big  



                                                                                                                       

Lake.   The property's original 160 acres were homesteaded in 1958 by their father,  



                                                                                                                           

Benjamin Cowart, who received a patent from the federal government in 1965.  He later  



                                                                                                                           

purchased two 40-acre tracts that bordered his acreage to the southeast.  Dickson and  



                                                                                                                         

DeFusco inherited the property upon their mother's death in 2007.  Dickson now owns  



                                                                                                                    

the eastern 80 acres of the original homestead plus the two added 40-acre tracts; DeFusco  



                                                              -2-                                                        7307
  


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

                                                                 1  

owns the western 80 acres.                                           The property is situated between the community of Knik to                                                                                  



the east and the community of Susitna to the northwest.                                                                                    



                                 At issue in this case are two easements the superior court found to exist                                                                                               

across Dickson and DeFusco's property.                                                               The first involves the Historic Iditarod Trail,                                                               2  



a trail running from Seward to Nome that was first surveyed in the early 1900s.  The  

                                                                                                                                                                                                          

second  easement is for  part of Homestead Road3   and  was  created  in 1958  when  a  

                                                                                                                                                                                                                 



neighbor, Charles Sassara, Sr., used a D8 Caterpillar to improve access to his and other  

                                                                                                                                                                                                        



homesteads in the area.  

                                              



                                 1.              The Historic Iditarod Trail  

                                                                                                           



                                 The Historic Iditarod Trail was first formally surveyed in 1908 as part of  

                                                                                                    



the route from Seward to Nome; a section of the trail lay between Knik and Susitna  

                                                                                                                                                                                                  



Station.  The Alaska Road Commission rerouted the trail in 1912 to create a more direct  

                                                                                                                                                                                                       



route  between  those  two  points,  and  it  designated  the  newly  realigned  portion  as  

                                                                                                                                                                                                              



Route 20A.  The Historic Iditarod Trail was used as a mail route in the 1910s and had  

                                                                                                                                      



dogsled  and  foot  traffic.                                       By  1921  the  new  railroad  had  taken  over  mail  delivery;  

                                                                                                                                                                                              



according to Bryan Taylor, a DNR employee qualified as an expert in "the trail history  

                                                                                                                                                                                                    



at issue in this case," the Road Commission "abandoned" the Historic Iditarod Trail  

                                                                                                                                                                                                        



around this time in the sense that it was "not going to be maintaining it any longer." But  

                                                                                                                                                                                                            



                 1               The arguments of both sides in this case apply to the adjoining properties                                                                                 



of Dickson and DeFusco as a single unit; no issues require us to consider either property                                                                                                       

individually.     Unless   otherwise   required   by   context,   we   refer   to   the   two   adjoining  

properties singly as "Dickson and DeFusco's property."                                                           



                2                The Historic Iditarod Trail was referred to by other names during trial  

                                                                                                                                                                                                          

including the Knik to Susitna Trail, RST 118, and Alaska Road Commission (ARC)  

                                                                                                                                                                  

Route 20A.  

                              



                3                Homestead Road was also referred to at trial as Sassara's Road, Khyber  

                                                                                                                                                                                                  

Road, Khyber Pass Road, Kerber Road, and the Main Road.  

                                                                                                                                      



                                                                                                       -3-                                                                                              7307
  


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

people in the area continued to use the trail for trapping and transporting freight to their                                                                   



homesteads.  



                          In 1978 Congress dedicated portions of the Seward-to-Nome trail as the                                                                  

                                                                                                        4    The route is distinct from the  

Iditarod National Historic Trail (the National Trail).                                                                                                            



Historic Iditarod Trail, though some sections are the same. In 1979, as part of a National  

                                                                                                                                                       



Trail survey, the State surveyed the Historic Iditarod Trail from Knik to Goose Creek;  

                                                                                                                                                           



in 1983 it surveyed the trail from Goose Creek to Susitna Station.  The State then asked  

                                                                                                                                                             



the Matanuska-Susitna Borough to vacatesomeoftheeasementsfor theHistoric Iditarod  

                                                                                                                                                         



Trail identified in the 1983 survey and realign those parts of the trail to the section lines  

                                                                                                                                                               



in  order  to  make  the  trail  continuous.                                      The  Mat-Su  Borough  followed  the  State's  

                                                                                                                                                          



recommendations and vacated portions of the Historic Iditarod Trail on borough lands.  

                                                                                                                                                                          



                          In 1983 the State sent Cowart a letter advising himthat the Historic Iditarod  

                                                                                                                                                         



Trail crossed his property. The State's information was based on the 1983 National Trail  

                                                                                                                                                               



survey, interviews of people who used the Historic Iditarod Trail, and aerial maps,  

                                                                                                                                                            



among other things.  Shortly thereafter, Cowart asserted a right to block the trail.  The  

                                                                                                                                                     



Iditarod Trail Race was scheduled to cross his property the following year; Cowart sent  

                                                                                                                                                                



a letter to the Knik Chapter of the Iditarod Trail Blazers in December 1983, stating that  

                                                                                                                                                                 



his property was "posted and trespassing will not be permitted."  He placed a metal post  

                                                                                                                                                                



where  the  Historic  Iditarod  Trail  entered  his  property,  bearing  a  sign  that  read,  

                                                                                                                                                             



"POSTED," "PRIVATE PROPERTY," and "NO TRESPASSING."  The sign was still  

                                                                                                                                                                 



there decades later when this case went to trial.  

                                                                                             



                          A significant issue at trial was whether the Historic Iditarod Trail crossed  

                                                                                                                                                          



the property before Cowart homesteaded it in 1958 and thus took the land out of the  

                                                                                                                                                                  



             4  

                                                                                                                                                                   

                          National Parks and Recreation Act of 1978, Pub. L. No. 95-625,  551, 92  

                                                                                                              

Stat. 3467, 3512-13 (codified at 16 U.S.C.  1244(a)(7) (2012)).  



                                                                                 -4-                                                                                7307  


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

public domain.                        To prove that the trail preexisted Cowart's homesteading activities, the                                                                                             



Statecalled                 several expertwitnesses. RockfordBeard-Weber,                                                                          aDNRemployee,                              testified  



that he had assembled a Geographic Information System(GIS) data                                                                                                 file of surveys, aerial              



photos, and other material that could be layered onto maps of the area encompassing                                                                                            



Dickson and DeFusco's property. The available resources included lidar, which Beard-                                                                                                              

                                                                                                                                                                                                     5    He  

Weber described as "a digital elevation model" created through aerial imagery.                                                                                                                           



testified that lidar uses "a signal that hits the ground and reflects back to the plane" and  

                                                                                                                                                                                                         



has the advantage of being able to "penetrate[] a good deal of foliage," allowing a view  

                                                                                                                                                                                                     



"below the canopy, to some extent."  He testified that he could see the Historic Iditarod  

                                                                                                                                                                                               



Trail to the east of Dickson and DeFusco's property in the 1960 and 1962 aerial photos  

                                                                                                                                                                                                  



but the trees on their land made it much harder to find. The lidar, however, allowed him  

                                                                                                                                                                                                         



to penetrate the canopy and make out the trail as a line crossing the property.  

                                                                                                                                                                                             



                                Beard-Weber also visited the property and walked across it holding a GPS  

                                                                                                                                                                                                     



device that showed where DNR believed the Historic Iditarod Trail to be.  He testified  

                                                                                                                                                                                              



that "a lot of times it's easier to find old trails by looking up instead of looking down"  

                                                                                                                                                                                                  



because of the absence of tall trees in a line where tall trees are expected.  He reported  

                                                                                                                                                                                              



finding "a fairly straight line with no large trees right along the middle of the lineal  

                                                                                                                                                                                                    



feature or immediately adjacent to it."  He testified that the Historic Iditarod Trail was  



one of the easier trails to locate using this method.  

                                                                                                      



                                The State also called a professional photogrammetrist - someone who, as  

                                                                                                                                                                                                             



the trial court explained, "uses a blend of aerial photos to create a three-dimensional  

                                                                                                                                                                    



map." The witness, Bryan O'Malley, testified about the conclusions he drew from aerial  

                                                                                                                                                                                                     



                5               "Lidar" is defined                          as "[a]noptical sensingtechnology                                                  used to determine the                       



position, velocity, or other characteristics of distant objects by analysis of pulsed laser     

light reflected from their surfaces."                                                      THE   AMERICAN  HERITAGE   DICTIONARY OF THE                                                                 

ENGLISH LANGUAGE  (5th ed. 2016).                                       

                       



                                                                                                      -5-                                                                                             7307
  


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

                                                                                                                        

photos taken in 1950, 1951, 1960, and 1962. According to O'Malley, the photos showed  



                                                                                                                               

a trail "entering [Dickson and DeFusco's property] from the east . . . and exiting to the  



                                                                                                                              

west . . . at least by 1950." He testified that he could see the trail's entry point on the east  



                                                                                                                              

side of the property in images from year to year and that its exit point on the western side  



                                                              

was visible in the 1950, 1951, and 1960 images.  



                                                                                                                          

                    To support their  defense to  these claims Dickson  and DeFusco  called  



                                                                                                                                 

Jonathon Lang, an expert in land surveying.  Having reviewed the same aerial photos as  



the State's experts, Lang testified that they did not show the Historic Iditarod Trail on  



                                                                                                                            

Dickson and DeFusco's land in 1950 or 1951.  He testified that a 1911 Bureau of Land  



                                                                                                                            

Management (BLM) survey showed the Historic Iditarod Trail three or four miles away  



                                                                                                                            

from the property, and that the trail was also shown outside the property on a 1964 BLM  



                                                                                                                          

survey and a 1923 Road Commission map of the Cook Inlet District.  Lang also looked  



                                                                                                                                     

at 1950s-eraquadranglemapsproduced bytheUnitedStates GeologicalSurvey (USGS).  



                                                                                                                   

He testified that the 1952 map showed a trail going through Dickson and DeFusco's  



                                                                                                                       

property  but it was identified  as  "tractor  trail"; the same map  showed  the Historic  



                                                                                                                        

Iditarod Trail ending well north of Dickson and DeFusco's property. Lang also testified  



                                                                                      

that he could not see the trail when he walked the land.  



                                                                                                                              

                    In its rebuttal case the State called another expert, Karen Tilton, who like  



                                                                                                                     

Lang was a professional land surveyor.  Tilton agreed with the State's other witnesses  



                                                                                                                       

that the Historic Iditarod Trail had most likely crossed Dickson and DeFusco's property  



                                                                                                                           

since at least 1950.   She testified that the 1911 BLM survey on which Lang relied  



                                                                                                                       

showed the trail north of Dickson and DeFusco's property because the survey predated  



                                                                                                                            

the trail's realignment in 1912.  She testified that the 1964 BLM survey on which Lang  



                                                                                                                                

relied may have missed the Historic Iditarod Trail because of clearing that was going on  



                                                                                                                           

at the same time.  She testified that Alaska Road Commission maps gave general rather  



                                                                                                                              

than precise trail locations, and that Road Commission and USGS maps locating the trail  



                                                               -6-                                                         7307
  


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

north of Dickson and DeFusco's property were likely based on the 1911 BLM survey                                                                                                                                                                                                                                                                                                                             



that predated the trail's realignment.                                                                                                                                                   



                                                                   2.                               Homestead Road   



                                                                   Dickson and DeFusco do not dispute that Homestead Road crosses the                                                                                                                                                                                                                                                 



 southern portion of the original homestead's 160 acres. Charles Sassara, Sr. testified that                                                                                                                                                                                                                                                                                                                                  



he built Homestead Road (which he sometimes referred to as "Burma Road") with a D8                                                                                                                                                                                                                                                                                                                                         



 Cat, probably in 1958, to improve access to area homesteads including his own.                                                                                                                                                                                                                                                                                                                                             He  



testified that no one gave him permission to build the road.                                                                                                                                                                                                                                                             In the 1970s the State                                                                      



produced a map of highways in the Knik area showing Homestead Road as a highway,                                                                                                                                                                                                                                                                                                           



meaning that it was open to motorized vehicles.                                                                                                                                                                                                  



                                                                   A   number   of   witnesses   testified   about   their   use   of   Homestead   Road.  



 Sassara testified that he used it from the 1950s to the late '60s or early '70s, along with                                                                                                                                                                                                                                                                                                                             



other local property owners who drove highway vehicles across it in all seasons. Sassara                                                                                                                                                                                                                                                                                                                 



testified that he saw mushers and hunters use the road as well and that everyone seemed                                                                                                                                                                                                                                                                                                                   



to believe it was open to the public.                                                                                                                                                  Several other witnesses testified about using the                                                                                                                                                                                       



road between 1984 and 2008 for dogsled races and training without seeking or receiving                                                                                                                                                                                                                                                                                                           



permission.     One   of   these   witnesses,   a   local   musher,  testified   that   he   thought  



Joe Redington, Sr. might have received permission to use the road for dogsledding, but                                                                                                                                                                                                                                                                                                                                          



                                                                                                                                                                                          6  

the witness did not know any details.                                                                                                                                                          



                                                                   3.                               Dickson's communications with DNR  

                                                                                                                                                                                                                                                                                



                                                                   In 2008 Dickson used felled trees to block Homestead Road at both sides  

                                                                                                                                                                                                                                                                                                                                                                                                                      



of her property, but the barriers were soon pushed aside, and others' use of the road  

                                                                                                                                                                                                                                                                                                                                                                                                                        



                                  6                                Joe Redington, Sr., known as "the Father of the Iditarod," is among the                                                                                                                                                                                                                                                                                     



most   well   known   and   respected  of   Alaska's   mushers.     See   BILL    SHERWONIT    &  

     EFF SCHULTZ, I  DITAROD  23-31 (2002); AS 35.40.140 (designating a portion of road in                                                                                                                                                                                                                                                                                                                                            

J                       

the Matanuska-Susitna Borough as "the Joe Redington, Sr., Memorial Trail").                                                                                                                                                                                                                                                                                      



                                                                                                                                                                                                                  -7-                                                                                                                                                                                                   7307
  


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

continued.  Dickson testified that she also put up "No Trespassing" signs and brightly  



                                                                                                                          

colored tape at the entry points. In August 2008 she sent a letter to her neighbors saying  



                                                                                                                                

she had blocked Homestead Road and that any use of the road to cross her property "is  



                                                                                                                              

not authorized, and constitutes a trespass." DNR was notified of the obstruction and sent  



                                                                                                                              

Dickson a memo, authored by its employee Ben Hagedorn, stating that the blocked trail  



                                                                                                                                

was "not, in fact," the Historic Iditarod Trail, which "[a]ccording to DNR records . . . lies  



                                                                                                                          

to  the  north  of  Ms.  Dickson's  lots  along  the  section  line."                            The  Hagedorn  memo  



                                                                                                                               

concluded,  "It  is  the  State's  position  that  Ms.  Dickson  has  legally  blocked  an  



                                                                                      

unauthorized, or unprotected, trail across her property."  



                                                                                                                       

                    In 2009 DNR informed Dickson and DeFusco by letter that the Historic  



                                                                                                                

Iditarod Trail "appears to cross your parcel" but that DNR "has no plans to create any  



                                                                                                                    

easements on or leading to private lands without the landowner's consent."  (Emphasis  



                                                                                                                              

omitted.)  Instead, DNR stated that it was "interested in working with [Dickson and  



                                                                                                                       

DeFusco] to formally establish an easement across [the] land," which would be "entirely  



                                                                                                                                

voluntary."  Dickson and DeFusco did not agree to the proposal.  At a meeting held by  



                                                                                                                     

some members of the Iditarod Trail Committee in January 2012, a DNR employee  



                                                                                                                   

informed them that "[t]he old [Homestead Road] at the south end of . . . Dickson's  



                                                                                                                     

property and the road at the north end do not have public easements" and that "Dickson  



                                                                                                                        

has every right to block both of those routes."  In 2011 Dickson installed game cameras  



                                                                                                                                  

to monitor the use of Homestead Road; this produced hundreds of photographs of a  



                                                                                                                                

variety of users, including mushers, skiers, bicyclists, hunters, hikers, and users of  



                                                                       

snowmachines, ATVs, and highway vehicles.  



                                                                                                                               

                    In May 2012 Dickson and DeFusco filed a complaint to quiet title to the  



                                                                                                                  

portions of the Historic Iditarod Trail and Homestead Road crossing or purportedly  



                                                                                                                       

crossing their property. The State answered and counterclaimed, asserting that Dickson  



                                                                                                         

and DeFusco's property was subject to public rights of way for both routes.  



                                                               -8-                                                         7307
  


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

            B.         Proceedings  



                       The superior court held a 27-day bench trial. Combined, the parties called  

                                                                                                                                           



20 witnesses, including five experts.  The superior court issued highly detailed, written  

                                                                                                                                         



findings of fact and conclusions of law in June 2016.  It found that the Historic Iditarod  

                                                                                                                                        



Trail crossed Dickson and DeFusco's property on a 100-foot right of way established by  

                                                                                                                                                 



federal law and recognized thereafter by official acceptance and public use.  The court  

                                                                                                                                            



rejected  Dickson  and  DeFusco's  claims  that  the  route  had  been  abandoned  by  the  

                                                                                                                                               



territorial government or vacated by the Mat-Su Borough.  

                                                                                                      



                       As for Homestead Road, the court found that although it did not occupy a  

                                                                                                                                                    



federally created right of way, it did enjoy a prescriptive easement across Dickson and  

                                                                                                                                               



DeFusco's property, and that the easement should be 20 feet wide "in the interest of  

                                                                                                                                                  



public safety."  The court rejected Dickson and DeFuscos's arguments that laches and  

                                                                            



estoppel  barred  the  State's  claims.                            Finally,  the  superior  court  awarded  the  State  

                                                                                                                                            



$225,107.03 in attorney's fees and costs.  

                                                              



                       Dickson and DeFusco appeal.  

                                                               



III.        STANDARDS OF REVIEW  

                                               



                       We review the trial court's factual findings under the clearly erroneous  

                                                                                                                                    

standard.7   "Factual findings are clearly erroneous if a review of the entire record leaves  

                                                                                                                                           

us with a definite and firm conviction that a mistake has been made."8  "We will grant  

                                       



especially great deference when the trial court's factual findings require weighing the  

                                                                                                                                                

credibility  of witnesses and  conflicting  oral testimony."9                                           "We review the superior  

                                                                                                                                      



            7          Kazan v. Dough Boys, Inc.                     , 201 P.3d 508, 513 (Alaska 2009).                



            8          Bigley v. Alaska Psychiatric Inst.                       , 208 P.3d 168, 178 (Alaska 2009).                



            9          Id. ; see also Alaska R. Civ. P. 52(a) ("Findings of fact shall not be set aside  

                                                                                                                                             

                                                                                                                              (continued...)  



                                                                        -9-                                                                 7307
  


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

                                                                                   10  

court's evidentiary rulings for abuse of discretion."                                   We review "an award of attorney's           



                                                       11  

fees for an abuse of discretion."                                                                                                             

                                                            We "will not find an abuse of discretion absent a  



                                                                                                                                  

showing that the award was arbitrary, capricious, manifestly unreasonable, or stemmed  



                                        12  

                          

from improper motive." 



                      When reviewing the superior court's decision on a laches defense, we  

                                                                                                                            



review its findings of fact for clear error and its determination whether to apply laches  

                                                                                                                                      

to those facts for abuse of discretion.13   Whether equitable estoppel applies is a question  

                                                                                                                                   

of law we review de novo.14  

                                    



IV.        DISCUSSION  



                      Dickson  and  DeFusco  raise  a  number  of  arguments  on  appeal.                                              They  

                                                                                                                                        



challenge the superior court's findings that there is a federally created right of way across  

                                                                                                                                      



their property for the Historic Iditarod Trail and that there is a prescriptive easement  

                                                                                                                                 



across their property for Homestead Road. They challenge the superior court's rejection  

                                                                                                                                  



of their laches and estoppel defenses. They assert that the superior court made numerous  

                                                                                                                                



           9          (...continued)  



                                                                                                                                          

unless clearly erroneous, and due regard shall be given to the opportunity of the trial  

                                                            

court to judge the credibility of the witnesses.").  



           10         Luther v. Lander, 373 P.3d 495, 499 (Alaska 2016) (quoting Noffke v.  

                                                                                                                                             

Perez, 178 P.3d 1141, 1144 (Alaska 2008)).  

                                                              



           11         Bush        v.    Elkins,        342       P.3d       1245,       1251        (Alaska          2015)        (quoting  

                                                                                                                                

ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d 114, 137  

                                                                                                                                          

(Alaska 2014)).  

               



           12         Id . (quoting ConocoPhillips Alaska, Inc., 322 P.3d at 137).  

                                                                                                                



           13         Kollander v. Kollander, 322 P.3d 897, 902-03 (Alaska 2014).  

                                                                                                                   



           14         Ogar v. City of Haines, 51 P.3d 333, 335 (Alaska 2002).  

                                                                                                          



                                                                     -10-                                                              7307
  


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

evidentiary errors during the trial, and, finally, they challenge the court's award of                                                                                                                                  



attorney's fees to the State.                                           



                 A.	               The Superior Court Did Not Clearly Err When It Found That The                                                                                                                   

                                  Historic Iditarod Trail Followed An RS 2477 Right Of Way Across                                                                                                           

                                  Dickson And DeFusco's Property.                                     



                                   Section 8 of the Lode Mining Act of 1866 granted "the right of way for                                                                                                              



construction of highways over public lands, not reserved for public uses"; these are                                                                                                                                  



                                                                                   15  

known as RS 2477 rights of way.                                                                                                                                                                          

                                                                                         An RS 2477 right of way is "self-executing, meaning  



                                                                                                                                                                                                                     

that an RS 2477 right-of-way automatically came into existence 'if a public highway was  



                                                                                                                                                                                                 16  

                                                                                                                                                                                                                 

established across public land  in  accordance with the law of  Alaska.'  "                                                                                                                               A valid  



                                                                                                                                                                                                                      

RS 2477 right of way requires public acceptance of the grant through either public use  



                                                                                                                                                                                                            

or the manifestation of official intent: "[T]he public must use the land 'for such a period  



                                                                                                                                                                                                                        

of time and under such conditions as to prove that the grant has been accepted,' or  



                                                                                                                                                          

appropriate public authorities of the state must act in a way that clearly manifests their  



                                                                           17  

                                                                                                                                                                                                                  

intention to accept the grant."                                                   Section 8 of the Lode Mining Act was repealed in 1976  



                 15               Lode   Mining   Act   of   July   26,   1866,   Ch.   262,      8,   14   Stat.   251,   253,  



(codified as 43 U.S.C.  932 (1925), Revised Statute 2477) (thus abbreviated as "RS                                                                                                                                 

2477"),  repealed by                                Federal Land Policy and Management Act of 1976, Pub. L. No. 94-                                                                                                   

579,  706(a), 90 Stat. 2743, 2787 (1976).                                                                     



                 16               Price v. Eastham  (Price I), 75 P.3d 1051, 1055 (Alaska 2003) (quoting  

                                                                                                                                                                                                        

Fitzgerald v. Puddicombe, 918 P.2d 1017, 1019 (Alaska 1996)).  

                                                                                                                                                   



                 17               Id. (quoting Dillingham Commercial Co. v. City of Dillingham, 705 P.2d  

                                                                                                                                                                                                       

410, 413-14 (Alaska 1985)).  

                                                       



                                                                                                          -11-	                                                                                                   7307
  


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

                                                                                                                                       18  

when Congress enacted the Federal Land Policy Management Act (FLPMA),                                                                      but the   



                                                                19  

Act left existing rights of way intact.                               



                       Because RS 2477 rights of way applied only to "public lands, not reserved  

                                                                                                                                         

                             20  such a right of way could be established only over federally owned  

for public uses,"                                                                                                                           

                   

"lands open to settlement or other disposition under federal land laws."21                                                            A critical  

                                                                                                                                           



factual question in this case, therefore, was whether the Historic Iditarod Trail was  

                                                                                                                                                



established over Dickson and DeFusco's property before the land was taken out of the  

                                                                                                                                                  

public domain in 1958 by their father's homesteading activities.22                                                    We agree with the  

                                                                                                                                                  



superior court's  conclusion that, as in the case of prescriptive easements, the party  

                                                                                                                                              



asserting the right of way - here the State - has the burden of proving its case by clear  

                                                                                                                                               

and convincing evidence.23  

                                                 



                       Dickson and DeFusco argue that the superior court clearly erred in finding  

                                                                                                                                           



that the Historic Iditarod Trail crossed their property, contending that theevidenceat trial  

                                                                                                                                                 



showed only "a muddled history of misinformation and confusion of the [trail's] actual  

                                                                                                                                             



location" rather than "a clear and convincing body of evidence."  But our review of the  

                                                                                                                                                  



            18  

                       Federal  Land  Policy  and  Management  Act  of   1976,  Pub.  L.  No.  94-579,  

  706(a),  90  Stat.  2743,  2793  (1976).  



            19         Price  I,  75  P.3d  at   1055.  



            20         Id.  (quoting  Fitzgerald,  918  P.2d  at   1019.  



            21         Id.  at   1056  (citing  Hamerly  v.  Denton,  359  P.2d  121,   123  (Alaska   1961)).  



            22         Id. ; see also Hamerly, 359 P.2d at 123.  

                                                                                    



            23         Interior   Trails  Pres.   Coal.  v.  Swope,   115  P.3d   527,   530   (Alaska   2005);  



S.   Utah   Wilderness  All.  v.  Bureau  of  Land  Mgmt., 425 F.3d 735, 768  (10th  Cir.  2005)  

(explaining  that  federal  law  "borrows"  state  law  principles  such  as  burdens  of  proof  in  

RS  2477  cases).  



                                                                        -12-                                                                  7307
  


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

                                                                                                                                                                                                                                       24  

trial court's fact-finding is deferential,                                                                                                                                                                                                      and the trial court's findings in support of an                                                                                                                                                                                                                   



RS 2477 right of way have substantial support in the record.                                                                                                                                                                                                                                                                                                                    This includes the aerial                                                                                        



photos that, according to the State's experts O'Malley and Beard-Weber, showed where                                                                                                                                                                                                                                                                                                                                                                                                          



the trail entered and exited the property.                                                                                                                                                                                                                          Beard-Weber testified that both the lidar                                                                                                                                                                                       



technology   and   his   on-the-ground   observations   confirmed   the   trail's   route   on   the  



property itself.                                                                            



                                                                               Although Lang testified that he could not see the route the State claimed for                                                                                                                                                                                                                                                                                                                                                     



the Historic Iditarod Trail either in aerial photos or during his site visit, the superior court                                                                                                                                                                                                                                                                                                                                                                                                    



weighed the experts' testimony and found the State's more credible. And the court could                                                                                                                                                                                                                                                                                                                                                                                                          



reasonably discount Lang's reliance on historical maps in light of Tilton's testimony                                                                                                                                                                                                                                                                                                                                                                                 



 about the sources' varied reliability.                                                                                                                                                                                  



                                                                                In their brief, Dickson and DeFusco cite a number of these maps to support                                                                                                                                                                                                                                                                                                                           



their argument that the Historic Iditarod Trail does not cross their property. The superior                                                                                                                                                                                                                                                                                                                                                                                      



 court found that historical maps were "not particularly helpful in determining the exact                                                                                                                                                                                                                                                                                                                                                                                                         



 location of [the trail] for a number of reasons," including the maps' "zoomed out" scale,                                                                                                                                                                                                                                                                                                                                                                                                       



 "the lack of survey information, and the limited purposes for which the maps were                                                                                                                                                                                                                                                                                                                                                                                                                 



produced, i.e., . . . without the intent to provide navigable accuracy in any level of                                                                                                                                                                                                                                                                                                                                                                                                                             



 detail."   We see no clear error in this analysis of the evidence's weight.                                                                                                                                                                                                                                                                                                              



                                                                                We also see no clear error in the superior court's findings that the public   



 authorities manifested their intent to accept the Historic Iditarod Trail as an RS 2477                                                                                                                                                                                                                                                                                                                                                                                                          



right of way when the Alaska Road Commission designated it as Route 20A in 1912, and                                                                                                                                                                                                                                                                                                                                                                                                                         



                                        24                                     See Laybourn v. City of Wasilla                                                                                                                                                         , 362 P.3d 447, 452 (Alaska 2015) ("We . . .                                                                                                                                                                                                   



 'give particular deference to the superior court's factual findings when . . . they are based                                                                                                                                                                                                                                                                                                                                                                                                  

primarily   on   oral  testimony,   because   the   superior   court,   not   this   court,   judges   the  

 credibilityofwitnesses andweighs                                                                                                                                                                           conflictingevidence.'"(second                                                                                                                                                             alteration in original)                                                  

 (quoting  3-D & Co. v. Tew's Excavating, Inc.                                                                                                                                                                                                                                   , 258 P.3d 819, 824 (Alaska 2011))).                                                                                                                                                                                         



                                                                                                                                                                                                                                                      -13-                                                                                                                                                                                                                                            7307
  


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

that the trail as it crosses Dickson and DeFusco's property follows the same route.                                                                                                                                      The  



superior court also described the Alaska Legislature's 1998 enactment of AS 19.30.400,                                                                                                                   



which  identified and explicitly claimed existing RS 2477 rights of way throughout                                                                                                                    



Alaska; this statutory ratification expressly included RST 118, the "Knik-Susitna" right                                                                                                                                



of way, which DNR's contemporaneous survey information showed crossing Dickson                                                                                                                                



                                                                 25  

and DeFusco's property.                                                 



                                   Dickson and DeFusco argue that the superior court clearly erred when it  

                                                                                                                                                                                                                                 



rejected their argument that any part of the Historic Iditarod Trail that crossed their  

                                                                                                                                                                                                                        



property was vacated in 1986 when the Mat-Su Borough, "at the State's direction,"  

                                                                                                                                                                                   



vacated parts of the trail between Knik and Susitna Station.  The superior court found  

                                                                                                                                                                                                                     



that  the  1983  National  Trail  survey,  and  the  resulting  decision  to  vacate  some  

                                                                                                                                                                                                                     



"unconnected  segments" of the trail, applied  only  to  those sections of the Historic  

                                                                                                                                                                                                              



Iditarod Trail that were on public lands.  Dickson and DeFusco's cursory argument on  

                                                                                                                                                                                                                              



this issue does not convince us that the superior court was mistaken.  

                                                                                                                                                           



                                   Dickson  and  DeFusco  also  argue  that  the  Historic  Iditarod  Trail  was  

                                                                                                                                                                                                                         



abandoned in 1918; they point to a 1923 Alaska Road Commission map that labels the  

                                                                                                                                                                                                                            



trail as "Abandoned Trail" and a 1951 Road Commission map that does not show the  

                                                                                                                                                                                                                            



trail at all. But the superior court heard expert testimony that the term "abandoned" was  

                                                                                                                                                                                                                          



sometimes used loosely and meant only that the Road Commission would no longer  

                                                                                                                                                                                                                   



spend money on the trail to maintain it; it did not mean that the Commission intended to  

                                                                                                                                                                                                                               



relinquish legal title to the route.   The court heard testimony that  the  Commission  

                                                                                                                                                                                                  



"abandoned" other routes, such as Route 20B, only to come back and spend money on  

                                                                                                                                                                                                                              



                  25               Because   we   affirm   the   superior   court's   finding   that  the   territorial  



government clearly manifested its intent to accept the grant of an RS 2477 right of way,                                                                                                                                

we do not need to address the court's finding that the grant was also accepted by public                                                                                                                            

use.   



                                                                                                             -14-                                                                                                      7307
  


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

them when they were needed again.                                                                             There was thus evidence to support the superior                                                                           



court's conclusion that the Road Commission's "decision to not spend any additional                                                                                                                                                



money on maintaining Route 20A did nothing to negate its clear intent to accept the grant                                                                                                                                                         



of an R.S. 2477 easement."                                                          



                                        Dickson and DeFusco make two other arguments about the RS 2477 right                                                                                                                                       



of way that we address briefly.                                                              First, they argue that the superior court erred by setting                                                                                      



the width of the right of way at 100 feet.                                                                              They contend that the width should have been                                                                               



determined by the same standard that applies to prescriptive easements, based on "what                                                                                                                                                         



is reasonably necessary and what was originally intended."                                                                                                                               But we agree with the                                        

                                                                                                                                                                                                                                      26  and by  

superior court that the 100-foot width was dictated both by federal land orders                                                                                                                                                                          

AS 19.10.015.27  

                                                  



                                        Finally, Dickson and DeFusco argue that the superior court erred by not  

                                                                                                                                                                                                                                                       



limiting the RS 2477 right of way to winter use, and specifically to mushing, "the only  

                                                                                                                                                                                                                                                   



use that could have occurred prior to 1958."   While prescriptive easements may be  

                                                                                                                                                                                                                                                         

                                                                                                                28  RS 2477 vests rights of travel in the public at  

limited to the uses that created them,                                                                                                                                                                                                                     

                                                                                               



large.   "If there is a public road on [a private owner's land], it may be used for any  

                                                                                                                                                                                                                                                     



                    26                  PublicLand                          Order 601,                      14 Fed. Reg. 5048, 5048-49(August                                                                          10, 1949), and  



Department Order 2665, 16 Fed. Reg. 10,752 (October 16, 1951), established standard                                                                                                                                                     

widths for public roads, including 100-foot widths for "local roads," which are broadly                                                                                                                                                   

defined.  



                    27                  AS 19.10.015 mandates a 100-foot width for "all officially proposed and  

                                                                                                                                                                                                                                                      

existing highways on public land not reserved for public use."  "[H]ighway," as used in  

                                                                                                                                                                                                                                                           

AS 19.10.015, is defined in AS 19.59.001(8) to include "trail[s]."  

                                                                                                                                                                       



                    28                  See Price I, 75 P.3d 1051, 1058-59 (Alaska 2003) (remanding superior  

                                                                                                                                                                                                                                        

court's alternative finding of prescriptive easement "for a determination of the scope of  

                                                                                                                                                                                                                                                           

this easement," which could include "limiting use to certain seasons, prescribing the  

                                                                                                                                                                                                                                                       

width  of  the  easement,  and  specifying  the  precise  uses  that  may  be  made  of  the  

                                                                                                                                                                                                                                                      

easement").  



                                                                                                                           -15-                                                                                                                   7307
  


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

                                                                                                           29  

purpose consistent with public travel."                                                                           The superior court thus did not err by not                                                                   



imposing use restrictions on the RS 2477 right of way.                                                                                



                                    Seeing no clear error in the superior court's findings of fact and no error in                                                                                                                  



its application of the law, we affirm its decision with regard to the creation of the                                                                                                                                          



RS 2477 right of way for the Historic Iditarod Trail on Dickson and DeFusco's property.                                                                                                                         



                  B.                The   Superior   Court   Did   Not   Clearly   Err   By   Finding   A   Public  

                                    Prescriptive Easement For Homestead Road.                                                                       



                                    Dickson and DeFusco argue that the superior court erred by determining   



that there was a prescriptive easement across their property for Homestead Road.                                                                                                                                                 A  



                                                                                                              30  

prescriptive easement is created by use.                                                                                                                                                                       

                                                                                                                      A party claiming a prescriptive easement  



                                                                                                                                                                                                                

"must  show  that  (1)  the  use  was  continuous  and  uninterrupted  for  [a]  ten-year  



                                                                                                                                                                                                                                

period . . . ; (2) the claimant acted as an owner and not merely as a person having the  



                                                                                                                                                                                                                                    31  

                                                                                                                                                                                                                                           

permission of the owner; and (3) the use was reasonably visible to the record owner." 



For purposes of creating a public prescriptive easement, it is "qualifying use by the  

                                                                                                                                                                                                                               

public" that matters rather than use by a private party.32  

                                                                                                                                  



                                    Dickson and DeFusco argue that none of these elements were met.  They  

                                                                                                                                                                                                                          



argue first that Homestead Road was not used continuously for a 10-year period anytime  

                                                                                                                                                                                                                   



between 1958, when Cowart homesteaded, and 2008, when Dickson blocked the road.  

                                                                                                                                                                                                                                           



They argue that the evidence showed only "sporadic use for [dogsled] races" that was  

                                                                                                                                                                    



necessarily seasonal, and that other "limited evidence of mushing and other recreation  

                                                                                                                                                                                  



                  29                Dillingham   Commercial   Co.   v.   City   of  Dillingham,   705   P.2d   410,   415  



(Alaska   1985)  (citing  Albee  v.  Town  of  Yarro  Point,  445  P.2d  340,  344  (Wash.   1968)).   



                  30                See  Interior  Trails  Pres.  Coal.  v.  Swope,  115  P.3d  527,  529  (Alaska  2005).  



                  31                Id.  at  530.  



                  32                Price  v.  Eastham  (Price  III),  254  P.3d  1121,  1125  (Alaska  2011)  (quoting  



Interior  Trails,   115  P.3d  at  529).  



                                                                                                               -16-                                                                                                        7307
  


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

 is not specific to Homestead Road as it crosses the Property."                                                                                                                                       But again we conclude                         



 that substantial evidence supports the superior court's finding of regular public use, not                                                                                                                                                                           



just   for   dogsled   races,   but   also   for   year-round  access   by   motor   vehicle   to   area  



 homesteads.   There was testimony that users considered Homestead Road to be a public                                                                                                                                                                    



 road, a perception confirmed by a State-produced map from the 1970s identifying it as                                                                                                                                                                                    



 a public highway.                                         This evidence supported the superior court's finding that the use of                                                                                                                                           



                                                                                                                                                                                                                                           33  

 Homestead Road was continuous and uninterrupted over a 10-year period.                                                                                                                                                                           



                                           Dickson and DeFusco also argue that the public's use of Homestead Road  

                                                                                                                                                                                                                                                                



 was  not  hostile  because  Cowart  had  allowed  it  for  many  years.                                                                                                                                                 But  a  number  of  

                                                                                                                                                                                                                                                                        



 witnesses, including Sassara, Raymond Redington, Jr., andTerry Langholz, testified that  

                                                                                                                                                                                                                                                                     



 they used Homestead Road without the owner's permission.   And Cowart, and later  

                                                                                                                                                                                                                       



 Dickson and DeFusco, showed a longstanding hostility toward public use of the trails  

                                                                                                                                                                                                                                                                



 across their property.  Other than Dickson and DeFusco, the only person to testify that  

                                                                                                                                                                                                                                                                    



 Cowart gave permission to use Homestead Road was Vernon Cherneski, a local musher.  

                                                                                                                                                                                                                                                                                   



 He  testified  that  he  believed  Joe  Redington,  Sr.  got  Cowart's  permission  to  use  

                                                                                                                                                                                                                                                                    



 Homestead Road; but Cherneski was not a party to that conversation and could not  

                                                                                                                                                                                                                                                                      



 remember the specifics of what he had learned from Redington.   The court was not  

                                                                                                                                                                                                                                                                     



 required to credit his testimony, and the countervailing evidence of unpermitted use is  



 sufficient to support the court's finding that the public's use of the road was hostile.  

                                                                                                                                                                                                                                                 



                      33                   The trial court cited                                        Shultz v. Dep't of the Army                                                          , 10 F.3d 649, 655 (9th Cir.                                            



  1993), for the proposition that "[w]hat might be considered sporadic use in another                                                                                                                                                                   

 context   would   be   consistent   or   constant   use   in   Alaska."     The   cited   opinion   was  

 withdrawn and superseded on rehearing by                                                                                                 Shultz v. Dep't of the Army                                                            , 96 F.3d 1222   

 (9th Cir. 1996), but we agree with the superior court that the withdrawn opinion's                                                                                                                                                              

 explanation of "consistent or constant use in Alaska" accurately reflects the state's                                                                                                                                                                     

 "geography, its weather, and its sparse and scattered population."                                                                                                                                        Shultz, 10 F.3d at 655.                                                 

    



                                                                                                                                  -17-                                                                                                                           7307
  


----------------------- Page 18-----------------------

                                               Dickson and DeFusco also dispute that they could ever have received                                                                                                                                                          



 sufficient notice of hostile use because their land was heavily forested, winter access was                                                                                                                                                                                                  



 difficult, and they used it mostly for weekend and summer recreation; they argue that                                                                                                                                                                                                        



 others' use of the property "was so infrequent and left such little evidence of use that                                                                                                                                                                                                    



 [Dickson   and   DeFusco]   were   never   put   on   notice   of   an   adverse   interest   in   the  



 [p]roperty."   But there was evidence that Homestead Road (unlike the Historic Iditarod                                                                                                                                                                                        



 Trail) was easily spotted from the air, and the superior court found that "[a]ny reasonable                                                                                                                                                                          



 landowner, even for a relatively remote piece of property, would have objectively been                                                                                                                                                                                                   



 able to notice a nine-foot road that has been visible from the air since at least 1960." We                                                                                                                                                                                                  



 are not persuaded that this finding was clearly erroneous.                                                                                                       



                                               Finally, Dickson and DeFusco argue that the superior court erred by failing                                                                                                                                                           



 to restrict the road's use to necessary vehicle access to area homesteads and by setting                                                                                                                                                                                           



 the   easement's   width   at   20   feet.     "[A]   prescriptive   easement's   scope   should   be  



                                                                                                                                                                                                                                                                                                      34  

 determined by the nature of the adverse use that led to its creation in the first place."                                                                                                                                                                                                                   



 The superior court found that the uses supporting creation of the easement included not  

                                                                                                                                                                                                                                                                                                



just local vehicle traffic but also recreation such as mushing and hunting.  The court's  

                                                                                                                                                                                                                                                                                  



 failure to place use restrictions on the easement was consistent with the evidence.  And  

                                                                                                                                                                                                                                                                                           



 the court specifically found that a 20-foot width was reasonable and necessary "in the  

                                                                                                                                                                                                                                                                                                

 interest of public safety" in order to allow for two-way traffic on the road.35   Dickson and  

                                                                                                                                                                                                                                                                                               



 DeFusco  present  no  argument why  - assuming  an  easement exists for  essentially  

                                                                                                                                                                                                                                                                     



                        34                    Price v. Eastham                                                 (Price II                       ),   128   P.3d   725,   728   (Alaska 2006)                                                                                        (citing  



 RESTATEMENT  (THIRD) OF  PROP.: S                                                                                         ERVITUDES    4.1 cmt. a (A                                                                M. L            AW  INST . 2000)).                                          



                        35                     See Price III                               , 254 P.3d at 1131 ("[T]he superior court must make specific                                                                                                                         



 findings  as  to  the  reasonableness  and  necessity  of  increasing  the  width  of  the  

                                                                                                                                                                                                                                                                                             

 easement.").  



                                                                                                                                               -18-                                                                                                                                       7307
  


----------------------- Page 19-----------------------

unrestricted public traffic - the court erred in finding that this width was necessary for                                                                                                                                                                            



 safety.  



                                          We see no clear error in the superior court's findings with regard to the                                                                                                                                                  



 creation of a prescriptive easement for Homestead Road and therefore affirm that aspect                                                                                                                                                                    



 of its decision.     



                     C.                   The Superior Court Did Not Err When It Determined That Estoppel                                                                                                                                         

                                          And Laches Did Not Bar The State's Claims.                                                                                   



                                           1.                  Estoppel   



                                          Dickson   and   DeFusco  argue   that   the   State   should   be   estopped   from  



 claiming rights of way for the Historic Iditarod Trail and Homestead Road because they                                                                                                                                                                           



 "reasonably relied on DNR's conduct and words that it (or the public) did not have any                                                                                                                                                                             



interest in an easement" for either trail.                                                                                  "[P]rivate parties may invoke estoppel against                                                                               

                                                                                                                                                                                                                                     36    In Safeway,  

the state under exceptional circumstances as a means to avoid injustice."                                                                                                                                                                          



Inc. v. State, Department of Transportation &Public Facilities, we explained that a party  

                                                                                                                                                                                                                                                             



 claiming estoppel in defense of a claim of title to real property must show the following:  

                                                                                                                                                                                                                                               



                                          first, that the party making the admission by his declaration  

                                                           

                                          or conduct, was apprised of the true state of his own title;  

                                                                                                                                                                                          

                                          second, that he made the admission with the express intention  

                                                                                                                                                                                                           

                                          to deceive, or with such careless and culpable negligence as  

                                                                                                                                                                                                                               

                                          to amount to constructive fraud; third, that the other party  

                                                                                                                                                                                                                     

                                          was not only destitute of all knowledge of the true state of the  

                                                                                                                                                                                                                            

                                          title, but of the means of acquiring such knowledge[;] and  

                                                                                                                                                                                                                          

                                          fourth, that he relied directly upon such admission, and will  

                                                                                                                                                                                                                         

                                          be injured by allowing its truth to be disproved.[37]  

                                                                                                                                                               



                     36                   State v. Dupier                                 , 118 P.3d 1039, 1053 n.88 (Alaska 2005).                                                                        



                     37                   34 P.3d 336, 340 (Alaska 2001) (alteration in original) (quoting                                                                                                                                      Dressel v.   



 Weeks, 779 P.2d 324, 329 (Alaska 1989)).                                                                     



                                                                                                                                  -19-                                                                                                                          7307
  


----------------------- Page 20-----------------------

We also held that an estoppel claim may not be based on a government employee's                                                       

statement if the employee is "not apprised of the true state of the State's title."                                                         38  



                        Dickson and DeFusco identify 14 statements by governmental agencies  

                                                                                                                                            



asserting or implying that no easements existed on their property for either the Historic  

                                                                                                                                             



Iditarod  Trail  or  Homestead  Road.                                Ten  of  these  statements  relate  to  the  Mat-Su  

                                                                                                                                             



Borough's decision to vacate certain portions of the Historic Iditarod Trail on borough  

                                                                                                                                            



lands in the 1980s.  As explained above, however, the evidence supported the superior  

                                                                                                                                             



court's finding that this process was intended to apply solely to public lands and could  

                                                                                                                                                 



not have affected Dickson and DeFusco's property.  

                                                                                              



                        The superior courtalso rejectedDickson and DeFusco'srelianceon DNR's  

                                                                                                                                               



2008 memorandum responding to Dickson's decision to block Homestead Road.  The  

                                                                                                       



court described the memorandum as addressing only whether Homestead Road was part  

                                                                                                                                                     



of the Iditarod Trail system (and concluding it was not).  The court observed that the  

                                                                                                                                                      



memorandum did not assert a position on either of the two critical issues in the case:  

                                                                                                                                                             



whether an RS 2477 right of way existed elsewhere on Dickson and DeFusco's property  

                                                                                                                                            



and whether there was some other justification for the public's use of Homestead Road,  

                                                                                                                                                 



e.g., a prescriptive easement.  

                                                      



                        The superior court did not address every statement Dickson and DeFusco  

                                                                                                                                           



rely on for their estoppel argument.  We note, however, that there is no evidence - and  

                                                                                                                                                     



Dickson and DeFusco do not argue -that the government speakers on whomthey relied  

                                                                                                                                                             



were "apprised of the true state of the State's title" at the time they made the statements  

                                                                                                                                        

at issue.39         We conclude that the record supports the superior court's rejection of the  

                                                                                                                                                     



estoppel defense.  

                                  



            38          Id.  



            39          Id.  



                                                                          -20-                                                                         7307  


----------------------- Page 21-----------------------

                      2.         Laches  



                      Dickson and DeFusco also argue that the doctrine of laches bars the State's  

                                                                                                                                      



claims because the State unreasonably delayed asserting its right to either an RS 2477  

                                                                                



right of way for the Historic Iditarod Trail or a prescriptive easement for Homestead  

                                                                                                                              



Road.        "The  doctrine  of  laches  'creates  an  equitable  defense  when  a  party  delays  

                                                                                                                                      

asserting a claim for an unconscionable period' " and there is "resulting prejudice."40  

                                                                                                                                                   

"The trial court has broad discretion to sustain or deny a defense based on laches."41  

                                                                                                                                                



                      In rejecting a laches defense in this case, the superior court relied on our  

                                                                                                                                            



decision in Keener v. State, in which we held that the State is not required to bring suit  

                                                                                                                                           



to establish its property rights "simply because problems might arise" but only once the  

                                                                                                                                            

                                                                              42  Thesuperior court observedthat"[t]he  

landowner has "challenged theState'sinterest."                                                                                          

                                                                



State is under no obligation to vigorously defend all attempted blockages of R.S. 2477  

                                                                                                                                         



rights-of-way" and that "[t]o require otherwise would place an unreasonable burden on  

                                                                                                                                             



the State." The court noted that Dickson and DeFusco did not mount a serious challenge  

                                                                                                                                  



to the State's rights of way until 2012, when they filed their lawsuit, and the State  

                                                                                                                                         



asserted its claims two months later.  Under the circumstances, we cannot conclude that  

                                                                                                                                           



the superior court abused its broad discretion in deciding whether the laches defense  

                                                                                                                         



applied.  

                



           40         Offshore Sys.-Kenai v. State, Dep't of Transp. & Pub. Facilities                                          , 282 P.3d     



348, 354 (Alaska 2012) (quoting                         State, Dep't of Commerce & Econ. Dev., Div. of Ins.   

v.  Schnell, 8 P.3d 351, 358-59 (Alaska 2000)).                    



           41         Keener v. State, 889 P.2d 1063, 1066 (Alaska 1995).  

                                                                                                     



           42         Id. at 1067 (emphasis in original).  

                                                                 



                                                                     -21-                                                               7307
  


----------------------- Page 22-----------------------

                                                                                     

          D.	       The Superior Court Did Not Deny Due Process Through Procedural  

                                                 

                    And Evidentiary Errors.  



                                                                                                                     

                    Dickson and DeFusco argue that the superior court "committed numerous  



                                                                                                                               

evidentiary and procedural errors at trial that prejudiced [them] by denying them the  



                                                                                                                                

protections of due process."  Their arguments are only cursorily briefed, and none of  



                                                                                                

them persuade us that the superior court abused its discretion.  



                                                                                                                                 

                    First, Dickson and DeFusco argue that Beard-Weber, though designated as  



                                                                                                     

an expert in GIS, was nonetheless allowed over their objection to testify about "maps,  



                                                                                                                        

mapping, archaeology, dog mushing, surveying, history, photogrammetry, and LiDAR  



                                                                                                                               

technology." The State counters that everything Beard-Weber testified about either fell  



                                                                                                                               

within the purview of his expertise or was admissible as the fact testimony of a lay  



               

witness.  



                                                                                                                 

                    Second, Dickson and DeFusco argue that the superior court "improperly  



                                                                                                                             

admitted DNR's GIS database through Beard-Weber as an exhibit when it should only  



                                                                                                                             

have been allowed for demonstrative purposes" because the database included only  



                                                                                                                               

evidence favorable to the State's case and was therefore "akin to an expert report."  But  



                                                                                                              

Dickson and DeFusco do not contend that they lacked the opportunity to cross-examine  



                                                                                                                     

Beard-Weber about the database or to present their own contrary evidence.  



                                                                                                                                

                    Third,  Dickson  and  DeFusco  argue  that  the  superior  court  abused  its  



                                                                                                                               

discretion when it refused to enforce what they contend was DNR's agreement not to use  



                                                                                                                         

photos taken by Dickson's game camera to support its claims of public use. The alleged  



                                                                                                                 

agreement was contained in a 2012 letter froman assistant attorney general, encouraging  



                                                                                        

Dickson and DeFusco to allow public use of Homestead Road during the pendency of  



                                                                                                                        

the lawsuit and stating that "nothing occurring after the filing of this lawsuit is relevant  



                                                                                                                            

to whether or not an easement has or has not been created [o]n Homestead Road." Even  



                                                                                                                              

assuming this was a promise not to use later-discovered evidence, the State argues that  



                                                              -22-	                                                        7307
  


----------------------- Page 23-----------------------

                                                                                                                               

it used the game photos not to prove the existence of the easement but only to show "the  



                                                         

type, nature, and frequency of use."  



                                                                                                                                

                    Fourth, Dickson and DeFusco argue that they were prejudiced when the  



                                                                                                                      

court "allowed the State to amend its claims, at trial, on the record through the testimony  



                                                                                                                     

of a DNR employee, without notice" to them.   They do not identify the purported  



                                                                                                                                   

amendment except by reference to the transcript page at which it was made.  There, a  



                                                                                                                                 

DNR employee  corrected  several  dates  and  added  several  more  events  to  a  list  of  



                                                                                                                           

mushing and snowmachine races the State had first identified in its answer.  The record  



                                                                                                                                      

does not disclose any objection to these apparently minor corrections of the pleading.  



                                                                                                                                

                    Fifth,  Dickson  and  DeFusco  argue  that  the  superior  court  abused  its  



                                                                                                                              

discretion when it "allowed the State to present 17 days of evidence and testimony after  



                                                                                                                           

representing to the parties that each would have only 10 days to present their case, giving  



                                                                                                                              

DNR a considerable advantage."   Dickson and DeFusco assert that they rested after  



                                                                                                                        

seven  and  a  half  days  in  reliance  on  the  court's  time  allocation  and  were  unfairly  



                                                                                                                             

surprised when the court allowed the State to go substantially over time.   The State  



                                                                                                                              

points out in response that the court repeatedly offered Dickson and DeFusco more time  



                                                                                                                           

to present their case but they failed to take advantage of the opportunity, and on appeal  



                                                                                                                              

they do not identify any evidence or witnesses they did not have time to present.  



                                                                                                                      

                    Finally, Dickson and DeFusco contend that the court abused its discretion  



                                                                                                                             

when the State produced late-discovered evidence in the midst of trial and they were  



                                                                                                                      

denied a continuance to give them time to respond.  They do not identify the evidence,  



                                                                                                                       

the relevant time line, or how they were prejudiced, but the State describes the evidence  



                                                                                                                           

as "historicaerial imagery of the historic Iditarod Trail, the Dickson property, and nearby  



                                                                                                                                

vicinity" that came to light after a retired civil engineer and land surveyor read about the  



                                                                                                                        

trial in the newspaper and contacted the State. The State shared the photos with Dickson  



                                                               -23-                                                         7307
  


----------------------- Page 24-----------------------

and DeFusco within days but did not present the evidence at trial until nearly two months                                                                                                                                                                     



later, after both sides had ample opportunity to examine and prepare to testify about it.                                                                                                                                                                                               



                                           None of these arguments is supported by more than a sentence or two of                                                                                                                                                             



analysis or by anything other than conclusory allegations of prejudice.                                                                                                                                                                      We are not                   

persuaded that the superior court abused its discretion in any of the challenged rulings.                                                                                                                                                                                       43  



                                                                                                                                                                                                                                                                

                      E.	                  We Remand The Attorney's Fees Award For Specific Findings Under  

                                                                                                                                                                

                                           Alaska Civil Rule 82(b)(3)(I) And (J).  



                                                                                                                                                                                                                                                                             

                                           Finally, Dickson and DeFusco argue that the superior court abused its  



                                                                                                                                                                                                                                                                     

discretion  in  its  award  to  the  State  of  approximately  $225,000  in  attorney's  fees,  



                                                                                                                                                                                                                                                                          

calculated  under  the formula of Alaska  Civil Rule 82(b)(2)  for  cases in  which  the  



                                                                                                                                                                                                                                                                     

prevailing party at trial recovers no money judgment. They argue that the superior court  



                                                                                                                                                                                                                                                 

 should have varied from the formula by applying Rule 82(b)(3)(I) and (J).  Subsection  



                                                                                                                                                                                                                                      

 (I) allows a variance if the award would otherwise be "so onerous to the non-prevailing  



                                                                                                                                                                                                                                                            

party that it would deter similarly situated litigants from the voluntary use of the courts,"  



                                                                                                                                                                                                                                                                           

and subsection (J) allows a variance to "the extent to which the fees incurred by the  



                                                                                                                                                                                                                                                                           

prevailing party suggest that they had been influenced by considerations apart from the  



                                                                                                                                                                                                                                                               

case at bar, such as a desire to discourage claims by others against the prevailing party."  



                                                                                                                                                                                                                                                                               

                                           Dickson and DeFusco relied on subsections (I) and (J), among others, in  



                                                                                                                                                                                                                                                                  

their opposition to the State's motion for attorney's fees. They pointed to several public  



                      43                   Dickson and DeFusco also contend that the superior court "improperly                                                                                                                              



applied the law" when it found their testimony "biased and self-interested."                                                                                                                                                                           But they  

also assert that "[a]ll party-witnesses, including DNR's employees, are biased," and their                                                                                                                                                                             

argument   is   thus   that   the   court   should   have   found   both   sides'   witnesses  equally  

unreliable.    "We will grant especially great deference when the trial court's factual                                                                                                                                                                       

 findings require weighing the credibility of witnesses and conflicting oral testimony."                                                                                                                                                        

Bigley v. Alaska Psychiatric Inst.                                                                            , 208 P.3d 168, 178 (Alaska 2009) (citing                                                                                                   Vezey v.   

 Green, 171 P.3d 1125, 1128-29 (Alaska 2007)).                                                                                                             We see no reason to second-guess the                                                                             

trial court's credibility determinations.                                 



                                                                                                                                     -24-	                                                                                                                            7307
  


----------------------- Page 25-----------------------

 statements by representatives of the State, including a slideshow presentation by the                                                                                                                                                                                                                                                                                               



Department of Law explaining RS 2477 and the importance to the State of identifying   



and preserving a system of public rights of way.                                                                                                                                                                                     The presentation noted the recent                                                                                                 



efforts of DNR and the Department of Law to "further develop[] and refine[] Alaska's                                                                                                                                                                                                                                                                        



R.S.   2477   prosecution   strategy,   including:     careful   selection   of   initial   claims   to  



prosecute," and it identified                                                                                                    Dickson v. State                                                                 as one of the RS 2477 cases in active                                                                                                                



litigation. Dickson and DeFusco also cited legislative testimony by a DNR manager and                                                                                                                                                                                                                                                                                               



an assistant attorney general; the two men gave the slide presentation to a joint meeting                                                                                                                                                                                                                                                                      



of the House and Senate State Affairs Standing Committees and explained the State's                                                                                                                                                                                                                                                                                 



"careful selection of initial claims to prosecute in order to avoid establishing bad case                                                                                                                                                                              



law."   



                                                            The superior court did not address these arguments in its order granting                                                                                                                                                                                                                         



attorney's fees.                                                      After subtracting the cost of unexplained paralegal work from the total                                                                                                                                                                                                                                  



fees claimed by the State, the court applied the formula of Rule 82(b)(2) without any                                                                                                                                                                                                                                                                                             



variance.  Ordinarily our review would stop there.  "[A]wards of attorney's fees made   



pursuant to the schedule set out in Rule 82 are presumptively correct, and the superior                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                       44          But this is the rare case in  

court need not make any findings in support of the award."                                                                                                                                                                                                                                                                                                                                 



which we find we need an explanation of the award in order to aid our appellate review.  

                                                                                                                                                                                                                                                                                                                                                                                                        



That something is "presumptively correct" does not mean it is unassailable, but only that  

                                                                                                                                                                                                                                                                                                                                                                                   



the burden - and sometimes a heavier than usual burden - is on the party challenging  

                                                                                                                                                                                                                                                                                                                                               



                              44                             Greene  v.  Tinker,  332  P.3d  21,  41  (Alaska  2014).  



                                                                                                                                                                                         -25-                                                                                                                                                                                 7307  


----------------------- Page 26-----------------------

     45  

it.       We have implied that an attorney's fees award that is presumptively correct may be                                                                                                    

set aside for "compelling reasons."                                             46  



                              Two unique circumstances of this  case  persuade us that there may be  

                                                                                                                                                                                               



compelling reasons to overcome the award's presumption of correctness. The first is the  

                                                                                                                                                                                              



sheer size of the award; for most private parties an award of over $200,000 would have  

                                                                                                                                                                                          

the deterrent effect addressed by Rule 82(b)(3)(I).47   The second is the unusual evidence  

                                                                                                                                                                                 



that the State selected and devoted resources to RS 2477 cases like this one that it hoped  

                                                                                                                                                                                      



would be precedential.  That is a perfectly reasonable strategy for any potential litigant  

                                                                                                                                                                                     



facing  a  number  of  similar  claims,  but  Rule  82(b)(3)(J)  recognizes  the  potential  

                                                                                                                                                                                



unfairness of imposing the strategy's entire burden on the non-prevailing party in the test  

                                                                                                                                                                                              



case.  

             



                              We remand  the attorney's fees award  for  the superior  court's express  

                                                                                                                                                                                   



consideration of whether Rule 82(b)(3)(I) and (J) justify variance of an award calculated  

                                                                                                                                                                              



               45             See, e.g.          ,   Wagner v. Wagner                          , 386 P.3d 1249, 1253 (Alaska 2017) ("Equal                                          



division of marital assets and liabilities is presumptively correct, but the superior court                                                                                              

may   vary   this   formula   in   order   to   reach   an   equitable   distribution   .   .   .   ."   (footnote  

omitted));     Bromley v. Mitchell                                        , 902 P.2d 797, 802 (Alaska 1995) ("A domiciliary                                               

plaintiff's   choice   of   forum   should   be   considered   presumptively  correct   unless   the  

defendant can demonstrate that the plaintiff's right to choose is outweighed by other                                                                                                    

factors.");   City of Wasilla v. Wilsonoff                                              , 698 P.2d 656, 658 (Alaska 1985) ("The party                                                    

challenging   the   assessment   [for   a   municipal   improvement]   bears  the   burden   of  

overcoming the presumption of correctness.").                                                               



               46              Williams v. Fagnani, 228 P.3d 71, 77 (Alaska 2010) ("Our review of the  

                                                                                                                                                                                              

record does not show the existence of compelling reasons to overcome the presumption  

                                                                                                                                                                         

of correctness that is afforded to attorney's fees awards under Rule 82(b).").  

                                                                                                                                                          



               47             See  Bozarth  v.  Atl.  Richfield  Oil  Co.,  833  P.2d  2,  5-7  (Alaska  1992)  

                                                                                                                                                                                       

(Matthews, J., dissenting in part) (discussing impact of "financially ruinous" attorney's  

                                                                                                                                                                               

fees awards on citizens' constitutional right of access to the courts to litigate good-faith  

                                                                                                                                                                             

claims).  



                                                                                              -26-                                                                                       7307
  


----------------------- Page 27-----------------------

pursuant to the formula of Rule 82(b)(2). The superior court has discretion to decide the                                                                                                                                                                                                                                                                                                                                                                                                                



issue on the existing record or to request further evidence and argument from the parties.                                                                                                                                                                                                                                                                                                                                                                                       



V.                                      CONCLUSION  



                                                                              We AFFIRM the superior court's decision on the merits following trial.                                                                                                                                                                                                                                                                                                                                                                          



We REMAND the superior court's award of attorney's fees for further consideration                                                                                                                                                                                                                                                                                                                                                         



 consistent with this opinion.                                                                                                                                            



                                                                                                                                                                                                                                                                     -27-                                                                                                                                                                                                                    7307
  

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