A decision has been made in a Haines land use dispute between local subsistence fishermen and private landowners. Fishermen will be able to continue driving to a spot on the Chilkoot River to fish for hooligan.
“In some ways it represents a good balance,” says Rosalie Loewen, one of the landowners involved in the case, “Between how the community wants to use this land, what’s important to the larger community. And also the rights that a private property owner has.”
The case is Reuben and Rosalie Loewen versus the State of Alaska Department of Natural Resources and intervenors, and there is one big question at the heart of it: should local subsistence fishermen be allowed to drive their vehicles to a spot they’ve traditionally used on the Chilkoot River to fish for hooligan?
The answer, according to Superior Court Judge Phillip Pallenberg, is yes. Last week, he decided there is a prescriptive public easement over a trail on the Loewen’s land that leads down to the river. That decision will allow fishermen to continue driving down to the river to access the hooligan fishery in the spring. And for those few weeks during the spring, the Loewens cannot interfere with that access.
Attorney Kristen Miller represented several Native groups that intervened in the trial. The groups include Sealaska, the Chilkoot Indian Association and the Alaska Native Brotherhood.
“We’re very pleased and we hope this will put an end to the longstanding dispute over our right to access that river as we always have,” says Miller.
There has been conflict at the spot for several years that involves the Loewens obstructing the trail to prevent vehicle access. Local residents would then remove the road blocks and continue driving down to the river. The back-and-forth led to a verbal altercation last year.
In 2013 the Loewens sought to clarify their property line based on the natural changes of the river. The process they sought out is called quiet title, which would protect the land from anyone else claiming ownership. They hoped to gain quiet title to accretions on two pieces of their property along the Chilkoot. One piece of that land includes the trail fishermen use to access the river.
Rosalie Loewen says other property owners in the area have been through the accretion process, and originally it was a way to properly establish a right-of-way on their land. They ultimately withdrew their claim to quiet title on the piece of land where the trail lies. But the fishermen’s right to access that land was still a question in the case.
That path has historically been used by subsistence fishermen to access the hooligan fishery, including the use of vehicles for many years. That’s where the three Native agencies come in. They intervened in the case, saying Native Americans have been using the land in question for subsistence fishing for hundreds of years. And, they say they need to be able to drive down to the river to accommodate the elderly, and to help haul fish back up.
Miller says the main issue they fought for was protecting and preserving subsistence rights to fish on the Chilkoot River.
“We basically not only achieved the preservation of those rights but also the preservation of using vehicles to get to the river so elders and those with disabilities could continue to participate in this annual group event,” says Miller.
The Loewens say they are not against the use of their land for fishing. The problem is the cars that may disturb the habitat. Rosalie Loewen says she hopes the property will be respected, even though the judge’s decision permits vehicle use during the hooligan season.
“But we want to ask that people do that in as sensitive a way as possible,” says Loewen. “To be respectful of the environment and of our wishes. And to choose not to use cars to come down when they’re hooligan fishing. To choose to walk if they can and that will limit erosion and the potential for contamination of this area, which is pretty sensitive.”
The Loewen’s recognize the importance of the hooligan fishery, and say they hope to have open communication with the community about the issue. Still, Rosalie says it is hard lose control over a piece of their own property.