Could an arcane law help land owners affected by the December disaster?

Wendie Marriott and Bern Savikko’s Beach Road cabin was leveled by the December landslide. “It was smack dab in the middle of the slide,” Marriott said. Now “it’s a pile of boulders and tree stumps and mud and rock and debris… Everything is just gone.”

But Marriott, who lives mostly in Juneau, suspects a state law that hasn’t been invoked in three decades might entitle her and Savikko—and other Haines residents—to new land.

Marriott and Savikko’s property was one of seven directly hit by the landslide, including the homes of David Simmons and Jenae Larson, who died. Several other properties on Beach Road and around the community were damaged by slides or flooding. Now, Marriott is leading an effort to initiate a land exchange with the Alaska Department of Natural Resources (DNR) under state statute 38.05.870, “Grants of Land After Natural Disaster.”

The law, drafted in 1967, authorizes the department to grant state parcels to owners of private land rendered unusable by a natural disaster. But it has been applied after only two disasters in the state’s history: the 1964 earthquake and the 1992 Matanuska River flood, according to state records obtained by the CVN. Of the 178 individual cases in which the law has been invoked, 176 were in response to the earthquake and only two after the flood.

“That law hasn’t been used very often because we don’t usually have natural disasters that render the land useless,” said Rachel Longacre, chief of the land conveyance section at DNR’s Division of Mining, Land and Water. Longacre is working to figure out whether, and how, the law can be applied to Haines—which residents qualify and what state land would be made available to exchange.

Part of the challenge of applying the law is determining whether land has been rendered “unusable,” as the statute requires. In the ‘64 earthquake and ‘92 flood, Longacre said, “the land was dissolved into the abyss. It was very, very clear that that land was no longer usable.” But in the case of Haines, the land is still there; it’s just covered in rubble, and several properties are below a slope that researchers worry is still unstable.

Longacre said the state is awaiting the geotechnical study findings report, due out in January, from the Alaska Department of Transportation and Oregon-based contractor Landslide Technology. The report, she said, will help establish which land qualifies for a swap. DNR is also working with the state Department of Law to interpret the statute’s language, particularly the word ‘unusable.’

“It’s all going to hinge on that January report,” Longacre said.

After the state determines which Haines properties are eligible, it will work to establish which state lands are available to swap. The law holds that the state must “as nearly as possible grant land of equal size, or value or of equal utility” as the land rendered unusable.

“Let’s say (someone’s) land was valued at $100,000 (before the disaster). The first thing I would look at is (state) land valued from $80,000 to $120,000, and what is its utility? Does it have some of the aesthetics of what (their) previous parcel had?” Longacre said. The law doesn’t cover damaged structures or other developments on a property—only the land itself.

Furthermore, DNR can grant land from anywhere in the state. In the past, parcels were made available that weren’t in the affected community. “What’s unique to Haines in particular is that the state does not have land in the area that is available for this type of conveyance,” Longacre said. Much of the state land in the Haines Borough is legislatively locked-up. For example, DNR can’t grant any land in the Alaska Chilkat Bald Eagle Preserve (without the action of the state legislature).

Longacre said land made available for Haines property owners might be in Sitka, Willow, Fairbanks or elsewhere. “I’m going to do my very best to make sure it has as similar a use as possible,” she said. “How do I help somebody who had a honeycrisp get as close to a honeycrisp as possible, not just an apple?”

Marriott estimates the damage to her property amounts to a $200,000 loss. She acknowledged that “pales in comparison” to the loss of her neighbors’ lives. Even if she and Savikko are deemed eligible for a land swap, she said they aren’t sure they’ll take it. “Not a single person (affected property owner) I’ve spoken with is definitive about what they’re going to do,” Marriott said.

For one, Savikko isn’t keen on the idea of a land exchange. “I love Haines. And getting a land swap for something that’s inaccessible in Fairbanks—to me it’s not comparable,” he said.

Marriott is more open to the idea of a swap, although she said she and Savikko are “shopping around” for other properties in Haines. “We really want to stay connected there,” she said.

Still, Marriott’s interest in the statute has prompted the state to reevaluate how application of the rarely-invoked law works. “The previous procedures did not take into account the situation that we’re in today,” Longacre said, acknowledging that every disaster, and disaster response, is different. Whether or not Marriott and Savikko or local property owners go through with the swap, the process of determining how it applies could help Alaskans down the road.