Case Status: Cert Petition Pending
Alaska’s Power Grab Threatens Family’s Access to Home
Fiehler v. Mecklenburg
Update
The U.S. Supreme Court will consider the Fiehlers’ case a second time during the justices’ private conference on June 26, when they could take a final vote on whether to hear the case.
In January, the justices followed CIR’s recommendation and asked the U.S. Solicitor General (SG) for his views on the case. On May 27, the SG filed a brief that forcefully rejected the Alaska Supreme Court’s decision we are challenging. Two weeks later, we filed a response to the SG’s views on behalf of the Fiehlers.
The High Court’s request for SG’s views is a rarely used option when four or more justices want to know the federal government’s position on an important issue of federal law. Since four justices may also trigger full Supreme Court review, the initial call for the SG’s views is especially encouraging to the Fiehlers.
The Alaska court altered Vern and Levi Fiehler’s federally drawn, bay-front property lines, effectively cutting them off from reasonable access to their home. The SG’s brief carefully refutes every argument offered in support of the state court decision and explains how it contradicts more than a century of Supreme Court precedent. Statutes dating to 1785 and a series of Supreme Court rulings provide that federal land surveys are “unassailable” in state courts. The SG explained that people who own former federal property should be able “to rely on clear, fixed boundaries established by federal survey monuments.”
The SG cautioned that “if the Alaska Supreme Court’s decision is followed, litigants will be forced to rely on experts” to opine on the original locations of federal property markers “100 or even 500 years (or more) after a federal survey.” The SG also warned that the Alaska ruling “has the potential to create significant practical problems affecting ownership of surveyed lands.”
While the SG ultimately recommended that the Supreme Court wait to correct the error until the scope of the problem was clear, the SG said the question was close and that the justices “could reasonably grant review.” In the Fiehlers’ response, CIR embraced the SG’s reasoning in practically all respects, including that the problem would “only grow this time,” and explained other reasons why prompt Supreme Court review was imperative.
Meet the Fiehlers
Family Home Under Threat
Vern Fiehler’s house sits on a parcel of land in Tee Harbor, near Juneau, Alaska. His plan was to give the family home to his son Levi, who has already invested some of his own earnings into preserving the property, but following an unconstitutional judicial opinion urged by the state government, the Fiehlers may lose all reasonable access to their house.
Like many homes in Alaska, the Fiehlers’ house sits on a plot that is largely inaccessible except by boat–separated from the nearest road by half a mile of northern wilderness. The water can be quite turbulent, and the small beach in front of their house provides the only point of access and departure on the otherwise rocky shoreline.
Anthony and Catherine Mecklenburg, neighbors on an abutting parcel, wanted to expand their own beach access and filed suit in state court challenging the property lines that were established by a federal surveyor nearly a century ago.
As with most land in Alaska, the federal government once owned both the Fiehlers’ home site and the Mecklenburgs’ parcel. Through a pair of Homestead Acts, a federal surveyor mapped the land around Tee Harbor, and in 1938, surveyed the two lots now at issue. The property line was marked by a brass cap that stands as a marker to this day.
The Mecklenburgs hired a surveyor to try to prove that the 1938 federal surveyor erred in marking the adjoining property boundaries with a brass monument. Alleging that the federal government had improperly surveyed the land, the Mecklenburgs proposed a revision to the property lines that would completely block the Fiehlers’ beach access.
Alaska’s Overreach
Contrary to two centuries of federal precedent, the Alaska Supreme Court affirmed a decision to redraw the property lines in favor of the Mecklenburgs and strip the Fiehlers of their critical beach access. Over the 19th century, the Supreme Court developed a clear and durable rule deeply rooted in the federal government’s power to regulate new territories, now known as Cragin’s Rule, that the federal government’s surveys are “unassailable” by the states.
To populate the expanding western frontier of the United States, the federal government set up firm legal guardrails to protect homesteaders from the potential predations of future state actors. It commissioned its own surveyors to protect federally established property rights for anyone brave enough to leave the comforts of the developed areas and tame the new territories.
As practical as it is principled, Cragin’s Rule honors this vital American policy by protecting property owners’ reliance on federal property boundaries from subsequent revisions by establishing the federal surveyors’ findings as the final word.
As the Fiehlers’ case illustrates, homesteaders rely on this federal protection to this day. Congress has disposed of approximately 1.3 billion acres of public land. If others imitate Alaska and disregard traditional federal surveys, millions of Americans, especially in 37 non-original states, will be vulnerable to uncertainty regarding their property. The mischief would be “incalculable” as one court put it.
Despite this history and longstanding Supreme Court precedent, the Alaska government took Mecklenburgs’ side in the dispute and successfully urged the state court to overturn the original federal survey. The decision is contrary to both the Constitution and the findings of 11 state courts and a federal court of appeals.
Supreme Court Challenge to Government Power
CIR has teamed up with veteran Supreme Court advocate Kannon Shanmugam of Paul, Weiss, Rifkind, Wharton & Garrison LLP —who has argued 38 cases in the Supreme Court—to file a petition for writ of certiorari in the Supreme Court on the Fiehlers’ behalf. The joint weight of the constitutional significance of the case, the reputation of our illustrious co-counsel, and Alaska’s conflict with other courts on this issue, gives us every reason to hope that the Supreme Court will hear the Fiehlers’ righteous case.
Fiehler is the second case in CIR’s Project to Restore Competitive Federalism. The case highlights the need for a strong defense of individual rights from both federal and state government abusive overreach.