United States District Court, D. Alaska
ORDER RE: MOTION FOR SUMMARY JUDGMENT AT DOCKET 332
RALPH R. BEISTLINE, UNITED STATES DISTRICT JUDGE
I. PENDING MOTION
At Docket 332 Defendants Kurt Kanam and Scott Wood, appearing pro se, filed a Motion for Partial Summary Judgment. Plaintiff Carey Woods, also appearing pro se, has opposed the motion,  and Defendants have replied.
The Court having determined that oral argument would not materially assist in resolving the issues presented, the matter is submitted for decision on the moving and opposing papers without oral argument.
Summary judgment is appropriate if, when viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment in its favor as a matter of law. Support and opposition to a motion for summary judgment is made by affidavit made on personal knowledge of the affiant, depositions, answers to interrogatories, setting forth such facts as may be admissible in evidence. In response to a properly supported motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue of material fact for trial. The issue of material fact required to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial. In order to show that a genuine issue of material fact exists a nonmoving plaintiff must introduce probative evidence that establishes the elements of the complaint. Material facts are those that may affect the outcome of the case. A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment." The evidence of the non-moving party is to be believed and all justifiable inferences are drawn in his favor. The moving party has the burden of showing there is no genuine issue of material fact; therefore, he or she bears the burden of both production and persuasion. The moving party, however, has no burden to negate or disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only point out to the Court that there is an absence of evidence to support the non-moving party's case.There is no genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the motion.
In general, in ruling on a motion for summary judgment, a court may not weigh the evidence or judge the credibility of witnesses. Instead, it generally accepts as true statements made under oath. However, this rule does not apply to conclusory statements unsupported by underlying facts,  nor may the court draw unreasonable inferences from the evidence. “To survive summary judgment, a plaintiff must set forth non-speculative facts, not sweeping conclusory statements.”
III. ISSUES PRESENTED
In his Complaint Mills alleges that Wood and Kanam have denied him access along the Fortymile Station-Eagle Trail (RST 1594) (hereinafter “Fortymile Trail”). In their motion Wood and Kanam request relief in the alternative: (1) the claims against them be dismissed because neither of them have explicitly denied Mills access; or (2) alternatively, Mills submit a physical evaluation demonstrating his ability to physically traverse the Fortymile Trail to the extent it crosses the mining claim currently held by Kanam.
As the Court has made clear in prior orders the issue before it is whether or not the Defendants have unlawfully impeded Mills right of access of the Fortymile Trail as a member of the general public, a question upon which Mills bears the burden of proof. In their affidavits Wood and Kanam have denied that they denied Mills access along the “telegraph wire trail.” The Court assumes in the absence of any apparent controversy over the question, that the “telegraph wire trail” is the Fortymile Trail.
Initially the Court addresses the second issue raised by Wood and Kanam: Mills’ capability to physically traverse the Fortymile Trail. Whether or not Mills personally has the physical capability to traverse the Fortymile Trail is irrelevant. The access Mills seeks is access along the route of the Fortymile Trail to his mining claims. That right of access, to the extent it may exist, extends not only to Mills personally, but to his agents, employees and assigns as well. Thus, the Court rejects Defendants’ argument on that issue.
Second, the Court again declines to address what appears to be a continued attempt by Mills to challenge the validity of the Wood/Kanam mining claims. That issue is not properly before the Court.
In his affidavit Wood refers to the area traversed by the “telegraph wire trail” as being “overgrown bush” and “through some of the ...