Who Owns McCarthy’s Streets?

The New Golden Saloon in downtown McCarthy. Photo by Allison Sayer.

by Allison Sayer

Downtown McCarthy’s streets have been the subject of a convoluted legal battle involving McCarthy Ventures (MVL), better known as the LLC that owns the New Golden Saloon. This is also a story of three different generations of the Barrett family conveying McCarthy’s streets to the public. 

The Saloon was granted permission to expand its licensed premises in 2020 to accommodate pandemic-era demand for outdoor seating. The expansion was first to a newly constructed deck and then to an MVL-owned lot separated from the building by a street: Barrett Way. In the proposal for expansion, MVL claimed the whole area was on its existing property. In 2021, the Alcohol and Marijuana Control Office (AMCO) granted a request to make the expansion permanent. 

The Saloon hosted various events with live music in the new configuration. Musicians often performed on a stage on the lot across Barrett Way, with patrons seated on the outdoor deck attached to the building or viewing the band from the street itself. 

In spring 2022, area resident Stephens Harper submitted a complaint alleging, among other issues, that the business was regularly blocking a public street: Barrett Way. Numerous private photos and MVL’s own images used in the permitting process show a section of Barrett Way cordoned off for events. 

In spring 2023, after an AMCO investigation, the Alcoholic Beverage Control (ABC) Board voted to eliminate approvals for the 2020 and 2021-approved outdoor spaces, except for the outdoor deck. The alcohol license holder must be able to control the entire area where alcohol is served. AMCO stated The New Golden Saloon could not legally do that on a public street connecting the two properties. 

MVL filed a motion for summary judgment in August 2023 requesting its license continue to include the outdoor service areas approved in 2020 and 2021. Its central argument was that part of Barrett Way belonged to the Saloon. Furthermore, in an affidavit, MVL partner Neil Darish indicated other portions of the downtown streets and alleyways adjacent to MVL’s various properties had been conveyed to him. 

The motion was referred to the Office of Administrative Hearings (OAH). Numerous McCarthy residents and the McCarthy Area Council (MAC) submitted affidavits to OAH disputing MVL’s claimed ownership of any portion of the streets. They also disputed a claim in Darish’s statement that Barrett Way is a dead end, which is demonstrably false. 

Area homeowner Jeremy Pataky explained by phone his concerns were not limited to just  cordoning off Barrett Way during an event. His major concern was: If MVL could claim to own a section of road between his home and the rest of Alaska, it could lead to problems with access to or financial transactions involving his land. 

On January 19, the OAH issued a proposed decision advising the ABC Board to limit the New Golden Saloon’s alcohol license to the building and a new deck. In the process, OAH Judge Garner denied MVL can claim ownership of Barrett Way.

MVL’s claim rested in part on a quitclaim deed filed by Paul Barrett in 2016. Paul Barrett’s grandfather John Barrett staked the land that would become McCarthy as part of his homestead in 1906. 

In 2008, Paul Barrett asserted he had authority over the streets as part of his inheritance, and conveyed them to an LLC, McCarthy Roads. I asked former Wrangell Mountain Air owner Kelly Bay about his experience with McCarthy’s streets during the period between 2008 and 2016. He recalled he had had a garden which extended “about six inches” into the street, and “Paul noticed.” He said Barrett also complained about vehicles parked in the street. 

I asked Bay whether he had any issues with developing his properties, borrowing money for his business, or ultimately selling any of his property due to issues involving street ownership. He said none of that was an issue. Overall, he gave the impression that Barrett’s claim on the streets was trivial in the course of his business. 

In 2016, a dispute arose between Barrett and Darish that involved the use of McCarthy’s streets and a deal with a third party. This led to MVL suing Barrett.  

Paul Barrett and Darish settled, and Barrett signed a quitclaim conveying any interest in “all of the streets, avenues and alleyways within the Townsite of McCarthy… to the property owners and the public."

According to Darish, when he attempted to submit the deed for recording, the Recorder’s Office would not accept it without an “identifiable grantee.” Darish then added his name and MVL’s business address in pen to the document after it was signed by Paul Barrett and notarized. MVL also pointed out that the document conveyed the streets not just to the public but to “property owners and the public.” 

The court did not find it plausible that the intent of the 2016 quitclaim was to grant privileged interest in any of McCarthy’s streets to MVL. AMCO submitted an affidavit from Paul Barrett stating his intent was to “transfer any interest we had in the streets to the public and the McCarthy Townsite property owners.” 

I reached out to Barrett via email to confirm whether or not he intended to convey any part of Barrett Way to MVL in his quitclaim. His reply was, “Of course not!” 

According to Judge Garner, the 2016 document is also moot, because the streets of McCarthy were not Paul Barrett’s to give away. 

In his decision, Judge Garner referenced the 1884 Alaska Organic Act by Congress: “the general laws of the State of Oregon now in force are hereby declared to be the law in said district [the pre-statehood Territory of Alaska].” 

Oregon property law stated, “when a landowner laid out a townsite... he thereby dedicates to the public the streets and public places thereon,’ with those areas incapable of ever being ‘appropriated by the owner to a use inconsistent with that represented by the map upon the faith of which the lots are sold.’” Furthermore, “’the sale of a single lot’ within a townsite was sufficient to complete this dedication.”

The decision states, “Since Barrett Way was irrevocably dedicated to the public under applicable common law principles when John Barrett carved out a portion of his homestead for the McCarthy townsite and began marketing lots within it, that street remains an area dedicated to the public for use as a right-of-way.”

Some early McCarthy records were either never filed or destroyed in a 1949 fire at the Chitina Recording office. Judge Garner found this irrelevant because John Barrett’s creation of the townsite is “an indisputable historical fact.”

There is also a record of John Barrett’s son, Laurence, dedicating McCarthy’s streets to the public.  

In 2022, MAC hired a private attorney to research McCarthy’s streets with the leadership of local resident Michelle Raven. 

Van Loan advised that Laurence Barrett’s statement in a 1979 retracement survey commissioned by the Barrett family supported the claim that the streets are public. 

Laurence Barrett explicitly “dedicated all streets, avenues and alleyways, as shown on this plat to public use.” Van Loan explained that “plat” was somewhat of a misnomer because the action undertaken in 1979 was not a plat but a “retracement survey.” However, Van Loan stated that the document could still be considered binding under “the law of conveyance” because the statement contained a clear intent and a clear recipient: the public.  

Oddly, MVL is not only aware of both of these legal arguments but has used both of them in court. In the 2016 complaint filed against Paul Barrett and McCarthy Roads, LLC by MVL, the 1979 conveyance of McCarthy’s streets to the public by Laurence Barrett is quoted verbatim. The complaint also stated, “All streets, alleys and other public areas were dedicated to the public” in 1917 by John Barrett.  The 2016 suit was not for ownership of the streets, but to dispute Paul Barrett’s claim they were his private property.

MVL submitted a proposal for action to the ABC Board on February 12, 2024 requesting that the board reject the OAH proposed decision. 

MVL asserts it should be able to continue serving alcohol within the 2021 boundaries. It also continues to assert it can claim ownership of the portion of Barrett Way adjacent to the bar.

MVL claims the streets could not have been conveyed to the public without the State of Alaska accepting the land as public. It also continues to insist the 2016 quitclaim conveyed portions of the streets adjacent to its property to MVL, despite Paul Barrett’s repeated statements to the contrary. Finally, MVL asserts the 2021 AMCO decision to include part of Barrett Way in its licensed premises and the Saloon’s past use of the street constitute precedents establishing its ownership.

The ABC Board has not yet issued a decision on whether to adopt the OAH’s proposed decision.

It should be noted that although Stephens Harper was working for the National Park Service until 2023, he was representing himself and not NPS in his complaint. 

I reached out to Neil Darish for comment. He stated he did not currently want to speak on the record.