It was dusk on a frigid January at the height of the Second World War when an American bomber plane, en route to defending Alaska, crashed in the Yukon.
One account says the B-26 Marauder landed on a frozen lake, another has it skidding down a runway and into an embankment.
At some point, the nose of this hulking warbird ended up at the bottom of Watson Lake, which is where it sat, forgotten, for more than 60 years -- until two brothers from Alberta hauled it up this spring.
But the warbird's fate is up in the air, again, caught in a power struggle between the brothers who say they have rightfully salvaged it, and the territorial government that says the plane is its to keep. The unusual legal battle that follows could decide if wrecks fall under federal shipping laws, or territorial heritage laws.
Brian and John Jasman are accused of excavating without a permit under the Yukon Territory's Historic Resources Act.
The territory's position is simple: "[Military relics] are a finite resource," says Jeff Hunston, manager of the territory's heritage resources unit. "We'll determine what happens to it, since we own it."
He says salvagers usually recover these items and sell them on the lucrative warbirds' market to private collectors or museums far away from where they landed.
The plane may be a rare find, but it is a mass-produced item that does not warrant archeological protection, counters Darren Williams, the Jasmans' lawyer.
He says his clients did nothing wrong and challenges the territory's jurisdiction, since Yukon lakes belong to the Crown.
The Jasmans say they obtained a letter from the U. S. Air Force in which it relinquished any claim to the Marauder and the Canadian government has raised no opposition to their claim, said Mr. Williams, a Victoria-based litigator who practises marine and admiralty law.
In another rare legal manoeuvre, he said his clients are suing the Marauder in an attempt to compel the federal government to give it to them. Mr. Williams said suing the plane asserts a salvage claim, in which case the government could decide to cover the brothers' expenses, or hand over the plane if it is valued at less than what it cost to pull it up.
The first court appearance is July 14.
"That airplane has been there for 67 years on the bottom of the lake, all the steel parts have disintegrated and all that's left is the aluminum," said John Jasman, 48, in a telephone interview from his home in Edmonton. "Another 30 to 40 years, there is going to be nothing there to salvage. It doesn't make any sense to leave it there."
He would like to see it in a museum one day, with his family's name engraved on a plaque explaining who found it.
It would be a poignant tribute to his deceased father, Allan, an aircraft engineer and bush pilot who would spin tales of military planes that had gone down along a stretch of the Yukon that was a common route to Alaska during the Second World War. It was Allan's dream to find one, and it became his boys' dream, too.
Their early expeditions to Watson Lake, just north of the B. C. border, produced an awful lot of oil drums, but also an unexploded rocket, which the men promptly sent back underwater. Then last year, three years after their father had passed away, the brothers revived their old past time, and hit the jackpot: "It's a bomber," Brian Jasman, 44, said gleefully, after diving under water and standing on the roof of the plane. They returned home to Alberta, giddy at the prospect of pulling out historical gold.
Brian, the researcher of the team, checked military records he ordered from the Smithsonian and determined the plane was likely a B-26 that had been nicknamed the Flying Prostitute because its small wings gave it no visible means of support. The brothers believe it landed on a frozen Watson Lake on Jan. 16, 1942 and eventually sank.
Mr. Hunston says historical records show the nose was severed from the plane after it crashed on the runway and there's nothing else in the water.
The brothers returned to the Yukon this spring with John's wife and 13-year-old son, and managed to pull the nose of the plane up to the surface with the help of water tanks.
"Most jurisdictions wouldn't allow people to come in and essentially pillage their past, and move it somewhere else," said Mr. Hunston, also an archeologist.
"Yukoners have been quite explicit that they want their heritage here in the Yukon, for the benefit of residents, as well as visitors. They don't want it in Arizona, Toronto, Saint John's, wherever. It belongs here in the Yukon, in context."
He said a P39 Airacobra that was removed from the Northwest Territories now sits in an air museum in Oregon.
Mr. Hunston added the government did not know of the Marauder before the brothers found it.
"We're not interested in just yanking things out of the lake and throwing them in the museum and incurring all sorts of costs to the public, without any sort of rhyme or reason."
The case appears to turn on whether or not a court believes a wreck falls under the jurisdiction of the territorial government, or the federal government.
The issue came up in Newfoundland in 2001, says Mr. Williams, but he said a court never ruled on whether salvage rights trump provincial heritage laws because the B-28 bomber in question was never salvaged.
nalcoba@nationalpost.com
http://www.nationalpost.com/news/story.html?id=1750648
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