HB 194: "An Act vacating a portion of the Copper Center-Valdez right-of-way; and relating to rights-of-way acquired under former 43 U.S.C. 932 that cross land owned by an Alaska Native corporation."
00 HOUSE BILL NO. 194 01 "An Act vacating a portion of the Copper Center-Valdez right-of-way; and relating to 02 rights-of-way acquired under former 43 U.S.C. 932 that cross land owned by an Alaska 03 Native corporation." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 06 to read: 07 LEGISLATIVE FINDINGS AND INTENT. (a) The legislature finds that 08 (1) the federal mining law of 1866 granted a "right-of-way for the construction 09 of highways over public lands, not reserved for public uses"; this right-of-way provision was 10 codified in sec. 2477 of the Revised Statutes of the United States, and is referred to as R.S. 11 2477; 12 (2) rights-of-way were established in the state under R.S. 2477 through use 13 and development until virtually all federal land in the state was withdrawn when Public Land 14 Order 4582 was issued on January 17, 1969, which placed all federal land in the state in a
01 reserved status for the determination and protection of the rights of Alaska Natives; 02 (3) when sec. 706 of the Federal Land Policy and Management Act (43 U.S.C. 03 1701) repealed R.S. 2477 on October 21, 1976, valid existing rights under R.S. 2477 were 04 preserved; 05 (4) in 1998, the Alaska State Legislature recognized claims to 602 rights-of- 06 way, and the Department of Natural Resources has identified 67 additional R.S. 2477 rights- 07 of-way; 08 (5) a significant number of the claimed R.S. 2477 rights-of-way in the state 09 cross land now owned by private individuals or corporations established under the Alaska 10 Native Claims Settlement Act; 11 (6) R.S. 2477 rights-of-way that cross private property have resulted in 12 increased trespass to private land, resource damage to the servient estate, and conflicts 13 between the public users, private landowners, and state right-of-way managers, all of which 14 can lead to time-consuming and costly litigation; 15 (7) among the land affected by R.S. 2477 rights-of-way are areas important to 16 the culture, heritage, and economic development of Alaska Natives; those areas are 17 particularly deserving of respect and preservation; the width, scope, location, and 18 management of R.S. 2477 rights-of-way that cross land owned by corporations established 19 under the Alaska Native Claims Settlement Act deserve careful consideration; 20 (8) while providing for the public right to access R.S. 2477 rights-of-way, 21 every effort should be made to minimize the effect on the affected property owners, including 22 individuals and corporations established under the Alaska Native Claims Settlement Act; 23 (9) in many instances, access to public land beyond property owned by 24 corporations established under the Alaska Native Claims Settlement Act is provided by 25 federal easements reserved to the United States under sec. 17(b) of the Alaska Native Claims 26 Settlement Act; most of those 17(b) easement trails follow coastlines or rivers along 27 traditional travel routes; approximately 529 miles of the state's claimed R.S. 2477 rights-of- 28 way overlap with existing 17(b) easements; 29 (10) one overlap of an R.S. 2477 right-of-way and 17(b) easement involves a 30 road and all-terrain vehicle trail that roughly parallel the Klutina River from the New 31 Richardson Highway to partway around Klutina Lake; the road and trail form a portion of the
01 claimed Copper Center-Valdez right-of-way, referred to as RST 633 in statute; the road and 02 trail are also supported by 17(b) easements known as EIN 11 C3, C5, D1, D9, L (Klutina 03 Lake Road), and EIN 5, C5, D1, and D9 (Klutina Lake Trail), which were reserved to the 04 public when the federal government conveyed the land underlying the road and trail to Ahtna, 05 Incorporated; and 06 (11) those reserved 17(b) easements are reasonably comparable to the claimed 07 R.S. 2477 rights-of-way and provide sufficient public access to satisfy all present and 08 reasonably foreseeable future needs; therefore, the overlapping Copper Center-Valdez R.S. 09 2477 right-of-way should be vacated. 10 (b) It is the intent of the legislature that this Act resolve issues relating to the width 11 and scope of R.S. 2477 rights-of-way that cross land owned by corporations established under 12 the Alaska Native Claims Settlement Act and minimize conflict between public right-of-way 13 users, Native corporations, and state and local land managers. 14 * Sec. 2. AS 19.30.400 is amended by adding a new subsection to read: 15 (e) The Copper Center-Valdez right-of-way, RST 633, identified in (d) of this 16 section is vacated for those portions that overlap public easements established under 17 43 U.S.C. 1616(b) (Alaska Native Claims Settlement Act). 18 * Sec. 3. AS 19.30 is amended by adding a new section to read: 19 Sec. 19.30.430. Rights-of-way acquired under former 43 U.S.C. 932 that 20 cross land conveyed to a Native corporation. (a) Notwithstanding AS 19.10.015(a), 21 a right-of-way granted under former 43 U.S.C. 932 (R.S. 2477) that crosses land 22 owned by a Native corporation is limited to the uses of the route established on 23 October 21, 1976, and may not exceed a width of 60 feet. 24 (b) A right-of-way granted under former 43 U.S.C. 932 (R.S. 2477) that 25 crosses land owned by a Native corporation may be used only for transportation 26 purposes and may not be used for rest areas, parking lots, overnight camping, boat 27 launches, recreation sites, or other similar uses. 28 (c) A right-of-way granted under former 43 U.S.C. 932 (R.S. 2477) that 29 crosses land owned by a Native corporation shall include a secondary easement to 30 enter, inspect, repair, maintain, and improve the right-of-way under the following 31 conditions:
01 (1) routine maintenance and repair may only preserve the condition of 02 the right-of-way as it existed on October 21, 1976; 03 (2) the state may make reasonable and necessary improvements to a 04 right-of-way for the transportation uses preserved by the right-of-way; 05 (3) before improvements, other than routine maintenance and repair, 06 the state shall consult with and gain the permission of the Native corporation that 07 owns the land subject to the right-of-way established under former 43 U.S.C. 932 08 (R.S. 2477) and give the Native corporation an opportunity to 09 (A) determine whether the proposed improvements are 10 reasonable in light of the traditional uses of the right-of-way as it existed on 11 October 21, 1976; 12 (B) study the potential effect of the proposed improvements on 13 the surrounding land; and 14 (C) determine whether modifications to the proposed 15 improvements should be made to protect the surrounding land and propose 16 modifications, if appropriate; 17 (4) in the event of a dispute between the Native corporation and state 18 about proposed improvements, the dispute shall be submitted to mediation directed by 19 a mediator who is mutually agreeable to the parties and who is not employed by either 20 party; each party shall bear its proportionate share of the cost of mediation, including 21 the mediator fees; if, after a period of 60 days following commencement of mediation, 22 the parties are unable to resolve the dispute, either party may bring suit in superior 23 court; the proposed improvements may not proceed until resolution of the suit. 24 (d) Notwithstanding any other provision of law, if a right-of-way established 25 under former 43 U.S.C. 932 (R.S. 2477) has been damaged beyond repair by natural 26 causes and the state plans to realign the right-of-way as provided in (c)(3) of this 27 section, the state shall consult with the Native corporation that owns the underlying 28 land and pay just compensation for any additional land that will be burdened by the 29 realigned right-of-way. 30 (e) In this section, 31 (1) "Native corporation" means a corporation established under 43
01 U.S.C. 1601 et seq. (Alaska Native Claims Settlement Act); 02 (2) "routine maintenance and repair" includes preservation of an 03 existing road or trail by physical upkeep, repair of wear or damage from natural or 04 other causes, maintenance of the shape of the road, grading or blading to preserve the 05 character of the road, maintenance to ensure proper drainage, and any other activities 06 necessary to preserve the condition of the road as it existed on October 21, 1976.