04/09/2012 01:00 PM House JUDICIARY

                HJR 40 - R.S. 2477 RIGHTS-OF-WAY                                                                            
                                                                                                                                
1:37:50 PM                                                                                                                    
                                                                                                                                
VICE CHAIR  THOMPSON announced  that the  only order  of business                                                               
would be HOUSE  JOINT RESOLUTION NO. 40,  Commending the governor                                                               
and the  administration for aggressively  working to  enforce the                                                               
rights  of  the state  in  R.S.  2477 rights-of-way;  urging  the                                                               
governor and the  attorney general to develop  a working alliance                                                               
with  other western  states to  protect and  enforce the  states'                                                               
interests in  ensuring access  using rights-of-way  authorized by                                                               
R.S.  2477;  urging the  governor  and  the attorney  general  to                                                               
support the State of Utah and  the southern counties of Utah in a                                                               
lawsuit  against  the  federal government  concerning  R.S.  2477                                                               
rights-of-way,  including filing  an amicus  brief in  support of                                                               
Utah;  urging  the  governor  to   dedicate  state  resources  to                                                               
establish,  protect, and  enforce the  state's interests  in R.S.                                                               
2477 rights-of-way  and to  preserve state  rights-of-way against                                                               
encroachment by  the federal government;  urging the  governor to                                                               
reestablish a  federalism section  in the  Department of  Law and                                                               
sections  in   the  Department  of  Natural   Resources  and  the                                                               
Department of  Fish and Game  to support the preservation  of the                                                               
state's  rights  and powers  in  compact  cases; and  urging  the                                                               
governor  to   prepare  an  appropriation  request   to  fund  an                                                               
aggressive  effort by  the state  to resolve  issues relating  to                                                               
R.S. 2477  rights-of-way, including  possible litigation,  and to                                                               
continue to  work to preserve the  rights of the state  in regard                                                               
to  R.S. 2477  rights-of-way.   [Before the  committee was  CSHJR
(RES).]                                                                                                                       
                                                                                                                                
1:39:15 PM                                                                                                                    
                                                                                                                                
JIM  POUND,  Staff,  Representative   Wes  Keller,  Alaska  State                                                               
Legislature,  on behalf  of the  sponsor, Representative  Keller,                                                               
explained  that HJR  40 addresses  rights-of-way in  Alaska under                                                               
the  federal Revised  Statute  2477 ("R.S.  2477").   Alaska  has                                                               
approximately  670 pending  R.S. 2477  rights-of-way, and  HJR 40                                                               
commends the  administration for  the work it  has done  to date,                                                               
and requests  that more be done.   Currently, he said,  the State                                                               
of Utah has brought suit  against the federal government in order                                                               
to assert its  rights.  Therefore, the  proposed joint resolution                                                               
also asks  the State of  Alaska to  join in Utah's  efforts using                                                               
any  means at  its  disposal; asks  that  Alaska communicate  and                                                               
cooperate  with any  other Western  states  currently working  on                                                               
R.S. 2477 rights-of-way; requests  that the attorney general seek                                                               
funding for this and other  federal issues being addressed by the                                                               
Department of Law;  and asks that Alaska's right  to identify and                                                               
determine the future  of its commerce corridors be  asserted.  In                                                               
response to  a question, he  offered his understanding  that R.S.                                                               
2477 rights-of-way would become state property.                                                                                 
                                                                                                                                
1:43:22 PM                                                                                                                    
                                                                                                                                
KENT  SULLIVAN,  Assistant  Attorney General,  Natural  Resources                                                               
Section,  Civil  Division  (Juneau),  Department  of  Law  (DOL),                                                               
confirmed  that [R.S.  2477s] would  become public  rights-of-way                                                               
vested with the state.                                                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG, noting that  HJR 40 currently addresses                                                               
the need  of the  state to get  [R.S. 2477  rights-of-way] issues                                                               
resolved,  questioned whether  language should  be added  to also                                                               
address  the  rights  of individuals  to  travel  throughout  the                                                               
state.   He  referred specifically  to  the language  on page  2,                                                               
lines 27-28, through page 3, lines 1-2, which in part read:                                                                     
                                                                                                                                
    WHEREAS   unilateral   resistance    by   the   federal                                                                   
      government to the existence of the state's rights-of-                                                                     
     way causes  great harm to  the ability of the  state to                                                                    
     execute its  duty to manage  state resources  by making                                                                    
     them   accessible  and   available   for  maximum   use                                                                    
     consistent  with the  public interest,  as required  in                                                                    
     art. VIII, sec. 1, of  the Constitution of the State of                                                                    
     Alaska;                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLER,   as  the  sponsor,  relayed   that  he'd                                                               
presumed that  the resolution already  did address the  rights of                                                               
individuals.                                                                                                                    
                                                                                                                                
MR.   SULLIVAN,  in   response   to  a   question,  offered   his                                                               
understanding that  the way the  resolution is  drafted indicates                                                               
that  the view  is  that the  state's interest  and  that of  its                                                               
citizens   are  synonymous,   although  the   resolution  doesn't                                                               
specifically address that point.                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG  offered his belief that  the resolution                                                               
should contain  language addressing the rights  of individuals to                                                               
use [R.S. 2477 rights-of-way] to access property.                                                                               
                                                                                                                                
MR. POUND questioned  whether adding such language  could lead to                                                               
an interpretation by  the government and/or the  courts that when                                                               
R.S.  2477   rights-of-way  run  across  private   property,  the                                                               
individual  that owns  the property  -  rather than  the state  -                                                               
would have to file a suit against the federal government.                                                                       
                                                                                                                                
REPRESENTATIVE  KELLER,  in  response to  comments,  expressed  a                                                               
preference for leaving the language  in that particular "WHEREAS"                                                             
clause  as   is,  surmising  that   language  elsewhere   in  the                                                               
resolution implies that the whole  point is access to the state's                                                               
resources by  Alaskans.  He  acknowledged, however,  that perhaps                                                               
adding   the  words,   "for   Alaskans",   following  the   word,                                                               
"accessible",  on page  3, line  1,  of the  resolution might  be                                                               
acceptable.                                                                                                                     
                                                                                                                                
MR. SULLIVAN offered his understanding  that adding that language                                                               
would not  be problematic.   In response to another  question, he                                                               
indicated  that  the  DOL's  budget   does  contain  funding  for                                                               
litigation related to R.S. 2477 rights-of-way.                                                                                  
                                                                                                                                
1:51:59 PM                                                                                                                    
                                                                                                                                
ROD  ARNO,  Executive  Director, Alaska  Outdoor  Council  (AOC),                                                               
testifying  in  support  of  HJR  40, stated  that  the  AOC  was                                                               
instrumental  in getting  602 rights-of-way  put in  statute, and                                                               
characterized that as  an important thing to do.   He said HJR 40                                                               
would  make public  one of  the  most contentious  issues in  the                                                               
state  today:   the lack  of public  access to  public resources.                                                               
This lack  of access  prevents many Alaskans  from being  able to                                                               
gather the  state's resources for  food and fuel, and  from being                                                               
able to access  and work their mining claims.   In conclusion, he                                                               
stated that the AOC supports  passage of HJR 40, believing access                                                               
to the state's resources to be very important to its membership.                                                                
                                                                                                                                
MR. SULLIVAN, in response to a  question, and noting that most of                                                               
the  R.S.  2477  rights-of-way  in  Alaska  came  into  existence                                                               
because of  mining activity, indicated  that it's  the historical                                                               
purpose of a  particular path/trail - rather  than its historical                                                               
size  or historical  mode of  use -  that would  be the  limiting                                                               
factor  for  an  R.S.  2477   right-of-way;  for  example,  if  a                                                               
path/trail  was historically  used to  reach a  mine on  foot, an                                                               
R.S.  2477 right-of-way  to that  mine would  not necessarily  be                                                               
limited to only foot traffic.   "Generally, you're not limited to                                                               
precisely what created it historically," he added.                                                                              
                                                                                                                                
VICE CHAIR THOMPSON,  after ascertaining that no  one else wished                                                               
to testify, closed public testimony on HJR 40.                                                                                  
                                                                                                                                
2:00:53 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG made  a  motion  to adopt  [Conceptual]                                                               
Amendment   1,  to   add  "to   Alaskans"   following  the   word                                                               
"accessible",  on page  3, line  1.   There  being no  objection,                                                               
Conceptual Amendment 1 was adopted.                                                                                             
                                                                                                                                
2:01:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HOLMES   made  a   motion  to   adopt  Conceptual                                                               
Amendment 2, to delete the language  on page 3, lines 9-12, which                                                               
read:   "WHEREAS virtually  all of  the state's  natural resource                                                             
development  projects  are  unnecessarily  burdened  by  numerous                                                               
federal  laws, including  the Endangered  Species Act,  the Clean                                                               
Water Act,  and myriad arbitrary federal  regulators and policies                                                               
implementing  and  enforcing  those  and  other  federal  laws;".                                                               
There being no objection, Conceptual Amendment 2 was adopted.                                                                   
                                                                                                                                
VICE CHAIR THOMPSON  characterized HJR 40 as very  important.  He                                                               
related an incident  in which a friend of his  was trying to take                                                               
a  piece of  equipment to  his mine  by using  an old  trail, but                                                               
federal [law enforcement officers] arrested him at gun point.                                                                   
                                                                                                                                
REPRESENTATIVE HOLMES, in response  to a question, explained that                                                               
she'd offered  Conceptual Amendment  2 as a  conceptual amendment                                                               
so that the  drafter could address any  title change necessitated                                                               
by its adoption.                                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG requested  that  that  also apply  with                                                               
regard to the adoption of Conceptual Amendment 1.                                                                               
                                                                                                                                
REPRESENTATIVE HOLMES,  in conclusion, characterized HJR  40 as a                                                               
good piece of legislation.                                                                                                      
                                                                                                                                
2:03:27 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLER moved to report  CSHJR 40(RES), as amended,                                                               
out  of   committee  with  individual  recommendations   and  the                                                               
accompanying   fiscal  notes.      There   being  no   objection,                                                               
CSHJR 40(JUD)  was reported  from  the  House Judiciary  Standing                                                               
Committee.