03/27/2014 01:30 PM Senate TRANSPORTATION

                      SB  94-RIGHTS-OF-WAY                                                                                  
                                                                                                                                
1:48:31 PM                                                                                                                    
CHAIR  EGAN announced  SB  94  to be  up  for consideration;  the                                                               
sponsor is Senator Olson. [SSSB 94 was before the committee.]                                                                   
                                                                                                                                
KENT  SULLIVAN,  Attorney,   Civil  Division,  Natural  Resources                                                               
Section, Department  of Law (DOL),  Juneau, Alaska, said  the DOL                                                               
had concerns with  SB 94. A major concern is  that it would cause                                                               
the  state  to  relinquish,  on  a  massive  scale,  the  RS-2477                                                               
property  interests that  it currently  possesses.  From a  legal                                                               
perspective, this would make the  RS-2477 a far less valuable and                                                               
effective tool to the state of Alaska.                                                                                          
                                                                                                                                
1:51:24 PM                                                                                                                    
This  bill would  cause  the  typical width  of  a state  RS-2477                                                               
rights-of-way (ROW) to  be narrowed from 100 feet to  60 feet. It                                                               
would  also greatly  limit the  allowed  scope of  uses that  can                                                               
occur within an  RS-2477 ROW, and it would freeze  RS-2477 ROW to                                                               
the condition, mode,  and method of use that existed  at the time                                                               
of  its  repeal in  1976.  Finally,  it would  effectively  grant                                                               
private  property   owners  veto   authority  over   the  state's                                                               
maintenance and  improvement activities on  RS-2477 rights-of-way                                                               
across  private  property. All  of  these  things would  have  an                                                               
impact to the state's RS-2477 property rights.                                                                                  
                                                                                                                                
MR. SULLIVAN explained  that the state's interest  in RS-2477 can                                                               
be  viewed as  a bundle  of  sticks, with  each stick  considered                                                               
separately. The width of the ROW,  the right to access streams or                                                               
park or camp within the ROW, and  the right to pull over and take                                                               
pictures are all different sticks.  The state's right to maintain                                                               
and improve  the ROW  and the  different modes  of transportation                                                               
that can be used are also different sticks.                                                                                     
                                                                                                                                
He said  the state's  current RS-2477 rights  are very  broad and                                                               
encompassing  and  include many,  many  sticks.  This bill  would                                                               
effectively strip many of those  sticks away, thereby diminishing                                                               
the state's  property interest. Each  of those sticks  has value,                                                               
many  of which  are  hard  to determine.  However,  one that  can                                                               
easily be  determined is the  reduction in  the width of  the ROW                                                               
from 100 feet to 60 feet.                                                                                                       
                                                                                                                                
He  explained that  currently there  is more  than 20,000  linear                                                               
miles of RS-2477 rights-of-way in  the state, about half of which                                                               
occur across  private property. DNR  estimates that  reducing the                                                               
ROW  width would  have  a fiscal  impact to  the  state of  $48.5                                                               
million. He  emphasized that that  is just  one of the  many ways                                                               
that SB  94 would  reduce the state's  property interests  in RS-                                                               
2477 rights-of-way.                                                                                                             
                                                                                                                                
1:53:13 PM                                                                                                                    
MR. SULLIVAN said  that another reason for concern  is whether or                                                               
not the  bill would cause  a problem  with regard to  the state's                                                               
obligation  to  preserve  the  public  trust  and  constitutional                                                               
requirements to protect  access to state land  and resources. RS-                                                               
2477 is  a valuable tool  in achieving  access to state  land and                                                               
resources  and this  bill  would  effectively give  up  a lot  of                                                               
rights that the state possesses in that regard.                                                                                 
                                                                                                                                
1:53:33 PM                                                                                                                    
SB  94  would  also  create a  disparate  patchwork  of  property                                                               
interests. RS-2477s  frequently cross state, private  and federal                                                               
land, and this  would create a different set of  rules that apply                                                               
to private  land from the  rules that  apply to federal  land and                                                               
state   land.  There   would  be   different  widths,   different                                                               
management rights  and responsibilities,  and different  scope of                                                               
uses that would apply to  each of the underlying land ownerships.                                                               
That is  extremely problematic from a  management perspective and                                                               
from a public use perspective.                                                                                                  
                                                                                                                                
He said that  SB 94 arguably would promote  litigation because it                                                               
creates a  mechanism whereby  if a  private landowner  objects to                                                               
maintenance  or  improvement activities  by  the  state it  would                                                               
first have  to go to mediation  and if it didn't  go to mediation                                                               
it would  have to  go to  court. The concern  is that  this would                                                               
hold up the  state's ability to do those things  until that legal                                                               
action took place.                                                                                                              
                                                                                                                                
1:54:54 PM                                                                                                                    
MR.  SULLIVAN  noted that  the  state  is currently  involved  in                                                               
litigation  with Ahtna  Corporation over  the Klutina  Lake Road.                                                               
Under  SB 94  anywhere that  the  Klutina Lake  road RS-2477  ROW                                                               
overlaps a  17(b) easement, the  state would give up  its RS-2477                                                               
ROW and  accept a 17(b) easement.  The problem is that  there are                                                               
many distinctions between 17(b)  easements and RS-2477 rights-of-                                                               
way. In that  situation the bill would create a  ROW that's a mix                                                               
of the two.                                                                                                                     
                                                                                                                                
He explained that one of the  problems with the 17(b) easement is                                                               
that they  are much more  restrictive; they are  owned, possessed                                                               
and managed by the federal government  as opposed to the State of                                                               
Alaska.  The   state  doesn't  have  control,   and  the  federal                                                               
government can  unilaterally terminate  a 17(b)  easement without                                                               
the state's  say-so. Another concern  is that the  17(b) easement                                                               
can only  be used for  travel. You can't  stop along it  and take                                                               
pictures or have day-use sites or  camp or launch boats or any of                                                               
the typical things  that you can sometimes do on  an RS-2477 ROW.                                                               
Mr. Sullivan  emphasized that it  would basically  circumvent all                                                               
of the state's  defenses and assertions that it has  made in that                                                               
case.                                                                                                                           
                                                                                                                                
1:56:51 PM                                                                                                                    
GEORGE HELMS,  representing himself,  Anchorage, Alaska,  said he                                                               
is  a private  landowner  who  would be  affected  by  SB 94.  It                                                               
appears that  the state can  unilaterally add arterials  to these                                                               
RS-2477s, meaning  if additional  trails had been  created across                                                               
private property  that connect to  an existing RS-2477  the state                                                               
has asserted that  it can unilaterally collect those  as well. In                                                               
many  cases,  the  state's  routing goes  on  what  are  actually                                                               
privately funded  improvements and  the state would  basically be                                                               
taking these  free of  charge for public  use. This  includes the                                                               
cabins and outhouses on private land.                                                                                           
                                                                                                                                
SB 94  would help to curb  some of that behavior  and protect the                                                               
private property interests on the  adjacent properties. For those                                                               
reasons he said he supports the bill.                                                                                           
                                                                                                                                
CHAIR  EGAN,  finding   no  further  comments,  held   SB  94  in                                                               
committee.