Legislature(1997 - 1998)
04/15/1998 08:30 AM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SENATE BILL NO. 180
"An Act relating to state rights-of-way."
BRETT HUBER, STAFF, SENATOR RICK HALFORD, stated that RS
2477 rights-of-way issue is long standing and complex. He
provided a brief history and overview of the issue
Revised Statute 2477 (R.S. 2477) was a right granted to the
states by the United States Congress with the passage of the
Mining Act of 1866. The purpose of this law was to provide
for, and guarantee, the public's right to establish access
across federal lands. Subsequent congressional action, and
more than 100 years of case law, has recognized the State's
authority to determine and define R.S. 2477 rights-of-way.
Although Congress repealed R.S. 2477 in 1976 with the
adoption of the Federal Land Policy and Management Act, they
specifically acknowledged the legal existence of R.S. 2477
rights-of-way established prior to that repeal. Current
Federal Regulation explicitly provides that any rights
conferred by the R.S. 2477 grant shall not be diminished.
(43 CFR 2801.4)
Mr. Huber continued, this important states' rights issue has
received legislative attention in the past. Beginning with
the legislative appropriations in 1992 and 1993, which
funded the research and compilation of historical
information regarding R.S. 2477, the Legislature has taken
the lead in moving the issue forward. In undertaking those
legislatively designated projects, the Department of Natural
Resources (DNR) reviewed some 1,700 potential R.S. 2477
routes. This, and subsequent DNR review resulted in the
identification of 602 rights-of-way that appear to qualify
and are supported with appropriate documentation. These 602
routes are published in the Historical Trails catalogue and
incorporated into the State Land Administration System
(LAS).
Last year, the Legislature passed SJR 13 with broad support
reiterating their position regarding R.S. 2477 and making
clear the objection to the United States Department of the
Interior's proposed policy which would have drastically
reduced the State's opportunity to resolve these issues.
There is a copy of the January, 1997 policy memo from
Secretary Babbitt in the bill packet.
Information that came forward during the committee process
on SJR 13 as well as during the Joint Senate and House
Resources Committee's overview of the issue last February,
supports the subsequent action proposed by Senate Bill 180.
SB 180, an Act relating to State rights-of-way, codifies 602
documented R.S. 2477 rights-of-way, requires them to be
recorded, provides a process for, and limitations on
liability limitations for the State.
Mr. Huber noted that while the R.S. 2477 rights-of-way
codified in this bill have already been accepted by public
users and deemed supportable by the State, it is likely that
the federal government will dispute the State's ownership on
some or all of those routes. Although, current federal
administration is attempting to limit the State's rights
regarding R.S. 2477 rights-of-way, over 100 years of case
law on point recognize State law as controlling on the
issue. Codifying the routes in statute would strengthen the
State's position for subsequent court action, and provide
the affected landowners and general public clear
notification that the R.S. 2477 rights-of-way are available
for use.
Mr. Huber commented that Senator Halford believes that,
while they are not a panacea, R.S. 2477 rights-of-way are a
critical option to the future transportation needs of our
State. RS 2477 routes provide surface travel to mineral
deposits and other natural resources, recreational areas and
tourism opportunities, and access to and between Alaska's
rural areas.
He pointed out that R.S. 2477 rights-of-way are an existing
State right which cannot be allow to be "regulated away" by
the federal bureaucracy. The legislation statutorily asserts
the rights we currently have.
Co-Chair Therriault asked if one of the routes listed in the
proposal had been asserted without proper documentation,
would it be dropped from the list. Mr. Huber replied that
the routes which exist in the historic trail catalogue,
would also be included in statute. If someone contested a
R.S. 2477, they could approach DNR to address it
administratively or, another option, would be to take it to
a court proceeding. If a determination was made, there is a
process in which the State could vacate the trail and then a
determination would be made that R.S. 2477 was not valid and
dropped from the list.
Representative Foster spoke to lands which he owned which
were only accessible by cutting across Native lands. Mr.
Huber stated that the 2477 rights-a-way were granted only at
the time which the land was federal land and was
unrestricted and vacant. These lands were accepted by
public use. The option for rights-a-way was not available
with other types of ownership. Typical of all those
corporation conveyances was language which specified being
subject to existing rights, the land would be transferred.
Representative Foster asked if the Native Corporations have
been given additional land in exchange for the rights-a-way
which already existed. Mr. Huber explained that rights-a-
way with each corporation has been handled differently. Co-
Chair Therriault pointed out that language contained in the
title made reference to that adjustment.
Representative J. Davies questioned how that would improve
the federal standing code. Mr. Huber replied, in order to
determine title in a R.S. 2477 rights-a-way, the issue of
title determination is handled through a quiet title action
in federal courts. It would also be possible to address it
through subsequent congressional action. Mr. Huber noted
that SB 180 will not solve the title question, but would
instead, statutorily assert that this is a public right.
JANE ANGVIK, (TESTIFIED VIA TELECONFERENCE), DIRECTOR,
DIVISION OF LANDS, DEPARTMENT OF NATURAL RESOURCES, stated
that the Department of Natural Resources (DNR) is not in
support of SB 180 because they believe that to record the
rights-a-way would cloud the title for land owners. Ms.
Angvik stated that it would particularly cloud the title of
Native corporations as well as private individuals who own
land. She pointed out that the reason that the Department
is concerned is that the State does not know where they all
these rights-a-ways rest physically on the land; they need
to be surveyed before they are recorded.
The State has been going through a large and lengthy process
in researching the R.S. 2477 rights-a-way, although, the 602
proposed in the legislation have not been physically
located. She believed that to record this would be
premature and would cloud the title of the land. She noted
that the Alaska Federation of Natives (AFN) strongly opposes
the bill.
In response to Co-Chair Therriault's inquiry regarding title
clouding, Ms. Angvik explained that if the lands were
recorded this would clarify where they were physically
located. Whereas, an easement would make it more difficult
to determine clear title. Mr. Huber advised that would be a
"disclosure" and that use would have to have occurred while
the land was vacant, unreserved and unrestricted. At that
time, a State survey, regardless of the ownership, would be
encumbered with a right-a-way. The bill does not add a new
encumbrance, but instead would disclose the encumbrance that
already exists. He stressed that this would not affect the
selling or transferring of the land. It would only disclose
information currently attached to serving the State.
Mr. Huber advised that the routes to some extend have
already been entered and digitized. Not until there is a
survey performed can a route be delineated. One of the
provisions in the bill speaks to private property interest
when delineating routes. He pointed out that not all routes
will be contested.
Representative Foster commented that without R.S. 2477 in
place, in order to access his own land, he would be forced
to fly 10 miles across someone else's land. Also, without
this legislation, it would make it ackward for Natives of
adjoining Native corporations to obtain a permit for hunting
and subsistence fishing.
In response to Co-Chair Therriault, Ms. Angvik spoke to the
location of the LAS roads. The Department reviews
historical information and maps, everything providing public
record indicating the land used and the location. In order
to calculate these 602 land choices, secondary sources of
information were used. Certification is the next level in
the title assertion process. Of the eleven certified
trails, they have gone to public notice with an opportunity
for public appeal. The remaining trials could be anywhere,
and that the Department does not know where they physically
are placed on the land.
Representative Mulder questioned Ms. Angvik suggestion that
the bill "does nothing". Ms. Angvik noted that the
Department noticed production of the map with significant
information available from the government. She recommended
that the concern be approached systematically through
surveying the eleven already certified parcels, slowly
building the database. Representative Mulder pointed out
that concerns regarding the R.S. 2477 have been addressed
for many years, and still there is nothing in statute. He
claimed that SB 180 would address the State's ability to
access these lands. He added that the budget does not have
the fiscal power to survey all the tracts.
Representative J. Davies inquired how the status of a
private landowner trying to sell their land would change
with passage of the bill. Ms. Angvik believed that today,
title companies would be mute on the subject of rights-a-
way. Should the bill become law, title companies would be
responsible to identify if an egress crossed the land.
Representative J. Davies questioned if this would be an
improvement for the land purchaser. Ms. Angvik stated that
it is important to know that rights-a-way exist, however,
until DNR is in a position to identify whose land it exists
on, the question of who will be affected continues to exist.
Representative J. Davies asked how many of current right-a-
ways might experience this problem. Ms. Angvik did not
know. She acknowledged that there are many trails on State
lands, which would not be a problem in the bill's passage.
The Department only surveys litigated trails.
Representative J. Davies asked how passage of the bill would
improve the State's standing before federal court.
MYLES CONWAY, (TESTIFIED VIA TELECONFERENCE), ASSISTANT
ATTORNEY GENERAL, DEPARTMENT OF LAW, ANCHORAGE, stated that
the bill would have no impact at all in federal government.
If the bill were passed, there would need to be a more
specific exception to deal with certain roads.
The Harrison Creek case illustrates the amount of
documentation needed to follow the route; it is difficult to
tell where the trail goes. Because of the historical nature
and trail shifting over time, it is impossible to confine
the 100' corridor with any reasonable accuracy.
Representative Foster argued that the Park Service currently
is arbitrarily closing trails to village areas adjoining
other villages where family members live. He stressed that
there is a tremendous need for the proposed legislation to
protect these village people from the Park Service and to
help them deal with adjoining Native corporation
stipulations. Representative J. Davies questioned if the
proposed legislation would address the circumstances
referenced by Representative Foster. He pointed out that
the legislation would not affect federal government lands.
Representative J. Davies believed that the bill will benefit
land purchasers, but would not help in assertion of R.S.
2477.
DALE BONDURANT, (TESTIFIED VIA TELECONFERENCE), SELF, KENAI,
spoke in support of SB 180. He believed that access to
public lands and waters were important to all people.
KATHLEEN MOORE, (TESTIFIED VIA TELECONFERENCE), SELF, KENAI,
spoke in support of the proposed legislation. She
recommended that claim responsibility should be transferred
to the Department of Transportation and Public Facilities
(DOTPF) because DNR was not doing an adequate job. She
emphasized support for trail enhancement on every level.
Representative J. Davies noted that he agreed and asked if
Ms. Moore would be willing to support a budget amendment to
accomplish the proposed work. Ms. Moore responded that she
would.
CRAIG PUDDICOMBE, (TESTIFIED VIA TELECONFERENCE), SELF,
MATSU, pointed out that R.S. 2477 does not address the width
amount. He referenced Chapter 51, the appeals section.
(Tape Change HFC 98- 102, Side 2).
Mr. Puddicombe spoke to his own situation in which he bought
the land in 1983 and then found out in 1990 that there was
an easement, R.S. 2477. The State of Alaska became involved
studied the situation for 21 months and determined that
there was no R.S. 2477 on the property. In the meantime,
the Supreme Court reversed judgement, a situation which has
been on going since 1990. He referenced Chapter 51, and
asked if he appealed, would the current judicial system
become involved.
Mr. Huber noted that AS 11 AAC S1.0.070 & 080 to the appeal
provisions. After the agency judgements have been
exhausted, then the judicial appeal goes to the Supreme
Court. Mr. Conway agreed with Mr. Huber that it could be
handled at the initial level in court. He noted that the
proposed provision would not apply to Mr. Puddicombe's
situation.
BILL MILLER, (TESTIFIED VIA TELECONFERENCE), SELF, TOK,
commented that the State of Alaska currently does not have
good trespass laws which can protect private landowners.
The trails provide public access to public lands and State
lands. He believed that the problem lies in that the land
is not being surveyed or marked, and that the State takes no
responsibility for damage or injury.
Representative Mulder noted that AS 09.69.200 a(1) pertains
to tort immunity, personal injuries, or death occurring on
unapproved land. It stipulates that an owner of unapproved
land is not liable in tort except when an act omission
constitutes gross negligence or potential misconduct.
DICK BISHOP, VICE PRESIDENT, ALASKA OUTDOOR COUNCIL, JUNEAU,
testified in support of the proposed legislation. He noted
that the Alaska Outdoor Council has been concerned with the
lack of initiative on the part of the State to protect the
public interest in access to vast areas of Alaska for
traditional uses. He reiterated strong support of the bill
noting that it is an important step in the State taking
effort to document these trails and providing the means to
go forward, manage and identify them.
PETER AMUNDSUN, (TESTIFIED VIA TELECONFERENCE), SELF,
KETCHIKAN, believed that if Alaska is to develop our
resources using trails and roads delineated for exploration,
at a time of economic development, then the State should
control these trails. He stressed that the State must
retain control of the access.
NELSON ANGAVAK, (TESTIFIED VIA TELECONFERENCE), ALASKA
FEDERATION OF NATIVES (AFN), ANCHORAGE, voiced concern that
the bill has the potential to disturb private property for
public use. He stressed that if anything should occur on
Native corporate lands, the State of Alaska would bear full
responsibility. Mr. Angavak stressed that the proposed bill
has the potential to create a "cloudy" situation not being
able to locate the R.S. 2477. He recommended that accessing
Section 17(b) could be used as an alternative.
SENATOR RICK HALFORD interjected that there can not be a
taking of private property if in fact the whole process is
based on existing rights. The easements would not be
extinguished and would be supplemental to prior existing
rights. The transfers are based on those existing rights.
He stated that there is inconsistency in the surveying done
by the Department of Natural Resources, which is seen in
floating easements.
Representative G. Davis inquired how a private property
owner's provision for pre-existing rights would appear.
Senator Halford replied if the valid existing rights
predated the establishment of R.S. 2477, it would be found
invalid when pertaining to his property. Every patent since
statehood says that the mineral rights are reserved for the
State. Somewhere in every validation notes: "Subject to
valid existing rights".
Representative G. Davis questioned mitigation concerns.
Senator Halford responded that the bill does not address the
way to use the determinations. That would be left to the
Department. The bill will bring ownership decisions back to
State law allowing for forward movement.
Representative Foster MOVED to report CSSB 180 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CS SB 180 (FIN) was reported out of Committee with a "do
pass" recommendation and with a fiscal note by the
Department of Natural Resources dated 3/18/98 and a zero
note by the Department of Transportation and Public
Facilities.
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