Legislature(1999 - 2000)
05/11/1999 01:17 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSSB 45(FIN) am - LAND OWNER IMMUNITY/ RT-OF-WAY VACATION CHAIRMAN KOTT announced that the first item of business is CS for Senate Bill No. 45(FIN) am, "An Act providing that a person who grants certain conservation easements to the state or a municipality that provide public access for recreational purposes and the grantee of the easement are immune from tort liability, other than gross negligence or reckless or intentional misconduct, for damages to a person who uses the easement under certain conditions; relating to the vacation by the state or a municipality of rights-of-way acquired by the state under former 43 U.S.C. 932; and providing for an effective date." Number 0088 BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska State Legislature, came forward on behalf of the prime sponsor. He read in part from the sponsor statement, noting that SB 45 was introduced in response to a desire to preserve and expand recreational access for both Alaskans and visitors to the state, to whom the ability to access lands for purposes of skiing, hunting, fishing, snow machining and numerous other outdoor activities is very important. He said the potential for liability and litigation for private land owners who allow public access to their lands for recreational purposes has created pressure to further restrict entry. It is also proven to be a disincentive to the establishment of new recreational opportunities, and it is a significant hurdle to the establishment of new trail systems. MR. HUBER told members that promoting recreational opportunities, by establishing additional trail systems, has become a priority for a number of groups and organizations around the state. The sponsor has received requests and/or support for this legislation from numerous entities, including the following: the Department of Natural Resources (DNR), Division of Parks and Outdoor Recreation ("State Parks"); the Municipality of Anchorage; the Anchorage Economic Development Corporation; the City of Wasilla; the Wasilla, Palmer, Chugiak, Eagle River, Fairbanks and state Chambers of Commerce; numerous snow machine associations; the Alaska [Boaters'] Association; and the Alaska Outdoor Council. Mr. Huber expressed belief that representatives of many of these organizations had either provided written testimony or would provide it that day. MR. HUBER specified that CSSB 45(FIN) am provides limited immunity to landowners when they grant the conservation easement to the state or municipality, which allows public access to the easement for recreational purposes, providing that there was no compensation paid for the access or use. The same limited immunity is granted to the state or municipality that accepts the conservation easement. In addition, the bill makes a technical correction to the statutes governing vacation of RS 2477 [federal Revised Statute 2477] and section line rights-of-way and easements that were granted under former 43 U.S.C. 932. The bill also provides concise direction in Title 29, the statutes pertaining to local governments, that is reflective of the current procedures for easement vacation existing in Title 19. Number 0275 REPRESENTATIVE CROFT commented that it seems to be appropriate, particularly for free rights-of-way. However, he expressed concern about specific improved sections. If an owner allowed access to a tramway or railroad line, for example, should there be a different standard? MR. HUBER replied that although AS 09.65.200 currently deals with limited immunity on unimproved land, it doesn't take in improved land. In many municipal areas - on the Kenai Peninsula, as well as in and around Anchorage, the Matanuska-Susitna area and Fairbanks - towns have grown up around trails that once existed on unimproved land. Although a trail and its use may not have changed, the classification of the land as "improved" or "unimproved" may have changed. MR. HUBER said he believes a significant difference, if talking about something like the use of a tramway, a railroad, or a ski area, is whether the owner is compensated for use of the easement or it is free. He indicated that in working with the Senate Judiciary Committee, the sponsor tried to limit it to a conservation easement, "to try to balance the limited immunity granted versus the concerns you have with improved property, with taking in more than what the trail or the original intent of the trail was." Number 0441 REPRESENTATIVE GREEN posed a hypothetical situation where an easement suffers from erosion, and someone using it damages a car, or young people who are unaware of danger get hurt there. He asked whether the easement under this bill would provide any immunity that wouldn't exist on another part of a person's land. MR. HUBER answered that the limited immunity granted by the provisions of this bill would extend to the conservation easement and its use for public access for recreational purposes. If erosion or something that doesn't constitute gross negligence has occurred on the trail, and someone has an accident or is injured, that limited immunity would extend to both the landowner and to the holder of the conservation easement. Certainly, he added, if it was gross negligence or an act of omission, then the limited immunity wouldn't apply. Furthermore, it is questionable whether that would be seen any differently on land that wasn't subject to this conservation easement. Mr. Huber stated: If you're recreating on private property, not on an easement, and you don't have permission to be on that property, then I think you'd have a hard time trying to bring a cause, because it's basically trespass on the property. If you're recreating on that property currently, ... for a trail that exists now that we're trying to protect, and you had some type of act, again, it would at least require simple negligence for there to be some kind of cause and for you not to have immunity. If it was a situation like erosion, I believe ... it would be tough to try to lay that fault on a landowner. Number 0626 REPRESENTATIVE GREEN stated his understanding, from Mr. Huber's response, that this bill wouldn't provide any immunity that isn't reasonably afforded anyway. Rather, it just keeps someone from being a target for litigation. MR. HUBER said that is one of the concerns. The question isn't necessarily whether this gives more protection in the courts, but whether it perhaps keeps a landowner out of the courts on a suit that may not prevail anyway. Number 0662 REPRESENTATIVE KERTTULA requested clarification about the exceptions in Section 4. For example, a person coming onto the easement would have no responsibility to pay the owner and would use it for recreational purposes. She asked, "Then you'd have to pay the damages if you were grossly negligent, reckless, or had done something that constituted intentional misconduct; am I reading it right?" MR. HUBER said that is correct. Number 0705 REPRESENTATIVE JAMES requested a definition of "conservation easement." MR. HUBER replied that "conservation easement" exists in Chapter 17 of Title 34. It is basically a nonpossessory interest in land, akin to a license to use land without possession of the actual land transferring. REPRESENTATIVE JAMES asked who would have a conservation easement, and how it would get put on property. MR. HUBER answered that envisioned under this bill, and what State Parks is working on currently, is a conservation easement system wherein State Parks talks to a landowner who perhaps has a piece of land that they are interested in continuing to use as a trail, or perhaps an owner has a piece of land upon which State Parks or a municipality would like to begin establishing a trail. It would then come to the landowner, or the landowner could come to the state or municipality; those are the only entities that can receive a conservation easement, and that are entitled to this immunity. Mr. Huber explained that after going through the process of a negotiated easement, it would be recorded and become attached to the property. Conservation easements can be negotiated both for a time specific and for uses inside of what is allowed under AS 34.17. REPRESENTATIVE JAMES responded, "Thank you. I knew I didn't like them." Number 0813 CHAIRMAN KOTT requested an example of what Mr. Huber believes would be gross negligence, as it relates to this. MR. HUBER answered: I'll try. I would say that if somebody's granted a conservation easement, they know that there's a conservation easement for public access, a trail exists. And perhaps they go out and do some backhoe work, have something underground, something that they want to move, have a problem with the septic tank, and then dig a trench in the ground that crosses into that conservation easement, fail to mark that trench, fail to notice that there's a trench in the ground. Somebody comes along, expecting to use the trail as it's available for use, and falls in this hole that's been created. Mr. Chairman, also, if somebody would know there's a conservation easement and trail access across their land, string a wire or a cable to deny that access, I think those would constitute ... gross negligence. Those are a couple of examples. Number 0880 REPRESENTATIVE CROFT asked whether AS 09.65.200 doesn't do the same thing. He paraphrased a portion of it, which states: (a) An owner of unimproved land is not liable in tort, except for an act or omission that constitutes gross negligence or reckless or intentional misconduct, for damages for the injury to or death of a person who enters onto or remains on the unimproved portion of land if (1) the injury or death resulted from a natural condition of the unimproved portion of the land or the person entered onto the land for recreation; and (2) the person had no responsibility to compensate the owner for the person's use or occupancy of the land. MR. HUBER replied: What you're getting at is land that doesn't meet the supreme court three-part test for unimproved land. Say there's land, that there's a five-acre parcel, the conservation easement or trail in question, looking at just the provisions of 09.600, across a portion of the land. Another portion of the land has been improved. It's possible, then, that all the land would be considered "improved" and then would fall outside of the limited immunity granted for unimproved land. Number 0931 REPRESENTATIVE CROFT expressed his understanding that the goal is to ensure that the proximity of improvements doesn't affect this. He asked, "Do we still mean the natural condition ...? If I'm actually traveling on the improved portion, not this three-part test but the actual improved portion, is there any problem with making that the normal rules?" MR. HUBER requested clarification. REPRESENTATIVE CROFT said he would think about it and try to rephrase it better later. REPRESENTATIVE KOTT asked whether anyone in Juneau wanted to testify; there was no response. He then called upon Dick Bishop. Number 0993 DICK BISHOP, Alaska Outdoor Council, testified via teleconference from Fairbanks in support of SB 45 and the current version, CSSB 45(FIN) am. He reminded members that his organization has worked hard on advocating public access in general, and RS 2477 rights-of-way in particular. He expressed appreciation for public-spirited landowners who allow others to cross or use their lands; he believes they should be protected from possibly frivolous lawsuits. Mr. Bishop informed members that the Alaska Outdoor Council prefers the original language in SB 45 because it is broader in terms of tort immunity. However, they do support and urge passage of this version, which they believe to be a start in the right direction. Number 1075 TIM KRUG, Planner, City of Wasilla, testified via teleconference from the Matanuska-Susitna Legislative Information Office, stating support for SB 45 on behalf of the city for the following reasons. The City of Wasilla is the fastest-growing city in Alaska, and trails across private property are rapidly diminishing with ongoing development. Although the city's trails plan was adopted as part of its comprehensive plan, several identified trails travel over private property; without new legislation, the future of such trails may be in jeopardy. They need a law to protect private landowners who allow trails to cross their property, and this will encourage other landowners to do so. Bills like SB 45 are needed to allow the local city council to determine if it is appropriate for the DNR, the Department of Transportation and Public Facilities, or another state agency to vacate a local right-of-way. Furthermore, the people need to have input towards the vacation of rights-of-way that could affect future trails. Number 1143 CHAIRMAN KOTT asked whether anyone else on teleconference wished to testify; he then closed public testimony. REPRESENTATIVE ROKEBERG expressed surprise that nobody was present from the Administration, as there had been a bill introduced by the Governor on the same topic. He stated his assumption that the Administration supports this. CHAIRMAN KOTT said he believed there had been testimony earlier that indicated the department supports it. He noted that someone from the Administration was present, in case there was a specific question. He asked whether there was further discussion. Number 1198 REPRESENTATIVE ROKEBERG made a motion to move CSSB 45(FIN) am from the committee with individual recommendations and any attached fiscal notes. There being no objection, CSSB 45(FIN) am was moved from the House Judiciary Standing Committee.
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