Legislature(1997 - 1998)
04/07/1998 01:50 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
CSSB 180(FIN) - STATE RIGHTS-OF-WAY: RS 2477 CO-CHAIRMAN OGAN announced the next order of business was CSSB 180(FIN), "An Act relating to state rights-of-way." CO-CHAIRMAN OGAN called on Brett Huber, staff to Senator Rick Halford, prime sponsor of the bill. Number 352 BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska State Legislature, stated the issue of Revised Statute 2477 (RS 2477) is long-standing and complex. It was granted by the United States Congress with the passage of the Mining Act of 1866. The purpose of the law was to provide for and guarantee the public's right to establish access across federal land. Subsequent congressional action and more than 100 years of case law recognize the state's authority to determine and define RS 2477 rights-of- way. Although Congress repealed RS 2477 rights-of-way in 1976 with the adoption of the Federal Land Policy Management Act (FLPMA), it specifically acknowledged their legal existence established prior to the repeal. Current federal regulations explicitly provide that any rights conferred by the RS 2477 rights-of-way grant shall not be diminished. MR. HUBER further stated the issue received legislative attention beginning in 1992 and 1993 with appropriations to fund research and compile historical information. In undertaking those projects, the Department of Natural Resources (DNR) reviewed some 1,700 potential routes resulting in 602 identified rights-of-way that appear to qualify and can be supported with appropriate documentation. These 602 routes are published in the Historical Trails catalogue and have been incorporated into the state land administration system. Last year, the legislature passed SJR 13 with broad support. The resolution reiterated the legislature's position on RS 2477 rights- of-way and made its objections clear on the United States Department of Interior's proposed policy that would have drastically reduced the state's opportunity to resolve these issues in its favor. A copy of the policy memo from Secretary Babbitt dated January 22, 1997 has been included in the bill packet. In addition, information that came forward during the committee process, as well as a Senate/House Resources joint overview supports the action taken on SB 180. MR. HUBER further stated that SB 180 codifies the 602 documented RS 2477 routes. It requires them to be recorded, provides a process on vacating those rights-of-way, and sets out liability limitations for the state. While the RS 2477 rights-of-way that are codified in this bill have already been accepted by public users and deem supportable by the state, it is likely that the federal government will challenge some or all of these routes. Although the current federal administration is attempting to limit the state's right regarding RS 2477 rights-of-way, over 100 years of case law on point recognizes state law as controlling on the issue. Codifying these routes in statute will strengthen the state's position for possible and subsequent court action, and provide the effected landowners and the general public the clear notification that these routes are available for use. "Simply put, Senate Bill 180 says these are our rights-of-way and they're available for use by the public. It's an existing right and it's okay to exercise it." MR. HUBER further stated that Senator Rick Halford believes RS 2477 rights-of-way, although not a panacea, are an important option for the state's future transportation needs, mineral development, tourism and recreational opportunities, access to and between rural areas. The bill enjoys the support of numerous organizations, including the Resource Development Council, the Alaska State Chamber of Commerce, the Alaska Outdoor Council, the Territorial Sportsman, the Alaska Forest Association, and the Alaska Miners Association. REPRESENTATIVE REGGIE JOULE asked Mr. Huber whether he was able to get any support from the larger private landowners in the state. MR. HUBER replied actually a letter was sent to most of the major private landowners and groups representing them last year, and phone contact has been made with many of the land managers of the Native corporations. There was some concern from the land management representative from the Alaska Federation of Natives (AFN). The findings section is intended to address some of the private property concerns as well as the vacation process. There has not been one unified position from the Native corporations, however. They range from, "we don't believe RS 2477 exist at all" to "we don't want to see a dogsled trail become a highway" to "we understand that RS 2477s are out there but there are 17B easements and other options." REPRESENTATIVE JOULE asked Mr. Huber how he would see the RS 2477 rights-of-way apply to private landowners including the Native corporations. MR. HUBER replied it is important to note that the RS 2477 rights- of-way that the bill proposes to codify already exist. There is no action now that can create an RS 2477 rights-of-way that wasn't accepted by public use prior to their extinguishment with the passage of FLPMA. REPRESENTATIVE JOULE asked Mr. Huber how would they affect private property owners. MR. HUBER replied the effect would be like any other easement or right-of-way on a piece of land held by the public. "If you hold the servient estate then you're affected to some degree in that there is a public right-of-way to cross your property." It is the intent of the sponsor to balance private property rights with public access rights, the public access rights that exist whether codified in the bill or not. It is important to note that there is a process of vacation for the rights-of-way before being codified because people don't know exactly where the routes exist on their property. However, it does not remove the fact that the right-of- way is there. The bill says, if a private property owner would be adversely impacted, there is a process for an alternative route to pursue either administratively through the Department of Natural Resources or the courts. REPRESENTATIVE JOULE asked Mr. Huber to expand on the state's liability he mentioned earlier. MR. HUBER replied the Department of Law came forward with a request to include limitations on the liability for the state. The liability says merely the act of codifying doesn't result in an additional claim for monetary damages, if somebody disagrees with an access route. The liability also is for managing the 602 routes. The state has been managing some of them by default because some are in use. The bill doesn't address their scope of use, it is an administrative decision by the Department of Natural Resources. The liability says the routes are available for use at the risk of the user. REPRESENTATIVE JOULE asked Mr. Huber whether the liability would be extended to the private landowners. MR. HUBER replied there is a statute on the books that deals with limits of liability on unimproved land. Testimony from the Legislative Legal and Research Services has indicated that a servient estate has no liability for use on a public right-of-way now, therefore, adding language to specifically limit liability to servient landowners would be superfluous to what is already on the books. REPRESENTATIVE JOULE asked Mr. Huber whether that means yes or no. MR. HUBER replied that means that although this liability doesn't directly deal with the private property landowners, there are statutes on the books and case law history that says liability does not extend to a private landowner if his land is diminished by a public right-of-way. CO-CHAIRMAN OGAN stated he is intimately familiar with a number of rights-of-way that cross private property in his district. One is within 600 feet of his house and affects his neighbor greatly. The language to establish an alternative right-of-way is good. He asked Mr. Huber whether it would have to be 100 feet, or could it be smaller based on historical use. He also asked has there been any precedent set in case law. MR. HUBER replied the bill doesn't speak to the specific scope or management of the width of a right-of-way. That is currently handled through DNR regulations on rights-of-way that go through its nomination and certification process. There is case law on point in the superior and supreme courts whereby both upheld an existing RS 2477 right-of-way (Puddicombe). The courts determined that the right-of-way was 100 feet. CO-CHAIRMAN OGAN stated if he remembers the case circumstances correctly he is the only private inholder surrounded by state lands. An RS 2477 right-of-way goes right through his land. It seems the state should be reasonable since he is the only private landowner around. He likes the alternative language in the bill, and hopes it will help his neighbor and others in similar situations. MR. HUBER stated, according to his understanding of the Puddicombe case, the private property holder did not want to take an alternative route. The case went to court and now the state is contending the RS 2477 right-of-way, but as a private property owner. It is important to note that these are public rights that the state holds for the public. Anybody can bring an RS 2477 right-of-way to court and challenge construction and routing on private property, for example. The parties in Puddicombe did not explore that avenue. They went straight to court. That avenue would still be available under the bill. CO-CHAIRMAN OGAN asked Ms. Barry, from the Department of Law, whether the bill would allow for a methodology to establish an alternative right-of-way through property. Number 585 ELIZABETH BARRY, Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law, replied she doesn't read the bill as changing whatever rights there are to establish an alternative access. "This puts some limitations on when DNR can vacate an RS 2477 right-of-way, and if they can workout a reasonable alternative access. As I read the bill, they would be able to do that." CO-CHAIRMAN OGAN asked Ms. Barry whether that is a departure from policy in the past. MS. BARRY replied, "No." CO-CHAIRMAN OGAN asked whether it has always been able to do that. JANE ANGVIK, Director, Division of Land, Department of Natural Resources, replied under existing regulations, DNR has the authority to vacate RS 2477 rights-of-way. It does not need approval from the legislature. CO-CHAIRMAN OGAN asked Ms. Angvik whether there is a requirement to provide a reasonable alternative in regulation. MS. ANGVIK replied "No." There is a requirement for a rationale to vacate, however. CO-CHAIRMAN OGAN asked Ms. Angvik how many RS 2477 rights-of-way has the department vacated since she has been in her position. MS. ANGVIK replied the department has never vacated an RS 2477 right-of-way. [THE REST OF HER TESTIMONY WAS INAUDIBLE] REPRESENTATIVE JOULE asked if the conveyance process hasn't been completed on private lands, specifically ANCSA lands, would that impact the RS 2477 rights-of-way. MR. HUBER replied typically on ANCSA lands there is language in the conveyance that stipulates any rights-of-way, other private property interests, such as mining claims, that encumber it at the time of conveyance. In other words: When lands are conveyed to an ANCSA corporation it comes with language that grandfathers other property rights on that land. MR. HUBER further stated these rights-of-way existed before being codified by this bill. It does not create a new right-of-way. It does not create a new right. These rights-of-way were accepted by public use prior to the extinguishment of RS 2477 rights-of-way statutes. PETE AMUNDSON testified via teleconference in Ketchikan. He asked, what are the 11 of the 602 certified, and what 5 out of the 11 are in litigation with the federal government. MR. HUBER stated the rights-of-way that are brought forth to be codified in the bill have not gone through the certification process. According to his understanding, there are five routes that are being litigated, only one was commenced by the state. The four other routes were commenced by private individuals looking to access their public right-of-way. MR. AMUNDSON stated the Unuk River road, a haul road, goes through wilderness in the Tongass National Forest, and asked whether it would be up for litigation. TAPE 98-42, SIDE B Number 000 MR. HUBER replied it possibly could be contested. The administration talks about brining lawsuits forward, but has only certified 11 routes since 1992. It has filed and gone to court on only one route. It has been looking for the ideal test case to establish a precedent. It would be impossible to guess now which of the routes would be the first contended or the most hotly contended. MR. HUBER further stated, it is important to note that for any road construction or trail blazing, a person will still need to go through the same permitting process with DNR. It allows for foot traffic and traffic that doesn't disturb the vegetation. The more stringent the land use restrictions are on the land surrounding the RS 2477 right-of-way, the more contentious the issue. REPRESENTATIVE JOULE asked Ms. Angvik what effect the bill might have on privately owned land. MS. ANGVIK replied the act of recording RS 2477 rights-of-way will cloud the title of private land in Alaska whether they are owned by individuals or Native corporations because each trail has not been identified. Therefore, a private landowner doesn't know whether it would encroach upon development opportunities. The Department of Natural Resources is strongly supportive of the state asserting RS 2477 rights-of-way and is pleased to have done the research that resulted in the identified 602 routes. But, the process set out in regulation requires a certification process - a title search to make sure who the landowner is. To date, DNR has only certified 11 of the routes. An alternative to the bill would be to record only the 11 that have been certified. Number 081 REPRESENTATIVE BARNES asked Ms. Angvik whether former Governor Hickel hired Mike Dalton (ph) to do the work on the RS 2477 rights- of-way. MS. ANGVIK replied Mike Dalton (ph) was on contract with the state to assist with the RS 2477 rights-of-way research. The funding was through a capital improvement program. He did great work with the staff in Fairbanks identifying the historical record that resulted in the 602 qualified routes. REPRESENTATIVE BARNES asked Ms. Angvik what specifically has been done with RS 2477 rights-of-way since the Knowles' Administration took over. MS. ANGVIK replied for the past three years the RS 2477 rights-of- way project has continued to do additional research. As recently as this spring, the department provided Senator Rick Halford with an additional 17 trails that qualified based on their historical records. In addition, the department did the global positioning system (GPS) routing for the one RS 2477 right-of-way that is being challenged in federal court outside of the Fairbanks area. It also worked with the Department of Law when the state was involved in the Puddicombe case between two individual parties. The current appropriation for the RS 2477 rights-of-way research within DNR has been approximately $200,000 for the last two years. There are two persons working on the project for two years on a full-time basis, as well as other research for mining operations in the Interior. REPRESENTATIVE BARNES asked Ms. Angvik how much money has the department expended identify the 17 RS 2477 trails. MS. ANGVIK replied approximately $600,000 (three years at $200,000 a piece). Number 138 NELSON ANGAPOLE, SR., Executive Assistant - Lands, Alaska Federation of Natives (AFN), testified via teleconference in Anchorage. The bill also includes the lands that lead to the ANCSA corporations. It represents the taking of the private land for public use without just compensation to the landowners. The taking of these lands at this magnitude is unprecedented. He cited examples of impacted land. This kind of taking is contrary to the Constitution of the United States and the concept of protecting private landowners. In addition, AFN is concerned that the bill would create (indisc.) on the land conveyed through the Native corporations. It seems if the state will be identifying RS 2477 rights-of-way it should be fully responsible for any liability, not the Native corporations. The Alaska Federation of Natives recommends that the state continue to identify access across Native lands using the existing (indisc.) of ANCSA, the proper way to identify these lands. REPRESENTATIVE BARNES stated the land transferred under ANCSA also included all of the RS 2477 trails with the land at the time. MR. ANGAPOLE, SR. stated the valid existing rights in place at the time of the Indian land freeze in 1967 and the passage of ANCSA remain in place. MR. HUBER stated it is not the intent of the sponsor to segregate other opportunities to access Native corporation land. Other possibilities do exist - 17B easements, acts of Congress, and purchases by the state. They are just existing rights that need to be preserved as a possible available means for future access. CO-CHAIRMAN OGAN stated that Article VIII, Section 1, "Statement of Policy," reads as follows: "It is the policy of the State to encourage the settlement of its land and the development of its resources by making them available for maximum use consistent with the public interest." CO-CHAIRMAN OGAN stated there is a compelling interest to make sure that all can be done to reserve these rights-of-way as mandated by the state constitution. Number 278 REPRESENTATIVE BARNES made a motion and asked unanimous to move CSSB 180(FIN), version 0-LS081\K, from the committee with individual recommendations and the attached fiscal note(s). Number 281 REPRESENTATIVE JOULE objected. CO-CHAIRMAN OGAN called for a roll call vote. Representatives Barnes, Masek, Williams and Ogan voted in favor of the motion. Representatives Joule and Nicholia voted against the motion. Representatives Dyson, Green and Hudson were absent. CO-CHAIRMAN OGAN called for a brief at ease. CO-CHAIRMAN OGAN called the meeting back to order. Number 294 REPRESENTATIVE BARNES made a motion to rescind her motion to move the bill from the committee. There being no objection, the motion was rescinded. CO-CHAIRMAN OGAN announced the bill will be held over until the next committee hearing.
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