Legislature(2015 - 2016)BARNES 124
03/25/2016 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| HB213 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 247 | TELECONFERENCED | |
| *+ | HB 213 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 213-RESTRICT ACCESS ST. LAND; FINDINGS; NOTICE
1:02:04 PM
CO-CHAIR TALERICO announced that the only order of business is
HOUSE BILL NO. 213, "An Act requiring the commissioner of
natural resources to make specific, detailed written findings
before restricting or prohibiting a traditional means of access
to state land, water, or land and water for a traditional
outdoor activity; and requiring certain public notice of a
proposed restriction or prohibition of a traditional means of
access to state land, water, or land and water for a traditional
outdoor activity."
1:02:23 PM
The committee took a brief at-ease.
1:02:47 PM
REPRESENTATIVE HERRON moved to adopt the proposed committee
substitute (CS) for HB 213, Version 29-LS0710\E, Bullard,
3/16/16, as the working document.
REPRESENTATIVE JOHNSON objected for discussion purposes and
noted he would like to see a summary of the changes.
1:03:32 PM
REPRESENTATIVE CATHY TILTON, Alaska State Legislature, as the
prime sponsor offered to provide testimony or go straight to the
changes in the bill.
REPRESENTATIVE JOHNSON said he would like to hear the changes.
CO-CHAIR TALERICO requested Representative Tilton to describe
what the bill does and then offer a summary of the changes.
1:04:13 PM
REPRESENTATIVE TILTON asserted that access to state land is a
fundamental precept of the state's constitution within Article
VIII, Sections 2-4, and perhaps the most relevant to this bill
is Section 4 which states:
§ 4. Sustained Yield
Fish, forests, wildlife, grasslands, and all other
replenishable resources belonging to the State shall
be utilized, developed, and maintained on the
sustained yield principle, subject to preferences
among beneficial uses.
REPRESENTATIVE TILTON read her testimony as follows:
Members of the committee, this has been a tremendous
week for Alaskans with the affirmation that we have
the right to access our lands. First, the Supreme
Court of the United States unanimously agreed with
John Sturgeon's interpretation of ANILCA, and only two
days ago, your own bill, Mr. Chairman, HB 216 passed
the House unanimously, as well.
While not as broad as HB 216, HB 213 is another bill
intended to confirm and clarify Alaskan's right to
access Alaska's public land through traditional means.
For nearly a decade, user groups have been in
disagreement with the Department of Natural Resources
over the management of the Rex Trail, up to and
including a lawsuit that ultimately was decided by the
Supreme Court. House Bill 213 was drafted to be
specifically responsive to the points of law ruled in
that case, which you have a copy in your packets. Mr.
Chairman and members of the committee it is clearly
the court's responsibility to interpret Alaska
statutes, but it is our right, responsibility, and
privilege to change the law when we observe it being
used in a way that the legislature did not originally
intend or envision.
Plainly stated, HB 21[3] requires the commissioner of
Natural Resources to provide detailed written findings
addressing specific points when restricting or
prohibiting traditional means of access to state land.
And it further requires the Department of Natural
Resources to provide adequate public notice when such
restrictions or prohibitions are adopted.
1:06:28 PM
REPRESENTATIVE JOSEPHSON asked whether Version E omits one key
part of this bill and referred to AS 38.04.200(a)(1)(C)(ii),
page 2, lines 12-15, which state:
(ii) a reasonable alternative for
the traditional means of access across the land,
water, or land and water for traditional outdoor
activities on other land, water, or land and
water is available and approved by the
commissioner; or
REPRESENTATIVE JOSEPHSON noted that it appears to tell the
commissioner that if he/she is blocking an entrance along a
right-of-way due to a safety consideration, the commissioner had
better find another means of access. In other words, this
access will happen period. He asked whether his interpretation
is incorrect.
REPRESENTATIVE TILTON deferred to her staff.
HEATH HILYARD, Staff, Representative Cathy Tilton, Alaska State
Legislature, replied that the aforementioned interpretation of
that provision is correct.
REPRESENTATIVE JOSEPHSON posited that if he is correct the bill
should have something other than a zero fiscal note because it
necessitates the building of trails.
MR. HILYARD responded that the fiscal note was prepared by the
Department of Natural Resources (DNR), and apparently at this
juncture DNR believes a fiscal note with a dollar appropriation
is not needed.
CO-CHAIR TALERICO noted that in his district, DNR does not build
a trail but does offer an alternate route.
1:08:48 PM
REPRESENTATIVE JOSEPHSON commented that clearly the design of
this bill is to remove some power from DNR, which it has had for
a long time, and give it to the legislature. He asked Mr.
Fogels why DNR concluded there was a zero fiscal note.
ED FOGELS, Deputy Commissioner, Office of the Commissioner,
Department of Natural Resources (DNR), answered that the
Department of Natural Resources did not interpret this section
to say the department had to build new trails, but rather the
department could not restrict for aesthetic values unless some
conditions are met or that alternative access was already there.
He reiterated that the department did not see a fiscal impact to
itself on this because it typically does not restrict access for
aesthetic values in any case on general state lands.
REPRESENTATIVE JOSEPHSON said his interpretation of sub-
subparagraph (C)(ii) and subparagraph (D), page 2, lines 12-19,
of the bill is that the department must participate in making
another reasonable alternative available. He asked what Mr.
Fogels interprets these provisions to mean.
MR. FOGELS responded that if DNR is embarking on restricting
traditional means of access for aesthetic values then DNR must
ensure that alternative access is available before making the
restriction. In the event there isn't, the department may be
prohibited under the statute from making that restriction. The
department is certainly not in a position to build new trails
without a capital appropriation from the legislature or a
specific funding source, he pointed out.
1:11:28 PM
REPRESENTATIVE HERRON asked whether the fiscal note is on
Version E or the original Version W.
MR. FOGELS believed it is on Version W, but held it would be the
same for Version E because the department's fundamental
assumption is that the bill restricts the department from
restricting traditional means of access in protecting aesthetic
values. He reiterated that the department normally does not do
that on general state land and, if it did, it certainly would
seek public involvement and perform some sort of finding.
1:12:29 PM
REPRESENTATIVE SEATON referred to AS 38.04.200(a)(1), page 2,
lines 1-2, of the bill, which states:
(1) commissioner makes specific, detailed
written findings that the restriction or prohibition
is
REPRESENTATIVE SEATON referred to AS 38.04.200(a)(1)(C), and
(C)(i), page 2, lines 8-11, of the bill which state:
(C) necessary [(3)] for the
protection of public safety and public or private
property and
(i) affects only a
traditional means of access on or across a state-
improved or state-maintained way or easement; and
REPRESENTATIVE SEATON asked whether the department has full
legal authority to restrict access for the protection of public
safety and private property exclusive of this segment of the
[proposed] statute.
MR. FOGELS responded that he believes so. The bill would
restrict the department's ability to restrict access for
aesthetic values. Therefore, in the event there was a trail
where the department believed there were public safety concerns
it would not be covered by this bill, in the department's
interpretation, he said.
REPRESENTATIVE SEATON referred to the legal case and the Rex
Trail, and noted it was not considered for aesthetic values but
rather for public safety concerns determined by the court.
Therefore, he pointed out, the department has perfect authority
to restrict access to the Rex Trail which is one of the specific
causes for this bill. He asked whether he was correct that the
department could still close off access to that trail whether
this bill is in place or not.
MR. FOGELS replied yes, that is DNR's interpretation in that it
would be able to manage access on a trail, such as the Rex
Trail, if it believed there was a public safety concern. He
reiterated that the department's interpretation of this bill is
that it only restricts the department from restricting access
for protecting aesthetic values.
1:15:00 PM
REPRESENTATIVE SEATON asked whether DNR needs to make a
different detailed finding if the department is restricting
access for aesthetic values and public safety concerns, or
whether it is one finding for both issues.
MR. FOGELS responded that the department performed public
outreach and public notice before proposing a management regime
for the Rex Trail, and there were findings involved in that. He
offered to read the definition of aesthetic values under Title
38, which is specific and clearly different from the definitions
of public safety or protection of resources.
MR. FOGELS referred to AS 38.04.200(b)(1), which states:
(1) "aesthetic values" means those values
that exist as an expression of the social or cultural
viewpoint held by a portion of the population;
1:16:51 PM
REPRESENTATIVE TARR distributed photographs to the committee,
and referred to AS 38.04.200(b)(2), page 2, lines 23-27, of the
bill, which state:
(2) "traditional means of access" means
those types of transportation on, to, or in the state
land, water, or land and water, for which a popular
pattern of use has developed; the term includes
flying, ballooning, boating, using snow vehicles,
operation of registered and unregistered all-terrain
vehicles up to 10,000 pounds, horseback riding,
mushing, skiing, snowshoeing, and walking.
REPRESENTATIVE TARR related that she is trying to understand how
Mr. Fogels was defining "all-terrain vehicles." In reading the
articles about the Rex Trail, she said it appeared, initially,
that the reason some of these vehicles were limited was due to
causing significant damage from their size and causing deep
ruts; another criticism was that the trail repair work hadn't
taken place. She referred to the photographs she passed out and
noted that a 10,000 pound vehicle is more like off-road vehicles
with gigantic tires. She expressed her concerned about the
significant kind of damage that this size vehicle could do. She
requested Mr. Fogels to explain, without the "up to 10,000
pounds" language, how he would define all-terrain vehicles and
how adding that language would change his definition.
MR. FOGELS replied he is unsure he has the expertise in managing
off-road vehicles to answer the question, and will check with
his staff who do this work day-to-day and get back to the
committee or have his staff go through it with the committee
during the next hearing.
REPRESENTATIVE TARR said she would appreciate that and added
that possibly she could email the photos in order to get a
better understanding of the current status, how it is defined,
the [proposed] new definition, and what that might mean in terms
of what is allowed so she could have a level of comfort that
salmon streams would not be damaged or cause other damages.
1:20:09 PM
REPRESENTATIVE JOHNSON removed his objection, and advised that
he googled a Jeep CJ7 and found it weighs approximately 4,900
pounds, so the discussion is about a vehicle twice that size.
REPRESENTATIVE TARR said it is unclear how that is being defined
and she is trying to understand whether the 10,000 pounds
becomes an issue.
MR. HILYARD offered that there are members of the user groups
online who asked for the 10,000 pound provision. He opined that
they were referring to larger snow track vehicles that will be
much heavier, but actually have a lower displacement in terms of
the width of the track.
1:21:47 PM
REPRESENTATIVE JOSEPHSON related that the more he looks at the
bill the more he is put at ease that this is about aesthetics
and the department doesn't regulate based on that. Although, he
noted, in the event the committee adopts a new definition of
traditional means of access, then the starting point without any
other emergency regulations for all of these R.S. 2477 trails
would be 10,000 pounds. In other words, the department would
now have to intervene in the manner it did on the Rex Trail
multiples of times if it found that 10,000 pounds created four-
foot ditches, he said.
MR. FOGELS clarified that DNR has regulations that specify what
are generally allowed uses on state lands. He read from the
regulation that specifies what the generally allowed uses are
anywhere on state lands regardless of what kind of trail or for
what purposes: "Using a highway vehicle with a curb weight of
up to 10,000 pounds, including a four-wheel drive vehicle and
pickup truck using a recreational type vehicle off-road, or all-
terrain vehicle with a curb weight of up to 1,500 pounds,
including a snowmobile or other tracked vehicle, motorcycle, or
ATV on or off an established road, easements, ...." He
explained that the regulation goes on and so he will provide the
committee with a copy of the department's factsheet for
generally allowed uses on state land.
REPRESENTATIVE JOSEPHSON confirmed the committee already has a
copy of the regulations. He posited that in the Robert Caywood
decision there is a more limiting regulation, 11 AAC 51.100(a),
that applies to R.S. 2477 rights-of-way and which states:
(a) The commissioner has management authority
over the use of any R.S. 2477 right-of-way that is not
on the Alaska highway system. Certain land use
actions on R.S. 2477 rights-of-way, including road
construction, may require a permit under 11 AAC
96.010, or other authorization by the department.
Based on a written determination by the commissioner,
the commissioner will, in the commissioner's
discretion, close or restrict the use of an R.S. 2477
right-of-way over which the commissioner has
management authority in order to
1:24:00 PM
REPRESENTATIVE JOSEPHSON referred to the R.S. 2477 rights-of-way
and asked whether the 11 AAC 51.100(a) regulation would have to
be amended in the event the committee amended this statute.
MR. FOGELS replied he could not answer the question with any
level of certainty. He reiterated that this statute only
applies to restricting uses for aesthetic values, which the
department does not generally do on general state land anyway.
REPRESENTATIVE JOSEPHSON advised that the aesthetic statute is
AS 38.04.200, the changed definition is AS 38.05.945, so it
appears that it falls under a broader definition that is used
for traditional ... [Representative Josephson stopped talking
and then told someone "You're right" and his testimony ended.]
1:25:15 PM
REPRESENTATIVE SEATON drew attention to AS 38.05.945(a)(7), page
3, lines 17-20, of the bill, which states:
(7) a restriction or prohibition of a
traditional means of access to state land, water, or
land and water for traditional outdoor activities for
the purpose of protecting aesthetic values of the
land, water, or land and water under AS 38.04.200.
REPRESENTATIVE SEATON said he is trying to put together AS
38.05.945(a)(7) and AS 38.04.200 because .200 is the new
definition before the committee and is applied throughout. He
inquired whether he is correct in his understanding of the
proposed language in [paragraph (7)] on page 3 of the bill.
1:26:10 PM
MR. FOGELS advised he was looking at Section 3, page 3, line 17-
20, "the addition of restriction or prohibition of a traditional
means of access," and was unsure what Representative Seaton
meant by [paragraph] 11.
REPRESENTATIVE SEATON, responding to Mr. Fogels, clarified he is
referring to AS 38.05.945(a), [paragraph] (7). He understood
this paragraph to be referring back to the definition and
changing the definition in .945 of the definition that is being
changed in .200(b)(2).
MR. FOGELS agreed.
REPRESENTATIVE SEATON referred to the definition change in AS
38.04.200 and AS 38.05.945 being specific to utilizing that
definition, asked whether that definition then applies
throughout the sections as to what would be considered a
traditional means of access and therefore the department's
current regulations of 1,500 pounds would no longer apply in
anything that deals with AS 38.05.945.
MR. FOGELS responded that Representative Seaton is correct
because Section 2, [AS 38.04.200(b)(2)] would amend the
definition of traditional means of access throughout Title 38.
He said he does not think the department has determined that
that would impact its generally allowed uses regulation, but
added that he will get back to the committee.
REPRESENTATIVE SEATON said he would appreciate Mr. Fogels
getting back to the committee because the proposed new
definition would apply throughout Title 38 and could affect the
regulations for generally allowed uses because the regulations
may not be consistent with the statute as amended.
1:28:57 PM
MR. HILYARD explained that AS 38.04.200 deals with the specific
and detailed written findings that the commissioner must issue
in order to make such a closure, and AS 38.05.945 has to do with
the public notice. So, AS 38.05.945 stipulates that if there is
a closure pertaining to aesthetic values there has to be
adequate public notice; therefore, [paragraph] (7) is only
adding that restriction pursuant to AS 38.04.200 into the list
of notices required. He further explained that the first
section has to do with the substantive component of the detailed
written findings the commissioner must issue, and AS 38.05.945
deals with the subsequent public notification. Mr. Hilyard
continued that the sponsor is basically adding this restriction
or prohibition as a list of required public notices pursuant to
protecting aesthetic values of land, water, or land and water
under AS 38.04.200. He stated he is not saying Representative
Seaton is incorrect, but that they do deal with fundamentally
different portions of Title 38.
REPRESENTATIVE SEATON said he would like the department's
official answer given that Mr. Fogels indicated it might apply
throughout Title 38.
CO-CHAIR TALERICO agreed that Section 3 is specifically about
public notice and not usage.
1:30:39 PM
REPRESENTATIVE JOSEPHSON recalled Mr. Hilyard as saying that the
notice in AS 38.05.945 is about situations of aesthetic concern.
He questioned whether that is correct because his understanding
is that it is about any kind of notice.
MR. HILYARD clarified his point was that the proposed new
language, AS 38.05.945(a)(7), on page 3, lines 17-20, deals
specifically and only with the aesthetic values. He confirmed
AS 38.05.945 deals with all public notices, but pointed out that
.945(a)(7) would add the restriction for aesthetic purposes.
CO-CHAIR TALERICO asked Representative Johnson whether he would
like to go through the summary of changes.
REPRESENTATIVE JOHNSON replied he is clear on the bill now.
1:31:43 PM
REPRESENTATIVE SEATON remarked that he would like to determine
whether a small Caterpillar tractor would be allowed under this
bill, because it may or may not be at winter and may or may not
be confined. He said he is aware that this is access to state
lands, but pointed out that the new definition of water passed
by the committee is any pond or estuary or anything that has
water in it at any time of the year. Unless the commissioner
makes a specific designation for a specific area, he posited
that the committee may be causing unintentional harm so he would
like to see the parameters of the bill and what it could affect.
CO-CHAIR TALERICO said there are many perplexing issues. He
noted there are few track-type push dozers that can be purchased
weighing less than 10,000 pounds. A 17 horsepower rubber tired
tractor weighs somewhere between 7,600 and 9,400 pounds, he
advised, and most of that "yellow iron" easily cracks 10,000
pounds and a D3 probably weighs 17,800 pounds at least.
MR. HILYARD stated that the key with regard to the 10,000 pounds
is that it is preceded by all-terrain vehicles. He said he is
unfamiliar with the definition and will work with the department
and get back to the committee at its next meeting.
1:34:35 PM
REPRESENTATIVE SEATON asked how often the commissioner restricts
usage for aesthetic reasons.
MR. FOGELS responded that outside of state park units, DNR does
not restrict traditional access for aesthetic values, the
restriction is for public safety or resource damage reasons.
REPRESENTATIVE SEATON referred to his earlier question regarding
a finding and that the findings generally are not done in
combination. He said it would just be a single finding for
public safety or management reasons and not necessarily include
a determination for aesthetic values.
MR. FOGELS confirmed Representative Seaton is correct, and
reiterated that in the event there was a situation where the
department believes there are public safety issues it would
perform a finding for that particular trail, such as with the
Rex Trail. The department would explain its reasoning, what the
problems were, what its proposed restriction would be, and then
go to public notice with that.
1:36:11 PM
CO-CHAIR TALERICO inquired where the photos were taken that
Representative Tarr distributed.
REPRESENTATIVE TARR advised that she did a Google search because
she was trying to understand what 10,000 pounds means. She said
she will send the links to the committee.
CO-CHAIR TALERICO commented that one of the photographs could
potentially be from the Rex Trail and another could be from the
Stampede Trail established by the Alaska Road Commission in
1963. He noted that the Alaska Road Commission put it in the
wrong spot, although it was built in the winter and things are
completely different when built in the summer.
CO-CHAIR TALERICO opened public testimony.
1:37:25 PM
WARREN OLSON said he has lived in Alaska since 1958, run track
machines and vehicles over trails for 50-plus years, and the
phenomena of four-wheelers has expanded tremendously. He said
the state should go in the direction of equipment with a lighter
footprint, and this lighter footprint comes from pounds per
square inch (psi); for example track rigs up to 10,000 pounds
can have a lighter footprint than a person weighing 150 pounds.
He said he does not see the purpose of people just going out and
ripping up a trail with no interest in harvesting food, catching
fish, or traveling on these trails, which is a recent phenomenon
that is becoming a huge problem. Historically, folks would run
trails that could be run during winter or early spring and then
in late summer or fall folks would be on another trail for the
same location, but it would be a summertime trail. So,
historically, folks were running bulldozers and heavy equipment
but they took care of the trails in those days. He said it was
an absolute travesty to turn down the Rex Trail and then let it
sit there for four or five years, be bantered back and forth,
and closed. He posited that the public will have to go to track
rigs and said the state should work harder on keeping more
trails open because it spreads people out. Conflicts take place
when people are concentrated on the few remaining trails. He
reminded the committee that Mother Nature in the form of
earthquakes, floods, beavers, 10,000 caribou walking around, and
other things wipes out trails. Sometimes people must clear the
trails or make their own trails with shovels and chainsaws.
With some common sense the state can get through this, he said.
1:41:05 PM
REPRESENTATIVE TARR surmised that track vehicles are similar to
the extended belt type vehicle so that it spreads out the
overall psi impact of that vehicle. She noted that Version E
doesn't specify it has to be that type of vehicle and only
indicates the pound limit, so to her this indicates it could be
the other type of vehicle, such as the off-road vehicle with
large tires. She opined that Mr. Olson was offering support for
something a bit more defined, and that the committee should be
moving toward the low psi-type track vehicles which is why the
pound limit wasn't a concern.
MR. OLSON responded that the purpose of the phenomena advertised
on television is of going out and tearing up the trail, and it
is not to use the trail to get from one point to another. That
problem can be solved, he opined, and the state needs to go
there. With regard to closing down a trail for safety reasons,
he commented that in 50 years he has seen only one landslide
closing down a trail along a railroad and everyone had enough
brains to stay off that slide.
1:43:06 PM
MELVIN GROVE, Alaska Outdoor Access Alliance (AOAA), said he
became involved due to what happened on the Rex Trail. He
described access as a huge issue, and not only on the Rex Trail,
to allow some Alaskans to feed their families and make a living.
On the hierarchy of need, access is right there with food and
water. Restricting access moves down a slippery slope, and the
Sturgeon v. Frost, Alaska Regional Director of the National Park
Service, 577 U.S. ___ (2016), was a tremendous victory for
Alaskans because that issue was about access. He offered
concern that the Department of Natural Resources (DNR)
commissioner closed it at the whim of discretionary authority,
and that what is considered a safety issue or damage to public
property is in the eyes of the beholder and that the
commissioner cannot be allowed to have that broad discretionary
authority in this case. The discussion is about general state
lands wherein Alaskans can hunt, fish, gather berries, or gold
mine. There has been a lot of talk about damage and what a
10,000 pound vehicle could cause. But what is the standard that
is going to be set as damage? Logging and mining is performed
across the state. He pointed out that on the Rex Trail a person
can go to Gold King Creek where the mining has completely
resurfaced the face of the earth and an entire valley destroyed,
yet DNR closes a trail due to a few ruts. He maintained that
the trail was closed to longtime Alaskans who have used that
trail for years because property was sold to locals who didn't
like the added pressure they were seeing around their private
little strip of land with a large population of moose, and they
complained about the added ruts on the trail.
1:47:28 PM
MR. GROVE pointed out that in 2002, DNR changed the generally
allowed uses and added a weight restriction to the definition of
an ATV without a single public notice. He held that generally
allowed uses already says that a highway vehicle up to 10,000
pound can use state land. He asked the difference between a
10,000 pound highway vehicle and an 8,000 pound modified Jeep
without a license plate on it, saying that just because a
vehicle is registered doesn't mean it will not create some
damage. He said a certain amount of damage must be accepted.
Walking on the terrain causes damage and there has to be a
determination of an acceptable amount of damage and whether it
is permanent damage. He has been going down the Rex Trail for
years on a track rig that exerts less ground pressure than a
person does standing, and he safely uses the trail and Mother
Nature will take the trail over if it stops being used and the
only way to sustain a trail is to use it.
MR. GROVE addressed the provision that the commissioner must
offer a reasonable alternative and said his organization does
not need or expect the commissioner to develop another trail
around a safety hazard on a portion of a trail. The public will
make a route around that portion if it is given access and the
ability to create it. The trails were created by public
resources not by state or private resources, so he does not
expect the state to create trails. He reiterated the 10,000
pound restriction is already in generally allowed uses for a
registered vehicle and said it makes no sense that just an ATV
should be restricted to 1,500 pounds because it just gives
someone something to complain about.
1:51:58 PM
REPRESENTATIVE SEATON recalled Mr. Fogels testifying that the
only time DNR uses aesthetic values to make a closure is in
state parks. He asked whether Mr. Grove thinks this would be
dealing with state park land, or is thinking that the definition
of public safety would be challenged and other closures outside
of parks would be for aesthetic values. Otherwise, he
continued, he does not see how this bill applies to the Rex
Trail or pretty much anything else other than in state parks if
the only place DNR applies that standard is within state parks.
MR. GROVE replied he does not see HB 213 as applying to state
parks, but rather as applying to general state land. He
acknowledged Mr. Fogels testified that this would not change
what happened on the Rex Trail. He turned to Section 1 and
stated that one of the reasons for putting in "notwithstanding
any other provisions of law," is the hope that the legislature
would be certain DNR was not closing down a trail simply for
discretionary protection of what it considers damage to public
property, public safety, and public hazard. This [proposed]
statute would make it extremely hard for DNR to close down any
trails. He opined that whether or not this [bill] would have
that effect would be determined in another lawsuit in the event
DNR will not change its current management scheme in restricting
Alaskans from valuable resources on the Rex Trail.
1:54:26 PM
REPRESENTATIVE JOSEPHSON noted Mr. Grove is part of the class
that sued the state. He asked whether it was Mr. Grove's view
that the trial court's finding and the Alaska Supreme Court
affirmation regarding damage safety considerations, was just
phony. He asked whether it was his position that this was all
just a ruse and that it was really just an aesthetics concern.
MR. GROVE responded yes, it really was [a ruse]. There was
never an actual report of any damage by any vehicles per se,
reports of accidents or anyone getting hurt on the Rex Trail.
He acknowledged that the trail had seen significant use but to
say there was permanent public damage that would never heal was
a total ruse. Where does it stops? A picture can be taken of a
four-foot rut or anything and say it was damage or is now a
safety concern because the next commissioner may say it might be
a one-foot rut. The definition of a safety issue and what is
damage needs to be defined, and he cannot see how the department
can legitimately consider the Rex Trail permanently damaged or
damaged to the point it will harm the state or Alaskans. The
only thing it did was it gave limited access to others who had
to move to a different area and put pressure on other areas, and
it gave those living along the trail more freedom with less
pressure in their backyard. He said he could pay the $100 fee
if he wants to go down the Rex Trail with a rubber track rigged
vehicle and that if he agrees to pay the permit they want to say
he can't go any farther than 100 feet from the trail because
they are protecting the area of the 1,000 square miles alongside
the trail that is open to motorized access, and he can't use
that area. Two years ago he received a criminal citation for
trespass because he was off the trail more than 100 feet and has
been fighting these guys for years. He could go along with DNR
and hunt out there with fewer people out there and his success
rate has been a lot better, but what kind of person would that
make him if he is just out for himself? This issue needs to be
fixed, the reins need to be pulled in on DNR, and if this
doesn't fix it maybe the bill needs to be stronger.
1:58:58 PM
ROBERT CAYWOOD identified himself as one of the original
plaintiffs in the Rex Trail lawsuit. He said he has hunted for
35 years all over Alaska, on foot and on various vehicles. In
2002 the state changed allowable uses and it caused tens of
thousands of Alaskans to illegally go out to obtain their moose
meat or fish. He related that he hopes this bill will change it
back to what it was before it was illegally changed.
REPRESENTATIVE JOSEPHSON asked whether Mr. Caywood still has a
business where he leases these large recreational vehicles.
MR. CAYWOOD responded that he never did.
REPRESENTATIVE JOSEPHSON questioned whether he was ever an owner
of C.M.M. General Contractors.
MR. CAYWOOD replied that he is.
REPRESENTATIVE JOSEPHSON asked whether C.M.M. General
Contractors leased snow cats and fully tracked vehicles.
MR. CAYWOOD answered that he has some snow cats for sale, but
they are not used for moose hunting, they are working machines
that can pull 30,000 pounds and they weigh over 10,000 pounds.
2:01:03 PM
PATTI BARBER said she would like to see a first person history
of anyone having an accident with personal injuries on the Rex
Trail caused by a large vehicle rut. She described the large
vehicles as the traditionally used vehicles on the Rex Trail and
other similar trails within the state. In the event a permit is
necessary to access these trails, she suggested that the state
re-adopt the [sale of] an occasional use license plate. She
offered support for the psi rating on trails because even a
bicycle and a human foot create a deep rut, and asked whether
this use will have to be permitted.
2:02:06 PM
KENNY BARBER said he pretty much supports the bill as written,
and related that he has spent almost 40 years swamp buggy
hunting and trapping. Referring to Mr. Olson's testimony
regarding psi, he said there is a large difference between the
way the rubber tires are made for the rigs and in the old days
wherein his airplane tires he used tore up a lot of country
going through. Subsequently, farm implement tires came out to
run on the buggies which made a big difference because a person
could hardly see where they crossed the river. Regarding the
under 10,000 pounds issue and licensed trucks, he said anyone
can go out there and rip up a trail with a vehicle or a bicycle
and that the state should create an area for them where the
habitat won't be hurt or any other forms of land issues. The
Knik River is probably one of the most off-road used places in
the state. As for salmon stream problems, he advised that for
41 years he and a couple of hundred people have crossed the
creeks in the same spot and yet the salmon still spawn in the
places they cross. He opined that the people riding up and down
in the creeks parallel hurts salmon spawning, it's not the
crossing of the creeks.
2:05:02 PM
ANDREW ZAJAC said he has lived in Alaska since 1969 and over the
years he has seen the state becoming more restricted, whether
state, federal, or private lands. He related that he cannot add
to the previous testimonies, he supports the bill, and believes
trails need to be open because the value of the land is not
necessarily blueberries and miniature birch trees, the value of
the land is simply an access route.
2:06:35 PM
RANDY BJORGAN advised that in the 1980s his family arrived in
Alaska and they were able to go just about anywhere they wanted
and were young enough to do it in any method they wanted, and
usually by foot 10-15 miles. Now that he is older he has to
rely on mechanical means of getting to some places, and it is
bad when access to areas where his family wants to recreate,
hunt, fish, pick berries, or enjoy Alaska wildlife are more and
more restricted by personal whims of governmental agencies based
to close and restrict areas and access routes. Due to the
Sturgeon decision, Alaska saw that government overreach had gone
a step too far and this bill will help to stop some of that
within this state. He held that opponents to the bill are
basically saying that Alaskans should have no access to the
lands they have enjoyed over the years.
CO-CHAIR TALERICO closed public testimony after ascertaining no
one else wished to testify.
2:08:29 PM
REPRESENTATIVE SEATON asked Mr. Fogels to address the testimony
offered by those who believe that Section 1, AS 38.04.200(a),
page 1, line 9, "(a) Notwithstanding any other provision of law"
means that this definition would be applied not just in state
parks but applied to prevent DNR from closing any trail.
MR. FOGELS replied that the bill reads: "Restricted activities,
restricted or prohibited for the purpose of protecting aesthetic
values of the land," within Title 38. The department's read is
that it should not affect its ability to manage state parks, but
is just focused on cases where DNR would choose to try and
restrict access to protect aesthetic values.
REPRESENTATIVE SEATON advised that the person testifying in
regard to Version E, page 1, line 9, "Notwithstanding any other
provision of law," stated that the purpose was so DNR would not
be able to close down other trails, not state parks, but other
trails for public safety reasons. He requested DNR to put on
the record whether it believes that "Notwithstanding any other
provision of law," does or does not extend the usage of this to
public safety.
MR. FOGELS replied that DNR's interpretation at this point is
that it does not extend this to public safety, it is strictly
referring to protecting the aesthetic values. The department
does not have a formal attorney general's opinion on this, and
has had brief conversations with some of its attorneys.
2:11:24 PM
REPRESENTATIVE JOSEPHSON recalled Mr. Fogels as stating that in
regard to the aesthetic values caveat, that state parks wouldn't
be implicated. He said he is unsure where this is seen, but
added that this is not tearing up the state parks statutes. He
noted there are other land designations besides parks, such as
the Caines Head State Recreation Area [near Seward]. There was
a dispute in Gustavus when the previous administration wanted to
change the way in which the state regulates and manages other
designated areas, such as Round Island that are not parks per
se. He inquired whether Mr. Fogels has asked the attorney
general's office to look at the bill.
MR. FOGELS answered that there have been discussions with the
attorney general's office, buy not in great detail and DNR has
not had a chance for the attorney general's office to tuck into
this in as much detail as is probably necessary. The committee
may want someone from the Department of Law to be available at a
future hearing. This is all within the Title 38 statute and how
it would apply to Title 38 lands, whereas there are separate
statutes for state park management and regulation of access.
2:13:24 PM
CO-CHAIR TALERICO requested clarification because he assumed
that land legislatively designated is not only covered under
other statutes but has its own set aside management plans, which
actually supersede anything else that would be in statute since
they are designated that way.
MR. FOGELS agreed, and he said that is DNR's interpretation --
all of the state park units are created by their own statutes
and have their own management direction within the statute.
REPRESENTATIVE SEATON reminded the committee that Mr. Fogels
testified that the only place DNR closes trails is for aesthetic
values in state parks, and he commented that since this is not
done outside of state parks what is the nexus of the bill to
these trails. He then noted testimonies that interpreted
"Notwithstanding any other provision of law" to extend to trails
across the state. He reiterated he needs some definition from
DNR as to the full parameters of the bill.
2:15:02 PM
REPRESENTATIVE TARR referred to the testifiers who stated that
no injuries had occurred on the trail, and she opined, from a
management perspective, the department would want to be more
conservative and actually prevent an injury from happening
because had someone been hurt and it was proven to be due to
improper management, that person could sue the state. She
surmised that when considering public safety concerns, DNR would
error on the side of prevention rather than after.
MR. FOGELS replied that ideally if DNR sees a situation
developing and believes it would be a serious safety concern to
the public, it would try to address the situation before an
accident happened. He agreed with Representative Tarr's
statement, but added it is sometimes easier said than done and
is difficult to second guess.
REPRESENTATIVE TARR opined that all of the actions were found,
by the court, to be proper in that the department could
substantiate there was enough damage to be a safety concern.
The department needs to be as preventative as possible, she
concluded, even though that cannot always happen.
2:17:05 PM
REPRESENTATIVE JOSEPHSON recalled Mr. Fogels stating that DNR is
not particularly concerned because a caveat on all of this is
the aesthetic issue. He said he sees under AS 38.05.035, Powers
and duties of the director of lands, and under AS 44.37.020,
Duties of the department with respect to natural resources,
that, clearly, the legislature has a role in all of this.
However, he continued, HB 213 says that if in the future DNR
wants a designation based on aesthetics, the legislature must
sign off. Given that is currently not the law, he asked whether
Mr. Fogels is okay with relinquishing that power.
MR. FOGELS responded that that is a difficult question to answer
because DNR really hasn't managed general state land for
aesthetic values because that is not what the department does on
general state lands. He opined there is a pathway here if the
committee wants to do that in the future, and if this bill were
to pass it would still allow DNR to have a management pathway to
do that.
2:18:42 PM
REPRESENTATIVE JOHNSON questioned whether all of DNR's power
flows from the legislature.
MR. FOGELS answered yes.
REPRESENTATIVE JOHNSON clarified that the power is through
statute and law, so he anticipates that the department would be
comfortable with the laws the legislature sends it.
MR. FOGELS responded yes, the department abides by the laws.
REPRESENTATIVE JOHNSON said he expected that answer and thanked
Mr. Fogels.
2:19:25 PM
REPRESENTATIVE JOSEPHSON related that he has read the Caywood
decision thoroughly and that DNR put a tremendous amount of time
into studying the Rex Trail issue, preparing a report,
performing long term studies, sending men and women into the
field, taking complaints, defending the lawsuit in trial court,
and defending it before the Alaska Supreme Court. He asked
whether Mr. Fogels is proud of the department.
MR. FOGELS confirmed he is always proud of the department and
noted that the Rex Trail has been a difficult issue and at least
four commissioners have grappled with the Rex Trail. The
department realizes that it is a problem, it realizes there are
a huge number of people out there very upset with the way the
department has managed that trail. He said the department has
done its best to try to work through it, has received money to
do some work to get some information on what the damage is, and
what types of uses cause more damage or less damage;
additionally, DNR has received a lot of money to try to fix
parts of the trail. He reported that just today the department
learned that $720,000 in Pittman-Robertson funds was approved
for fixing another section of the trail. He said DNR can
leverage that with some capital funds it already has and will
start this summer working on fixing and re-establishing portions
of that trail so it can withstand heavier use. He remarked that
the department realizes this problem and has been working on it,
and so far the solutions have not been perfect for everyone.
2:21:31 PM
REPRESENTATIVE SEATON observed that the restriction or closure
must be for an area of 640 contiguous acres or less [page 2,
lines 3-4], may not be in effect for more than three years and
cannot be in effect for more than eight months, cumulatively,
during that time [page 2, lines 5-7], and must be deemed
"necessary" for public safety purposes [page 2, lines 8-9]. He
referred to adding the word "necessary," such that, "Must be
deemed 'necessary' for public safety purposes," and since it is
the protection of public safety "and" public or private property
it appears to be correct that this limitation is now not only
for the protection of public safety and public or private
property, but it is deemed necessary to do that. He asked
whether the restriction that the department must prove that this
action is necessary for the terminations to move forward in the
department's findings.
MR. FOGELS replied that the addition there is the word
"necessary". He said it seems that the way the original statute
is written, DNR still must show it was necessary. He suggested
Representative Seaton speak to someone from the Department of
Law, but said he would interpret that DNR's finding would have
to address the protection of public safety and public or private
property regardless of this change.
2:23:38 PM
CO-CHAIR TALERICO stated he has been on the Rex trail more than
two dozen times, as it is not far from his home. He said that
dependent on the weather and conditions of the summer he has
driven to the Two Rivers area with a two-wheel drive Ford pickup
that had a positive traction rear-end. Sometimes it is dusty
and sometimes muddy. He offered concern about someone in the
administration making a safety determination, saying it opens
the possibility of closing the Iditarod one year, or closing the
Iron Dog, and or the Artic Man because, traditionally, Alaskans
like to go to the edge to some degree and if they didn't, those
marvelous events would not exist. He advised there are things
to be done here, he will stay connected with the sponsor, and
that the bill may require a deeper legal opinion, and he will
therefore hold over the bill.
REPRESENTATIVE SEATON acknowledged he has never has been on the
Rex Trail, but said that to him this is a simply a law of
statewide application to all state land. He noted he is unsure
whether the discussion is only about R.S. 2477 trails, and is
trying to get a clear handle on the application of this and
whether the change to 10,000 pound vehicles everywhere is what
is truly being discussed. The said the only reason he is
talking about the Rex Trail is because the committee packet held
those documents. He then pointed out that he did not hear
suggestion for what the psi should be, and asked whether that is
something that would give the committee a clear definition of
what makes sense to be allowed to give people greater access
throughout Alaska without damaging habitat.
2:27:15 PM
CO-CHAIR TALERICO pointed out that psi is subjective to the
conditions of the trail and the material being used because some
trails go across bridge lines with solid gravel and are probably
harder than the asphalt roads. The trails are all in different
climate zones, at different elevations, and different weather
patterns so it is not an easy question to answer. He opined
that the Rex Trail was involved because it was an emotional
issue to deal with and noted that he was a municipal official at
the time some of these things came down. Even though the
department did its best to hold its own, it probably went beyond
what it felt its original finding was with some of the things it
stated in a public meeting, and, being fully aware it was
emotional, he would have defended himself as well. The folks in
the area of the Rex Trail take their outdoor recreation
seriously as do the people that travel to that area. There
probably wasn't an easy answer there and said he appreciates the
sponsor trying to work on something that will get the state to
some result at some point.
REPRESENTATIVE TARR thanked the sponsor and said the provision
requiring that the commissioner communicate the findings could
be productive to make sure communications increase. For her,
she noted, the issue is understanding the vehicle limit.
2:29:20 PM
CO-CHAIR TALERICO said he appreciates the written findings in
the notice because no one likes a decision to suddenly appear,
and advised he will try to get the information gathered up and
put it back on the hearing agenda as soon as possible.
REPRESENTATIVE TILTON advised she is available to work with
anyone to help answer the questions.
[HB 213 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| CS HB 213, Version E.pdf |
HRES 3/25/2016 1:00:00 PM |
HB 213 |
| HB 213 Sponsor Statement.pdf |
HRES 3/25/2016 1:00:00 PM |
HB 213 |
| HB 213 11 AAC 96.020 - Text.pdf |
HRES 3/25/2016 1:00:00 PM |
HB 213 |
| HB 213 Eastern Rex Trail, Daily News-Miner 090315.pdf |
HRES 3/25/2016 1:00:00 PM |
HB 213 |
| HB 213 Rex Trail Executive Summary.pdf |
HRES 3/25/2016 1:00:00 PM |
HB 213 |
| HB 213 Caywood v DNR.pdf |
HRES 3/25/2016 1:00:00 PM |
HB 213 |
| HB 213 Summary of Changes.pdf |
HRES 3/25/2016 1:00:00 PM |
HB 213 |
| HB 213 FiscalNote.php.pdf |
HRES 3/25/2016 1:00:00 PM |
HB 213 |