Legislature(2011 - 2012)BARNES 124

04/02/2012 01:00 PM RESOURCES

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01:08:31 PM Start
01:09:36 PM Confirmation Hearing(s): Board of Game
01:32:32 PM HJR40
01:53:32 PM HB356
02:28:46 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
+ Confirmation Hearing: TELECONFERENCED
Board of Game
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHJR 40(RES) Out of Committee
                  HJR 40-RS 2477 RIGHTS-OF-WAY                                                                              
1:32:32 PM                                                                                                                    
CO-CHAIR FEIGE  announced that the  next order of  business would                                                               
be HOUSE  JOINT RESOLUTION  NO. 40,  Commending the  governor and                                                               
the  administration  for  aggressively  working  to  enforce  the                                                               
rights  of  the state  in  R.S.  2477 rights-of-way;  urging  the                                                               
governor and the  attorney general to develop  a working alliance                                                               
with  other western  states to  protect and  enforce the  states'                                                               
interests in  ensuring access  using rights-of-way  authorized by                                                               
R.S.  2477;  urging the  governor  and  the attorney  general  to                                                               
support the State of Utah and  the southern counties of Utah in a                                                               
lawsuit  against  the  federal government  concerning  R.S.  2477                                                               
rights-of-way,  including filing  an amicus  brief in  support of                                                               
Utah;  urging  the  governor  to   dedicate  state  resources  to                                                               
establish,  protect, and  enforce the  state's interests  in R.S.                                                               
2477 rights-of-way  and to  preserve state  rights-of-way against                                                               
encroachment by  the federal government;  urging the  governor to                                                               
reestablish a  federalism section  in the  Department of  Law and                                                               
sections  in   the  Department  of  Natural   Resources  and  the                                                               
Department of  Fish and Game  to support the preservation  of the                                                               
state's  rights  and powers  in  compact  cases; and  urging  the                                                               
governor  to   prepare  an  appropriation  request   to  fund  an                                                               
aggressive  effort by  the state  to resolve  issues relating  to                                                               
R.S. 2477  rights-of-way, including  possible litigation,  and to                                                               
continue to  work to preserve the  rights of the state  in regard                                                               
to  R.S.  2477 rights-of-way.    [Before  the committee  was  the                                                               
proposed  committee  substitute  (CS),  Version  M,  labeled  27-                                                               
LS1407\M, Bullock,  3/29/12, adopted  as the working  document on                                                               
1:32:49 PM                                                                                                                    
CO-CHAIR SEATON moved to adopt  the proposed committee substitute                                                               
(CS) for  HJR 40,  Version 27-LS1407\B,  Bullock, 3/30/12  as the                                                               
working document.                                                                                                               
REPRESENTATIVE KAWASAKI objected for the purpose of discussion.                                                                 
REPRESENTATIVE  SEATON requested  an explanation  on the  changes                                                               
between this version and the prior version.                                                                                     
1:33:18 PM                                                                                                                    
JIM  POUND,  Staff,  Representative   Wes  Keller,  Alaska  State                                                               
Legislature,  stated that  Version  B of  HJR  40 addresses  some                                                               
concerns  that the  Department of  Law (DOL)  had with  the prior                                                               
committee substitute  (CS).   He referred to  Version M,  page 1,                                                               
line 6, which read "the attorney  general to support the State of                                                               
Utah"   Version B changes  it to the  "interests of the  State of                                                               
Utah" and  on page 1, line  7, of Version M,  deletes "lawsuit to                                                               
enforce."  On  page 3, line 20 of Version  M, add "interests of."                                                               
On page  3, lines 20-21  delete "in  a lawsuit to  enforce Utah's                                                               
interest" and  add on  line 22,  "litigation in  the state."   On                                                               
page  4,  adds a  paragraph  to  indicate  the parties  who  will                                                               
receive copies of the resolution.                                                                                               
1:34:53 PM                                                                                                                    
REPRESENTATIVE  SEATON referred  to  page 1,  line  8, and  asked                                                               
whether "in the state" was added.                                                                                               
MR. POUND answered yes.                                                                                                         
1:35:14 PM                                                                                                                    
REPRESENTATIVE KAWASAKI referred to  the first "further resolved"                                                               
[page 3, line  19] and said he still has  a concern regarding the                                                               
clause.  He wondered what  "supporting the interests of the State                                                               
of Utah" actually would represent.                                                                                              
MR. POUND  related his  understanding that Utah  is on  point for                                                               
R.S. 2477 in the  West.  Utah has won one case  in the courts and                                                               
is  in the  same situation  -  greatly exaggerated  - since  Utah                                                               
currently  has  18,000 specific  R.S.  2477  cases the  state  is                                                               
asserting.    However,  Utah's  interests  are  very  similar  to                                                               
Alaska's in  terms of asserting  a right for access  through land                                                               
that previously belonged to the  Territory of Alaska that in 1969                                                               
was removed, in part.  Since  then, Alaska has been attempting to                                                               
assert its  right in what was  supposed to be an  orderly fashion                                                               
in  1976,  but  the  "orderly fashion"  has  been  restricted  by                                                               
various  federal agencies  and departments.   Currently,  Utah is                                                               
moving forward in  the court system, which gives  Alaska a chance                                                               
to learn from that state's mistakes and victories.                                                                              
REPRESENTATIVE KAWASAKI  withdrew his objection.   There being no                                                               
further objection, Version B was before the committee.                                                                          
1:37:51 PM                                                                                                                    
REPRESENTATIVE   KAWASAKI  observed   that  the   first  "further                                                               
resolved"  speaks to  the  fact the  legislature  would urge  the                                                               
governor  and  the  attorney  general's  office  to  support  the                                                               
interests of the State of Utah.   He asked how he would view this                                                               
1:38:19 PM                                                                                                                    
KENT  SULLIVAN,  Assistant  Attorney General,  Natural  Resources                                                               
Section,  Department  of  Law,  stated  Utah  is  very  similarly                                                               
aligned with  Alaska on R.S.  2477, but  is ahead of  Alaska with                                                               
respect  to  getting  R.S.  2477 recognized.    Alaska  wants  to                                                               
support Utah, to  the extent that Alaska can join  Utah in moving                                                               
R.S.  2477 forward  and having  federal  officials recognize  the                                                               
rights-of-way, and create policies  to recognize those rights-of-                                                               
way  without  having to  resort  to  litigation to  assert  those                                                               
MR.  SULLIVAN  related  his   understanding,  from  meeting  with                                                               
attorney generals  from Utah  as well  as county  officials, that                                                               
Utah  would like  Alaska to  support their  efforts by  asserting                                                               
litigation,  identifying  rights-of-way,  and attempting  to  get                                                               
federal managers  to recognize that  through a change  in policy,                                                               
without  filing  litigation,  or   by  initiating  litigation  in                                                               
1:39:54 PM                                                                                                                    
CO-CHAIR  SEATON referred  to the  language on  page 3,  line 20,                                                               
which  seems confusing  since  it says,  "urging  to support  the                                                               
interests of  the State of  Utah; however, he asked  whether that                                                               
is  limited because  after the  counties of  Utah, it  reads, "in                                                               
R.S. 2477 rights-of-way"  so that is the only  interest Alaska is                                                               
asking for in HJR 40.                                                                                                           
MR.  SULLIVAN confirmed  that this  is correct.   He  said, "It's                                                               
simply R.S. 2477  rights-of-way since Alaska and  Utah are facing                                                               
the exact  same issues.   He clarified  that Alaska  is basically                                                               
promoting   Alaska's   interest   vis-à-vis   supporting   Utah's                                                               
interests with respect to R.S. 2477."                                                                                           
1:41:00 PM                                                                                                                    
CO-CHAIR FEIGE opened public testimony on HJR 40.                                                                               
1:41:15 PM                                                                                                                    
MALCOLM  ROBERTS,  Consultant,   Malcolm  Roberts  &  Associates,                                                               
stated he is also a senior  fellow at the Institute of the North;                                                               
however  today  he  is  representing  himself.    He  stated  two                                                               
critical   issues  are   addressed   in   this  resolution   with                                                               
significant ramifications  for Alaska's  resources until  the end                                                               
of this century and beyond.   First, the resolution addresses the                                                               
valid  existing rights  of access  across  federal properties  in                                                               
Alaska, which make up two-thirds of  our state.  Second, the need                                                               
to demand  that the federal  government lives up to  the promises                                                               
made to the Alaska people  in 1958 in Alaska's statehood compact.                                                               
He related his  understanding in the reference  to the federalism                                                               
division  of  the  Department  of Law  that  was  discussed  last                                                               
1:42:19 PM                                                                                                                    
MR. ROBERTS related that U.S.  Senator Ted Stevens once commented                                                               
that Alaska has  more disputes with the  federal government daily                                                               
than most states  have annually and these  disputes are primarily                                                               
over access.   This illustrates  how powerful and  important this                                                               
question is to  the state.  He stated that  having vast resources                                                               
means nothing if Alaska  cannot get to them.  He  said he was not                                                               
referring only  to resources on  federal land, but on  state land                                                               
that is  unreachable, Native  corporate land,  Native allotments,                                                               
and what  is left  of other private  inholdings.   He highlighted                                                               
the good  news is  that Alaska  has legal  rights of  access that                                                               
belong to the state and thereby its citizens.                                                                                   
MR.  ROBERTS  indicated  Alaska's  rights  are  based  on  proven                                                               
historic  trails  and  were authorized  by  federal  law  revised                                                               
statute 2477 (R.S. 2477), as part of  the Mining Act of 1866.  He                                                               
stated  these rights  should  be  asserted by  the  state and  it                                                               
should support Utah  and urge other states to do  the same.  Last                                                               
Friday it  appeared the  DOL suggests  [the bill  sponsor] should                                                               
back  off from  the  second recommendation  with  respect to  the                                                               
defense  of  Alaska's  rights agreed  to  in  Alaska's  statehood                                                               
1:43:26 PM                                                                                                                    
MR. ROBERTS  said he  strongly disagrees with  that change  if it                                                               
was  made  in  Version  B.     He  respectfully  recommends  this                                                               
committee call  for a  reestablishment of a  division in  the DOL                                                               
for this  purpose.  Former Governor  Walter Hickel set up  such a                                                               
division in the  1990s.  This division should be  a permanent arm                                                               
of  the  state's DOL  and  should  be  staffed  by the  best  and                                                               
brightest attorneys  Alaska can attract.   He recalled in  his 42                                                               
year career in  Alaska that he has studied,  debated, and written                                                               
reports  on  both of  the  issue  addressed in  this  resolution:                                                               
access and the compact.                                                                                                         
1:44:13 PM                                                                                                                    
MR. ROBERTS related that he was  recruited in 1995 to head a task                                                               
force  to research  existing R.S.  2477 rights-of-way  throughout                                                               
Alaska  by former  Senator Jack  Coghill, who  was at  that time,                                                               
Chair of  the Senate Transportation  Standing Committee.   Former                                                               
Senator Coghill was determined to  preserve the state's rights of                                                               
access and he achieved a great deal in that regard.                                                                             
MR.  ROBERTS highlighted  that  R.S. 2477  has  been utilized  by                                                               
western states to provide public  use ranging from walking trails                                                               
to remote  fishing streams and lakes,  to access to the  banks of                                                               
state-owned navigable  waters, to highway construction  on public                                                               
lands  now  called  Roads  to  Resources.   He  stated  that  the                                                               
statutory  definition  of  highway  as  a  unique  transportation                                                               
system in Alaska includes roads, trails, streets, and bridges.                                                                  
1:45:09 PM                                                                                                                    
MR. ROBERTS  explained that his  first assignment was  to provide                                                               
the  National   Park  Service  with  the   information  collected                                                               
indicating the  state's valid,  existing rights  of access  so it                                                               
could be  included in the  federal planning documents.   He noted                                                               
these were  plans that  needed to  be done  after the  passage of                                                               
Alaska  National  Interest  Lands Conservation  Act  (ANILCA)  in                                                               
1980.   The task  force's mission was  later expanded  to provide                                                               
similar data for  the refuge plans by the U.S.  Fish and Wildlife                                                               
Service (USF&W),  scenic rivers,  and conservation  areas managed                                                               
by  the Bureau  of  Land  Management (BLM)  and  the U.S.  Forest                                                               
Service.   He  reported that  the  task force's  final report  on                                                               
January 15, 1987  identified over 600 R.S.  2477 rights-of-way on                                                               
federal  lands in  Alaska.   However,  in the  ensuing years  the                                                               
federal  government insisted  that Alaska  must litigate  when it                                                               
wants to  assert an R.S.  2477 right-of-way.  He  emphasized that                                                               
it  is patently  absurd  to require  the state  must  sue to  use                                                               
something  that already  belongs to  the state.   He  said, "It's                                                               
like  saying  that  in  spite  of the  Bill  of  Rights  American                                                               
citizens have to sue the  federal government to get permission to                                                               
speak."   He highlighted that this  is one of the  rights granted                                                               
to the state  in federal law and it has  always been preserved in                                                               
federal law.   The rights  belong to the  state.  The  fears that                                                               
motivated  the federal  establishment in  Alaska were  partly the                                                               
result  of a  gaffe  by  the opponents  of  state  access in  the                                                               
federal government, who  published a report and put a  map on the                                                               
cover  that  included all  of  the  possible or  proposed  roads,                                                               
trails, and  rail lines  throughout Alaska.   It became  known as                                                               
the  spaghetti  map  and  made  the State  of  Alaska  look  like                                                               
downtown Los  Angeles.  The  backlash was strong, even  from many                                                               
Alaskans  who support  access and  resource development  since it                                                               
paralyzed  the process.   As  a result,  Alaska has  retained its                                                               
standing as having  fewer miles of roads than  the smallest state                                                               
in the nation, which is Rhode Island.                                                                                           
1:47:05 PM                                                                                                                    
MR. ROBERTS concluded  that as a result, Alaska  has retained its                                                               
standing as having  fewer miles of roads than  the smallest state                                                               
in  the Union  - Rhode  Island.   When the  task force  wrote its                                                               
final report  in the 1980s,  it recommended that the  state focus                                                               
on only eight  vital transportation corridors to  be asserted and                                                               
set   aside  for   future   use.     He   highlighted  that   the                                                               
recommendation  is  still  valid  and  should  be  pursued.    He                                                               
suggested that if  he were to read the names  of these corridors,                                                               
most  people would  understand the  reasons for  their importance                                                               
since they would connect key  resource areas and communities that                                                               
are currently isolated due to the lack of access.                                                                               
MR.  ROBERTS said  he has  been  very involved  in the  Statehood                                                               
Compact,  beginning   in  the   1980s,  with   a  study   by  the                                                               
organization,   Commonwealth   North,  whose   members   included                                                               
publisher  Bob   Atwood,  Governor  Wally  Hickel,   Judge  James                                                               
Singleton,  Department of  Natural  Resources (DNR)  commissioner                                                               
Irene Ryan,  and environmental planner,  Dave Hicka.   The report                                                               
was published  as a small  book by APU  Press called Going  up in                                                             
Flames:   The Promises  of Alaska's Statehood  Under Attack.   He                                                             
offered his belief that this  book should be required reading for                                                               
all those elected  or appointed to public office  prior to asking                                                               
them to swear to uphold the Alaska Constitution.                                                                                
1:48:30 PM                                                                                                                    
MR. ROBERTS  related he worked  closely with Governor  Hickel and                                                               
his legal team to launch  four major lawsuits against the federal                                                               
government  that  addressed   egregious  violations  of  Alaska's                                                               
Statehood Compact.  Unfortunately, these  cases were filed late n                                                               
Governor Hickel's second term - too  late to follow through - and                                                               
those who followed were lukewarm in their support.                                                                              
MR. ROBERTS stated  in 2002, U.S. Senators Ted  Stevens and Frank                                                               
Murkowski   through  the   U.S.  Department   of  the   Interior,                                                               
commissioned the  Institute of  the North  to prepare  a detailed                                                               
180  page ANILCA  training curriculum  for land  managers, staff,                                                               
inholders,  and   all  interested  Alaskans.     Since  then  the                                                               
institute has used that curriculum  to conduct executive training                                                               
sessions on ANILCA.                                                                                                             
MR. ROBERTS  highlighted that  page 60  of the  curriculum quotes                                                               
Section   1109   of  ANILCA,   "Nothing   in   this  title   [the                                                               
transportation title  of ANILCA] shall be  construed to adversely                                                               
affect any valid,  existing right of access."   Section 1110 (b),                                                               
which read,"  ... assure  adequate and feasible  access ...  " to                                                               
inholdings is  guaranteed.  Yet  these valid, existing  rights of                                                               
access have  been ignore or violated  - nearly daily -  since the                                                               
passage of ANILCA.                                                                                                              
1:50:12 PM                                                                                                                    
MR. ROBERTS  said it is  up to the State  of Alaska to  force the                                                               
federal government  to obey the  law.   This will only  happen if                                                               
the state  creates a team of  top attorneys who are  committed to                                                               
defend Alaska's  rights and a  governor and attorney  general who                                                               
will back them up.  He offered  his support for passage of HJR 40                                                               
and urged  the committee not to  leave it at that  since there is                                                               
much to be done.                                                                                                                
CO-CHAIR FEIGE,  after first  determining no  one else  wished to                                                               
testify, closed public testimony on HJR 40.                                                                                     
1:51:08 PM                                                                                                                    
CO-CHAIR   SEATON  moved   to  report   the  proposed   committee                                                               
substitute  (CS)  for  HJR   40,  Version  27-LS1407\B,  Bullock,                                                               
3/30/12 out of committee with  individual recommendations and the                                                               
accompanying  zero fiscal  note.   There being  no objection  the                                                               
CSHJR  40(RES) was  reported from  the  House Resources  Standing                                                               

Document Name Date/Time Subjects
CSHJR 40 Version B 3.30.12.pdf HRES 4/2/2012 1:00:00 PM
Robert Mumford.pdf HRES 4/2/2012 1:00:00 PM
HB356 Hearing Request.pdf HRES 4/2/2012 1:00:00 PM
HB 356
HB356.PDF HRES 4/2/2012 1:00:00 PM
HB 356
Teresa Sager Albaugh.pdf HRES 4/2/2012 1:00:00 PM
HB356-DFG-CO-03-31-12.pdf HRES 4/2/2012 1:00:00 PM
HB 356
HB356-DNR-MLW-04-02-12.pdf HRES 4/2/2012 1:00:00 PM
HB 356
HB356 Supporting Map.pdf HRES 4/2/2012 1:00:00 PM
HB 356
HB356 SCI Letter of Support.pdf HRES 4/2/2012 1:00:00 PM
HB 356
HB356 Support Comments.pdf HRES 4/2/2012 1:00:00 PM
HB 356
HB356 Sponsor Statement.pdf HRES 4/2/2012 1:00:00 PM
HB 356