Legislature(1997 - 1998)
03/31/1998 08:00 AM House STA
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* first hearing in first committee of referral
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CSSB 180(FIN) - STATE RIGHTS-OF-WAY: RS 2477 Number 001 CHAIR JAMES announced the committee would hear CSSB 180(FIN), "An Act relating to state rights-of-way." BRETT HUBER, Legislative Assistant to Senator Rick Halford, Prime Sponsor of SB 180, said R.S. 2477 was a right granted to the states by the United States Congress with the passage of the Mining Act of 1866. The purpose of the original law was to provide for and guarantee the pubic's right to establish access across federal lands. Subsequent congressional and more than 100 years of case law have recognized that state law is controlling on the issue - both in determining and defining R.S. 2477 rights-of-way. MR. HUBER stated that although Congress repealed R.S. 2477, in 1976, with the passage of the Federal Land Policy and Management Act (FLIPMA). They specifically acknowledged the legal existence of R.S. 2477 rights-of-way that were established prior to the repeal. Current federal regulation explicitly provides that any right conferred by the R.S. 2477 grant shall not be diminished. MR. HUBER said beginning with legislative appropriations in 1992 and 1993, which funded the research and compilation of historic information regarding the R.S. 2477 routes, the legislature has taken the lead in moving this issue forward. The Department of Natural Resources (DNR) has reviewed 1,700 potential R.S. 2477s and identified 602 rights-of-way that appear to qualify and are supported with appropriate documentation. These 602 routes are published in the historic trails catalogue and are incorporated in the state land administration system. Last year, the legislature passed SJR 13 with broad support reiterating their position regarding R.S. 2477 and making clear the objections to Secretary Babbitt's policy memorandum of last January. MR. HUBER pointed out that SB 180 codifies the 602 documented R.S. 2477 rights-of-way; it requires them to be recorded and provides a process for limitations on their vacation and sets out liability limits for the State. While the R.S. 2477 rights-of-way codified in this bill have already been accepted by public users and deemed supportable by the state, it's likely that the federal government will contest ownership on some or all of these routes. Although the current federal administration is attempting to limit the state's rights regarding R.S. 2477, over 100 years of case law recognize state law as controlling on the issue. Codifying these routes in statute will strengthen the state's position for possible subsequent court action and provide the affected land owners and the general public notice that these R.S. 2477 rights-of-way are out there and available for use. Basically, SB 180 says these are our rights-of-way and it's alright to use them. They are essential to provide access to mineral deposits, travel to and from remote areas, and recreational opportunities; they are not a panacea for transportation, but are an important option we need to preserve from the federal encroachment. MR. HUBER informed the committee there are letters of support from the Resource Development Council, the Alaska State Chamber, the Alaska Outdoor Council, the Territorial Sportsmen, the Alaska Forest Association, and the Alaska Miners Association. Number 104 CHAIRMAN JAMES asked if the old mail trail along the Yukon River was one of these trails. MR. HUBER said the list he has isn't conclusive. The bill asks the DNR to continue their on-going search into R.S. 2477 documentation and bring other qualifying routes forward for the legislature's consideration. REPRESENTATIVE BERKOWITZ asked what the screening process was. MR. HUBER answered that in 1992-93, the DNR reviewed "potential routes." Actual documented use of the trail prior to 1971 needs to be found for public use acceptance of the grant. The DNR did field work on the ground looking at the trails, consulted with a lot of the old dog sled mail routes and other historical information. CHAIRMAN JAMES said she had participated with this search and they were looking for documentation they could take to court as evidence. REPRESENTATIVE BERKOWITZ asked if there was distinction between a right-of-way and an easement. MR. HUBER responded that an R.S. 2477 would be a limitation on the survey of the State granting access and he thought that would be true of an easement, as well. Section line easements are a type of R.S. 2477, so he thought the terms were interchangeable. REPRESENTATIVE BERKOWITZ said the reason he asked is because, if there is an easement based on use and someone crosses his backyard all the time and he doesn't do anything about it, they essentially earn a property right to that easement. Property rights can be established by crossing federal land. He asked if all this is even necessary. MR. HUBER answered that when you are talking about prescriptive use by easement or adverse possession, you are talking about a different issue than you are with R.S. 2477s, which is an actual law and policy saying that we need access to and from and across federal lands that can be accepted by an act of the State and the federal government for public use. This isn't so much a private property adverse possession question as a public right to access across federal land. REPRESENTATIVE HODGINS asked what the mechanism was for nominating other areas or trails. MR. HUBER answered that the DNR actually has a nomination process in place by regulation, in a small booklet. They aren't included in the committee packet. Number 191 REPRESENTATIVE RYAN asked if he looked at Ms. Mike Dalton's work and that she had worked for Lieutenant Governor Coghill. MR. HUBER responded that he would be remiss not to mention the amount of work Mike Dalton has put into this project. She is the reason we have the data base and atlas right now. REPRESENTATIVE BERKOWITZ said he was still trying to understand the purpose of the legislation. He asked if there had been an effort to constrict the rights of Alaskans to cross these federal lands in any way. MR. HUBER answered the policy memo put out by Secretary Babbitt in January, 1997, was an overall effort to restrict the state's ability to claim the R.S. 2477s through changes in definitions. Since that policy memo has come out, Congress has specifically forbid the Department of Interior from establishing any other permanent regulations dealing with R.S. 2477, without a specific act of Congress. REPRESENTATIVE BERKOWITZ asked if they had said specifically we could not use any particular right-of-way in any instance. MR. HUBER answered yes, there's on-going litigation in Fairbanks and other court cases with private parties. Number 223 REPRESENTATIVE BERKOWITZ said Secretary Babbitt's memo talks about the role of state law and it's basically the same problem we are running into with subsistence, which is the supremacy clause of the U.S. Constitution saying if there's a conflict between federal law and the state law, the feds reign supreme. MR. HUBER said this was a policy memo that was contradicted by Congressional intent. He didn't think he could draw a correlation between this and subsistence, because law currently on the books says, "rights granted by R.S. 2477s shall not be diminished." This is controlling federal law right now. REPRESENTATIVE BERKOWITZ asked what this legislation accomplishes. MR. HUBER said that it's possible that even with the controlling federal law, there is a difference of opinion on ownership or title to the route and the only way you actually get title is through quiet title. Quiet title will be decided in federal court at some point when the federal government allows themselves to be sued for quiet title. State law is cited in the case law in our Supreme Court, and many other state courts, as controlling, so the more we can do to reenforce our position in state law, the better the title argument comes, if there is a right-of-way in conflict with the federal government. CHAIRMAN JAMES added that the law granting us authority to be able to establish a right-of-way was on the books for a long time. The feds decided not to do that anymore which established a cut-off date. So the evidence of establishing a right-of-way before the cut-off date is imperative. It's only available if you established it during that window of opportunity. REPRESENTATIVE BERKOWITZ asked if we were asserting title over these 602 rights-of-way on federal land. CHAIRMAN JAMES and MR. HUBER answered yes. MR. HUBER explained the actual title decision would be done in a federal court through a quite title act. CHAIRMAN JAMES said this issue did not have anything to do with subsistence and she didn't intend to discuss it further. Number 294 REPRESENTATIVE IVAN said he wanted to know if some of the rights- of-way went through private land belonging to villages and corporations. MR. HUBER responded that these rights were originally established across vacant and unreserved federal lands, but rights-of-way have been established now across state land, federal, private, and a variety of types of lands in one specific route. Codifying them doesn't create the right. The right-of-way already exists. This merely lists them in statute and provides notice to the private property. The bill specifically does not address scope and management of the routes, but leaves that up to the DNR through the regulatory process. Private land conveyances were conveyed to existing easements, vacations, private property rights, and rights- of-way. CHAIRMAN JAMES said her experience on the Planning and Zoning Board is that when you have a piece of private property, and there is an existing right-of-way for access across the piece of private property, in order to move it, you just have to allow them to get from one place to anther. MR. HUBER added that the process to move it is set out in the findings and intent section of the bill, a Senate Resources amendment, and also Section 3, the vacation process in the back of the bill. Number 350 REPRESENTATIVE IVAN noted when the Alaska Native Claims Settlement Act (ANCSA) passed, the Bureau of Land management (BLM) almost set up six-mile wide corridor easements. They went nuts, but ended up not pursuing that. REPRESENTATIVE ELTON asked if a lot of public lands were transferred to private parties before the private parties knew these existing rights-of-ways were there. MR. HUBER answered that it is entirely possible that the right-of- way existed and that a private property owner doesn't have specific documentation. The rights in this bill are the ones that have been deemed supportable and used during a time that the land qualified as federal unreserved land prior to conveyance. REPRESENTATIVE ELTON asked if the private party may have selected lands without knowing these rights-of-way were there. MR. HUBER said there was boiler plate language in the conveyance that said this land conveyance is subjection to these existing rights-of-way; it didn't necessary delineate the route. CHAIRMAN JAMES said she had specific exposure on this issue in her district when land was transferred to the University saying that existing trails are recognized. It didn't say where they were. This was a transfer from BLM to the State to the University. MR. HUBER said it's pretty typical to find the language of "valid existing rights, if any, including, but not limited to, those created by any lease, contract, permit, right-of-way, or easement, and the right of lessee, etc. is recognized and benefits thereby granted to him." This means basically that other interests in the land that exist are not extinguished in the conveyance. REPRESENTATIVE RYAN said the portion of the R.S. 2477 that is law says rights-of-way for construction of highways over public lands not reserved for public use is hereby granted. In 1866, there were vast areas of the west with nothing, the Homestead Law had recently passed, the railroads had gotten their great push, and there was no way to get anywhere if you didn't trespass on federal land. So all you had to do was go out and use it and the right-of-way was granted. That right-of-way is granted until such time as it's revoked. If it isn't revoked, it's still in effect. In Alaska that's very important, because once a right-of-way is there, all we have to do is appropriate money and build a road. He thought this is one of the most important pieces of legislation this body will ever consider in the history of the State and he wanted to move it as fast as possible. Number 422 REPRESENTATIVE BERKOWITZ asked when the ANCSA conveyances were made, were the rights-of-way grandfathered into the conveyances. MR. HUBER answered that was correct. He said the bill requires them to be recorded, but it doesn't create or establish a new right. It merely codifies that those rights already exist. CHAIRMAN JAMES added that it doesn't mean this can't be challenged. REPRESENTATIVE BERKOWITZ asked if there would be anything stopping the state from building a highway across these lands. MR. HUBER answered that this bill specifically does not address the management and scope question on R.S. 2477s which is state land and managed like other state land by the department. REPRESENTATIVE BERKOWITZ asked what the consequences would be if one of the private land holders had somehow interrupted a right-of- way. MR. HUBER said he should address that question to the land manager, Ms. Jane Angvik. He assumed they would treat it like any other obstruction of state property by someone who didn't have the right to do it. MR. HUBER said it is important to note that both the findings and the vacations sections of the bill that say, if you provide reasonable alternative access, you can vacate the right-of-way. If a school was built across an existing trail, the DNR would vacate that portion of the trail and reroute around that obstruction, if it was in the State's best interest. REPRESENTATIVE BERKOWITZ said he thought that would have Fifth Amendment "taking" implications as well. MR. HUBER said we aren't talking about "taking;" the right-of-way already exists. He thought the state would say a public right-of- way had been encroached and there are several different possible resolutions, one of which would be to vacate the existing right-of- way for another piece to replace it. Number 485 REPRESENTATIVE ELTON asked what the process was used in developing the 602 rights-of-way and if there would be any interaction with the private land owners that may be affected when this was developed. MR. HUBER said the process for actually establishing the list was nominations of historic routes and then research compiled to see if actual public use can be documented which the State believes is supportable in court. This is more of a disclosure issue with rights-of-way than it is a "takings" issue or a notice issue. CHAIRMAN JAMES responded that evidence was used like old maps with trails drawn in and interviews with people, who are old now, but actually used the routes during the authorized time. She didn't know if there had been public hearings per se, but there were a lot of public hearings where the lists were provided and brochures were sent out. People could add to the list or make suggestions. MR. HUBER reiterated that the nomination and research process is on-going. Number 517 JANE ANGVIK, Director, Central Office, Division of Land, Department of Natural Resources, testified via teleconference from Anchorage. She said the department opposes SB 180, with sadness. They have one principle concern which is that it requires them to record the 602 routes that potentially qualify as R.S. 2477 routes. That action of recording, she believes, would place a cloud on the title of third parties, principally private land owners, when we are not yet far enough along in the research process to be able to know exactly where the rights-of-way are located. All of what Mr. Huber said is correct and true in that we are in an argument with the federal government over the rights-of-way and who manages and owns them. She is in complete accordance with Senator Halford's point of view with respect to the state of Alaska to own and manage these rights-of-way. MS. ANGVIK said the process they engage in is they research the routes first and of that 602 have been identified and they then go through another process which is called certification. They have only certified 11 of the routes so far. This includes a title search to identify third party interests such as mining claims or other private property. It goes through a 45-day public notice period to municipalities, goes to coastal districts, village corporations, etc. by certified mail, specifically along the route. They finally go through a finding of fact and conclusions of law that a R.S. 2477 grant has been accepted. In the fight between federal and state government, the only entity that can say it exists is a federal court. To date, we are in court over five of these. MS. ANGVIK said the department's concern here is that we should continue our fight, our assertion of state's rights over ownership of these rights-of-way. This bill places a cloud on the title of private owners, and the state is not far enough along in our research to say some things for certain. MS. ANGVIK stated that in an effort to expand the transportation corridors in the state of Alaska, it is clear the Resources Development Council (RDC), the Alaska State Chamber of Commerce, and the Alaska Miners Association have all said they are in favor. However, Alaska Federation of Natives (AFN), the Rural Development Council (RDC), and the State Chamber express concern about what affect this bill might have on private land owners. The intent language is designed to address the concern that recording of these rights-of-way might place a cloud on the title of private land owners, but it is the position of the Administration that the intent language does not fully satisfy concerns that third party interests will have a cloud on their title and the state can't demonstrate that this land is exactly where we say it is. MS. ANGVIK summed up that we are sure we have 602, but we have only done all the homework on 11 of them, and we are in court on only 5 of them. To record them is premature. We should either certify additional routes which requires additional research and notification of private parties and survey them and locate them on the ground. Number 602 CHAIRMAN JAMES asked how long the list had been substantiated. MS. ANGVIK answered that the list of 602 was 585 until one month ago, so it's a dynamic list. The principal work was done by dedicated people in Fairbanks in 1992, 1993, and 1994. In some cases they just have a an old U.S.G.S. map that indicated it was there. They still have to find a human being who walked it. CHAIRMAN JAMES asked if the cloud wasn't already there, if these aren't documented. MS. ANGVIK answered that the cloud exists, but we don't know where. CHAIRMAN JAMES said she is concerned that we are having land conveyances now and no one has any authority to determine whether anyone has legal access out there. At the rate they are going, 602 rights-of-way are going to take many years and the public needs to know about them. She said there was an interest among lots of parties in connecting our state and she isn't interested in a spaghetti road system. We are interested in establishing rights- of-way for access for gas lines, fiber optic cable, and all sorts of other things that we want to get to people who live in western Alaska, so they can have some of the same benefits they have in the railbelt. If there is no effort in trying to find where these routes are going to go, we are going to have a jumbled up mess we can't back up on. She asked for her suggestion to speed up the process if SB 180 isn't it. MS. ANGVIK said she thought there were two issues; asserting ownership, and we could certainly do that, and start using an R.S. 2477 today. If it crosses land of private individuals, she advises to at least communicate with the private individual before one crosses it so that they don't shoot you. She believes this right- of-way exists. However, one is not able to go ahead and construct highways and roads on R.S. 2477s without going through the regulatory process in either DNR or DOT. CHAIRMAN JAMES interrupted to ask if within the boundaries of Native lands, they can't build a road. MS. ANGVIK answered they could build a road on their land, the state can't. Number 671 MR. HUBER said that they have worked with the department a great deal on this bill and was surprised to hear that they oppose the bill. He did, however, hear their concerns about surveys, actual locations on the ground, and the private property rights. He agreed with Chairman James that the right already exists. We are really talking about disclosure with private property owners. The title is already clouded. He said he had talked to the real estate community and private property concerns and their response is they feel they have been addressed. MR. HUBER pointed out that in a Joint meeting last February, Senator Halford asked both Commissioner Shively and the Attorney General if they would support recording all the routes that had been researched and documented and put in an atlas. Both responded that they would support that process which is what this bill does. CHAIRMAN JAMES said she agreed and not to file these would be an error. It would lead people to believe that a cloud was not there. TAPE 98-44, SIDE A Number 001 CHAIR JAMES said the public has the right to know that there may be an assertion of a right-of-way or a cloud. MS. ANGVIK agreed that the public should know that and believed that through publication of the R.S. 2477 maps and efforts to work with land owners throughout the State, they are providing people with information. She responded to Mr. Huber's comment about opposing the bill, that her department has always been opposed to recording the rights-of-way, because they don't know where they are. CHAIRMAN JAMES said she thought they could find out where the rights-of-way are if the need was there, but they need to know approximately where they are to start with. Number 081 REPRESENTATIVE ELTON asked what the process of certification was for the 11 routes they had already certified. MS. ANGVIK explained that they do a title search to identify all third party interests such as mining claims, a 45-day public notice period to municipalities, federal and state agencies, coastal districts, and land owners by certified mail. A decision is issued, including a finding of fact and a conclusion of law that the R.S. 2477 right-of-way grant has been accepted. It also includes a determination of the location and width of the right-of- way in accordance with the law. This process is described in regulation that was adopted in 1992. REPRESENTATIVE ELTON asked why the five cases were in court. MS. ANGVIK clarified that they have five R.S. 2477 lawsuits right now. Of those five, only one has been initiated by the state where we are asserting ownership in federal court - the Harrison/Portage Creek Trail out of Fairbanks. Anyone can assert ownership, not just the State. The Shultz case in Fairbanks is a private individual who asserted a right-of-way that goes across the military reserve. In the case of the Knik Glacier, a private individual asserted the existence of the right-of-way across another private person's property. In the case of the Chickaloon Road, there is a summary judgement between the tribal organization and the federal government over whether or not the condemnation of a right-of-way by the federal government was in violation of tribal interests. The department is in negotiations over the Llewellyn Mine in Southeast Alaska with the relocation of a right-of-way that would facilitate expansion of a mining facility. In this case it's the mining company versus the Forest Service and the State is on the side of the individual mining company. The state has fourteen cases in court over the one route we are trying to assert ownership on. REPRESENTATIVE ELTON asked what happens if private land owners wants to transfer property to another land owners. Is there another process that would bump them up for certification or do they just stand in line and wait until her department gets to them. MS. ANGVIK answered that there is no process that bumps anyone up in line. However, if a court orders her to go survey a route and identify exactly where it is, they would do that. This is the way to identify where it is and who it belongs to. REPRESENTATIVE ELTON asked if there was any way for a private land owner to accelerate that process. MS. ANGVIK said what is probable is that it would be worked out so that both sides would argue, not withstanding any existing prior right, and then go forward. Number 215 REPRESENTATIVE HODGINS asked he was to know what qualified as an R.S. 2477, in reference to the Pile Bay trail to Iliamna. MS. ANGVIK answered that R.S. 2477s that are in the bill are rights-of-way that haven't been developed as roads. There are other R.S. 2477s that exists in Anchorage, DeBarr Road, for instance. Gold Stream Road in Fairbanks is another one. REPRESENTATIVE RYAN asked if it would be another one and a half centuries before they finish. MS. ANGVIK answered yes. REPRESENTATIVE RYAN said he didn't know what the problem was and thought they were studying this thing to death. CHAIRMAN JAMES said she can understand that this is an overwhelming job, but the issue is what to do first. She thought the public had a right to know about all the documented cases to date. MS. ANGVIK responded to Representative Ryan's comment saying that a year ago in an effort to highlight the activities associated with the assertion and research of R.S. 2477s and the assertion of State's rights on navigability, the legislature created a separate BRU in the budget of the Division of Land that segregated money for them to do navigability and R.S. 2477s. There is approximately $200,000 which purchases the research and staff which is used mostly in preparation for litigation. Previously, the legislature had funded capital improvement projects worth millions of dollars that provided staff to do the research. It is not lack of interest on her part on doing it, it's lack of resources. Number 300 REPRESENTATIVE HODGINS moved to pass CSSB 180(FIN) out of Committee with individual recommendations. REPRESENTATIVE BERKOWITZ objected, because he said this bill invites all kinds of unintended consequences which hadn't been adequately explored. He wanted to hear from private land owners. He thought to go forward would cost a lot for litigation and wanted to hear from the Department of Law or Natural Resources about the cost of implementing this act. CHAIRMAN JAMES retorted that there is no way they could establish the final decision on the 602 routes without going to court. Yes, there are unintended consequences, but there is a huge stack of unintended consequences, if they don't pass it. The public has a right to know what documentation exists. REPRESENTATIVE BERKOWITZ responded that the public has access to that information with the historic trails data base. He thought the title and realty companies needed to be heard. CHAIRMAN JAMES responded that now there is no platting authority in the State for unorganized boroughs or any place where there isn't an existing platting authority. A statute says the platting authority files the plat; no one is looking to see if there is a right-of-way. People are blindly transferring land in the unorganized boroughs and don't know if they have one on their property or not. REPRESENTATIVE IVAN said he wasn't sure of the impact this bill would have on regional or village corporation lands selected under the ANCSA and said he was going to follow up on his concerns. REPRESENTATIVE ELTON said he thought the information was already out there. This bill asks the department to record the right-of- way without the appropriate data to make that recording. By enforcing that, they are creating a playground for attorneys. A roll call vote was taken. Representatives Hodgins, Ryan, Ivan and James voted in favor of moving the legislation. Representatives Elton and Berkowitz voted against moving the legislation. So CSSB 180(FIN) moved out of the House State Affairs Standing Committee.
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