Legislature(2013 - 2014)BARNES 124
03/11/2014 01:00 PM House TRANSPORTATION
| Audio | Topic |
|---|---|
| Start | |
| HB371 | |
| HB194 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 194 | TELECONFERENCED | |
| *+ | HB 371 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 194-RIGHTS-OF-WAY
1:56:15 PM
CHAIR P. WILSON announced that the final order of business would
be the SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 194, "An Act
vacating a portion of the Copper Center - Valdez right-of-way;
relating to rights-of-way acquired under former 43 U.S.C. 932
that cross land owned by a private landowner; and relating to
the use of eminent domain to realign a right-of-way."
1:57:46 PM
REPRESENTATIVE NEAL FOSTER, Alaska State Legislature, Juneau,
Alaska, as prime sponsor, stated that the goal of HB 194 is to
preserve public access via the [Revised Statute] R.S. 2477. He
explained that the bill would minimize the negative effects on
private landowners with respect to R.S. 2477 rights-of-way. He
related R.S. 2477s are rights-of-way that include public trails,
roads, and highways. He emphasized that this bill won't prevent
the public from using public transportation routes to travel
from points "A" to "B" but will limit usage to "point to point"
transportation and emergency stopping. Many of the R.S. 2477
trails go through private lands, he said. He expressed concern
that if rest stops, pullouts, and campgrounds are constructed
along these routes, it would open public access and use of the
surrounding private lands.
1:59:11 PM
PAUL LABOLLE, Staff, Representative Neal Foster, Alaska State
Legislature, provided a section-by-section analysis of HB 194.
Section 2, subsection (a) would reduce the R.S. 2477 rights-of-
way from 100 feet to 60 feet to balance landowner property
rights with the access rights of the state. Subsection (b)
would limit the use of R.S. 2477 to transportation purposes. He
briefly discussed the history, such that R.S. 2477s stem from
the Mining Act of 1866. Section 8 of that act would establish
that rights-of-way are for construction of highways. Alaska
statutes related to the state highway system identify the
purpose as for vehicular transportation. This section would
clarify how R.S. 2477 should be used. Subsection (c) would set
up the conditions for secondary easements to inspect, repair,
maintain, and improve a right-of-way. It would also set up
guidelines for dispute resolution. Subsection (d) would allow
realignment of rights-of-way through the existing eminent domain
statutes and subsection (e) defines routine maintenance and
repair.
2:01:12 PM
MR. LABOLLE said that Section 1 will vacate a specific R.S. 2477
right-of-way which is overlapped by a [43 U.S.C. 1616(b)]
easement created during the Alaska Native Claims Settlement Act
(ANCSA), which is similar to R.S. 2477 rights-of-way easements.
2:02:22 PM
The committee took an at-ease from 2:02 p.m. to 2:04 p.m.
2:04:15 PM
REPRESENTATIVE FOSTER commented that this issue is a private
landowner issue and is not limited to Native corporations.
2:05:02 PM
JOE BOVEE, Vice-President, Land and Resources, Ahtna,
Incorporated (Ahtna), began his presentation by explaining R.S.
2477 is an obscure civil war mining statute that grants rights-
of-way across unreserved federal lands, primarily in the Western
states and territories and Alaska. The map shows the public
lands in Alaska prior to 1971 [slide 1].
2:05:40 PM
REPRESENTATIVE ISAACSON asked whether all lands in Alaska were
either state or federal lands prior to 1971.
MR. BOVEE answered that 99 percent of the land was under federal
or state ownership.
2:06:19 PM
REPRESENTATIVE ISAACSON pointed out it was difficult to
distinguish lines on the map in members' packets.
CHAIR P. WILSON agreed.
MR. BOVEE turned to legal definitions obtained from the state's
website. He said that R.S. 2477 was a congressional grant of
rights of way which provided, "The right of way for the
construction of highways over public lands, not reserved for
public uses, is hereby granted." The Department of Natural
Resource's website indicates that the word "highway" was
historically used to refer to foot trails, pack trails, sled dog
trails, crudely built wagon roads, and other corridors for
transportation. The term "highway" is defined in state statutes
AS 19.59.018 (8), as follows:
"highway" includes a highway (whether included in
primary or secondary systems), road, street, trail,
walk, bridge, tunnel, drainage [structure and other
similar or related structure or facility, and right-
of-way thereof, and further includes a ferry system,
whether operated solely inside the state or to connect
with a Canadian highway, and any such related
facility;].
MR. BOVEE explained that the process to assert an R.S. 2477 is
far from consistent and has been the subject of litigation
between the state and private landowners and the federal
government in North America. In 1998, the Alaska legislature
instructed that while providing for the public's right to use
these historic access easements, "every effort should be made to
minimize the effect on private property owners."
2:07:39 PM
MR. BOVEE stated that DNR has identified 669 R.S. 2477 trails in
in Alaska. For example, DeBarr Road in Anchorage and Farmers
Loop Road in Fairbanks began as R.S. 2477 trails. Additionally,
numerous foot trails are R.S. 2477 trials, many of which may not
be visibly identifiable on the ground. He reported that over
142 R.S. 2477s are located on Ahtna land alone.
MR. BOVEE pointed out the Ahtna lands overlaid on an Alaska map.
The next slide, entitled "Private Lands Present" shows private
and public lands, with private land ownership in blue, and
federal or state ownership depicted in yellow. The R.S. 2477
trails are shown by black lines.
2:08:51 PM
CHAIR P. WILSON asked for further clarification that the R.S.
2477 were old trails.
MR. BOVEE answered yes; noting most were adopted or used during
mining in the late 1800s or early 1900s.
2:09:23 PM
MR. BOVEE highlighted Ahtna lands include 402 linear miles of
R.S. 2477 trails, which would encompass 9,406 acres. The next
slide entitled, "Ahtna Lands Regional Location" shows Ahtna
owned lands in red.
2:10:12 PM
MR. BOVEE turned to the slide entitled "R.S. 2477 Landowner
Problems, Icy Roads Caused by Incised Roads "across Ahtna lands.
This slide identifies [in black lines] the R.S. 2477 trails
located on Ahtna lands. In response to a question, he answered
that the 402 linear miles on Ahtna land with a 100-foot right-
of-way would consume 9,406 acres.
MR. BOVEE continued. Ahtna, Inc. lands contain over 221 linear
miles 17 (b) easements. As the sponsor identified earlier, part
17 (b) ANCSA defines a trail or public use across Native
Corporation lands. He pointed out some trails overlap with an
existing easement totaling 529 miles.
2:11:45 PM
CHAIR P. WILSON asked for further clarification on the duplicate
trails.
MR. BOVEE answered that two easements cross private property on
Native Corporation land and on some non-ANCSA lands. He
explained the width and range from 25-60 feet whereas an R.S.
2477 is typically 100 feet wide. The R.S. 2477 rights-of-way
often fall on the 17 (b) trails so they are duplicative.
CHAIR P. WILSON clarified that the 17 (b) trails are narrower
ones than the R.S. 2477 trails.
MR. BOVEE answered yes.
2:12:41 PM
MR. BOVEE said that approximately 98 linear miles of 17 (b)
easements are duplicative of R.S. 2477 roads.
2:13:30 PM
MR. BOVEE explained that R.S. 2477 trails represent a
significant burden on the landowner. In response to a question,
Mr. Bovee answered that the R.S. 2477 easements were federal
rules originating from the 1866 mining law. He further
clarified that the federal government has recognized only three
or four necessary trails of the aforementioned 669 R.S. 2477
trails.
2:14:41 PM
CHAIR P. WILSON asked whether the state or federal government
has authority over the trails.
MR. BOVEE answered that the state has authority.
2:14:52 PM
MR. BOVEE turned to the next slide entitled "R.S. 2477 Landowner
Problems Icy Roads Caused by Incised Roads." This trail located
near Cantwell is called the Windy Creek Trail and was the old
access to the Denali National Park until the 1960s. He said the
100-foot wide trail doesn't have any restrictions on vehicle use
depending on the time of year. The next slide shows a trail
into Bear Valley that is overlaid with a 17 (b) easement without
any restriction on use. In response to a question, he answered
no; that the land is not DNR land, but is Ahtna land with a
public easement.
2:15:44 PM
MR. BOVEE showed several photographs of other R.S. 2477 trails,
not in members' packets. Since these trails used the shortest
route many of them, such as the one near Copper Center, R.S.
2477 T 633, did not consider erosion, flooding events, or best
locations. He explained that Ahtna has made a concerted effort
to work with various agencies on the issues surrounding the R.S.
2477 trails. The state agencies refer to the federal statute
and basically respond that their "hands are basically tied."
The trails can be relocated if natural conditions make the route
impassable or unsafe. The state can enter property to perform
maintenance and repair work such as paving, leveling,
installation of culverts and other duties such as clearing
vegetation or realigning roads. The state maintains that the
public has extensive use rights within the right-of-way that
include not only transportation but also rest stops, pullouts,
boat launches, fishing access, and campgrounds.
2:18:23 PM
MR. BOVEE explained the Klutina Lake Road starts on the
Richardson Highway and goes to the head of Klutina Lake,
crossing 18 private landowners, non-ANCSA landowners and crosses
driveways. In response to a question, Mr. Bovee explained that
the private landowners did not even know the trail existed until
about five or six years ago when the state asserted its rights
over the R.S. 2477s. Thus, the issue has arisen since the R.S.
2477 trail with its 100-foot wide easement will consume the
private landowner's acreage.
2:19:40 PM
CHAIR P. WILSON related her understanding that Ahtna didn't know
their land allotments fell on R.S. 2477 trails.
MR. BOVEE answered yes. He explained the 18 landowners in the
aforementioned area own the land, which was previously a Native
allotment. The land was subdivided and the private landowners
didn't know R.S. 2477 would cross their front yards.
2:20:16 PM
CHAIR P. WILSON asked for clarification on the state's position.
MR. BOVEE answered that the state asserts it is a public
easement and the public can use the roads indiscriminately, any
time of the year, using any kind of equipment. In further
response to a question, Mr. Bovee agreed access is without any
rules or regulations.
MR. LABOLLE, in response to a question, clarified that the bill
has an additional referral to the House Resources Standing
Committee.
2:21:27 PM
MR. BOVEE identified potential solutions. One alternative
proposes limiting the scope of use of R.S. 2477 trails. He
emphasized that Ahtna is not opposed to limiting access.
Although Ahtna encourages resource development, the 100-foot
right-of-way and unregulated use within the right-of-way opens
access. One issue is who will perform road maintenance once the
roads are public roads during times of budget constraints.
MR. BOVEE turned to a slide entitled "Well Maintained R.S. 2477
Road" that encompasses a hunting area north of Cantwell. He
advised that Ahtna has been working with DOT&PF and DNR to
realign the trail around a gravel pit near the Parks Highway.
He offered his belief that the department will reroute the
trail. In further response to a question, he answered that
Ahtna owns the material site.
2:23:55 PM
MR. BOVEE stated that Ahtna signed a Memorandum of Understanding
with DNR, Alaska Department of Fish & Game and DOT&PF last
summer. This agreement requires quarterly meetings with the
state agencies to try to resolve issues and to pool and use
resources more wisely. This bill would require consultation
with the private landowner prior to engaging in other than
routine maintenance and represents a "good neighbor" policy. It
would also require the state to consult with the landowner if an
R.S. 2477 right-of-way has been damaged beyond repair and is to
be realigned. He mentioned several trails have been realigned
several times.
2:25:19 PM
MR. BOVEE would specifically vacate portions of R.S. 2477 right-
of-way along the Klutina Lake road effectively ending litigation
with the state. He thanked members.
2:25:47 PM
REPRESENTATIVE FOSTER offered to provide a chart to better
describe the R.S. 2477 right-of-way as compared to the 17 (b)
provisions. The goal of the bill is to minimize the impact to
the landowner. He related a scenario in which he owned a farm
at Kenny Lake with an R.S. 2477 crossing his land. As a
landowner he would want to minimize the impact on his private
land. He would not want a right-of-way with a campground
located on his land, but would prefer a point to point access so
people aren't stopping on his land.
2:27:26 PM
CHAIR P. WILSON asked for the status of the current lawsuit.
MR. BOVEE reported that the case started mediation but must
follow state law so the process hit a "brick wall."
2:28:06 PM
CHAIR P. WILSON asked whether this bill would amend it to
satisfy Ahtna.
MR. BOVEE answered that it would not restrict access to state
land but would limit easements and define the width of the
right-of-way.
2:28:39 PM
REPRESENTATIVE FEIGE asked whether plat maps exist for Klutina
Lake. He understood interest exists with respect to lake
access. He further understood that the federal 17 (b) easement
but not the R.S. 2477 continues through the private lands.
Since it doesn't appear to be overlapping this bill would not
vacate the R.S. 2477 easements.
MR. BOVEE offered to provide a detailed plat map of the area.
2:30:05 PM
REPRESENTATIVE JOHNSON referred to page 2, line 9; paragraph
(1), which read, "... routine maintenance and repair may only
preserve the condition of the right-of-way as it existed on
October 21, 1976; ...." He asked whether the state is
advocating all the R.S. 2477 lands if the trail has not been
maintained. He understood that the state is still in litigation
with the federal government and the trails have not been
resolved. He asked whether the state would be giving up on
those lands. For example, if a trail went from Fairbanks to
Nome and it crosses private land, this language would not allow
the trail to be maintained any differently than it was in 1976.
He asked whether that means these rights-of-way will not be
developed.
2:31:08 PM
MR. BOVEE answered that he was not aware of all R.S. 2477
easements in the state; however, he is familiar with
approximately 90 percent of ones in the Ahtna region. He said
approximately 95 percent are not developed, but are foot trails,
pack trails, or sled trails.
REPRESENTATIVE JOHNSON remarked that is his point. The bill
would mean the trails would never be more than the current
status.
MR. BOVEE answered that is the point of the bill. If the R.S.
2477 right-of-way is currently an all-terrain vehicle (ATV)
trail or a foot trail, that it should be left as such and have
room to develop it later.
REPRESENTATIVE JOHNSON maintained the language would restrict
further development. If the road is a walking trail then it
cannot be more than a walking trail even if gold is discovered.
He expressed concern about the restriction. He discussed some
of the history of the R.S. 2477 trails such that the state has
had to litigate each trail. He did not want to advocate limited
access across federal lands. Secondly, if an R.S. 2477 runs
along a river and a boat launch is not permitted, wouldn't that
limit access to a publically-owned resource based on Alaska's
Constitution. He expressed concern about limiting future
development. He suggested there might be a way to compromise;
however, he maintained his concern about limiting access that is
provided by Alaska's Constitution. He did not want to send a
message to the federal government that Alaska has limited access
by freezing the R.S. 2477 right-of-way to 1976 condition.
2:34:59 PM
REPRESENTATIVE ISAACSON offered his belief that this bill goes
too far since the state is developing. One way would be to
recognize that some right-of-way will not be used. He
acknowledged that there isn't a management plan and that seems
to be the biggest issue. He agreed that managing the rights-of-
way is important and to ensure that property owners are aware of
the use. He pointed out that Farmers Loop Road was an R.S. 2477
right-of-way and currently in many places is a four-lane
highway. He noted several other roads in Alaska that were
developed on R.S. 2477 trails. He cautioned against impeding
development. He acknowledged that a R.S. 2477 right-of-way will
likely become a road and development occurs along the road and
Ahtna, Incorporated will likely need those roads in the future.
He asked whether Ahtna has a bill before the Congress on this
same subject.
MR. BOVEE answered yes; but it does not have anything to do with
R.S. 2477s.
2:38:33 PM
REPRESENTATIVE ISAACSON asked how the federal bill will affect
this bill. He suggested the federal bill asserted groups within
the state as having more rights to the transportation corridors.
He asked whether this was related.
MR. BOVEE answered that he was not aware of the federal
transportation bill.
REPRESENTATIVE ISAACSON said he would further research it.
2:39:11 PM
REPRESENTATIVE ISAACSON said he would be interested in solving a
specific issue rather than "locking up" the lands globally in
Alaska.
REPRESENTATIVE JOHNSON referred to the fiscal note which
identifies 20,000 linear miles of R.S. 2477 rights-of-way, which
could increase to 26,600 once settled. He expressed concern
that the bill could jeopardize 26,000 miles of access for 400
miles of Ahtna trail. He agreed the R.S. 2477 right-of-way
issue is not just an Ahtna issue, but is a statewide issue that
could affect Alaska's future. He said he would hate to give up
this access.
MR. LABOLLE referred to the fiscal note and clarified that of
the 20,000 linear miles, 50 percent is on private land, and so
about 10,000 miles applies to R.S. 2477s that cross privately-
owned land.
REPRESENTATIVE JOHNSON pointed out the checkerboard of private
lands, noting one acre in the middle could impede development.
2:42:28 PM
CHAIR P. WILSON, referring to the DNR fiscal note of 3/8/14,
noted that diminishing the right-of-way to 40 feet would equate
to 48,500 acres.
2:42:50 PM
REPRESENTATIVE ISAACSON suggested this issue goes back to the
municipal model, noting it is the state's policy to encourage
the settlement of the land based on maximum use and benefit.
Although the cities have private land until the land is used for
public interest, the advantage for the historical trails is that
they provides access to private lands and that will continue to
evolve over time. He expressed concern about restricting access
to a time certain. He said he could not get past that hurdle,
particularly since the state is required to settle the land. He
suggested that Ahtna try to find a way to solve the specific
problem without unintentionally restricting access throughout
the state.
2:44:40 PM
CHAIR P. WILSON remarked that she has not seen improvement
during the time she has served in the legislature. At the time
she was initially elected the state was in a deficit. Since the
state's population is so low a sales tax or an income tax
doesn't solve the financial issues. She concluded that the
state needs more population in order to grow.
2:45:45 PM
REPRESENTATIVE FEIGE referred to a Bureau of Land Management
(BLM) document in members' packets entitled, "Public Access
Information." He asked whether the Klutina Lake Road referred
to as the Brenwick-Craig Road and the Klutina Trail in the
document are different or are these easements part of the same
access to Klutina Lake.
MR. BOVEE answered that the Brenwick-Craig Road is more commonly
referred to as the Klutina Lake road. The ANCSA 17 (b) easement
stops at private property at the mouth of the lake. The Klutina
Trail turns into an R.S. 2477 trail because it is not an ANCSA
17 (b) easement.
2:46:51 PM
REPRESENTATIVE FEIGE related his understanding that the Klutina
Lake road goes to the outlet of Klutina Lake and the Klutina
trail continues beyond that point.
MR. BOVEE answered that the Klutina trail wraps around the north
side of Klutina Lake and continues to Valdez.
[HB 194 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB0371A.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| HB 371 Sponsor Stmt .pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| HB371-DNR-MLW-3-10-14.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| HB371-DOT-SDES-3-11-14.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| HB 371 Elements of the Bill.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| HB 371 Glenn MP 118 N ROW Plans.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| HB 371 Old Glenn Hwy.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| SSHB 194 ver N.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB 194-Sponsor Statement.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB 194 Sectional Summary.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB194SS-DOT-NDAES-3-11-14.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB194SS-DNR-MLW-3-8-14.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB 194-Letters of Support.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB 194 Supporting Documents-Applicable Statutes.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB 194 Applicable Statutes.docx |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB 194 Ahnta Presentation 3-11-14.pptx |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| CSHB 371 ver N draft.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |