Legislature(1997 - 1998)

03/11/1998 08:25 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
     CS FOR SENATE BILL NO. 180(RES)                                           
     "An Act relating to state rights-of-way."                                 
                                                                               
                                                                               
BRETT HUBER, staff to Senator  Halford, the prime sponsor of                   
the bill,  came to the table  to testify.  He  explained the                   
RS2744 rights-of-way had been  a long-standing issue and was                   
complex.  He offered to  address his comments to first, give                   
a brief history  of the issue then give a  brief overview of                   
previous  action  and  then  address  the  bill  before  the                   
committee.                                                                     
                                                                               
Mr. Huber  said, "RS2477 was  a right granted to  the states                   
by the  US Congress with  the passage  of the Mining  Act of                   
1866.   The purpose  of the  law was to  provide for  and to                   
guarantee  the public's  right  to  establish access  across                   
federal  land.   Subsequent  congressional  action and  more                   
that 100 years  of case law recognize  the state's authority                   
to  determine and  define  RS2477  rights-of-way.   Although                   
Congress  repealed  RS2477 in  1976  when  they adopted  the                   
Federal Land  Policy and  Management Act,  they specifically                   
acknowledged the legal existence  of previous RS2477 rights-                   
of-way that were  established prior to the  repeal.  Current                   
federal  regulation  explicitly  provides  that  any  rights                   
conferred by the RS2477 grant shall not be diminished."                        
                                                                               
He  continued,   "Mr.  Chairman  as  you   are  aware,  this                   
important  state's  rights  issue has  received  legislative                   
attention  in the  past.   Beginning with  appropriations in                   
1992 and 1993, which funded  the research and compilation of                   
the  historical  information  regarding the  rights-of  way.                   
The  Legislature has  taken  the lead  in  moving the  issue                   
forward.    In   undertaking  the  legislatively  designated                   
projects, the  Department of Natural Resources  has reviewed                   
some 117  potential RS2477 routes.   The review  resulted in                   
them coming up  with 582 routes they  believed were accepted                   
prior  to the  extinguishment  of RS2477  grant process  and                   
that  they   have  enough  research  and   documentation  to                   
support."                                                                      
                                                                               
"Last  year the  Legislature  passed  SJR 13.    That was  a                   
resolution  that reiterated  the position  regarding RS2477,                   
and it  made clear  the objection of  the Department  of the                   
Interior's proposed  policy last  year.   Basically changing                   
the entire playing  field on how RS2477's are  defined.  You                   
should  have  a  copy  of the  policy  memo  from  Secretary                   
Babbitt  in  your packet.    Information  that came  forward                   
during  that process  and also  during  the joint  oversight                   
hearing  last  year  with  the  House  and  Senate  Resource                   
Committees resulted in SB 180."                                                
                                                                               
"SB  180  codifies  582 documented  rights-of-way,  requires                   
them  to  be  recorded,  and provides  a  process  for,  and                   
limitations  on  their  vacation  as  well  as  setting  out                   
liability  limitation  for  the  state.   While  the  RS2477                   
rights-of-way  codifies  in  this  bill  have  already  been                   
accepted by public use and  deemed supportable by the state,                   
it  is  likely  the  federal  government  will  dispute  the                   
state's ownership on some or perhaps all of these routes."                     
                                                                               
"Although the  current federal administration  is attempting                   
to  limit  the state's  rights  regarding  RS2477, over  100                   
years  of  case-law  on  point   recognizes  stated  law  as                   
controlling on the  issue.  We feel that  by codifying these                   
routes in statutes will strengthen  the state's position for                   
possible subsequent  court action  and provide  the affected                   
landowners and general public  clear notification that these                   
RS2477 rights-of-way are out there and available for use."                     
                                                                               
"Mr.  Chairman RS2477  rights-of-way are  an existing  state                   
right.   This  bill doesn't  make  any new  rights, it  just                   
asserts those rights statutorily."                                             
                                                                               
This concluded Mr. Huber's presentation on the bill.                           
                                                                               
Senator  Phillips referred  to the  numbers assigned  to the                   
trails.  He  noticed they were not in  sequence and wondered                   
if there  was a reason for  that.  Where there  other trails                   
that  were not  considered for  this legislation,  he asked.                   
Mr. Huber  explained the numbers  were the RST  numbers from                   
the Historic Trails Atlas.   DNR actually started with about                   
1800  routes  as  possibly qualifying.    They  brought  582                   
forward that were  included in the bill. The  reason all the                   
RST numbers  were not  listed; was  because they  didn't all                   
qualify for designation under RS2477, he said.                                 
                                                                               
Senator Phillips looked for the  Iditarod Trail on the list.                   
Mr. Huber conceded that he  had not memorized all the trails                   
included, but guessed that the Iditarod Trail was included.                    
                                                                               
Senator Adams had a question  about easements.  He wanted to                   
know what  size of easement  was proposed  in the bill.   He                   
said that  many of the  trails in  his area were  very small                   
dog  trails  in nature.    Mr.  Huber  said he  and  Senator                   
Halford shared that  concern and had decided  to address the                   
whole scope  and management aspect  in this  legislation and                   
not  address  the  easement  portion   at  this  time.    He                   
explained that the department had  a regulatory process that                   
could be applied later.  DNR,  when it had been accepting an                   
RS2477,  had  been asserting  them  at  a 100-foot  easement                   
width,  he  noted.   This  bill  did  nothing to  require  a                   
specific  easement width,  a specific  scope  or a  specific                   
use.   The  sponsor  believed that  individual trails  would                   
probably  need  individual  decisions.   He  gave  examples,                   
saying that, some  of the trails were dog  sled routes, some                   
trails led to burial grounds  located one hill away from the                   
village.                                                                       
                                                                               
Senator Adams clarified  that the decision would  be left up                   
to the  department to  make the  width determinations.   Mr.                   
Huber affirmed  that.  He  suggested there would  be another                   
possibility  where  a  court would  make  a  specific  width                   
determination if there were subsequent court action.                           
                                                                               
Senator Adams told  the committee had an  amendment to offer                   
and  he spoke  to  that amendment.   He  said  he felt  that                   
basically the  Legislature needed to require  the department                   
to survey the rights-of-ways before  they were recorded.  He                   
asked the  sponsor's opinion  of the  amendment.   Mr. Huber                   
responded, thanking  the senator  for prior  notification of                   
the amendment.   In his  opinion however, of the  588 trails                   
listed in  the bill, not  all had potential  conflicts. Some                   
crossed state  lands only, some crossed  federal lands only;                   
some crossed  a mix of state,  federal, Native corporations'                   
lands.   To  go out  and survey  all 582  trails would  be a                   
tremendous project.   It would  be difficult  to prioritize.                   
He  anticipated the  priority  to be  set  when an  affected                   
landowner had  a dispute.   The bill included a  process the                   
landowner  could  follow  to work  with  the  department  to                   
vacate  a  portion   of  the  route  if   an  alternate  was                   
established.   The other option  the landowner had  would be                   
to take  the case to court  and have the judge  make a clear                   
determination.   Mr. Huber summarized  that when  a conflict                   
came up; DNR would do a survey.                                                
                                                                               
Senator   Adams  asked   if   there  was   a  timeline   for                   
implementation of  this legislation.  Mr.  Huber replied the                   
only time limit in the  bill required the recording of these                   
routes no later  than January 1, 1999.   He continued saying                   
it was important to note that  the routes listed in the bill                   
were  not the  only RS2477  that existed.   Others  could be                   
added,  and  the bill  also  directed  DNR to  continue  its                   
efforts to identify new routes.                                                
                                                                               
The committee then invited JANE  ANGVIK to testify on behalf                   
of DNR.   She showed the committee a map  showing the routes                   
referred to in this legislation.   She noted that the RS2477                   
routes  were  identified on  the  map.    She spoke  of  the                   
research  the department  did  in  determining which  routes                   
qualified.                                                                     
                                                                               
She spoke  to a problem  the department had with  this bill.                   
She  said,  that  while  the map  had  lines  depicting  the                   
trails,  the  department  did not  know  exactly  where  the                   
trails were on the ground.   While the department completely                   
supported the effort  of the sponsor to  assert ownership of                   
the  trails,  she  felt  that  if  DNR  recorded  the  trail                   
locations today,  they would unduly  cast shadows  on title.                   
The problem was  not with determining ownership  on state or                   
federal  lands, the  question would  be with  private lands,                   
she warned.                                                                    
                                                                               
Senator Phillips  asked for a copy  of the map.   Ms. Angvik                   
gave him  the map she had  and told the committee  she would                   
provide additional copies for each member.                                     
                                                                               
Ms.  Angvik  said the  map  was  a  product of  the  capital                   
improvement project the Legislature  funded three years ago,                   
which provided  the department with the  funding to actually                   
do  the  research  and  do  the  historical  identification.                   
There were  over 1000 routes that  were originally proposed.                   
This legislation  represented those  ...(tape unintelligible                   
due to paper-shuffling of the map in question.)                                
                                                                               
Ms. Angvik explained  the steps the department  had taken to                   
certify  the routes.   She  mentioned public  participation.                   
She said they had only  done the certification process on 11                   
of the  trails in question, and  of that they had  taken one                   
to  court   with  respect  to   ownership  of   the  federal                   
government.   She  spoke to  the importance  of letting  the                   
public know of the trails' existence.                                          
                                                                               
She  said  DNR had  concerns  about  actually recording  the                   
routes before  their location  had been  actually identified                   
on the land.   Therefore, she said  the department supported                   
Senator Adam's  amendment requiring  the trails  be surveyed                   
before they  were actually recorded.  That would  give proof                   
positive of the location.   The downside, she admitted would                   
be the  expense and  the fiscal  note would  be large.   She                   
gave the  committee an estimate  of the cost to  survey just                   
the  11  trails that  had  already  been certified.    (This                   
amount  was in  written form,  and not  stated on  the audio                   
record.)                                                                       
                                                                               
Senator  Parnell  speculated there  were  a  lot of  private                   
property owners  who would  love to have  the state  pay for                   
surveys.  If  the title was already clouded  by assertion of                   
the  rights,  and  if  someone wanted  to  transfer  or  use                   
property,  whether  the trails  were  recorded  or not,  the                   
individual would have to file  an "Action to Quiet Title" or                   
pay for a  survey.  Therefore, he agreed with  Mr. Huber and                   
felt that  to require  a survey  before recording  would not                   
accomplish anything.                                                           
                                                                               
Ms. Angvik  agreed that they believed  that the right-of-way                   
existed  and  was  out  there   somewhere.    What  DNR  was                   
concerned  about   was  asserting  that   ownership  without                   
knowing  exactly where  it was.   She  would not  anticipate                   
doing  surveys strictly  for private  interests.   What they                   
would be doing would be  finding a centerline of the state's                   
own  easements.   She used  a possible  example, "There's  a                   
road going through  your land, and we would like  to let you                   
know exactly where  it is.  Right now we  don't know exactly                   
where  it is.    What that  does is  make  if difficult  for                   
people to know.  They can  say, 'OK, I've got an encumbrance                   
on my  land, but you can't  even tell me if  it goes through                   
the middle of my house or not.'"                                               
                                                                               
Senator Parnell said that would  take years and suggested it                   
would be  better to put  them on  notice now and  then start                   
working  the  survey process.    Ms.  Angvik responded  that                   
there was no question that  the state should tell the public                   
if there was an easement  on their land.  However, generally                   
speaking,  the  RS2477  question  was cast  as  the  federal                   
government versus the State Of Alaska.   It was the State Of                   
Alaska trying  to provide access the  conservation districts                   
that were created as a result  of ANILCA.  The big fight was                   
with the federal government.                                                   
                                                                               
Senator Phillips referred to  the identification of historic                   
trails, which  he surmised this  legislation was  all about,                   
and  asked how  the identification  was arrived.   He  noted                   
that  during the  Gold  Rush there  had  been another  trail                   
north of  Yakutat that  miners used that  was not  marked on                   
the map.   He saw the  trail marked on the  Canadian side of                   
the border.                                                                    
                                                                               
Ms. Angvik responded that the  original design of the RS2477                   
law was to allow  people to get from point A  to point B, on                   
their way to someplace else.   The requirement for the trial                   
designation  was that  some government  somewhere needed  to                   
have  stated that  the  trail  was real.    In  the case  of                   
Alaska,  the government  entity  was  often the  Territorial                   
Highways.   There may be  many trails that exist,  but there                   
was never a  time when a government indicated  such for that                   
trail, she said.  When  the division reviewed the historical                   
records,  they looked  at not  only  if the  trail had  been                   
used,   but   also   whether  there   was   any   government                   
acknowledgement of the trail.                                                  
                                                                               
Mr.  Huber  interjected  that   his  understanding  that  no                   
government action  was required  to create an  RD2477 route.                   
They could  be accepted by  public use  so long as  that use                   
pre-dated the extinguishment of the  act in 1976.  Pre-dated                   
public use  constituted acceptance.   He  noted there  was a                   
lot of case law to support that.                                               
                                                                               
Senator Pearce  asked why a  route such as the  Copper River                   
Railroad did not appear as  a historic transportation route.                   
Co-Chair  Sharp  answered that  was  because  the route  was                   
already an existing right-of-way  that has been established.                   
Ms. Angvik added that many  routes are actively managed by a                   
government  or, as  in  the  case of  the  railroad, by  the                   
railroad entity.                                                               
                                                                               
Senator Pearce pointed out many  other trails the government                   
manages that were in fact  included in the designation.  Ms.                   
Angvik  responded the  trails included  a historical  record                   
that  indicated they  could be  provable, with  respect that                   
they exist and  there are entities that  recognize that they                   
exist.  Senator  Pearce asked if the  railroad didn't exist.                   
Senator Phillips commented (undecipherable).                                   
                                                                               
Senator  Phillips questioned  how  the  division arrived  at                   
"historical   trails".     Ms.  Angvik   replied  that   the                   
definition was  established both in  the federal law  and in                   
regulations that had  been adopted.  One  way to demonstrate                   
qualification,  is by  going through  records of  government                   
use and  individual use  that had been  provided.   In cases                   
such  as  the Copper  River  Railroad,  the route  had  been                   
established but  is not  an RS2477 under  the terms  of this                   
law.  It exists as a separate easement that already exists.                    
                                                                               
Mr.  Huber pointed  out that  it was  important to  remember                   
that this  exercise of establishing these  rights-of-way was                   
not to show  all state rights-of way, but  to identify these                   
historic  rights-of-ways that  were accepted  by public  use                   
that aren't  already a part  of the state's  right-of-way or                   
transportation system.                                                         
                                                                               
Co-Chair  Sharp   invited  Senator   Halford  to   join  the                   
committee at the table if he so desired.                                       
                                                                               
Senator Pearce said  the reason she asked  the question, was                   
because there was some dispute  over the Copper River right-                   
of-way and who  owned part of it.  The  original railway bed                   
is gone  because it was over  a glacier and the  land it now                   
occupies belongs to  one of the Native  corporations, not to                   
the  State Of  Alaska.   Mr. Huber  told her  that while  he                   
didn't have a  specific answer on this  right-of-way, it was                   
certainly possible that is would  apply under the portion of                   
the law that  reads, "lands that are  not already reserved."                   
If  there was  a  federal reservation  of that  right-of-way                   
initially,  that was  not previous  to public  use, then  it                   
would  not  be  acceptable  by public  use  because  it  was                   
already reserved ground.  He  qualified by saying that was a                   
possibility,  but  he didn't  know  the  particulars on  the                   
Copper River corridor.                                                         
                                                                               
Senator Parnell wanted to know  if there was any more public                   
testimony to  be heard  on this bill.   Co-Chair  Sharp said                   
there  was  one  more  person  signed  up.    Senator  Adams                   
indicated that  he needed to  leave for another  meeting and                   
requested the  committee take up  his amendment first.   Co-                   
Chair  Sharp granted  the request  stating  that the  public                   
testimony left to be heard  probably wouldn't be affected by                   
the passage or failure of the amendment.                                       
                                                                               
Senator  Adams  moved  to  adopt   Amendment  #2.    Senator                   
Torgerson objected.   Senator Adams spoke  to the amendment.                   
He  acknowledged  the  enormous  cost  of  implementing  the                   
provision of the  amendment, which would require  all of the                   
surveys done  prior to recording.   He  still felt it  was a                   
necessary issue.  Co-Chair Sharp  asked for roll call on the                   
amendment.  The amendment failed 1-5 (Senator Adams, yea.)                     
                                                                               
Senator Torgerson  moved to adopt Amendment  #1, a technical                   
amendment.   Mr. Huber spoke  to the amendment,  which would                   
add 20 additional  routes to the original  182 routes listed                   
in  the Resources  Committee  version of  the  bill.   Those                   
routes had  been supplied  to the sponsor  by DNR  as routes                   
researched  and documented  to a  level  the department  was                   
comfortable with their validity.                                               
                                                                               
Senator  Torgerson  had  a  question on  Page  22  Line  13;                   
changing   the  word   "shall"  to   "may"  and   asked  for                   
explanation.    Mr.  Huber responded  that  the  change  was                   
purely a drafter  recommendation.  It would  not change what                   
the bill was trying to do.   There was some discussion as to                   
the meanings of "shall" and "may".                                             
                                                                               
There were no objections and Amendment #2 was adopted.                         
                                                                               
Co-Chair Sharp called  PAM LA BOLLE to testify.   The Alaska                   
State  Chamber  of  Commerce   supported  the  research  and                   
mapping  of RS2477  rights-of-way on  federal lands  and the                   
state's  assertion of  those rights  on  federal lands,  she                   
told the  committee.  However,  they had concerns  about the                   
private property issue and urged  the committee give careful                   
consideration.   Another concern dealt with  liability.  She                   
said her group  supported the state's efforts  to assert its                   
rights and do the mapping.                                                     
                                                                               
There were no questions by  committee members.  There was no                   
other public  testimony.   Senator Halford  was asked  if he                   
had anything more to offer.                                                    
                                                                               
Co-Chair Sharp  had one  more question  of Ms.  Angvik about                   
the fiscal  note.  He  wondered if the  documents' existence                   
on magnetic  form might excellorate  the process at  a lower                   
cost that the  fiscal note quoted.  He pointed  out the 3200                   
man-hours  needed  for  copying  paper files.    Ms.  Angvik                   
replied  that unfortunately  the  Recorder's  Office had  no                   
capacity  to receive  electronic files.   DNR  would happily                   
give  them  a  disk,  but   the  process  of  recording  had                   
stringent  requirements.   Paper size  must be  exact.   The                   
department is  even facing challenges  of how to  submit the                   
maps  themselves  since they  cannot  be  larger than  legal                   
size.                                                                          
                                                                               
Co-Chair Sharp voiced  his opinion that the  state should at                   
least  assert   its  rights  over   routes  that   had  been                   
documented and  proven.  He felt  that to do any  less would                   
do more  harm to private  citizens that might  be purchasing                   
or acquiring  land.   Those people should  be put  on notice                   
that  there may  be an  RS2477 right-of-way  on their  land.                   
Without  that  information  on  file,  it  would  be  nearly                   
impossible  for them  to  be aware  of  the encumbrance.  If                   
surveying  needs to  be done  later,  then that  could be  a                   
focus.                                                                         
                                                                               
Senator  Pearce moved  Senate  Finance Committee  Substitute                   
for SB  180 with individual recommendations  and appropriate                   
fiscal note.   There were  no objections and the  bill moved                   
out of committee.                                                              
                                                                               

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