Legislature(2001 - 2002)

04/11/2002 01:37 PM Senate L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    SB 309-ADVERSE POSSESSION                                                                               
                                                                                                                                
CHAIRMAN STEVENS announced SB 309 to be up for consideration.                                                                   
                                                                                                                                
MR. JOE  BALASH, staff to Senator  Therriault, sponsor of  SB 309,                                                              
said that  the Department  of Law  had some  concerns at  the last                                                              
hearing  and representatives  from Sealaska  Corporation have  met                                                              
with  them,  but  were not  able  to  resolve  their  differences.                                                              
However, the  Doyon Corporation  sent a  letter of support.  Other                                                              
corporations had been contacted and  had no objections, but he had                                                              
nothing more in writing.                                                                                                        
                                                                                                                                
MR. RON WOLFE, Corporate Forester, Sealaska Corporation, said:                                                                  
                                                                                                                                
     I think the  doctrine of adverse possession  is one that                                                                   
     is  problematic  for  our  corporation  with  the  rural                                                                   
     ownership that we have where  survey boundaries have not                                                                   
     been well  established or may  not be in existence  yet.                                                                   
     Land  is interspersed  with other land  owners, such  as                                                                   
     the  Forest Service,  coastal areas  and these sorts  of                                                                   
     things where someone could in  essence squat on Sealaska                                                                   
     land and  it would  be very difficult  for us to  police                                                                   
     that and control that.                                                                                                     
                                                                                                                                
He  said they  contacted the  Administration, but  were unable  to                                                              
resolve differences. They have contacted  other regional and ANCSA                                                              
corporations and have learned of their support.                                                                                 
                                                                                                                                
MR. JON  TILLINGHAST, Counsel for  Sealaska Corporation,  added he                                                              
had two phone  calls with Mr. Cummings and unfortunately  there is                                                              
simply  a philosophical  disagreement  between the  state and  his                                                              
client on  the extent to which  the government ought to  be taking                                                              
private property without paying for it.                                                                                         
                                                                                                                                
He  thought the  state overstates  the  impact in  that he  didn't                                                              
believe  there is  a  danger of  the  state loosing  any  existing                                                              
right-of-way or  any existing rights to any  existing right-of-way                                                              
under  this  legislation  because  of the  grandfather  clause  in                                                              
section 4.                                                                                                                      
                                                                                                                                
     It  protects any  adverse  possession  rights that  have                                                                   
     vested before  this law takes affect. It  will grant the                                                                   
     state that if  this law were to pass, that  if the state                                                                   
     wishes to  impose a right-of-way  on a piece  of private                                                                   
     property  in  the future,  they  will  have to  pay  the                                                                   
     private property  land owner  for that right.  The state                                                                   
     thinks that that's  a bad thing; we think  that's a good                                                                   
     thing.                                                                                                                     
                                                                                                                                
MR. BILL CUMMINGS, Assistant Attorney  General representing DOTPF,                                                              
said that he did have conversations  with Mr. Tillinghast over the                                                              
last couple of  weeks. He proposed that AS 9.10.030  be amended to                                                              
lengthen the  period to 15 years.  In other words, you  would have                                                              
15 years  in which  to go forward  and deal  with people  who were                                                              
"squatting on your land."                                                                                                       
                                                                                                                                
He would  also like  to delete sections  2 and  3 of the  bill. He                                                              
wanted to correct one apprehension  that Mr. Tillinghast has about                                                              
where the state  is coming from. They are not  talking about going                                                              
out and  building highways and  deliberately imposing  the state's                                                              
facility  on   property.  If   the  state   builds  a   road  that                                                              
inadvertently goes  on to private property and  the property owner                                                              
comes  forward, the  state  has an  obligation  to  pay. They  are                                                              
concerned where  people make mistakes  between private  owners and                                                              
the government.  He gave them  two examples from  Southeast Alaska                                                              
where public facilities weren't built  where they were supposed to                                                              
be. One of them is on the Haines  Highway where the state had been                                                              
since 1944  when the  United States  built the  Haines Highway  as                                                              
part of the WWII  effort. "Under this statute,  the state wouldn't                                                              
have been able  to protect its investment over time  on the Haines                                                              
Highway and would have had to pay for it again."                                                                                
                                                                                                                                
The second example is a right-of-way  out by Eagle River in Juneau                                                              
where the Unites States in the 1930s  built the road and tied into                                                              
another road  that allowed access to  the Boy Scout camp  at Eagle                                                              
Beach.  The road  was  built  about 400  feet  from  where it  was                                                              
supposed to  be and  that was quite  obviously a mistake.  Without                                                              
the statute as it's currently written,  the public could have been                                                              
dispossessed  of that  road. "In  the context  of DOT, what  we're                                                              
looking at here is an ability to  correct mistakes and to prevent,                                                              
as  we  illustrated  in  these two  examples,  an  injustice  from                                                              
occurring."                                                                                                                     
                                                                                                                                
Last time  he testified  he talked about  a case called  Veasey V.                                                              
Green where  a woman  could have been  dispossessed of  her house,                                                              
but because  of the doctrine of  adverse possession, she  was able                                                              
to keep  it. He recommended,  therefore, that  the statute  not be                                                              
changed at  all or if  they want some  relief granted,  they could                                                              
change  AS  9.10.010  to  a 15-year  period  and  make  the  other                                                              
deletions in sections 2 and 3 and delete section 4(a).                                                                          
                                                                                                                                
SENATOR LEMAN said  the last time they heard this,  he flagged the                                                              
change from 7 years to 20 years on  page 2, line 6, and asked what                                                              
was done with that.                                                                                                             
                                                                                                                                
REPRESENTATIVE ROKEBERG replied that  20 years was used because it                                                              
is the  longest period of  time in any  other state in  the United                                                              
States  that this  doctrine  is used.  Senator  Therriault is  not                                                              
wedded to  a particular number of  years. He thought it  should be                                                              
bumped up a little bit from 7.                                                                                                  
                                                                                                                                
SENATOR LEMAN  said he agreed, but  he thought 20 years  was a bit                                                              
long unless they  could come up with some good  reasons for having                                                              
it. He would like it changed to 10 years.                                                                                       
                                                                                                                                
CHAIRMAN STEVENS noted  that the brief in their  packets shows the                                                              
further west we go, the more the  number shrinks. It started at 60                                                              
years and now it's down to seven.                                                                                               
                                                                                                                                
MR.  BALASH said  he is  correct. The  historical explanation  for                                                              
that  is  that  large  land grants  were  given  to  the  railroad                                                              
corporations as they  moved across the country. They  were kind of                                                              
sitting on the land and not getting it into productive use.                                                                     
                                                                                                                                
     In Alaska  we have large  corporations such  as Sealaska                                                                   
     who  are  holding  large  tracts   of  land  that  don't                                                                   
     necessarily need  to be put into productive  use to meet                                                                   
     the  original  intent  of granting  the  land  to  those                                                                   
     corporations.  They   are  holding  them   for  cultural                                                                   
     purposes  and  preserving  land   for  the  purposes  of                                                                   
     harvesting fish and game and things of that nature.                                                                        
                                                                                                                                
SENATOR LEMAN  responded that section  2 has a  fairly substantial                                                              
list  of things  that someone  is  going to  have to  meet and  he                                                              
thought there was added protection there.                                                                                       
                                                                                                                                
SENATOR LEMAN moved to amend 20 years  to 10 years on page 2, line                                                              
6.                                                                                                                              
                                                                                                                                
SENATOR DAVIS said she wanted to  hear what Sealaska thought about                                                              
changing it from 20 years to 10 years.                                                                                          
                                                                                                                                
MR. TILLINGHAST said they didn't object to that amendment.                                                                      
                                                                                                                                
There were no objections and the amendment was adopted.                                                                         
                                                                                                                                
SENATOR  LEMAN moved  to pass  CSSB 309(L&C)  from committee  with                                                              
individual recommendations  and the  accompanying $0  fiscal note.                                                              
There were no objections and it was so ordered.                                                                                 

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