Legislature(1997 - 1998)
02/09/1998 03:38 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 180 - STATE RIGHTS-OF-WAY: RS 2477
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:38 p.m. and announced SB 180 to be up for consideration.
He said this legislation was introduced as a result of the
Committee's on-going effort with regard to what is happening with
R.S. 2477. He noted that there are still questions to be answered
and that they had responses from the Attorney General's Office and
the Department of Natural Resources indicating they did not have
any objection to a legislative assertion of the catalogue and
documented 500 plus listed trails that were put together by DNR,
Fairbanks.
MR. BRETT HUBER, Staff to Senate Resources Committee, said revised
Statute 2477 (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 this law was to provide for and guarantee, the
public's right to establish access across federal lands.
Subsequent congressional action and more than 100 years of case law
has recognized the State's authority to determine and define R.S.
2477 rights-of-way.
Although Congress repealed R.S. 2477 in 1976 with the adoption of
the Federal Land Policy and Management Act, they specifically
acknowledged the legal existence of R.S. 2477 rights-of-way
established prior to the repeal. Current federal regulation
explicitly provides that any rights conferred by the R.S. 2477
grant shall not be diminished. He said that this important state's
right issue has received a lot of legislative attention in the
past.
Beginning with the legislative appropriations in 1992 and 1993,
which funded the research and compilation of historical information
regarding R.S. 2477, the legislature has taken the lead in moving
this issue forward. In undertaking those legislatively designated
projects, the DNR reviewed some potential R.S. 2477 routes. This
DNR review resulted in the identification of 582 rights-of-way that
appear to qualify and can be supported with appropriate
documentation. These 582 routes are published in the Historical
Trails catalogue and incorporated into the State land
administration system (LAS).
Last year the legislature passed SJR 18 with broad support. It
reiterated the legislature's position and made clear the objection
to the United States Department of the Interior's proposed policy
which would drastically reduce the State's opportunity to resolve
these issues in our favor. Information that came forward during
the committee process on SJR 13, as well as the during the joint
Senate and House Committee's overview last February, supports the
action proposed in SB 180 which codifies 582 documented R.S. 2477
rights-of-way. It requires them to be recorded and provides a
process for and limitation to their vacation. While the R.S. 2477
rights-of-way codified in SB 180 have already been accepted by
public users and deemed supportable by the State, it is likely the
federal government will dispute the State's 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
rights-of-way, over 100 years of case law recognizes the State law
as controlling on the issue. Therefore, codifying these rights in
statute will strengthen the State's position for possible
subsequent litigation and provide the affected land owners and the
general public clear notification that these R.S. 2477 rights-of-
way do exist and are available for use. SB 180 simply says that
these are rights-of-way and are available for use. They are an
existing State right that we should not allow to be regulated away.
This legislation doesn't create a new state right. It merely
statutorily asserts the rights we already have.
SENATOR LEMAN asked if there was any chance that in asserting these
rights we diminish any potential rights that we may have to others
that we currently can't document, but might be able to in the
future.
MR. HUBER replied that the bill specifically drafted that we're
accepting all rights-of-way granted under 43 USC 932. Section one
of the bill says that failure to include or identify a right-of-way
under (d) of the section does not relinquish any right, title, or
interest the State has in a right-of-way. The direction of the
bill is that the DNR continue to establish, document, and research
other routes and bring those forward in an annual report to the
legislature and then determine whether they would legislatively
assert the new routes that are identified.
Number 110
SENATOR LINCOLN asked (on page 2, line 4) what it means that the
trail has been accepted by public users.
MR. HUBER answered that no actual government action was required to
accept an R.S. 2477 that was granted under the old mining act.
They could be accepted by a governmental action by a State or a
subdivision of the State, but they could also be accepted just
because they are or were used. That's what's meant by public use.
SENATOR LINCOLN said there was an old postal dog sled trail between
Rampart and Manly that her uncles established and no one officially
said that was the route that would be taken to connect the two.
She asked if that was what they meant by a U.S. postal route.
CHAIRMAN HALFORD answered that if it was a documented U.S. mail
route, it was specifically included in the federal legislation and
that is exactly what they meant when they passed R.S. 2477. He
understands from the people in Fairbanks that a lot of information
came out of the U.S. postal records.
MR. HUBER added that he understood if it was another postal route,
where needed, people ought to be able to cross federal land, if it
wasn't previously reserved for another use. A trail that a family
or a group of families had used for a dog sled route from one point
to another that crossed a federal trail could also qualify as an
R.S. 2477. It didn't have to be a postal route. That was just one
of the records they used to substantiate some of the routes in
question.
CHAIRMAN HALFORD noted that this deals with the existence of the
list of trails and not the scope or uses of the listed trails. He
thought there was legitimate concern as to what happens in those
decisions, but those are more in-state decisions and less apt to be
precluded by not doing anything in dealing with the federal
government.
Number 217
CHAIRMAN HALFORD said last year he was told that the administration
was opposing the January 97 Babbit policy and asked if there has
been any progress in that effort.
MS. ELIZABETH BERRY, Assistant Attorney General, answered that
Congress has continued the moratorium against the federal
government in adopting any sort of regulations and, in fact, made
the moratorium permanent so that Department of Interior cannot
proceed with really changing the rules. She filed a memorandum
objecting to the policy the Secretary proposed to change and there
has been no further developments that she is aware of.
CHAIRMAN HALFORD asked for the status of the assertions the Outdoor
Council started last year.
MS. JANE ANGVIK, Director, Division of Land, said she had not done
additional projects from the Outdoor Council. They are still
working on updating their research so they can certify additional
routes. Out of the 1,700 potential cases there are several in the
category of "holding" where additional evaluation of data would
allow DNR to strengthen the record so they can actually certify 23
additional routes that had previously not been identified. Nancy
Welsh and Jennie Chapmen have been doing that work for the past 6 -
8 months.
CHAIRMAN HALFORD asked if she would be comfortable if those routes
were added to this bill.
MS. ANGVIK said she would refer that answer to Nancy Welsh, but one
of the concerns she has with this bill is the recording of these
routes means that any private land owner would have a cloud on
their title and DNR wouldn't be able to certify that where they
have placed the title is actually where the route is located
without field work. She did not think recording would provide him
with the level of protection he hoped to achieve.
CHAIRMAN HALFORD asked if there isn't already a cloud on the title
if there is an R.S. 2477 on the property and, if someone is really
trying to sell a piece of property that has an R.S. 2477 on it
without informing the buyer, is it not a violation of State law and
all the real estate transaction regulations that we currently have?
MS. ANGVIK responded that if they have a surveyed route and know
exactly where it is, it would be appropriate to identify that in a
recording. However, the cloud problem is that they don't know
precisely where the trail is located until they have had a chance
to survey it.
CHAIRMAN HALFORD said he understood her concern, but he thought
that someone who is thinking about buying a piece of property that
has a potential R.S. 2477 on it should at least know about it. The
"cloud" on the title would be just another disclaimer in a title
insurance policy just as we see now. There would be a statement
that there is an asserted or in some way recorded R.S. 2477 passing
through the property and the buyer should note where it is and
satisfy himself that he's not adversely affected. He thought that
notice would be something we owe everybody.
MS. ANGVIK responded that we are not in a position to be able to
say where it is located, however, until they have actually
conducted the survey on the ground.
CHAIRMAN HALFORD agreed with her concern, but this is exactly the
way some of the disclaimers title companies are written.
CHAIRMAN HALFORD asked if the State had done anything on litigating
any of the R.S. 2477 claims since last year.
MR. MILES CONWAY, Assistant Attorney General, answered that a
lawsuit has been filed on the Harrison/Portage Creek Trail in the
Circle Mining District. They are in federal court in that case
right now and have done substantial work with experts and in the
field. He anticipates going to trial sometime before the end of
the year.
CHAIRMAN HALFORD asked how long was the trail he is talking about.
MR. CONWAY answered that it's 26 miles and goes from the old Miller
Road House on the Steese Highway and connects to Circle Hot
Springs.
CHAIRMAN HALFORD asked how much they have spent on it so far.
MR. CONWAY answered that they have spent about $30,000 on experts
and he is in the process of putting together another budget.
Before it's over he thought they would need another $50,000 for
experts and he thought they needed it sooner rather than later.
CHAIRMAN HALFORD asked if that included Department of Law.
MR. CONWAY replied no, this is money being spent on outside
department experts.
MS. BERRY said that costs from within the Department ran about
$50,000 to $60,000 for the whole R.S. 2477 issue. She explained
that there are four other cases. The Chickaloon Road Case, a
condemnation action filed in federal court, is one and their
argument is that we don't have to pay for the condemnation, because
the road is already ours as an R.S. 2477. They are also drafting
an amicus brief to file on the U.S. Supreme Court on the Chilts
case. They have also given their 180-day notice of intention to
sue in the Jualin Mine Road case, an old mining tramway out of
Berners Bay.
CHAIRMAN HALFORD asked her to give the committee the status of the
Knik case.
MS. BERRY answered to the best of her knowledge, that case has been
up to the State Supreme Court and been sent back down to the
Superior Court for a determination of the width of the right-of-
way. The Superior Court determined it was a 100 ft. right-of-way.
The parties have appealed again to the State Supreme Court. Their
notice of appeal challenges the existence of the right-of-way again
which should be easily dispensed with. The real issue here should
be the proper width to establish for that right-of-way.
CHAIRMAN HALFORD asked if this is a case in State Court where
someone is accessing property on an R.S. 2477 that crosses owned by
another individual.
MS. PERRY answered yes.
CHAIRMAN HALFORD asked what the State's position was.
MS. BERRY answered the State is supporting the existence of a 100
ft. right-of-way.
CHAIRMAN HALFORD asked if the private property owner is contending
there is no right-of-way or a narrower right-of-way.
MS. BERRY replied they are contending there is no right-of-way.
CHAIRMAN HALFORD asked if the Supreme Court held that there is a
right-of-way.
MS.BERRY answered that the Supreme Court held that it does exist.
Number 400
SENATOR SHARP asked if the federal government had denied this is a
trail that has been in use for many years, because he knows that
many people have driven that road in two wheel drive pickups. He
wanted to know why it was so difficult to prove that it exists.
MR. CONWAY explained that the federal government is contesting the
existence of that right-of-way and is asserting there is no road.
They do not contest that portions on either end of the right-of-way
had some use, but they do contest the middle section in the Steese
Conservation Area was ever a right-of-way. He said the State has
learned of a number of people who have driven on this right-of-way
and intends to offer them all as witnesses at the trial. They have
taken a field visit out there and it's difficult, because a portion
of the road way they are contesting is in the middle of the creek
and it appears to wash out numerous times every year and there
isn't much of a right-of-way to see in a number of spots. He
agreed that there was a trail there, but it's difficult to define
because of the proximity to the river. The location of the right-
of-way changed every season as the mining activity changed. There
is also an issue of abandonment and the statute of limitations. It
presents some challenging issues with respect to federal mining
claims and the extent to which the federal government retains an
interest in federal mining claims.
CHAIRMAN HALFORD said listening to the dollar amounts, it sounds
like we have already spent $100,000 to argue with the federal
government over a right-of-way that's a driveable road, and if we
have 582 in this category and $100,000 for each one and three years
of court time each, he didn't think we would get many R.S. 2477s if
that's the only approach we take. That's what why he introduced
this legislation.
Number 438
MR. RON ARNO, Alaska Outdoor Council, said they very strongly
supported SB 180. Legal public access on and across federal lands
plus potential access across private land is of utmost importance
to the membership. Assertion of identified public R.S. 2477
rights-of-way could potentially become necessary for Alaskans to
continue their traditional pre-1976 activities of hunting, fishing,
trapping, portaging, skiing, wood gathering, berry picking, etc.
Eliminating the R.S. 2477s could lock out development to mining,
recreational use, and transportation corridors. Because land
ownership changes created by ANCSA and ANILCA have caused numerous
conflicts between private land owners and individuals legally
accessing public lands and waters, the establishment of R.S. 2477s
could eliminate conflicts in the future.
MR. NELSON ANGAPAK, Alaska Federation of Natives, said that any
time an assertion is used to identify an access across ANCSA lands,
that assures a cloud on the title which will eventually be conveyed
to the native corporations.
When Congress passed ANCSA in 1971, natives were promised quick
settlement of their claims and to date not a whole lot of selected
lands have been patented. As long as those lands remain in the
control of the federal government, they remain, by defacto, federal
lands. They are also concerned with page 2 which says, " failure
to include or identify a right-of-way under (d) of this section
does not relinquish any right, title or interests the State has in
a right-of-way." There will always be a possibility of that claim
being raised in the future. The writers of ANCSA recognized that
there are prior existing rights on the lands that would eventually
be conveyed to the native corporations and, therefore, included the
17 (b) easement process. This process was established to identify
access across and into native lands and into adjacent federal
lands. In 1977, federal courts ruled that those easements that
were jointly identified by the native corporations and BLM, and the
State of Alaska should use that process to have access identified
across native lands. As far as ANCSA lands are concerned, the
proper way to identify access across lands is to use 17 (b).
Number 575
SENATOR LEMAN commented that he didn't think the legislature's
efforts in SB 180 and his preference for 17 (b) were mutually
exclusive. He thought the two could work together. When he and
Ms. Berry, Department of Law, testified before Congress, she said,
"If access across native-owned and other private lands is
determined to be necessary through a process involving public
review, right-of-way authority other than the application of R.S.
2477 rights-of-way will be utilized if available."
MR. ANGAPAK responded that their preference is still 17 (b) because
they are already on record as being recorded. He suggested the
Committee consider a process to be used to abandon unused access
routes, and in particular, on the lands that are conveyed to the
native corporations.
MS. KIRSTEN SHELTON, Alaska Outdoor Voice, opposed SB 180. This
bill will not achieve any meaningful public policy benefit, but
invites further gridlock between the State and federal government
and private land owners. A blanket acceptance of rights-of-way
denies the reality that any and all R.S. 2477s can only be
adjudicated in a court of law where claimants must establish, at
least in the case of federal and private lands, to the court's
satisfaction the factual basis for a claim.
Passing SB 180 does not satisfy the requirement of proof and cannot
supplant a judicial review.
TAPE 98-8, SIDE B
Number 578
A great many assertions would have a profound effect on adjacent
land holders. This includes many native corporations and other
private land owners who look to the integrity of their lands for
the protection of important subsistence habitat as well as economic
development consistent with local goals.
SENATOR LEMAN asked if it wouldn't be advantageous to the public
and land owners to have documented in some way that there is a
reasonable basis for the assertion of R.S. 2477 claims.
MS. SHELTON asked if he meant other than the Historical Trails data
base.
SENATOR LEMAN said yes.
MS. SHELTON said that she didn't think the data base did what they
wanted.
CHAIRMAN HALFORD said that she was right; asserting them is not the
final step. But if we are talking about what would happen spending
$100,000 on a road and spending years doing it, we will never get
solutions to these things if we don't take any kind of action at
all. If he was a potential buyer of a piece of property that had
an old wagon road going through it and the person trying to sell it
to him said it was just a road out to the dump, he would want to
know if that was an R.S. 2477 and that his house and shed were on
opposite sides of it. If it had been thoroughly researched, he
would want the title to be clouded so that he would at least know
about it.
MS. SHELTON agreed that you would want to know that, but the only
way to find out for sure is to go through the court system. It
could always be challenged, otherwise.
MR. DON SHERWOOD, President, Alaska Boating Association, supported
SB 180. It would allow various user groups to travel to various
destinations throughout connecting trailheads and allow access to
back country areas without conflict to others. The State is taking
an aggressive approach in defending the rights of the public. As
property is sold in more populated areas, the right to use
traditional existing trail heads and trails to the back country are
being sold along with the land without regard to existing access
routes, like the Big Lake Snow Machine Trail system where there are
major reroutings around those areas.
MR. KEN FREEMAN, Executive Director, Resources Development Council
(RDC), supported SB 180. He said that assuring access to provide
for transportation and resource development opportunities is a top
priority of RDC. They have long supported actions to designate and
settle historic R.S. 2477 rights-of-way across public lands in
Alaska while respecting private property rights. Given the fact
that close to 60 percent of the State is federal land, access
across public land is vital to Alaska's continuing development.
Number 509
MR. HAROLD GILLAM, Fairbanks, approved of SB 180 and suggested on
page 2, line 7 to change "state" to "public." R.S. 2477s guarantee
an access and are vital to native corporations because access is
the only way their lands will ever be developed. He thought DNR
was trying to make this process overly complicated by saying all
the rights-of-way have to be identified on the ground. Every
patent that the federal government has ever issued was for small
tract lands or homesteads and subjected those lands to a floating
right -of-way for telegraphs, lines, pipelines, and railroads. He
asked why suits were filed in federal court when the case law has
almost always been that the State court is the adjudicator of an
R.S. 2477. Many definitions and laws establishing rights-of-way
are in territorial law and should be looked at like it was passed
by the federal government. The roads don't really need to be
surveyed because the lands can be subject to floating easements.
BLM has always stated on all the plats that these lands that are
being transferred may be subject to an R.S. 2477.
CHAIRMAN HALFORD said he also has asked why we filed in federal
court and not State court on the upper Knik/Harrison Creek.
MS. BERRY explained that the Knik Glacier Trail came into State
court and the Harrison Creek case is in federal court because it's
against the federal government and you can't sue the federal
government in State court. The federal government has not waived
its sovereign immunity to be sued in state court.
MR. GILLAM asked if these are rights that were granted to the State
and the public by the federal government, why are we suing the
federal government? Why not let the federal government sue us?
CHAIRMAN HALFORD responded that that's what he's trying to do with
this kind of legislation.
MS. MARY NORDALE, Chairman, Alaska Miners Association (AMA), said
she endorsed a letter from the AMA supporting SB 180. She
emphasized support in the letter which dealt with the creation of
regulations establishing the procedural steps required to vacate
rights-of-way. Also, as an attorney representing a client involved
in a Sue Allen Mines Trail case, she is concerned that the attitude
she saw in Washington D.C. demonstrated by the Department of
Interior is that the federal government will not exercise any
affirmative initiative with respect to our R.S. 2477s. The burden
is on the State and public. In her case, she is representing a
mining company that is suing on behalf of the public to establish
a route over federal lands.
MS. RACHEL MORELAND, Alaska Forest Association, supported SB 180.
They anticipate the Federal Government's attitude won't change in
the future. SB 180 is a timely and necessary step in the
preservation of Alaska's R.S. 2477 rights-of-way. It sends a clear
message that they are open and available for use. It also sends a
clear message that Alaskans will not sit idly by while their
rights-of-way are stolen.
Number 414
MR. JESS LANMAN, Palmer resident, said he is on the tribal council
of the Chickaloon Tribe. He thanked everyone for attempting to
deal with this very difficult problem. He said it is important to
take the time to recognize the many natural resources we enjoy here
in Alaska and look at them in a responsible way. He thought that
there were good intentions behind SB 180, but there were several
trails that go through their lands and each one of them has
different details. He thought it was a case by case issue. Some
of the trails that are named have the wrong names and some same
trails have different names while in fact they are the same trails.
He said the Village of Chickaloon would be very happy to work with
DNR on the rights-of-way.
MR. CRAIG PUDDICOMBE said he is involved with the Knik Glacier R.S.
2477. He guaranteed that SB 180 was not going to be a fix-all. He
said that there were a lot of false statements in the sponsor
statement which talks a lot about federal lands, but doesn't
mention state land or private property. It also states that not
all R.S. 2477s are going to be 100 ft. wide. In the definition of
an R.S. 2477, the word "highway" is there; and according to Alaska
State statute, because the word "highway" is there, it calls for a
100 ft. right-of-way, period. That's what they have asserted on
his property and that's what they will assert on all R.S. 2477s. He
did agree with the vacation of rights-of-way, but he thought they
should add to the intent section if all present users are not
satisfied, the DNR will make the final determination. The reason
is that in his case the DNR had a decision come down October 25,
1995 saying there was no R.S. 2477 across his property. The
defendants, even though they had an alternate route, simply said
they weren't satisfied. He said someone has to make the final
determination.
CHAIRMAN HALFORD explained that the final section of the bill is
intended to provide some process by which a decision is made where
there is clearly an R.S. 2477 and where it is not necessary because
it's duplicated by a 17 (b) easement, by a developed road or
something else.
Number 288
MS. MIKE DALTON said that the Portage Creek/Harrison Creek Trail is
one of 11 the State has noticed the federal government on and will
set a precedent when it is won. There are many others on the list
of 585 that meet the same standards and criteria though will not
theoretically have to be litigated.
She said that on native lands people use the 17 (b) easement as an
easy answer to access native lands, but it is applicable only at
the time of conveyance. It's not floating out there for the next
50 years. The vast acreages that are owned by the native
corporations and private owners in the State of Alaska are not
adjacent. They are scattered all over the State. R.S. 2477s are
very important for access to all of them.
CHAIRMAN HALFORD thanked her for her comments and her multi-year
efforts in advocating for R.S. 2477s.
SENATOR TAYLOR noted that he didn't find either the Unuk Trail or
the Stikine River Wagon Road on the list of 585 and asked why.
MS. DALTON replied that the Stikine River didn't meet the basic
research criteria of the Department. She noted that the Unuk Road
was R.S. 20014.
MR. ROGER BURGGRAF said he is a miner and outdoors man and has used
many R.S. 2477 trails to obtain access to mining claims and for
other outdoor work. He supported SB 180 as a step in the right
direction. We need to do something to protect our rights to
access.
Number 162
MR. KEVIN MOORE, private land owner, opposed SB 180 because he is
one of the land owners who is affected by the Wolverine R.S. 2477
which is also his driveway. He would like to see an alternate
route.
CHAIRMAN HALFORD explained that SB 180 just gets the R.S. 2477
recorded. He suggested that Mr. Moore look at the provisions under
vacation rights-of-way once he knows what he's dealing with. He
has the option of going to the DNR and doing an alternative access.
MR. MOORE responded that the only problem with that is that he has
watched the PUDDICOMBE Case and it didn't work for him, and he saw
that as just setting a precedent against him.
CHAIRMAN HALFORD said it might be better to acknowledge the
existence of a right-of-way and go through the process of vacating
it, if there's alternative access. He asked if there were other
public accesses to the Wolverine Lake he was talking about.
MR. MOORE replied there was one going in at the northwest end of
the Lake.
MR. ROY BURKHART, Alaska State Snow Machine Association and Mat-Su
Motor Mushers, supported SB 180, but thought there should be
companion legislation. If there are any trails that go through
private property, the private property owner should be held
harmless for any liability.
CHAIRMAN HALFORD responded that there is a proposed amendment that
deals with liability on R.S. 2477s and other trails.
MR. DICK BISHOP, speaking on his own behalf, supported SB 180
because it takes a long step forward in addressing the public's
interests and concerns with public access on public and potentially
private lands. He said 17 (b) easements had not been adequately
addressed by the State. He thought the burden of proof should be
on the federal government.
MR. KARL HANNEMAN, member of the Alaska Minerals Commission,
supported SB 180. Because these are documented public use rights-
of-way, we need to respect the land owners where they cross.
TAPE 98-9, SIDE A
Number 001
MR. MARK STREDNY supported SB 180.
MS. PAM LABOLLE, Alaska State Chamber of Commerce, supported SB
180. She said they have had a resolution on the subject of R.S.
2477s for many years. They are pleased the State is doing
something proactive on this. She hoped they would do a lot of work
with private land owners to make sure their rights are being
protected.
MR. GEORGE STRUTHERS, Engineering Manager, Mat-Su Borough,
supported SB 180. He suggested on page 1, line 11 to insert, "or a
municipal corporation with transportation powers" after "public
facilities." This would allow DNR to transfer R.S. 2477s rights-
of-way to local governments that have road powers so the road can
be built and be maintained by the local governments.
Number 85
MS. PATRICIA WADE asked if the committee was aware that the
President of the United States decreed that the State Legislature
will work together with the tribes on a government to government
basis.
CHAIRMAN HALFORD said he was aware that there are a number of
provisions in the Indian Self-determination Act and actions by
Congress that try to encourage interaction with tribal entities and
local governments and he also was aware that there are conflicts in
State law and State Supreme Court opinions on doing some of those
things and they try to work around them the best they can.
MS. WADE asked if he had contacted any of the tribes in regards to
these trails.
CHAIRMAN HALFORD answered that they hadn't and that this was a list
put together by DNR in an extensive project that had been occurring
over the last two or three years. The list is based on essentially
prior use that was documented, not on any activity by any
individual. It is thought by many that it will be to the advantage
of Alaskans, both native and non-native.
MS. WADE said that sacred burial grounds were sold by the State
into private ownership and now they don't have access to them. She
said she didn't like SB 180 and asked if he could comment on the
graves in Sutton and how that might be linked to it.
CHAIRMAN HALFORD said he didn't know the answer to that. He asked
if there were more questions and there were none.
SENATOR TAYLOR said it's his understanding that use of a public
right-of-way by the public does not entitle those public users to
a cause of action against the underlying fee owner of the property.
If that's a true statement like he believes, there should be no
cases out there where someone has been sued on a public right-of-
way. If there are no cases out there that would indicate that
people are being subjected to this type of litigation, this
(amendment) is a useless gesture. He also pointed out a
typographical error in the amendment saying that instead of
"conversation" it should be "conservation." He thought the bill
was about easements and rights-of-way and that the amendment goes
much beyond that.
CHAIRMAN HALFORD added that part of it was a request by DNR and the
other parts were concerns over a floating easement without a
determination of location. He personally believes if you have the
right to use someone else's property and have no obligation to
compensate them for that use, you shouldn't have the right to sue
them for anything to do with that use. This was the subject of the
first legislation he worked on in 1979 which had broad support from
private land owners and native corporations because they had a huge
amount of land and no way to control trespass, and didn't want to
be liable for someone who was trespassing on their land getting
hurt.
SENATOR TAYLOR said he was concerned that private land owners can't
put up a cable across a paths so that someone comes flying along
and it takes their head off. He said people like that have been
found liable for erecting those types of gates. He doesn't have a
problem with that.
CHAIRMAN HALFORD said that DNR's concern was conservation
easements. He asked if there were further questions and there were
none. He thanked everyone for their testimony and adjourned the
meeting at 5:27 p.m.
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