Legislature(2007 - 2008)BUTROVICH 205

03/02/2007 03:30 PM Senate RESOURCES


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03:34:07 PM Start
03:40:51 PM Confirmation Hearings || Board of Game
04:30:40 PM Big Game Commercial Services Board – Confirmation Hearing
04:41:20 PM HB25
05:04:28 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ HB 25 RECREATIONAL LAND USE LIABILITY/ADV. POSS TELECONFERENCED
Heard & Held
+ Confirmation Hearings: TELECONFERENCED
Department Commissioners:
Tom Irwin, Larry Hartig, Denby Lloyd
Big Game Commercial Services Board:
Richard A Roher, Leif Wilson
Board of Game:
Robert Bell, Ben Grussendorf
Alaska Oil & Gas Conservation Commission:
Cathy P Foerster
Bills Previously Heard/Scheduled
Presentations Previously Heard/Scheduled
        HB  25-RECREATIONAL LAND USE LIABILITY/ADV. POSS                                                                    
                                                                                                                              
4:41:20 PM                                                                                                                    
CHAIR HUGGINS announced HB 25 to be up for consideration.                                                                       
                                                                                                                                
REPRESENTATIVE PAUL  SEATON, sponsor of  HB 25, read  the sponsor                                                               
statement.  He  said  it  encourages  expansion  of  recreational                                                               
opportunities for Alaskans by  protecting private landowners that                                                               
allow  free  recreational  use  of their  lands  by  raising  the                                                               
liability standard  to "intentional, reckless or  gross negligent                                                               
misconduct".                                                                                                                    
                                                                                                                                
He  related that  currently land  owners rely  on the  unimproved                                                               
land statute,  but it  is problematic  because the  definition of                                                               
what   is  improved   and  unimproved   is  not   clear  in   the                                                               
determinations that have  come out of the  courts. So, landowners                                                               
are  unable to  really  assess their  liability  when they  allow                                                               
recreational use of their land.                                                                                                 
                                                                                                                                
This  bill also  protects landowners  from adverse  possession or                                                               
prescriptive easement based on them  giving free recreational use                                                               
to recreational users.                                                                                                          
                                                                                                                                
REPRESENTATIVE  SEATON  said  that  many  people  have  testified                                                               
favorably about this issue.                                                                                                     
                                                                                                                                
4:45:30 PM                                                                                                                    
SENATOR STEVENS  said other states  have done similar  things and                                                               
asked how this bill compares to those.                                                                                          
                                                                                                                                
REPRESENTATIVE SEATON  pointed out nine pages  of documents about                                                               
other states. Many have used the same tack.                                                                                     
                                                                                                                                
4:46:19 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  if  recently  passed legislation  on                                                               
adverse  possession and  prescriptive easements  didn't apply  to                                                               
these lands.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON replied  that a  bill was  passed limiting                                                               
the  state from  taking land  through eminent  domain. He  didn't                                                               
think they had changed the  adverse possession statutes recently.                                                               
Prescriptive easement is  more the case where  someone claims the                                                               
use of the land and can claim  its use for the future. He pointed                                                               
out that  this bill applies only  if the recreational use  is for                                                               
free. This does not apply if the use is for commercial purposes.                                                                
                                                                                                                                
SENATOR WAGONER commented that the  legislature passed an adverse                                                               
possession  bill, called  the "squatters'  bill,"  three or  four                                                               
years ago. He thought that took care of all these concerns.                                                                     
                                                                                                                                
CHAIR  HUGGINS  asked the  status  of  airplanes taking  off  and                                                               
landing in his back yard.                                                                                                       
                                                                                                                                
REPRESENTATIVE SEATON replied that taking  off and landing is not                                                               
trespassing. If  it is  done for  recreational purposes,  that is                                                               
defined in the  statute, but does not include  language about air                                                               
fields. It  expressly does not include  boxing contests, sparring                                                               
and  wrestling  matches   or  exhibitions,  activities  involving                                                               
devices  that are  subject to  the requirements  of AS  05.20. He                                                               
said he  would have  to check  out which  statute applied  to air                                                               
fields.                                                                                                                         
                                                                                                                                
CHAIR HUGGINS  asked him to  check that  out because he  has been                                                               
asked that question multiple times.  He asked if his backyard has                                                               
a groomed area  that someone would call a strip,  is that covered                                                               
in his bill under "improved".                                                                                                   
                                                                                                                                
REPRESENTATIVE  SEATON replied  that under  this bill  it doesn't                                                               
matter  if it  is improved  or  not, but  it does  matter if  its                                                               
recreational use is free or not.                                                                                                
                                                                                                                                
CHAIR HUGGINS asked what if the land is owned collectively.                                                                     
                                                                                                                                
REPRESENTATIVE  SEATON replied  that the  land would  have to  be                                                               
privately owned, not publicly owned  as with a municipality - and                                                               
you can't charge for its use.                                                                                                   
                                                                                                                                
4:51:41 PM                                                                                                                    
SENATOR STEVENS said  they are trying to protect  land owners and                                                               
this  doesn't  protect  them  from   any  event.  He  asked  what                                                               
responsibility landowners have for maintenance.                                                                                 
                                                                                                                                
REPRESENTATIVE  SEATON  replied  if  someone  has  an  attractive                                                               
nuisance that  he knows is  dangerous, and  a minor comes  in and                                                               
gets hurt, he  can be liable. This bill adopts  the same standard                                                               
the state has for unimproved land and it is case-specific.                                                                      
                                                                                                                                
4:54:26 PM                                                                                                                    
DAVE BRANN,  Kachemak Nordic  Ski Club member,  said he  had been                                                               
involved in trail development and  maintenance in Alaska for over                                                               
30 years and  things are more difficult in the  last 10 years due                                                               
to smaller  parcels of private  property for  recreational trails                                                               
to go over. People want and  need trails close to urban areas and                                                               
liability concerns are  problematic. "HB 25 does a  great deal to                                                               
solve  those  problems  and  make   recreational  use  much  more                                                               
available and attractive to the local community members."                                                                       
                                                                                                                                
4:56:16 PM                                                                                                                    
MILLI  MARTIN, Homer,  said she  is also  a member  of the  Kenai                                                               
Peninsula  Borough  Assembly, and  that  it  passed a  resolution                                                               
supporting HB  25. She  noted that 45  other states  have similar                                                               
statutes.                                                                                                                       
                                                                                                                                
4:57:46 PM                                                                                                                    
CHAIR HUGGINS thanked her for serving on the assembly.                                                                          
                                                                                                                                
DAVID STUTZER, Homer resident, said  he has been working with his                                                               
neighbors  to provide  easements to  the ski  club for  the trail                                                               
that crosses  their land. He  said this is  a very good  bill and                                                               
would ease  his neighbor's concerns about  adverse possession and                                                               
liability  as discussed  by Representative  Seaton. He  said with                                                               
the growth  of the  state and development  of areas  around towns                                                               
and cities,  it becomes necessary  to have trails  across private                                                               
land.  This bill  would allow  people to  give permission  to use                                                               
those  lands   without  fear  of   liability  except   for  gross                                                               
negligence.                                                                                                                     
                                                                                                                                
4:59:22 PM                                                                                                                    
MICHAEL SCHNEIDER, Anchorage  resident, said the issues  in HB 25                                                               
have  merit, but  he has  problems with  the way  it is  written.                                                               
Subsection  (a) where  it says  a  landowner need  only to  allow                                                               
recreational  activity  -  that   language  is  too  lose.  Under                                                               
(e)(1)(C)  "charge"  is  defined  as  "a  contribution  in  kind,                                                               
service, or cash  from a user if all of  the contribution is used                                                               
to improve access...." He said  under that language someone could                                                               
charge him  $1,000 to hunt  bear on  their property and  he could                                                               
fall  into  a  pit  or  some hazard  that  they  knew  about  and                                                               
unreasonably failed  to warn  him of. They  could after  the fact                                                               
take his  $1,000 and  put it towards  remediation of  the problem                                                               
and comply with  the technical words of this statute.  He did not                                                               
want  to  give  that  sort of  broad  immunity  to  inappropriate                                                               
circumstances.                                                                                                                  
                                                                                                                                
CHAIR  HUGGINS asked  him to  get together  with the  sponsor. He                                                               
agreed and apologized  for not getting together  with him before.                                                               
He asked if he was representing himself.                                                                                        
                                                                                                                                
MR. SCHNEIDER replied  that he has been a  practicing attorney in                                                               
Anchorage  for  32   years  mainly  tort  claims.   He  has  been                                                               
interested  in acquiring  free  recreational  access to  property                                                               
since he was 12 years old and he is speaking for himself.                                                                       
                                                                                                                                
5:02:36 PM                                                                                                                    
CHAIR HUGGINS announced that he would hold the bill.                                                                            
                                                                                                                                
REPRESENTATIVE  SEATON  added  that  abandoned  aircraft  landing                                                               
areas are included in current  immunity language if they are away                                                               
from  an  improved  structure.  If  they  are  near  an  improved                                                               
structure,  it may  not qualify  for the  same immunity.  So this                                                               
bill clarifies that.                                                                                                            
                                                                                                                                
CHAIR HUGGINS announced he would hold HB 25.                                                                                    

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