Legislature(2001 - 2002)

04/30/2002 01:36 PM Senate TRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
          SB 362-VACATE RS2477 RIGHT OF WAY ON USS 5265                                                                     
                                                                                                                                
CHAIRMAN COWDERY announced SB 362 to be up for consideration.                                                                   
                                                                                                                                
MS. VICKI  KINDSETH, staff  to Senator Lyda  Green, sponsor  of SB
362, said the  legislation was introduced to address  the concerns                                                              
of Mr.  Craig Puddicombe and his  partner, Mr. Jack  Dunham, about                                                              
the  RS2477  right-of-way  through  their  property  on  the  Knik                                                              
Glacier Trail,  USS 5265, Section  34, Township 16 North,  Range 5                                                              
East, Seward Meridian. She explained:                                                                                           
                                                                                                                                
     Mr.  Puddicombe  came  to our  office  after  exhausting                                                                   
     efforts through  DNR to accomplish  a vacate  process on                                                                   
     his property in the Mat-Su.                                                                                                
                                                                                                                                
     The Knik  Glacier Trail begins  in Palmer and ends  at a                                                                   
     mining  camp  located  approximately  3 miles  up  Metal                                                                   
     Creek  and  was used  as  a continuous  route.  However,                                                                   
     there is  an existing RS2477  recognized by DNR  for the                                                                   
     area since 1995  that does not go through  USS 5265. The                                                                   
     intent of  this bill is to  vacate an RS2477  on private                                                                   
     property when  there is already an existing  established                                                                   
     RS2477 route  for the area  that provides access  around                                                                   
     private property.                                                                                                          
                                                                                                                                
     The vacation of rights-of-way  is found in AS 19.30.410.                                                                   
     The vacate may be approved by the legislature.                                                                             
                                                                                                                                
CHAIRMAN COWDERY announced that they  would hear the bill later in                                                              
the meeting when the teleconference difficulties were fixed.                                                                    
          SB 362-VACATE RS2477 RIGHT OF WAY ON USS 5265                                                                     
                                                                                                                              
CHAIRMAN COWDERY announced SB 362 to be up for consideration.                                                                   
                                                                                                                                
MR.  CRAIG PUDDICOMBE,  co-owner  of property  USS  5265, said  he                                                              
asked Senator  Green to sponsor this  bill. [Indisc.] He  read the                                                              
DNR decision regarding  vacating the right-of-way  and said, "This                                                              
has been  a 12-year long battle  for us for something  that should                                                              
have never happened. This vacate is very important to us."                                                                      
                                                                                                                                
MR. MIKE  CONNER said he  was a defendant  in this court  case. He                                                              
said  if  this  right-of-way  is   vacated,  the  state  would  be                                                              
transferring a  public asset to  a private interest.  Second, even                                                              
though the  state asked  for jurisdiction  at remand, the  state's                                                              
request  was  confused  by the  court  and  he  is not  sure  what                                                              
interest would  be vacated, since  it doesn't have lease  or owner                                                              
jurisdiction  over it. Finally,  he said that  he and  others have                                                              
used  the  right-of-way  for subsistence  purposes  for  about  30                                                              
years. The  land has  long been classified  since state  ownership                                                              
for public  recreation and  mining, not private  interest or  as a                                                              
private preserve.                                                                                                               
                                                                                                                                
SENATOR TAYLOR  asked him what he  thought land was worth  in that                                                              
area per acre.                                                                                                                  
                                                                                                                                
MR. CONNER said he did not know.                                                                                                
                                                                                                                                
SENATOR TAYLOR asked him if it was valuable land.                                                                               
                                                                                                                                
MR. CONNER  responded that he  hadn't checked the  assessment, but                                                              
he thought it was about $5,000.                                                                                                 
                                                                                                                                
SENATOR  TAYLOR asked  if there are  about 30,000  acres of  state                                                              
owned land in that area.                                                                                                        
                                                                                                                                
MR. CONNER  replied that there was  about 250,000 square  miles of                                                              
state land accessible by a single right-of-way.                                                                                 
                                                                                                                                
SENATOR TAYLOR asked if he had an  alternative route to get to his                                                              
subsistence activities.                                                                                                         
                                                                                                                                
MR. CONNER  replied he did  not and that  no alternative  route is                                                              
possible due to the nature of the  country and the court made that                                                              
same determination.                                                                                                             
                                                                                                                                
SENATOR TAYLOR said  he had a map that shows  an alternative route                                                              
and asked him if he was familiar with that map.                                                                                 
                                                                                                                                
MR.  CONNER replied  that  they were  just  handed  the bill  with                                                              
nothing else attached to it.                                                                                                    
                                                                                                                                
CHAIRMAN COWDERY asked Mr. Puddicombe  to speak to the alternative                                                              
route.                                                                                                                          
                                                                                                                                
MR.  PUDDICOMBE  said DNR's  final  departmental  decision,  dated                                                              
1995, is the alternative  access. That is the RS  2477 4D area. He                                                              
noted it  was not  "appealable" and  dismissed  by the courts.  He                                                              
explained  that there  are now  two of  them; one  was put on  his                                                              
private property  by the Supreme  Court after the State  of Alaska                                                              
made that  final departmental decision.  He asked members  to read                                                              
DNR's decision.                                                                                                                 
                                                                                                                                
SENATOR  TAYLOR  said  he  was  looking  at the  map  and  he  was                                                              
referring to the route labeled "alternate."                                                                                     
                                                                                                                                
MR. PUDDICOMBE said  the alternate route is the  state's decision.                                                              
The other route clearly goes right through private property.                                                                    
                                                                                                                                
SENATOR TAYLOR asked how he acquired title to that property.                                                                    
                                                                                                                                
MR. PUDDICOMBE replied he acquired it from Mr. Doug Sumner.                                                                     
                                                                                                                                
SENATOR TAYLOR asked if he was the first person after patent.                                                                   
                                                                                                                                
MR. PUDDICOMBE replied that he was the patent person.                                                                           
                                                                                                                                
SENTOR TAYLOR  asked if  he got patent  from the state  or federal                                                              
government.                                                                                                                     
                                                                                                                                
MR. PUDDICOMBE'S replied  it was a federal patent  that was deeded                                                              
to the state.                                                                                                                   
                                                                                                                                
MR. PUDDICOMBE said:                                                                                                            
                                                                                                                                
                                                                                                                                
     What I'm  trying to say here  is if you look at  the map                                                                   
     and you look  three five-acre parcels surrounded  by all                                                                   
     this state land, you've got  an RS2477 right through the                                                                   
     center  of it -  a hundred foot  right-of-way that  does                                                                   
     not  go anywhere.  Are you  still listening?…We  already                                                                   
     have  an  established  existing   RS2477  for  the  area                                                                   
     determined by the administration  of DNR in 1994…What me                                                                   
     and my co-owners are saying  is why have two in the same                                                                   
     area  - they are  only 500  yards apart  - when both  of                                                                   
     them are equal,  better and comparable to  this whole 25                                                                   
     mile trail…that  goes to the  glacier. It also  jogs off                                                                   
     and goes three or four miles to a mining claim…                                                                            
                                                                                                                                
SENATOR TAYLOR asked what position DNR has taken on this bill.                                                                  
                                                                                                                                
MR. LOEFFLER  said he  wanted to give  members some background  on                                                              
this.                                                                                                                           
                                                                                                                                
     We  would   like  to  give  the  background,   the  full                                                                   
     information  so that you  understand where our  previous                                                                   
     decision came  from, but we  neither support  nor oppose                                                                   
     this bill.                                                                                                                 
                                                                                                                                
CHAIRMAN COWDERY asked for further public testimony.                                                                            
                                                                                                                                
MR. JAMES KRACKER said he could get  1,000 signatures against this                                                              
bill for them in a couple weeks.  It would be against the public's                                                              
interest  and  his interests,  as  well.  [Most of  Mr.  Kracker's                                                              
testimony was indiscernible.]  He felt Mr. Puddicombe  got what he                                                              
deserved.                                                                                                                       
                                                                                                                                
MS. JOANNE FITZGERALD said she represented  herself and the public                                                              
and acknowledged  that she  is involved  in the Fitzgerald  versus                                                              
Puddicombe court case.  She noted that Mr. Puddicombe  stated that                                                              
his  file has  a copy  of the  DNR's final  determination, but  he                                                              
didn't mention that in September  2000, DNR made a thorough review                                                              
that  included public  comments and  the  Commissioner denied  the                                                              
request  for  vacation  on  this road.  DNR  determined  that  the                                                              
alternate does  not provide  safe access to  the mining  claim for                                                              
most  of  the  public.  The  Supreme  Court  determined  that  the                                                              
alternative route  was too dangerous for the public.  The vacation                                                              
was also  denied at the Mat-Su  Borough level. There  doesn't seem                                                              
to  be any  health or  safety issues  for this  request and  there                                                              
doesn't seem to  be any reason to give up the  right-of-way of the                                                              
public  that would  close off  a major  part of  the Knik  Glacier                                                              
trail  and  access for  miners  to  their claims  and  subsistence                                                              
hunters.                                                                                                                        
                                                                                                                                
MR. KEN FITZGERALD  said there is a  history of 80 or  90 years of                                                              
use on the trail and Mr. Puddicombe  even admitted under oath that                                                              
he had used the trail prior to the purchase of the land.                                                                        
                                                                                                                                
CHAIRMAN COWDERY asked what the width of the trail.                                                                             
                                                                                                                                
MR. FITZGERALD  replied that  it is a  100 ft. right-of-way  after                                                              
the  Supreme Court  decision. He  added it  is the  only safe  and                                                              
dependable route to the area.                                                                                                   
                                                                                                                                
CHAIRMAN COWDERY asked how they traverse this trail.                                                                            
                                                                                                                                
MR. FITZGERALD  replied by snow  machine, four-wheeler,  or pickup                                                              
truck.                                                                                                                          
                                                                                                                                
3:05 p.m.                                                                                                                       
                                                                                                                                
SENATOR WARD asked Mr. Puddicombe  if the trail was disclosed when                                                              
he purchased the property.                                                                                                      
                                                                                                                                
MR.  PUDDICOMBE replied  no, it  was  a private  driveway at  that                                                              
time.                                                                                                                           
                                                                                                                                
SENATOR WARD asked how he got to the property.                                                                                  
                                                                                                                                
MR. PUDDICOMBE replied by swamp buggy.                                                                                          
                                                                                                                                
SENATOR WARD asked if he used the RS2477 trail.                                                                                 
                                                                                                                                
MR. PUDDICOMBE  replied that it wasn't  an RS2477 then.  He added,                                                              
"That happened in October of 1995."                                                                                             
                                                                                                                                
SENATOR WARD asked when he purchased it.                                                                                        
                                                                                                                                
MR. PUDDICOME  replied in  1983. He said  that none of  the miners                                                              
appealed the  state's decision. They  were all going to  live with                                                              
it. He  said they  were going  to destroy  his property  when they                                                              
could have other access.                                                                                                        
                                                                                                                                
MR. KRACKER  said he  and DNR offered  to get  together to  try to                                                              
take  another   right-of-way  and   Mr.  Puddicombe   refused  any                                                              
settlement.  The  only  one  who is  destroying  property  is  Mr.                                                              
Puddicombe.  The 100  ft. width  is not  by court  order, but  was                                                              
based on legislative action.                                                                                                    
                                                                                                                                
SENATOR TAYLOR  said it  looked to him  like the reason  they have                                                              
this bill  before them is  that Mr. Puddicombe  needs to  have the                                                              
bill passed  to convey the right-of-way  back to him and  asked if                                                              
that was right.                                                                                                                 
                                                                                                                                
MR. PUDDICOMBE  asked to read  the sponsor statement:  "The intent                                                              
of the bill is to vacate an RS2477  on private property when there                                                              
is already  an existing established  RS2477 route for the  area to                                                              
provide access around the private property."                                                                                    
                                                                                                                                
TAPE 02-20, SIDE A                                                                                                            
                                                                                                                              
SENATOR TAYLOR  asked him if he  had to have the  property vacated                                                              
to clear title to  his property so it's not encumbered  by a state                                                              
right-of-way.                                                                                                                   
                                                                                                                                
MR. PUDDICOMBE  replied that  was correct. He  has owned  the land                                                              
for  53   years  and   DNR  had  done   a  very  careful   on-site                                                              
investigation.                                                                                                                  
                                                                                                                                
SENATOR   TAYLOR   asked   Mr.    Loeffler   why   DNR   did   not                                                              
administratively vacate that RS2477  easement as provided by state                                                              
law.                                                                                                                            
                                                                                                                                
MR. LOEFFLER replied:                                                                                                           
                                                                                                                                
     In  2001, we  went out  to look  at it  with respect  to                                                                   
     vacation.  As you  may know,  the  vacation standard  is                                                                   
     three-fold  - one  vacated by  the  legislature, two  if                                                                   
     requested  by the  municipality  and  with an  alternate                                                                   
     route to provide reasonable  access and the municipality                                                                   
     has  requested it  or three,  our  vacation standard  is                                                                   
     there another  - you may not vacate an  RS2477 right-of-                                                                   
     way  unless  a  reasonable  and  comparable  established                                                                   
     alternative  right-of-way on each  tract does exist  and                                                                   
     is  sufficient  to  satisfy  access  in  the  reasonably                                                                   
     foreseeable future.                                                                                                        
                                                                                                                                
     We  went  out  there  and  determined   that  reasonably                                                                   
     foreseeable  uses  included [indisc.]  mining  vehicles,                                                                   
     recreation and things of that  nature. When we looked at                                                                   
     the  alternative  trail  and  determined  there  were  a                                                                   
     number   of  sections   that  were   steep  for   mining                                                                   
     [indisc.].                                                                                                                 
                                                                                                                                
They  determined  the  alternative  trail was  too  steep  without                                                              
additional  construction  and did  not meet  the  standards of  AS                                                              
19.34.10.                                                                                                                       
                                                                                                                                
SENATOR TAYLOR  said he appreciated  that explanation and  said he                                                              
was one of the authors of that proviso  that he just read through,                                                              
because they had encountered difficulties  all over the state with                                                              
RS2477  rights-of-way  suddenly appearing  on  people's land  that                                                              
they were  unaware of. He wanted  to make certain there  were good                                                              
alternatives available  and to give  the department  the authority                                                              
to exercise  some discretion  in this regard.  It sounds  like DNR                                                              
exercised that discretion and with good reason.                                                                                 
                                                                                                                                
SENATOR WARD  said he hadn't  been down  this trail and  asked why                                                              
they didn't just go around the property and not up the hill.                                                                    
                                                                                                                                
MR.  LOEFFLER   replied  that  the  alternative   route  had  been                                                              
established through many years of use.                                                                                          
                                                                                                                                
SENATOR WARD asked if it was within  his ability under current law                                                              
to establish  an alternative route  that goes behind  the people's                                                              
property and not up the hill.                                                                                                   
                                                                                                                                
MR. LOEFFLER replied  that it would take very  little construction                                                              
to establish an alternative route that is suitable.                                                                             
                                                                                                                                
     We do  not have  the money  in our  budget to go  around                                                                   
     doing [this] for his RS2477  or for the many others that                                                                   
     have similar  requests. With the expenditure  of limited                                                                   
     funds we  would be very happy  to permit and  flatten an                                                                   
     alternative  route that  would allow  for a vacation  by                                                                   
     Mr. Puddicombe.                                                                                                            
                                                                                                                                
SENATOR WARD asked how many feet  they were talking about with the                                                              
parcels involved.                                                                                                               
                                                                                                                                
MR. LOEFFLER replied that it was roughly a half-mile trail.                                                                     
                                                                                                                                
SENATOR WARD said  he thought it looked like he  was talking about                                                              
less than 1000 ft. of trail in order to clear that lot.                                                                         
                                                                                                                                
MR. LOEFFLER said  it looked like the least  expensive alternative                                                              
construction  would be  to do  some  work in  a few  of the  steep                                                              
spots.                                                                                                                          
                                                                                                                                
SENATOR WARD said  it seemed that something wasn't  right, because                                                              
the alternative  trail is  very steep  and it  seems if  they just                                                              
scooted  around the  outside of  that  one parcel,  they would  be                                                              
downhill, at least, and not going up the mountain.                                                                              
                                                                                                                                
MR. LOEFFLER  replied that he didn't  have a map in front  of him,                                                              
but they would  be happy to permit someone to  make an alternative                                                              
trail,  if they  wished to  do so,  but the  alternative trail  in                                                              
their  view would  be  only for  construction  on  less than  five                                                              
locations before it would satisfy the criteria in AS 19.34.10.                                                                  
                                                                                                                                
SENATOR TAYLOR said  looking at the map, it looked  like for years                                                              
there had been  two trails there. One trail was  for moving mining                                                              
equipment up and that's the one on  Mr. Puddicombe's property. The                                                              
other trail looks like a shortcut.                                                                                              
                                                                                                                                
SENATOR WARD asked  if DNR had the ability to grant  a waiver on a                                                              
trail if there no is alternative trail to go to.                                                                                
                                                                                                                                
MR. LOEFFLER replied absolutely.                                                                                                
                                                                                                                                
SENATOR WARD asked what would be the criteria for the law.                                                                      
                                                                                                                                
MR. LOEFFLER replied that the criteria  for vacation is reasonably                                                              
comparable to establishing an alternative  right-of-way to satisfy                                                              
all present and reasonably foreseeable uses.                                                                                    
                                                                                                                                
MR. FITZGERALD said  the alternative route would cut  into the 80s                                                              
and  on Mr.  Puddicombe's original  patent issued  by the  federal                                                              
government, the road is as surveyed [indisc.].                                                                                  
                                                                                                                                
MR. JACK  DUNHAM said  the trail  through his  property had  to be                                                              
blasted to be able to get through.                                                                                              
                                                                                                                                
SENATOR WILKEN said he wanted to  talk to the sponsor of this bill                                                              
before  they moved it  from committee  and asked  Mr. Loeffler  to                                                              
look at the map  called "The Preliminary Across the  Middle" - USS                                                              
5265, which shows  the west boundary is 484 ft. He  asked if there                                                              
were any  private parcels  like it  between the northern  boundary                                                              
and point C.                                                                                                                    
                                                                                                                                
MR. LOEFFLER  replied  yes, USS 5839,  which is  roughly the  same                                                              
size as  USS 5265.  He said  their west  borders are not  directly                                                              
parallel.                                                                                                                       
                                                                                                                                
SENATOR WILKEN  asked how long of  a trail would be needed  to get                                                              
to the existing trail that would intersect to point C.                                                                          
                                                                                                                                
MR. LOEFFLER  said he  thought it  would be  somewhat longer,  but                                                              
that it  would be less extensive  to render the  alternative trail                                                              
[indisc.].                                                                                                                      
                                                                                                                                
SENATOR WILKEN asked  if it would be easier to  make the alternate                                                              
trail a  better trail  than to build  a new  trail along  the west                                                              
boundary of USS 5265 and the piece that's on top of it.                                                                         
                                                                                                                                
MR. LOEFFLER replied it would.                                                                                                  
                                                                                                                                
SENATOR TAYLOR asked  for a ballpark figure of what  it would cost                                                              
to go in there and blast the alternative  trail so it was useable.                                                              
                                                                                                                                
MR. LOEFFLER replied  that there were five steep  sections and two                                                              
side slopes and he didn't know how much it would cost.                                                                          
                                                                                                                                
SENATOR WARD moved  to pass SB 362 from committee  with individual                                                              
recommendations.                                                                                                                
                                                                                                                                
SENATOR ELTON objected. SENATORS  WILKEN, WARD, TAYLOR and COWDERY                                                              
voted in favor;  SENATOR ELTON voted against. SB  362 moved to the                                                              
next committee.                                                                                                                 

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