Legislature(2013 - 2014)BUTROVICH 205

03/13/2014 01:30 PM TRANSPORTATION

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Heard & Held
                       SB  94-RIGHTS-OF-WAY                                                                                 
2:05:05 PM                                                                                                                    
CHAIR EGAN  announced  SB 94 to  be up for  consideration [SSSB  94,                                                            
version 28-LS0516\C was before the committee].                                                                                  
2:05:43 PM                                                                                                                    
DAVID  SCOTT, staff  to  Senator Donald  Olson,  sponsor  of SB  94,                                                            
explained  that SB  94 offers  ease of  mind to  private  landowners                                                            
that have  RS-2477s (public  access easements)  going through  their                                                            
properties.  Section  1 deals  with a  specific RS-2477  that  would                                                            
be explained  later. Section  2 limits RS-2477s  that cross  private                                                            
lands  to a 60  ft. width  and for  the purpose  of transportation.                                                             
Another   subsection   allows   the   state   to   perform   routine                                                            
maintenance,  repair, and  make necessary  improvements to  preserve                                                            
the  transportation   use  of  the   right-of-way  (ROW).   It  also                                                            
requires  the  state  to  consult  and  gain   permission  from  the                                                            
private  land  owner   prior  to  making  improvements   other  than                                                            
routine  maintenance   and  repair.  It  allows  for   mediation  of                                                            
disputes  between the  state and a  private land  owner and  it also                                                            
requires  the state  to consult  with the  land owner  who owns  the                                                            
underlying  land  if the  ROW has  been  damaged beyond  repair  and                                                            
needs  to be realigned.  The  eminent domain  section  of law is  in                                                            
that same  section (page  3, line  5) AS 09.55.240  - AS  09.55.460.                                                            
The bill has a zero fiscal note.                                                                                                
2:08:29 PM                                                                                                                    
SENATOR  FAIRCLOUGH  directed  attention  to page  2 of  the  fiscal                                                            
note  that  indicated  the  loss of  value  of  these  routes  would                                                            
exceed  $48.5 million,  assuming  a $1,000  per acre  base cost  for                                                            
the land  along the  public access.  She asked if  there is  any RS-                                                            
2477 access on the TAPS.                                                                                                        
MR. SCOTT said he didn't know.                                                                                                  
SENATOR FAIRCLOUGH asked if there is any RS-2477 in Parks.                                                                      
MR. SCOTT said he knew of some in the Wrangell St. Elias Park.                                                                  
SENATOR  DYSON asked  what  happens on  page  2, line  14. It  says,                                                            
"before  improvements  other  than  routine  maintenance  the  state                                                            
shall  consult  with  and gain  permission  from  the  private  land                                                            
owner."  Taken in  isolation,  that would  seem that  they  couldn't                                                            
go  forward  without permission,   but then  line  25 says  if  they                                                            
don't  come  to  agreement  then  there  is  mediation.  He  thought                                                            
things stopped  without the  agreement of the  land owner,  but they                                                            
don't, and he wanted to know what was going on.                                                                                 
2:12:01 PM                                                                                                                    
JOE   BOVEE,   Vice    President,   Land   and   Resources,    Ahtna                                                            
Incorporated,  Glennallen,  Alaska, supported  SB  94. He  explained                                                            
that basically  that meant  notification of  the land owner  for any                                                            
improvements   where   they  would   be   widening   the  road   and                                                            
installing  bridges  and culverts,  something  outside  the 60  ft.,                                                            
but  if  they  couldn't  come  to  terms  of  agreement  in  working                                                            
outside the ROW, then they would go into mediation.                                                                             
SENATOR  DYSON  asked  if they  could  go  to court  if  they  don't                                                            
agree at the end of mediation.                                                                                                  
MR. BOVEE said that is the idea.                                                                                                
SENATOR  DYSON  asked what  problem  they  are  trying to  solve  in                                                            
that section.                                                                                                                   
MR.  BOVEE said  he had  a power  point that  might  answer some  of                                                            
his questions.                                                                                                                  
SENATOR BISHOP  asked if  there is a dispute  resolution process  if                                                            
an agreement can't be reached under mediation.                                                                                  
MR. BOVEE didn't know how that would go.                                                                                        
2:14:34 PM                                                                                                                    
At ease from 2:14 to 2:17 p.m.                                                                                                  
2:17:58 PM                                                                                                                    
CHAIR  EGAN  called  the  meeting  back to  order  and  invited  Mr.                                                            
Bovee to present his power point.                                                                                               
MR. BOVEE  explained  that the  RS-2477  is an obscure  1866  mining                                                            
law  statute  that was  prepared  for  the western  states  and  the                                                            
Alaska  Territory  to  encourage  development.  The  word  "highway"                                                            
was  historically  used  to refer  to  "foot  trails,  pack  trails,                                                            
sled dog  trails, crudely  built  wagon roads,  and other  corridors                                                            
for  transportation."  Most  of  the  RS-2477s  in  the  state  were                                                            
developed  either  as  Indian  and  mining  trails   and  eventually                                                            
became  some of the  state's major  highways, such  as the  Farmer's                                                            
Loop Rd. in Fairbanks and the Debarr Rd. in Anchorage.                                                                          
2:19:26 PM                                                                                                                    
In 1998,  the Alaska  Legislature  provided for  the public's  right                                                            
to use  these  historic access  easements,  and that  "every  effort                                                            
should  be  made  to   minimize  the  effect  on  private   property                                                            
owners."  The intent  was for the  agencies  and the administration                                                             
to  work with  the private  land  owners.  Currently  there are  669                                                            
RS-2477s; out of those, 142 are located in the Ahtna region.                                                                    
SENATOR  DYSON asked if  most of the  lands on  his map were  Native                                                            
held lands.                                                                                                                     
MR. BOVEE  answered  yes; Ahtna lands  contain 402  linear miles  of                                                            
RS-2477-classified  roads.  If  the  ROWs  are 100  ft.,  which  the                                                            
state is  encouraging  them to be,  over 9,000  acres of Ahtna  land                                                            
would be  consumed.  Ahtna lands also  contain 221  linear miles  of                                                            
17(b)   easements,  required   under   the  Alaska   Native   Claims                                                            
Settlement  Act (ANCSA)  allowing  travel  across private  lands  to                                                            
public  lands  on the  other  side. There  are  520 miles  worth  of                                                            
17(b) easements that are duplicative of RS-2477s.                                                                               
SENATOR FAIRCLOUGH  pointed  out that bullet  2 said, "proposed  100                                                            
ft. right-of-ways" and asked why the word "proposed" was used.                                                                  
MR.  BOVEE  answered  that  there  is a  real  loose  definition  of                                                            
these  RS-2477s and  this bill  is trying  to define  and  interpret                                                            
the  regulations.   Even   today  it  is   uncertain  who   has  the                                                            
authority over RS-2477s, the feds or the state.                                                                                 
2:23:03 PM                                                                                                                    
He  showed  several  slides of  easements.  One  was  Cantwell,  the                                                            
access  into  Denali  National  Park  referred  to  as  Windy  Creek                                                            
Trail.  He stated  that  RS-2477s  are a  burden on  the  underlying                                                            
landowner.  They  are  never   really  described  in  a  deed  or  a                                                            
patent,  and  it's   hard  to  find  out.  Often  the   trails  were                                                            
constructed as the shortest point between point A and point B.                                                                  
2:25:06 PM                                                                                                                    
As a solution  they propose  limiting the scope  of use of  RS-2477s                                                            
to transportation  purposes  only across  private  lands as well  as                                                            
limiting  the  physical  width of  the  ROW to  the  established  or                                                            
historical  use of the route.  (An Assistant  Attorney General  said                                                            
that   these  trails   would   be  defined   with   their   previous                                                            
historical  use whether they  were 25 ft. or  150 ft. as on  some of                                                            
the  state  highways).  They  also  propose  to  limit  the  state's                                                            
authority  to  maintain,  repair  and improve  the  ROW;  the  state                                                            
would still  have the authority  to do the  maintenance within  a 60                                                            
ft.  ROW, but  for anything  outside  of  that permission  from  the                                                            
underlying private land owner would be needed.                                                                                  
2:26:30 PM                                                                                                                  
SENATOR  FRENCH asked  who pays  to maintain  that trail  [referring                                                            
to the Parks Highway, mile 228].                                                                                                
MR. BOVEE  answered  that it  also serves  as an  access for  Golden                                                            
Valley Electric  Association,  and their agreement  with them  is to                                                            
"backplate."  Primarily   that  trail  is  used  only  for  hunting,                                                            
horse travel and light-use ATVs.                                                                                                
SENATOR  FRENCH asked  if the  maintenance  was paid  for by  Golden                                                            
MR.   BOVEE  responded   that   was   another   consideration   with                                                            
establishing  all these  RS-2477s; there  is no  management plan  or                                                            
money  to development   or maintain  them.  A  DOTPF representative                                                             
told  him  that  there are  10,000  miles  of  RS-2477s  across  the                                                            
state on private lands. Local people take care of them.                                                                         
SENATOR  FRENCH asked  if it  was fair to  say that  he didn't  know                                                            
who pays to maintain that road.                                                                                                 
MR.   BOVEE  said   there   are  no   maintenance   funds  at   all.                                                            
Occasionally,  the  BLM  (since  this  is  duplicative  of  a  17(b)                                                            
trail)  does  some,  but mostly  the  owners  do  what they  can  to                                                            
maintain  roads or  trails, because  it  keeps people  off of  their                                                            
2:28:19 PM                                                                                                                    
SENATOR FAIRCLOUGH asked if a 17(b) easement is BLM property.                                                                   
MR.  BOVEE  replied  that  17(b)   is a  provision   in  ANCSA  that                                                            
provides  a  federal   easement  across  private  ANCSA   land  from                                                            
public   land  to  public   land.   The  owner   of  the  trail   is                                                            
technically  Ahtna,  Inc. and  BLM through  the  federal  government                                                            
is  supposed  to  allocate  funds  to  maintain  these,  which  they                                                            
haven't.  So, he  cautioned,  if the  state  exerts a  lot of  these                                                            
RS-2477s  across  the state,  someone  is  going to  be responsible                                                             
for maintaining  them,  but eventually  the  state would  be on  the                                                            
SENATOR  BISHOP  asked  if he  knew  how  many 3  ft.  wide  walking                                                            
trails have been identified.                                                                                                    
MR. BOVEE  didn't  know, because  the state  asserts  that they  are                                                            
all 100  ft. He  said Ahtna  signed an  MOU with  the DOTPF,  ADF&G,                                                            
and DNR  last year to meet  quarterly, so  issues could be  resolved                                                            
early.  He stated  that Ahtna  is not  trying to  stop development,                                                             
but  wants  to  do  it  in a  "good  stewardship"   and sustainable                                                             
fashion.  Specifically,  the  Klutina  Lake  Road  that  travels  up                                                            
from the  Richardson Highway  to the head of  Klutina Lake  not only                                                            
crosses  Ahtna  property   for  about  22  miles,  it  also  crosses                                                            
private non-ANCSA properties.                                                                                                   
He  said  people  have  been  developing  places  to  recreate,  but                                                            
there is  no management  plan in place  for what  to do when  people                                                            
come there:  how to  take care of  the trash and  to put out  fires.                                                            
It's good to have the discussion now.                                                                                           
2:32:50 PM                                                                                                                    
SENATOR  BISHOP  said  he  had  also  experienced   the maintenance                                                             
problems and understood what he was talking about.                                                                              
2:34:15 PM                                                                                                                  
GEORGE HELMS,  representing  himself, Anchorage,  Alaska,  supported                                                            
SB 94 in  its current version.  He was one  of the private  property                                                            
owners affected  by this  bill. When the  state exerted [sic]  these                                                            
rights  in his  area, they  picked  the route  and  didn't give  the                                                            
property  owners any  say. The  100 ft.  route will  encompass  man-                                                            
made  development that  currently  exists including  cabins,  decks,                                                            
and  sheds. This  bill  will help  limit  the use  of  that to  just                                                            
transportation.   He  had   suffered  losses   from  break-ins   and                                                            
malicious  behavior. He was  also hearing  that the department  will                                                            
take  not only  the RS-2477s  but the  potential  for arterials  for                                                            
which the state could take more land.                                                                                           
2:36:29 PM                                                                                                                  
NICOLE  BORROMEO,  General  Council, Alaska  Federation  of  Natives                                                            
(AFN), Anchorage,  Alaska,  supported SB 94.  It generally  seeks to                                                            
remedy  the  effects  of  RS-2477s  that  threatens  to  thwart  the                                                            
effective  management  of  much of  Alaska's  lands due  to  several                                                            
uncertainties  including  which rights-of-way  were  accepted  prior                                                            
to  the act  repeal.  The remedy  in  SB  94 is  to narrow  the  ROW                                                            
widths and  confine them  to transportation  and emergency  purposes                                                            
and  to redefine  the state's  authority  to maintain,  repair,  and                                                            
improve them.                                                                                                                   
2:38:11 PM                                                                                                                    
RANDLE   MAULDIN,    representing   himself,   Birchwood,    Alaska,                                                            
supported  SB 94. He  is a private  property owner  on Klutina  Road                                                            
and if they  were to widen  access along the  lake, it would  almost                                                            
take  out several  of his  cabins  and camp  sites.  The road  never                                                            
came as  far as his place  and stopped at  what is called  "The Boys                                                            
Camp,"  and   then  the   local  people  as   they  went  to   their                                                            
recreational  places  punched  a trail  to  bring materials  in.  He                                                            
has had  problems  with vandalism,  but he  put a gate  on the  road                                                            
and  stopped  it.  He said  an  easement  runs  around  the  private                                                            
properties  that the state  could use if it  wanted to make  a small                                                            
trail; it's what the property owners use for the ATVs.                                                                          
2:40:50 PM                                                                                                                    
SENATOR  FRENCH  asked  whether  the  administration  supports  this                                                            
KENT  SULLIVAN,   Assistant   Attorney  General,   Civil   Division,                                                            
Natural  Resources Section,  Alaska  Department of  Law (DOL),  said                                                            
the  department  didn't  have  a position  on  SB  94 and  had  some                                                            
concerns  with how it works.  One issue is  that this bill  attempts                                                            
to  very narrowly  tailor  the scope  of  rights the  state  already                                                            
possesses.  He explained  that  if  one would  think  of an  RS-2477                                                            
ROW  as  a  conglomeration  of  rights,  the  parts  include  width,                                                            
scope, the  modes of transportation,  the  types of activities  that                                                            
can  occur within  the ROW  and the  rights  the state  has to  make                                                            
improvements  and  perform  maintenance,  and  all of  those  things                                                            
are separate  sticks in a  big bundle of  sticks. Effectively,  this                                                            
bill  would strip  away many  of those  sticks from  that bundle  of                                                            
rights  the  state  currently   possesses  and  would  result  in  a                                                            
massive   give-away    of   state    property   interests    on   an                                                            
unprecedented  scale. That  is part  of the reason  the fiscal  note                                                            
is $48  million;  the state  would give  away $48  million worth  of                                                            
property  and only  from narrowing  the width  of the  ROW from  100                                                            
ft. to 60  ft. That doesn't  take into consideration  all the  other                                                            
impacts to the state of reducing the scope of use.                                                                              
This bill  says these  ROWs are frozen  in place  as what they  were                                                            
at  the time  RS-2477  was  repealed  in  1976.  If there  are  ROWs                                                            
across  the state that  have not  yet been developed,  which  a very                                                            
high  percentage  of  them  would  qualify  for in  that  way,  that                                                            
would mean  they never could  be developed  any more than they  were                                                            
in 1976.  So,  a footpath  that existed  in  1976 will  always be  a                                                            
footpath,  to the extent that  Debarr Rd. and  Farmers Loop  Rd. are                                                            
frozen  in place  as they were  in 1976;  the Dalton  Highway  is an                                                            
RS-2477  and frozen  in place  as to what  can be  done and the  way                                                            
that it's shaped and maintained.                                                                                                
2:45:19 PM                                                                                                                    
This  bill also  provides  that the  state,  to the  extent that  it                                                            
has  a broader  scope with  regards  to its  ROWs, and  it would  be                                                            
forced  to  buy that  broadened  scope  back  through condemnation;                                                             
effectively  the state  would be forced  to buy  back that which  it                                                            
presently possesses.                                                                                                            
2:46:41 PM                                                                                                                    
Another  issue  with  the  bill  is  a  recent   decision  by  Judge                                                            
Beistline  that  indicates  the  state  can't  invoke  condemnation                                                             
proceedings  against  Native corporations  or Native  allotments  in                                                            
the State  of Alaska  now  that there  is no court  jurisdiction  to                                                            
do that.  So, this  bill creates a  mechanism for  the state  to buy                                                            
back through  condemnation  things that  it would  give away  by way                                                            
of this  bill, but it could  not do that  as to Native corporations                                                             
and Native allotment owners.                                                                                                    
Finally,  Mr.  Sullivan  said,  with regards  to  the  Klutina  Lake                                                            
litigation,  this   bill  seeks  to  basically  do   away  with  the                                                            
state's rights  in the defense  it has asserted  in on going  active                                                            
litigation  against Ahtna  Corporation  over Klutina  Lake Rd.   The                                                            
bill  tries  to  make  RS-2477s  in  Alaska  synonymous  with  17(b)                                                            
easements,  which are  entirely  different. The  federal  government                                                            
owns,  controls,  and  possesses   17(b)  easements;  the  State  of                                                            
Alaska  owns,  controls, and  manages  RS-2477  easements.  RS-2477s                                                            
are  much broader  in scope  than  17(b) easements.  So eliminating                                                             
RS-2477s  where it overlaps  a 17(b) would  be essentially  creating                                                            
a patchwork  of  legal responsibility  all  along  the Klutina  Lake                                                            
Road, because  they are two  very different  legal animals  and have                                                            
very   different   rights   and  responsibilities;    it  would   be                                                            
extremely unworkable.                                                                                                           
The other  problem  with Klutina  Lake Road  is under  the bill  the                                                            
only thing  that you  could do is  access the  lake through  ingress                                                            
and  egress;  you  could  not launch  boats  from  the  easement  or                                                            
camp.  You   couldn't  do  all  the   things  that  the   public  is                                                            
currently  doing  in recreating  and  using that  ROW  now. That  is                                                            
why it is  important. It  takes almost three  hours to get  from the                                                            
bottom  of  that  road on  the  Richardson  Highway  up  to  Klutina                                                            
Lake,  and  if you  couldn't  stop  along  there  and have  day  use                                                            
sites  or occasionally  camp,  it would  make that  ROW practically                                                             
unusable and of very low utility.                                                                                               
2:50:11 PM                                                                                                                    
SENATOR FAIRCLOUGH asked if he had a "white paper" written on                                                                   
this bill or comments.                                                                                                          
MR. SULLIVAN said he would send them.                                                                                           
2:51:27 PM                                                                                                                    
SENATOR  BISHOP,  going back  to  the fiscal  note,  commented  that                                                            
the $1000/acre  determination  was  a little  troubling, because  he                                                            
knows people  whom the  state has  bought property  from for  a road                                                            
or airport construction, and they didn't receive that much.                                                                     
CHAIR EGAN stated he would hold SB 94 in committee.                                                                             

Document Name Date/Time Subjects
SB 94 Sponsor Statement.pdf STRA 3/13/2014 1:30:00 PM
SB 94
SSSB 94.pdf STRA 3/13/2014 1:30:00 PM
SB 94
SSSB 94 - Sectional Analysis.pdf STRA 3/13/2014 1:30:00 PM
SB 94
SB094SS-DOT-NDAES-3-8-14.pdf STRA 3/13/2014 1:30:00 PM
SB 94
SB094SS-DNR-MLW-3-8-14.pdf STRA 3/13/2014 1:30:00 PM
SB 94
SB 197 - Sponsor Statement.pdf STRA 3/13/2014 1:30:00 PM
SB 197
SB197-DOT-SDES-3-8-14.pdf STRA 3/13/2014 1:30:00 PM
SB 197
CSSB 178 DRAFT Letter of Intent.pdf STRA 3/13/2014 1:30:00 PM
SB 178
CSSB 178 DRAFT Text.pdf STRA 3/13/2014 1:30:00 PM
SB 178
CSSB 178 Sectional Analysis.PDF STRA 3/13/2014 1:30:00 PM
SB 178
CSSB 178 Sponsor Statement.PDF STRA 3/13/2014 1:30:00 PM
SB 178
SB 178 Letters Supporting - Third Batch.PDF STRA 3/13/2014 1:30:00 PM
SB 178
SB 178 Side by Side Analysis with CSSB 178.pdf STRA 3/13/2014 1:30:00 PM
SB 178
CSSB178(TRA)-DOR-TAX-03-18-14.pdf STRA 3/13/2014 1:30:00 PM
SB 178
SB 178 Delta Leasing documents.PDF STRA 3/13/2014 1:30:00 PM
SB 178
SB 94 FINAL_AHTNA_PPT_HANDOUT.pdf STRA 3/13/2014 1:30:00 PM
SB 94