Legislature(1999 - 2000)
03/07/2000 01:40 PM House ARR
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
JOINT COMMITTEE ON ADMINISTRATIVE REGULATION REVIEW
March 7, 2000
1:40 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Representative Jeanette James, Vice-chair
Senator Pete Kelly
Senate Georgianna Lincoln
Representative John Harris
MEMBERS ABSENT
Representative Mary Kapsner
COMMITTEE CALENDAR
Repeal of RS 2477 Rights-of-way Easement Certifications, Easement
Regulations
WITNESS REGISTER
Commissioner John Shively
Department of Natural Resources
400 Willoughby Ave.
Juneau, AK 99801-1724
POSITION STATEMENT: Answered questions regarding DNR's proposed
regulations for easements and rights-of way.
Mr. Bob Loeffler, Director
Division of Mining and Water Management
Department of Natural Resources
3601 C St. Suite 800
Anchorage, AK 99503-5935
POSITION STATEMENT: Answered questions regarding DNR's proposed
regulations for easements and rights-of-way.
Ms. Nancy Welch
Northern Region Office
Department of Natural Resources
3700 Airport Way
Fairbanks, AK 99709
POSITION STATEMENT: Answered questions regarding DNR's proposed
regulations for easements and rights-of-way.
Mr. Bill Cummings
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Discussed DOTPF's concerns about DNR's proposed
regulations.
Ms. Tina Cummings
Division of Wildlife Conservation
Alaska Department of Fish and Game
PO Box 25526
Juneau, AK 99802-5526
POSITION STATEMENT: Discussed ADFG's concerns about DNR's proposed
regulations.
Mr. Dick Bishop
Alaska Outdoor Council
P.O. Box 73902
Fairbanks, AK 99707
POSITION STATEMENT: Discussed AOC's concerns about DNR's proposed
regulations.
ACTION NARRATIVE
TAPE 00-3, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Joint Committee on Administrative
Regulation Review meeting to order at 1:30 p.m. Present were Vice-
Chair James, Representative Harris, Senator Lincoln and Chairman
Taylor. The meeting was convened for the purpose of hearing an
update by the Department of Natural Resources' staff on the
proposed RS 2477 regulations.
COMMISSIONER JOHN SHIVELY, Department of Natural Resources (DNR),
said the main purpose of the draft regulations is to put into DNR's
regulatory scheme two things: recent changes in law and some
traditional practices used by DNR to treat the management of
easements on RS 2477 lands. DNR did not intend to do anything to
limit or eliminate the State's title to RS 2477s. People have
looked at DNR's management philosophy and realized that a state
right-of-way is a right that the State can manage. He noted DNR's
rights-of-way practices have caused quite a stir in the
agricultural community because they could cause changes in
agricultural practices, for example in the way people fence land,
but his basic point is that easements and RS 2477s are state
rights.
COMMISSIONER SHIVELY indicated that state rights-of-way can be
vacated when alternative access exists. The legislature made that
process more complicated a few years ago; DNR would be glad to see
the legislature revisit that issue. The new regulations are an
attempt to reflect the law that was passed two or three years ago.
He offered to answer questions.
Number 325
VICE-CHAIR JAMES asked if a property owner pays taxes right up to
the property line even though the property owner cannot use the 50
foot section line easement.
COMMISSIONER SHIVELY answered that people can and actually do use
the easement but they use it at a risk. If they don't want to take
that risk, they build up to the edge of the easement rather than to
the edge of the property.
VICE-CHAIR JAMES pointed out that she was a member of both the
Fairbanks North Star Borough planning and platting commissions and,
in that area, the property was taxed right up to the line even
though 50 feet of that property was an easement. The fact is, when
people put buildings on the easement, they often had to remove
them.
COMMISSIONER SHIVELY said if a building is put on an easement, DNR
would probably ask the property owner to move it. He agreed the
property owner pays taxes right up to the property line even if an
easement is on that property. He added that Mike Eastman from
Homer had an RS 2477 easement on his land which the public used as
a snowmachine trail yet he had to pay property taxes on that
easement.
CHAIRMAN TAYLOR noted if it is an asset of significant value, a
reduction in value caused by the easement can be apportioned. The
property owner may be taxed at a different level for valuation
purposes for that 50 feet, but the Homer easement does not own fee
title to that land, it only owns the right to use it for certain
functions.
CHAIRMAN TAYLOR asked Commissioner Shively if the language in 11
AAC 51.010 increases DNR's authority over section line easements,
and how that language affects the Department of Transportation and
Public Facilities' (DOTPF) current regulations related to power
line easements.
Number 647
COMMISSIONER SHIVELY replied the language does not change the
relationship between DNR and DOTPF. If DOTPF is managing the right
of-way, its management scheme is used and vice versa.
CHAIRMAN TAYLOR asked whether a utility company would go to DNR or
DOTPF if it wanted to put a power line on an easement.
COMMISSIONER SHIVELY replied, "If we've given the management to
DOTPF, it is my understanding that you'd have to go to DOT."
MR. BOB LOEFFLER, Director, Division of Mining and Water
Management, agreed.
CHAIRMAN TAYLOR asked how one would know who is in charge.
COMMISSIONER SHIVELY replied the utility company would ask one of
the departments.
CHAIRMAN TAYLOR asked if the amount charged by each department
differs.
COMMISSIONER SHIVELY said it is and the price also differs
depending on the use. DOTPF has a one-time payment capped at $2500
for utility lines. DNR has a variety of rates for utilities, some
are capped for private non-profit utilities. The highest rate, for
fiber optics cable, is based on the appraised value of the land.
Number 812
CHAIRMAN TAYLOR suggested that discrepancy get cleared up because
if the right-of-way is one that DOTPF has historically managed, the
cost is capped at $2500 but, if the right-of-way is a newer one
that DNR has claimed jurisdiction over, it could cost $500,000 - a
significant difference.
COMMISSIONER SHIVELY maintained that on things that are high volume
and potentially high revenue, such as fiber optics, he thinks DOTPF
probably envies DNR. DNR believes it came up with a price that is
fair to both the State and the industry and the industry did not
object to it.
CHAIRMAN TAYLOR indicated a legislative policy may be needed on the
question of what the state is going to charge because the policy
should be consistent.
COMMISSIONER SHIVELY said he does not disagree. He pointed out
that discussions about such a policy went on a couple of years ago.
At that time, the legislature decided it was not an arena it wanted
to work in.
CHAIRMAN TAYLOR noted the language in 11 AAC 51.025 also appears to
restrict the state's assertions of RS 2477s to surveyed land. He
asked Commissioner Shively why DNR is not considering legitimate
rights-of-way on unsurveyed land or whether the term "surveyed"
includes protracted surveys, as it should.
Number 964
COMMISSIONER SHIVELY replied it is not intended to change anything.
A major legal question exists regarding whether or not, if the land
was not surveyed at the time of Statehood, those section line
easements are valid and legal. Some believe they are, others
believe they are not. DNR's legal analysis is that there is a
strong case for section lines that have not been surveyed. That
will have to be litigated someday, but the regulations are not
meant to change DNR's legal standing.
Number 1038
VICE-CHAIR JAMES said section line easements and RS 2477s are
different things. She said she can understand that if the state
did not have them surveyed, no one would know where they were. She
asked if the unsurveyed RS 2477s can usually be visualized.
COMMISSIONER SHIVELY said the RS 2477s can sometimes be followed on
the ground, although trails do not always stay put. Translating
the visual sighting to a map is more difficult. Some of the older
RS 2477s, which DNR believes the state has a legitimate title to,
are not used much, if at all, these days. They may be hard to see
at all which is why DNR feels strongly that unless an RS 2477 runs
across property owned by one land owner, it does not want to record
them until they are surveyed. He pointed out that is why DNR has
requested the law, passed several years ago, be amended.
VICE-CHAIR JAMES indicated that she thought RS 2477s were reserved
because they are a way for people to travel from one point to
another. She feels it is important to tell a new landowner that an
RS 2477 exists on the property even though it has not been recorded
or surveyed because that landowner needs to know for planning
purposes.
COMMISSIONER SHIVELY said DNR would love to do that but identifying
and surveying RS 2477s is expensive. He noted that DNR caused
quite a commotion last year when it told people that RS 2477s were
in a certain area. DNR then looked at what it told the legislature
it might be able to do - which was to record on anybody who was on
a section where DNR thought an RS 2477 was. People did not like
that solution because it meant a number of people who would never
have had an encumbrance on their land all of a sudden had one. The
encumbrances, in a lot of cases, already encumbers lands in ways
that people do not understand, which is another reason to get this
problem resolved.
VICE-CHAIR JAMES agreed the recording was very traumatic for many
of those people. She suggested that follow-up language could have
been added to some of the recordings saying the encumbrance might
be vacated if alternative access was already achieved, without
necessarily adding it into law. She indicated that she wants to
provide access but she does not want to interfere with what people
have been doing.
COMMISSIONER SHIVELY stated the other reason to identify rights-of-
way is so that everyone can begin to talk about alternatives and
figure out ways to accommodate those people who have actually built
on RS 2477s while providing access at the same time.
CHAIRMAN TAYLOR asked how that is being done. He noted the
regulations say nothing about accommodation.
COMMISSIONER SHIVELY replied that in organized governmental areas
with planning and zoning authority, they start by going to the
local government who will determine whether there is alternative
access so that the RS 2477 or the section line could be vacated.
They then, by law, have to come to DNR and DOTPF for approval. DNR
ran into a situation in Anchorage recently where the municipality
agreed on a very short section line vacation. DNR agreed; DOTPF
did not and made them do a small alternative access. But
government being government, they could not figure out how the
party would have that access submitted to the departments.
Therefore a process that would have taken 30 days under the old law
has now taken six months and the party still does not have a
decision. He prefers to see the local governments take care of
short vacations. In cases of access to major public lands or
navigable public waters, the state should review vacation to make
sure that adequate access remains.
Number 1436
VICE-CHAIR JAMES noted she was the Chair of the Fairbanks North
Star Borough Platting Board and a member of the Planning
Commission. She asked if his experience with the Fairbanks North
Star Borough has been different from other areas of the state
because the Fairbanks Trails Committee went through the entire
borough in the late 1970s and early 1980s and identified and mapped
trails. At every platting board meeting, the board reviewed the
trail maps for submissions for subdivisions. The platting board
probably moved some RS 2477s in the process but access was
provided, and the platting board also vacated section line
easements using that same process.
COMMISSIONER SHIVELY said that he has had no experience at this
point with issues in Fairbanks; the issues have been primarily in
the Mat-Su Valley.
VICE-CHAIR JAMES thought Fairbanks dealt with the rights-of-way
issue before it became a problem.
CHAIRMAN TAYLOR said the question about equal or better
alternatives is important. DNR regulations currently allow the
municipality to vacate public access rights but there is no equal
or better standard. He noted the Legislature would like to at
least see equal access. He said he can understand from DOTPF's
perspective that if DOTPF has relied upon a right-of-way that it
assumed was there, it needs something to get around that. He asked
why other agencies are deleted from the determination process
regarding navigable and/or public waters.
COMMISSIONER SHIVELY said he did not know the answer to that
question. He explained that DNR generally talks to other agencies
during the process, particularly ADFG, on water issues. He did not
think there had ever been a situation where DNR has tried to
consider something non-navigable and did not belong to DNR without
talking to ADFG.
CHAIRMAN TAYLOR said he would hope DNR is asserting navigability in
every instance possible.
COMMISSIONER SHIVELY replied it is DNR's policy to assert first and
let the courts tell DNR it is wrong.
CHAIRMAN TAYLOR said regarding the committee's recommendations on
the regulations DNR is working on, AS 51.035 appears as though it
precludes other agencies and he did not think that is what
Commissioner Shively wants to do. He said he does not want to
force DNR to give veto power to every other agency on that
determination but it might be wise to have something more generic.
COMMISSIONER SHIVELY said he doesn't think the regulations are
designed to determine what is navigable or public, it only makes
reference to navigable or public rights-of-way because DNR needs
that access. He noted Chairman Taylor is right in that when DNR
looks at a body of water, it makes a determination about that water
and whether it should provide access.
Number 1683
CHAIRMAN TAYLOR asked Commissioner Shively to respond to question
number 5. [Why are other agencies that may potentially be affected
by vacations in 11 AAC 51.065(d) not being given a meaningful role
in the process?]
COMMISSIONER SHIVELY said he doesn't think the intent of the new
regulations is to remove the ability of other agencies to
participate. He didn't think it has been traditional to include
the interagency process within regulations.
CHAIRMAN TAYLOR asked Commissioner Shively question number 6. [Is
the size determination in proposed 11 AAC 51.035(b) pertaining to
navigable waters consistent with other standards and guidelines
such as those set down by the Gulkana Case?]
COMMISSIONER SHIVELY replied he believes so but offered to double
check. He noted public waters do not have to be navigable.
CHAIRMAN TAYLOR said he thinks that is important and he believes
that the state should adopt the broadest standard possible under
legal precedent for what is submerged land under the definition of
the '54 Act. He said he can easily see where that could be
expanded or contracted based upon the type of definition DNR
arrives at and he hopes the definition would have something to do
with actual water levels requiring some period of study - much like
what the Coastal Geodetic has done to figure out the tides. Those
tidal lines control ownership of submerged lands and beach lands
and he believes that Alaska could be forfeiting thousands of acres
of land and jurisdiction if it does not come up with a well defined
legal description that is easy to understand. He recommended that
DNR follow the Gulkana case and the Three Rivers case.
CHAIRMAN TAYLOR asked Commissioner Shively why DNR has deleted the
section allowing for public participation in the nomination process
(question 7).
COMMISSIONER SHIVELY replied it wasn't deleted. Instead, DNR is
getting rid of what was a cumbersome and expensive certification
process because DNR cannot afford it. Part of that process
provided that people had to pay a $100 fee to nominate so DNR is
actually getting rid of that fee. People can still nominate and
give information both supporting an RS 2477 or opposing one.
Nothing in the regulations is meant to limit the public's right to
give DNR information. He noted that most of the information DNR
has on RS 2477s has been provided by the public.
CHAIRMAN TAYLOR asked what criteria will be used to determine
whether a vacation is contrary to the public interest, such as in
11 AAC 51.045.
COMMISSIONER SHIVELY replied that is a legal question that he is
not prepared to answer. He pointed out one has to look at the
situation, at the purpose of access, and whether adequate access
exists.
VICE-CHAIR JAMES thought that could be determined with public
hearings. She noted DNR also needs to be sure that there is no
land lock potential. She asked if there is a public hearing
process to determine whether vacations are tapped.
COMMISSIONER SHIVELY responded that organized governments with
planning and zoning authority hold the public hearings. DNR holds
public hearings in the unorganized boroughs. He noted that DNR has
not vacated easements in an unorganized borough.
CHAIRMAN TAYLOR stated he thought DNR will need to and that is part
of the problem because people have built in the unorganized
borough, next to a natural trail head or on one. The state needs
to set up a process so that it is fairly simple within DNR to make
those adjustments in the unorganized borough. He expressed concern
that the regulations as promulgated do not give DNR that authority
and he wants DNR to have that authority.
Number 2055
MR. LOEFFLER pointed out that the division has done a number of
vacations for section line easements in the unorganized borough and
it has a straightforward process that involves public notice. The
division has not processed a vacation for any RS 2477s in the
unorganized borough because the issue has not come up but the
division would follow a similar process.
VICE CHAIR JAMES stated Cantwell is in an organized borough with
some platting authority, but it is not being asserted. She has
told Cantwell residents they need to go to the borough. She asked
what responsibility the state has if the borough does not do it.
COMMISSIONER SHIVELY stated that if the borough refused, DNR would
take the issue on. DNR would rather have the local governments
start it because DNR thinks they are better qualified to make
recommendations, particularly on local issues but, if they won't do
it, DNR will.
SENATOR LINCOLN asked Commissioner Shively to respond to item 12.
[The letters DNR sent out to landowners regarding RS 2477s near
them made people upset because, in part, they did not provide the
full story: process to vacate, help needed to locate, legal
opinions, etc. Much of the upset during regulation review was due
to poor distribution of information.]
COMMISSIONER SHIVELY said he thought that was probably a legitimate
complaint. He thought DNR misunderstood some people's reaction to
what DNR was doing because DNR was just doing business as usual. He
thought a lot of people hadn't really thought about what the
easements meant and when they saw them in writing, they became
excited. In addition, DNR is stymied right now in terms of making
decisions because it needs the regulatory changes so it tried to go
faster than it should have. As a result, the comment period had to
be extended three times.
SENATOR LINCOLN thanked Commissioner Shively for his honesty.
CHAIRMAN TAYLOR noted his appreciation for the comment period
extensions.
VICE CHAIR JAMES commented she believes a person would have a case
in court if that person paid for a piece of property on which an RS
2477 was never asserted and nothing was noted in the transfer.
COMMISSIONER SHIVELY said he is afraid that is not the case. Under
that theory, RS 2477s would be worthless against the federal
government and against Native corporations. If the right existed,
it exists whether or not that land has been transferred. He said he
can understand how landowners feel but, from the state's point of
view, the right existed and absent a state action that vacates it,
it will continue to exist.
CHAIRMAN TAYLOR surmised the regulations need to be cleaned up so
DNR can go through the vacation process and find alternative
routes. He noted if alternative routes are not found, the state
may find itself faced with an inverse condemnation situation.
CHAIRMAN TAYLOR asked Mr. Loeffler to make the definition of
navigable and public waters as strong as possible in the
regulations. He also asked that the regulations clarify that a
simple process exists to vacate an RS 2477, even in the unorganized
borough.
MR. LOEFFLER agreed.
CHAIRMAN TAYLOR asked a representative from DOTPF to testify.
MR. BILL CUMMINGS, Assistant Attorney General, informed committee
members that he was attending on behalf of DOTPF. After reviewing
DNR's proposed regulations, DOTPF is concerned about who will be
granting permits in section line easements. DOTPF's concern is not
a matter of control, it is a matter of what will happen if DOTPF
tries to build a road later and the line is right in the middle of
it.
MR. CUMMINGS said DOTPF has been able to work with DNR this year
and will identify in DNR's regulations places where there should be
a cross reference to DOTPF's regulations on utilities that relate
to section line easements. Overall, DOTPF has no problem with
DNR's regulations.
CHAIRMAN TAYLOR asked if DNR and DOTPF will be working out that
problem.
MR. LOEFFLER said they will and he expects no problems.
CHAIRMAN TAYLOR asked if both departments have thought about
presenting a recommendation to the legislature on how the permit
process might be unified to create a "one-stop shopping" approach.
MR. CUMMINGS said a public policy call was made at the time of
Statehood so that public utilities go into highway rights-of-way.
For many years, the process was free. Considering the engineering
analysis that might be required on an application, it was one of
the best bargains in Alaska. The departments are trying to recover
costs. In addition, the definition of a "public utility" in the
DOTPF statute that allows utility permits is very broad. It
includes anyone in the room, the REA Coop, Enstar Natural Gas, the
fiber optic companies, etc. He noted because of that, the cost
cannot be based on "one size fits all." DOTPF is looking at where
it is incurring costs to determine the best places for cost
recovery.
VICE CHAIR JAMES commented that she sees a great inequity here.
Alaska is in its 41st year of Statehood and one unanticipated
change is that Alaska has competition in utilities now. She asked
Mr. Cummings if the cost of relocating a utility is calculated when
DOTPF does road work.
MR. CUMMINGS said yes, there is a process that DOTPF goes through,
depending on when the utilities were installed. A schedule is set
in statute that requires DOTPF to move virtually everything in the
right-of-way out of the way of construction. As he understands the
process, the public utility receives the depreciated value of
moving a pole line and it has to reimburse the state for
betterment. That is a difficult line to draw sometimes.
VICE CHAIR JAMES pointed out that it is certainly more expensive to
move a gas line than to move a telephone line.
MR. CUMMINGS agreed and said the engineers talk among themselves a
lot and try to avoid head-to-head confrontations because DOTPF
knows some of these things are very expensive to move and can't be
moved on a whim.
VICE CHAIR JAMES commented that different state agencies manage
state lands. She asked what the procedure is of a transfer of land
from DNR to DOTPF when a line is to be built, for example, and how
that would relate if an existing utility easement is on that land.
MR. CUMMINGS said he did not understand the question.
VICE CHAIR JAMES explained that she is referring to a huge portion
of state land through which a road is to be built. She asked what
process will be used for DNR to give that land to DOTPF to build
the road.
MR. LOEFFLER answered that typically, DNR issues DOTPF a right-of-
way for a highway or an interagency land management agreement
(ILMA) which gives DOTPF the authority to manage that strip of
land. It is usually a straightforward process.
VICE CHAIR JAMES said she asked the question because of the
different state agency ownership of land around Denali National
Park.
MR. LOEFFLER clarified that DNR tries to coordinate with DOTPF but
one would have to go to the state agency that manages the land,
whether it be DNR, the Alaska Mental Health Trust, the Borough or
another agency.
Number 2740
VICE CHAIR JAMES said the Department of Education has land in the
rural areas as well.
CHAIRMAN TAYLOR added the University of Alaska has land also. He
noted his concern is how one gets the process going because he
would like to get a new road built south of Juneau.
CHAIRMAN TAYLOR asked Mr. Cummings if DOTPF's primary concern
regarding DNR's proposed regulations is about vacation and who will
be in charge of the permitting process.
MR. CUMMINGS said DOTPF is concerned about the permitting process
because where DOTPF has a highway on one of these sections, DOTPF
should be the permitting authority. If DOTPF intends to put a
highway on a section line, it would have a lot to say about what
goes in there and DOTPF's current regulations allow it that
management authority.
CHAIRMAN TAYLOR said he thought DOTPF could be very beneficial to
DNR regarding the RS 2477s because they are merely narrower roads.
He thought DOTPF should be assessing whether access is equal to or
superior because DOTPF has the experience. He was hoping DOTPF
could give DNR some assistance in that regard.
MR. CUMMINGS said DOTPF could to a point but its hands are full
managing the state highway system which is quite different from
section line easements and RS 2477 rights-of-way.
CHAIRMAN TAYLOR said the lands division of DNR has expertise in
other areas.
CHAIRMAN TAYLOR asked a representative from ADFG to testify.
TAPE 00-3, Side B
Number 2400
MS. TINA CUMMINGS, ADFG, informed committee members that ADFG
provided extensive comments to DNR copies of which were provided to
committee members. She highlighted the key points of those
comments as follows.
First, many people do not realize that ADFG is so concerned about
things like RS 2477s and section line easements because ADFG is
responsible for managing public use and enjoyment of fish and
wildlife on all lands in Alaska. The public cannot hunt, fish and
trap without access. ADFG pays a great deal of attention to all
forms of access, be it on navigable waters, section line easements
or RS 2477s.
DNR was very receptive to ADFG's concerns and to establishing some
type of a team to further review ADFG's detailed concerns to find
resolutions. The first issue raised in ADFG's letter was that ADFG
concurred with the regulations removing the certification process
because that process was put into place in the early 1990's. That
process was nullified by the adoption of SB 180 so having it remain
on the books subjects ADFG to litigation. ADFG has been litigated
because it is not following the certification process in the
regulations. The proposed regulations, as written, do not include
a specific process for individuals and state agencies to submit
nominations. ADFG believes that should be in the regulations. DNR
is committed to allowing people to nominate and submit information
but ADFG wants the process to be laid out in the regulations.
Number 2796
VICE CHAIR JAMES said she liked the existing regulations that were
nullified by SB 180 and that she did not intend to nullify them
when she voted for SB 180.
MS. CUMMINGS said the process DNR now uses actually makes it easier
to nominate.
VICE CHAIR JAMES said she is distressed that the public process is
missing in the current plan.
MS. CUMMINGS said ADFG concurs and stated that in its comments.
MR. MILES CONWAY said that he thinks that what ADFG is saying is
that SB 180 took 600 of the routes in the certification process and
put them in statute. Implicitly, that was a rejection of the
process. He thought the longer they stay on the books, the more
likely litigation is.
VICE CHAIR JAMES repeated it was never her intent to circumvent the
public process when she was involved with SB 180 and, in fact, it
was a jump start because it wasn't getting done any other way. She
wants to make sure that the public process is intact.
CHAIRMAN TAYLOR stated that according to Ms. Cummings, DNR has a
new process that is better, but that process needs to have ADFG
included in at least an advisory capacity. He asked if that will
be part of DNR's regulations.
MR. LOEFFLER said he would do that and that DNR has always worked
closely with ADFG. He noted that typically DNR does not put
interagency interactions in the regulations because it is one more
thing to be sued over but he will do so because it is an integral
part of the process.
CHAIRMAN TAYLOR commented that he does not know that a mandatory
veto has to be included because he does not want to see turf wars
between the departments. Because the state's resources available
for these types of designations are limited and the institutional
expertise is comprised of a small working group, he hopes the
agencies can cooperate and get the work done. He does not want to
set the state up for more lawsuits.
MR. LOEFFLER said he shares the same concerns.
VICE CHAIR JAMES noted that input from the agencies during the
public process is more important to her than what the agencies
decided at the office.
MR. LOEFFLER commented that DNR does have a public process that it
requires for RS 2477s: a comment period; 30 days public notice; a
notice published in newspapers with statewide circulation and in
newspapers of general circulation; a posting at a post office;
notice to the municipality and the Native corporation and a village
within 25 miles of the route. He said DNR has mandated a public
process for all of the reasons expressed by the committee.
Number 2557
CHAIRMAN TAYLOR referred to page 7 of ADFG's comments and asked if
easements to and along navigable and public water exist now.
MS. CUMMINGS said they do.
CHAIRMAN TAYLOR asked how streams are referred to.
MS. CUMMINGS said ADFG does reserve those. She asked Nancy Welch
to respond to that question.
MS. NANCY WELCH, DNR, explained that by statute, DNR is required to
reserve an easement to and along public and navigable waters.
CHAIRMAN TAYLOR asked how wide the easement is.
MS. WELCH replied it is typically a minimum of 50 feet but some
have been as wide as 200 feet.
CHAIRMAN TAYLOR asked why an easement along a stream would be 200
feet wide.
MS. WELCH said the width depends on the topography.
CHAIRMAN TAYLOR asked if there is a width set in statute.
MR. LOEFFLER explained that a minimum is set but the easement is
wider if certain conditions exist.
CHAIRMAN TAYLOR asked why some easements are so wide that cabin
sites are set back from a stream about 200 feet.
MS. WELCH said Chairman Taylor is referring to building set backs
employed in DNR land sales. They were requested by ADFG to protect
the riparian zone.
MS. CUMMINGS commented that easements to and along waterways are
very important so that the public can access the waterways. They
are in the regulations now. ADFG included a number of technical
comments in its letter to DNR about the changes that are being made
and how those could affect the access to easements. She noted the
biggest concern ADFG has related to the navigability of public
waters is in land conveyances, as land moves from state to
municipal ownership. ADFG needs to be sure that those waters that
are navigable be identified as such before the land is transferred.
ADFG likes to work with DNR early in the process, long before the
municipal conveyances are noticed to the public so that ADFG can do
as much research as possible. Mr. Loeffler is committee to such a
working relationship.
Number 2368
CHAIRMAN TAYLOR asked Ms. Cummings to discuss 17B easements.
MS. CUMMINGS explained that 17B easements are reserved at the time
that conveyances move from the federal government to the Native
corporations. The only place ADFG addressed 17B easements in its
review is related to the width of the easements that are reserved.
ADFG suggested that the trails be the same width as the 17B
easements so that where easements overlap, they are the same width.
CHAIRMAN TAYLOR said he understands that DOTPF asked to sign off on
any vacation and that ADFG was concerned that it was not mentioned
regarding the approval of vacations.
MS. CUMMINGS said ADFG is concerned that in certain places in
existing regulations a consultation is required with ADFG, but that
requirement has been deleted from the proposed regulations. Where
it already exists in regulation, ADFG would like to see it
retained. Ms. Cummings clarified that there is one piece of a 17B
easement that is also tied to navigable waters and that is why the
interagency navigability team was created. She noted that where
land is being conveyed from the federal government to the Native
corporations, the interagency navigability team has staff that
reviews every single conveyance to ensure that navigable waters are
identified when possible. Easements cannot be reserved unless they
are between, to and from, public lands or waters. Otherwise those
public lands and waters could be isolated. Therefore, determining
the navigability of waterways for those conveyances is very
important to everyone.
CHAIRMAN TAYLOR said he would think it would be very important to
the recipient of the land also, just as Doyon brought suit on the
Three Rivers case. That whole question turned on navigability at
the time of Statehood. As a consequence, that one definitional
aspect could make the difference of thousands of acres on the
amount conveyed from the federal government to the Native
corporation. He noted Ms. Cummings is going one step further and
asking that the issue of navigability be resolved in conveyances
from the state to a municipality and other entities.
MS. CUMMINGS repeated that ADFG wants the issue of navigability
resolved as early as possible. The easements that are required to
be reserved along waterways include public waters - waters that may
not necessarily have the finding of navigability. It is helpful
for the eventual landowner to know whether or not the submerged
lands are claimed by the state under navigability. The easements
are reserved regardless.
VICE CHAIR JAMES asked it that is an easement or state ownership of
land.
MS. CUMMINGS said she understood Chairman Taylor's question to be
related to the acreage involved in the submerged lands of navigable
waters. She explained that when land is conveyed from BLM to the
Native corporations, if the waterway is navigable, the submerged
land does not count against their entitlement.
CHAIRMAN TAYLOR added that it is part of the state's entitlement
which is the point he was trying to make when he asked what the
specific definition of submerged lands and navigable waters on a
stream is, a stream whose depth may fluctuate wildly. He thought
that to be a huge issue when it comes to defining those areas that
are owned by the state today and may have another competing
interest claiming ownership. He did not think it is determined by
vegetation alone.
MS. CUMMINGS pointed out there is some court history comparing the
definitions both in the regulations and statutes of the state. It
defines what is meant by ordinary high water, ordinary high water
marks, mean high, and mean high tide line. Those are very
technical terms with extensive legal backgrounds. She suggested
asking the assistant attorney general for the navigability team to
provide those definitions to the committee to clear up any
confusion.
CHAIRMAN TAYLOR said the legislature would appreciate that because
until the Three Rivers case came along, no one realized this was a
serious dispute with the federal government. The federal
government wants to claim that nothing is navigable in Alaska. The
legislature did not understand the ramifications of the term
"public lands" when public lands is applied to public waters, which
turns on that which is navigable.
MS. CUMMINGS informed committee members that DNR has a website that
contains department order 125 which addresses some of the
Chairman's questions, although the litigation items are currently
being updated.
MS. CUMMINGS concluded by saying ADFG's letter is well detailed and
that the flow chart that is attached helps people see where it has
concerns or questions that need to be resolved in the final
rulemaking.
CHAIRMAN TAYLOR said he would not require the consultation
requested by ADFG because he does not want to set the state up for
a lawsuit. He noted that some agency needs to have primacy and
that although he wants DNR to be consulting with ADFG every step of
the way, he does not want to require it in regulation because it
will be used for turf wars and other objectives.
MS. CUMMINGS clarified that ADFG has only asked that the
consultation in current regulation continue. ADFG is not asking
for consensus.
Number 1721
CHAIRMAN TAYLOR asked Dick Bishop to testify.
MR. DICK BISHOP, Vice President of the Alaska Outdoor Council
(AOC), said the AOC had a lot of questions after reviewing DNR's
proposed regulations, some of which were answered today. Regarding
the relationship between DNR and ADFG, the AOC thinks the existing
regulations should not remain the same. AOC members are the users
of the resources and believe the trails should be put into statute.
Because access is essential to AOC's interests, AOC believes it is
important for ADFG to be involved in the review of access to
navigable waters. One interesting comment made earlier was about
the importance of public opportunity to formally bring to DNR's
attention potential RS 2477s. In the course of AOC's review of RS
2477s, the evidence that individuals provided for a potential RS
2477 was from individuals and may not have been found any other way
by DNR.
CHAIRMAN TAYLOR asked how the state should approach and resolve the
vacation difficulties that have been incurred by the development of
properties near, across or along trail heads. He noted that trail
heads for some of the more historic trails were popular areas where
people built houses one hundred years ago. He questioned how the
state should go through the transition process when a trail has
been moved yet it must fight to preserve the public's right of
access to it.
MR. BISHOP said the question has two elements: one is maintaining
the public access, the other is maintaining property rights. Both
are important. To maintain both will require thought and
negotiations. AOC has difficulty with DNR's implementation of the
law that was passed and its preference to not record RS 2477s
because of the uncertainty of their locations. He believes DNR's
responsibility is to find a compromise that will not destroy or
diminish the value of the private property but will provide access.
CHAIRMAN TAYLOR asked Mr. Bishop if he believes the regulations are
flexible enough to accomplish that.
Number 1309
MR. BISHOP said he thinks so but does not honestly know. He
thought it may go beyond things that are covered in regulations and
may require some actual legal agreements that are beyond the terms
of the existing regulations.
CHAIRMAN TAYLOR said he is hopeful that, out of this process, state
personnel would make some proactive efforts to do just that.
Number 1180
MR. BISHOP commented that the research that DNR was doing to
document RS 2477s has come to a halt by virtue of restricted funds
by the Commissioner. The research to verify the existence of RS
2477s is now minimal and only consists of updating information on
existing trails. That important function went on for several years
and resulted in the several hundred trails that were included in
the statute. AOC believes that cutting off that research was not a
wise choice because it will be harder to assure that there will be
access for outdoor activities.
CHAIRMAN TAYLOR noted that issue will have to be taken up in the
Finance Committee.
CHAIRMAN TAYLOR asked Ms. Welch to update him on the Dana Olson
case.
MS. WELCH said she has talked with Ron Swanson in the Mat-Su
Borough and, to her understanding, an alternate route has been
constructed that the snowmachiners use. DNR now has to work
through the vacation process to make sure that what is being
provided is reasonable and comparable, as required by statute.
MR. LOEFFLER commented that because the Chairman has suggested that
DNR try to work out flexible solutions, such as in Dana Olson's
case, he offered this explanation of the flexibility that DNR can
accomplish with its new regulations. DNR will try to be as
flexible as it possibly can within the confines of the statute.
The statute requires that DNR only vacate an RS 2477 if the
alternative is "a reasonably comparable established alternative
right-of-way and is sufficient to satisfy all present and
reasonably foreseeable uses." In the case where an RS 2477 goes
through a person's living room and there is an existing road
nearby, the statute requires DNR to look at that road to see if it
and the easement surrounding it is sufficient to satisfy all
present and reasonably foreseeable uses. That is a reasonably high
bar which limits DNR's flexibility. The only other means to vacate
is when the vacation is specifically requested by a municipal
assembly, in which case DNR has to determine it is a reasonable
alternative in the best interests of the state. Those two tests
limit what DNR can accomplish toward the direction Chairman Taylor
has suggested.
CHAIRMAN TAYLOR said that, speaking for himself, he is concerned
that the state not give up an RS 2477 opportunity without thinking
about the future. That does not mean that before an RS 2477 can be
vacated for a new right-of-way, the new right-of-way must be
capable of supporting a seven lane highway. All he is looking for
is the exercise of common sense.
MR. LOEFFLER said DNR does not interpret reasonably foreseeable
uses to require a seven land highway; it tries to be flexible.
CHAIRMAN TAYLOR asked Mr. Loeffler to keep in mind that as DNR goes
to do these things, it may be necessary to take a trail and
consider it adequate. In the future, that may be determined to be
inadequate but mistakes are inevitable. If that happens the state
will take it, condemn it, and build a new road. The state always
has that escape valve.
CHAIRMAN TAYLOR thanked all participants for their comments. He
felt this to be the finest example of interagency cooperation and
professionalism he has seen in a long time. He expressed his
sincere appreciation. He then adjourned the meeting at 2:58 p.m.
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