Legislature(1997 - 1998)
02/06/1997 01:12 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
JOINT SENATE/HOUSE RESOURCES STANDING COMMITTEES
February 6, 1997
1:12 p.m.
SENATE MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Lyda Green, Vice Chairman
Senator Bert Sharp
Senator Robin Taylor
Senator Georgianna Lincoln
Senator John Torgerson
SENATE MEMBERS ABSENT
Senator Loren Leman
HOUSE MEMBERS PRESENT
Representative Scott Ogan, Co-Chairman
Representative Bill Hudson, Co-Chairman
Representative Beverly Masek
Representative Ramona Barnes
Representative Joe Green
Representative Reggie Joule
HOUSE MEMBERS ABSENT
Representative Irene Nicholia
Representative Fred Dyson
Representative William K. ("Bill") Williams
COMMITTEE CALENDAR
OVERVIEW: RS 2477
WITNESS REGISTER
KATHLEEN (MIKE) DALTON
Alaska Outdoor Council
P.O. Box 73902
Fairbanks, Alaska 99707
(No phone number available)
POSITION STATEMENT: Participated in RS 2477 Overview.
BARBARA HJELLE
197 East Tabernacle Street
St. George, Utah 84770
(No phone number available)
POSITION STATEMENT: Participated in RS 2477 Overview.
STAN LEAPHART, Executive Director
Citizen's Advisory Commission on Federal Areas
3700 Airport Way
Fairbanks, Alaska 99709
(No phone number available)
POSITION STATEMENT: Participated in RS 2477 Overview.
DOUG BLANKENSHIP, Attorney at Law
574 Grandview Court
Fairbanks, Alaska 99709
(No phone number available)
POSITION STATEMENT: Participated in RS 2477 Overview.
VIRGINIA STONKUS, Fiscal Analyst
Legislative Finance Division
Legislative Affairs Agency
P.O. Box 113200
Juneau, Alaska 99811-3200
Telephone: (907) 465-3795
POSITION STATEMENT: Participated in RS 2477 Overview.
ROBERT BOSWORTH, Deputy Commissioner
Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99811-5526
Telephone: (907) 465-6140
POSITION STATEMENT: Participated in RS 2477 Overview.
TINA CUNNING, Wildlife Biologist IV
Division of Wildlife Conservation
Department of Fish and Game
333 Raspberry Road
Anchorage, Alaska 99518-1599
Telephone: (907) 267-2248
POSITION STATEMENT: Participated in RS 2477 Overview.
JOHN T. SHIVELY, Commissioner
Department of Natural Resources
400 Willoughby Avenue
Juneau, Alaska 99801-1724
Telephone: (907) 465-2400
POSITION STATEMENT: Participated in RS 2477 Overview.
NANCY WELCH, Regional Manager
Northern Region Office
Division of Land
Department of Natural Resources
3700 Airport Way
Fairbanks, Alaska 99709-4699
Telephone: (907) 451-2700
POSITION STATEMENT: Participated in RS 2477 Overview.
BRUCE M. BOTELHO, Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Participated in RS 2477 Overview.
ELIZABETH BARRY, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
1031 West 4th Avenue, Suite 100
Anchorage, Alaska 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Participated in RS 2477 Overview.
ACTION NARRATIVE
OVERVIEW: RS 2477
SENATE TAPE 97-9, SIDE A
Number 001
CO-CHAIRMAN SCOTT OGAN called the Joint Senate/House Resources
Standing Committees meeting to order at 1:12 p.m. He said in light
of the recent announcement by the Secretary of Interior, Bruce
Babbitt, they asked the departments to give an overview of the RS
2477 issue.
KATHLEEN (MIKE) DALTON, Alaska Outdoor Council, said she lived in
Fairbanks and had been an Alaskan since 1949. She had been
involved with RS 2477 research preparing files for possible
assertion by the State of Alaska. She represented the Governor's
Office and the Lieutenant Governor's Office in a project in
Fairbanks which was conducted by the DNR. She worked with them on
a consistent basis until the end of the Hickel/Coghill
administration. In that study, the State identified about 1,500
possible RS 2477's. By July 1 they should have an additional 35 or
40. It's an ongoing thing in DNR.
MS. DALTON said the federal definition of RS 2477 is "the right-of-
way for construction of highways over public lands, not reserved
for public uses, is hereby granted." The history of it in Alaska
is that DOT has used it as a legal tool over the years in acquiring
rights-of-way for certain routes and highways. Three examples are
the DeBarr Road in Anchorage, The Goldstream Road in Fairbanks, and
the May Creek Road in the Wrangell St. Elias.
MS. DALTON continued. In the 1970's, Bruce Campbell, then
Commissioner of DOT, collected information from his department,
ADF&G, and DNR and developed maps showing every route they could
find that qualified as an RS 2477. This was in conjunction with
the State's effort to identify lands prior to ANILCA. In 1974
Commissioner Campbell sent a list of 1,700 possible RS 2477's, with
maps identifying these, to the BLM. In 1985 BLM responded and
thanked them for the State of Alaska's Trail Atlas. They claimed
that the State's documents did not constitute a request for
nomination, that BLM could not accept because they had no authority
to accept them; that the "Atlas" did not meet the requirements of
the BLM manual, and that they were not the right scale. By 1992
there was absolutely no record of anything in BLM.
MS. DALTON continued. In the 1980's the Statehood Commission did
a study about statehood issues in which they specifically talked
about this issue. Senator Coghill knew about this, and when he was
chairman of the Transportation Committee he caused another study to
happen which identified RS 2477's in conservation units. The State
Senate published three volumes of that.
MS. DALTON continued. In January 1993, Governor Hickel and
Lieutenant Governor Coghill requested a budget of $720,000 to
research RS 2477 rights-of-way. Up to 12 people began the
intensive effort. The next year $300,000 was appropriated to
complete it. In the work each RS 2477 right-of-way has a file that
contains proof of trail use in such documents as USGS maps, other
official government maps, State and BLM land status plats, land
ownership data, historical use narratives, US Postal dog team
routes, and others. She said this was the end of State
involvement.
MS. DALTON continued. This summer the Alaska Outdoor Council's
Board of Directors authorized the formation of a committee to
pursue this issue. It was comprised of Dick Bishop, Lisa Harbo,
Byron Haley, and herself. They talked to the director of the
Northern Region BLM, Dee Richie, and presented their requests. He
said he would instruct his lands people to accept their assertions
and they would be recorded as accepted into the office. They went
ahead and filed 12 then, and after that they filed another eight or
nine before July 1.
MS. DALTON noted that there was a question regarding the statute of
limitations for certain units being July 1, 1996 so they filed
assertions in those units before then. BLM date-stamped each file
they presented. Those in the Fairbanks meridian were serialized
and placed in BLM's rights-of-way filing system. The other 50% of
the files went to the Anchorage area where they are sitting on
someone's desk. They did not get processed.
MS. DALTON said that just about every move DNR made was monitored
by the Northern Alaska Environmental Center which was there on a
daily basis. However, this summer they filed another 240 routes
without being monitored. They figured that each case cost them
$3.50 in paperwork and copying and four hours of manual labor.
This added up to $800 and close to 1,000 volunteer hours.
MS. DALTON said the last item she wanted to mention was Secretary
Babbitt's new policy.
SENATOR RICK HALFORD said thank you to "Mike" and the Outdoor
Council on behalf of the legislature and the people of Alaska.
REPRESENTATIVE BILL HUDSON said he was concerned with the legal
claim we might have for the 1,700 "with maps trail Atlas" process
that was done.
MS. DALTON replied that BLM did not accept them and a search in
1992 showed that there was absolutely no record of them in BLM
offices. She reiterated that everything they filed this time was
notarized first and date-stamped by BLM. She said they had
established a legal record of action, not assertions.
REPRESENTATIVE HUDSON said he hoped an attorney could tell them
whether that constitutes a proper action that could be carried
forward beyond the cut-off date.
MS. DALTON replied that they believe it is.
REPRESENTATIVE JOE GREEN asked her at any time they made the 240
filings were they led to believe that those would not be honored.
MS. DALTON answered no, but they assumed they wouldn't be because
of the current policy.
SENATOR BERT SHARP asked if they had received any response to
inquiries to the Anchorage BLM office as to what is going on there.
MS. DALTON replied that they hadn't pursued that, yet. She said
the one area that concerns them is the Wrangell/St. Elias area
which is very, very rich in minerals, but also very rich in
historic trails and access roads. She doubted that the Anchorage
office would return their call especially in view of Secretary
Babbitt's new policy.
CO-CHAIRMAN OGAN again thanked them for their efforts in trying to
protect our rights.
Number 260
STAN LEAPHART, Executive Director, Citizen's Advisory Commission on
Federal Areas, said he wanted to comment on his analysis of
Secretary Babbitt's policy on RS 2477's. He said his knowledge was
general and he had been working with the Commission since 1982. He
had worked with Senator Coghill identifying potential RS 2477's.
His was a major accomplishment because before that you could barely
get acknowledgement from the agencies that those routes even
potentially existed. They have had the opportunity to work with
Secretary of Interior Hodel when he developed the policy that was
just repealed by Secretary Babbitt.
MR. LEAPHART said more recently they reviewed the 1994 draft
Department of Interior Regulations that were issued and there were
some serious shortcomings with It. The new policy that Secretary
Babbitt issued repealed the 1988 Hodel policy and the 1993
moratorium on processing any RS 2477 assertions accept in cases
where there was "demonstrated compelling and immediate need to
make the determination." Secretary Babbitt reasoned that the Hodel
policy was not promulgated according to rule making procedures and
is not a rule. Mr. Leaphart said, while this is true, that the
Hodel policy was developed after extensive consultation with Alaska
and the other western states. He said he was surprised by
Secretary Babbitt's new policy. Especially since he had met with
his special assistant, Debra Williams, in December and she briefed
them that because of the moratorium Congress had instituted with
respect to adopting any final regulations that the Department was
going to pull and review all the comments and then issue final
regulations that were going to be considerably different from the
ones that were proposed in 1994.
MR. LEAPHART thought this interim policy was an end-run around
congressional intent. There are a number of terms that cause them
concern. It recognizes that anyone making a claim on an existing
RS 2477 continues to have the option of seeking validation of the
claim in court. Their concern is that the content of the policy
will color the court's decision particularly in any instance where
the Department of Interior would be involved as a party in the
action on a claim. The policy does provide for an entity to ask
the Department of Interior to make a determination of validity in
advance of adoption of final regulations if there is "demonstrated,
compelling and immediate need" for such a determination. The
policy contains no definition or explanation of what would
constitute that. This is left to the discretion of the agencies
and the Secretary. If after receiving an application, the agency
doesn't believe there is a compelling need, they simply will not
process the request. Some of the major problems with the policy
reflect problems that were in the draft regulations of 1994. This
includes the definition of construction which required that
intentional physical acts must have been performed with the
achieved purpose of preparing a durable, observable, physical
modification of land and that it be suitable for highway traffic.
The public users standard would only be recognized if the right-of-
way was subsequently maintained by acts of construction.
He said the courts have recognized the validity of rights-of-way
created by the passage of vehicles, pack animals, and foot traffic.
Many trails in Alaska have been created by this type of use.
MR. LEAPHART continued. The definition of highway in the proposed
1994 regulations would have to constitute a thoroughfare used prior
to October 21, 1976 by the public for the passage of vehicles
carrying people or goods from place to place. It is unclear
whether some of our mail trails and other trails used seasonally or
infrequently, but nevertheless used, would meet that definition.
MR. LEAPHART continued. The interim policy requires that any claim
for an RS 2477 must comply with State law which must comply with
federal law, but doesn't specify which federal law and didn't
provide a lot of protection for existing rights.
MR. LEAPHART hoped that Congress would not approve the final
regulations if they are anything like this policy.
DOUG BLANKENSHIP, Attorney at Law, Fairbanks, said his association
with this issue started when he was an attorney with the Alaska DOL
for five years. As a private attorney he handles RS 2477 cases,
one of which came out of the Alaska Supreme Court reversing a
Superior Court decision saying there was no RS 2477 trail. He said
he wanted to know what was the policy of the Knowles administration
regarding RS 2477s. He has collected information over the years
and he has a questionnaire from the Alaska Miners Association to
the Knowles administration asking if they would aggressively pursue
the rights of the State of Alaska regarding RS 2477s rights-of-way
in courts and administratively. The answer was yes. He wanted to
know what the terms of the policy were and if there was going to be
equal treatment of native corporations and other private lands as
compared to state and borough lands. Is DNR allowing Alaskans now
the use of RS 2477 rights-of-way, he asked.
MR. BLANKENSHIP noted that there hadn't been much public
information released from the State on this issue.
REPRESENTATIVE HUDSON asked him to explain the decision that was
overturned.
MR. BLANKENSHIP said it was concerning the Knik Glacier trail which
runs 22 miles from Palmer to Metal Creek. The trail traversed a
five acre parcel and the owner sued his clients to keep them from
crossing their parcel to get to his clients mining parcel on Metal
Creek. The Superior Court ruled that an RS 2477 was not proven.
His client filed a pro se and the Alaska Supreme Court reversed the
Superior Court with some principles that were cited in the Schultz
case.
SENATOR HALFORD asked him who actually owns RS 2477s that crosses
different properties. He asked if the State has the authority to
give it away or can the federal government take it away.
MR. BLANKENSHIP replied in his analysis the owner is going to be
the State, but the State is not the only one who can assert the
right. They are the most appropriate one. The existing right
should prevail over any other later transfer of the property.
SENATOR HALFORD asked if a private individual had to sue the State
as well as the federal government if his right has been bargained
away.
MR. BLANKENSHIP replied that if the State vacated any of the
rights-of-way that would be a disposal, and the Alaska Constitution
says there has to be a public process which would bring people with
concerns forward, and hopefully it would be preserved for the
public to use.
VIRGINIA STONKUS, Fiscal Analyst, Legislative Finance Division,
Legislative Affairs Agency, said she had identified for the
committee appropriations that were specifically for RS 2477
activity. DNR, DOL, and ADF&G are the agencies that she has
figures on, but the DOT report was arriving as she left for this
meeting. Two appropriations $700,000 and $320,000 totalled about
$1,000,000. Those that are starred are clearly RS 2477
appropriations. Those that are on state's rights that might
include RS 2477s were put on the list for their information.
SENATE TAPE 97-9, SIDE B
BARBARA HJELLE said she had been representing Garfield County in
Utah on RS 2477 issues for the last 11 years. She said current
federal regulations provide that the Department of Interior can
only regulate rights-of-way in so far as they don't diminish or
reduce any right conferred by the grant (RS 2477). Furthermore,
she said, if you look at the background materials on those
regulations, the Department of Interior made it very clear that it
was not the intent to reduce or diminish these rights at all and it
was their intent to rely on prior existing regulations that were in
effect before the repeal of RS 2477 to interpret the grant. Those
regulations made it clear that the grant was based on state law and
that there's no roll for the federal government to play in
acknowledging or documenting the rights-of-way. She thought it was
clear that Department of Interior was seeking to take over a
dominance that it had never sought to take before and for which
there is no basis in law. These actions, including the Babbitt
memo are in direct violation of the existing published regulations
of the Department of Interior.
MS. HJELLE continued. Looking at the Babbitt memo, what's not said
is more significant than what is said. The definitions are in the
proposed regulations, but are not covered in the memo. It is also
implied that if you don't either go to court or process a right-of-
way by persuading the Department of Interior to approve it, you
can't exercise your right legally. People in Utah have been
exercising their right anyhow, and they are now being sued.
MS. HJELLE said that she believed it was the state's duty to stand
up for the rights of its citizen and it didn't mean going to the
Department of Interior for acknowledgement of those rights and
permission to exercise them.
MS. HJELLE continued. She said the statute of limitations doesn't
defeat their rights. She suggested having a well-thought-out
Department of Transportation plan and exercising the right through
that plan. Where there is a plan, BLM is required to coordinate
its actions. She said Utah is intervening on all the lawsuits to
protect the state's interest. Their governor has tried several
times to negotiate or find constructive solutions with the
Department of Interior and Secretary Babbitt, but those actions
have been rebuffed.
SENATOR HALFORD asked if they were currently being sued on specific
actions on specific roads.
MS. HJELLE answered yes and they were early in the process and were
operating under an interim agreement between the parties.
SENATOR HALFORD asked if there was any other kind of restraining
order in effect now other than what they had agreed to.
MS. HJELLE replied that for several roads there is an agreement in
place. Garfield County has been told by a Judge not to touch its
roads until he says otherwise. There is no written order, but they
are honoring his request.
SENATOR HALFORD asked how long it would be before they got any
final decisions at the U.S. District Court level.
MS. HJELLE said it is really hard to predict; she thinks the
federal government wants to win. If they go to trial, it may be in
early 1998.
SENATOR HALFORD asked if they have any private user cases where a
user of the RS 2477 road is the person who is in the initial suit
or have they joined in the county's existing lawsuits.
MS. HJELLE answered that they don't have private users who have
joined yet.
SENATOR HALFORD asked her if she could make suggestions to the
State of Alaska on this issue. She said she has been impressed with
the work the State of Alaska has done to research and document the
RS 2477 issue. She thought that was absolutely essential. The
historical evidence has to be put together. She thought we also
needed to exercise our rights.
REPRESENTATIVE HUDSON asked if she had determined if there was any
congressional solution or relief in this matter. She thought it
would be very problematic primarily because the environmental
groups and the Department of Interior wage a propaganda campaign
which is so confusing that it is difficult to come to a
constructive conclusion that way. She hoped that congress might
sometime say you can't change the status quo of your regulatory
provisions and that you have to honor them as they stand today.
SENATOR GEORGIANNA LINCOLN asked if she knew of other states
dealing with this issue and were they taking a different approach.
MS. HJELLE replied that the only other state she hears from is
Idaho and she hears from individuals, not the state. She thought
the DOI was focusing on Alaska and Utah for two reasons. They are
both large areas having few access roads now and they want to close
them off entirely. They down-play the issue in other states.
SENATOR ROBIN TAYLOR asked if there are opportunities available for
her to bring a writ of mandamus action against the government
itself demanding and having the federal courts forcing the federal
governments to pass and enforce the laws on its books.
MS. HJELLE said she hadn't tried that because her philosophy is
that permission is not required of the federal government to allow
a local government to exercise vested property rights.
SENATOR TAYLOR asked if she had filed suit directly on behalf of
the state against the federal government to enjoin the extra legal
action being taken by the Secretary of Interior for which he has no
legal authorization.
MS. HJELLE replied no, but it is an issue in the case.
SENATOR TAYLOR asked if that was what they were asking for from the
court.
MS. HJELLE replied yes.
CO-CHAIRMAN OGAN thanked Ms. Hjelle for her comments.
Number 328
ROBERT BOSWORTH, Deputy Commissioner, Department of Fish and Game
(ADF&G), stated they are not the lead agency in this matter.
THE FOLLOWING IS A VERBATIM TRANSCRIPT:
MR. BOSWORTH: In the years after ANILCA was passed, ADF&G
coordinated the State's involvement in review of federal plans for
parks, refuges, wild and scenic rivers, etc. Since that time the
Department has been perhaps the most active of the State agencies
that has been involved in the review of those plans - specifically
in recent years in the Division of Governmental Coordination. This
has include monitoring federal land management plans, regulations,
and policy documents.
Our emphasis has been to pursue changes in those documents as
necessary to assure State management of fish and wildlife and the
public's ability to access federal lands as guaranteed by ANILCA
and other statutes. As part of this progress, we have also
participated with DGC to assure that these federal land plans and
other documents recognize the State's RS 2477 rights-of-way.
Obviously, the public cannot make use of fish and wildlife if they
can't get to them.
This gets us well to the documentation issue which was so
appropriately highlighted by the woman from Utah. We have
participated for a number of years in the documentation of rights-
of-way. I suspect if there is an individual in the Copper Basin or
the Wrangell Mountains area that was contact by a State agency with
regard to their personal knowledge of historical, traditional,
trails, it was probably someone for ADF&G who made that phone call.
During the early 1990's DNR and DOT participated in the CIP project
which documented several hundred RS 2477s for possible assertion.
The Department staff assisted DNR's compilation of data on these
routes whenever possible by locating historical use information,
identifying priority routes, and in many cases interviewing
witnesses. Over the last few years the Department has continued to
be involved in monitoring federal and state agency actions to
assure the rights-of-way are appropriately recognized. This has
included participating in policy discussions with the Governor's
Office, evaluating litigation options with the Department of Law,
assisting in preparing testimony for congressional hearings, and
coordinating with other states in responding to actions by the
Secretary's office. Again, I think Ms. Cunning can speak to some
of the specifics of those activities.
We expect to continue our involvement in RS 2477 issues, including
helping to identify traditional access routes, appropriate right-
of-way quiet title assertions, and helping to evaluate further
litigation options with the direction the Department of Law.
So in brief, our Department's involvement in the State's RS 2477
efforts is a small, but we consider, an important part of our
overall effort in the area of access. We believe we've been doing
a good job in addressing access issues where they arise around the
State. Although, I should point out that our concern is focused on
access for the purpose of hunting and fishing rather than general
access. That's all I have for this time.
SENATOR TAYLOR: Why are you only focused on access for fishing and
hunting purposes, if you're the only agency in the State that's
heading this up. Do we have no interests in this State in
timbering, mining, basic transportation corridors, or are we only
going to focus upon some pathway that may get me back into a nice
trout way.
MR. BOSWORTH: First of all I didn't mean to give you the
impression we are the only agency that's involved in this area.
But we are restricted by our funding source - namely the fish and
game funds that are used for this purpose.
SENATOR TAYLOR: Is someone else duplicating your efforts only
they're looking at it from a highway perspective at DOT, and
someone else from maybe a parks perspective at DNR, and....
SENATOR LINCOLN: Just real quickly, you said that you had
documentation and that's been ongoing. How many cases or access
projects have you filed or that you've documented.
MR.BOSWORTH: Mr. Chairman, Senator Lincoln, that sounds like a
question I'd like to defer to Tina Cunning, if she's available in
the Anchorage office. She's been directing our access project for
several years now. Tina, are you there?
TINA CUNNING, WILDLIFE BIOLOGIST IV, DIVISION OF WILDLIFE
CONSERVATION, DEPARTMENT OF FISH AND GAME: I'd like to answer the
earlier statement first and that is we do not duplicate efforts
with other agencies. We have worked very much as a team with DNR,
DOT, and DEC. We have not operated independently. To answer
Senator Lincoln's question, we do not do anything independently of
that group except that we did conduct the Wrangell/St. Elias
traditional access study and are about to publish the Kenai Refuge
traditional access study. These are not specific to RS 2477. We
all see ANILCA access as occurring in those areas.
SENATOR LINCOLN: As follow-up, perhaps I misunderstood. I thought
you said you were helping with documentation with individuals that
have the access problem with hunting and fishing in regard to RS
2477. Did I misunderstand?
MR. BOSWORTH: Mr. Chairman, Senator Lincoln, I think I'll ask
Tina, again, to clarify that. My understanding is that it is part
of the larger access project as was indicated recently focused in
the Wrangell/St. Elias area. We have been documenting it with
local help - the situations where a specific trail or a specific
transportation corridor has had use whether or not it's officially
recognized. We're doing the documentation in that case. We have
done, as I understand, hundreds, we've identified hundreds of
trails in that process.
As far as working with people on specific cases or claims, I'm not
aware that we've been involved in that part of, say, an individual
action.
CO-CHAIRMAN OGAN: Ms. Cunning, did you have a comment on that?
MS. CUNNING: We do assist individuals who call our office with
problems or questions related to access primarily on federal lands.
That's not helping them in litigation cases, but letting an
individual know what their rights are.
REPRESENTATIVE GREEN: My question was similar to what Senator
Lincoln asked. It seems to me that as far as RS 2477 was
concerned, what might have been an access characteristically or
historically for fish and game might have already been done. I'm
wondering now if there are resources being expended where I would
think DOT or DNR might be the lead agencies. Are you still
expending funds to look for prior traditional access for fish and
game as it deals with RS 2477? What I thought I heard was more of
a current nature of accessibility.
MS. CUNNING: The access research we've been doing has been not
specific to RS 2477s and we make every effort to go through and
limit our searches of documents which have already been prepared by
other agencies before we ever set foot out of libraries that aid in
documentation. What we have is [indisc.] on federal lands where
there's certain federal access rights such as Title 11 of ANILCA
that we believe these restrictions are not based on and so there's
documentation of traditional access. This is to protect access for
subsistence for commercial fishing.
REPRESENTATIVE HUDSON: Ms. Cunning, I suppose this is for you.
Who would we refer as being in charge of this multi-agency effort
to pursue the State's interests in the RS 2477 issue? Obviously,
you've got a part of it. I suppose DNR, certainly DOT, and other
agencies. Does the administration have singular plan that could
give us what the goal of that plan is, what the current status is,
and what the total funding might be so far - a status report?
MS. CUNNING: The Governor is in charge and I would defer to DNR
who has taken the lead in all the RS 2477s.
REPRESENTATIVE HUDSON: So then, DNR is the lead agency, is that
correct?
MS. CUNNING: Yes, that's correct.
CO-CHAIRMAN OGAN: Ms. Cunning, I have a question for you. This is
Chairman Ogan here. What should we be doing that we're not - in
your opinion. I don't want to get you in trouble with your boss.
MS. CUNNING: I'm sorry, sir, you cut out for a minutes there.
CO-CHAIRMAN OGAN: There's static. I think I saw it in a movie
somewhere. What should we be doing that we're not.
MS. CUNNING: I thought you didn't want to get me in trouble.
CO-CHAIRMAN OGAN: Well, I tell you what, we'll just save that
question for your boss or for all the bosses.
SENATOR HALFORD: I think we should be a little more specific.
What should we be doing with regard to fish and game and
recreational access to better protect State's interests that we may
not be doing? Any suggestions?
MR. BOSWORTH: If that's directed at me, Mr. Chairman, I'd be happy
to respond. One of the most successful projects we've been
involved with recently I've already referred to at least twice now
which is the Wrangell/St. Elias access project. It was a focused
effort with staff under Ms. Cunning's direction that established
precisely the kind of documentation that can help the most - now,
or for all I know, indefinitely into the future to identify rights-
of-way and traditional access routes that either the State or an
individual may choose to pursue. It was an intensive effort that
took a couple of years, as I understand, to accomplish. It
involved a computer mapping effort which, again, archived the
specific trail sites. In my mind that was a tremendously valuable
project that -- and developed a model and a format that could
easily be applied elsewhere in the State where we have probably an
equal number of traditional access routes that have not been
documented.
SENATOR LYDA GREEN: How many routes has Fish and Game actually
documented?
MS. CUNNING: That's a hard one to answer because a lot of the use
areas were not routes per se, but for example, were airplane
landing areas or dog team routes, or pack animal routes that were
not necessarily consistently over the same route each year. This
is an attempt to document traditional access prior to the 1980
Parks and Recreation as opposed to RS 2477 which has a different
criteria. We use the RS 2477 information that had been prepared by
DNR and DOT extensively before we went out and did additional
documentation of these landing areas or routes of access. I'd be
happy to mail a copy of these documents to any of the committee
members who would like to have copies. The GIS maps are
phenomenally detailed.
CO-CHAIRMAN OGAN: Ms. Cunning, maybe you could mail it to the
committee chairman at the House and Senate Resources and we can
make it available to the members.
MS. CUNNING: Will do.
SENATOR TAYLOR: Just to follow-up on Senator Green's question.
Did I hear you indicate there was a distinction in that which was
selected as a route or a trail depending upon whether or not you
were looking at the route or trail under the terms of ANILCA or
under the terms of RS 2477 and, I guess, my broader question is how
many routes have we identified or were initially identified and
then what happened to those? In other words, is someone making an
executive decision within the department as to which ones are going
to be quote true routes and we are going to log those and work
towards making certain that they're protected or is someone making
a judgement call about which ones are valid in that person's
opinion and which ones are not? I guess it's two questions. Is
there a distinction between the two laws and the way you look at
these things and is there an administrative override decision made
about what's going to show up on the final list of trails and
routes?
MS. CUNNING: I can't answer your question in relation to the RS
2477 work group that DNR headed up and how they actually made their
cuts and what fits the final list of 500 or so. In terms of our
documentation of the traditional access routes and areas, we
documented it all. If there was any written or verbal
documentation for individuals of use prior to the 1980s, we rarely
documented it, we made no phone calls for documentation.
SENATOR TAYLOR: So the other question, was there a distinction
between the review process you went through under ANILCA and the
review process you went through under RS 2477?
MS. CUNNING: The RS 2477 process that DNR headed up has a lot
stricter criteria for determining if we want to pursue it or not.
The statutory direction under Title 11 and 811 under ANILCA were
protecting traditional and subsistence access is much more general.
The criteria under the statute is whether or not it simply was
generally occurring in the area at the time of designation. That's
a very loose criteria compared to RS 2477s.
SENATOR HALFORD: Is there an intertie between RS 2477 accesses and
the Section 17 access provisions in the Claims Act?
MR. BOSWORTH: Mr. Chairman, if that's directed at me, I don't know
the answer to that. Perhaps Ms. Cunning knows. If not, perhaps
Commissioner Shively.
MS. CUNNING: I can answer it, but it would be far better to be
answered by the Department of Law.
JOHN T. SHIVELY, COMMISSIONER, DEPARTMENT OF NATURAL RESOURCES:
Thank you, Mr. Chairman, for the record my name is John Shively.
I'm the Commissioner of Natural Resources and prior to my taking
over as Commissioner, DNR was, as has been indicated by [indisc.]
and others who have been put in charge of the documentation portion
of the RS 2477 effort. I'd like to make a couple of comments. I
think the lawyer from Utah made one - I guess there's a little bit
of confusion about. These rights really exist now. We have these
rights-of-way. It's not like a homestead where you have to go out
and apply for them and Bruce may want to spend some time on this,
but they really do exist now. I think one of the differences
between us and Utah and some other states is that in many cases
down there, they are actually dealing with roads - real roads. We
are, for the most part, dealing with uses that created trails and
require much more in-depth documentation in terms of past usage
because they are not as well identified. I also think it's
important as I think others, including Mr. Blankenship have
mentioned to talk about - or just to mention that really - RS 2477s
are not necessarily a panacea for all our transportation needs.
And I would just point out that two of the major development
projects in the State, Prudhoe Bay and Red Dog, did not and, I
don't think, could have used RS 2477s. If there's some question...
SENATE TAPE 97-10, SIDE A [BEGINS MID-SPEECH]
COMMISSIONER SHIVELY: ...when I came on board the capital
projects, and I think there was pretty close to a million dollars
if not a little over appropriated over two or three years by the
Legislature to work on the kind of documentation that Mike Dalton
and others have talked about. That project was just coming to an
end, I think, at the end of my first partial fiscal year in office.
That was centered in Fairbanks, there was specific staff dedicated
to it, and that project came to an end. As a result of that
project, there were about, I think, 1,200 sort of nominations, or
what we thought were serious nominations of trails or rights-of-
way, and I think we've now documented around 500 that we think we
have enough documentation to say these are legitimate RS 2477
rights-of-way. We are still working on that. It was sort of a
crash project.
There were perhaps a number of differing philosophies as to what
constitutes a qualifying route, so for the last year we've
basically been going back reviewing all the work that was done on
these files, updating it, and then seeing on some of the other ones
that we thought were maybe close calls as to whether or not there's
some documentation that we could get up. I think the attorney
general will talk about our litigation strategy, but once we're
actively involved in litigation, then it will be the job of the
Department of Natural Resources to take these files that we've been
working on and provide them as a major part of the litigation.
We are, however, continuing that effort and among other things
we're sending a staff member to Anchorage to go further into the
federal archives and the archives at the Anchorage Museum of
History and Art. If we were able, as the woman from Utah said, to
negotiate a reasonable approach on these RS 2477 rights-of-way with
the Department of Interior, a lot of this work probably wouldn't be
necessary. But I think that the department has clearly thrown down
the gauntlet and, most recently, with the secretary's new policy I
think we were perplexed about the timing of it, we were perplexed
about the lack of consultation, and we were perplexed about the
need for doing anything at this time, particularly given the action
that had been taken by Senator Stevens in the appropriations
language. However, the secretary saw to do what the secretary saw
to do.
A couple of other things that we're working on. We're continuing
to try to update our GIS information so that the trails appear on
our mapping system. We are continuing to work the data base that's
the basis of that. We have a volunteer that is a masters student,
who is working on developing a WEB page for us so that we will have
information available through that media that will talk about the
history of the project; will talk about what policy guidelines we
might have; frequently asked questions about RS 2477s; list the
publications that might be available; how people can nominate a
trail; and how they can provide us further information on trails
they feel are important.
We do actually, sort of, manage RS 2477s. At least we have
regulations, although as I've mentioned, they're unlike in Utah
where you actually have a roadway that you might be really
managing. I would say that we are managing, sort of, as we do a
lot of the state's land given our limited resources, somewhat by
default, but there are regulations on the books relating to RS
2477s and how they are to be managed, and access is allowed by the
public on RS 2477s. However, for sort of more traditional uses as
with other state lands, major activities like bringing heavy
equipment on or upgrading the RS 2477 to a road would require a
state permit.
Mr. Chairman, the other thing I would like to say because it
answers some -- I think this really has been, in terms of the
collection of the information, a major team effort. We've
certainly gotten some good direction from the Department of Law in
some of the criteria we looked at, but the real work has been done
by people at Fish & Game, people at the Department of
Transportation, people at DNR, and then people like Mike Dalton and
other people, people in the mining community and others who have
gone out of the way to help us find ways to document the RS 2477s
that we have identified. So, Mr. Chairman, I would be happy to
answer any questions.
CO-CHAIRMAN OGAN: Senator Taylor.
SENATOR TAYLOR: One -- is the Yunik [ph] River wagon road part of
the your 500 you've selected?
COMMISSIONER SHIVELY: Yes, it is on our list.
SENATOR TAYLOR: The only other question I would have would be --
you indicated that before a person would have a right to continue
to use or expand the use, I guess, of an RS 2477 trail -- say
wanted to walk a piece of heavy equipment into his mining claim
that he has been walking to and from for years -- he would have to
have some permit from the state to utilize his trail?
COMMISSIONER SHIVELY: I don't know that we've had a lot of
experience with that, Mr. Chairman, Senator Taylor. A lot of what
we have documented are trails that are not currently in use, and I
think Nancy Welch, who is with our Fairbanks office, is on line.
Nancy, have we had any experience with people that are currently
using the RS 2477s that have had to get permits from us to continue
that usage?
NANCY WELCH, REGIONAL MANAGER, NORTHERN REGION OFFICE, DIVISION OF
LAND, DEPARTMENT OF NATURAL RESOURCES: Yes, Commissioner Shively,
we have issued some permits for RS 2477s where they've wanted to
construct.
SENATOR HALFORD: She said "wanted to construct" and that was a
different question.
COMMISSIONER SHIVELY: Yeah, Nancy, the question was whether or not
-- lets say that the person had been running a Cat back and forth
over an RS 2477 and we identify it as an RS 2477, have we then gone
out and asked them to apply for a permit they didn't used to have
to get?
MS. WELCH: That is correct. On the [indisc.] trail in particular,
last year we closed it for a portion of the season and we required
permits for heavy equipment use on that trail.
SENATOR TAYLOR: I guess that's what I was getting at, and I didn't
understand where anybody thought they had the authority to do that
since it is a federal law and the right exists from that law to the
person who is using it.
COMMISSIONER SHIVELY: Well, Mr. Chairman, and I don't want to try
to practice law here, but it's a federal law that gave the state
the right. But the state, in order to get that right, had to pass
its own legislation, and the first piece of legislation that
related to this was passed by the territorial government, I think
in 1923. And one of the things that we've argued very strenuously
with the department is that the management of rights-of-way are
under state law, not under federal law, so we do have the right
and, I think, as a government the responsibility to manage these
rights-of way.
SENATOR HALFORD: Well, you know, in the real world of applications
of how the -- if you look in the Iditarod district, in the Minto
Flats district, in the whole area south of Ruby, they may not have
used a road for 40 years, but you see it and you see the equipment
at the end of it and the mining operation is still there. And it
may be once every 10 years that a piece of equipment has to go back
and forth across that, but I think they would be violently opposed
to not being able to use that and not saying that was clearly an RS
2477. They're more visible on the ground than the dog sled mail
routes were.
COMMISSIONER SHIVELY: Well, Mr. Chairman, Senator Halford, that's
somewhat true, but they are not their rights-of way, they are
public rights-of-way and the state manages public rights-of-way.
For instance, I can't drive my snow machine on the highways.
That's a management decision that we have made for safety reasons
and in order to protect certain resources in ways that perhaps they
didn't used to be protected 40 years ago. We may need to regulate
-- I mean, I think that in these cases where people ask for the
right to do this our inclination is to give the permit, not to not
give them it. But that's our current regulations and we operate
under those regulations.
SENATOR HALFORD: Okay, let's take one of these that's fairly
complex. Again, you leave a community with a piece of heavy
equipment and you're trying to go to some place that's 60 miles
further away. It's got a state land segment, it's got a private
land segment, it's got a Native selection segment, it's got a
federal segment, and it's got a federal segment with added
restrictions. Now, it sounded like the best, or at least the Utah
advice was use it and let somebody else sue you. Now where is the
state going to come down in the five different law suits filed
against the guy that used it.
COMMISSIONER SHIVELY: Well, Mr. Chairman, Senator Halford. First
of all, under the theory as I understand it, it's a legitimate RS
2477, we currently own it, so the only person that that individual
would have to come to is us for a permit because we manage the RS
2477, the Native corporation doesn't, the federal government....
Now I'm not saying that when we did that if part of that was across
Denali National Park that the Department of Interior wouldn't
attempt to do exactly what they've done in Utah, in fact I suspect
they would. They would try to stop it. If we thought it was
legitimate, you know, depending on where we were with the
litigation and everything else, we might or might not support the
person in their attempts to combat the federal government if the
federal government took them to court.
SENATOR HALFORD: Okay, lets carry our example to -- and lets say
this is one of the routes on the 500, or whatever it is, that have
been clearly documented and the data base is there so that the
factual questions of prior use have been answered, but that this
route includes state land, private non Native, private Native and
federal land. Will you treat all of that land the same way in
issuing the permit if the trail is of the same use and history in
the whole group?
COMMISSIONER SHIVELY: At this point, Senator Halford, we treat the
whole trail the same way. I think that as we get into this and get
into more management, notification of people who, particularly
private land owners, I think it would be appropriate, you know, if
people were applying for permits. The other thing that I think is
important that -- lets go back to the Fish & Game examples -- that
an RS 2477 trail across private lands does not give the person the
right to shoot anything on those private lands just to get from one
set of public lands to the other set, assuming that the private
land owner would want access to those lands restricted.
SENATOR HALFORD: Yeah, and I don't disagree with that. One of the
considerations I think that some have heard is that the state would
be trying to force people to use section line easements instead of
RS 2477s or to buy access instead of using RS 2477s in some cases,
and I just wanted to make sure that wasn't the case.
COMMISSIONER SHIVELY: Mr. Chairman, Senator Halford. I have not
heard of that. There is a whole legal issue, as you know, about
unsurveyed section line easements, and most of the state is
unsurveyed. Where we've vacated easements -- it's actually often
section line easements that we vacate in communities once there's
an established transportation pattern, but I know nothing in policy
that I'm aware of where we're telling people to go use section line
easements. And section line easements work very well when I go
back to Nebraska to visit my wife's family and drive on all of
those roads that are in squares. They are a little more difficult
to use up here.
REPRESENTATIVE GREEN: We have 500 and some trails that have been
delineated and we say that we have authority over those. Does it
make any difference in your estimation, and probably this should be
to the attorney general, but in either of your estimation, that if
we have exercised, such as the example that the senator has given,
some sort of decision making over trail "a", but there is "b", "c",
"d" and "e" that we really haven't done much with -- we maybe just
only found out about them the last year or so -- but they're there
and we're still claiming them, but we haven't done anything. Does
that make any difference as to whether the state has or has not
exercised prior authority in our claims for, or is it RS 2477 yes
or no and it doesn't matter?
COMMISSIONER SHIVELY: Well, Mr. Chairman, Representative Green,
the basic underpinning of RS 2477s is usage that occurred prior to
1976 when FLMPA was passed, and so that basically gives you your
right. Once we've identified the trail, if we've got a case where
on one trail people have come to us for permits because they're
running a Cat across and four other trails really aren't currently
being used, that really should not affect the basic legal
underpinnings. In fact, on the other hand it will be precisely
when we start issuing some of those kinds of permits when the RS
2477s cross Native and federal land that some of these issues will
come head to head with the federal government.
SENATOR HALFORD: You know, the question of definition of "prior
use" -- it seems that the state policy then says that there are an
infinite number of different RS 2477s over the same route depending
on what degree of use that you decide that there was. What is the
previous, not so much the current, what is the previous federal
policy with regard to how they viewed RS 2477s prior to the Babbitt
letter.
COMMISSIONER SHIVELY: Mr. Chairman, senator, I can't answer that.
SENATOR HALFORD: Okay, maybe the attorney general can. We'll wait
until we get to him. Thanks.
CO-CHAIRMAN OGAN: Senator Lincoln, impatiently waiting?
SENATOR LINCOLN: Yes, and this might be for the attorney general,
but I'll ask it since DNR was in charge of the RS 2477. Just to
clarify for the Administration's effort into identifying the RS
2477s across the state, I noted that in your little "How to
Nominate" of January of '94 you talk about the one-year funding and
the documentation up to the 500 rights-of-way that you have eluded
to here of the 1,200 that were nominated. So as the general public
and I think some of us within this building here don't feel that
the Administration has been dragging their feet in identifying and
filing these particular parcels, I'd like to hear your response on
why from '94 on, -- and I know someone eluded to the funding that
was received -- but why 500 cases were sort of stopped in '94 and
there haven't been anymore added to the list since then. I would
ask that in that question -- we heard, and I don't know if Mike was
representing the Outdoor Council, but that the Wrangell-St. Elias
had not been filed and they wished they had time to have filed in
that area, and whether some of the Wrangell-St. Elias has been in
fact documented and is a part of that 500, and why the Outdoor
Council would have to scurry around really quickly to get I think
it was 240 areas filed under this 2477?
COMMISSIONER SHIVELY: Mr. Chairman, Senator Lincoln. Well, I
actually am not clear about the whole legal basis of the
notification of the federal government and what that means in terms
of the RS 2477 process. I do know that there is some discussion
about whether a statute of limitations exists on certain
conservation system units. We have identified some rights-of-way
within Wrangell-St. Elias and I can't tell you how many right now.
We did not stop the process in 1994. We have continued to work the
existing files, we've continued to add a few new ones, I think
each year. And I think the attorney general may want to talk when
he gets his turn about the whole assertion process and then the
legal challenges that we may face as we take some of these things
to court.
SENATOR GREEN: I didn't understand the last sentence that you
said. It was something "unless we go to court it would require..."
COMMISSIONER SHIVELY: What I was saying, I mean, there's the whole
process of the official notification of the federal government, and
I'm not sure what -- you know, we in notifying them, if we really
believe they exist is an important part of the process if we've got
the legal basis. I can't answer that, and the attorney general can
probably answer that plus some of those issues that will come up as
we start to litigate some of these where the federal government
clearly objects to our management or private land owners who might
object to our management.
REPRESENTATIVE HUDSON: For the lay person, is there a common
statement as to what the current is? You know, we heard from Mike
Dalton about the action that they've taken up there and what was
done back in Bruce Campbell days, and some of us are laboring under
just where we are, what do we own, what's our goal, are we going to
have to try each one of these, or there is sort of a blanket case?
Perhaps the attorney general can answer some of these questions,
but just, you know, if there is any help you can give us along
those lines, that would be beneficial.
COMMISSIONER SHIVELY: Well, Mr. Chair and Representative Hudson,
we may ultimately have to litigate each and every one if the
federal government wants to fight us or private land owners.
Obviously, if the RS 2477 is on state land, we can declare it and
its ours and we manage it. I think it is our hope as we start to
litigate some of these and also look at other litigations such as
the litigation that's currently going on in Utah that there will be
some principles set, just as there were some principles set in the
navigability issue, that will resolve a lot of these issues. But
I can't predict, and particularly the RS 2477s that are in
conservation system units. I suspect, absent ultimately some kind
of negotiation with the Department of Interior, which they seem
very unwilling to participate in, we'll probably go one by one
because they will just come up and say "Well, you don't have the
information to validate that that's an RS 2477" and then we'll have
to say "Well, yes we do and here it is."
CO-CHAIRMAN OGAN: Senator Halford.
SENATOR HALFORD: If a group of citizens with very little money can
assert 240 or whatever it is of these, if we fund the money, will
you assert the remainder of the ones that you have researched, at
least file them with BLM, get them stamped in, and take them and
record them at the state recorder's offices so they are actually
recorded and part of the record in that way?
COMMISSIONER SHIVELY: I don't see any reason why we wouldn't do
that, senator, given what I understand is the governor's interest
in this issue right now.
SENATOR HALFORD: I would very much like an estimate of those costs
if you would get that back to us. I think it only cost, you know,
two hours and $8 apiece for the ones done by volunteers, and if
this could be done for 10 times that, it would still be a bargain
for the future of the state of Alaska I would think.
COMMISSIONER SHIVELY: Well, Mr. Chairman and Senator Halford, I
think that what they filed was largely our work, if I understand
it, and which many of them had participated in.
CO-CHAIRMAN OGAN: On that point, commissioner, is there any reason
why a citizen's group had to pick up that ball and run with it?
COMMISSIONER SHIVELY: They felt it was necessary to do and we
hadn't gotten there, and that's all I can tell you.
CO-CHAIRMAN OGAN: Is that a matter of an internal policy call from
the third floor or groups that are influencing the third floor?
COMMISSIONER SHIVELY: No, I think it's more a matter of the fact
of different priorities within the department and where we place
our workload.
CO-CHAIRMAN OGAN: Thank you, sir. Any other questions of the
commissioner? Hearing none, last, but certainly not least, the
attorney general of the state of Alaska, Bruce Botelho.
BRUCE M. BOTELHO, ATTORNEY GENERAL, DEPARTMENT OF LAW: Thank you,
Mr. Chairman. My name is Bruce Botelho, attorney general. Before
I get into my more prepared remarks I would comment that this has
been a very impressive hearing in terms of the caliber of people
you brought beginning with Mike Dalton, who more than any other
person has been associated with the RS 2477 issue in this state,
and ending in terms of the private participants with Barbara Hjelle
with whom my staff has worked, and, in particular, Elizabeth Barry
who is the assistant attorney general who heads our Natural
Resources Section in Anchorage and which includes our statehood
defense component. Ms. Barry is in the room here today and she is
certainly available to elaborate on questions that I'm unable to
answer. But I would note that both Ms. Hjelle and Ms. Barry have
worked together in Washington, D.C., not only in testifying against
efforts by the Department of Interior to unduly restrict the
vindication of state rights of RS 2477, but also to work with the
respective delegations of Utah and Alaska in fashioning some
congressional solution.
I think that as I've heard the testimony today there's probably
been three or four questions that are overriding which I will,
during the course of comments, try to address, but I think probably
the beginning point relates back to Chairman Hudson's comments
about the process, whether we have to litigate each and every one
of these issues, and where does that take place.
As I think others have amply made clear, the RS 2477 statute was
one first enacted in 1866 and it was repealed in 1976, but with the
understanding that it did not in any way extinguish rights-of-way,
construction of highways that had taken place prior to that date.
The Department of Interior did adopt regulations, and in addition,
in 1988, most importantly I think in terms of what the current
secretary of Interior has done, Secretary Hodel adopted in December
of 1988 a policy which was the result of extensive negotiations
between Alaska and other western states about how those regulations
would be interpreted in Interior and taking into account issues
that were of particular concern to Alaska. And I think one most
importantly highlighted was the definition of what constituted a
highway.
Early on in the Clinton Administration, beginning in about July of
1993, Secretary Babbitt first indicated his intention to move on
regulations within the Department of Interior to bring RS 2477
under control by which he meant that regulations would have the
effect of restricting the definition of "construction"; the
definition of "highway" would attempt to impose a very specific
process for having the RS 2477 adjudicated; and perhaps most
importantly, from my perspective, trying to do a cutoff date after
which no more RS 2477 rights-of way could be established.
The consequence -- well, the next step elaborated on was his
follow-through on that announced intention which was to adopt
regulations, which took place in 1994. And that led to actions by
Congress in 1995 and 1996 where our staff, the Administration,
returned to Washington, D.C. to work with our delegation in
ultimately getting language which prohibited the secretary from
implementing any such regulations, and we thought obviously a very
successful effort until 15 days ago when the secretary announced a
policy which in many respects attempts to reimpose by this policy
statement what he could not do in the regulatory process that he
already initiated and had blocked by Congress.
The reaction of this Administration and this, I think, directly
relates to one of Doug Blankenship's concerns: what is the policy,
what is the position of the Knowles Administration with respect to
the action of the secretary. I think I can make it fairly plain by
a statement which the Governor included in his address in Fairbanks
the day before at a combined meeting of the Chamber of Commerce and
the Fairbanks Rotary, and that is as follows:
"We will fight this ill-advised policy on three fronts:
first, I've directed the attorney general to pursue all our
legal options in halting implementation of the secretary's new
policy; second, we will present test cases that have broad
Alaska support to administratively challenge the secretary's
new policy to the Department of Interior; and third, we will
work with our congressional delegation to resolve the issue
legislatively."
The Governor's three-prong approach, I think, brings into focus the
fact that there are two fundamental avenues by which we in
litigation may achieve a final determination on our RS 2477 rights-
of way. The first is in the courts, and those can happen both in
federal and state, although, again, if it implicates federal lands
currently held by the federal government, those must be done in
federal court though we have RS 2477 claims that do not run over
current federal lands, but make it a variety of private or quasi
governmental instrumentalities. The second avenue, and it's the
one to which Secretary Babbitt's latest action most applies, and
that's to do it administratively in front of the Department of
Interior.
Now some people, including Babbitt, would suggest that we shouldn't
be very concerned about this particular policy because it really
only applies to the Department of Interior, and, in fact, there's
nothing new. We have a moratorium in the department and therefore
no one is being blocked in the vindication of their rights that
they weren't a day before this new policy. What troubles us most
is in the language of the policy itself is the fact that we expect
to see this policy reflected in the advocacy by the federal
government trying to persuade federal courts, in particular, that
this represents the views of the Department of Interior for which
deference should be given. And so, while it has been portrayed by
the secretary as rather an innocuous confirmation of previous
policy that should not have any adverse effect on any party, our
concern again is that it will be used to buy the federal government
in arguing its position in cases that are brought in court.
We specifically intend, as the Governor has announced, to try and
challenge that policy by bringing cases directly to the secretary
of Interior in the administrative process so that we can directly
challenge that policy. But we also intend to file, and we expect
to be doing that within the month, test cases primarily in federal
court as an alternative.
Let me talk next about what we have been doing in an ongoing way.
There has reference to the case Schultz versus the United States,
which was originally decided in the Ninth Circuit in 1993, which,
however, was then on reconsideration and that opinion was withdrawn
and a new one was issued which denied a right-of-way to a person
trying to cross at Fort Wainwright where a claim of RS 2477 right-
of way had been asserted. The state of Alaska had participated as
an amicus in supporting Mr. Schultz in his claim, and in speaking
with Mr. Schultz's counsel, it is their intent at this point to
petition the U.S. Supreme for assert in this latest decision. That
will not happen until there is a final technicality in that Ninth
Circuit case to bring it to a closure so the time will run, and we
have committed to participate as an amicus in that case in seeking
the petition for assert and to solicit assistance from other states
in joining our amicus effort.
Mr. Blankenship made reference to the Puttycomb and Fitzgerald
case. What he did not note was that the state of Alaska had joined
as an amicus on Ms. Fitzgerald's behalf before Mr. Blankenship
became involved in the case. And again, we think we made a
significant contribution in outlining the state's view about RS
2477.
The third case that we have ongoing right now involves a Chickaloon
road case in which there has been an assertion that our right-of-
way is over Indian country and that we do not have a right of
access. We have asserted, among other things, RS 2477 as a basis
for access that is nearing briefing on the merits, and I would
expect full argument and a decision sometime during the course of
this year.
Three years ago in the process that has been discussed here in
terms of whittling down the 500 routes where we felt that there was
great documentation, we asserted or gave notice, and the federal
courts began using the second mechanism, setting the administrative
process, the court process, eleven particular routes that we
thought were most promising to establish certain principles of RS
2477 rights in the state. We have gone back -- we've actually
prepared complaints in a couple of those, we have not filed. We've
gone back through and we've discovered several what I would
describe as problematic issues. For example, two of the eleven,
actually as it turns out, occur entirely, exclusively on state
land, and it makes absolutely no sense to go into federal court to
establish that we have a right-of-way. Several others cross
significant numbers of mining claims, and I guess to be very
candid, we're not interested in engaging in a lot of battles with
Alaskans over RS 2477. We're trying to establish some principles
in a very measured way that has us focusing on the federal
defendants and not looking primarily at private targets.
So though we will invariably be asserting them in many instances
where private parties are certainly a part of the litigation -- I
think using the example that Senator Halford gave -- it actually is
a very frequent one when you're talking about a distance of 20, 30,
50, 60 miles that you are actually covering, many different land
patterns, and many different potential defendants.
Another issue that I think is appropriately raised and that is the
statute of limitations and do we have a major problem. And I think
Mr. Blankenship did a good job in expressing concern, particularly
with the conservation system units: is there some statute of
limitations running. We've spent a great deal of time looking at
this. We were quite confident that, in fact, the management plans
are not of that caliber, of that character to have triggered a
conclusion that the federal government has asserted a claim adverse
to the RS 2477 right-of-way. But it will be one of the issues that
we will first be shooting out of the box again to test.
I think Ms. Hjelle's particular remark, and I think reinforced by
Commissioner Shively, is, again, recognition. That the 12-year
statute of limitations only is a statute with regard to the ability
of the state to assert or to obtain quiet title. It does not in
any way affect the underlying right-of-way itself. It does not in
any way extinguish it. What it does do is put people at peril in
exercising the right-of-way against, in most instances, a federal
defendant who might well claim that that assertion is not well
founded.
Let me take a quick look here to see if I've covered most of the
topics here. Let me, Mr. Chairman, at this point maybe take a
pause and allow you to direct questions, or, if it might also be
appropriate, to ask Ms. Barry at the table if there are more
specific or technical legal questions to ask.
CO-CHAIRMAN OGAN: I think Senator Halford has a question to ask.
SENATOR HALFORD: I think initially the question I have is the same
question I asked Commissioner Shively. Would the Department of Law
support recording all of those that we now have researched in their
respective recording districts so that they are recorded in that
fashion and filing all of the ones that are researched adequately,
that haven't been filed by the Outdoor Council?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I would support that. I
think my only reservation is to not create the allusion that we
have achieved some major legal status by that activity.
SENATOR HALFORD: If they're filed in the recording district, at
least there is notification to contrary land owners and to the
public that there is something here. You know, it may not be
finally determined at the federal level, but if it is the state's
position that these are a prior grant and then they are a prior
existing right, then there is an obligation that a buyer of
property or anyone else be notified of that, and the recording at
least does that.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I do not dispute that. I
think that point is well taken. My only point again is not to lull
the public into a false sense of security that by having taken that
initial step we have somehow adequately asserted the claim, because
ultimately that determination will be done case by case. I would
expect that we will first have to see a pattern of litigation which
will lead the Department of Interior to generalize about whatever
principles of law are ultimately established.
SENATOR HALFORD: But isn't this a matter of if we assert and if we
use them, they have to sue us? If we don't assert them, if we
don't use them, then we have to sue them to quiet title. I mean,
it still seems that the first step is record them, treat them as
they are ours, as we believe them to be, and go forward and make
them sue us.
ATTORNEY GENERAL BOTELHO: Again, Mr. Chairman, I think the two
courses of action suggested there are both legally correct answers.
Again, I think the concern that has to be out there for a person,
whether it's a private individual, a corporation or the state
itself by asserting and having it then challenged not only by the
Department of Interior but perhaps by other federal agencies, one
runs the risk of Corps of Engineers violations. It is a risky
business, I think, for an individual to put his or her capital at
risk, their livelihood at risk, and it's not, in my view, going to
be the case that the state will intervene in every RS 2477 case.
There may be situations where we would have a bad actor, and we've
had in our state's history situations where people have taken
bulldozers straight through streams in trying to assert right-of-
way claims, and the state should not in every instance be in the
position of having to endorse that activity, even if it believes
that the right-of-way is properly asserted in the sense that it
belongs to us.
SENATOR HALFORD: Well, we can defend them with regard to RS 2477
while in turn we prosecute them for the abuse of the RS 2477.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, we certainly could. I
think that hard issue...
SENATOR HALFORD: At least your defending them from the federal
government in the third parties.
ATTORNEY GENERAL BOTELHO: It's a hard issue, I think, to explain
to the public, and I think most importantly, obviously we don't
want to be in the position of being crosswise with most of our
citizens. That's why is strikes me that one would take a more
measured approach. There may be circumstances where the kind of
aggressive step being taken in Utah would be appropriate. I'm not
prepared to say that that should be foreclosed altogether.
SENATOR HALFORD: Mr. Chairman, I have a question for Elizabeth
Barry. The question comes out of your testimony in Congress on
March 14, 1996, and I understand that we have to tailor our
comments a little bit to the audience. One of the questions that
I asked Commissioner Shively and I was concerned with is that we
treat everything equally. One of the comments was "if access
across Native owned and other private land is determined to be
necessary through a process involving public review, right-of-way
authority other than the application of RS 2477 rights-of-way will
be utilized if available." And I wonder what you meant by that, I
mean, is there going to be a different standard applied to private
lands than there is to federal lands, or is that what that meant?
ELIZABETH BARRY, ASSISTANT ATTORNEY GENERAL, NATURAL RESOURCES
SECTION, DEPARTMENT OF LAW: Mr. Chairman, Senator Halford. My
understanding of current policy in the Administration is, no, there
will not be a different standard applied, but I would have to...
SENATE TAPE 97-10, SIDE B
MS. BARRY: ...Commissioner of DNR and the Attorney General for
further [indisc.].
SENATOR HALFORD : I guess, I would ask what you meant by that
statement.
MS. BARRY: There have certainly been discussions regarding whether
or not there, when there is other right-of-way authority available
whether that should be used rather than getting into a RS 2477
battle. For instance, there are sometimes 17B easements already
reserved across Native Corporation land. It could be much simpler
to use an existing 17B easement for access than to get into a
protracted court battle about an RS 2477.
SENATOR HALFORD : I guess my concern is that we treat all
landowners equally. That's unknown and if there is available,
workable alternative access that is equally economic, you know,
that may work and RS 2477 obviously. And Commissioner Shively has
got the best example in Red Dog. You know, you try, you work, you
go through the process, it doesn't work. You have to go back to
Congress and get a whole special provision.
COMMISSIONER SHIVELY: Well, Mr. Chairman. The problem is that not
all land is the same, so you can't treat them all the same. State
land, we don't have to do anything. Native lands, there are other
alternatives which don't exist on federal lands. And federal
lands, all that exists is a process. On Native lands there exists
actual dedications of rights-of-way. And so, it may be in order
particularly when there are disputes, because ultimately if the
landowner says its not ours and wants to fight this, we are gonna
have to prove every single one of these by litigation. There may
be a quicker way to get to the access we need than through the RS
2477. And I think that was the point of discussing a different
approach to try to get to the same end.
ATTORNEY GENERAL BOTELHO : One other aspect of it as well, Mr.
Chairman, is recognizing that not only is not all land the same,
not all landowners are either. And again, I would distinguish
between the federal government and others, in the sense that there
is a mechanism for dealing with this adversely with the federal
government in the court or the administrative process to the extent
that they contest our assertion. But we also have in mind that we
would look to work with all landowners as we're developing rights-
of-way to try and resolve short of having to go to court. And I,
I think that is also a part of the tenor of this: is to be able to
look not only at alternatives in the sense of other legal
mechanisms, but to try and resolve short of litigation with
landowners the ability to access those routes.
SENATOR HALFORD : Well, as long as the basic premise is that
everyone is treated equally. I think that's the concern that I had
and it was a concern that was brought to me with regard to
different classifications of land. And I realize that when you get
into 10 different mining claims and - you got one route, you got 10
different mining claims, three different Native Corporations, two
different federal units, and you're gonna fight with all of them.
You may not choose to fight that one first.
ATTORNEY GENERAL BOTELHO: Exactly, and again that's one of the
highest priorities identified of the 11, actually cross 47 mining
claims. And its just not in the State's best interest, in my
judgement, to be suing 47 holders of claims in order to assert this
particular right-of-way as being one of the first out of the chute.
SENATOR HALFORD : From a practical point of view, I absolutely
agree. But from an ideologically point of view, the 47 mining
claims don't own the right-of-way. The State of Alaska does on
behalf of all the people.
ATTORNEY GENERAL BOTELHO: I understand Mr. Chairman...[indisc.].
REPRESENTATIVE HUDSON: Bruce, obviously on all State property we
pretty much control that and we have property rights there. Are we
asserting any property rights on the federal RS 2477 right-of-way
lands? I mean, if we have property rights, perhaps if somebody
needed to put up a shelter or something like that. Then we would
be able to authorize that. Do we have property rights on these
trails?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, if I might defer to Ms.
Barry in terms of uses that aren't directly right-of-way uses.
MS. BARRY: Mr. Chairman, Representative Hudson, I don't believe
there's a clear cut answer to that question. You're going to have
to look at what the scope and the width of the right-of-way is.
Just within the Alaska context, we've had cases where [indisc.] RS
2477s, but rights-of-way are set aside for road purposes we've not
been allowed to [indisc.] transition lines, for instance. So, I
think that's going to be an issue that will have to be determined
in the courts ultimately on what rights we have besides, if any,
besides getting from point A to point B.
REPRESENTATIVE HUDSON: And my second question, if I might? Mr.
Attorney General, you mentioned that you had three essential
elements and you've described those: the legal challenging
Congressional, and the Governor had mentioned this. What if any,
I asked Ms. Hjelle, if they had any Congressional solutions or help
that they might recommend. Have you identified some specific
action that we might ask of our Congressional delegation?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, again Ms. Barry has worked
closely with the delegation, in particular Senator Murkowski, on
this issue. And perhaps, I could ask her again to describe the
efforts in the past. Obviously, there's been a new suggestion
today which Ms. Hjelle had raised as a possibility of something we
have not discussed before.
MS. BARRY : Mr. Chairman, in the last Congress there were bills
introduced in both the House and the Senate that would have put the
black letter federal law that state law control RS 2477 grants.
And that allowed for the more casual type of use that prevailed
over a lot of Alaska's highways, in terms of less restrictive
definitions of construction and highway. Neither of those bills
passed and instead, there was the moratorium put in place only the
federal regulations taking effect. My understanding is that
nothing has yet been introduced in this Congress, but they just got
started a few weeks ago. Things are moving pretty slowly there, at
this point.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, if it would be helpful, I
think we'd be willing to provide Representative Hudson a copy of
the Legislative proposals that were circulated.
REPRESENTATIVE HUDSON: I would appreciate that, I'm sure both
chairman would appreciate a copy.
CO-CHAIRMAN OGAN : Well, I find I'm next on the list so I have a
question for you. If a private person uses a 2477 right-of-way
where there's no state regulations like on a national wildlife
refuge; would the state intervene on behalf of that individual if
he got in trouble with the feds?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, let me answer it this way.
Conceptually, the answer would be - we would do so. Having said
that, I would look at the facts of any given situation. It's quite
clear from my earlier testimony that we have actually supported
private individuals who have asserted RS 2477 rights-of-way in the
state, in the courts of both the State of Alaska and the Federal
Courts. And so, as a matter of principle, we are not adverse to
lending the weight of the State of Alaska. Whether we would do it
in every case, I think would depend on the circumstances, what
legal principles would be advanced in the case, what are the
resources available at that particular time and again, the good
faith efforts of the individual. So that again we're not in a
situation where we have a black sheep, for lack of a better way of
describing it. But in principle, the State of Alaska would,
subject to the kind of concerns I've expressed.
CO-CHAIRMAN OGAN: I think I have one other question. At a Joint
Senate/House State Affairs Committee meeting during the interim,
between the first and second half of the session of the 18th or the
19th Legislature, you stated. There was some, quite a bit of
concern on the part of the committee members that there was only a
very small amount of these right-of-way assertions being litigated.
And you stated that, it wasn't that big of a priority, that you had
- your first priority was the protecting children which is a good
cause. Do I see that there's, can we from your testimony and
testimony of Commissioner Shively - that the Administration has now
shifted that position. That is now a much bigger priority with
them, now that Secretary Babbitt has taken the action he has.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think it is fair to say
that the action of the Secretary of Interior has created an urgency
on RS 2477. And not simply from a political sense, but our concern
about its possible impact on litigation. That has really propelled
it, obviously, to be a major concern of the Governor such that he
has put his credibility on the line on this issues. So, I would
say that there is a heightened attention statewide of the issue.
And the Governor intends to make sure the State of Alaska is a
leader on the issue.
CO-CHAIRMAN OGAN: Well, as a comment, I welcome that action. I
gotta tell, to be quite honest, I see a bit of a trend of the
Administration to take - not take a proactive stance on this and
other issues and then when we get in trouble. But I do welcome the
departure from the less proactive stance. And there was a question
from Senator Lincoln, the Senator Halford, and then I think we
should probably wrap it up.
SENATOR LINCOLN : I think it pulls very nicely to what your last
question was and that is if we do start to litigate, and it sounds
like we may. And we've got 500 documented parcels and more to come
that it seems to me that if we're going to - if Administration is
going to have this as a priority, then we are going to have to
budget accordingly. I don't think that we can say that this is
something that Administration better get on and find that we're
gonna cut the budget or that you have to then litigate [indisc.]
utilize the budget, your normal budget. I would, I guess I would
ask what kind of a plan that you see over time and are you going to
then come back to the Finance Committee and ask for funding to
litigate the RS 2477s.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, Senator Lincoln. We have
prepared a five year schedule of alternative scenarios. The
Legislature has funded our work in RS 2477. And we've anticipated
that in terms of our budget planning. So, I'd be delighted to
share that with you and I don't have that information at hand.
CO-CHAIRMAN OGAN: And Senator Halford.
SENATOR HALFORD : Just a question from the opposite direction.
With regard to the vacation of RS 2477s, I know that DOT in actual
construction projects sometimes vacates pieces of an RS 2477 road
in the same sense that they also take access and they sometimes
trade with an adjacent landowner to straighten out a curve or
something else. But other than those kinds of cases, are there any
cases where the state has vacated an RS 2477 and if so, how have
they done it?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, that question I believe
would be most appropriately directed to Commissioner Shively.
[Indisc.]
COMMISSIONER SHIVELY: Chairman and Senator Halford. I think
largely the RS 2477s that we have vacated are section line
easements which people believe are RS 2477s in communities. We
have not to my knowledge vacated any of the RS 2477s that we've
identified here, but and I don't know; Nancy Welch, if you're still
on, whether you have anymore information on that question than
that.
[An unidentified person via teleconference stated that Ms. Welch
had left the Fairbanks office.]
SENATOR HALFORD : I would like a follow-up on that question just to
know what has been vacated. Again, not the - I mean, I know that
DOT makes, you know adjustments back and forth and when they
sometimes get something else they back away from both the PLO
easements and the RS 2477 easements when they get the other side
and finally build something to specification.
COMMISSIONER SHIVELY: Mr. Chairman and Senator Halford. As I
said, the ones that I've been aware of are all section line
easements in developed communities where we have alternative
transportation.
SENATOR HALFORD : But they're actually RS 2477s and section line
easements.
COMMISSIONER SHIVELY: Well, most people believe. I think that
there is a theory that a section line easement is an RS 2477
easement, it is a different kind of RS. It's not what you think
of. I mean most people think of, when they talk about RS 2477s as
the mining trail that people used for years, but it's my
understanding that in the territorial legislation that accepted
reservation of RS 2477s and because of the way that was written,
that section line easements are considered under the same law.
Bruce, you may or Elizabeth maybe.
ATTORNEY GENERAL BOTELHO: Nodding our heads in agreement.
SENATOR HALFORD : I would like a list of the RS 2477s that are
section line easements that have been vacated and the process by
which they're vacated.
CO-CHAIRMAN OGAN: And would you provide that to the House
Resources Committee as well. Well, if there are no other
questions. I'd like to thank everyone that participated today. I
think we had a very in-depth and informative discussion of the
issue. And thank you for enduring the long meeting and for your
time out of your busy schedules, all of you. And with that this
meeting is adjourned (3:50 p.m.).
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