01/24/2007 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB87 | |
| HB25 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 25 | TELECONFERENCED | |
| *+ | HB 87 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
January 24, 2007
1:01 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Co-Chair
Representative Craig Johnson, Co-Chair
Representative Bob Roses
Representative Paul Seaton
Representative Peggy Wilson
Representative Bryce Edgmon
Representative David Guttenberg
Representative Scott Kawasaki
MEMBERS ABSENT
Representative Vic Kohring
COMMITTEE CALENDAR
HOUSE BILL NO. 87
"An Act reestablishing the Citizens' Advisory Commission on
Federal Management Areas in Alaska; and providing for an
effective date."
- HEARD AND HELD
HOUSE BILL NO. 25
"An Act relating to landowners' immunity for allowing use of
land without charge for a recreational activity; relating to
landowners' liability where landowner conduct involves gross
negligence or reckless or intentional misconduct; relating to
claims of adverse possession and prescriptive easements, or
similar claims; and providing for an effective date."
- MOVED HB 25 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 87
SHORT TITLE: CITIZEN ADVISORY COMM ON FEDERAL AREAS
SPONSOR(s): REPRESENTATIVE(s) KELLY
01/16/07 (H) PREFILE RELEASED 1/12/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) RES, FIN
01/24/07 (H) RES AT 1:00 PM CAPITOL 124
BILL: HB 25
SHORT TITLE: RECREATIONAL LAND USE LIABILITY/ADV. POSS
SPONSOR(s): REPRESENTATIVE(s) SEATON, WILSON
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) RES, JUD
01/24/07 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE MIKE KELLY
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 87.
SUE STANCLIFF, Staff
to Representative Mike Kelly
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding HB 87.
TINA CUNNING, Special Assistant
State/Federal Issues
Office of the Commissioner
Alaska Department of Fish & Game
Anchorage, Alaska
POSITION STATEMENT: Answered questions regarding HB 87.
DEL ACKELS
Fairbanks, Alaska
POSITION STATEMENT: Speaking as a former member of the
Citizens' Advisory Commission on Federal Management Areas in
Alaska supported HB 87.
RICKY GEASE, Executive Director
Kenai River Sportfishing Association
Soldotna, Alaska
POSITION STATEMENT: Supported HB 87 and HB 25.
DAVE BRANN
Kachemak Nordic Ski Club
Homer, Alaska
POSITION STATEMENT: Supported HB 25.
KARYN NOYES, Conservation Director
Kachemak Heritage Land Trust
Homer, Alaska
POSITION STATEMENT: Supported HB 25.
LINDSAY WINKLER
Homer Soil & Water Conservation District
Alaska Association of Conservation Districts
Homer, Alaska
POSITION STATEMENT: Supported HB 25.
JACK MOSBY
Anchorage, Alaska
POSITION STATEMENT: Speaking as a past president of Alaska
Trails supported HB 25.
ANNE MARIE HOLEN, Assistant
to the City Manager
City of Homer
Homer, Alaska
POSITION STATEMENT: Supported HB 25.
JULIE ENGEBRETSEN
Anchor Point, Alaska
POSITION STATEMENT: Supported HB 25.
MILLIE MARTIN
Homer, Alaska
POSITION STATEMENT: Supported HB 25.
ROBERTA HIGHLAND
Homer, Alaska
POSITION STATEMENT: Supported HB 25.
ACTION NARRATIVE
CO-CHAIR CRAIG JOHNSON called the House Resources Standing
Committee meeting to order at 1:01:35 PM. Representatives
Johnson, Gatto, Wilson, Roses, Guttenberg, Edgmon, and Kawasaki
were present at the call to order. Representative Seaton
arrived as the meeting was in progress.
CO-CHAIR JOHNSON recognized that the House Resources Committee
conducts its meetings in the Ramona Barnes Resource Room. He
expressed his hope that [committee members] would rise to her
level of professionalism.
HB 87 - CITIZEN ADVISORY COMM ON FEDERAL AREAS
1:03:24 PM
CO-CHAIR JOHNSON announced that the first order of business
would be HOUSE BILL NO. 87, "An Act reestablishing the Citizens'
Advisory Commission on Federal Management Areas in Alaska; and
providing for an effective date."
1:03:49 PM
REPRESENTATIVE MIKE KELLY, Alaska State Legislature, sponsor of
HB 87, explained he would like to reestablish the Citizens'
Advisory Commission on Federal Areas (CACFA) because it "served
us well when it was in place." He pointed out that in the past
when people had problems with [federal government land
managers], CACFA was an effective way for people to communicate
with the state and get help when appropriate. Representative
Kelly expressed concern that currently citizens must go directly
through an appeal or a "fix the squawks process" that is
strictly on the federal side and it does not work very well.
1:05:14 PM
REPRESENTATIVE GUTTENBERG requested examples, both good and bad,
of how CACFA worked previously.
REPRESENTATIVE KELLY provided an example of trappers north of
the Yukon who must deal with different federal refuge managers
and management styles - from a style of "let them do what
they've been doing for a hundred years" to a micro-management
style of "this is where you can park your truck and nowhere
else." The commission would be a way for citizens to come
before a body to speak about the problems they are having. He
pointed out that legislators are not part of any official panel
that can actually have some affect.
1:07:11 PM
REPRESENTATIVE WILSON inquired as to why [CACFA] was disbanded.
REPRESENTATIVE KELLY said that Governor Knowles defunded CACFA.
He expressed his belief that federal managers currently have an
advantage over Alaska's citizens and that this is not what he
heard in the promises made as part of the Alaska National
Interest Lands Conservation Act (ANILCA).
1:08:01 PM
REPRESENTATIVE SEATON inquired as to how local fish and game
advisory committees interacted with the previous [CACFA] and
whether they would integrate their activities [if CACFA was
reestablished].
REPRESENTATIVE KELLY pointed out that this is mostly about what
the [federal government] does with regard to the management of
[federal] conservation units. He then deferred to his staff for
further response.
REPRESENTATIVE SEATON asked whether [CACFA] would interact with,
or replace, or consider action related to the new federal
subsistence regulations.
REPRESENTATIVE KELLY explained that, just like the advisory
boards and the game boards, CACFA would interact with and have
access to the federal advisory boards as part of the
commission's ability to work with and problem solve. In further
response to Representative Seaton, Representative Kelly affirmed
that this would be the case depending upon the particular
[conservation] unit. For instance, if someone complained about
a difficulty he/she was having, CACFA would be able to try
resolving the difficulty, regardless of whether [federal or
state managers] control that particular area.
1:10:19 PM
CO-CHAIR GATTO, referring to the list of previous commission
members in CACFA's 1997 Annual Report, inquired as to whether
there is a connection between those names and recommendations
for new commission members.
REPRESENTATIVE KELLY responded, no. Although some of the former
members of CACFA might be good candidates, those names merely
represent the folks who used to be on the commission. He
stressed that there was no attempt in the bill to influence the
commission's make-up.
1:11:36 PM
CO-CHAIR GATTO pointed out that the fiscal note for HB 87 is
indeterminate. He then related his assumption that commission
members would only receive $400 a day per diem and $400 a day
during travel, plus travel expenses, but no salaries or
retirement.
1:11:55 PM
SUE STANCLIFF, Staff to Representative Mike Kelly, Alaska State
Legislature, confirmed that the commission members are subject
to the per diem and travel reimbursements, but not to the Alaska
Public Employees' Retirement System or Teachers' Retirement
System.
1:12:28 PM
REPRESENTATIVE GUTTENBERG noted his support of the requirement
that commission members be representative of the diversity of
users and uses on federal land in the state. However, previous
commission members were primarily urban. Therefore, he asked
how the diversity requirement was defined for the original
members of CACFA.
REPRESENTATIVE KELLY declined to comment because he did not know
most of the previous members. He noted it would be up to the
governor and the legislature to ensure the members reflect the
appropriate users and uses.
1:14:18 PM
CO-CHAIR GATTO directed attention to the language on page 2,
line 13, subsection (e), that says: "who are not members of the
legislature." Since three of the commissioners listed in
CACFA's 1997 Annual Report were past members of the legislature,
he inquired as to why it was desirable to allow former
legislators to be commission members but not currently serving
legislators.
1:15:47 PM
MS. STANCLIFF clarified that current legislators are appointed
to the commission as specified on page 2, lines 3-8, subsections
(d) and (e): "The speaker of the house will appoint two members
from the house..." and "The president of the senate shall
appoint two members from the membership of the state senate...."
MS. STANCLIFF then presented the history of the original CACFA
by paraphrasing from the following written remarks [original
punctuation provided]:
The Citizens' Advisory Commission on Federal Areas was
established in 1981 by the Alaska State Legislature to
provide assistance to the citizens of Alaska who are
affected by the management of federal lands within the
state.
The Commission was repealed in 1998 after Governor
Knowles removed funding even-though the legislature
approved the sunset extension to 2003.
MS. STANCLIFF pointed out that HB 87 is different than the
legislation creating the original CACFA in that it removes the
sunset and takes the notion away that CACFA is a temporary
commission. Because the issues that CACFA will be addressing
will be ongoing for decades to come, HB 87 establishes CACFA as
a permanent commission.
MS. STANCLIFF then continued with the original CACFA's history
by paraphrasing from the following written remarks [original
punctuation provided]:
The need for the Commission arose primarily from the
passage of the Alaska National Interest Lands
Conservation Act (ANILCA) in 1980.
The changes in land status which resulted from the
creation and expansion of conservation system units
increased the potential for conflict between Alaskans'
traditional uses of these federal lands and the
mandates in ANILCA.
The commission is charged with the responsibility of
researching issues and determining the impact of
federal statutes, regulations and management decisions
on the citizens of Alaska in order to minimize or
resolve potential conflicts.
The commission had been effective in assuring that
land management decisions are consistent with both
statutory language and Congressional intent, and in
protecting the interests of Alaska's citizens.
It was the intent of the Twelfth Legislature that the
commissioners should be Alaskans directly affected and
impacted by the establishment, operation and
management of federal land in Alaska. To achieve this
objective it was believed that the commissioners of
the Citizens' Advisory Commission should not be state
officials such as commissioners or the departments'
top staff. Further intent stated that the Governor,
Speaker of the House and President of the Senate
appoint non-governmental related persons to the
maximum extent possible.
1:19:37 PM
MS. STANCLIFF noted that CACFA was originally established in
Title 41 and upon review she determined that is where the CACFA
provisions should be placed since Title 41 deals with public
resources. Ms. Stancliff then called attention to the CACFA
1997 Annual Report being referenced by committee members. She
noted it was included in the committee's information packet to
provide an idea of what [CACFA] did and the decisions the
commission made.
1:20:31 PM
REPRESENTATIVE ROSES inquired as to what issues led to the
belief that CACFA needed to be reinstated.
MS. STANCLIFF explained that, in [Representative Kelly's] office
alone, several people have called with issues regarding mining,
trapping, fishing, hunting, and recreating. In fact, because of
the level of harassment from federal officials, people have left
their trap lines or removed themselves from the area. One case
was taken to court and won, but it still did not deter [federal
officials]. She informed the committee of a case involving a
mining claim in the 40 Mile area where an R.S. 2477 crosses a
wild and scenic river corridor, yet no access is provided across
the river. Ms. Stancliff reiterated the need for there to be
"someone who could advocate for the public" because state
legislative offices do not have the expertise to intercede in
cases involving federal laws.
1:22:40 PM
REPRESENTATIVE WILSON asked if there would be a way to provide
balance so that both rural and urban people were on the
commission.
MS. STANCLIFF pointed out that the qualifications section of the
statute requires a diversity of users and the diversity of the
users are statewide. In further response to Representative
Wilson, Ms. Stancliff highlighted that the previous members of
CACFA from Fairbanks were probably like Representative Kelly who
hunts and fishes in the northern areas of Alaska such as the
Nowitna Refuge. Therefore, although such members reside in
Fairbanks, they would have been representative of the northern
portion of the state.
1:24:41 PM
CO-CHAIR GATTO questioned whether it is legal for HB 87 to make
reference to statutes that had been repealed.
MS. STANCLIFF emphasized that that is why the bill's title says
"reestablish" and assured the committee that [Legislative Legal
Services] had been consulted and reference to repealed statutes
is fine.
1:26:39 PM
REPRESENTATIVE SEATON advised that dealing with the renewal of
commissions is the legislature's way of making sure the
commissions are being effective. He then asked if there is any
listing of commissions with no sunset dates or is CACFA going to
be unique.
MS. STANCLIFF responded that she did not know of any other
commissions or boards without sunset dates. However, she opined
that there will forever be conflicts in Alaska between state
land holders and federal lands. Furthermore, the 2009 date for
land exchanges makes this all the more critical. This
legislation would provide the public with a place to go, an
ombudsman for the public.
REPRESENTATIVE SEATON commented that he views sunset dates as a
way for the legislature to ensure a commission's effectiveness
and make any needed changes. He indicated that he is more
comfortable with sunset dates.
1:29:35 PM
REPRESENTATIVE EDGMON observed that HB 87's fiscal note analysis
says the "commission was housed in the Department of Natural
Resources (DNR) from FY 1987 through FY 1999," but that page 1
of the bill, line 8, subsection (b) says "The commission is an
advisory agency of the executive branch of the state but is not
allocated to a principal department...." He asked if this is
consistent with the previous CACFA.
MS. STANCLIFF affirmed that it is consistent. She related her
understanding was that the previous commission was under the
governor's office and then moved to the physical location of the
Department of Natural Resources' office in Fairbanks.
1:30:39 PM
REPRESENTATIVE EDGMON referred to the various requirements for
commission appointments, member qualifications, and terms of
members outlined on page 2, lines 2-21. He expressed concern
that HB 87's current structure is a hodgepodge of appointments
that creates a lot of coming and going. Since continuity on
boards is important, he asked if the sponsor could tighten up
the commission's composition, while still representing the
diversity it was intended to represent.
MS. STANCLIFF noted that the language [to reestablish CACFA] was
taken as it was written when CACFA was repealed. Appointments
of members of the legislature are not overlapping, they are only
a four-year term. Diversity would be ensured through
appointments made by the governor and the legislature. Ms.
Stancliff disagreed with the characterization that the CACFA
membership was a "hodgepodge," stating it was through careful
consideration that a legislator not serve for longer than he/she
is in office and not have an undue impact on the commission.
1:33:13 PM
REPRESENTATIVE EDGMON said he did not disagree with Ms.
Stancliff, but pointed out the list of previous commission
members had no one from Southwest Alaska which is one of the
larger impacted areas.
CO-CHAIR GATTO noted his agreement with Representative Edgmon
that previous commission members did not appear to represent a
cross-section of the state.
REPRESENTATIVE WILSON noted that page 1, line 14, subsection (b)
specifies that CACFA "shall represent each judicial district".
However, she pointed out that some of those districts are fairly
large.
1:35:03 PM
REPRESENTATIVE ROSES directed attention to page 4, line 6,
regarding lawsuit. He asked if reestablishing CACFA could push
the burden on the state to file suit on behalf of an individual
who was dissatisfied with results obtained by the commission.
In other words, does it put the state in the position of being
sued by the individual, or does it become the state's
responsibility to handle on behalf of the citizens of Alaska.
MS. STANCLIFF emphasized that the commission has the authority
to bring a lawsuit to the attorney general (AG) because the
constitution requires the state to protect and defend its
citizens. The authority to sue is granted because otherwise
there is no real ability to stand up for the citizens.
REPRESENTATIVE ROSES clarified that his question is whether
total responsibility is put on the state to file suit on behalf
of a disenfranchised individual. He further asked if the state
is put in a position of being sued by the disenfranchised
individual because the state refused to file the suit.
MS. STANCLIFF deferred to Ms. Cunning.
1:37:15 PM
TINA CUNNING, Special Assistant, State/Federal Issues, Office of
the Commissioner, Alaska Department of Fish & Game, recalled
that there was only one case actually taken up by the AG into
the federal court system on behalf of the citizens of Alaska.
That case was in regard to cabin regulations adopted by the
National Park Service. For a case to be carried by the state on
behalf of citizens, it would have to meet the criteria of
Alaska's Department of Law and attorney general. "So, no," she
advised, "The full burden of representing citizens would not
fall to the state."
1:38:04 PM
REPRESENTATIVE ROSES asked Ms. Cunning whether she knew of any
instances in which individuals bringing cases before the
commission were dissatisfied with the results and they then
filed a lawsuit against the state claiming inadequate
representation.
MS. CUNNING replied no. The commission was very successful in
working cooperatively to resolve issues on behalf of the
citizens, she opined.
1:38:48 PM
REPRESENTATIVE GUTTENBERG recalled that the previous commission
held hearings in affected communities. He inquired as to how
responsive the commission was to the issues raised in those
hearings.
MS. CUNNING commented that while the hearings were held by the
commission, the real work was done by the executive director and
the executive director's staff. Having become experts in
federal law and policies, it was the staff who advised the
public on how to seek resolution for themselves or the staff
worked directly with the federal agency on the citizens' behalf
to resolve the issue. Ms. Cunning recalled that only one
particular issue did not reach a positive solution.
1:41:19 PM
REPRESENTATIVE GUTTENBERG continued regarding the commission's
responsiveness to the wishes of affected local communities. He
specifically referred to the commission's endorsement of a
proposal for private construction of a railroad and general
access into the northern portion of Denali National Park despite
the long time, and nearly unanimous, opposition from members of
the nearby community whom he represents.
MS. CUNNING stated she could not provide a gauge on issues such
as the northern access route because the Alaska Department of
Fish & Game's involvement is limited to its responsibilities.
However, she did note that in the last years of CACFA, it was
poorly funded and thus she was not certain how able it was to
conduct hearings in local areas.
1:43:29 PM
REPRESENTATIVE SEATON asked how the Alaska Department of Fish
and Game (ADF&G) envisioned the interaction, or the overlapping
authority, of this commission with the federal subsistence
advisory board.
MS. CUNNING noted that there was a five-year overlap between
establishment of federal subsistence advisory boards and
defunding of the [previous] commission. During that overlap,
the focus of CACFA and its executive director was primarily on
federal land management, not the allocation of fish and wildlife
on those lands.
1:45:23 PM
REPRESENTATIVE SEATON expressed concern that the new
commission's focus could be totally dependent on who is the
executive director or on the commission members' ideas. With
federal subsistence regulations being so contentious, he said he
feared that CACFA could actually become a competing state agency
to the local fish and game advisory board process or the federal
subsistence board process.
1:46:52 PM
DEL ACKELS, speaking as a former member of CACFA, informed the
committee he had served on the commission over a fifteen-year
period through four governors. He stated that the commission's
main goal was the ANILCA process that radically altered what the
state could do on federal lands. He pointed out that it was the
[commission] who filed the navigability lawsuit against the
[federal government], resulting in the State of Alaska receiving
ownership of riverbeds.
MR. ACKELS opined that there would not be an overlap with
subsistence issues. He pointed out that the previous commission
was more directed at the broader issues on how [federal
subsistence] would impact the State of Alaska. He related that
the previous commission conducted overviews of the 72 management
plans that were in place at the time, including the 9 major park
plans.
MR. ACKELS turned to the makeup of the commission, which he said
was very diversified. In fact, at one time over half of the
commission's membership was rural and not urban, he opined.
With regard as to how the commission should be set up, Mr.
Ackels emphasized that the commission should not be beholden to
any agency. The aforementioned is what caused its demise.
Problems began, he said, when the commission was moved from the
Office of Management & Budget (OMB) to DNR. Mr. Ackels related
that CACFA was the only group that could file lawsuits which
made it effective. However, the Alaska Land Use Council, a
parallel entity, became ineffective because it had no way of
backing up its recommendations with any type of legislation to
stop things from happening.
MR. ACKELS recalled the previous commission's problems with
funding because once the commission was placed in DNR, CACFA's
funding was zeroed out each fiscal year. The initial budget of
CACFA in 1981 was about $530,000. From 1984 on the funding
began to deteriorate. Once the budget fell to less than
$200,000 a year it became a burden to do its work.
MR. ACKELS stressed his belief that the commission is vitally
important. "We're not looking at just certain user groups and
how it will affect certain user groups," he said. "What we're
looking at is what the state's going to be in the future." He
mentioned that several public land orders (PLOs), although
obsolete, are still in place. He gave details on the PLO of the
Dalton Highway as one example of an issue that will affect both
user groups and the state.
MR. ACKELS suggested funding the commission in blocks of five to
ten years or indefinitely so that it is not beholden to DNR,
ADF&G, or anybody else. He recommended that, if the commission
was based out of OMB, it be with the understanding that the
commission's directions and activities do not change when
governors change.
MR. ACKELS acknowledged people's fears and said that CACFA will
not interfere with subsistence unless it involves navigable
riverbeds. He expressed concern that the upcoming 2009 fast-
track bill could limit state and inholder access to federal
lands by creating new conservation system units. Mr. Ackels
concluded by emphasizing that the AG's office is very important
and that someone from the AG's office always attended the
[previous] commission's meetings.
1:58:22 PM
RICKY GEASE, Executive Director, Kenai River Sportfishing
Association, noted that the Kenai Peninsula is a mixture of
federal and state lands along with private property. He opined
that a commission is important for ensuring that management
agencies adhere to federal regulations. Mr. Gease pointed out
that the state has filed requests for reconsideration because
the federal subsistence board has been inconsistent and has not
followed federal subsistence policies and procedures as
directed. Mr. Gease stressed that it would be nice for people
to have a place to go to express their feelings and have those
issues be researched. Because there are a lot of land use
issues coming up on the Kenai Peninsula, Mr. Gease offered his
wholehearted support for a commission.
2:00:38 PM
CO-CHAIR JOHNSON closed public testimony and announced that HB
87 would be held for further consideration.
REPRESENTATIVE ROSES related concern with the indeterminate
fiscal note and asked that a figure for making it a viable
commission be brought to the committee. He also requested a
legal opinion regarding whether the state could be put into an
adverse position should a citizen believe the commission failed
to act in serving that citizen's purpose.
REPRESENTATIVE GUTTENBERG requested a funding history of the
former CACFA.
CO-CHAIR JOHNSON agreed with getting a legal opinion, but shared
his philosophy that the House Resources Standing Committee
should deal with the resource aspect of bills and let the House
Finance Committee use its expertise to deal with the financial
aspects.
HB 25 - RECREATIONAL LAND USE LIABILITY/ADV. POSS
2:03:58 PM
CO-CHAIR JOHNSON announced that the next order of business would
be HOUSE BILL NO. 25, "An Act relating to landowners' immunity
for allowing use of land without charge for a recreational
activity; relating to landowners' liability where landowner
conduct involves gross negligence or reckless or intentional
misconduct; relating to claims of adverse possession and
prescriptive easements, or similar claims; and providing for an
effective date."
2:04:12 PM
REPRESENTATIVE SEATON, sponsor of HB 25, explained that the
intent of HB 25 is to provide landowners comfort in allowing
free public use of their land for recreation without fear of
being sued should someone get hurt. The aforementioned is
achieved by raising the standard of care that a landowner owes
for allowing someone to use their land. The bill provides
immunity from suit unless there is gross negligence, intentional
misconduct, or reckless endangerment. The bill also provides
that permission does not have to be explicit - if a landowner
does not prevent somebody from using his/her land, then the
landowner is implicitly letting them use it for free for
recreation. However, running barbed wire across a trail would
not give a landowner immunity under this bill. Representative
Seaton noted that Alaska has handled immunity for recreational
uses through trail easements, which are limited to 50 feet wide.
He pointed out that landowners have no immunity if easements are
over 50 feet wide. He further pointed out that such easements
have to be picked up by the state or municipal government.
However, state and municipal governments are reticent to acquire
easements because of surveying costs and other things.
REPRESENTATIVE SEATON emphasized that HB 25 pertains only to
free public use. This bill does not cover those who charge a
fee. There is an Alaska statute that gives some protections to
people operating commercial land uses like ski slopes. This
bill does not cover the aforementioned group or municipalities
or governments. He stressed that HB 25 also protects landowners
from adverse possession or prescriptive easement claims by
someone using the property for recreation.
2:09:20 PM
REPRESENTATIVE SEATON noted that material in the committee's
packet provides a breakdown of what is happening in other states
in this regard and shows that HB 25 is consistent with practices
in many other states. He informed the committee that the House
Resources Standing Committee considered and passed an identical
bill last year and that the bill was unanimously passed by the
House of Representatives.
2:10:40 PM
REPRESENTATIVE GUTTENBERG asked if Representative Seaton was
satisfied that the language on page 1, line 9, covers the entire
range of protections that is being sought.
REPRESENTATIVE SEATON affirmed that he thought it did, in
particular because of the reference to indirect permission.
2:11:38 PM
CO-CHAIR GATTO inquired about cases in which a landowner posts
his/her land against trespassing, yet someone trespasses and is
hurt. Under existing statutes, could the homeowner be sued, he
asked.
REPRESENTATIVE SEATON commented that the legal liability is very
murky. There is a statute that allows for unimproved land, but
the question is what constitutes unimproved land. Under
existing law and HB 25 [a landowner] can be sued. However,
statutorily under HB 25 a suit would have to be for gross
negligence, reckless, or intentional conduct rather than simple
negligence.
2:13:20 PM
CO-CHAIR GATTO asked if it is considered charging [a fee] when a
landowner collects a fee for someone to come onto the land to
pick potatoes or cut firewood.
REPRESENTATIVE SEATON referred to page 2, line 22, and pointed
out that Representative Gatto's example would not give the
landowner immunity because it wasn't for free recreational use
of the private land. In further response to Co-Chair Gatto,
Representative Seaton confirmed that HB 25 deals solely with
recreational use and raising the standard under which a suit
could take place and be effective. A commercial venture on
one's land is covered by totally different statutes.
CO-CHAIR JOHNSON announced his intention to move HB 25 from
committee.
2:16:22 PM
DAVE BRANN, Kachemak Nordic Ski Club, reported that in his 30
years of experience as a volunteer constructing and maintaining
ski trails, the biggest deterrent to recreational trail
development has been reluctance of private landowners to have
trails cross their property due to liability concerns. Mr.
Brann related support for HB 25 because of its simplicity and
clarity to encourage private landowners to allow recreational
use. Mr. Brann concluded by encouraging the committee to
support and report out HB 25.
2:18:33 PM
KARYN NOYES, Conservation Director, Kachemak Heritage Land
Trust, expressed strong support for HB 25. Kachemak Heritage
Land Trust works on trail and public access issues across the
Kenai Peninsula. Private landowners are often concerned about
liability in allowing the public to access their land and yet
these landowners do support trail development and use. By
decreasing liability to landowners, a more comprehensive trail
network can be created and this will enhance recreational
opportunities for both visitors and residents.
2:19:23 PM
LINDSAY WINKLER, Homer Soil & Water Conservation District,
Alaska Association of Conservation Districts, related her
organization's support for HB 25. All 11 districts in the
Alaska Association of Conservation Districts - from Delta down
to Kodiak - supported last year's [identical] bill. The
association's support is driven by the clarity the bill provides
to landowners and the standard language that is used across the
country, she said. Furthermore, the bill specifically states
that this informal, noncommercial use does not constitute a
basis for prescriptive easement against a landowner.
2:20:37 PM
JACK MOSBY, Alaska Trails, pointed out that Alaska Trails, an
all-volunteer group, conducted numerous trails training classes
throughout the state. The number one issue raised in all of
those classes was liability, he related. The organization
wholeheartedly supports passage of HB 25, he said.
2:21:30 PM
RICKY GEASE, Executive Director, Kenai River Sportfishing
Association, affirmed his organization's support of HB 25. He
then asked if the definition of "recreational activity" would
include personal uses. He then related a situation on the Kenai
River in which there is commercial and private ownership that
would like to provide access to various users. He asked if HB
25 would cover this situation. In response to Co-Chair Johnson,
he agreed to discuss the matter with the sponsor.
2:23:30 PM
ANNE MARIE HOLEN, Assistant to the City Manager, City of Homer,
testified on behalf of Homer's City Manager who was attending
other meetings. She related that in 2006 the Homer City Council
strongly endorsed last year's [identical] bill. Outdoor
recreation is an important part of Homer's identity and local
economy. Ms. Holen noted that HB 25 addresses the concerns of
landowners who support trails but are nervous about liability.
It provides protection for well-meaning landowners without
offering protection to those who are reckless or grossly
negligent. From the City of Homer's perspective, HB 25 is a
common sense solution for everyone involved.
2:24:43 PM
JULIE ENGEBRETSEN supported HB 25 as a way for property owners
to allow recreation on their lands without undue liability. The
Kenai Peninsula Borough does not have trails powers and cannot
accept trail easements. In unincorporated areas, the state is
the only entity that can accept easements and this is a
cumbersome process that takes time and money. She remarked that
it is important to protect Alaskans' quality of life and it is
reasonable for the state to provide protections for property
owners that allow for recreational use.
2:25:50 PM
MILLIE MARTIN said she concurred with all that had been said
before her. She advised that a resolution supporting HB 25 will
soon be coming before the Kenai Borough Assembly. She related
that she is one of the private property owners who wants to
designate ski trails across her land. The current statutory
provisions, she opined, do not provide adequate protection as it
only provides tort immunity if the land is unimproved. She
referred to litigation in which the University of Alaska was
denied immunity for a sledding hill on its property.
2:27:28 PM
CO-CHAIR GATTO ascertained that the university ruling was
because the court considered the sledding hill improved
property.
MS. MARTIN said that was correct. Therefore, she surmised that
the court would consider any kind of an improved ski trail an
improvement and thus she appreciated HB 25.
2:28:21 PM
ROBERTA HIGHLAND noted her strong support for HB 25. She
explained that she and her husband allow people to use trails on
their land and this bill would relieve concerns about
litigation.
2:28:51 PM
CO-CHAIR JOHNSON closed public testimony.
2:29:41 PM
REPRESENTATIVE ROSES informed the committee that he has a
conflict of interest because he owns some recreational property
in Kachemak Bay. There being no objection, Representative Roses
would be required to vote.
2:30:52 PM
REPRESENTATIVE WILSON moved to report HB 25 out of committee
with individual recommendations and the accompanying zero fiscal
note. There being no objection, HB 25 was reported from the
House Resources Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 2:31:33
PM.
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