Legislature(1997 - 1998)
03/31/1998 08:00 AM House STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 31, 1998
8:00 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Ivan Ivan, Vice Chairman
Representative Ethan Berkowitz
Representative Joe Ryan
Representative Kim Elton
Representative Mark Hodgins
MEMBERS ABSENT
Representative Al Vezey
COMMITTEE CALENDAR
HOUSE BILL NO. 466
"An Act relating to violations of state election laws."
- MOVED HB 466 OUT OF COMMITTEE
HOUSE BILL NO. 464
"An Act relating to state veterans' home facilities."
- MOVED CSHB 464(STA) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 180(FIN)
"An Act relating to state rights-of-way."
- MOVED CSSB 180(FIN) OUT OF COMMITTEE
SENATE BILL NO. 309
"An Act relating to the use of force by peace officers and
correctional officers."
- SCHEDULED BUT NOT HEARD
CS FOR SENATE CONCURRENT RESOLUTION NO. 22(STA)
Relating to promotion of Kids Voting Alaska programs.
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 44
"An Act relating to admission to an Alaska Pioneers' Home."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 468
"An Act relating to damages awarded in complaints before the State
Commission for Human Rights."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 466
SHORT TITLE: CAMPAIGN MISCONDUCT: FALSE INFORMATION
SPONSOR(S): STATE AFFAIRS
Jrn-Date Jrn-Page Action
03/06/98 2542 (H) READ THE FIRST TIME - REFERRAL(S)
03/06/98 2542 (H) STATE AFFAIRS, JUDICIARY
03/19/98 (H) STA AT 8:00 AM CAPITOL 102
03/19/98 (H) MINUTE(STA)
03/21/98 (H) STA AT 10:00 AM CAPITOL 102
03/21/98 (H) MINUTE(STA)
03/31/98 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 464
SHORT TITLE: NURSING CARE AT STATE VETERANS' HOME
SPONSOR(S): STATE AFFAIRS
Jrn-Date Jrn-Page Action
03/04/98 2499 (H) READ THE FIRST TIME - REFERRAL(S)
03/04/98 2499 (H) MLV, STATE AFFAIRS
03/19/98 (H) MLV AT 4:30 PM CAPITOL 124
03/19/98 (H) MLV(MINUTE)
03/20/98 2680 (H) MLV RPT 1DP 5NR
03/20/98 2680 (H) DP: FOSTER; NR: RYAN, MULDER, KOTT,
03/20/98 2680 (H) MASEK, JOULE
03/20/98 2680 (H) FISCAL NOTE (ADM)
03/20/98 2680 (H) ZERO FISCAL NOTE (DHSS)
03/31/98 (H) STA AT 8:00 AM CAPITOL 102
BILL: SB 180
SHORT TITLE: STATE RIGHTS-OF-WAY: RS 2477
SPONSOR(S): SENATOR(S) HALFORD, Green, Leman, Sharp, Torgerson,
Wilken,
Pearce, Ward, Taylor
Jrn-Date Jrn-Page Action
04/18/97 1277 (S) READ THE FIRST TIME - REFERRAL(S)
04/18/97 1277 (S) RESOURCES, FINANCE
02/06/98 (S) RES AT 3:30 PM BUTROVICH ROOM 205
02/09/98 (S) RES AT 3:30 PM BUTROVICH ROOM 205
02/09/98 (S) MINUTE(RES)
02/23/98 (S) MINUTE(RES)
02/24/98 2629 (S) RES RPT CS 4DP SAME TITLE
02/24/98 2629 (S) DP: HALFORD, LEMAN, SHARP, GREEN
02/24/98 2629 (S) FISCAL NOTE TO SB & CS (DNR)
02/24/98 2629 (S) ZERO FISCAL NOTE TO SB & CS (DOT)
03/11/98 (S) FIN AT 9:30 AM SENATE FINANCE 532
03/12/98 2839 (S) FIN RPT CS 5DP 1NR SAME TITLE
03/12/98 2839 (S) DP: SHARP, PEARCE, PHILLIPS
03/12/98 2839 (S) DONLEY, TORGERSON NR: ADAMS
03/12/98 2839 (S) PREVIOUS FN APPLIES TO CS (DOT)
03/18/98 2881 (S) FISCAL NOTE TO CS (DNR)
03/19/98 (S) RLS AT 11:30 AM FAHRENKAMP RM 203
03/19/98 (S) MINUTE(RLS)
03/20/98 2918 (S) RULES TO CALENDAR 3/20/98
03/20/98 2919 (S) READ THE SECOND TIME
03/20/98 2919 (S) FIN CS ADOPTED UNAN CONSENT
03/20/98 2919 (S) COSPONSOR(S): PEARCE, WARD, TAYLOR
03/20/98 2919 (S) ADVANCED TO THIRD READING UNAN
CONSENT
03/20/98 2920 (S) READ THE THIRD TIME CSSB 180(FIN)
03/20/98 2920 (S) PASSED Y15 N3 E2
03/20/98 2920 (S) ADAMS NOTICE OF RECONSIDERATION
03/23/98 2957 (S) RECONSIDERATION NOT TAKEN UP
03/23/98 2958 (S) TRANSMITTED TO (H)
03/24/98 2721 (H) READ THE FIRST TIME - REFERRAL(S)
03/24/98 2722 (H) STATE AFFAIRS, RESOURCES, FINANCE
03/31/98 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
PAT CARTER, Legislative Assistant
to Representative Mark Hodgins
Alaska State Legislature
Capitol Building, Room 110
Juneau, Alaska 99801
Telephone: (907) 465-2283
POSITION STATEMENT: Explained HB 466.
RICHARD GLOVER, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 2450
POSITION STATEMENT: Answered questions pertaining to HB 466.
GERALD J. DORSHER, Legislative Officer
Alaska Veterans of Foreign Wars
P.O. Box 240003
Douglas, Alaska 99824
Telephone: (907) 364-3346
POSITION STATEMENT: Testified in support of HB 464.
JAMES L. KOHN, Director
Division of Alaska Longevity Programs
Department of Administration
P.O. Box 110211
Juneau, Alaska 99811-0211
Telephone: (907) 465-2159
POSITION STATEMENT: Testified on HB 464.
CHARLES McLEOD, Special Assistant
Office of Veteran Affairs
Department of Military and Veterans Affairs
P.O. Box 5800
Fort Richardson, Alaska 99505-0800
Telephone: (907) 428-6068
POSITION STATEMENT: Testified in support of HB 464.
DOUG VIG, State Commander
The American Legion
P.O. Box 5121
Ketchikan, Alaska 99901
Telephone: (907) 225-3898
POSITION STATEMENT: Testified in support of HB 464.
LEON BERTRAM
2925 DeBarr Road
Anchorage, Alaska 99508
Telephone: (907) 276-8211
POSITION STATEMENT: Testified in support of HB 464.
JOSEPH CRAIG
2323 First Avenue
Ketchikan, Alaska 99901
Telephone: (907) 225-4671
POSITION STATEMENT: Testified in support of HB 464.
GARY KURPIUS
Veterans of Foreign Wars
2925 DeBarr Road
Anchorage, Alaska 99508
Telephone: (907) 276-8213
POSITION STATEMENT: Testified in support of HB 464.
ALAN F. WALKER, Legislative Assistant
to the Department of Alaska,
Disabled American Veterans
3437 Meander Way
Juneau, Alaska 99801
Telephone: (907) 790-3636
POSITION STATEMENT: Testified in support of HB 464.
TOM STREEPER
P.O. Box 5121
Ketchikan, Alaska 99901
Telephone: (907) 225-4544
POSITION STATEMENT: Testified in support of HB 464.
BRETT HUBER, Legislative Assistant
to Senator Rick Halford
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
Telephone: (907) 465-4958
POSITION STATEMENT: Presented sponsor statement for CSSB 180(FIN).
JANE ANGVIK, Director
Central Office
Division of Land
Department of Natural Resources
3601 "C" Street, Suite 1122
Anchorage, Alaska 99503-5947
Telephone: (907) 269-8503
POSITION STATEMENT: Testified in opposition to CSSB 180(FIN).
ACTION NARRATIVE
TAPE 98-43, SIDE A
Number 0001
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 8:00 a.m. Members present at the
call to order were Representatives James, Ivan, Ryan, Elton and
Hodgins. Representative Elton arrived at 8:04 a.m. and
Representative Berkowitz arrived at 8:28 a.m.
HB 466 - CAMPAIGN MISCONDUCT: FALSE INFORMATION
Number 020
CHAIR JAMES announced the first order of business would be HB 466
"An Act relating to violations of state election laws," sponsored
by Representative Hodgins
Number 025
REPRESENTATIVE MARK HODGINS explained that the essence of HB 466 is
to create a deterrent to some of the "mud slinging campaigns" that
have existed in the past. He said it builds on an existing law in
that it elevates the offense from a misdemeanor to a felony. He
said in speaking with the district attorney (DA) and the
prosecutors, they have said they will not expend state dollars to
go after a misdemeanor offender, where if it was a felony offense,
they would.
Number 042
PAT CARTER, Legislative Assistant to Representative Mark Hodgins,
Alaska State Legislature, explained the essence of the legislation
is to elevate the punishment for knowingly disseminating false and
misleading information with reckless disregard for the truth. He
noted Mr. Glover has done some investigative work with regards to
existing case law.
Number 056
RICHARD GLOVER, Attorney, Legislative Legal and Research Services,
Legislative Affairs Agency, came before the committee. He
explained HB 466 makes a change to the election code, but it
specifies a crime which replaces an existing portion of the
statutes. It slightly expands the type of conveyances that would
be a crime. Mr. Glover pointed out that the existing statute makes
it a crime when somebody transmits false information relating to a
candidate for an election. The legislation expands that to not
only a class B felony, but it also states which types of
information would be considered a crime, what dissemination would
be a crime. In the old statute, it was simply false information.
In the new provision, it would not only be false information, but
false and misleading information. Mr. Glover explained one of the
difficulties in prosecuting a case like this is proving the falsity
of what's disseminated, a question, for instance, is neither true
nor false. If somebody asks a question and disseminates
information in a form of a question it would never qualify under
the old statute as being false. Mr. Glover said, "However, if it
is intentionally misleading, the person speaks as a question
something that's intended to bring forth a false implication, that
would be covered under this new statute."
CHAIR JAMES asked if the bill speaks just to candidates and people
running for office or does it have anything to with initiatives.
MR. GLOVER responded an element of the crime is that the
information relates to a candidate for an election. It
specifically relates to somebody running for office.
Number 103
MR. CARTER explained, "The intent of the bill was to talk about
elevating this to a crime of a class B felony." He said in a
previous hearing, there was talk about including an initiative or
a ballot proposition. Currently, there are existing laws that
protect that and it would be a class A misdemeanor. However, in
looking into the history and development of criminal dissemination
laws, dating back to England and prior to the American Revolution,
they had two purposes. It was to prevent public unrest caused by
critical statements concerning those in power or to preserve public
order by providing criminal sanctions for insults against private
persons. It was to prevent a breach of the peace. Mr. Carter said
it is not thought that ballot initiatives would cause such a breach
of the peace although that may be in question as well. Initially
they thought to defame a private man would deserve a severe
punishment because it not only incites that person, but it also
incites his family and all those people who are in association with
him. Mr. Carter read from information he had, "It tends to result
in quarrels or a breach of piece and may cause the shedding of
blood and great inconvenience." He said against a public person, it
is an even greater offense because not only is it defaming the
person in question, but it also presents a scandal of government.
He said the intention is to raise that level of crime and not
necessarily a ballot initiative.
REPRESENTATIVE IVAN IVAN asked if the bill would apply to municipal
elections.
MR. CARTER replied in the affirmative.
Number 151
REPRESENTATIVE JOE RYAN asked if the bill would apply to a reporter
or publisher of a newspaper who makes unsupported allegations about
a person.
MR. GLOVER stated it would as the bill speaks to a person who
commits the crime. Not only would it be the person who is
speaking, or in this case disseminating the information, it would
reach perhaps to legal people as well.
REPRESENTATIVE RYAN said a year or two ago the United State Supreme
Court ruled that anonymous political communication is protected by
freedom of speech and they say that the (indisc.) papers. He asked
how the legislation will impact that decision.
MR. GLOVER pointed out that anonymous speech would be protected.
However, there has not ever there has never been a general rule
that false speech is protected. He noted a famous case with this
regard is The New York Times v. Sullivan case in about 1964. This
case elevated the "state of mind requirement" when you're speaking
about a public official. A public official has to have, to a
certain extent, a thicker skin in the view of the supreme court.
The person who is doing the speaking would have to speak knowing
that the speech was false, knowing that the statements were false
or with reckless disregard for their truth when speaking about a
public person. Mr. Glover said, "The case I think that you're
speaking about only spoke to whether or not an anonymous speaker be
protected and, of course, they would be unless, of course, it was
false or spoken with known disregard for the truth."
Number 187
REPRESENTATIVE KIM ELTON asked if there would be a different
standard for campaign misconduct than there would be liable for
somebody that owned a newspaper.
MR. GLOVER explained the difference with the legislation is that
this is a criminal statute. So all elements of the crime would
have to be proven beyond a reasonable doubt, whereas if you sued
somebody in civil context for either liable or slander, then all
you would have to do would be to establish the facts to a
preponderance of the evidence - 51 percent. Mr. Glover stated that
there is a slight difference between the types of speech or the
remedy that would be pursued. Mr. Glover said, "Of course,
typically what you see are people who are plaintiffs or are spoken
against will many times pursue their criminal remedy first - bring
it to the attention of the DA and let that trial go forward because
then the elements of the crime are established to the higher
standard to beyond a reasonable doubt. Then once those elements
are established beyond a reasonable doubt, then they become
established for the later trial. And I think the country saw a
good example of that with regard to the O. J. [O. J. Simpson] cases
in California (indisc.).
Number 212
REPRESENTATIVE ELTON asked if there has to be an element or
discussion of reckless disregard for the truth that you would have
to have for a liable case.
MR. GLOVER explained the reckless disregard and the knowing falsity
are subjective elements. You would have to have proof of a
subjective element which is very difficult. If, for instance,
somebody spoke some speech and then was corrected, "No, what you
just said is false," and it was publicly brought to their
attention, you would have some introducible evidence. He said,
"Now they knew or they were given some information where they could
check out what they were saying was false, then you have
demonstrable proof that you could bring forth in either a criminal
or civil trial -- that when they spoke the second time that it was
done with knowing falsity or with reckless disregard. They were
given information where they could check out the record that they
perhaps were speaking against the candidate and did not. That
would be reckless disregard. But the first time, showing that
somebody, between their ears, knew that it was false or that they
recklessly said, 'Oh, this sounds interesting, I'll put it on the
front page of the newspaper.' It is a very difficult element
prove, either criminally or civil."
REPRESENTATIVE ELTON asked Mr. Glover if he sees a difference
between a paid public speech and a non-paid public speech. He
referred to somebody who bought an ad in a newspaper and somebody
could make a claim that it was misleading information, therefore,
it was campaign misconduct involving false information. He asked,
"Do you see that a newspaper would be - are they protected if it is
paid speech if they're just a vehicle or would they also be
culpable."
MR. GLOVER informed the committee that the general principle of
paid speech is given less First Amendment protections than a
political speech, a person's personal speech. As a general
principle in the law, commercial speech is generally given less
protection. He referred to printing hand bills and putting them on
the windshield wipers of parked cars and said that is generally
considered to be susceptible to anti-litter statutes. So paid
commercial speech is more restrictable and has less First Amendment
protection than a person's core political speech. He referred to
the ability of the press to publish opinions in its editorial pages
and said that may or may not be commercial speech, but a paid
advertisement certainly would be. He noted a commercial speech
could be when somebody takes out an ad and pays the newspaper for
the privilege of publishing.
CHAIR JAMES referred to somebody who paid a newspaper to put
something in that was false and the newspaper ran the paid
advertisement. She asked if they were culpable in any way for
being the vehicle that made this available.
MR. GLOVER stated, "Under the text of this particular crime - of
this particular statute they would be because it says, 'any person
who disseminates...' And so if they knew when the paper published
that it was false or recklessly disregard that it was false, even
though they were paid, they would be liable under this statute."
Number 283
REPRESENTATIVE HODGINS said if somebody comes out and says
something, they can say anything they want. When they are shown
that what they're saying is false and the proof is there, they can
no longer say that. The essence of HB 466 is just to clean up some
of the rhetoric that is heard regarding campaigns.
CHAIR JAMES noted that there is not a fiscal note on the bill. She
said that possibly the State Affairs Committee needs to write a
zero fiscal note as it doesn't have a fiscal impact.
Number 300
REPRESENTATIVE HODGINS made a motion to move HB 466 out of
committee with individual recommendations and an attached zero
fiscal note.
REPRESENTATIVE ELTON objected to the motion. He said he knows that
there are times when people have gone overboard in the course of
a campaign. He said instead of creating a vehicle in which
campaign speech can be controlled, he thinks that the bill could be
used as a bludgeon that could be used by some to depress campaign
speech. For example, it would be very easy toward the end of a
campaign to go to a radio station and say, "That ad you have on is
false and because it's false, if you keep running that ad you're
going to be subject to a felony, not a misdemeanor any more, but a
felony involving campaign misconduct involving false information."
He pointed that that puts a radio station, a newspaper or another
campaign in a very awkward situation. They can take a risk and
they can say, 'Well, you know, we didn't check out the claim, but
you know it sounds legitimate.' But they're at risk of a felony if
they keep going and if, in fact, somebody in a black robe some time
six months down the road says, 'Well, you know it's a close call,
but we think you were guilty.' I think that what happens is we're
creating a situation to control something that is often times
indefensible, but it could be used a club and could be used
inappropriately and can actually suppress public (indisc.) of
speech."
CHAIR JAMES explained that a person couldn't come running in and
say, "That's not true." That person would have to have some
evidence that it's not true. She said, "In other words, they would
have to know when that person left that it was not true and they
would not necessarily know because that person told them." Chair
James said the type of proof that you would have to have that they
know is very important to this issue. Just saying that it's not
true won't do it. She said, "They still don't know for sure that
it's not true unless they've been given some proof. So even if
they go ahead and they don't know one way or the other whether it's
true or not, they're not going to be held responsible. This is a
pretty high thing. And so I understand your concern, I have no
problem putting it on the record, but I don't want to belabor this
too long."
REPRESENTATIVE ELTON said sometimes it's difficult to prove what
isn't true. For example, if somebody buys a radio ad saying that
he has been convicted of a DWI [driving while intoxicated] in a
different jurisdiction three different times, it might take a week
to prove that it isn't true. First, you've got to go to the other
jurisdiction and then you ask for court records that aren't there.
CHAIR JAMES said if somebody did say that Representative Elton had
DWIs in three different locations, they would be putting themselves
very much in jeopardy if they didn't know that was true. That is
a pretty broad comment about somebody.
Number 353
A roll call vote was taken. Representatives Hodgins, Ryan, Ivan
and James voted in favor of moving HB 466. Representative Elton
voted against moving HB 466. So HB 466 moved out of the House
State Affairs Standing Committee.
HB 464 - NURSING CARE AT STATE VETERANS' HOME
Number 370
CHAIR JAMES announced the next order of business would be HB 464,
"An Act relating to state veterans' home facilities," sponsored by
the House State Affairs Committee.
Number 375
GERALD J. DORSHER, Legislative Officer, Alaska Veterans of Foreign
Wars (VFW), came before the committee. He explained HB 464 is a
bill that his organization has been looking forward to for many
years. The language of cleaning up and adding the nursing care and
related medical facilities is what the need has been. With the
legislation, they will be able to move forward to the federal
government. Mr. Dorsher explained that this is a three phased
operation. He said, "The first phase needs no fiscal attachments
to it. In it's entirety, [it] goes before the bodies for approval
if we have then a feasibility study, which the members of the
Veterans of Foreign Wars, the American Legions and DAVs [Disabled
American Veterans] have appropriated funds for, with matching funds
coming from the Governor's office of $20,000, hopefully, for this
independent study of feasibility. After this feasibility study, we
go to the federal government for monies. The federal government
has 65 percent of a veterans' home, under these conditions, for the
veterans of Alaska. Thirty-five percent would come from state
funds which could be in-kind services as land for the veterans'
home. That is where we're at on this. The bill that is before us
today, 464 is what the veterans of Alaska are asking for without a
fiscal attachment note. That will come down the way through the
study of feasibility and then on to the federal government for
their appropriations for the veterans' home."
MR. DORSHER explained there are 42 states that have veterans' homes
and some have more than one. He pointed out that after they're up
and running, they're self sufficient through third parties such as
veterans' insurance programs and retirement programs. In two
years, 47 states will have at least one veterans' home. Alaska has
a great population of veterans, and he believes that the state of
Alaska should have a veterans home.
Number 427
CHAIR JAMES pointed out that Alaska has a larger percentage of
population of veterans than any other state. Alaska is also the
furthest away from all the rest of the states. She confirmed that
the legislation doesn't say that we are going to have a home, it
only puts into the law the ability for us to have a study to see if
we need one. Without that in the law, there are no federal funds
available for a veterans' home.
MR. DORSHER responded in the affirmative.
Number 456
REPRESENTATIVE IVAN said, "Since Alaska is such a large state, some
[veterans] may be living in rural communities and qualify to be in
this veterans' home. Does that individual have to move from a
community to a veterans' home or would they be allowed to receive
the same services from a veterans' home in their community?"
MR. DORSHER said there would be one veterans' home which would be
ideally attached to a medical services facility. Where it would
be, we have no idea and that is why a feasibility would be
appropriate.
CHAIR JAMES said as she understands, HB 464 only allows a home, it
doesn't make one. The feasibility study that Mr. Dorsher is
talking about would identify those concerns. She said she believes
that Representative Ivan's concern is that currently, because there
isn't a veterans' home in the state, these people can get benefits
to stay locally. Representative Ivan is worried that if there was
a veterans' home, the veterans in the rural areas would have to go
to the veterans' home to receive benefits and they couldn't get any
in their community. She said she isn't sure that is correct, but
that would be something that would be addressed in the feasibility
study process. She said, "Before we could get one, you'd have to
be back before this body again for the in-kind for the land, or
whatever it is, to build a home. So this is not the last door to
swing shut. This only opens the door for any possibility of this
ever happening."
MR. DORSHER pointed out that the bill is only phase I. He noted
the first resolution was introduced in 1992, and the nursing
facility was not included. To have HB 464 before the committee is
a big improvement over anything and the veterans appreciate it.
Number 482
JAMES L. KOHN, Director, Division of Alaska Longevity Programs,
Department of Administration, came before the committee to testify
on HB 464. He stated that the department supports the change to
the bill. Mr. Kohn said, "We feel that whether or not a veterans'
home is ultimately built, which you've already heard this bill does
not build a veterans' home, that in fact what we need to look at is
veterans' needs and we need to look at the whole range of veterans'
needs from domiciliary care to skilled nursing care. And what this
bill allows is that we can look at the entire range of needs that
veterans would have. So we endorse the bill."
CHAIR JAMES said, "I do have from the Department of Administration
a fiscal note here which is pretty scary."
MR. KOHN stated that anything relating to long-term care costs is
scary.
CHAIR JAMES indicated the bill doesn't authorize long-term care.
She said, "We're only authorizing the fact that if there was an
application before one, we could deal with it because this needs to
be changed so..." She pointed out that the committee heard
testimony from Mr. Dorsher that the Governor has agreed to put up
$20,000 for a feasibility and she can't remember where the rest of
the money would come from, but it is a match. Chair James said she
assumes the $20,000 would come from the Governor's existing budget.
She said it is her impression that the fiscal note is excessive and
is not needed.
MR. KOHN said that Chair James is correct. He said the department
was requested to supply a fiscal note based on the conception of
constructing and operating a veterans' home. That fiscal note
reflects that conception, however, the bill does not reflect that.
Number 516
CHARLES McLEOD, Special Assistant, Office of Veteran Affairs,
Department of Military and Veterans Affairs, testified via
teleconference from Anchorage. He stated, "I am very much in favor
of passage of this amendment that will allow the state to do the
nursing care for veterans of this state. As you well know, we have
pretty close to over 65,000 veterans in the state of Alaska, one of
the highest number of veterans per capita. We're one of three
states that presently do not have a state home. The other two
states are Hawaii and Delaware. And as mentioned by the testimony
of Mr. Dorsher, this amendment does not obligate the state to any
funds at this time. There will be a study to determine the needs
of the veterans as far as nursing care, domiciliary care, and so
forth. And at that time we will be able to approach this
particular project with some ideas on how we should move forward."
Number 533
DOUG VIG, State Commander, The American Legion, testified via
teleconference from Ketchikan. He noted he has sent the committee
a letter dated March 27, 1998, regarding the bill. He emphasized
that for the past several years, the joint coalition of the
American Legion, the VFW and the DAV have supported the need for a
state veterans' home. The Veteran's Administration indicates that
there are close to 63,000 veterans residing in Alaska. Many are
Korean War and Vietnam veterans moving into the twilight years.
Mr. Vig informed the committee members that some veterans are
currently in nursing care facilities such as the Pioneers' Home and
others will need this type of facility in the near future. He
reiterated Mr. Dorsher's testimony regarding the number of states
operating veterans' homes. He noted other states are appropriating
money for this purpose. It is projected that within two years, 47
states will be operating over 120 veterans' homes, and Alaska has
none. Mr. Vig stated they asked for the $40,000 appropriation to
conduct a thorough comprehensive and independent third party study
for the need of a veterans' home or homes in Alaska to support
existing and projected veterans' needs. Mr. Vig said the Governor
has indicated that he would come up with $20,000 for that study.
The joint coalition of the VFW and The American Legion has come up
with $10,000. There have been indications that the Finance
Committees could come up with another $10,000 to match the other
parts of that appropriation so that there would be the $40,000 for
an independent study.
Mr. Vig stated, "All indications of preliminary studies, that we
have had individuals go down to Oregon and Idaho, indicate that the
cost to the states are minimal. Third party payers, such as
insurance companies and the Medicare and Medicaid, are usually self
sustaining, but as pinpointed out that's kind of putting the cart
before the horse because we do need the nursing care part put in
that bill and I thank Representative James for doing that. Thank
you."
Number 570
LEON BERTRAM testified via teleconference from Anchorage. He
stated, "I believe that the case has pretty well been stated and I
think that the committee has the information that is necessary.
Mr. Vig, from our office, did cover it pretty well. I know there
is going to be a lot to be done in the future on this. I thank you
very much, Madam Chairman, for your input."
Number 578
JOSEPH CRAIG testified via teleconference from Ketchikan. He said,
"I concur with basically everything that our commander, Doug Vig,
has said and the coalition. But I would like to add that I just
returned from Washington, D.C., and talking to our three
representatives there they were all very supportive of a veterans'
home in Alaska as long as things can be worked out on this end. So
I would like to note that we do have support in Washington for a
veterans' home in Alaska. Thank you."
GARY KURPIUS, Veterans of Foreign Wars, was next to testify via
teleconference from Anchorage. He said, "On behalf of the Veterans
of Foreign Wars, I would like to thank you for putting in this
amendment and assure you that of our close to 7,000 members of the
state of Alaska - we are all in support of this." He indicated he
would answer any questions the committee may have.
Number 589
CHAIR JAMES referred to the letter that Mr. Vig sent to the
committee and said he indicated that the $40,000 that is needed for
the study, which the Governor has committed $20,000 from his
existing budget. In the letter, he talks about another $10,000
commitment on the Senate side in the state budget. She said that
is out of her reach and she is not interested in putting any kind
of a fiscal note on the bill today.
Number 577
ALAN F. WALKER, Legislative Assistant to the Department of Alaska,
Disabled American Veterans, came before the committee. He pointed
out that the Governor did commit that he would put up $20,000 for
a study. The veterans service organizations, at that time
committed to $10,000 from the VFW. He referred to their national
convention two weeks ago and explained that they were able to
receive from the DAV, Department of Idaho, a commitment for a
$1,000 contribution towards the study, and the same from the
Department of Oregon. Mr. Walker said they are seeking those
additional funds so that there would not be any need to address the
fiscal issue to the House, Senate or the Governor so that the
$20,000 commitment would stand. He stated, "We will find those
matching funds, somewhere - somehow. And I think this reflects
clearly the perception of need for the state of Alaska from other
veterans' organizations in the Lower 48, that no one wants to see
a veteran displaced from their home just because they need medical
care, least of all, out of the state of Alaska. We don't want to
see a veteran in Kotzebue or in Dutch Harbor who has to relocate to
Idaho to go to one of their veterans' homes just because they need
necessary care."
Number 616
REPRESENTATIVE ETHAN BERKOWITZ indicated concern regarding the
broadness of the title. He suggested tightening it up.
CHAIR JAMES asked Representative Berkowtiz if he has any
suggestions.
REPRESENTATIVE BERKOWITZ said he understands that what the
committee is trying to do is to attempt to initiate a study, which
is a preliminary step.
CHAIR JAMES explained the purpose of the legislation is to note
that nursing home care and related medical services is also
allowed. Currently, it is not allowed under the statute. She said
they want to open the door so that along with the domiciliary care
that nursing home care and related medical services can be provided
in-home. She said, "All this does is make a change in the law so
that that would qualify to be able to have that in Alaska and get
federal funds to do it. We have to have this in our laws to be
able to get federal funds for this facility."
REPRESENTATIVE BERKOWITZ stated he supports the legislation, but
perhaps "An Act permitting nursing home care with related medical
service in state veterans' home facilities" would tighten the
title.
CHAIR JAMES said she does not have a problem with the wording. She
asked if anybody else had a problem with the wording.
REPRESENTATIVE HODGINS said he has a problem. He said he believes
the title should remain in its current form as he likes the title.
CHAIR JAMES referred to veterans' issues and said it has been her
opinion and experience, in the six years she has been coming to
Juneau, that she has not wanted to see people wanting to play with
the issue. She said it seems to her that it is a pretty straight
forward issue. Chair James said it seems to her that veterans are
the champion of the day today and people were going to yield to
what they have to say. She said she doesn't have a problem with
the current title, nor does she have a problem with Representative
Berkowitz's suggestion. She said she will leave it up to the
committee members to decide whether they want to change the title.
She pointed out that it could read, "An Act relating to state
veterans' home facilities, including nursing home care with related
medical services." She said, "If we just, at the end, put
'including' and leave off the 'and' and put all the rest of the
underlined and we could... Do we have something else here? Okay,
Mr. Streeper wants to respond."
Number 661
TOM STREEPER testified via teleconference from Ketchikan. He said
two years ago he visited the veterans' home in Boise, Idaho, for
the purpose of seeing what Alaska would need in order to institute
a home. One of the things that was brought to his attention was
the fact that without the nursing care, we're going to have some
horrendous problems. You would not have the Medicare, Medicaid or
other insurance programs that could be utilized to help with the
funding of keeping a home on an even keel without having additional
funds from the state coming in. He said, "They were the first ones
to hold a 20-bed facility for Alzheimer. I am told that within our
state homes that they have for the so called pioneer homes - that
before many years expire, and that's very soon, it will be 100
percent almost in Alzheimer cases. I would encourage you to please
leave this as -- well the sponsor statement that I'm looking at
here right at this moment. And I thank you for allowing me to come
in late."
CHAIR JAMES said, "The motion on the floor then is to amend the
title on line 1 to add at the end, 'including nursing home care
with related medical services.' There is an objection to that
motion so then we'll call the roll."
A roll call vote was taken. Representatives Berkowitz, Elton, Ivan
and James voted in favor of amending the title. Representatives
Ryan and Hodgins voted against amending the title. So the
amendment was adopted.
Number 689
REPRESENTATIVE RYAN noted concern with people having to come from
the rural communities, in their final years, to a facility far away
from family and friends and to be stuck there. He said, "I even
envision them putting here in Juneau, so in my final years I come
down here and pay a bloody sales tax to be at home. That is the
only distrust I have with this bill. I'm going to support it, but
I'm going to watch it very very closely."
REPRESENTATIVE ELTON made a motion to move HB 464, as amended, with
an attached zero fiscal note and with individual recommendations
out of committee.
CHAIR JAMES indicated there is a motion to move HB 464, as amended,
out of committee with a zero fiscal note from the Department of
Health and Social Services. She noted the committee would either
prepare a zero fiscal note from the Department of Administration or
they may submit one. There being no objection, CSHB 464(STA) moved
out of the House State Affairs Standing Committee.
TAPE 98-43, SIDE B
CSSB 180(FIN) - STATE RIGHTS-OF-WAY: RS 2477
Number 001
CHAIR JAMES announced the committee would hear CSSB 180(FIN), "An
Act relating to state rights-of-way."
BRETT HUBER, Legislative Assistant to Senator Rick Halford, Prime
Sponsor of SB 180, said R.S. 2477 was a right granted to the states
by the United States Congress with the passage of the Mining Act of
1866. The purpose of the original law was to provide for and
guarantee the pubic's right to establish access across federal
lands. Subsequent congressional and more than 100 years of case
law have recognized that state law is controlling on the issue -
both in determining and defining R.S. 2477 rights-of-way.
MR. HUBER stated that although Congress repealed R.S. 2477, in
1976, with the passage of the Federal Land Policy and Management
Act (FLIPMA). They specifically acknowledged the legal existence
of R.S. 2477 rights-of-way that were established prior to the
repeal. Current federal regulation explicitly provides that any
right conferred by the R.S. 2477 grant shall not be diminished.
MR. HUBER said beginning with legislative appropriations in 1992
and 1993, which funded the research and compilation of historic
information regarding the R.S. 2477 routes, the legislature has
taken the lead in moving this issue forward. The Department of
Natural Resources (DNR) has reviewed 1,700 potential R.S. 2477s and
identified 602 rights-of-way that appear to qualify and are
supported with appropriate documentation. These 602 routes are
published in the historic trails catalogue and are incorporated in
the state land administration system. Last year, the legislature
passed SJR 13 with broad support reiterating their position
regarding R.S. 2477 and making clear the objections to Secretary
Babbitt's policy memorandum of last January.
MR. HUBER pointed out that SB 180 codifies the 602 documented R.S.
2477 rights-of-way; it requires them to be recorded and provides a
process for limitations on their vacation and sets out liability
limits for the State. While the R.S. 2477 rights-of-way codified
in this bill have already been accepted by public users and deemed
supportable by the state, it's likely that the federal government
will contest ownership on some or all of these routes. Although
the current federal administration is attempting to limit the
state's rights regarding R.S. 2477, over 100 years of case law
recognize state law as controlling on the issue. Codifying these
routes in statute will strengthen the state's position for possible
subsequent court action and provide the affected land owners and
the general public notice that these R.S. 2477 rights-of-way are
out there and available for use. Basically, SB 180 says these are
our rights-of-way and it's alright to use them. They are essential
to provide access to mineral deposits, travel to and from remote
areas, and recreational opportunities; they are not a panacea for
transportation, but are an important option we need to preserve
from the federal encroachment.
MR. HUBER informed the committee there are letters of support from
the Resource Development Council, the Alaska State Chamber, the
Alaska Outdoor Council, the Territorial Sportsmen, the Alaska
Forest Association, and the Alaska Miners Association.
Number 104
CHAIRMAN JAMES asked if the old mail trail along the Yukon River
was one of these trails.
MR. HUBER said the list he has isn't conclusive. The bill asks the
DNR to continue their on-going search into R.S. 2477 documentation
and bring other qualifying routes forward for the legislature's
consideration.
REPRESENTATIVE BERKOWITZ asked what the screening process was.
MR. HUBER answered that in 1992-93, the DNR reviewed "potential
routes." Actual documented use of the trail prior to 1971 needs to
be found for public use acceptance of the grant. The DNR did field
work on the ground looking at the trails, consulted with a lot of
the old dog sled mail routes and other historical information.
CHAIRMAN JAMES said she had participated with this search and they
were looking for documentation they could take to court as
evidence.
REPRESENTATIVE BERKOWITZ asked if there was distinction between a
right-of-way and an easement.
MR. HUBER responded that an R.S. 2477 would be a limitation on the
survey of the State granting access and he thought that would be
true of an easement, as well. Section line easements are a type of
R.S. 2477, so he thought the terms were interchangeable.
REPRESENTATIVE BERKOWITZ said the reason he asked is because, if
there is an easement based on use and someone crosses his backyard
all the time and he doesn't do anything about it, they essentially
earn a property right to that easement. Property rights can be
established by crossing federal land. He asked if all this is even
necessary.
MR. HUBER answered that when you are talking about prescriptive use
by easement or adverse possession, you are talking about a
different issue than you are with R.S. 2477s, which is an actual
law and policy saying that we need access to and from and across
federal lands that can be accepted by an act of the State and the
federal government for public use. This isn't so much a private
property adverse possession question as a public right to access
across federal land.
REPRESENTATIVE HODGINS asked what the mechanism was for nominating
other areas or trails.
MR. HUBER answered that the DNR actually has a nomination process
in place by regulation, in a small booklet. They aren't included
in the committee packet.
Number 191
REPRESENTATIVE RYAN asked if he looked at Ms. Mike Dalton's work
and that she had worked for Lieutenant Governor Coghill.
MR. HUBER responded that he would be remiss not to mention the
amount of work Mike Dalton has put into this project. She is the
reason we have the data base and atlas right now.
REPRESENTATIVE BERKOWITZ said he was still trying to understand the
purpose of the legislation. He asked if there had been an effort
to constrict the rights of Alaskans to cross these federal lands in
any way.
MR. HUBER answered the policy memo put out by Secretary Babbitt in
January, 1997, was an overall effort to restrict the state's
ability to claim the R.S. 2477s through changes in definitions.
Since that policy memo has come out, Congress has specifically
forbid the Department of Interior from establishing any other
permanent regulations dealing with R.S. 2477, without a specific
act of Congress.
REPRESENTATIVE BERKOWITZ asked if they had said specifically we
could not use any particular right-of-way in any instance.
MR. HUBER answered yes, there's on-going litigation in Fairbanks
and other court cases with private parties.
Number 223
REPRESENTATIVE BERKOWITZ said Secretary Babbitt's memo talks about
the role of state law and it's basically the same problem we are
running into with subsistence, which is the supremacy clause of the
U.S. Constitution saying if there's a conflict between federal law
and the state law, the feds reign supreme.
MR. HUBER said this was a policy memo that was contradicted by
Congressional intent. He didn't think he could draw a correlation
between this and subsistence, because law currently on the books
says, "rights granted by R.S. 2477s shall not be diminished." This
is controlling federal law right now.
REPRESENTATIVE BERKOWITZ asked what this legislation accomplishes.
MR. HUBER said that it's possible that even with the controlling
federal law, there is a difference of opinion on ownership or title
to the route and the only way you actually get title is through
quiet title. Quiet title will be decided in federal court at some
point when the federal government allows themselves to be sued for
quiet title. State law is cited in the case law in our Supreme
Court, and many other state courts, as controlling, so the more we
can do to reenforce our position in state law, the better the title
argument comes, if there is a right-of-way in conflict with the
federal government.
CHAIRMAN JAMES added that the law granting us authority to be able
to establish a right-of-way was on the books for a long time. The
feds decided not to do that anymore which established a cut-off
date. So the evidence of establishing a right-of-way before the
cut-off date is imperative. It's only available if you established
it during that window of opportunity.
REPRESENTATIVE BERKOWITZ asked if we were asserting title over
these 602 rights-of-way on federal land.
CHAIRMAN JAMES and MR. HUBER answered yes. MR. HUBER explained the
actual title decision would be done in a federal court through a
quite title act.
CHAIRMAN JAMES said this issue did not have anything to do with
subsistence and she didn't intend to discuss it further.
Number 294
REPRESENTATIVE IVAN said he wanted to know if some of the rights-
of-way went through private land belonging to villages and
corporations.
MR. HUBER responded that these rights were originally established
across vacant and unreserved federal lands, but rights-of-way have
been established now across state land, federal, private, and a
variety of types of lands in one specific route. Codifying them
doesn't create the right. The right-of-way already exists. This
merely lists them in statute and provides notice to the private
property. The bill specifically does not address scope and
management of the routes, but leaves that up to the DNR through the
regulatory process. Private land conveyances were conveyed to
existing easements, vacations, private property rights, and rights-
of-way.
CHAIRMAN JAMES said her experience on the Planning and Zoning Board
is that when you have a piece of private property, and there is an
existing right-of-way for access across the piece of private
property, in order to move it, you just have to allow them to get
from one place to anther.
MR. HUBER added that the process to move it is set out in the
findings and intent section of the bill, a Senate Resources
amendment, and also Section 3, the vacation process in the back of
the bill.
Number 350
REPRESENTATIVE IVAN noted when the Alaska Native Claims Settlement
Act (ANCSA) passed, the Bureau of Land management (BLM) almost set
up six-mile wide corridor easements. They went nuts, but ended up
not pursuing that.
REPRESENTATIVE ELTON asked if a lot of public lands were
transferred to private parties before the private parties knew
these existing rights-of-ways were there.
MR. HUBER answered that it is entirely possible that the right-of-
way existed and that a private property owner doesn't have specific
documentation. The rights in this bill are the ones that have been
deemed supportable and used during a time that the land qualified
as federal unreserved land prior to conveyance.
REPRESENTATIVE ELTON asked if the private party may have selected
lands without knowing these rights-of-way were there.
MR. HUBER said there was boiler plate language in the conveyance
that said this land conveyance is subjection to these existing
rights-of-way; it didn't necessary delineate the route.
CHAIRMAN JAMES said she had specific exposure on this issue in her
district when land was transferred to the University saying that
existing trails are recognized. It didn't say where they were.
This was a transfer from BLM to the State to the University.
MR. HUBER said it's pretty typical to find the language of "valid
existing rights, if any, including, but not limited to, those
created by any lease, contract, permit, right-of-way, or easement,
and the right of lessee, etc. is recognized and benefits thereby
granted to him." This means basically that other interests in the
land that exist are not extinguished in the conveyance.
REPRESENTATIVE RYAN said the portion of the R.S. 2477 that is law
says rights-of-way for construction of highways over public lands
not reserved for public use is hereby granted. In 1866, there were
vast areas of the west with nothing, the Homestead Law had recently
passed, the railroads had gotten their great push, and there was no
way to get anywhere if you didn't trespass on federal land. So all
you had to do was go out and use it and the right-of-way was
granted. That right-of-way is granted until such time as it's
revoked. If it isn't revoked, it's still in effect. In Alaska
that's very important, because once a right-of-way is there, all we
have to do is appropriate money and build a road. He thought this
is one of the most important pieces of legislation this body will
ever consider in the history of the State and he wanted to move it
as fast as possible.
Number 422
REPRESENTATIVE BERKOWITZ asked when the ANCSA conveyances were
made, were the rights-of-way grandfathered into the conveyances.
MR. HUBER answered that was correct. He said the bill requires
them to be recorded, but it doesn't create or establish a new
right. It merely codifies that those rights already exist.
CHAIRMAN JAMES added that it doesn't mean this can't be challenged.
REPRESENTATIVE BERKOWITZ asked if there would be anything stopping
the state from building a highway across these lands.
MR. HUBER answered that this bill specifically does not address the
management and scope question on R.S. 2477s which is state land and
managed like other state land by the department.
REPRESENTATIVE BERKOWITZ asked what the consequences would be if
one of the private land holders had somehow interrupted a right-of-
way.
MR. HUBER said he should address that question to the land manager,
Ms. Jane Angvik. He assumed they would treat it like any other
obstruction of state property by someone who didn't have the right
to do it.
MR. HUBER said it is important to note that both the findings and
the vacations sections of the bill that say, if you provide
reasonable alternative access, you can vacate the right-of-way. If
a school was built across an existing trail, the DNR would vacate
that portion of the trail and reroute around that obstruction, if
it was in the State's best interest.
REPRESENTATIVE BERKOWITZ said he thought that would have Fifth
Amendment "taking" implications as well.
MR. HUBER said we aren't talking about "taking;" the right-of-way
already exists. He thought the state would say a public right-of-
way had been encroached and there are several different possible
resolutions, one of which would be to vacate the existing right-of-
way for another piece to replace it.
Number 485
REPRESENTATIVE ELTON asked what the process was used in developing
the 602 rights-of-way and if there would be any interaction with
the private land owners that may be affected when this was
developed.
MR. HUBER said the process for actually establishing the list was
nominations of historic routes and then research compiled to see if
actual public use can be documented which the State believes is
supportable in court. This is more of a disclosure issue with
rights-of-way than it is a "takings" issue or a notice issue.
CHAIRMAN JAMES responded that evidence was used like old maps with
trails drawn in and interviews with people, who are old now, but
actually used the routes during the authorized time. She didn't
know if there had been public hearings per se, but there were a lot
of public hearings where the lists were provided and brochures were
sent out. People could add to the list or make suggestions.
MR. HUBER reiterated that the nomination and research process is
on-going.
Number 517
JANE ANGVIK, Director, Central Office, Division of Land, Department
of Natural Resources, testified via teleconference from Anchorage.
She said the department opposes SB 180, with sadness. They have
one principle concern which is that it requires them to record the
602 routes that potentially qualify as R.S. 2477 routes. That
action of recording, she believes, would place a cloud on the title
of third parties, principally private land owners, when we are not
yet far enough along in the research process to be able to know
exactly where the rights-of-way are located. All of what Mr. Huber
said is correct and true in that we are in an argument with the
federal government over the rights-of-way and who manages and owns
them. She is in complete accordance with Senator Halford's point
of view with respect to the state of Alaska to own and manage these
rights-of-way.
MS. ANGVIK said the process they engage in is they research the
routes first and of that 602 have been identified and they then go
through another process which is called certification. They have
only certified 11 of the routes so far. This includes a title
search to identify third party interests such as mining claims or
other private property. It goes through a 45-day public notice
period to municipalities, goes to coastal districts, village
corporations, etc. by certified mail, specifically along the route.
They finally go through a finding of fact and conclusions of law
that a R.S. 2477 grant has been accepted. In the fight between
federal and state government, the only entity that can say it
exists is a federal court. To date, we are in court over five of
these.
MS. ANGVIK said the department's concern here is that we should
continue our fight, our assertion of state's rights over ownership
of these rights-of-way. This bill places a cloud on the title of
private owners, and the state is not far enough along in our
research to say some things for certain.
MS. ANGVIK stated that in an effort to expand the transportation
corridors in the state of Alaska, it is clear the Resources
Development Council (RDC), the Alaska State Chamber of Commerce,
and the Alaska Miners Association have all said they are in favor.
However, Alaska Federation of Natives (AFN), the Rural Development
Council (RDC), and the State Chamber express concern about what
affect this bill might have on private land owners. The intent
language is designed to address the concern that recording of these
rights-of-way might place a cloud on the title of private land
owners, but it is the position of the Administration that the
intent language does not fully satisfy concerns that third party
interests will have a cloud on their title and the state can't
demonstrate that this land is exactly where we say it is.
MS. ANGVIK summed up that we are sure we have 602, but we have only
done all the homework on 11 of them, and we are in court on only 5
of them. To record them is premature. We should either certify
additional routes which requires additional research and
notification of private parties and survey them and locate them on
the ground.
Number 602
CHAIRMAN JAMES asked how long the list had been substantiated.
MS. ANGVIK answered that the list of 602 was 585 until one month
ago, so it's a dynamic list. The principal work was done by
dedicated people in Fairbanks in 1992, 1993, and 1994. In some
cases they just have a an old U.S.G.S. map that indicated it was
there. They still have to find a human being who walked it.
CHAIRMAN JAMES asked if the cloud wasn't already there, if these
aren't documented.
MS. ANGVIK answered that the cloud exists, but we don't know where.
CHAIRMAN JAMES said she is concerned that we are having land
conveyances now and no one has any authority to determine whether
anyone has legal access out there. At the rate they are going, 602
rights-of-way are going to take many years and the public needs to
know about them. She said there was an interest among lots of
parties in connecting our state and she isn't interested in a
spaghetti road system. We are interested in establishing rights-
of-way for access for gas lines, fiber optic cable, and all sorts
of other things that we want to get to people who live in western
Alaska, so they can have some of the same benefits they have in the
railbelt. If there is no effort in trying to find where these
routes are going to go, we are going to have a jumbled up mess we
can't back up on. She asked for her suggestion to speed up the
process if SB 180 isn't it.
MS. ANGVIK said she thought there were two issues; asserting
ownership, and we could certainly do that, and start using an R.S.
2477 today. If it crosses land of private individuals, she advises
to at least communicate with the private individual before one
crosses it so that they don't shoot you. She believes this right-
of-way exists. However, one is not able to go ahead and construct
highways and roads on R.S. 2477s without going through the
regulatory process in either DNR or DOT.
CHAIRMAN JAMES interrupted to ask if within the boundaries of
Native lands, they can't build a road.
MS. ANGVIK answered they could build a road on their land, the
state can't.
Number 671
MR. HUBER said that they have worked with the department a great
deal on this bill and was surprised to hear that they oppose the
bill. He did, however, hear their concerns about surveys, actual
locations on the ground, and the private property rights. He
agreed with Chairman James that the right already exists. We are
really talking about disclosure with private property owners. The
title is already clouded. He said he had talked to the real estate
community and private property concerns and their response is they
feel they have been addressed.
MR. HUBER pointed out that in a Joint meeting last February,
Senator Halford asked both Commissioner Shively and the Attorney
General if they would support recording all the routes that had
been researched and documented and put in an atlas. Both responded
that they would support that process which is what this bill does.
CHAIRMAN JAMES said she agreed and not to file these would be an
error. It would lead people to believe that a cloud was not there.
TAPE 98-44, SIDE A
Number 001
CHAIR JAMES said the public has the right to know that there may be
an assertion of a right-of-way or a cloud.
MS. ANGVIK agreed that the public should know that and believed
that through publication of the R.S. 2477 maps and efforts to work
with land owners throughout the State, they are providing people
with information. She responded to Mr. Huber's comment about
opposing the bill, that her department has always been opposed to
recording the rights-of-way, because they don't know where they
are.
CHAIRMAN JAMES said she thought they could find out where the
rights-of-way are if the need was there, but they need to know
approximately where they are to start with.
Number 081
REPRESENTATIVE ELTON asked what the process of certification was
for the 11 routes they had already certified.
MS. ANGVIK explained that they do a title search to identify all
third party interests such as mining claims, a 45-day public notice
period to municipalities, federal and state agencies, coastal
districts, and land owners by certified mail. A decision is
issued, including a finding of fact and a conclusion of law that
the R.S. 2477 right-of-way grant has been accepted. It also
includes a determination of the location and width of the right-of-
way in accordance with the law. This process is described in
regulation that was adopted in 1992.
REPRESENTATIVE ELTON asked why the five cases were in court.
MS. ANGVIK clarified that they have five R.S. 2477 lawsuits right
now. Of those five, only one has been initiated by the state where
we are asserting ownership in federal court - the Harrison/Portage
Creek Trail out of Fairbanks. Anyone can assert ownership, not
just the State. The Shultz case in Fairbanks is a private
individual who asserted a right-of-way that goes across the
military reserve. In the case of the Knik Glacier, a private
individual asserted the existence of the right-of-way across
another private person's property. In the case of the Chickaloon
Road, there is a summary judgement between the tribal organization
and the federal government over whether or not the condemnation of
a right-of-way by the federal government was in violation of tribal
interests. The department is in negotiations over the Llewellyn
Mine in Southeast Alaska with the relocation of a right-of-way that
would facilitate expansion of a mining facility. In this case it's
the mining company versus the Forest Service and the State is on
the side of the individual mining company. The state has fourteen
cases in court over the one route we are trying to assert ownership
on.
REPRESENTATIVE ELTON asked what happens if private land owners
wants to transfer property to another land owners. Is there
another process that would bump them up for certification or do
they just stand in line and wait until her department gets to them.
MS. ANGVIK answered that there is no process that bumps anyone up
in line. However, if a court orders her to go survey a route and
identify exactly where it is, they would do that. This is the way
to identify where it is and who it belongs to.
REPRESENTATIVE ELTON asked if there was any way for a private land
owner to accelerate that process.
MS. ANGVIK said what is probable is that it would be worked out so
that both sides would argue, not withstanding any existing prior
right, and then go forward.
Number 215
REPRESENTATIVE HODGINS asked he was to know what qualified as an
R.S. 2477, in reference to the Pile Bay trail to Iliamna.
MS. ANGVIK answered that R.S. 2477s that are in the bill are
rights-of-way that haven't been developed as roads. There are
other R.S. 2477s that exists in Anchorage, DeBarr Road, for
instance. Gold Stream Road in Fairbanks is another one.
REPRESENTATIVE RYAN asked if it would be another one and a half
centuries before they finish.
MS. ANGVIK answered yes.
REPRESENTATIVE RYAN said he didn't know what the problem was and
thought they were studying this thing to death.
CHAIRMAN JAMES said she can understand that this is an overwhelming
job, but the issue is what to do first. She thought the public had
a right to know about all the documented cases to date.
MS. ANGVIK responded to Representative Ryan's comment saying that
a year ago in an effort to highlight the activities associated with
the assertion and research of R.S. 2477s and the assertion of
State's rights on navigability, the legislature created a separate
BRU in the budget of the Division of Land that segregated money for
them to do navigability and R.S. 2477s. There is approximately
$200,000 which purchases the research and staff which is used
mostly in preparation for litigation. Previously, the legislature
had funded capital improvement projects worth millions of dollars
that provided staff to do the research. It is not lack of interest
on her part on doing it, it's lack of resources.
Number 300
REPRESENTATIVE HODGINS moved to pass CSSB 180(FIN) out of Committee
with individual recommendations.
REPRESENTATIVE BERKOWITZ objected, because he said this bill
invites all kinds of unintended consequences which hadn't been
adequately explored. He wanted to hear from private land owners.
He thought to go forward would cost a lot for litigation and wanted
to hear from the Department of Law or Natural Resources about the
cost of implementing this act.
CHAIRMAN JAMES retorted that there is no way they could establish
the final decision on the 602 routes without going to court. Yes,
there are unintended consequences, but there is a huge stack of
unintended consequences, if they don't pass it. The public has a
right to know what documentation exists.
REPRESENTATIVE BERKOWITZ responded that the public has access to
that information with the historic trails data base. He thought
the title and realty companies needed to be heard.
CHAIRMAN JAMES responded that now there is no platting authority in
the State for unorganized boroughs or any place where there isn't
an existing platting authority. A statute says the platting
authority files the plat; no one is looking to see if there is a
right-of-way. People are blindly transferring land in the
unorganized boroughs and don't know if they have one on their
property or not.
REPRESENTATIVE IVAN said he wasn't sure of the impact this bill
would have on regional or village corporation lands selected under
the ANCSA and said he was going to follow up on his concerns.
REPRESENTATIVE ELTON said he thought the information was already
out there. This bill asks the department to record the right-of-
way without the appropriate data to make that recording. By
enforcing that, they are creating a playground for attorneys.
A roll call vote was taken. Representatives Hodgins, Ryan, Ivan
and James voted in favor of moving the legislation.
Representatives Elton and Berkowitz voted against moving the
legislation. So CSSB 180(FIN) moved out of the House State Affairs
Standing Committee.
ADJOURNMENT
Number 428
CHAIRMAN JAMES adjourned the House State Affairs Committee meeting
at 10:00 p.m.
| Document Name | Date/Time | Subjects |
|---|