Legislature(2013 - 2014)BELTZ 105 (TSBldg)

01/24/2013 09:00 AM House STATE AFFAIRS


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09:00:40 AM Start
09:02:58 AM Overview: Federal Overreach - Presentation on State Activities Related to Rs 2477 Easements Over Federal Lands and Disputes Over Submerged Lands and Navigable Water
10:23:22 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Please Note Time & Location Change --
Joint w/ Senate STA
+ Federal Overreach: Activities of Departments of TELECONFERENCED
Law and Natural Resources
- Overview and Presentations by Department Staff
on State Activities Related to R.S. 2477
Easements Over Federal Lands and Disputes Over
Submerged Lands and Navigable Waters
                    ALASKA STATE LEGISLATURE                                                                                  
                         JOINT MEETING                                                                                        
            SENATE STATE AFFAIRS STANDING COMMITTEE                                                                           
             HOUSE STATE AFFAIRS STANDING COMMITTEE                                                                           
                        January 24, 2013                                                                                        
                           9:00 a.m.                                                                                            
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
SENATE STATE AFFAIRS                                                                                                            
                                                                                                                                
Senator Fred Dyson, Chair                                                                                                       
Senator Cathy Giessel, Vice Chair                                                                                               
Senator John Coghill                                                                                                            
Senator Bill Wielechowski                                                                                                       
                                                                                                                                
HOUSE STATE AFFAIRS                                                                                                             
                                                                                                                                
Representative Bob Lynn, Chair                                                                                                  
Representative Wes Keller, Vice Chair                                                                                           
Representative Lynn Gattis                                                                                                      
Representative Shelley Hughes                                                                                                   
Representative Doug Isaacson                                                                                                    
Representative Charisse Millett                                                                                                 
Representative Jonathan Kreiss-Tomkins                                                                                          
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
SENATE STATE AFFAIRS                                                                                                            
                                                                                                                                
Senator Bert Stedman                                                                                                            
                                                                                                                                
HOUSE STATE AFFAIRS                                                                                                             
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
OVERVIEW: FEDERAL OVERREACH - PRESENTATION ON STATE ACTIVITIES                                                                  
RELATED TO RS 2477 EASEMENTS OVER FEDERAL LANDS AND DISPUTES                                                                    
OVER SUBMERGED LANDS AND NAVIGABLE WATERS                                                                                       
                                                                                                                                
     - HEARD                                                                                                                    
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
No previous action to record.                                                                                                   
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
ED FOGELS, Deputy Commissioner                                                                                                  
Department of Natural Resources                                                                                                 
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT: Presented  information on  federal overreach                                                             
into resource development in Alaska.                                                                                            
                                                                                                                                
KENT SULLIVAN, Assistant Attorney General                                                                                       
Natural Resources Section                                                                                                       
Department of Law                                                                                                               
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Presented information on R.S. 2477.                                                                       
                                                                                                                                
SCOTT OGAN, Manager                                                                                                             
Public Access Assertion and Defense Unit                                                                                        
Division of Mining, Land & Water                                                                                                
Department of Natural Resources                                                                                                 
Anchorage, Alaska                                                                                                               
POSITION   STATEMENT:  Presented   information  on   navigability                                                             
issues.                                                                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
9:00:40 AM                                                                                                                  
CHAIR BOB LYNN  called the joint meeting of the  Senate and House                                                             
State Affairs Standing  Committees to order at  9:00 a.m. Present                                                               
at the  call to order  were Senators Coghill, Giessel,  and Chair                                                               
Dyson,  and  Representatives  Gattis, Hughes,  Isaacson,  Keller,                                                               
Millet, and  Chair Lynn. Senator Wielechowski  and Representative                                                               
Kreiss-Tomkins arrived shortly thereafter.                                                                                      
                                                                                                                                
^OVERVIEW: FEDERAL OVERREACH - PRESENTATION ON STATE ACTIVITIES                                                             
  RELATED TO RS 2477 EASEMENTS OVER FEDERAL LANDS AND DISPUTES                                                              
            OVER SUBMERGED LANDS AND NAVIGABLE WATER                                                                        
                                                                                                                                
9:02:58 AM                                                                                                                    
CHAIR DYSON introduced  the topic of the meeting, as  well as the                                                               
testifiers. He  said that Ed  Fogels is a Deputy  Commissioner at                                                               
the  Department  of  Natural Resources  and  is  responsible  for                                                               
overseeing five  divisions - Agriculture, Forestry,  Mining, Land                                                               
and Water,  Parks and  Recreation and  Support Services.  He said                                                               
that  Scott Ogan,  a long-time  friend, leads  the Department  of                                                               
Natural Resources' Land's Navigability  Project with a mission to                                                               
protect the  public rights associated  with navigable  and public                                                               
waters, and  to ensure  that the state's  title to  lands beneath                                                               
navigable  waters  is  protected.  He  noted  the  importance  of                                                               
today's topic.  He quoted  former-president Dwight  D. Eisenhower                                                               
who said,  "Don't let the  pressing keep  you from doing  what is                                                               
important."                                                                                                                     
                                                                                                                                
9:05:06 AM                                                                                                                    
ED FOGELS, Deputy Commissioner,  Department of Natural Resources,                                                               
introduced  the   topic  of  "Federal  Overreach   into  Resource                                                               
Development in  Alaska." He said  he would review the  history of                                                               
the Statehood  Act in order  to explain how the  state determined                                                               
its land position.                                                                                                              
                                                                                                                                
MR. FOGELS  related that  Alaska was purchased  in 1867.  In 1884                                                               
Congress  extended  the  Federal  Mining  Law  to  Alaska,  which                                                               
allowed  mining  claims  to  be   staked.  In  1903  the  federal                                                               
government   allowed  homesteading   in   Alaska.  Many   federal                                                               
conservation   units  and   national  parks   and  refuges   were                                                               
established before statehood, such  as Mount McKinley and Glacier                                                               
Bay  National Parks,  National  Petroleum Reserve-Alaska  (NPRA),                                                               
Katmai  National   Park,  Kenai  and  Kodiak   National  Wildlife                                                               
Refuges, and the Tongass and Chugach National Forests.                                                                          
                                                                                                                                
CHAIR  DYSON  recalled  that  NPRA  was  set  aside  as  a  Naval                                                               
petroleum reserve.                                                                                                              
                                                                                                                                
MR. FOGELS  related that  on July  7, 1958,  President Eisenhower                                                               
signed the Alaska  Statehood Act. The Act  originally gave Alaska                                                               
103  million  acres  of  a   land  entitlement.  With  subsequent                                                               
legislation,  that was  expanded to  the 105.8  million acres  of                                                               
land that is  the current entitlement. Alaska was  given 25 years                                                               
to  make land  selections. Subsequent  legislation extended  that                                                               
window to  1994 to finalize  selections. As of today,  Alaska has                                                               
received all but about 5.5 million acres of its entitlement.                                                                    
                                                                                                                                
9:09:06 AM                                                                                                                    
REPRESENTATIVE  ISAACSON  inquired  if  those lands  are  in  the                                                               
state's  possession with  clear  title or  if  they are  awaiting                                                               
transfer.                                                                                                                       
                                                                                                                                
MR. FOGELS  explained that the  100 million acres the  state owns                                                               
has been  transferred to the  state. When a state  first receives                                                               
land from  the federal government  it is referred to  as "interim                                                               
conveyed," or tentatively  approved. It has not  been surveyed or                                                               
patented. The vast  majority of those lands  today are considered                                                               
tentatively  approved,  which  gives the  state  full  management                                                               
rights.                                                                                                                         
                                                                                                                                
REPRESENTATIVE  ISAACSON asked  for clarification  of tentatively                                                               
approved land. He asked if  it could be sold without restriction,                                                               
even though the state does not have clear title.                                                                                
                                                                                                                                
MR. FOGELS  replied that the state  does not have patents  to the                                                               
lands,  but  it  does  have full  management  authority  and  the                                                               
ability to sell the land.                                                                                                       
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if  there  was a  plan  for the  5.5                                                               
million acres that remains.                                                                                                     
                                                                                                                                
MR. FOGELS  explained that half  of the  5.5 million acres  is in                                                               
federal   withdrawals,  military   reservations,  and   the  TAPS                                                               
pipeline corridor.  He noted that  those are very  valuable lands                                                               
that the state  would like to have some day.  The state will keep                                                               
those acres in mind for the  purpose of selection at a later date                                                               
if they become  available. The remaining half of  the 5.5 million                                                               
acres is available to the state now.                                                                                            
                                                                                                                                
He said  as the state decides  how to use the  remaining acreage,                                                               
the process  becomes more complicated.  Under the  Statehood Act,                                                               
the state  was allowed to over  select lands - up  to 125 percent                                                               
of  the actual  number of  acres. Native  Corporations were  also                                                               
allowed  to over  select by  the  same percentage.  He said  that                                                               
Native claims must  be decided ahead of state  claims. The Bureau                                                               
of Land  Management must adjudicate  and decide whether  to award                                                               
the  land to  the Native  Corporation  first. He  noted that  the                                                               
remaining entitlements  are over  selected by about  200 percent,                                                               
which is contrary to Alaska  National Interest Lands Conservation                                                               
Act  (ANILCA) provisions.  The federal  government has  requested                                                               
that the state relinquish selections.                                                                                           
                                                                                                                                
CHAIR DYSON asked for clarification.                                                                                            
                                                                                                                                
MR. FOGELS stated  that the federal government would  like to see                                                               
Alaska's selections at  125 percent over the  selection level. He                                                               
explained  that the  Governor  is in  the  process of  collecting                                                               
resource data and is trying to delay giving back selections.                                                                    
                                                                                                                                
He maintained  that there is no  rush at this time  for the state                                                               
to  finish the  selection  process. The  state  is attempting  to                                                               
understand more about its resource values first.                                                                                
                                                                                                                                
9:14:18 AM                                                                                                                    
REPRESENTATIVE HUGHES asked how much  of the 5.5 million acres is                                                               
left and if it is a part of the over selection.                                                                                 
                                                                                                                                
MR.  FOGELS  explained   that  the  5.5  million   acres  is  the                                                               
entitlement the state will eventually  receive. He said the state                                                               
is 200 percent over selected.                                                                                                   
                                                                                                                                
REPRESENTATIVE  HUGHES noted  the  selection  timeline ending  in                                                               
1994 and wondered why the state is not honoring it.                                                                             
                                                                                                                                
MR.  FOGELS clarified  that  1994 was  the  state's deadline  for                                                               
submitting selections,  which the  state has done.  It was  not a                                                               
date by which the state was  to receive lands. The state can only                                                               
whittle down  the already-made selections.  There is  no timeline                                                               
for the  federal government when  deciding which lands  the state                                                               
will end up owning.                                                                                                             
                                                                                                                                
REPRESENTATIVE HUGHES stated  that some of the  "hoped for" lands                                                               
are on the list.                                                                                                                
                                                                                                                                
MR. FOGELS said that was correct.                                                                                               
                                                                                                                                
CHAIR  DYSON asked  if land  designated for  parks or  wilderness                                                               
areas comes  out of the  federal share  or the state's  share. He                                                               
wondered if it could come out of Alaska's 105 million acres.                                                                    
                                                                                                                                
MR. FOGELS  did not think  so. He  explained that park  lands are                                                               
selected  from  Bureau  of  Land  Management  (BLM)  multiple-use                                                               
lands.  He said  the state  would fight  back on  that issue.  He                                                               
added that  ANILCA prohibits further expansion  of Alaska's lands                                                               
for national parks.                                                                                                             
                                                                                                                                
9:17:47 AM                                                                                                                    
SENATOR WIELECHOWSKI asked if there was  a map of the 5.5 million                                                               
acres.  He inquired  about  the legislature's  role  in the  land                                                               
selection process.                                                                                                              
                                                                                                                                
MR.  FOGELS offered  to  provide  a map  of  all  of the  state's                                                               
selected  areas.  He  explained  that  DNR  has  prioritized  the                                                               
selections  so that  the  federal government  is  aware of  their                                                               
importance to  the state. The  selections are adjusted  from time                                                               
to time  pending new  information. At this  point, the  state has                                                               
made the  selections and  the commissioner of  DNR will  now work                                                               
with BLM to accept or reject the selections.                                                                                    
                                                                                                                                
MR. FOGELS  continued to  say that after  the Statehood  Act, the                                                               
Native Claims Act  had not yet been settled yet.  In 1968 Prudhoe                                                               
Bay was discovered and it was  necessary to find a route for TAPS                                                               
to  Valdez.  That forced  the  Native  Claims issue.  The  Alaska                                                               
Native  Claims Settlement  Act  (ANCSA) was  signed  into law  in                                                               
1971.                                                                                                                           
                                                                                                                                
He  noted that  while  the state  was trying  to  figure out  the                                                               
Native Claims  issue, the federal government  froze Alaska's land                                                               
selections  and  transfers,  and  rejected most  of  the  state's                                                               
selections. During  the ANCSA debate,  people were  talking about                                                               
withdrawing   lands  for   the   Native   corporations  and   for                                                               
conservation system  units. That  issue was  tabled, but  the "V2                                                               
Lands  Debate" provision  withdrew most  of the  good lands  from                                                               
state selection.  He related  that when  ANILCA was  finalized in                                                               
1980, Alaska lost many valuable lands.                                                                                          
                                                                                                                                
9:22:16 AM                                                                                                                    
CHAIR DYSON  asked if the same  was true with ANSCA.  He wondered                                                               
if the lands awarded came from the state.                                                                                       
                                                                                                                                
MR. FOGELS explained that since  the state's land selections were                                                               
frozen by  the federal government, Native  corporations were able                                                               
to  select some  of those  lands and  the state's  selection pool                                                               
shrank.                                                                                                                         
                                                                                                                                
MR.  FOGELS said  that in  1980 President  Carter signed  ANILCA,                                                               
which drew  100 million acres  into conservation system  units in                                                               
Alaska.  He listed  the  lands that  were  lost for  development:                                                               
Orange  Hill  Deposit in  Wrangell  St.  Elias, copper  deposits,                                                               
Misty Fjords National Monument, Admiralty Island Monument.                                                                      
                                                                                                                                
REPRESENTATIVE ISAACSON  asked if  ANILCA was an  executive order                                                               
or was passed by Congress.                                                                                                      
                                                                                                                                
MR. FOGELS said it was passed by Congress.                                                                                      
                                                                                                                                
He  said ANILCA  was  designed to  protect  Alaskan's rights  and                                                               
needs  for  traditional  access. Congress  set  aside  management                                                               
provisions that federal  land managers are supposed  to take into                                                               
account. He noted  that ANILCA has two "no  more" provisions that                                                               
forbids the establishment  of more wildlife refuges.  He spoke of                                                               
letters the  state has  written to  BLM addressing  violations of                                                               
the  "no  more"  clause.  There  is an  office  within  DNR  that                                                               
monitors federal land activity.                                                                                                 
                                                                                                                                
9:26:51 AM                                                                                                                    
REPRESENTATIVE KELLER emphasized that  those who were around when                                                               
ANILCA  was passed  were very  upset that  60 percent  of Alaskan                                                               
land was off limits. He  stressed that protections were laid down                                                               
and must be strictly paid attention to.                                                                                         
                                                                                                                                
MR.  FOGELS gave  a current  example  - the  Delta River  Special                                                               
Management  Area,  where the  state  protest  was denied  by  the                                                               
Secretary of the Interior.                                                                                                      
                                                                                                                                
MR.  FOGELS touched  on  the Outer  Continental  Shelf Lands  Act                                                               
(OCSLA) created  on August 7,  1953. The state  manages submerged                                                               
lands  out  for  three  miles;  the  federal  government  manages                                                               
submerged lands from there to the territorial limit.                                                                            
                                                                                                                                
He referred  to the state  land status  map which he  said hasn't                                                               
changed much.  He summarized  status of  the remaining  lands and                                                               
the need  for more  information. In addition  to the  105 million                                                               
acre  land entitlement,  Alaska  also owns  65  million acres  of                                                               
submerged lands, tide line lands, and shore line lands.                                                                         
                                                                                                                                
9:31:11 AM                                                                                                                    
REPRESENTATIVE HUGHES  requested clarification  of the  colors on                                                               
the map.                                                                                                                        
                                                                                                                                
MR. FOGELS  related that the  blue lands equal about  100 million                                                               
acres  of entitled  lands, the  largest land  entitlement of  any                                                               
state. That land was intended  for use for economic independence.                                                               
The green land  is ANILCA. The pink lands  are Native Corporation                                                               
lands, and brown lands are BLM federal, multi-use lands.                                                                        
                                                                                                                                
He offered to answer questions.                                                                                                 
                                                                                                                                
CHAIR DYSON complimented Mr. Fogels on his presentation.                                                                        
                                                                                                                                
MR.   FOGELS  concluded   that  the   state  must   build  strong                                                               
relationships with the federal  government. The Interstate Mining                                                               
Compact  Commission (IMCC)  -  Senator  Giessel's SB  2  - is  an                                                               
important way to  band together with other  states regarding mine                                                               
issues.                                                                                                                         
                                                                                                                                
He  explained  the  Super  Fund  Law  -  CERCLA  108(b)  -  EPA's                                                               
initiative to assume  control of bonding for  hardrock mining. He                                                               
termed  it worrisome.  He said  the bonding  part determines  the                                                               
cost of  reclamation. Whoever has  control over  bonding controls                                                               
the  money. He  suggested that  IMCC  is the  vehicle to  prevent                                                               
federal control over  bonding. Currently, EPA looks  at Alaska as                                                               
a state that is doing it right, with respect to bonding.                                                                        
                                                                                                                                
9:37:24 AM                                                                                                                    
CHAIR  DYSON pointed  out  a resolution  written  last year  that                                                               
supported DNR's efforts  towards state independence. Commissioner                                                               
Sullivan  said that  it is  valuable  that the  people of  Alaska                                                               
support state  control. He asked  if another resolution  would be                                                               
supportive.                                                                                                                     
                                                                                                                                
MR.  FOGELS said  he would  take that  idea back  to Commissioner                                                               
Sullivan.                                                                                                                       
                                                                                                                                
He continued  to discuss IMCC  and its  organizational structure.                                                               
The  Office  of Surface  Mining  is  the  federal body  that  has                                                               
delegated coal  mine regulation  to the states.  In the  last few                                                               
years they have established an  Enhanced Oversight Directive that                                                               
scrutinizes states  inappropriately. Mining states  are disturbed                                                               
by this initiative so IMCC has taken it on.                                                                                     
                                                                                                                                
He pointed  out that IMCC  is also working on  Endangered Species                                                               
Act issues.                                                                                                                     
                                                                                                                                
MR. FOGELS stressed that DNR  sees federal overreach coupled with                                                               
decreasing resources  of the U.S.  Army Corps of Engineers,  as a                                                               
serious  concern  to  Alaska's  economic health.  At  once  time,                                                               
federal agencies  recognized that Alaska's wetland  situation was                                                               
unique in  the nation and  agreed to handle permitting  with more                                                               
flexibility (the  Alaska Joint  Memorandum). It  is not  clear if                                                               
the federal  agencies have been  implementing this  Memorandum in                                                               
recent years.                                                                                                                   
                                                                                                                                
He noted that the Governor has  introduced HB 78 and SB 27, bills                                                               
that  establish authority  for  the state  to  evaluate and  seek                                                               
primacy  for wetlands  permitting. He  emphasized that  Alaska is                                                               
unique and should have more flexibility on wetlands permitting.                                                                 
                                                                                                                                
9:42:28 AM                                                                                                                    
REPRESENTATIVE  ISAACSON  asked  how   much  of  the  cooperative                                                               
agreement  with the  Corps  is affected  by  recent U.S.  Supreme                                                               
Court decisions that make any standing water wetlands.                                                                          
                                                                                                                                
MR.  FOGELS  agreed that  the  Supreme  Court decisions  put  new                                                               
sideboards on  how wetlands are  delineated and  make reclamation                                                               
decisions difficult. He gave an  example of mining in the 40-Mile                                                               
district  and   fears  of   compensatory  mitigation   costs  for                                                               
wetlands. He said DNR believes  that if Alaska can assume primacy                                                               
the state will have much more control over wetlands policies.                                                                   
                                                                                                                                
CHAIR  DYSON  asked  committee  members  to  consider  additional                                                               
questions to submit to DNR.                                                                                                     
                                                                                                                                
REPRESENTATIVE MILLETT asked  Mr. Fogels if he  would discuss the                                                               
National   Ocean  Policy,   which  is   not  going   through  the                                                               
congressional legislative process, and  what it means to Alaska's                                                               
coastline.                                                                                                                      
                                                                                                                                
MR. FOGELS  replied that DNR  has not had a  lot to do  with that                                                               
initiative. He  noted the  Governor has  concern about  where the                                                               
federal  government  is  going with  National  Ocean  Policy.  He                                                               
offered to provide more information at a later date.                                                                            
                                                                                                                                
He  discussed  the  President's   Interagency  Working  Group  on                                                               
Coordination  of Domestic  Energy Development  and Permitting  in                                                               
Alaska (IAWG),  which was  established by  an executive  order to                                                               
help  permitting and  efficient development  of energy  resources                                                               
development.  He noted  that Alaska  did not  get a  seat on  the                                                               
working group  and was told that  it is a federal  working group.                                                               
He reported increasingly better  communication with the group and                                                               
he  hoped that  it would  help with  wetlands permitting  issues,                                                               
especially  on the  Outer Continental  Shelf  (OCS). He  believed                                                               
that  IAWG  would be  addressing  National  Ocean Policy  issues,                                                               
also. The  group was tasked  with writing a report  on Integrated                                                               
Artic  Management. He  referenced letters  from the  Governor and                                                               
from himself to Deputy Secretary  Hayes that basically stated the                                                               
state's concerns  about Arctic management. The  letters said what                                                               
was not needed  is additional layers of  governance or regulatory                                                               
activity.  What is  needed is  a more  collaboration relationship                                                               
with the federal government.                                                                                                    
                                                                                                                                
9:49:32 AM                                                                                                                    
KENT  SULLIVAN,  Assistant  Attorney General,  Natural  Resources                                                               
Section, Department  of Law, presented information  on R.S. 2477.                                                               
He said that R.S.  2477 arose out of Section 8  of the Mining Law                                                               
of 1866  and was later  re-designated as Section 2477  of Revised                                                               
Statutes of  1878. It  was a simple  one sentence  enactment that                                                               
says,  "The right-of-way  for the  construction of  highways over                                                               
public lands, not reserved for public uses, is hereby granted."                                                                 
                                                                                                                                
He  related that  the grant  is  self-executing -  it comes  into                                                               
being automatically  when a public highway  is established across                                                               
public  lands  in accordance  with  the  law  of the  state.  All                                                               
rights-of-way  existing on  the date  of repeal  of R.S.  2477 in                                                               
1977  were expressly  preserved. He  described how  rights-of-way                                                               
come into being: when the  elements have been satisfied for their                                                               
creation and federal  courts have said, "We'll look  to state law                                                               
to determine whether or not  those elements have been satisfied."                                                               
Each state has  different requirements to show  whether R.S. 2477                                                               
has been fulfilled.                                                                                                             
He explained that R.S. 2477 is  a grant by the federal government                                                               
as  an offer  for  a right-of-way  that can  be  accepted by  the                                                               
states  and by  the  public.  In Alaska,  the  acceptance can  be                                                               
manifested   by  public   use  or   through  actions   by  public                                                               
authorities.                                                                                                                    
                                                                                                                                
MR.   SULLIVAN  related   how  highways   came  to   be  defined.                                                               
Historically, highways  included foot  trails, pack  trails, sled                                                               
dog trails,  crudely built  wagon roads,  and other  corridors of                                                               
transportation.  Under   AS  19.45.001(9),  highways   include  a                                                               
highway,  road, street,  trail,  walk,  bridge, tunnel,  drainage                                                               
structure,   and  other   similar   or   related  structures   or                                                               
facilities.                                                                                                                     
                                                                                                                                
He  discussed  how  R.S.  2477 applies  to  Alaska.  It  includes                                                               
historic routes which exist not  only on federal lands, including                                                               
present day BLM, Park Service,  and Forest Service land, but also                                                               
on former federal lands which are  now held by the state or owned                                                               
by private parties, including Native corporations.                                                                              
                                                                                                                                
CHAIR DYSON asked if Native land is included.                                                                                   
                                                                                                                                
MR. SULLIVAN said it was included, as well as homesteaded land.                                                                 
                                                                                                                                
CHAIR DYSON asked if there  is a mechanism for someone purchasing                                                               
land to research whether there is  an old route on the land which                                                               
might be re-activated.                                                                                                          
                                                                                                                                
MR.  SULLIVAN  said  not  necessarily. It  is  a  legal  interest                                                               
similar to  prescriptive and implied  easements. It  is incumbent                                                               
upon the  private property  owner to  research the  background of                                                               
the  property. He  noted that  DNR has  a database  of recognized                                                               
R.S. 2477's.                                                                                                                    
                                                                                                                                
CHAIR  DYSON asked  if that  information is  included in  a title                                                               
company search.                                                                                                                 
                                                                                                                                
MR. SULLIVAN  said no.  Title companies  search only  things that                                                               
have been recorded, such as deeds and easements.                                                                                
                                                                                                                                
9:57:10 AM                                                                                                                    
REPRESENTATIVE  ISAACSON  used an  example  of  a person  in  the                                                               
Bettles area  and asked  what happens when  primacy is  denied in                                                               
spite of supporting documents.                                                                                                  
                                                                                                                                
MR.  SULLIVAN replied  that in  Alaska,  there are  many ways  to                                                               
assert  the existence  of an  R.S. 2477,  which is  a state-owned                                                               
interest.  However, the  courts  have recognized  the ability  of                                                               
private parties  to assert  interest with  regard to  R.S. 2477's                                                               
themselves.                                                                                                                     
                                                                                                                                
REPRESENTATIVE ISAACSON clarified an  example of restricted trail                                                               
access.  He  inquired  about  the  policy  to  maintain  a  clear                                                               
highway.                                                                                                                        
                                                                                                                                
MR.  SULLIVAN noted  that  every dispute  is  different. In  some                                                               
instances the  state has intervened  and initiated  litigation to                                                               
remove blockage of an R.S. 2477,  and in some instances they have                                                               
not. There are many blockage issues out there.                                                                                  
                                                                                                                                
REPRESENTATIVE ISAACSON  asked how long  it takes DNR  to resolve                                                               
these issues.                                                                                                                   
                                                                                                                                
MR. SULLIVAN said  it depends on if there is  an existing file or                                                               
not.  He  stated   that  his  background  is   in  real  property                                                               
litigation. He said  R.S. 2477 cases are  extremely difficult and                                                               
complex due to the need  to research ancient claims or documents,                                                               
or to find living witnesses, and federal immunity issues.                                                                       
                                                                                                                                
10:04:07 AM                                                                                                                   
MR.  SULLIVAN spoke  of controversy  surrounding R.S.  2477. From                                                               
the  federal  agency  perspective,   R.S.  2477  was  created  in                                                               
anticipation of  travel needs. He  pointed out that  federal land                                                               
managers  began   to  emphasize   conservation  as   the  highest                                                               
priority,  which   caused  problems.  From   an  environmentalist                                                               
perspective, there  is fear  that R.S.  2477 is  being used  as a                                                               
land grab.  They are afraid  of what  may happen if  ownership of                                                               
the  right of  ways is  given  to the  state, as  opposed to  the                                                               
federal government.                                                                                                             
                                                                                                                                
He shared  Utah's current  efforts with  pursuing R.S  2477's the                                                               
last 15 or 20 years.  Utah has statute-of-limitation concerns and                                                               
was forced  to file  all claims  by June of  2012. They  filed 22                                                               
separate cases involving over  10,000 rights-of-way. He concluded                                                               
that Alaska  can learn much  from Utah's efforts,  although there                                                               
are many differences between the two states.                                                                                    
                                                                                                                                
CHAIR DYSON  thanked Mr. Sullivan for  providing such interesting                                                               
information.                                                                                                                    
                                                                                                                                
10:09:31 AM                                                                                                                   
At-Ease                                                                                                                         
                                                                                                                                
10:10:14 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  KELLER  explained  the  goals  of  the  Citizen's                                                               
Advisory Commission  on Federal  Areas (CCACFA). He  related that                                                               
CCACA works  with state and  federal agencies on land  issues. He                                                               
provided a brief history of the organization.                                                                                   
                                                                                                                                
10:13:23 AM                                                                                                                   
At-ease                                                                                                                         
                                                                                                                                
10:16:50 AM                                                                                                                   
SCOTT OGAN, Manager, Navigability  Project, Department of Natural                                                               
Resources,  Division  of  Mining,  Land &  Water,  Department  of                                                               
Natural  Resources, provided  information  on  the Public  Access                                                               
Assertion and  Defense Unit  (PAAD). He  shared the  PAAD mission                                                               
statement, which is  to protect the Alaska  lifestyle through the                                                               
assertion  and defense  of access  to Alaska's  public lands  and                                                               
waters.  He  listed statewide  policy  issues  such as  statehood                                                               
entitlements, navigability,  R.S. 2477, ANCSA easements,  as well                                                               
as day-to-day litigation  strategies. He said he  was overseen by                                                               
a  group called  the  Interagency Navigability  and Access  Team,                                                               
made up of representatives from DNR, DF&G, and DOL.                                                                             
                                                                                                                                
He  mentioned the  Equal Footing  Doctrine, which  says that  all                                                               
states  are admitted  to the  union on  equal footing  with other                                                               
states, including the 1953 Submerged  Land Act, which granted the                                                               
title  to submerged  lands beneath  navigable  waters. He  listed                                                               
case  law examples,  such as  Daniel  Ball, Utah,  Kandik/Nation,                                                               
Gulkana,  and PPL  Montana. He  said the  Supreme Court  affirmed                                                               
Alaska's opinion in all cases.                                                                                                  
                                                                                                                                
10:22:30 AM                                                                                                                   
CHAIR DYSON thanked the presenters.                                                                                             
                                                                                                                                
CHAIR LYNN also thanked the presenters.                                                                                         
                                                                                                                                
10:23:22 AM                                                                                                                   
There being  no further  business to  come before  the committee,                                                               
Chair Dyson  adjourned the Joint  Senate and House  State Affairs                                                               
Committees at 10:23 a.m.                                                                                                        
                                                                                                                                

Document Name Date/Time Subjects
13.01.24 R.S. 2477 PowerPoint Presentation.pptx HSTA 1/24/2013 9:00:00 AM
Dept of Law PowerPoint Presentation - R.S. 2477
Fogels_Alaskas Land History_Senate State Affairs_1-24-13.pdf HSTA 1/24/2013 9:00:00 AM
Fogels Alaska Land History Senate State Affairs
Joint State Affairs 1-24-13 IAM Letter to Hayes 11-16-12.pdf HSTA 1/24/2013 9:00:00 AM
Joint State Affairs 1-24-13 IAM Letter
Joint State Affairs DNR Navigability 1.24.13.pdf HSTA 1/24/2013 9:00:00 AM
Joint State Affairs DNR Navigability 1-24-2013
Joint State Affairs Presidential Executive Order 13580.pdf HSTA 1/24/2013 9:00:00 AM
Joint State Affairs Presidential Executive Order