Legislature(1997 - 1998)

03/31/1998 08:00 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
       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.                                                                  

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