Legislature(2013 - 2014)CAPITOL 106
02/26/2013 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| Overview: Federal Overreach: Activities of Departments of Law and Natural Resources | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
JOINT MEETING
HOUSE STATE AFFAIRS STANDING COMMITTEE
SENATE STATE AFFAIRS STANDING COMMITTEE
February 26, 2013
8:01 a.m.
MEMBERS PRESENT
HOUSE STATE AFFAIRS
Representative Bob Lynn, Chair
Representative Wes Keller, Vice Chair
Representative Lynn Gattis
Representative Shelley Hughes
Representative Doug Isaacson
Representative Jonathan Kreiss-Tomkins
SENATE STATE AFFAIRS
Senator Fred Dyson, Chair
Senator Cathy Giessel, Vice Chair
Senator John Coghill
MEMBERS ABSENT
HOUSE STATE AFFAIRS
Representative Charisse Millett
SENATE STATE AFFAIRS
Senator Bert Stedman
Senator Bill Wielechowski - excused
COMMITTEE CALENDAR
OVERVIEW: FEDERAL OVERREACH: ACTIVITIES OF DEPARTMENTS OF LAW
AND NATURAL RESOURCES
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
SCOTT OGAN, Manager
Public Access Assertion and Defense Unit
Division of Mining, Land and Water
Department of Natural Resources (DNR)
Anchorage, Alaska
POSITION STATEMENT: Presented an overview on federal overreach
related to activities of the Departments of Law and Natural
Resources.
KENT SULLIVAN, Assistant Attorney General
Natural Resources Section
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided information during the overview on
federal overreach related to activities of the Departments of
Law and Natural Resources.
JOANNE BLACKBURN
Anchorage, Alaska
POSITION STATEMENT: Testified during the overview regarding
federal overreach and the activities of the Departments of Law
and Natural Resources.
STAN LEAPHART Executive Director
Advisory Commission on Federal Areas
Department of Natural Resources
Fairbanks, Alaska
POSITION STATEMENT: Gave a PowerPoint presentation regarding
the Advisory Commission on Federal Areas.
ACTION NARRATIVE
8:01:03 AM
CHAIR BOB LYNN called the joint meeting of the House and Senate
State Affairs Standing Committees to order at 8:01 a.m.
Representatives Keller, Isaacson, and Lynn, and Senators Giessel
and Dyson were present at the call to order. Representatives
Gattis, Hughes, and Kreiss-Tomkins, and Senator Coghill arrived
as the meeting was in progress.
8:01:05 AM
CHAIR LYNN handed the gavel to Chair Dyson.
8:01:07 AM
^OVERVIEW: Federal Overreach: Activities of Departments of Law
and Natural Resources
OVERVIEW: Federal Overreach: Activities of Departments of Law
and Natural Resources
8:01:40 AM
CHAIR DYSON announced that the only order of business was the
overview regarding federal overreach: activities of the
Departments of Law and Natural Resources.
8:01:59 AM
SCOTT OGAN, Manager, Public Access Assertion and Defense Unit,
Division of Mining, Land and Water, Department of Natural
Resources (DNR), presented an overview on federal overreach
related to the activities of the Departments of Law and Natural
Resources. He said under the Equal Footing Doctrine, each state
was admitted to the Union on equal footing with all the other
states. He said the Submerged Lands Act of 1953 granted title
to lands beneath navigable waters. He indicated that the states
were left with the task of sorting out which waters are
navigable. He mentioned Daniel Ball, a case during the civil
war to determine whether a river was capable of being used for
travel, trade, or commerce, because if it was, it would be
considered navigable for title purposes. He said the problem in
Alaska is there are so many rivers and there is so little
historical information, it is an intensive job to research that
history. He indicated that the division employs three people
within the Office of History and Archeology, within DNR, to
assist with the research. He relayed that the money given by
the federal government to put toward that effort is almost gone.
He offered his understanding that "there's an increment in the
budget to the state to pick up that effort."
MR. OGAN talked about case law. He said [states] are not
allowed to reclaim lands that were withdrawn before statehood.
He mentioned a case in Utah, regarding the Salt Lake, where a
determination was made that "it did not defeat state title." He
explained that there has to be a clear and convincing argument
that U.S. Congress expressly intends to defeat state title,
otherwise there is a good chance that the state can prove it
owns the riverbed. He said Kandik and Nation rivers were deemed
navigable by the 9th Circuit Court of Appeals. The case was
appealed to the U.S. Supreme Court and denied. He mentioned
another case involving John Sturgeon, who was threatened to be
cited for operating his [hovercraft] on the Nation River, which
is basically a state sovereign river. Mr. Ogan said that in
this case, "they are basically using the Reserve Water Rights
Doctrine as ... an authority that gives them the right to
regulate." He said the doctrine states that "if water came off
federal lands and it's in a state river, [then] that extends
their jurisdiction into that river in case law precedence." He
relayed that Alaska National Interest Lands Conservation Act
(ANILCA) was set by the Katie John case, which is the authority
by which subsistence fisheries are managed.
MR. OGAN offered his understanding that the Gulkana River was
the first and possibly last river on which the state, about 20
years ago, achieved a quiet title action. He said that was an
important case because it addressed the issue of susceptibility.
He said [the river] did not have to be used for travel, trade,
and commerce, but if the river has not changed its natural and
ordinary condition since statehood and can currently be used, it
is considered susceptible to navigation, which is why "it's
stayed on." Mr. Ogan indicated the department has made some
progress getting the U.S. Bureau of Land Management (BLM) to
clear titles based on susceptibility.
8:07:46 AM
MR. OGAN said in PPL Montana, LLC v. Montana, a power company
sued the State of Montana for back revenues in rents for space
for a dam, claiming navigability. He said most of the river in
question is navigable, but that particular section is not;
therefore, the court decided in favor of the state. Mr. Ogan
said that case changed the department's thinking to consider
parts of rivers that may not be navigable and, thus, may not
belong to the state. He said by riparian law, the upland land
owner owns the bed of the river if the state does not own it.
He said, "We're pretty happy with where it went, because it
really strengthened the susceptibility argument, and the [U.S.]
Supreme Court said that ... modern day boats, if they ...
navigate the river - then it's ... state owned. So, generally
we're pretty happy with the clarity."
8:09:10 AM
MR. OGAN directed attention to the next slide, which asks, "Is
it Navigable?" He said the question can mean whether the river
is navigable "for title" or "for public trust purposes." He
relayed that in statute, submerged lands are considered lands
beyond the mean low tide mark in salt water; tidelands are those
lands between mean low and mean high; and shorelands relate to
fresh water lakes and rivers.
8:10:13 AM
SENATOR DYSON asked Mr. Ogan to confirm that the land between
mean high and low water is always public land and public access.
MR. OGAN answered that is correct. He said the state owns the
tidelands and all the way to the mean high tide mark. He said
people often confuse mean high tide with ordinary high water.
He clarified that ordinary high water is the riparian boundary.
In response to Chair Dyson, he said riparian boundary means the
line between the submerged lands and the uplands. He said this
definition is taken from the Daniel Ball case, and, [as shown on
the slide entitled, "Title Navigability"], is in AS
38.04.062(g)(1), which read as follows:
(1) "navigable water" means water that, at the time the
state achieved statehood, was used, or was susceptible of being
used, in its ordinary condition as a highway for commerce over
which trade and travel were or could have been conducted in the
customary modes of trade and travel on water; the use or
potential use does not need to have been without difficulty,
extensive, or long and continuous;
MR. OGAN said the definition of navigability is broad, as seen
in AS 38.05.965(13), which read as follows:
(13) "navigable water" means any water of the state
forming a river, stream, lake, pond, slough, creek,
bay, sound, estuary, inlet, strait, passage, canal,
sea or ocean, or any other body of water or waterway
within the territorial limits of the state or subject
to its jurisdiction, that is navigable in fact for any
useful public purpose, including but not limited to
water suitable for commercial navigation, floating of
logs, landing and takeoff of aircraft, and public
boating, trapping, hunting waterfowl and aquatic
animals, fishing, or other public recreational
purposes;
MR. OGAN stated, "It's navigable under statute, but it doesn't
mean that we own it." He said the ownership test is based on
the aforementioned Daniel Ball federal case. He said, "That's
the standard that we fight when we do a quiet title action."
However, regarding public trusts, Article 8, Section 14 of the
Constitution of the State of Alaska says that the people have
the right to access the navigable waters of the state, as
defined by the legislature, and the legislature has defined
navigable as almost any public purpose. He said, "So,
notwithstanding the ownership of that land underneath it, the
people have the right to access the waters in the state of
Alaska, and it's a constitutional right." He indicated that
tension can develop when BLM purports to convey a riverbed. He
explained, "Sometimes we believe they convey riverbeds that
belong to the state." He said the underlying property owner,
usually a Native corporation or village corporation, believes it
has the right to control who goes on a particular river and will
sometimes "lease that exclusive right to a lodge," for example.
Then people show up in anticipation of using the river bed and
are told it is private property. He said, "That's going to be
an issue that's going to come to the forefront, because we're
being pretty adamant that the public has a right to use it. ...
They can't trespass an upland when they get to that water - it
doesn't give them that right - but it certainly gives them the
right to be on that river."
8:14:07 AM
SENATOR DYSON asked Mr. Ogan to talk how the Alaska National
Interest Lands Conservation Act (ANILCA) conflicts with the
Constitution of the State of Alaska and traditional land use.
He asked who decides which law is supreme.
MR. OGAN answered that ultimately it is the court that makes the
final decision regarding a quiet title action. He mentioned a
recordable disclaimer of interest process, which was negotiated
between the state and the federal government, through which if
both parties agree that a body of water is navigable, the
federal government will disclaim an interest and "clear the
clouds to our title." He said the problem is that over the
years, BLM has conveyed lands the state believes it owns and
reversed navigability determinations over the years. Currently
the state is in litigation, regarding Mosquito Fork at 40-Mile,
trying to reestablish precedence it had established under
Gulkana.
8:16:41 AM
MR. OGAN directed attention to a slide entitled, "Ordinary High
Water Mark." He said something that looks like a riverbed is
probably a riverbed. He said that is defined on whether or not
there is upland vegetation. He said the standards of the
ordinary high water mark ordinary high water mark (OHWM) are
subjective and contentious, and the property boundary on an OHWM
is an ambulatory one. He said the Matanuska River is a good
example of a river whose boundary shifts. He remarked that
there is an employee in DNR whose sole task is to make riparian
boundary determinations. He directed attention to the slide
entitled, "Quiet Title Actions." He said quiet title actions
quiet other claims to a title, are expensive, are time
consuming, have an uncertain outcome, but are necessary when no
other option exists. He expressed his hope for less contention
in the future as a result of case law. He highlighted the slide
entitled, "Recordable Disclaimers of Interest," and said they
are cost effective at approximately $50,000, as compared to
approximately $1 million for each quiet title action. He
reported that Alaska has the only successful recordable
disclaimer of interest (RDI) process in the U.S., and he
indicated that improving the process was his mission when he
first was hired in his present job.
8:18:47 AM
REPRESENTATIVE ISAACSON asked why it costs up to $1 million to
get a quiet title.
8:19:04 AM
MR. OGAN explained that some points of law can be done on
summary judgment, whereas quiet title actions require extensive
title search and hydrological and historical research. He
emphasized the labor intensive nature of quiet title actions.
He gave credit to Kent Sullivan, in the Department of Law, for
anticipating anything that could make the state's claim
nonsufficient.
8:20:04 AM
KENT SULLIVAN, Assistant Attorney General, Natural Resources
Section, Department of Law, echoed Mr. Owen's remarks that quiet
title actions are fact intensive and historically based. He
stated that unlike a breach of contract case, where the court
determines whether a contract was signed and the argument
pertains to the law, in a quiet title case the argument is over
the facts. For example, in a navigability case, expert
witnesses testify regarding the hydrological aspects of a stream
based on information gathered through a "fact-intensive effort."
He said the recordable disclaimer of interest process does not
require the same level of evidence that would be brought before
a court for a quiet title case.
8:22:26 AM
REPRESENTATIVE ISAACSON asked, "How large or how small of a
tract of land are we talking about? Are we talking about a
complete water system or are we just talking about an acre at a
time?"
MR. SULLIVAN said the answer is both. He stated that in one
particular R.S. 2477 right-of-way case, which he said is similar
to a navigability case, a private party had blocked the road.
He said the state elected to file a case specifically addressing
the private party's property, rather than the entire 20 miles of
road. In this example, the court would be confirming the R.S.
2477 right-of-way as to that parcel - not the entire road. He
explained that that can be simpler and less expensive than a
quiet title action for the 20-mile stretch of road. In other
cases, where many parties are disputing the R.S. 2477 right-of-
way, the state may choose to bring a quiet title action
involving dozens of miles of road. Those actions are far more
complex than the single party quiet title action, he said.
8:24:41 AM
REPRESENTATIVE ISAACSON asked how a recordable disclaimer of
interest process interacts with a quiet title action, in terms
of change of land ownership.
MR. SULLIVAN responded that a recordable disclaimer of interest
is as good as a judgment, once the parties agree to and sign off
on it; "it's just a different process of getting to that point."
8:25:47 AM
REPRESENTATIVE HUGHES referred to Mr. Ogan's previous remarks
about the high cost of quiet title actions and disputed
conveyances. She asked how the process works when "applying to
conveyances that shouldn't happen."
MR. OGAN answered, "It is a problem." He relayed that when he
served as a Representative, the legislature passed Senate Bill
305, which instructed DNR to send letters to all the Native
corporations to inform them that BLM may have erroneously
conveyed lands to them that were actually state-owned, to ask
BLM not to "charge that against their acreage entitlement," and
to allow the corporations to select upland acreage instead of
the submerged lands. He indicated that contrary to
expectations, the response was minimal. He ventured, "That's
probably the best solution short of quiet title actions." He
said the state has applied for recordable disclaimers of
interest on rivers where there is "a mixed bag of ownership" and
where [DNR] believes BLM has erroneously conveyed submerged
lands to Native corporations. He continued as follows:
I hope that it'll put the Native corporations on
notice that they're owning riverbeds that really they
got charged -- their acreage entitlement was charged
for those riverbeds, and that might be the motivation
that will get them to approach BLM to reconsider and
give them some more upland acreage. So, hopefully
that'll be the resolution. We don't have enough time,
or enough lifetime, to litigate all those.
8:28:13 AM
MR. OGAN noted there has been a slight shift in BLM's attitude
toward recordable disclaimers of interest with R.S. 2477 rights-
of-way, which has been driven by Utah's quiet title actions
related to 18,000 R.S. 2477 rights-of-way in that state.
MR. OGAN directed attention to the slide entitled, "Current
Issues/Litigation. He said [the state] has filed a quiet title
action on Mosquito Fork. He said [the state] is being sued by
Ahtna, Incorporated, on the Kotsina River. He said Fog Lake and
Dream Creek out in Bristol Bay is an area of contention, because
certain lodges have exclusive rights to guide their clients on
the river that are in conflict with people's rights to access
the river. He related that [the state] is being sued by a
company on Lemon Creek over whether BLM inappropriately conveyed
submerged lands before statehood. He said the state believes it
has a good case that those lands were held in trust for the
future state; therefore, that issue will probably be answered.
He said [the state] recently settled a 25-year dispute with a
man who was mining in a state riverbed in Skagway. He said he
thinks the Sturgeon/Nation River case is one of the watershed
cases that will determine how far the federal jurisdiction
extends into state rivers.
MR. OGAN directed attention to the slide entitled, "Mosquito
Fork." He said the state issued mining claims on the Mosquito
Fork River; the federal government determined the river is non-
navigable; the state filed a complaint; BLM "denied all our
issues"; the present phase is the discovery phase; and the state
has conducted hydrological work on this remote river and has
"floated it." He offered further details. He said, "We believe
that river's unquestionably navigable."
8:31:11 AM
MR. OGAN moved on to the slide entitled, "Kotsina River." He
described the alluvial fans of the Kotsina as "a fire hose in
slow motion," shifting back and forth naturally and carrying a
lot of gravel, which originates from a steep, mountainous area.
He reiterated that [the state] is under dispute with Ahtna,
Inc., over that river. He directed attention to the slide
entitled, "Sturgeon/Nation River." He noted that the
Sturgeon/Nation River is "about the smallest river we have
adjudicated as navigable."
8:32:43 AM
SENATOR DYSON expressed particular interest in the Matanuska
River, because its meandering has taken out private property.
He questioned how "ownership deals" are figured out for those
with titles to private property that extends into an alluvial
fan under state jurisdiction. He then asked who would have
jurisdiction over post-flood attempts to restore a river's
course to "somewhere it's been before but does less damage."
MR. OGAN said the courts make decisions on a case-by-case basis,
but in general "the title to the bed moves with the bed of the
river." Using an example of a state-owned riverbed with a
riparian owner upland from the river, he indicated that gravel
and soil that is gradually and imperceptibly deposited by the
river upland - called accretion - belongs to the upland owner,
while land [left exposed] by the [gradual recession of water] -
called reliction - belongs to the state. He added, "If it's
avulsion, which is a sudden, perceptual act, it fixes the
boundary." He said the state hires national experts to figure
out where the boundaries are, because boundaries move and are
sometimes subject to interpretation.
SENATOR DYSON surmised that the deposit and erosion activity of
an alluvial fan would stay within the fan.
MR. OGAN said that is generally the case; however, there are
court cases regarding dams, dykes, and accretion resulting in
upland soil and vegetation.
8:36:31 AM
MR. OGAN directed attention to the slide entitled, "What Kind of
Boat Before Statehood?" He said research shows that before
statehood, Native Alaskans used skin boats for subsistence. He
said miners typically used polling boats and "polled and lined
boats up rivers." He mentioned that Peterborough boats were
used in Alaska quite extensively. He showed slides of an
historic poling boat in the Chicken, Alaska, area, which was
used in the 40-Mile area pre-statehood and is being excavated.
He said David Seaman, a noted boat builder from Homer, Alaska,
created a set of working drawings.
8:38:58 AM
REPRESENTATIVE HUGHES asked whether frozen rivers are considered
navigable.
MR. OGAN answered, "We do not consider frozen rivers a test for
navigability, and we also do not consider just simple ... float
plane use; and those are based on case law." He added, "They
have to be navigable in their ordinary condition."
REPRESENTATIVE HUGHES suggested that the ordinary condition of
some rivers in Alaska would be frozen.
8:40:03 AM
REPRESENTATIVE ISAACSON, referring to Mr. Ogan's previous
description of the movement of a river, offered his
understanding that "if it's a meander, ... [then] the ownership
changes" and "if it's a sudden occurrence, then the ownership is
fixed."
MR. OGAN responded that that is generally correct, but remarked
that a flood could take out someone's front yard, and that
homeowner would then own a riverbed.
REPRESENTATIVE ISAACSON asked who would have ownership in the
case of a sudden occurrence that "does not swamp your property."
MR. OGAN offered an example in which miners made a road next to
a river and "the channel eventually moved over there and
abandoned the existing riverbed." He said the state's position
is that it owns the portion of the riverbed that was abandoned,
because it was an avulsive act and the new river bed is owned by
the upland owner. He relayed that an avulsive act can be a
natural or manmade occurrence. He said there is other case law
that disagrees with that philosophy. For example, in a case
related to the Colorado River, the State of Arizona sued to a
quiet title to a riverbed it believed it owned after a damn was
built. The court ruled that that was secreted land, which
belongs to the upland owner, which was BLM.
REPRESENTATIVE ISAACSON said that in Omaha, Nebraska, near
Eppley [Airfield], there is a section of [the Missouri River]
that is Iowa, because the river changed course suddenly and
"stranded Iowans in the middle of ... Omaha." He questioned
what might result if such a thing were to occur in Alaska. He
asked, "Is that going to be contested ownership or is that going
to be fixed to those who were there, and so you don't have to go
through the idea, well, this is now federal land or this is now
state land - it's whosever land it was?"
MR. OGAN said the answer depends on whether anyone raises the
issue. He indicated that the example Representative Isaacson
gave is a classic example of an avulsive event.
8:44:08 AM
SENATOR DYSON asked if a property owner who has experienced
his/her property eroding into a river can backfill land
materials out to the original line.
MR. OGAN answered yes, if the land owner obtains the proper
permits from the Corps of Engineers.
SENATOR DYSON asked if the state ever gets into trouble for
taking land that was "perceived to be private property."
MR. OGAN deferred to Mr. Sullivan.
8:45:14 AM
MR. SULLIVAN related that there is case law related to R.S. 2477
rights-of-way, where challenges have been made and quiet title
actions have been filed and title land owners have said there is
a potential "takings issue." However, in the Widener (ph) case,
the court ruled that the statute of limitations had passed on
the takings, so the court refused to grant any relief for the
takings. He offered his understanding that this is an issue
that has not come up often.
8:46:51 AM
MR. SULLIVAN began his presentation regarding R.S. 2477 rights-
of-way. He explained that he would begin the PowerPoint
presentation at the point at which he left off during the
previous meeting of the Senate State Affairs Standing Committee
and House State Affairs Standing Committee [on 2/14/13]. He
directed attention to the slides showing the following R.S. 2477
rights-of-way routes: the Dalton Highway, from Livengood to
Prudhoe Bay; Farmers Loop Road, in Fairbanks; DeBarr Road, in
Anchorage; Klutina Lake Road, out of Copper Center; the Iditarod
Trail; and the Chilkoot Trail. He then showed slides
illustrating the varying characteristics of R.S. 2477 rights-of-
way, including those in the area of Chicken, Alaska; an R.S.
2477 right-of-way built to serve a cemetery outside of Chitina,
Alaska; and the Chicken Ridge Trail near Chicken, Alaska, which
is heavily used by miners and hunters.
MR. SULLIVAN directed attention to a slide entitled, "Why are
R.S. 2477s important?" He said Alaska is the largest state in
the country, but has fewer public roads than Connecticut, the
third smallest state in the country. Alaska has 16,302 miles,
while Connecticut has 21,020 miles. He showed a slide depicting
Alaska's highway system without R.S. 2477 rights-of-way, with
the exception of the Dalton Highway, followed by a map of Alaska
with the R.S. 2477 rights-of-way. He stated, "Without R.S.
2477, we're very limited on what we might be able to do with
regard to development of travel corridors in the state."
8:50:22 AM
MR. SULLIVAN, in response to CHAIR DYSON, said the map that
shows the R.S. 2477 rights-of-way is on DNR's web site. The
link to the web site is found at the end of the presentation.
8:50:31 AM
MR. SULLIVAN continued to the slide that shows that R.S. 2477
rights-of-way are critical to: give public access to the
state's land and resources; enable the state to reasonably
manage, maintain, and develop its lands, resources; and maintain
state sovereignty and preserve the state's rights. He directed
attention to the slide entitled, "Previous R.S. 2477 Research,
Investigation & Legislative Codification." He said an R.S. 2477
right-of-way project was begun in the early 1990s in an effort
by DNR to systematically review potential R.S. 2477 rights-of-
way in the state. This was done by researching Alaska Road
Commission reports, United States Geological Survey (USGS) maps,
and United States Postal Service (USPS) records and contracts,
and it culminated in the legislature's codification of over 600
routes in AS 19.30.400.
MR. SULLIVAN turned to the slide entitled, "Recent R.S. 2477
Developments," and noted that in 2011, the legislature
authorized a [$599,000] increment increase to DNR [for FY 2012].
Since that increase, he said, DNR has conducted extensive field
work and historical research related to R.S. 2477 rights-of-way
and had DOL hire an attorney dedicated to R.S. 2477 right-of-way
work. Mr. Sullivan said he is the person who was hired to fill
that position. He said DNR has engaged in peer-to-peer meetings
with representatives in Utah, because that state is years ahead
of Alaska in its efforts to pursue R.S. 2477 rights-of-way; the
intent is to learn from Utah's successes and failures.
MR. SULLIVAN said Alaska's R.S. 2477 right-of-way prosecution
strategy was developed and refined, based on the information
gleaned from Utah, including the careful selection of initial
claims to prosecute in order to avoid establishing bad case law.
He said, "There may not be existing case law on a particular
issue right now, but if you succeed in court in getting an issue
resolved, then you can take the precedent and you can apply it
to other situations. And that's why it's incredibly important
to put your best foot forward in these ... early R.S. 2477
cases." Mr. Sullivan said another development has been the
preparation of a detailed analysis of what is needed to take an
R.S. 2477 right-of-way case to trial. He said what is needed to
take a case to trial can be somewhat different from what is
needed in order to make a preliminary determination that an R.S.
2477 right-of-way exists; the level of evidence needed for a
trial is huge. He emphasized the importance of identifying key
witness testimony. He explained that a witness who is going to
have knowledge as to an R.S. 2477 right-of-way will be fairly
old today; therefore, it is important to identify those
witnesses and preserve their testimony to the extent possible.
8:55:28 AM
MR. SULLIVAN directed attention to a series of slides addressing
"Recent Legal Developments." He referred to the aforementioned
case in Chickaloon - State v. Lonewolf - where a private
landowner blocked an R.S. 2477 right-of-way - a loop road that
connects with the Glenn Highway. He said that right-of-way was
in a neighborhood and was being used by homeowners in the area.
He explained that Mr. Lonewolf felled several trees across the
road and erected a detour sign, which forced people to drive up
his loop driveway, within 10-15 of his house, at which point he
would stop the driver, tell them to slow down, inform them that
it was not a public right-of-way, and then let them go on their
way. Mr. Sullivan said this created a safety issue, and the
state did not want to provide the opportunity for a landowner to
harass people using a public right-of-way or have emergency
vehicle services disrupted. The state sued to enjoin Mr.
Lonewolf and prevent him from doing that. The state got an
injunction initially and a default against Mr. Lonewolf and will
likely get a judgment soon in that case.
MR. SULLIVAN said in another case - Dickson v. State - a private
landowner sued the state seeking to prevent use of a portion of
the historic Iditarod Trail near Knik. He said the matter is
continuing in litigation. Mr. Sullivan said historically the
Iditarod Race went across this trail until the landlord blocked
it in 1982, but since then there is another R.S. 2477 right-of-
way route that has been used across the property for the Junior
Iditarod races and a lot of the other Iditarod qualifying
events. He said this matter continues to be actively litigated.
8:58:04 AM
MR. SULLIVAN said that as part of the Valdez to Copper Center
Trail, Klutina Road is one of Alaska's most historically rich
R.S. 2477 rights-of-way in Alaska; however, in Ahtna, Inc. v.
State, Ahtna, Inc. sued the state, claiming that road is not an
R.S. 2477 right-of-way. He said that case continues to be
litigated. He then related that DOL has prepared a draft
complaint addressing litigation in the Chicken, Alaska, area,
involving R.S. 2477 rights-of-way, which involve dozens of miles
of road across numerous parcels of private property, federal
property, and mining claims. He said that case will soon be
filed.
8:59:11 AM
REPRESENTATIVE KELLER asked Mr. Sullivan if he thinks the state
is making a mistake by not assigning more attorneys to focus on
federal overreach.
MR. SULLIVAN said he cannot speak for DOL, but his own
perception is that federal overreach issues are an important
part of the whole analysis, but not the only part. He explained
that R.S. 2477 rights-of-way involve a lot of state law, not
just federal law, and those laws overlap; therefore, an attorney
looking only at federal overreach would be viewing only "a
portion of R.S. 2477." He said of the cases he mentioned
previously, three are in state court, while one will be in
federal court.
9:01:50 AM
REPRESENTATIVE HUGHES, regarding attrition of witnesses, asked
if the state is adequately funded to support "doing the research
while they're still alive."
MR. SULLIVAN answered that a multitude of issues are being
addressed within budgetary constraints, but more could always be
done.
REPRESENTATIVE HUGHES asked Mr. Sullivan to confirm whether the
current program is robust enough to gather the information
needed before the witnesses have died.
MR. SULLIVAN said that is a difficult question to answer. He
said with unlimited resources it would be possible to identify
more witnesses; however, he said, "We're happily working within
our budget," and "we're doing what we can."
CHAIR DYSON expressed appreciation for the work that Mr.
Sullivan does.
9:04:14 AM
JOANNE BLACKBURN stated that there are some guiding principles
and subtle laws regarding riparian rights within the U.S. She
concurred with Mr. Ogan that the Equal Footing Doctrine was
established by federal court and certainly has application in
Alaska. She said she finds it ironic that the State of Alaska
has not placed an R.S. 2477 right-of-way on the railroad tracks,
which she said are at the exact location the Iditarod Trail was
run at 20-Mile. She stated, "No one who loves dogs or was in a
hurry to save lives would have run their dogs up on the ledges
and precipices that we see; they ran along the bottom of the
valley." She said it is agreed by the U.S. Department of
Agriculture, the U.S. Forest Service, and the Alaska Railroad
Corporation that "the railroad itself is the exact ...
superhighway that was used for this transportation." She said
this corridor has not been claimed for the people of Alaska.
MS. BLACKBURN offered her understanding that the railroad was
built in 1923 under the 1875 Licensing Act; therefore, what was
obtained by the federal operation of the railroad was a
permeable right-of-way. She said the infrastructure is aging
and sinking into the riparian mud. Ms. Blackburn stated it is
ironic that "they" have claimed a private parcel arising out of
tidelands on either side, the patent of which is derived from
the U.S. Department of Transportation, not from BLM.
MS. BLACKBURN opined that Alaska's lack of claim to the actual
Iditarod Trail is a glaring omission. She added, "And by virtue
of that I lose confidence." She stated that under the Equal
Footing Doctrine, no federal agency can lean upon a fledgling
state and take its assets. She said real estate is handled like
real estate anywhere else.
CHAIR DYSON interjected his thanks for Ms. Blackburn's testimony
and said if there was time the committee would get back to her.
9:08:25 AM
STAN LEAPHART, Executive Director, Citizen's Advisory Commission
on Federal Areas (CACFA), Department of Natural Resources, gave
a PowerPoint presentation regarding the commission. He reviewed
information pertaining to the background and history of the
commission, as shown on a PowerPoint slide: As a result of the
Alaska National Interest Lands Conservation Act (ANILCA), the
commission was established as a temporary advisory agency in
1981, authorized initially for seven years, reauthorized in 1988
for ten years, and again in 1998 for an additional five years,
but it was shut down before the end of that period. He
indicated that in 2007, Representative [Mike] Kelly and [then
Representative] John Coghill were involved in legislation to
reestablish the commission, and the commission reestablished its
operations in 2008. He said the commission is currently
scheduled to sunset in June [2014].
MR. LEAPHART relayed information regarding membership, as shown
on another slide: three members are appointed by the governor;
three members are appointed by the Speaker of the House, one of
whom is a member of the House; and three members are appointed
by the President of the Senate, two of whom are members of the
public, and one of whom is a member of the Senate. He said
statute directs that the public members be "representative of
diversity of users and uses of federal land in the state." He
related that two weeks ago, a member of the commission resigned,
but the commission welcomed Senator Coghill as its newest member
at its last meeting.
MR. LEAPHART directed attention to the next slide, which lists
the duties of the commission [under AS 41.37.220(a) through
(d)], and he cited subsection (a), which read as follows:
(a) The commission shall consider, research and hold
hearings on the consistency with federal law and
congressional intent on management, operation,
planning, development, and additions to federal
management areas in the state.
MR. LEAPHART offered his understanding that then Senator Betty
Fahrenkamp, the commission's first chair, interpreted that
language to mean the commission closely watches the actions of
federal agencies. Directing attention to the next slide, he
paraphrased [AS 441.37.240], which read as follows:
The commission may request the attorney general to
file suit against a federal official or agency if the
commission determines that the federal official or
agency is acting in violation of an Act of Congress,
congressional intent, or the best interest of the
state.
MR. LEAPHART said the commission has filed suit against the
federal government regarding cabin regulations that were adopted
in the late 1980s; however, the case was dismissed for lack of
standing.
9:12:00 AM
MR. LEAPHART directed attention to the next slide, which
addresses agency cooperation and shows [AS 41.37.250], which
read as follows:
Each state department, agency, board, and commission
shall cooperate with the commission in the fulfillment
of the duties of the commission under AS 41.37.220.
MR. LEAPHART, referring to information on the next slide,
regarding administration, stated that the commission is within
the Department of Natural Resources (DNR), has two staff members
who answer to the commission but work closely with other
agencies, has an office located in the DNR Northern Region
office in Fairbanks, and meets a minimum of three times a year,
usually in Anchorage, Juneau, and Fairbanks. He noted that the
website is also listed on that slide.
9:12:41 AM
MR. LEAPHART turned to the slide regarding working relationships
and consultation. He said the commission reviews and analyzes
public land management agency documents, planning documents,
regulations, and policies, talks to the public, and submits
comments on those planning documents. He said the commission
works the ANILCA program, but is independent of it. He said the
main focus of the commission is to talk to members of the public
to identify issues and problems. He related that the commission
works with congressional delegation, which has been a big help
in drawing attention to the issues.
MR. LEAPHART turned to the next slide, and he noted that ANILCA
came out of Section 17(d)(2) of the Alaska Native Claims
Settlement Act (ANCSA), which directed the Secretary of the
Interior to withdraw up to 80 million acres for the purpose of
creating national parks, wildlife refuges, and wild and scenic
rivers [systems]. ANILCA was passed in December of 1980,
following over eight years of debate.
MR. LEAPHART highlighted the next slide, which shows
conservation system units and federally designated areas in
Alaska, including: 17 national park areas covering [over] 51
million acres, [over] 32 million of which are designated
wilderness - the most restrictive classification of federal land
that exists; 16 national wildlife refuges covering [over] 76
million acres, over 18 million acres of which are designated
wilderness; and 2 national forests covering over 22 million
acres. Mr. Leaphart relayed that more than 90 percent of the
total refuge system is in Alaska. He further noted that the
only wilderness area in the forest land is in the Tongass, which
totals about 7 million acres. He said there are two wilderness
study areas in Chugach National Forest, which are managed as if
they were wilderness, because they are congressionally
designated study areas.
MR. LEAPHART said the Bureau of Land Management (BLM) has three
designated areas [covering 2,686,026 acres] and manages six wild
and scenic rivers. He said there are 26 designated national
wild and scenic rivers in Alaska, which total almost 3,200 river
miles. Alaska also has one national trail system, which is the
Iditarod Trail. In total, he reported, Alaska has approximately
154 million [federally designated] acres.
MR. LEAPHART directed attention to a map on the next slide,
which shows the federal conservation system units in Alaska
after the passage of ANILCA: the areas in [red] are national
wildlife refuges; the areas in blue are national park units; the
blue lines represent wild and scenic rivers; and the national
forests are the Tongass and the Chugach.
9:16:21 AM
MR. LEAPHART referred to a slide showing 32 years of ANILCA
changes and challenges, and he said many of the park plans are
25 years old and are in revision process. He said BLM is
dealing with three of its wild and scenic river management
plans, as well as the Steese National Conservation Area and the
White Mountains National Recreation Area.
MR. LEAPHART turned to the next slide, which lists key past
litigation: Northern Alaska Environmental Center v. Evison,
which he said essentially terminated all mining in three park
units in Alaska; Sierra Club v. Penfold, which involved three of
the six wild and scenic rivers managed by BLM and changed the
way people were able to mine and had a major impact on placer
mining; and Alaska Wildlife Alliance v. Jensen.
9:18:22 AM
CHAIR DYSON asked if the organization in Utah is similar to
CACFA.
MR. LEAPHART offered his understanding that [Utah's] primary
focus is on the failure of the federal government to honor its
state's compact. He said Alaska's focus is more on softening
the blow of federal management. He added, "We're strictly an
advisory group."
CHAIR DYSON asked if Utah has policy power.
MR. LEAPHART answered, "My understanding is that they do."
9:19:20 AM
CHAIR DYSON asked what Mr. Leaphart would like the legislature
to know and what action he would like it to take.
MR. LEAPHART, in response, directed attention to a slide that
shows plans, policies, and projects reviewed in 2012. He
indicated that the list represents about 14,000 pages of
material, all of which dictate how the aforementioned 150
million acres are managed. He said the commission has found
that over the last 32 years, federal agencies have "gradually
chipped away at those special provisions" [of ANILCA]. He said
he knows the public is overwhelmed, and he emphasized how
difficult it is to focus the man power available just to ANILCA
related issues. He explained that ANILCA is not the only
federal law that the commission addresses; it attends to Acts
addressing forest service management and BLM management, such as
the Federal Land Policy and Management Act. He said the
commission is busy and policies are changing constantly.
Agencies don't have much institutional memory, so they do not
recognize all the agreements that were reached administratively.
9:23:30 AM
REPRESENTATIVE ISAACSON recollected that Mr. Leaphart had said
that in litigation there are some people whose land has been
taken and they have not yet been compensated. He posited that
that seems to be an onerous omission, and he asked if there is
something the legislature could be doing to help.
MR. LEAPHART responded that there was legislation passed by the
delegation to set up a compensation system; however, the problem
is there is disagreement over the value of the claims. He
offered further details.
9:24:44 AM
MR. LEAPHART directed attention to a slide showing what is
currently under review. He said the big issue this year is that
the National Park Service implemented a number of regulations to
preempt state hunting regulations on national preserves. He
said, "The problem was ... they had a minimal number of public
hearings and they never used the board process the way it was
intended to be used." He said compendium process has improved
over the years, but the agency has consistently failed to follow
its own procedures for implementing closures and restrictions.
MR. LEAPHART directed attention to a slide showing upcoming
issues. He said one of the two forest plans will undergo a full
revision, and the Tongass is going to undergo a five-year
review. The other areas, he said, are updates of existing
plans. For example, the Central Yukon Resource Management Plan
is about 25 years old. He highlighted the BLM Guide Capacity
Study & Environmental Assessment for BLM Lands, and he offered
his understanding that depending on the outcome of that study,
BLM may be restricting the number of guides they will be
permitting to operate on their lands.
MR. LEAPHART turned to the next slide, which shows key issues
that the commission looks at when considering a plan. He
directed attention to the second one on the list, which is the
ANILCA "No More Clause," and he said he put together a
memorandum which shows the legislative history of the "No More
Clause" [included in the committee packet]. He said Alaska's
delegation, based in part by requests made by the legislature,
made certain the clauses were in ANILCA, and the agencies have
consistently violated those clauses.
9:28:14 AM
MR. LEAPHART directed attention to a slide with "Suggested
Reading." He recommended the second source listed, d(2), Part 2
- Alaska National Interest Lands Conservation Act of 1980 -
Promises Broken, which was put together by the Alaska Miners
Association. He said A Land Gone Lonesome deals with cabin
owners and "Yukon Charlie preserves." He said the commission
went to Eagle in 1984 to hold hearings about park service cabin
regulations. He recollected that at that time, there were 14
people living in the preserve, but currently no one lives there.
He concluded the presentation with the final slide, which shows
a cartoon of a juggler and the caption, "What is involved in
implementation of ANILCA?" He offered to answer questions.
9:29:26 AM
REPRESENTATIVE KELLER emphasized that Mr. Leaphart and his staff
condense 14,000 papers filled with information for the
commission, which then takes action and writes letters, so if
Mr. Leaphart asks for help, then the legislature should listen.
CHAIR DYSON said the legislature needs Mr. Leaphart to specify
what help is needed both in statute and resources. He then
asked Mr. Ogan to address the issue previously raised by Ms.
Blackburn.
9:30:51 AM
MR. OGAN stated that the right-of-way of the railroad was
already in place at statehood. He said he does not have first-
hand knowledge of where the historic R.S. 2477 right-of-way
route between Seward and Anchorage is, so he cannot sufficiently
answer the question.
CHAIR DYSON asked Mr. Ogan to get back to the committee on that
point. He commended all the presenters on their efforts.
9:31:49 AM
CHAIR DYSON handed the gavel back to Chair Lynn.
9:32:14 AM
ADJOURNMENT
There being no further business before the committee, the joint
House State Affairs Standing Committee and Senate State Affairs
Standing Committee meeting was adjourned at 9:32 a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CAFCA No More Clause Analysis.pdf |
HSTA 2/26/2013 8:00:00 AM |
CAFCA No More Clause Analysis |
| Dept. Commissioner Ed Fogels.pdf |
HSTA 2/26/2013 8:00:00 AM |
Letter to David Hayes from Dep Commissioner Fogels |
| Federal Overreach CAFCA 2026013.pdf |
HSTA 2/26/2013 8:00:00 AM |
Federal Overreach CAFCA |
| Letter Gov to Ken Salazar 11-16-12.PDF |
HSTA 2/26/2013 8:00:00 AM |
Letter Governor Parnell to Ken Salazar |