Legislature(2013 - 2014)BARNES 124
03/11/2014 01:00 PM House TRANSPORTATION
| Audio | Topic |
|---|---|
| Start | |
| HB371 | |
| HB194 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 194 | TELECONFERENCED | |
| *+ | HB 371 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE TRANSPORTATION STANDING COMMITTEE
March 11, 2014
1:05 p.m.
MEMBERS PRESENT
Representative Peggy Wilson, Chair
Representative Doug Isaacson, Vice Chair
Representative Eric Feige
Representative Lynn Gattis
Representative Craig Johnson
Representative Bob Lynn
Representative Jonathan Kreiss-Tomkins
MEMBERS ABSENT
COMMITTEE CALENDAR
HOUSE BILL NO. 371
"An Act providing for the Department of Transportation and
Public Facilities to hold the surface estate of certain state
land; relating to the transfer of certain state land and
materials from the Department of Natural Resources to the
Department of Transportation and Public Facilities for the
construction or maintenance of the state highway system, state
airports, and state public buildings and facilities; relating to
the lease or sale of certain marine or harbor facilities;
relating to the lease or disposal by the Department of
Transportation and Public Facilities of rights-of-way, property
interests, or improvements that are no longer required; relating
to the grant of certain easements over submerged state land to
the federal government; relating to the transfer of certain
maintenance stations on the James Dalton Highway to the
Department of Transportation and Public Facilities; relating to
the conveyance of land for right-of-way purposes from the Alaska
Railroad Corporation to the Department of Transportation and
Public Facilities; and providing for an effective date."
- HEARD & HELD
SPONSOR SUBSTITUE FOR HOUSE BILL NO. 194
"An Act vacating a portion of the Copper Center - Valdez right-
of-way; relating to rights-of-way acquired under former 43
U.S.C. 932 that cross land owned by a private landowner; and
relating to the use of eminent domain to realign a right-of-
way."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 371
SHORT TITLE: STATE LAND AND MATERIALS
SPONSOR(s): TRANSPORTATION BY REQUEST
03/10/14 (H) READ THE FIRST TIME - REFERRALS
03/10/14 (H) TRA, RES
03/11/14 (H) TRA AT 1:00 PM BARNES 124
BILL: HB 194
SHORT TITLE: RIGHTS-OF-WAY
SPONSOR(s): FOSTER
04/01/13 (H) READ THE FIRST TIME - REFERRALS
04/01/13 (H) TRA, RES
02/26/14 (H) SPONSOR SUBSTITUTE INTRODUCED
02/26/14 (H) READ THE FIRST TIME - REFERRALS
02/26/14 (H) TRA, RES
03/11/14 (H) TRA AT 1:00 PM BARNES 124
WITNESS REGISTER
REBECCA ROONEY, Staff
Representative Peggy Wilson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified on behalf of the sponsor of HB
371, the House Transportation Standing Committee, Representative
Peggy Wilson, Chair.
JOHN BENNETT, Right-of-Way Chief
Northern Region
Department of Transportation & Public Facilities (DOT&PF)
Fairbanks, Alaska
POSITION STATEMENT: Testified during the discussion of HB 371.
SEAN LYNCH, Assistant Attorney General
Transportation Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions during the discussion of
HB 371.
ED FOGELS, Deputy Commissioner
Department of Natural Resources (DNR)
Anchorage, Alaska
POSITION STATEMENT: Testified and answered questions during the
discussion of HB 371.
REPRESENTATIVE NEAL FOSTER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as prime sponsor of HB 194.
PAUL LABOLLE, Staff
Representative Neal Foster
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented a section-by-section analysis on
behalf of the sponsor of HB 194, Representative Neal Foster.
JOE BOVEE, Vice-President
Land and Resources
Ahtna, Incorporated
Glennallen, Alaska
POSITION STATEMENT: Presented a PowerPoint presentation on
[revised statutes] R.S. 2477 rights-of-way during the discussion
of HB 194.
ACTION NARRATIVE
1:05:36 PM
CHAIR PEGGY WILSON called the House Transportation Standing
Committee meeting to order at 1:05 p.m. Representatives
Isaacson, Kreiss-Tomkins, Feige, Lynn, Gattis, and P. Wilson
were present at the call to order. Representative Johnson
arrived as the meeting was in progress.
HB 371-STATE LAND AND MATERIALS
1:06:11 PM
CHAIR P. WILSON announced that the first order of business would
be HOUSE BILL NO. 371, "An Act providing for the Department of
Transportation and Public Facilities to hold the surface estate
of certain state land; relating to the transfer of certain state
land and materials from the Department of Natural Resources to
the Department of Transportation and Public Facilities for the
construction or maintenance of the state highway system, state
airports, and state public buildings and facilities; relating to
the lease or sale of certain marine or harbor facilities;
relating to the lease or disposal by the Department of
Transportation and Public Facilities of rights-of-way, property
interests, or improvements that are no longer required; relating
to the grant of certain easements over submerged state land to
the federal government; relating to the transfer of certain
maintenance stations on the James Dalton Highway to the
Department of Transportation and Public Facilities; relating to
the conveyance of land for right-of-way purposes from the Alaska
Railroad Corporation to the Department of Transportation and
Public Facilities; and providing for an effective date."
1:06:56 PM
REPRESENTATIVE ISAACSON moved to adopt a proposed committee
substitute (CS) for HB 371, labeled 28-LS1545\N, Bullock,
3/10/14 as the working document. There being no objection,
Version N was before the committee.
1:07:21 PM
REBECCA ROONEY, Staff, Representative Peggy Wilson, Alaska State
Legislature, on behalf of the House Transportation Committee,
Representative P. Wilson, Chair, explained the changes in the
proposed CS, Version N. She reported that a companion bill is
in the other body and the changes in Version N were made to
conform to the other bill. She related that the title was
shortened and she characterized the changes as being technical
or cosmetic changes.
MS. ROONEY described HB 371 as a collaborative effort between
the Department of Transportation & Public Facilities (DOT&PF)
and the Department of Natural Resources (DNR). The purpose was
to reduce ambiguity and streamline the rights-of-way processes
between the two departments. This bill represents a "no cost
solution" that will save time and resources for transportation
projects. Additionally, it will reduce contracting requirements
between DOT&PF and DNR when accessing road materials for
transportation projects. She noted a reciprocal removal of the
55-year limit on U.S. Forest Service (USFS) transportation
easements and DNR's log transfer priority easements. Finally,
under the bill, DNR would transfer two DNR sites to DOT&PF for
use as maintenance stations and airstrips to accommodate recent
resource development. She identified the sites as Franklin
Bluffs and Happy Valley on the Dalton Highway.
CHAIR P. WILSON reiterated that this bill is an agreement
between the two aforementioned departments to streamline the
process when a right-of-way exchange is necessary.
1:10:18 PM
JOHN BENNETT, Right-of-Way Chief, Northern Region, Department of
Transportation & Public Facilities (DOT&PF), stated that HB 371
will change the relationship between the DOT&PF & the DNR with
respect to the acquisition, management, and disposal of lands
necessary for airports, highways, and public facilities. He
pointed out that 30 percent of the land in Alaska is owned by
the state and managed by DNR. Thus, the DOT&PF's interaction
with DNR for lands and materials is extensive. The bill
sections repeat language for each of the DOT&PF's three areas of
authority.
1:11:21 PM
MR. BENNETT said the bill clarifies that DOT&PF has the primary
authority to manage the surface estates for the highway rights-
of-way, airport properties and public facilities. That primary
authority relates to existing rights-of-way and existing lands.
First, this bill would help clarify the management authorities
and roles of each department. Second, the bill would provide
uniform language across all of the authorities for the disposal
of land interests that the DOT&PF has deemed excess to its
needs. This combination would work to solve some issues that
adjoining landowners have when encroaching into the rights-of-
way. Under the bill, the DOT&PF would have the unilateral
authority to dispose of lands, which can help solve these
landowner issues. Third, this bill would set up a new process
for transferring land and land interests from the DNR managed
public domain into the DOT&PF. Essentially, this bill was
modeled after a federal process the department uses with the
Federal Highways Administration (FHWA) to assist the DOT&PF in
appropriating land from the Bureau of Land Management (BLM) and
the U.S. Forest Service. For example, when the department
determines it needs right-of-way properties, the affected
parties can go to the agency and tell them they have four months
to comment or the FHWA will appropriate it directly. He pointed
out the FHWA will actually issue the deed to the state. This
bill would set up a similar process that will streamline the
process of acquiring DNR managed lands. Furthermore, the DOT&PF
would like to streamline and create a new process for acquiring
sand and gravel materials for its projects. Under the current
process one state [department] contracts with [another] state
[department]. The DOT&PF enters into a material sales contract
with Department of Natural Resources (DNR) that includes payment
for materials. Typically these contracts have a limited term
and a limited quantity of material. However, the authorizations
often lapse and the department must request additional
authorization to expand the quantity or the term. This process
has created an administrative burden for both agencies
especially since the state is requesting state-owned materials
to construct state-owned infrastructure. The process under the
bill would result in a more efficient process.
1:14:24 PM
MR. BENNETT identified additional provisions that relieve the
Alaska Railroad Corporation (ARRC) from the necessity to obtain
legislative approval when the DOT&PF requires fee title from the
ARRC. Currently, the DOT&PF can negotiate and appraise property
just as it would with any private owner, but the ARRC must
subsequently seek legislative approval. This requirement for
additional legislative approval can add one to two years to the
project delivery process, which the department believes results
in unintended consequences. Additionally, one provision of HB
371 would transfer the Happy Valley and Franklin Bluffs Trans-
Alaska Pipeline System (TAPS) campsites from the DNR to DOT&PF.
Mr. Bennett pointed out that the DOT&PF applied for these
properties twenty years ago. Although these camps provide an
efficient delivery of maintenance services, additional resource
development along the corridor and the potential for a natural
gas line makes it important for DOT&PF to acquire these sites
now. However, these camp transfers have been hampered by
competing municipal entitlement selections by the North Slope
Borough (NSB). He deferred to the Department of Law (DOL) to
discuss the issues related to these reciprocal easements.
1:15:58 PM
SEAN LYNCH, Assistant Attorney General, Transportation Section,
Department of Law (DOL), stated that the Congress granted
easements across the Tongass National Forest connecting towns in
Southeast Alaska in exchange for the state granting the U.S.
Forest Service easements across the state's submerged lands for
log transfer facilities, access to USFS cabins, and recreational
facilities. The easements were prepared and exchanged between
the state and the federal government but because of the
Department of Natural Resources (DNR)'s regulations the state
easements to the federal government are limited to 55 years. In
the reciprocal exchange, the USFS has limited the states' road
and utility easements to the same 55 years. Section 16 [of HB
371] would allow the DNR's commissioner in a best interest
finding to remove the 55-year limitation. Further, the USFS has
assured the state that it will give an equal term of years,
which would allow the extension of the state's easements across
USFS lands.
1:17:54 PM
REPRESENTATIVE ISAACSON recalled that Section 16 was disputed by
municipal governments. He asked whether the department has
resolved the municipal disputes.
MR. BENNETT answered yes; he is correct that competing interests
exist. The department applied for this authority 20 years ago,
based on the assertion that the existing state land was more
appropriately used for public purposes rather than to be
allocated under the municipal entitlement program. He estimated
between one-third and one-half of the land selected will still
be available after the department has "carved out" lands needed
to enclose airstrips, material sites, and the existing building
plants. He related this is based on a review of a graphic
representation of the lands previously selected by the North
Slope Borough (NSB). One reason this matter has not progressed
is due to the competing interests. He maintained the DOT&PF
believes the public's interest and use of this property is
greater and more significant than municipal interests.
1:19:42 PM
REPRESENTATIVE ISAACSON said he understood that this could be
construed as another method of obtaining municipal revenue
sharing since the Dalton Highway serves a statewide interest,
although one municipality obtains an extra advantage. For
example, it would be similar to the City of North Pole claiming
some facilities along the Richardson Highway to tax or gain
revenue from the activities. He asked whether this is part of
the consideration and to identify any disadvantages.
1:20:33 PM
MR. BENNETT agreed the North Slope Borough's intent is revenue
generation. These sites would be very sought after since they
were selected as TAPS sites for a good reason. He suggested the
NSB would seek to select and receive title to these sites and
lease them back to the state on an as-needed basis. However,
the DOT&PF seeks to avoid these situations since it maintains
that retaining the properties is in the public's best interest.
1:21:18 PM
REPRESENTATIVE ISAACSON asked whether the provisions in Section
16 will resolve the issue.
MR. BENNETT answered this language will declare that this
property has been transferred to DOT&PF and is not immediately
available for municipal entitlements. However, he envisioned
that over time the use of the sites will no longer be necessary
and the sites might be available for NSB selection or conveyance
at a later date.
1:22:09 PM
REPRESENTATIVE KREISS-TOMKINS commented that this bill was read
across the floor yesterday so he has not yet had an opportunity
to review this somewhat complex bill. He hoped the committee
will have more opportunity to ask questions beyond today.
CHAIR P. WILSON acknowledged that HB 371 is a simple yet
complicated bill that will allow land transfers between the two
departments. In further response to a question, she
acknowledged the committee member's request for additional time.
1:23:29 PM
REPRESENTATIVE JOHNSON recalled some railroad acts allow the
ability to transfer rights-of-way lands back to the adjacent
landowners. He remarked he is never opposed to transferring
lands to private landowners. He asked whether the land should
be transferred to private landowners instead of to the state.
MR. BENNETT answered that [Section 16] is narrowly tailored to
only relate to the relationship between the ARRC and the DOT&PF
to allow the department to obtain fee title on certain railroad
lands. He understood the rights-of-way being re-conveyed to
adjoining landowners. However, he did not believe this is the
situation being addressed today. This provision relates solely
to properties the railroad owns or intends to own.
1:24:42 PM
REPRESENTATIVE JOHNSON remarked that at some point the railroad
must not want the land or they wouldn't be interested in
transferring it.
MR. BENNETT answered that it is not a question with respect to
the railroad wanting to dispose of land but rather that the
DOT&PF requires the ARRC's land for an airport or highway
project. He clarified that the department identifies the need,
appraises, and negotiates the land transfer, but the ARRC does
not volunteer to sell it to the DOT&PF until that point.
REPRESENTATIVE JOHNSON suggested the ARRC is not in great
financial shape right now so it may be in the ARRC's interest to
lease the land instead of transferring it by a fee simple
process.
MR. BENNETT acknowledged the point, but the DOT&PF tends to
avoid leases since the term of the lease will end, yet the
public funds for a new project may not be in place yet. This is
the reason the DOT&PF seeks to purchase permanent right-of-way
or land interests, whether it is through easements or fees.
This provides the basis for future knowledge of when funds are
needed.
1:26:15 PM
REPRESENTATIVE JOHNSON suggested that either the ARRC will seek
funds or else the DOT&PF will seek more funds to lease lands
from the ARRC. He was unsure whether it would be best for the
legislature to [appropriate funds to] the ARRC or the DOT&PF.
He questioned whether the DOT&PF has more opportunities to
obtain federal funds. He said he has questions on the best way
to ensure the future of the ARRC and the DOT&PF.
1:27:09 PM
CHAIR P. WILSON asked for further clarification that this isn't
a special case since this is the process DOT&PF uses with
respect to right-of-way acquisitions.
MR. BENNETT answered that the best public policy for
acquisition, maintenance, and operations of public projects is
to avoid recurring costs, which having a permanent interest in
the rights-of-way accomplishes. He related his understanding
that the ARRC supports this language.
1:28:13 PM
CHAIR P. WILSON related her understanding that under the bill
the DOT&PF would purchase land from the ARRC.
MR. BENNETT agreed. He summarized that this provision would
advance project delivery by not requiring legislative approval
of the land transfer [between the ARRC and the DOT&PF].
1:28:53 PM
REPRESENTATIVE ISAACSON understood this would expedite projects
in order to develop the state, but the bill does not extend rail
lines or reconvey properties. For example, under the bill, if
the state decided to build the railroad to Delta Junction or
some other location the legislature would authorize the DOT&PF
to negotiate the land needed for right-of-way acquisition. This
could help speed up projects if the legislature has approved the
right-of-way acquisition in advance.
MR. BENNETT related an example in which the DOT&PF need to
acquire substantial property on the Illinois Street project in
Fairbanks. Since the rights-of-way acquisition required
legislative approval it took one or two additional years to
secure legislative permission. Although the DOT&PF can appraise
property, and negotiate prices, the railroad cannot execute
deeds for fee simple title without legislative approval.
1:30:26 PM
REPRESENTATIVE ISAACSON understood that the bill would help
contain development costs and this bill also represents one of
the best ways to save the railroad money.
MR. BENNETT acknowledged that one of the benefits would be to
advance projects.
1:30:53 PM
REPRESENTATIVE ISAACSON asked whether the bill might create
unintended consequences and for any downsides.
MR. BENNETT answered that he considered this provision of the
bill to be the most benign. He offered his belief that this is
essentially an unintended consequence of the enabling statutes
for the railroad. He felt certain the legislature couldn't have
intended to delay projects between one state-owned entity and
the DOT&PF.
CHAIR P. WILSON remarked that the projects in question have
already received legislative approval, but the way the ARRC's
statutes were written requires the railroad [or DOT&PF] must
seek additional legislative approval.
MR. BENNETT agreed, noting typically these projects are major
capital improvement projects.
1:32:17 PM
REPRESENTATIVE GATTIS remarked that this bill affects state
property and does not relate to the state acquiring private
property.
MR. BENNETT agreed. He said the portions that relate to the
transfer of properties from DNR's public domain to the DOT&PF
would be considered transfer of "state property" to "state
property." The railroad was established as a state-owned
corporation so it is treated a little differently.
REPRESENTATIVE GATTIS asked for further clarification that this
is not affecting individual property rights.
MR. BENNETT agreed it does not affect individual property
rights.
1:33:19 PM
REPRESENTATIVE JOHNSON recalled that at the time the railroad
was transferred, the legislature wanted control over the
transfer of any railroad land. He surmised this body still has
an unwillingness to give up control. He remarked that "nothing
is simple" with respect to the railroad.
CHAIR P. WILSON reminded members that this bill relates
specifically to the DOT&PF and not with any private entity.
MR. BENNETT agreed.
1:35:00 PM
ED FOGELS, Deputy Commissioner, Department of Natural Resources
(DNR), stated that DNR has worked with DOT&PF for many months on
the bill and DNR does not have any issues with the bill. The
fundamental concept embodied in HB 371 is similar to the DNR's
efforts to improve its permitting processes and to eliminate
duplicative bureaucracy and unnecessary processes. He asked why
the state should have to contract with itself for materials if
the DOT&PF needs to use materials within the right-of-way for
its road projects. Under the bill, the DNR would still manage
the subsurface rights and lands within the right-of-way for
other uses while prioritizing by keeping DOT&PF's needs at the
top. He suggested that HB 371 is one mechanism to eliminate
repetitive work for both agencies.
1:36:11 PM
CHAIR P. WILSON asked whether HB 371 will save the state money.
MR. FOGELS answered yes.
1:36:20 PM
REPRESENTATIVE GATTIS remarked that time is money and she
understood this bill will save time.
MR. FOGELS answered yes; that HB 371 will save staff time.
1:36:45 PM
CHAIR P. WILSON asked for an estimate of the average staff time
that will be saved.
MR. FOGELS answered that the time savings is difficult to
quantify. However, the DNR spends significant energy and time
within the department to adjudicate material sales relating to
roads or highway projects. He estimated that several staff
spends most of their time on these issues which could be used to
reduce the DNR's backlog somewhere else.
1:37:53 PM
CHAIR P. WILSON asked whether this staff could work on
permitting in some other area.
MR. FOGELS agreed.
1:37:59 PM
REPRESENTATIVE JOHNSON asked whether the materials would
primarily be gravel.
MR. FOGELS answered that the materials would be gravel, rock,
and sand.
1:38:18 PM
REPRESENTATIVE JOHNSON asked whether private companies primarily
hold these leases.
MR. FOGELS answered that DNR has material sales contracts for
materials sites with multiple contracts between the private
sector and DOT&PF on some sites. He agreed the department would
need to sort this out but new sites would be under the DOT&PF
and the DNR would work with the DOT&PF on any preexisting
contracts.
1:39:04 PM
REPRESENTATIVE JOHNSON emphasized that he'd like to avoid the
situation with a private company bidding on a state job but the
state has a "sweetheart deal" for the materials. He suggested
it has been proven that the private sector projects cost less
than the state to accomplish. He summarized that he would like
to avoid the state taking away private jobs due to a "sweetheart
deal" on material costs.
MR. FOGELS said DNR views it that third party contractors will
work on the projects regardless. This bill would only eliminate
the DNR component from the chain. The DOT&PF would administer
third-party contracts to perform road construction and use
materials.
1:40:29 PM
REPRESENTATIVE JOHNSON maintained his goal to ensure that this
bill doesn't establish a DOT&PF bureaucracy that can overcharge
a private contractor for materials so the contractor doesn't
have any chance to win the bid. He would further like to ensure
that everyone is on equal footing. Currently, the private
sector performs quite adequately so he doesn't want to sacrifice
private industry jobs, he said.
MR. FOGELS offered to review the materials process with DOT&PF
and report back to the committee.
1:42:32 PM
REPRESENTATIVE KREISS-TOMKINS referred to Sections 2, 4, and 10,
specifically in Section 4, lines 15-17 of the bill, which allows
the department the ability to dispose of land. He asked whether
that means the DOT&PF will receive revenue for the land sale.
MR. FOGELS answered that Section 4 refers to DOT&PF's statutes.
He related that DNR has mechanisms for land sales, including a
land disposal income fund. He was unsure of the DOT&PF's
mechanisms, but speculated that the funds may go to back to the
general fund.
1:43:47 PM
REPRESENTATIVE KREISS-TOMKINS said he is interested in an
established protocol to ensure that DOT&PF will not need to set
up a process that DNR already does well.
MR. FOGELS answered that DNR's authority is for land sales to
the public. This provision relates to little remnants of land
leftover from projects such as highway realignment, such as a
sliver of right-of-way land is not used. Currently, DOT&PF
can't dispose of the aforementioned sliver of land so the land
reverts back to DNR who must then dispose of it. The current
process adds unnecessary time and bureaucracy. It's clear that
this bill would eliminate the bureaucracy and allow the DOT&PF
to directly handle the remnants, he said.
1:45:00 PM
REPRESENTATIVE FEIGE referred to Section 4 of HB 371 and asked
whether any implied priority exists. He read paragraph (1),
which read, in part, "transfer the land, property interests, or
improvements to the Department of Natural Resources, if
requested by the commissioner of natural resources; or ...." He
asked whether this language implies that DNR would have the
first right of refusal or if DOT&PF can dispose of the land as
it sees fit without any priority.
MR. FOGELS answered that the intent is for the DNR's
commissioner to agree to take the land back before the land is
transferred. The DNR wants to be part of the decision to ensure
the department agrees to the land transfer.
1:46:14 PM
CHAIR P. WILSON pointed out this language is also in Section 2,
4, and 10.
MR. FOGELS agreed.
1:46:23 PM
REPRESENTATIVE FEIGE suggested that an instance may arise in
which the DNR might want the land, but the DOT&PF may decide to
sell it to someone else. He asked whether this section should
be structured with a clear priority to allow DNR the first right
of refusal on land transfers.
1:46:52 PM
CHAIR P. WILSON read subsection (b) [, which read, in part, "...
shall notify the commissioner of natural resources" on any
transfer of land or disposal of land so she envisioned the
commissioner would know in advance.
MR. FOGELS agreed, but the provision also requires the DNR to
"request" the land.
REPRESENTATIVE FEIGE questioned whether the DNR automatically
would receive any requested land or if it is still up to DOT&PF.
He asked whether the first right of refusal language should be
stronger.
MR. FOGELS deferred to the bill drafter or the Department of Law
to respond.
1:47:53 PM
REPRESENTATIVE FEIGE asked whether the DNR would want the first
right of refusal.
MR. FOGELS answered that he did not think it would be an issue.
Again, the lands in question are lands used for transportation
purposes and typically the remaining land would entail small
remnants. He envisioned that the department would offer to sell
the land to an adjacent landowner.
1:48:39 PM
CHAIR P. WILSON related an instance in which the DOT&PF
straightened a road and removed a curve, which left a sliver of
land it didn't need for the road project. She didn't imagine
anyone would want the piece, but she recalled the land was given
to the borough. She read subsection (b), in part, "If the
department determines that land, property interests, or
improvements are no longer necessary, the department shall
notify the commissioner of natural resources of the
determination and may ...." At that point the department may
transfer or dispose of the land yet the DOT&PF must still notify
the DNR, she said.
1:50:00 PM
REPRESENTATIVE JOHNSON acknowledged the bill's intention is to
give the DNR first right of refusal, but he pointed out some
instances in which condemnation has occurred. Under the bill,
land that had been condemned would revert to the DOT&PF instead
of to the original property owner.
MR. FOGELS thought that it would be best to have the Department
of Law present. Still, as he reads subsection (b), it requires
the DOT&PF to notify the commissioner of natural resources of
the determination and the department may transfer the land to
DNR or dispose of the land by sale, lease, vacation, or
exchange. Therefore, the DOT&PF has the choice, he said.
REPRESENTATIVE JOHNSON suggested that if the department
condemned the land, the DOT&PF should not have any choice if the
land is not used. Instead, he maintained that in those
instances the land should be offered to the private party.
1:51:50 PM
REPRESENTATIVE FEIGE interpreted Section 1 to give the
department the choice. The language requires the DNR to request
the land if the department wants it, but it is up to the DOT&PF.
REPRESENTATIVE JOHNSON disagreed. Regardless of the
interpretation, if land is condemned and not used the
commissioner should not have a choice to decide. Instead, the
private owner should have the choice to buy the land back, he
said.
1:52:41 PM
CHAIR P. WILSON suggested there are circumstances in which land
is condemned since the private party did not want to pay the
taxes. Thus, instances occur in which the party no longer
wishes to continue to make payments [and doesn't want the land.]
1:53:05 PM
REPRESENTATIVE JOHNSON agreed. However, an agreed buyout
represents different situation than a condemnation procedure.
He maintained that the private party should have the first right
of refusal and not a commissioner.
CHAIR P. WILSON agreed. She offered her belief that the
department probably already has rules it follows but it's
important to find out.
1:54:11 PM
REPRESENTATIVE FEIGE referred again to [Section 4] paragraph (1)
[on page 3, lines 12-14], which indicates the DOT&PF may
transfer the land, but the department cannot arbitrarily do so
since the DNR must first request the land. Paragraph (2) would
allow for the disposal of the land. He maintained his question
on whether DNR should have an automatic preference and if the
language implies a preference. For example, if DNR requests the
land, should the land automatically be transferred or is it
still up to the DOT&PF commissioner to decide.
[HB 371 was held over.]
HB 194-RIGHTS-OF-WAY
1:56:15 PM
CHAIR P. WILSON announced that the final order of business would
be the SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 194, "An Act
vacating a portion of the Copper Center - Valdez right-of-way;
relating to rights-of-way acquired under former 43 U.S.C. 932
that cross land owned by a private landowner; and relating to
the use of eminent domain to realign a right-of-way."
1:57:46 PM
REPRESENTATIVE NEAL FOSTER, Alaska State Legislature, Juneau,
Alaska, as prime sponsor, stated that the goal of HB 194 is to
preserve public access via the [Revised Statute] R.S. 2477. He
explained that the bill would minimize the negative effects on
private landowners with respect to R.S. 2477 rights-of-way. He
related R.S. 2477s are rights-of-way that include public trails,
roads, and highways. He emphasized that this bill won't prevent
the public from using public transportation routes to travel
from points "A" to "B" but will limit usage to "point to point"
transportation and emergency stopping. Many of the R.S. 2477
trails go through private lands, he said. He expressed concern
that if rest stops, pullouts, and campgrounds are constructed
along these routes, it would open public access and use of the
surrounding private lands.
1:59:11 PM
PAUL LABOLLE, Staff, Representative Neal Foster, Alaska State
Legislature, provided a section-by-section analysis of HB 194.
Section 2, subsection (a) would reduce the R.S. 2477 rights-of-
way from 100 feet to 60 feet to balance landowner property
rights with the access rights of the state. Subsection (b)
would limit the use of R.S. 2477 to transportation purposes. He
briefly discussed the history, such that R.S. 2477s stem from
the Mining Act of 1866. Section 8 of that act would establish
that rights-of-way are for construction of highways. Alaska
statutes related to the state highway system identify the
purpose as for vehicular transportation. This section would
clarify how R.S. 2477 should be used. Subsection (c) would set
up the conditions for secondary easements to inspect, repair,
maintain, and improve a right-of-way. It would also set up
guidelines for dispute resolution. Subsection (d) would allow
realignment of rights-of-way through the existing eminent domain
statutes and subsection (e) defines routine maintenance and
repair.
2:01:12 PM
MR. LABOLLE said that Section 1 will vacate a specific R.S. 2477
right-of-way which is overlapped by a [43 U.S.C. 1616(b)]
easement created during the Alaska Native Claims Settlement Act
(ANCSA), which is similar to R.S. 2477 rights-of-way easements.
2:02:22 PM
The committee took an at-ease from 2:02 p.m. to 2:04 p.m.
2:04:15 PM
REPRESENTATIVE FOSTER commented that this issue is a private
landowner issue and is not limited to Native corporations.
2:05:02 PM
JOE BOVEE, Vice-President, Land and Resources, Ahtna,
Incorporated (Ahtna), began his presentation by explaining R.S.
2477 is an obscure civil war mining statute that grants rights-
of-way across unreserved federal lands, primarily in the Western
states and territories and Alaska. The map shows the public
lands in Alaska prior to 1971 [slide 1].
2:05:40 PM
REPRESENTATIVE ISAACSON asked whether all lands in Alaska were
either state or federal lands prior to 1971.
MR. BOVEE answered that 99 percent of the land was under federal
or state ownership.
2:06:19 PM
REPRESENTATIVE ISAACSON pointed out it was difficult to
distinguish lines on the map in members' packets.
CHAIR P. WILSON agreed.
MR. BOVEE turned to legal definitions obtained from the state's
website. He said that R.S. 2477 was a congressional grant of
rights of way which provided, "The right of way for the
construction of highways over public lands, not reserved for
public uses, is hereby granted." The Department of Natural
Resource's website indicates that the word "highway" was
historically used to refer to foot trails, pack trails, sled dog
trails, crudely built wagon roads, and other corridors for
transportation. The term "highway" is defined in state statutes
AS 19.59.018 (8), as follows:
"highway" includes a highway (whether included in
primary or secondary systems), road, street, trail,
walk, bridge, tunnel, drainage [structure and other
similar or related structure or facility, and right-
of-way thereof, and further includes a ferry system,
whether operated solely inside the state or to connect
with a Canadian highway, and any such related
facility;].
MR. BOVEE explained that the process to assert an R.S. 2477 is
far from consistent and has been the subject of litigation
between the state and private landowners and the federal
government in North America. In 1998, the Alaska legislature
instructed that while providing for the public's right to use
these historic access easements, "every effort should be made to
minimize the effect on private property owners."
2:07:39 PM
MR. BOVEE stated that DNR has identified 669 R.S. 2477 trails in
in Alaska. For example, DeBarr Road in Anchorage and Farmers
Loop Road in Fairbanks began as R.S. 2477 trails. Additionally,
numerous foot trails are R.S. 2477 trials, many of which may not
be visibly identifiable on the ground. He reported that over
142 R.S. 2477s are located on Ahtna land alone.
MR. BOVEE pointed out the Ahtna lands overlaid on an Alaska map.
The next slide, entitled "Private Lands Present" shows private
and public lands, with private land ownership in blue, and
federal or state ownership depicted in yellow. The R.S. 2477
trails are shown by black lines.
2:08:51 PM
CHAIR P. WILSON asked for further clarification that the R.S.
2477 were old trails.
MR. BOVEE answered yes; noting most were adopted or used during
mining in the late 1800s or early 1900s.
2:09:23 PM
MR. BOVEE highlighted Ahtna lands include 402 linear miles of
R.S. 2477 trails, which would encompass 9,406 acres. The next
slide entitled, "Ahtna Lands Regional Location" shows Ahtna
owned lands in red.
2:10:12 PM
MR. BOVEE turned to the slide entitled "R.S. 2477 Landowner
Problems, Icy Roads Caused by Incised Roads "across Ahtna lands.
This slide identifies [in black lines] the R.S. 2477 trails
located on Ahtna lands. In response to a question, he answered
that the 402 linear miles on Ahtna land with a 100-foot right-
of-way would consume 9,406 acres.
MR. BOVEE continued. Ahtna, Inc. lands contain over 221 linear
miles 17 (b) easements. As the sponsor identified earlier, part
17 (b) ANCSA defines a trail or public use across Native
Corporation lands. He pointed out some trails overlap with an
existing easement totaling 529 miles.
2:11:45 PM
CHAIR P. WILSON asked for further clarification on the duplicate
trails.
MR. BOVEE answered that two easements cross private property on
Native Corporation land and on some non-ANCSA lands. He
explained the width and range from 25-60 feet whereas an R.S.
2477 is typically 100 feet wide. The R.S. 2477 rights-of-way
often fall on the 17 (b) trails so they are duplicative.
CHAIR P. WILSON clarified that the 17 (b) trails are narrower
ones than the R.S. 2477 trails.
MR. BOVEE answered yes.
2:12:41 PM
MR. BOVEE said that approximately 98 linear miles of 17 (b)
easements are duplicative of R.S. 2477 roads.
2:13:30 PM
MR. BOVEE explained that R.S. 2477 trails represent a
significant burden on the landowner. In response to a question,
Mr. Bovee answered that the R.S. 2477 easements were federal
rules originating from the 1866 mining law. He further
clarified that the federal government has recognized only three
or four necessary trails of the aforementioned 669 R.S. 2477
trails.
2:14:41 PM
CHAIR P. WILSON asked whether the state or federal government
has authority over the trails.
MR. BOVEE answered that the state has authority.
2:14:52 PM
MR. BOVEE turned to the next slide entitled "R.S. 2477 Landowner
Problems Icy Roads Caused by Incised Roads." This trail located
near Cantwell is called the Windy Creek Trail and was the old
access to the Denali National Park until the 1960s. He said the
100-foot wide trail doesn't have any restrictions on vehicle use
depending on the time of year. The next slide shows a trail
into Bear Valley that is overlaid with a 17 (b) easement without
any restriction on use. In response to a question, he answered
no; that the land is not DNR land, but is Ahtna land with a
public easement.
2:15:44 PM
MR. BOVEE showed several photographs of other R.S. 2477 trails,
not in members' packets. Since these trails used the shortest
route many of them, such as the one near Copper Center, R.S.
2477 T 633, did not consider erosion, flooding events, or best
locations. He explained that Ahtna has made a concerted effort
to work with various agencies on the issues surrounding the R.S.
2477 trails. The state agencies refer to the federal statute
and basically respond that their "hands are basically tied."
The trails can be relocated if natural conditions make the route
impassable or unsafe. The state can enter property to perform
maintenance and repair work such as paving, leveling,
installation of culverts and other duties such as clearing
vegetation or realigning roads. The state maintains that the
public has extensive use rights within the right-of-way that
include not only transportation but also rest stops, pullouts,
boat launches, fishing access, and campgrounds.
2:18:23 PM
MR. BOVEE explained the Klutina Lake Road starts on the
Richardson Highway and goes to the head of Klutina Lake,
crossing 18 private landowners, non-ANCSA landowners and crosses
driveways. In response to a question, Mr. Bovee explained that
the private landowners did not even know the trail existed until
about five or six years ago when the state asserted its rights
over the R.S. 2477s. Thus, the issue has arisen since the R.S.
2477 trail with its 100-foot wide easement will consume the
private landowner's acreage.
2:19:40 PM
CHAIR P. WILSON related her understanding that Ahtna didn't know
their land allotments fell on R.S. 2477 trails.
MR. BOVEE answered yes. He explained the 18 landowners in the
aforementioned area own the land, which was previously a Native
allotment. The land was subdivided and the private landowners
didn't know R.S. 2477 would cross their front yards.
2:20:16 PM
CHAIR P. WILSON asked for clarification on the state's position.
MR. BOVEE answered that the state asserts it is a public
easement and the public can use the roads indiscriminately, any
time of the year, using any kind of equipment. In further
response to a question, Mr. Bovee agreed access is without any
rules or regulations.
MR. LABOLLE, in response to a question, clarified that the bill
has an additional referral to the House Resources Standing
Committee.
2:21:27 PM
MR. BOVEE identified potential solutions. One alternative
proposes limiting the scope of use of R.S. 2477 trails. He
emphasized that Ahtna is not opposed to limiting access.
Although Ahtna encourages resource development, the 100-foot
right-of-way and unregulated use within the right-of-way opens
access. One issue is who will perform road maintenance once the
roads are public roads during times of budget constraints.
MR. BOVEE turned to a slide entitled "Well Maintained R.S. 2477
Road" that encompasses a hunting area north of Cantwell. He
advised that Ahtna has been working with DOT&PF and DNR to
realign the trail around a gravel pit near the Parks Highway.
He offered his belief that the department will reroute the
trail. In further response to a question, he answered that
Ahtna owns the material site.
2:23:55 PM
MR. BOVEE stated that Ahtna signed a Memorandum of Understanding
with DNR, Alaska Department of Fish & Game and DOT&PF last
summer. This agreement requires quarterly meetings with the
state agencies to try to resolve issues and to pool and use
resources more wisely. This bill would require consultation
with the private landowner prior to engaging in other than
routine maintenance and represents a "good neighbor" policy. It
would also require the state to consult with the landowner if an
R.S. 2477 right-of-way has been damaged beyond repair and is to
be realigned. He mentioned several trails have been realigned
several times.
2:25:19 PM
MR. BOVEE would specifically vacate portions of R.S. 2477 right-
of-way along the Klutina Lake road effectively ending litigation
with the state. He thanked members.
2:25:47 PM
REPRESENTATIVE FOSTER offered to provide a chart to better
describe the R.S. 2477 right-of-way as compared to the 17 (b)
provisions. The goal of the bill is to minimize the impact to
the landowner. He related a scenario in which he owned a farm
at Kenny Lake with an R.S. 2477 crossing his land. As a
landowner he would want to minimize the impact on his private
land. He would not want a right-of-way with a campground
located on his land, but would prefer a point to point access so
people aren't stopping on his land.
2:27:26 PM
CHAIR P. WILSON asked for the status of the current lawsuit.
MR. BOVEE reported that the case started mediation but must
follow state law so the process hit a "brick wall."
2:28:06 PM
CHAIR P. WILSON asked whether this bill would amend it to
satisfy Ahtna.
MR. BOVEE answered that it would not restrict access to state
land but would limit easements and define the width of the
right-of-way.
2:28:39 PM
REPRESENTATIVE FEIGE asked whether plat maps exist for Klutina
Lake. He understood interest exists with respect to lake
access. He further understood that the federal 17 (b) easement
but not the R.S. 2477 continues through the private lands.
Since it doesn't appear to be overlapping this bill would not
vacate the R.S. 2477 easements.
MR. BOVEE offered to provide a detailed plat map of the area.
2:30:05 PM
REPRESENTATIVE JOHNSON referred to page 2, line 9; paragraph
(1), which read, "... routine maintenance and repair may only
preserve the condition of the right-of-way as it existed on
October 21, 1976; ...." He asked whether the state is
advocating all the R.S. 2477 lands if the trail has not been
maintained. He understood that the state is still in litigation
with the federal government and the trails have not been
resolved. He asked whether the state would be giving up on
those lands. For example, if a trail went from Fairbanks to
Nome and it crosses private land, this language would not allow
the trail to be maintained any differently than it was in 1976.
He asked whether that means these rights-of-way will not be
developed.
2:31:08 PM
MR. BOVEE answered that he was not aware of all R.S. 2477
easements in the state; however, he is familiar with
approximately 90 percent of ones in the Ahtna region. He said
approximately 95 percent are not developed, but are foot trails,
pack trails, or sled trails.
REPRESENTATIVE JOHNSON remarked that is his point. The bill
would mean the trails would never be more than the current
status.
MR. BOVEE answered that is the point of the bill. If the R.S.
2477 right-of-way is currently an all-terrain vehicle (ATV)
trail or a foot trail, that it should be left as such and have
room to develop it later.
REPRESENTATIVE JOHNSON maintained the language would restrict
further development. If the road is a walking trail then it
cannot be more than a walking trail even if gold is discovered.
He expressed concern about the restriction. He discussed some
of the history of the R.S. 2477 trails such that the state has
had to litigate each trail. He did not want to advocate limited
access across federal lands. Secondly, if an R.S. 2477 runs
along a river and a boat launch is not permitted, wouldn't that
limit access to a publically-owned resource based on Alaska's
Constitution. He expressed concern about limiting future
development. He suggested there might be a way to compromise;
however, he maintained his concern about limiting access that is
provided by Alaska's Constitution. He did not want to send a
message to the federal government that Alaska has limited access
by freezing the R.S. 2477 right-of-way to 1976 condition.
2:34:59 PM
REPRESENTATIVE ISAACSON offered his belief that this bill goes
too far since the state is developing. One way would be to
recognize that some right-of-way will not be used. He
acknowledged that there isn't a management plan and that seems
to be the biggest issue. He agreed that managing the rights-of-
way is important and to ensure that property owners are aware of
the use. He pointed out that Farmers Loop Road was an R.S. 2477
right-of-way and currently in many places is a four-lane
highway. He noted several other roads in Alaska that were
developed on R.S. 2477 trails. He cautioned against impeding
development. He acknowledged that a R.S. 2477 right-of-way will
likely become a road and development occurs along the road and
Ahtna, Incorporated will likely need those roads in the future.
He asked whether Ahtna has a bill before the Congress on this
same subject.
MR. BOVEE answered yes; but it does not have anything to do with
R.S. 2477s.
2:38:33 PM
REPRESENTATIVE ISAACSON asked how the federal bill will affect
this bill. He suggested the federal bill asserted groups within
the state as having more rights to the transportation corridors.
He asked whether this was related.
MR. BOVEE answered that he was not aware of the federal
transportation bill.
REPRESENTATIVE ISAACSON said he would further research it.
2:39:11 PM
REPRESENTATIVE ISAACSON said he would be interested in solving a
specific issue rather than "locking up" the lands globally in
Alaska.
REPRESENTATIVE JOHNSON referred to the fiscal note which
identifies 20,000 linear miles of R.S. 2477 rights-of-way, which
could increase to 26,600 once settled. He expressed concern
that the bill could jeopardize 26,000 miles of access for 400
miles of Ahtna trail. He agreed the R.S. 2477 right-of-way
issue is not just an Ahtna issue, but is a statewide issue that
could affect Alaska's future. He said he would hate to give up
this access.
MR. LABOLLE referred to the fiscal note and clarified that of
the 20,000 linear miles, 50 percent is on private land, and so
about 10,000 miles applies to R.S. 2477s that cross privately-
owned land.
REPRESENTATIVE JOHNSON pointed out the checkerboard of private
lands, noting one acre in the middle could impede development.
2:42:28 PM
CHAIR P. WILSON, referring to the DNR fiscal note of 3/8/14,
noted that diminishing the right-of-way to 40 feet would equate
to 48,500 acres.
2:42:50 PM
REPRESENTATIVE ISAACSON suggested this issue goes back to the
municipal model, noting it is the state's policy to encourage
the settlement of the land based on maximum use and benefit.
Although the cities have private land until the land is used for
public interest, the advantage for the historical trails is that
they provides access to private lands and that will continue to
evolve over time. He expressed concern about restricting access
to a time certain. He said he could not get past that hurdle,
particularly since the state is required to settle the land. He
suggested that Ahtna try to find a way to solve the specific
problem without unintentionally restricting access throughout
the state.
2:44:40 PM
CHAIR P. WILSON remarked that she has not seen improvement
during the time she has served in the legislature. At the time
she was initially elected the state was in a deficit. Since the
state's population is so low a sales tax or an income tax
doesn't solve the financial issues. She concluded that the
state needs more population in order to grow.
2:45:45 PM
REPRESENTATIVE FEIGE referred to a Bureau of Land Management
(BLM) document in members' packets entitled, "Public Access
Information." He asked whether the Klutina Lake Road referred
to as the Brenwick-Craig Road and the Klutina Trail in the
document are different or are these easements part of the same
access to Klutina Lake.
MR. BOVEE answered that the Brenwick-Craig Road is more commonly
referred to as the Klutina Lake road. The ANCSA 17 (b) easement
stops at private property at the mouth of the lake. The Klutina
Trail turns into an R.S. 2477 trail because it is not an ANCSA
17 (b) easement.
2:46:51 PM
REPRESENTATIVE FEIGE related his understanding that the Klutina
Lake road goes to the outlet of Klutina Lake and the Klutina
trail continues beyond that point.
MR. BOVEE answered that the Klutina trail wraps around the north
side of Klutina Lake and continues to Valdez.
[HB 194 was held over.]
2:48:21 PM
ADJOURNMENT
There being no further business before the committee, the House
Transportation Standing Committee meeting was adjourned at 2:48
p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB0371A.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| HB 371 Sponsor Stmt .pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| HB371-DNR-MLW-3-10-14.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| HB371-DOT-SDES-3-11-14.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| HB 371 Elements of the Bill.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| HB 371 Glenn MP 118 N ROW Plans.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| HB 371 Old Glenn Hwy.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |
| SSHB 194 ver N.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB 194-Sponsor Statement.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB 194 Sectional Summary.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB194SS-DOT-NDAES-3-11-14.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB194SS-DNR-MLW-3-8-14.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB 194-Letters of Support.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB 194 Supporting Documents-Applicable Statutes.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB 194 Applicable Statutes.docx |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| HB 194 Ahnta Presentation 3-11-14.pptx |
HTRA 3/11/2014 1:00:00 PM |
HB 194 |
| CSHB 371 ver N draft.pdf |
HTRA 3/11/2014 1:00:00 PM |
HB 371 |