Legislature(1999 - 2000)
01/25/2000 01:40 PM Senate ARR
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
JOINT COMMITTEE ON ADMINISTRATIVE REGULATION REVIEW
January 25, 2000
1:40 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Representative Jeanette James, Vice-chair
Senator Pete Kelly
Senate Georgianna Lincoln
Representative Mary Kapsner
Representative John Harris
MEMBERS ABSENT
All Members Present
COMMITTEE CALENDAR
Repeal of RS 2477 Rights-of-way Easement Certifications, Easement
Regulations
WITNESS REGISTER
Mr. Bob Loeffler, Director
Division of Mining and Water Management
Department of Natural Resources
3601 C St. Suite 800
Anchorage, AK 99503-5935
Mr. Myles Conway, Assistant Attorney General
Department of Law
1031 W 4th Ave., Suite 200
Anchorage, AK 99501
Mr. Joseph Hart
P.O. Box 649
Glennallen, AK 99588
Mr. Michael Eastham
P.O. Box 3646
Homer, AK 99603
Mr. Craig Puddicombe
P.O. Box 2929
Palmer, AK 99645
Mr. Bill Ward
P.O. Box 1087
Delta Jct., AK 99737
Mr. Bryan Merrell
3035 C Street
Anchorage, AK 99503
Ms. Audrey Brown
P.O. Box 990
Delta Jct., AK 99737
Mr. Tom Scarborough
1676 Tanka Dr.
Fairbanks, AK 99709
Ms. Doniel Ampuero
P.O. Box 877633
Wasilla, AK 99687
Ms. Eileen Marrs
Wasilla, AK 99687
Ms. Dana Olsen
HC-30 box 5438
Wasilla, AK 99654
Mr. Scott Calder
P.O. Box 75011
Fairbanks, AK 99707
Mr. Jim Wright
P.O. Box 9
Cantwell, AK 99729
Mr. Bob Gilbertson
P.O. Box 32
Cantwell, AK 99729
Mr. Jon Brautigan
HC 30 Box 5480-B
Wasilla, AK 99654
ACTION NARRATIVE
TAPE 00-01, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Joint Committee on Administrative
Regulation Review meeting to order at 1:40 p.m.
Mr. Bob Loeffler, Director of the Division of Mining and Water
Management, Department of Natural Resources (DNR), explained that
over the last four years the legislature made quite a few changes
to the public easement statutes. While those changes improved the
statutes, they made DNR regulations somewhat out-of-date. In
addition, in 1998 when the Legislature enacted a new statute on RS
2477s, he thought it was clear the legislature wanted DNR to be
more efficient about reporting to the Legislature as it asked for
an annual report. He is here for those reasons.
The regulations do a couple of things to conform to the 1997
revised statutes. They require written findings from DNR on
restricted access to protect public safety or property and prohibit
DNR from restricting how people traditionally use an easement.
The second series of changes was relevant to RS 2477s. The 1998
statute listed 600 routes the legislature said qualified as RS
2477s. It required DNR to research and report to the legislature
additional routes annually. DNR has created a more streamlined
process to replace the old cumbersome and expensive certification
process in order to comply with legislative direction.
Third, in 1998 the legislature designated DNR as the platting
authority in the unorganized borough and within the municipalities
with no platting authority. Regulations were established for this
function for the first time.
The last legislative change in 1999 changed laws prohibiting
municipalities from vacating an RS 2477 right-of-way within their
borders and regulations have been changed to conform to that.
VICE-CHAIR JAMES said she didn't attend the hearings on the pieces
of legislation he referred to and asked how much he participated
when the legislature worked on these issues.
MR. LOEFFLER said that he is a new director and wasn't around at
that time.
VICE-CHAIR JAMES said she remembered complete opposition from his
department.
MR. LOEFFLER said he couldn't dispute that because he wasn't there
at the time.
REPRESENTATIVE HARRIS referenced the fourth piece of legislation
saying only state agencies can vacate a right-of-way within their
borders and that he has been informed that the public may also do
that. He asked if that was DNR's attempt to take the regulation
process out.
Number 114
MR. LOEFFLER answered, "No, absolutely not." DNR aggressively
asked for public input on changes to RS 2477's, either assertions
or vacations. It's in statute, regulation, and it's their policy.
He believes AS 29.35.090 specifically says only the legislature or
a state agency may approve a vacation of an RS 2477.
VICE-CHAIR JAMES said her understanding was, if the organized
boroughs have a platting and planning authority, and after public
hearing they determine that a particular trail or otherwise RS 2477
is in the best interest of the public to be vacated, generally the
state agency has agreed. She asked him if that was true.
MR. LOEFFLER confirmed it would be an unusual case where DNR would
not go along with a determination by the municipality.
VICE-CHAIR JAMES said that all boroughs are not organized and that
DNR is the platting authority and asked what the provisions were in
regulation for that public process.
MR. LOEFFLER answered that he wasn't sure of the exact provision,
but DNR would do a public notice, get comments, and then under the
tenets of the law and regulations in .065, they would make the
decision.
VICE-CHAIR JAMES said she thought he misunderstood the question.
She repeated that within municipalities and organized areas, there
is a public hearing process where people are notified and are able
to come to a public hearing to testify as to whether or not the
vacation of one of the areas is recommended. She is asking whether
there is a similar process that allows the public to come and
testify at a public hearing for an easement to be vacated in an
area that is under DNR.
MR. LOEFFLER answered that they have public notice requirements as
well; he didn't think they required a hearing.
Number 170
VICE-CHAIR JAMES asked if a person who lives near an RS 2477 to be
vacated or asserted has the opportunity under these regulations to
nominate it and to follow up and provide a public hearing, not just
public notice, on those issues.
MR. LOEFFLER answered that there is a different process for assert
and vacation. For assertions DNR provides a general public notice
with an appeals process. Anyone may nominate; anyone may provide
research; and anyone may comment. It is an open process, but does
not require a hearing.
VICE-CHAIR JAMES said she is trying to visualize what transpires in
order to vacate an RS 2477. She recapped that DNR is reporting new
RS 2477s on an annual basis. This might cause a problem for some
folks, because it interferes with what is already on the ground.
She asked if it would be possible for the legislature to vacate
through statutory change.
MR. LOEFFLER answered, "Absolutely not." Public hearings are not
prohibited; they're just not required. The standards for the
public process are set out in AS 29.40.120-140 and 11 AAC 53.250.
He apologized for not being more familiar with them, but would get
them a more informed summary.
Number 236
CHAIRMAN TAYLOR asked why DNR came up with a new definition of
"water body" relative to navigability and a different standard than
mean high. He wanted to know how that would interplay with the
Gulkana case.
MR. LOEFFLER said he was not as familiar as he should be with the
specifics of the definition, but he would get back to him on that.
CHAIRMAN TAYLOR said he hoped he would since the subject of
navigability is crucial to the State right now. The federal
subsistence law will be enforced on waters within the federal
domains which are not "navigable."
MR. LOEFFLER responded that he could cite the statute for the
definition of navigability. He believed their intent and execution
was to be neutral with respect to those issues.
CHAIRMAN TAYLOR asked if the person who drafted the regulations was
available.
MR. LOEFFLER responded that a group within DNR did the drafting and
they could get back to the committee.
CHAIRMAN TAYLOR said he is very concerned about the question of
navigability because the definition often depends on field work
that's really done by the Division of Habitat, which actually makes
a determination on the ground whether a particular stream or area
in a stream is navigable. In addition, the legislature is
concerned that public access be provided along such streams or
portage areas as might be necessary to move from one navigable
stream to another for purposes of access for hunting, fishing,
recreation, mining activities or whatever the person might be
doing. That's why the question of the viability of the RS 2477 in
this State was important enough for the legislature to take up last
year.
Those questions of navigability are important, as are the questions
of maintaining public access along stream corridors, even though
some of those streams may not be navigable.
MR. LOEFFLER said he understood and believed these regulations
implemented that. He added that DNR was using the statutory
definition of navigable waters in public water.
CHAIRMAN TAYLOR said it seemed that there is an attempt within the
regulations to reduce or eliminate to some extent the
interpretations and the field work and assistance that DNR has
relied upon in the past coming from ADF&G.
MR. LOEFFLER responded, most emphatically, that isn't true. DNR
works hand-in-glove with ADF&G and it's the combination of that
expertise that protects the public's interest.
CHAIRMAN TAYLOR said the language of 11 AAC 51.010 seems to grant
DNR increased authority over section line easements and asked how
this affected current regulations relating to power line easements.
Number 300
MR. LOEFFLER responded that these regulations do not grant DNR any
authority on sectional easements. It is not DNR's mission to be
managing the kind of internal subdivision along roads or section
lines or utilities.
In Section 200 of the regulations there is a provision to give
management of easements to DOT and the local governments and they
expect to do both. There must be some agency that is the managing
agency of defaults. That agency is established in AS 19.30.400 as
DNR who has enough to do without trying to manage power lines
within Anchorage. He said there was some confusion over this issue
which was worth sorting out.
CHAIRMAN TAYLOR said there was a lot of controversy last year
within the Legislature about easements with telecommunication lines
and he was surprised to hear DNR was reluctant to participate.
MR. LOEFFLER said he wasn't suggesting they are reluctant to grant
easements across state lands such as for fiber optic cables. He
meant they are reluctant to be the kind of manager that is internal
to subdivisions and does day-to-day infrastructure management that
the Kenai or Mat-Su Borough would do.
CHAIRMAN TAYLOR said it appears from language in 11 AAC 51.025 that
this restricts the identification of RS 2477's to surveyed land and
asked if that is correct. If it is, why aren't they considering
legitimate rights-of-way or RS 2477s on unsurveyed lands.
MR. LOEFFLER answered that DNR asserts rights-of-way on unsurveyed
lands all the time.
CHAIRMAN TAYLOR responded that .025 seemed to restrict that
authority. In 11 AAC 51.065 (d)2, vacations of RS 2477 rights-of-
way must provide for an equal or better alternative except where a
municipal assembly or council by ordinance specifically requests
the vacation. He asked why they are allowing municipalities to
vacate these public access routes without providing equal or better
alternative routes. Some municipalities have proved themselves to
be less than considerate of public access rights.
MR. LOEFFLER responded that he believes AS 19.30.410 and the
regulations specifically prohibit municipalities from vacating RS
2477s without approval by either the legislature or the Department.
The vacation standards are somewhat confusing and do not always
include the words "people are better." Sometimes they use the
words, "reasonably comparable."
He noted they were parroting the standards from AS 19.30.410 and
tried to make them neither higher nor lower. The different
standards reflect different situations that are in the statute. In
fact, municipalities may not vacate an RS 2477 as the statute lays
out, without approval of the legislature or DNR.
CHAIRMAN TAYLOR said that answered his question about ADF&G, but it
appears from the regulations that DNR has assumed all of the
discretion on the decision making process with no consideration for
other state agencies that may be intimately impacted by that
determination. He wants to know why.
MR. LOEFFLER answered that the legislature drafted a final decision
to DNR but they don't make those decisions without consulting with
ADF&G. He agreed that in .035 the consultation language was
deleted. However, under termination of the kinds of easement,
there is still a requirement in .045(d) to consult with ADF&G.
They consult with ADF&G on all of these decisions, anyhow.
Number 398
CHAIRMAN TAYLOR asked if DOTPF and ADF&G are given an opportunity
to respond in a timely manner before some determination is made
about either the vacation or the creation of an RS 2477.
MR. LOEFFLER answered, "Absolutely, and frequently they are
integral to the process that leads up to the decisions, such as
getting the information, prioritizing where they work next, working
with BLM, and all those questions."
CHAIRMAN TAYLOR asked if he sensed some reluctance within DNR to
identify RS 2477s or whether that is just a perception the
legislature has.
MR. LOEFFLER said he hoped it wasn't a perception they held too
strongly. It's not one that he has. He thought their report to
the Legislature was complete, adding 66 new routes between this
year and last year. Their ability to do so is limited by the staff
available, but not by their will.
CHAIRMAN TAYLOR said he had been trying to find out if they had
made a determination on the Stikine, but he would address that
later.
Number 412
VICE-CHAIR JAMES said there was a lot of distress caused over
identifying RS 2477s and asked what kind of criteria they were
using to identify them as a viable access currently or previously
being used. The reason she is asking this question is because some
of these routes go through areas that are built on or are not being
used and have alternate access.
MR. LOEFFLER answered that the criteria are outlined in Section
55(b) of the regulations. They are relatively general but
correspond to the criteria that the court uses in asserting their
validity.
He said her question may also have been how they allocate staff
research. He explained that they do that in part through the
availability of information to them as they find it and in part by
information provided by other people. When someone suggests an RS
2477 and provides information, and when ADF&G tells them some
access is needed to a water body, they do it. There is no policy
to concentrate in one area of the state or another.
Number 450
CHAIRMAN TAYLOR said he didn't see a reference to aerial
photography and asked if there is a reason.
MR. LOEFFLER said he wasn't sure and added that they do look for
air photos.
CHAIRMAN TAYLOR said there have been some disputes regarding RS
2477s across, for instance, a farmer's property, and that evidence
had been presented to DNR in the form of aerial photographs that
actually showed the trail. DNR had come up with a different
designation that was more detrimental to the person using the land
who wanted the existing trail (the one that showed through the
aerial photography).
MR. LOEFFLER said he wasn't familiar with that case, but in general
they would use any information that was available.
CHAIRMAN TAYLOR asked in general what reaction DNR has received to
its proposed regulations.
MR. LOEFFLER responded that the comment period closed on Friday and
they hadn't read through the comments yet.
CHAIRMAN TAYLOR asked if DNR is hearing from people who had prior
contact with him or DNR about location or vacation of these rights-
of-way. He questioned whether the comments are about individual
situations or over-all policy concerns.
Number 486
MR. LOEFFLER answered that they hear both, but there is certainly a
tension between public access and private property rights. A lot
of people are concerned about a public easement, which lets the
public use what has always been considered private property. It is
a legitimate concern on the part of private property owners.
SENATOR LINCOLN asked if any people said that they didn't have
enough time to respond to the regulations.
MR. LOEFFLER said yes, and that is why DNR extended it two times.
They also had someone come in an hour before it closed to request a
multi-month extension. However, they have not heard a massive
outpouring of a need for extensions.
SENATOR LINCOLN asked if DNR is going to summarize the 40 - 50
responses for the Committee.
MR. LOEFFLER answered that typically the responses don't go to the
Committee, but he would be happy to provide them with a summary.
CHAIRMAN TAYLOR said he thought the sooner and clearer DNR could
identify a public easement, the sooner it could resolve most of the
concerns and people will be on notice in the future when they
purchase property that there is this encumbrance within their area.
VICE-CHAIR JAMES commented that 11/22/99 - 1/4/00 is an absolutely
ridiculous time to be putting out a notice to anyone. It's the
holiday season of the year 2000. "This is a massive change in the
way things have been done." She thought it was time for the
Administration and the Legislature to work things out so the public
isn't misused.
Number 532
SENATOR LINCOLN wanted it clear that when the representative from
North Pole said they are in a contest with the Administration, she
wasn't speaking for all of the Committee. She realizes the
complexity of the issue and the need to have the public involved in
the whole process.
VICE-CHAIR JAMES reiterated that she believed there was a contest
going on between the legislature as a whole and the Administration.
Number 541
REPRESENTATIVE KAPSNER said she thought a majority of the
legislature was in a contest with the Administration on some
points.
MR. LOEFFLER responded that he's not in a contest with anyone. DNR
is trying to do what is best for the public. He is happy to take
comments from the Committee whenever they send them.
VICE-CHAIR JAMES thanked him.
REPRESENTATIVE HARRIS said his office has received many complaints
about RS 2477s across private land. If he is reading the
regulations properly, the private landowner is giving up ownership
of their property to the State. He asked if that was correct.
MR. LOEFFLER answered that RS 2477s created the private ownership
of the land, so they never owned that particular portion of their
bundle of rights. Typically, landowners have unfettered use of
their land for whatever purposes they want consistent with law,
except they cannot prohibit the public access as specified in the
easement. If it is a general easement for snowmobiles, they have
whatever rights they need, but they can't prohibit that kind of
use. The use and the easement typically predated the private
ownership. The problem is often the people purchased the land and
didn't know it. Therein lies the tension between public access and
private rights.
REPRESENTATIVE HARRIS said he knew someone with a large
agricultural piece of property with an easement going through it.
He has it fenced and used it continuously for agricultural
purposes. To have an alternative route is very difficult and maybe
almost impossible. Historically, the trail hasn't been used in
years and he asked how they would deal with a situation like that
with these regulations.
MR. LOEFFLER answered that the law gives them very little latitude.
They must provide equal, better, or reasonably comparable access.
If that can't be provided, the Department doesn't have the
discretion, through regulation or any other means, to vacate an
easement.
REPRESENTATIVE HARRIS asked if it's the responsibility of the
private landowner to maintain the easement at their expense.
MR. LOEFFLER answered that they have no responsibility to maintain
it. To the extent that the Department has discretion with nearby
state lands, they try to use that to provide access that meets
everyone's needs. When that's not feasible, their hands are tied.
VICE-CHAIR JAMES said she understood that RS 2477s originated under
federal law to allow people to build roads or highways where a
trail had been used for access. This law has been on the books for
a long time and, therefore, it's assumed that if the criteria were
met for an RS 2477, that the 100 or so feet for the highway is
there for the use of the people. However, the federal government
has said it is not going to respond to these assertions any more.
TAPE 00-07, SIDE B
Number 580
VICE-CHAIR JAMES said her concern is access in rural areas. In
most of the built-up areas of the State, alternative access has
been provided already. Identification of RS 2477s was not there
when many people signed documents to buy their property from the
State. Maybe there should be a caveat saying the existing trails
are reserved or something to that effect. If that's carried out,
it means if there's a trail across your property and you want to
move it to a comparable place, you could do that.
She also understands that one of the reasons we started identifying
all these RS 2477s was because the federal government is not
recognizing them any more. It was believed that before the State
of Alaska could have final assertion of an RS 2477, it would have
to take all of the supporting documents and go to court and assert
its right against the federal government.
VICE-CHAIR JAMES said she was confused about whether the State has
the right to assert without going all the way to the federal
government to be sure they would recognize it as being valid (since
these are federal trails - not state). She asked him to respond.
MR. MYLES CONWAY, Assistant Attorney General, said he has been
handling the RS 2477 case the State filed against the federal
government. A number of the trails listed pursuant to SB 180 by
DNR are across federal lands. It's true that they don't generally
recognize RS 2477s, although it appears they are going to back down
in our case. They know that a couple of the claims are valid.
He asked her to restate her question.
VICE-CHAIR JAMES asked if you identify across someone's property,
such as Representative Harris was talking about, where there is an
old trail that's currently not being used because there's road
access (the easier way to go), notifying the property owner that
there's a 100 ft. strip of RS 2477 going through his property
doesn't make it so, in her opinion. It seems that documentation of
the use of that for a highway submitted to the federal government,
who was the one who would have recognized that in the first place,
might say this is not necessary any more, because it's already been
located in a different area.
How does the authority come to recognize RS 2477s, she asked. Is
it from the language in the statutory direction that the
Legislature has given to the Administration? Does that make it a
state right-of-way? Or is an RS 2477 a federally allocated right-
of-way that may or may not be recognized by the feds today. One
particular owner in the Cantwell area has an assertion that goes
right through his garage - another one has one that goes through a
berm that's been there forever and no one travels it. Where do
these people have any kind of redress, she asked. Do we vacate
part of it, because some people use it for access to their house.
How are those problems sorted out and what position does the
federal government have, if any, in this assertion.
MR. CONWAY answered that she had put her finger on what is going to
be a very difficult issue in the coming years. The statute has
identified a number of trails, which, if valid, will predate all of
the private property interests. The private property parcels are
going to be encumbered by those trails. If you have a situation
such as she described, where there are alternative accesses, he
thought that was a perfect example of moving through the vacation
process. In some instances, the very stringent standards for
vacation that have been set up by statute are going to make it very
difficult to vacate those routes. It will absolutely impact
private property owners.
MR. LOEFFLER said the answer to the other question of whether the
federal government has a role in an assertion on state land is that
it doesn't have a role anymore. Once the evidence shows that the
right-of-way existed, it exists until vacated. The only way to
vacate is through procedures in statute.
Number 526
VICE-CHAIR JAMES said she served on the Planning Board in the
Fairbanks North Star Borough. Early in the process, they
established a Trails Commission which extensively went through the
entire borough and identified trails that were currently being used
and used in the past. They did a mapping of the whole issue. As
the Borough proceeded with subdivisions, they addressed every
single one of those trails. They either stayed where they were or
were put somewhere else that was more convenient in the
subdivision. Trails are not necessarily 100 ft. wide, but whatever
use required. It seemed to her that the State should use a process
similar to the Fairbanks North Star Borough's.
MR. LOEFFLER responded that to some extent the standards for
vacation narrowed trails, but that was for trails mentioned
specifically in legislation.
CHAIRMAN TAYLOR asked if the statute specifies 100 ft.
MR. CONWAY answered that a state statute accepted these from the
federal government at 100 ft. An RS 2477 can be accepted either by
public use or by act of an appropriate legislative body. There is
a history of state statute and each one has set a different width
requirement. The most recent sets it at 100 ft. That one doesn't
govern all RS 2477s. The governing width is determined by which
statute was on the books at the time the land was unappropriated as
a grant from the federal government. If the grant was accepted at
a very early date, the width would be less than 100 ft. The
decision on the width is not up to the Administration; it was
established by statute.
CHAIRMAN TAYLOR asked if he was saying width established by statute
at the time of taking.
MR. CONWAY said that was correct. He explained that it doesn't
matter whether the federal government accepts these things or not.
They made the grant. That acceptance had to have occurred before
the land was segregated for another use. It's within the power of
the Alaska Legislature to subsequently make that width smaller.
Number 479
CHAIRMAN TAYLOR explained that he thought their frustration with
this process is that they have taken a cookie cutter and slapped it
all over the map of the State of Alaska. Where it has impacted
individuals, they must hang in a state of limbo with potential
liabilities. He thought they needed to work with people to find
out what size we need out there.
SENATOR LINCOLN referenced a letter from Ward Farms in Delta
Junction that points out that one of DNR's opinions said that the
State assumes no liability for claims by the public for damages or
injury on an easement and that the private landowner is liable for
injury and damages incurred by the public on an easement, including
any environmental damage caused by the public's activities. She
asked for his response to that.
MR. CONWAY clarified that he is the one who spoke to Mr. Ward and
that the letter didn't accurately state what he told him. A
landowner whose land is encumbered by an easement will only be
liable for activities on the easement if he did something
negligent. He didn't think an adjoining landowner is liable for
everything that happens on the easement, absent some kind of
negligent act. He believed the State is fairly well immunized for
liabilities for occurrences on an easement by statute.
SENATOR LINCOLN referred to Representative Harris' example of a
farmer putting up a fence cutting through an easement, and asked
whether that farmer would be liable.
MR. CONWAY answered that it would be illegal for a person to put a
fence up across the public use area. If someone drove a car into
the fence, he thought there might be some liability, but he didn't
think there was any basis for a private property owner to fence a
public access in Alaska. DNR has allowed people to put gates up if
a way through was easily accessible.
VICE-CHAIR JAMES said she thought a farmer would be responsible if
his dog bit someone and grazing cattle could be a problem. One
thing she keeps seeing is that people buy property that has not
been asserted before and is asserted later. It still seems the
intent of the RS 2477 in the beginning was for right-of-way for
public roads. It seems like when the State asserts a public road,
they ought to take possession of that road.
The subdivision she is talking about was a BLM subdivision that was
divided after the Parks Highway was built and didn't recognize any
kind of an RS 2477 trail. The title was given from the BLM to the
next person and on and on. If this was a federally allocated
right-of-way and BLM didn't recognize it when it transferred the
property, she asked how can the State come back and grab it again.
Number 400
MR. CONWAY said he is familiar with the case she is talking about.
He suspected when BLM conveyed the land, it was subject to existing
trails. The situation would be that BLM didn't have that land to
give to that individual because before it was segregated, they gave
the trail to the State. Therefore, it wouldn't have to be
mentioned.
He knows there are some people who filed the nomination application
in the first place and claim to need that particular right-of-way
for access to their property. If it is the situation where it's
truly needed, the person should apply to DNR to vacate it and he
thought it would be granted.
VICE-CHAIR JAMES responded that one party needs this route for
access. However, there is alternative access, but that's not the
access they choose and she agrees. It's all the other folks in the
subdivision who are affected and there doesn't seem to be any
provision for them, whatsoever, to get any relief.
CHAIRMAN TAYLOR said he assumed someone would do something about
this.
MR. LOEFFLER responded that they work on those types of things
consistent with their availability of staff, but they are limited
to the kinds of on-the-ground investigations and fixes they can do.
CHAIRMAN TAYLOR said that was a matter of prioritization done by
this Administration. He said he appreciated the answers to his
questions. He understands why the Department has new regulations
and what they're attempting to do, but the process of using the
cookie cutter technology across the State and not providing for the
staffing or the forms necessary or the opportunity for people
affected to come in and comment would be further exacerbating a
problem that was never really there. He didn't know of anyone who
was going to build a 100 ft. highway through the gentleman's farm
in Delta. He knew of people who would be upset if they cut off
access to large hunting areas because you can no longer get across
his farm. He hoped someone would work that out.
MR. JOSEPH HART, Glennallen resident, read a letter that was
written to Nancy Welch, Northern Regional Land Manager, Division of
Mining Land and Water, saying he would send the Committee a copy.
The intent of the letter was to provide comments on behalf of the
shareholders of Ahtna, Inc. with 1.5 million acres of land in the
Copper River/Cantwell area that were granted by the ANCSA in 1971.
There are currently 150 17(b) easements of various titles. In
1970, representatives of the State of Alaska played a major role in
the identification of these easements across ANCSA land that were
conveyed to the villages and regional corporations.
Representatives of the ANCSA corporation, the State of Alaska, and
the federal government negotiated in good faith in the
identification and location of these easements. The federal
government and the State of Alaska assured the ANCSA corporations
that no additional easements would ever be identified and reserved
on their lands conveyed to them by the federal government. These
commitments must be honored by the State of Alaska and the federal
government. If there is a true and demonstrated need for
modification of these easements, they must work together with the
affected ANCSA corporation for such changes.
Many of these easements are used for recreational and sports
hunting purposes which is in direct violation of the prescribed
uses of these easements. It constitutes trespass of Ahtna lands.
The State of Alaska RS 2477 claims open additional Ahtna lands to
trespass. Many of these easements can serve no other purpose and
most are redundant. The location and size of easements on ANCSA
land must remain as a the federal government in the 1970s
established them through public process. The public at large and
specifically, the State of Alaska, was given the opportunity to
participate in the development of these easements.
No other easement can be identified and reserved on ANCSA pursuant
to the rules and regulations being developed under these statutes.
The public already has access to state and federal lands through
AHTNA lands and they have a right to do that. At the present time,
neither the state nor federal government will take responsibility
for actions the public takes while utilizing existing easements. It
is inconceivable to think the State of Alaska will do anything to
curb the public's abuse of additional easements. They, therefore,
oppose and do not recognize the State of Alaska's claims of
easements via RS 2477s.
Number 268
MR. MICHAEL EASTHAM, Snowman Snowmachine Club, said the RS 2477 is
a good concept, but it doesn't help people who need it. For
instance, recently a member of the club requested a trail easement
from a private property owner for a trail that had been in place in
excess of 50 years. When the DNR disposed of the land to the
owner, they didn't reserve an easement through his property where
prior to his ownership, a seismograph trail was put in that split
his property in two. This is a heavily used trail by landowners,
homesteaders, and recreation users in the last years. The Snowman
Club has had to go to court to try and win back the right-of-way
easement; there is not yet a decision.
MR. EASTHAM said he just learned that in situations of trail
easements, if they are longer than 5 miles, it requires a survey be
done. Clubs are having to foot the bill for the surveys and he
thought DNR could do something to help clubs that don't have a lot
of money to work with.
MR. CRAIG PUDDICOMBE, Palmer resident, said he had been in
litigation for 10 years and he would like to have the Legislature
vacate his RS 2477. He said Senator Halford would be discussing
his case in the next Resources meeting and asked Mr. Loeffler if he
was going to give people more time to respond to the new proposals.
MR. LOEFFLER answered that they would give the Legislature as much
time as they want. They have received only one request from the
public, two including Mr. Puddicombe. So they were not going to go
back out and readvertise it.
SENATOR TAYLOR said he thought he was just asking for more time.
MR. PUDDICOMBE asked when they would finalize the new proposals.
MR. LOEFFLER explained that they could give extra time to the
Legislature, but not to an individual person without advertising it
to everybody. He said they would finalize the proposals when the
Department finished working through the comments and whatever time
the Legislature needs. He thought it would be a matter of weeks.
Number 164
MR. BILL WARD, Delta Junction, said he has concerns about how the
regulations are being implemented. He owns 640 acres there and 240
on the Kenai Peninsula, both agricultural parcels. He is focused
on section line easements that were transferred from federal
ownership and subsequent access easements that were granted under
State of Alaska land sales.
An item on page 22 had not been discussed where it refers to an
equipment list of what is approved to be used on an easement. This
equipment list also applies to landowners. If it is not on DNR's
list, the landowner cannot take any other equipment on the easement
either. The State has retained control, not the landowner. He can
not run his tractor on that easement without DNR permission. He
was concerned that the regulations make no reference to private
property rights. The landowner has no rights of use or management
without state approval and has no say over the public's use of the
easement. Yet he is held accountable for the public's activities.
He explained that he owns a 640 acre block of land. On one side
there is a public road built on their easement (50 ft.). Two other
sides are adjacent to private land. The fourth side is bordered by
state land, which is accessible all the way around, including a
public road that goes along one side of it. The easements all lead
to private property; there's no public land beyond that. He has a
fence to his property line to be used in conjunction with his
farming operations because there has been no demonstrated need for
anyone to use the easement, including the private land owner
beyond. He is responsible under state and federal contracts to
manage that land and easement in a responsible manner.
SENATOR TAYLOR asked if the easement ran through the middle of his
property.
MR. PUDDICOMBE answered that all easements are on his boundaries.
He has them around four sides of his property and the easement he
is talking about takes up 26 acres of the ground he paid for. He
can't use his patented land and has no say in the public use of
land he paid for, and would be liable for public damage, if he
created a public nuisance just by being there. He would subject
his whole farm to the potential risk of criminal activity by giving
the public free reign to travel all around his property.
SENATOR TAYLOR asked if he was concerned about the section line
easement law.
MR. PUDDICOMBE answered yes and said he wasn't into the RS 2477s.
SENATOR TAYLOR asked if his primary concern is since he already has
a road running down one side of it, that easement has not only been
taken, it's being used. The other three sides of his property are
still subjected to that possible easement should anyone need to run
a road down those lines. He asked where the DNR's list of
equipment that can be used came from.
MR. PUDDICOMBE referenced page 22, 210.84. His concern is that
public access has been stretched into being some right of access
and when the founding fathers created sectional lines federally, it
was for more of a public need. In every other state he has talked
to, management authority is vested in the land owner until such
time that the governing body determines there is a need.
TAPE 00-02, Side A
Number 001
MR. WARD continued. "... criss cross on sections lines that have
fences or are being used in a stewardship manner by the landowner
and there's no public demand to use those or need. And I think
that is where the failure is in Alaska. We have gone so overboard
in trying to protect public right's of access that we are ignoring
any private property rights. I mean, this thing strips me of any
private property rights and we are basically abusing -- giving the
public the total right of abuse to that."
MR. BRIAN MERRELL, state counsel and underwriter for First American
Title Insurance Company, expressed the following concerns about
proposals to repeal the provisions put in place to record rights-
of-ways that have been vague about locations.
This obviously "causes me and the title insurers deep concern"
because while, in many cases, those claims will not be covered by
the title insurer, it certainly raises an administrative concern
because maybe in the majority of cases, the RS 2477 asserted
rights-of-way don't even affect their property, but it shows up
because it's in the same section as their property and put in the
public record.
He saw the opinion of the Legislative Council dated yesterday and
in the context of that memo, they are not a "taking (of people's
rights)" in that sense, but they are a "taking" if the State
records where they might be when they are not actually there. The
problem is that there aren't the resources to make accurate
identification. The Legislature needs to reconsider the issue of
recording section wide maps with dyed lines on them that purport to
be where these things might be. They would obviously affect the
marketability of the title of the properties. It is clearly a
taking of rights when the easements don't actually exist over their
property. Title insurance may not cover that for the land owner.
In the case of most rural property, there won't be any insurance
anyway.
MR. MERRELL said the State should go in and figure out exactly
where these things are and what use is needed or necessary and how
big it is needed to be. There will be the same level of complaints
as long as this isn't done.
SENATOR TAYLOR thanked him and commented that the federal
government created this thing. As a new frontier state, we assumed
we would always be able to build roads along rivers where people
had walked and traded since time immemorial. We assumed we would
always be allowed that. He asked Mr. Merrell if he would check with
his people down south to see how they handle this situation.
MR. MERRELL said he had done some checking, but it isn't as big a
problem in other states, because of the vast size and rural nature.
MS. AUDREY BROWN, Delta Junction attorney, said people in Delta
needed an extension to the comment period and she didn't recall
seeing any notice locally.
Also, from reviewing AAC 51, she said these proposals are really a
massive change. Chapter 51 as it was initially set down solely
addressed a combination of identification and management of RS 2477
rights-of-way or trails. RS 2477s were the former 43 U.S. Code 932
and dealt with establishing rights-of-way for public highways (an
act from the late 1800s). This chapter seems substantially changed
by the additions of new sections, the deletion of existing
sections, and the adding in of areas that go beyond RS 2477s.
One of the areas she is real concerned about is adding the section
line easement issue and the definition at the end regarding public
access easements. RS 2477s are a separate issue from section
lines. The Alaska statute that establishes section line easements
is AS 19.10.010 and is titled: Dedication of Lands For Public
Highways.
Number 210
The first note under that statute sites Gerves vs. Kenai Peninsula
which says enactment of Chapter 35 in 1953 was a positive act
clearly manifesting the Territorial Legislature's intent to accept
the federal grant under 43 U.S. Code 932 of rights-of-way for the
construction of highways over public lands not reserved for public
uses. She thought we needed to get back to the original intent
which was the construction of public highways over public lands.
Number 232
CHAIRMAN TAYLOR said he appreciated Mr. Loeffler's offer to extend
the comment period for the Committee and asked how long would be
fair.
MR. LOEFFLER answered another two-three weeks.
MS. BROWN said she thought people in her area would need 30 days.
SENATOR LINCOLN asked the reason for the first extension and if
they get requests for extensions. She didn't want to extend just
to extend.
MR. LOEFFLER replied that they extended it from January 4 to the
21st, a total of 60 days, because of the Christmas holidays.
CHAIRMAN TAYLOR asked Mr. Loeffler to notify people that they have
an extended period of time, approximately 30 days, in which to
submit their comments.
MR. LOEFFLER indicated he would.
CHAIRMAN TAYLOR said in Canada, Australia, New Zealand and some
other places, on some navigable streams they have what is called
the "Queen's chain" which refers to one chain length from the high
bank of the stream landward and is provided as access to the public
so they can get to the stream. He thought would be a good idea to
think of here.
Number 334
MR. TOM SCARBOROUGH made the following comments via teleconference
from Fairbanks. He and Pat Chow (ph) submitted comments to DNR in
their roles as land surveyors. One comment was that the public was
not given adequate time to review the regulations. He noted the
land surveyors were left off of the list of parties to be notified,
even though land surveyors are very involved in the easement
process. Land surveyors are liable for determining owner and
access costs. The proposed regulations reflect a complete change
in direction; DNR will take over duties that DOTPF has been
responsible for in the past. DNR plans to make this change without
an increase in staff or funding.
He expressed concern that managing public and private easements
will be a massive operation for DNR. He stated the appeals process
is not clarified at all in the proposed regulations. He noted his
appreciation for an extended comment period because the land
surveyors meet in Anchorage at the end of February and will have a
chance to review them.
CHAIRMAN TAYLOR asked Mr. Scarborough to send any comments to DNR
and the committee and thanked him for his participation.
MS. DONIEL AMPUERO said she has one acre of land and no one will
buy it because of the stink from the incinerator. Now she is told
that the transportation corridor will be run through it. Because
of the incinerator, she couldn't do her outdoor business (organic
growing) and, plus, they want her to have insurance. This issue
has bothered her so much that she had to go to Elmendorf because of
stress on her heart.
CHAIRMAN TAYLOR commented that they had her letter on file and that
none of those things were going to happen yet and not to worry.
MS. AMPUERO responded that the people in Knik had been put through
so many borough meetings that the people don't want to participate,
anymore. Whenever they try to fight for something, they end up
getting punished. Five people from that community are here and
there has to be some kind of relief, she said.
CHAIRMAN TAYLOR asked Mr. Conway for any he comments he might have
on how other states handle this issue. Is there a way to reserve
the right for the state and not encumber the property owner by
exercising it - especially on the section line easements.
MR. CONWAY acknowledged that request.
Number 419
MS. EILEEN MARRS said she is the single mother of a few children
with farming interests in the Knik area. She has been notified
through the mail that her property has been encumbered by the
Herning Trail and the Beluga Lake Indian Trail which is sixty miles
from where they said it was. She has been notified that the
section line easement behind her which provides access to the 40
acre parcels that are adjacent to her property are now going to be
extended from 60 ft. wide easements to 100 ft., and possibly one
500 ft. easement. This would take 3/4 of her one acre and also 3/4
of an acre on the parcel behind her. All of the people involved in
this would lose their homes, because they are in the 3/4 acre
sections.
MS. MARRS said she was notified by the Borough that due to their
comprehensive plan, that she can no longer use the fertilizer
provided by her animals on the raspberry bushes she is trying to
grow organically. She can't get a business license to sell
raspberries in the area, because they can't be certified as organic
any longer, because there is an incinerator within 3/4 of a mile of
her home. DNR is asking that there be no any public comment and
notification. The only way she found out about this meeting last
Thursday is because a local neighbor thought that more people
should be involved. She said she was unable to get a letter to the
Committee.
CHAIRMAN TAYLOR informed her that she now has adequate time to
comment.
MS. MARRS continued saying that the corridor that runs behind her
is a section line easement, but the paperwork she recently received
said it could be used for a transportation corridor which could
contain anything from dog mushing to a train right-of-way. This
was not written into the paperwork when she purchased her property
which has been paid off for the last seven years. She has never
received anything saying her property was encumbered by the
possibility of a train running through the center of it.
CHAIRMAN TAYLOR reassured her that that wasn't going to happen and
that she has time to respond now.
MS. MARRS said that her family has been trying to get property at
Pt. Mackenzie to start a farm and were recently notified that two
of the parcels they have been researching are going to be
encumbered by railroad easements of 300 ft. She has requested maps
showing where the rights-of-way were to go and she has received
absolutely no input, neither from the Department of Agriculture or
DNR.
These maps are essential in determining whether or not property
owners are going to be affected by these trails. She was sent maps
showing section lines and a trail running through them haphazardly
and with no distinguishing markings, like lakes or streams.
Fifteen thousand people were notified that the trails were going to
go through. She thought DNR should research the trails.
CHAIRMAN TAYLOR said she understood her problem and they needed to
talk to the Department to see how they were going to classify these
things and then get on with the process of helping people find out
where the trails are located.
Number 500
MS. DANA OLSON, testifying on her own behalf from Mat-Su, expressed
concern about the statute of limitations for the time period in
which a person can request a vacation. After she submitted
documents to the Department of Natural Resources (DNR) showing the
recording of an implied easement was in error, she received no
administrative decision concerning the matter. According to DNR
regulations, she is entitled to an administrative hearing so she
sent a demand letter to the Commissioner.
CHAIRMAN TAYLOR noted the committee has a copy of the documentation
Ms. Olson referred to.
MS. OLSON said the criteria used by DNR to determine the RS 2477
easement will not fly, so the issue will be moot. A second access
issue she wrote to the Commissioner about concerns her desire to
have access to the Herning Trail file. After making efforts for
months, she has been unable to get access to that file.
MS. OLSON stated that after you prove a vacation, DNR can come in
and give you another trail. Her husband is trying to do a
vocational rehabilitation business on this property and they needed
to be able to mitigate their damages. They weren't going to put
any more money into their property while this was going on as her
husband is a disabled person who is unemployable.
"The other thing I sent down to you was concerning two bills that
would destroy my Chase (ph) agricultural property interests on a
certain day without a hearing. So, I feel that the opportunity to
engage in agriculture is really being taken away from me and my
family. I don't know what you can do about concerning that but I'm
finding two issues. It seems like if I assert over here that I
suffer the effects of maybe having my other interests terminated.
Under the rule of perpetuities, I find the interests I have in
three court cases, that the Commissioner of DNR is not defending my
property interests before the legislature, and yet he won't give me
an administrative appeal."
MS. OLSON continued:
These are basically my complaints right now. I want to say
that when I was involved in the lawsuit with the department at
DNR and they refused to disclose under discovery -- I mean I'm
even in a separate class. I specifically asked them and they
refused to give me the information. They went in and they had
put lines on this right-of-way claim on my property. Of
issues are the call to management program, the fact that when
the land was severed was the issue they brought to point when
the land was severed and subdivided, whether or not a right-
of-way should have come up at that time. I also gave you
quite a bit of case law that shows that it was extinguished
but I have no appeal process. If the statute of limitations
is going to be held by the 1998 -- the title [indisc.] is
coming up. It's not like I can't wait. I need to either
press the error or I need an appeal.
CHAIRMAN TAYLOR thanked Ms. Olson for her testimony and asked her
to contact him.
Number 550
MR. JAMES WRIGHT, representing himself via teleconference from
Cantwell, made the following comments. Last fall his neighbor
advised him the State of Alaska imposed an RS 2477 across his
property which is located on US survey 3229. The access stems from
an old 80 mile trail from Cantwell to the Valdez Creek Mine. The
RS 2477 access encompasses about 12 miles of that trail. The
access came about as the result of a land dispute between two
property owners. It was addressed in 1994 but was shelved and
suddenly resurfaced.
MR. WRIGHT pointed out that a 100 foot right-of-way - there are 22
acres of this land - will require three-quarters of an acre. He is
one of more than nine people who will be affected by this road. He
feels DNR has abused its rights under the law in order to quell a
dispute that should have been decided in court. Something needs to
be done regarding this encroachment on individuals' rights on
private land. Mr. Wright said he has been working with the Mat-Su
Borough to establish some parameters for the protection of private
lands from public easements when unnecessary. He thanked committee
members for spending time on this issue and asked them to do
something to harness such DNR activities.
CHAIRMAN TAYLOR informed Mr. Wright that Vice-Chair James has a
copy of his materials and that he will review the material with
her.
Number 577
MR. BOB GILBERTSON, a Cantwell resident, said he has lived in
Cantwell since the time of homesteads and mining claims. At that
time, state and federal bureaucrats realized the importance of
protecting private land ownership. He is testifying today because
he found out about DNR's cavalier approach to RS 2477 easements on
private land. He recently underwent the process that DNR is
proposing to adopt. He sent a copy of the lawsuit he filed against
DNR to committee members. DNR has deprived him and his neighbors
of their right to due process by ignoring their own regulations.
He is really tired of state bureaucrats knowingly and willfully
breaking state regulations and bending legislative intent with
impunity. If he, or any other private person, did so, they would
be sent to prison. Because of their positions of public trust,
state bureaucrats should be held to a higher standard. Before he
got into this mess, he made an effort to find out if there was an
easement across his property. No one could find one anywhere, but
apparently, in the file drawer in DNR's Fairbanks office was a
nomination filed five years earlier. Until that time, DNR had done
no research on the nominees. In their haste to cover themselves,
they never checked the ownership status across the nominated route.
Within a matter of weeks, the deal was done. DNR went so far as to
track him down in a motel room in Anchorage to tell him he could
not block the road; however, the road was already blocked in
several different places. DNR was unaware of that fact because no
one ever visited the proposed route. No other land owner on the
route was aware of what had happened. DNR's action was not correct
and just. Nowhere in America's history can he find anything
remotely resembling this problem.
TAPE 00-02, SIDE B
Number 590
MR. GILBERTSON said there are certain circumstances in which a
government entity can assert authority over private land: the right
of eminent domain for road construction; national emergencies;
flood control and dam construction are some of them. In each of
those cases, a clearly defined procedure must be followed by the
government and every effort is made to be fair and just to the
private landowner. In addition, there must be an overwhelming
benefit to the public.
DNR's proposed regulations attempt to put all of the responsibility
and cost on the landowner. Under the proposed regulations, DNR
would have the public believe that it is only identifying, not
certifying, roads and that it is the legislature that is making
them legal. He didn't think the Legislature could legally do that,
either. The end result is that the landowner ends up with a clouded
title which is the heart of the problem.
MR. GILBERTSON asked who wants to buy a piece of property on which
it is suspected the state owns an easement? The easement is not
recorded anywhere as a legal document and its exact location and
size are not known. In addition, rules concerning the easement are
not available and no one knows who will be enforcing them.
He questioned who will remove his neighbor's building or Golden
Valley's electric power pole from the middle of the proposed RSV
625. DNR says the landowner, if he thinks DNR is wrong, can file a
quiet title suit to remove the easement. Mr. Gilbertson said the
landowner already had a quiet title and is now forced to bear the
cost of getting it back. An original landowner might sell land
without knowing an easement existed. Prospective buyers must be
informed of any problem with the property.
MR. GILBERTSON said when reviewing the records filed by DNR in
Superior Court, it is evident they play with semantics to such a
degree that their attorneys are not sure what the regulations are
saying. At one point, DNR said the reason they need not follow the
current regulations was that they were only a political ploy and
were never intended to be followed. The end result is the same: if
DNR has its way and the legislature follows its present course, and
adjudication has taken place, the landowner has ended up with a
clouded title in a manner which is not legal and will result in
endless litigation.
Irregardless of the importance of RS 2477 easements across public
and corporate lands for the future growth of Alaska, nothing is so
important as to warrant the destruction of private property rights
without due process.
Number 571
MR. SCOTT CALDER, Fairbanks resident, said he is concerned that Mr.
Scarborough's Surveyors Organization would be meeting the last week
of February and he didn't know if that would fall within the
extension. He, therefore, thought that 50 days would be a better
amount of time given the level of concern. He said there is an
important public purpose to be achieved in allowing for a right-of-
way for traditional trail uses, but it seems to him that the best
application of that would be to prevent the federal government from
dominating the State of Alaska and it is a corruption and
perversion of this concept to place everyone in jeopardy who
testified today. Rather than creating a pretext by which people
will be denied public comment in the status of their own private
land holdings, we should be thinking more in terms of protecting
private ownership and asserting the rights that have been mentioned
today. He thought the Legislature might consider revisions to the
criminal code in light of the improper takings by public officials.
Number 534
MR. JOHN BRAUTIGAN, Knik Chapter of the Iditarod Trail Blazers,
read the letter they submitted. Both the Iditarod National
Historical Trail and Herning Trail have historical trailheads at
Knik. The Knik to Susitna Trail, RST 118 has been put in,
maintained, and is currently being improved through the efforts of
Knik Dog Mushers Association and his organization. Both trails
have received Sims trail Grants for these improvements.
Additionally, the Herning Trail is the most direct route from Knik
to Big Lake and is recognized in the Big Lake and Knik-Fairview
Comprehensive Plans. However, in the Knik section of the Herning
Trail, the original trail crosses private land and newer sub-
divisions. This has been corrected by the Knik-Fairview
Comprehensive Plan by utilizing a north/south section line easement
in order to prevent land use conflict with property owners.
He would like to see a way to vacate portions of easements going
through all private property and maybe going to all section line
easements.
Number 496
CHAIRMAN TAYLOR said it sounded like from his testimony that the
Herning Trail question had been solved through the borough's
planning process.
MR. BRAUTIGAN answered yes, he hoped those problems were resolved.
He said notices had been sent out.
CHAIRMAN TAYLOR asked him what they did. Did they just show the
old trail on their map and now they have a newer, different trail.
MR. BRAUTIGAN responded yes, they basically went to section line
easements for the Iditarod Trail that goes to Big Lake.
An unidentified woman asked when the comment period was scheduled
to end because the surveyors were meeting after it.
CHAIRMAN TAYLOR said he "cut a deal" with the Department before he
knew about the surveyors. He said he would discuss it with Mr.
Scarborough.
MR. LOEFFLER commented that he would contact the land surveyors and
"work it out."
CHAIRMAN TAYLOR said he would appreciate that.
An unidentified gentleman said his impression was that the trails
could be vacated pretty easily and he wanted to know how they would
go about it.
CHAIRMAN TAYLOR said he thought setting up a system by which
vacations could occur would have to be part of the regulatory
process. He said this was a complex problem and it was going to
take some sharp thinking to come up with ideas that don't violate
people's property rights.
CHAIRMAN TAYLOR thanked everyone for participating and adjourned
the meeting at 4:17 p.m.
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