Legislature(1995 - 1996)
10/04/1995 09:00 AM Senate STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
JOINT SENATE AND HOUSE STATE AFFAIRS COMMITTEE
October 4, 1995
9:00 a.m.
Anchorage, AK
SENATE MEMBERS PRESENT
Senator Bert Sharp, Chair
Senator Randy Phillips, Vice-Chair
Senator Loren Leman
Senator Dave Donley
SENATE MEMBERS ABSENT
Senator Jim Duncan
HOUSE MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Scott Ogan, Vice Chair
Representative Ivan Ivan
Representative Brian Porter
Representative Ed Willis
Representative Joe Green
HOUSE MEMBERS ABSENT
Representative Caren Robinson
ALSO IN ATTENDANCE
Speaker Gail Phillips
COMMITTEE CALENDAR
-- DISCUSSION ON RS 2477
WITNESS REGISTER
Steve Borell, Executive Director
Alaska Miners Association
501 W. Northern Lights Blvd.
Anchorage, AK 99503
POSITION STATEMENT: Supported RS 2477.
Frank Dillon, President
Alaska Truckers Association
3443 Minnesota Dr.
Anchorage, AK
POSITION STATEMENT: Supported RS 2477.
Ron Swanson, Director
Division of Lands
Department of Natural Resources
3601 C, Ste 1122
Anchorage, Alaska 99503-5947
POSITION STATEMENT: Commented on RS 2477
June McAtee, Exploration Geologist
Calista Corporation
601 W 5th Ave., Ste. 200
Anchorage, AK 99501
POSITION STATEMENT: Commented on RS 2477
Jules Tileston, Director
Division of Mining
Department of Natural Resources
3601 C Street, Ste. 800
Anchorage, AK 99503-5935
POSITION STATEMENT: Commented on RS 2477
Tom Boutin, Director
Division of Forestry
Department of Natural Resources
400 Willoughby Ave.
Juneau, AK 99801-1796
POSITION STATEMENT: Commented on RS 2477 and forestry issues.
Tom Perkins, Commissioner
Department of Transportation
3132 Channel Dr.
Juneau, AK 99801-7898
POSITION STATEMENT: Commented on highway projects.
Attorney General Bruce Botelho
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on RS 2477 issues.
Elizabeth Barry, Assistant Attorney General
Natural Resources Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on RS 2477 issues.
Warren Olson
5961 Orth Circle
Anchorage, AK 99516
POSITION STATEMENT: Supported RS 2477.
Dale Bondurant
HC 1, Box 1197
Kenai, AK 99669
POSITION STATEMENT: Supported RS 2477.
Candie Caraway
12401 Silver Spruce
Anchorage, AK 99516
POSITION STATEMENT: Supported RS 2477.
Lewis Hidano
No address listed
POSITION STATEMENT: Commented on RS 2477.
Dennis Torrey
Chuit River Lodge
Beluga, AK
POSITION STATEMENT: Supported RS 2477.
Tom Harris, CEO
Tyonek Native Corporation
POSITION STATEMENT: Commented on Tyonek corporate policy.
ACTION NARRATIVE
TAPE 95-25, SIDE A
Number 001
SENATOR BERT SHARP, Chair of the Senate State Affairs Committee,
called the joint meeting of the House and Senate State Affairs
Committees to order at 9:00 a.m. in the Anchorage LIO conference
room. He announced RS 2477 (Review and update transportation,
present and future needs and goals) to be up for consideration.
SENATOR RANDY PHILLIPS said he has a staff person who worked on RS
2477 who will retire in January and invited people wanting
information to call her before she left.
STEVE BORELL, Executive Director, Alaska Miners Association, said
that RS 2477, Rights-Of-Way, are the only feasible means of
guaranteeing future access. Historically, nearly all roads and
trails in Alaska were developed to access mineral deposits and
support mining operations. He said that mining, today, provides
the greatest opportunity for new jobs and new economic development
in all the areas of the state, in both rural and urban support
centers.
MR. BORELL informed the committee that each mining project must pay
for all of the access infrastructure it requires. Referring to the
Fort Knox Project in Fairbanks, he said that having major roads in
place was a deciding factor in its development. The immediate
issue before the state today, he said, was to guarantee future
rights-of-access to protect the few and limited rights-of-way that
now exist.
Number 100
The issue of which rights-of-way to develop is an issue that cannot
be determined until future needs are defined. Access to state
lands, private lands, private Native lands, other private lands and
the remaining Bureau of Land Management (BLM) public lands will
require crossing federal conservation system units. If we do not
guarantee our rights to the RS 2477s that have already been
established and granted, we, the state, will never be given the
chance to decide which routes we can build and use in the future.
Alaska National Interest Lands Conservation Act (ANILCA), Title 11,
has been offered as the mechanism for attaining future access
across federal conservation system units. The Alaska Miners
Association does not agree and this is because Title 11 is so
complicated, costly, and cumbersome, that no private company would
ever try to utilize this approach.
MR. BORELL commented also that there is a problem where RS 2477s
cross private lands, because in most instances this means Native
lands. Often times RS 2477 discussions are not sensitive to the
private Native and private non-Native land owners. It is discussed
in a way that is an affront to private land owners who have the
most to lose if they cannot obtain access. Private, non-Native
lands were often obtained by patenting mineral deposits which will
need access. Similarly, much of the land owned by the Native
corporations was selected because of its mineral potential and the
potential to create jobs and economic development to benefit the
Native shareholders. However, groups and individuals who want to
block all access use the picture of the spaghetti map of roads
covered with Winnebagos to scare the Native peoples of the state.
MR. BORELL said they are concerned that Department of
Transportation's (DOT) way to establish funding priorities for road
projects will result in all monies being spent on maintaining
existing roads and non-vehicular trails rather than on new access
needs. Under DOT rules, new roads are scored with the same
standards and criteria used for the community transportation
program. While economic reasons are being considered, these
criteria place the most weight on "significant new, identifiable,
permit economic opportunities or benefits." If this approach had
been required at the Fort Knox mine, there would be no mine and the
550 on-site construction workers that are working today would be
looking for other jobs.
Number 200
MR. BORELL stated that participation by the legislature will be
needed to help establish long-term transportation goals and to
ensure that a portion of each year's transportation funding go for
new access roads.
In closing, he said, he saw an extreme danger for the state,
especially for Western Alaska, in the ongoing campaign of the
Audubon Society and the National Park Service to establish an
international park covering existing federal conservation system
units in Western Alaska, portions of the Russian Far East, and the
waters between the countries. The title given to this is Bering
International Park and there are three different designations being
proposed at the same time: First, an international park; second,
a marine biosphere reserve; and third, a world heritage site. Such
designations would make it effectively impossible to build a
railroad from the coal and metal deposits of northwest Alaska and
the Ambler district to a deep water port on Norton Sound or
elsewhere. If these designations were in place, U.S. Congress
would have to go to the United Nations before it could build
something like the Red Dog Road. With the make-up of the current
U.S. Congress, the chances of such a proposal becoming law is slim.
Another access issue Mr. Borell felt was important to mention was
if at some point, a fuel facility, natural gas or oil, was placed
on the western coast, and there would be offshore buoys to load
ships with, the very logical thing for supplying the villages of
Kivalina, Noatak, and Kotzebue, would be to use a pipeline along
the coast. That would be done in the non-frozen tidal zone,
burying it eight or ten feet deep. It would be necessary to go to
the United Nations to do that.
Number 300
REPRESENTATIVE JEANNETTE JAMES noted that would also be an issue
with the tunnel and railroad to Russia that she is interested in.
She said there is extreme interest in transportation connections in
that part of the world.
MR. BORELL said he has had Native people ask him what would happen
to protection of marine mammals. His feeling is that if oil was
found in the Chukchi Sea, the logical thing would be to do would be
to bring a pipeline down and put a deep-water port on St. Lawrence
Island. He asked the Audubon Society if it would be o.k. to
establish a park there. The reply was that they hadn't considered
that possibility.
SENATOR SHARP asked Mr. Borell to identify some high priority areas
of known resources and accesses that may be addressed. He thought
it was important to insure future access for future generations.
FRANK DILLON, President, Alaska Truckers Association, said the
trucking industry views access to our mineral resources and
recreational assets as being very important. The RS 2477 program
is perhaps the only mechanism that will allow them to expand into
areas that they have traditionally used and have known mineral
values, he said.
He quoted a letter from Governor Knowles which said that
transportation is a key to Alaska's economic health and it is one
of the most fundamental responsibilities government has to its
citizens.
MR. DILLON said the Alaska Trucking Association believes that
transportation infrastructure is a primary governmental
responsibility. If we do not have transportation infrastructure,
Alaska will not be chosen for economic development.
Number 350
He said they had instituted the "Trails and Recreation Access for
Alaska," and that federal monies were available for this program.
He thought instead of focusing on urban trail development, we could
take the "Trails and Recreation" and add economic access and
consider the possibility of exercising our RS 2477 development in
a concerted way to put in "a primitive access road" that could be
used as a trail until demand actually required that it be upgraded
to road status. He thought that if we didn't take this kind of
preemptive effort, we would loose forever the ability to put roads
into many areas. He used the state of North Dakota, which has a
lot of wetlands that now can't be touched as, an example.
RON SWANSON, Director, Division of Lands, Department of Natural
Resources (DNR), read a letter from Ann Plager, Project Manager for
the RS 2477 project. It said that during the 1980s the state of
Alaska and the U.S. Bureau of Land Management agreed to recognize
pubic rights-of-way on several routes that cross public land. The
federal government, due to policy changes, no longer accepts this
practice and have proposed new regulations that are extremely
different. The state has continued the project without federal
involvement. They hope for more federal participation down the
road. With a combined budget of $1.2 million over two years, the
Department of Natural Resources identified trails that may qualify
as public rights of way under RS 2477. Their research suggested
that over 500 routes may qualify, but it did not validate the legal
right-of-way. Historic routes are legally validated as RS 2477
rights-of-way either by court or by an agreement with owners of the
land over which the routes cross.
To date, in Alaska, this has been accomplished in only a few cases.
Often a right-of-way was needed to develop a highway project.
Generally, the routes they researched provided either access to
resources, to state land, to communities, or to federal lands not
otherwise accessible over land.
The project routes were nominated primarily from the Alaska Road
Commission records, about 200 routes; mineral industry nominations,
about 125 routes; transportation corridor land selection project,
about 100 routes; and individuals and organizations, another 150
routes.
To successfully document an RS 2477 right-of-way, it must be shown
the route was constructed or used when the land was unreserved
federal land (basically prior to 1968 in Alaska). They relied
primarily on historical agency records such as the Alaska Road
Commission Annual Reports and Maps, U.S. Geological Survey
Bulletins, Reports, and Maps; and the U.S. Postal Service Contracts
Site Reports and Maps. Other publications such as books,
newspapers, and magazines, and personal accounts with affidavits
were also collected.
Research further established that land ownership at the earliest
documented time of trail evidence. State and Federal Bureau of
Land Management land records were used to identify historic lands.
As a research portion of the RS 2477 project ended in August, the
numbers told the story. Of about 1,900 routes that were originally
identified, more than 1,200 are researched. Of those researched,
560 appear to qualify as RS 2477. Fifteen routes do not qualify.
One hundred and twenty routes already have existing rights-of-way.
One hundred and ninety routes are duplicates of the same with
another name. Two hundred and sixty routes were holding because
more evidence was needed to decide if they qualify. More than 400
routes were deferred because they cross federal withdrawals and it
is unlikely they would find construction that predates withdrawal.
Of the 700 routes not researched, the majority are located entirely
on state lands and RS 2477 assertion is not needed. These routes
can be established through a normal right-of-way reservation
process.
The RS 2477 project research focused on the routes' historical
evidence and the unreserved federal land status. The project did
not focus on the importance of the individual routes of this state.
This project did not decide how the routes would be managed or
developed. It is not their position that once an RS 2477 is
established, it is open to any type of use any time of the year.
They are currently in the process of drafting regulations that
would treat the management and development of an RS 2477 once
established the same as any other right-of-way. In other words, if
the route is only an all terrain vehicle (ATV) trail today, it
would remain as an ATV trail until a public process is conducted
that would change that level of use.
Many Alaskan land owners, such as Native corporations, want
assurance that their rights and interests will not be hurt by RS
2477 identification and platting. Federal, state, and local
governments must recognize legitimate concerns of land owners and
land managers and the people they represent. Private land owners
should also realize that historic rights-of-way may cross their
land. These public routes may someday be validated in court
establishing legal access across private land.
Historic rights-of-way can be vacated where feasible alternatives
exist. It may take years to defend the assertion of a single route
through the judicial system. Litigation clarifying what an RS 2477
really means to a land owner and public user is time consuming and
costly. No one can predict which routes will be most needed in the
future.
Number 500
Rights-of-way acquired under RS 2477 provide an access tool for the
state that can help meet public access and user needs. However,
until the legal status of an historic route is decided, it is
important that users consult with the land owner before crossing
the property.
Some uses of state land, called generally-allowed uses, do not
require any authorization from the state. These uses include
brushing or cutting a tail less than five feet wide if the route
system is not disturbed. Vehicle use is allowed as long it does
not tear up the trail or disturb the vegetation. Widening the
trail would require authorization from the state.
Eleven trails were selected as test cases to test legal questions
about access across federal land and has set precedence for RS 2477
rights-of-way. Basically, these are called criteria cases to
define the realm of when an RS 2477 is Alaskan. These 11 routes
have been certified under our existing regulations, 11AAC51 which
included public review and comment. Notice of intent to file by
title has been filed through the federal government to determine in
court the validity of these routes.
MR. SWANSON commented that federal regulations were proposed in
August, 1994, and comments are being accepted until December, 1995.
Department of Interior's budget prohibits them from expending any
funds during FY 96 on RS 2477 regulations and legislation.
The state finds the federal rules defective in several respects,
principally in the definition of construction. The federal
government found that actual construction had to happen and this
doesn't fit the Alaska scenario at all. They also tried to
administratively implement a statute of limitations for assertions
which Alaska feels they cannot legally do. They completely
disregarded over a century of state law on this particular subject,
MR. SWANSON said.
SENATOR LOREN LEMAN asked to clarify what state law was
disregarded. MR. SWANSON answered that they were ignoring state
laws in the United States and this would include territorial law.
Number 500
SENATOR LEMAN asked if the personal interviews would be with people
who are older. MR. SWANSON agreed. SENATOR LEMAN suggested that
they proceed with this aspect, since that knowledge would die with
the older Alaskans. MR. SWANSON agreed with this also and stated
that the project money is now gone.
REPRESENTATIVE SCOTT OGAN asked if, in reference to "defects in the
federal law," meant ANILCA. MR. SWANSON replied that ANILCA has
nothing to do with this; it's purely federal regulations that we
have to deal with.
TAPE 95-25, SIDE B
Number 600
SENATOR PHILLIPS asked if a route was a horse trail previously and
now it's ATV trail. He asked how that would affect the user
groups. MR. SWANSON answered that was the regulations process they
are involved in now, but he thought the categories would be more
general rather than differentiating between horse and ATV trails.
SENATOR DAVE DONLEY asked if we should be developing these trails
and turn them into fundamental access roads. MR. SWANSON answered
that hadn't been done at this point. Just the research had been
completed.
Number 550
REPRESENTATIVE JOE GREEN asked if there was any problem with not
upgrading the trails until they are needed once they are
identified. MR. SWANSON said he didn't know the answer to that.
REPRESENTATIVE GAIL PHILLIPS clarified on the report that had been
filed there was nothing concrete being worked on by the
Administration. MR. SWANSON said they weren't doing any more
research at the time as the project funding had ended. The
Administration is working on both administrative and legal ways to
get some of the routes established, he emphasized.
SENATOR SHARP asked if there were more than 11 cases forwarded to
the Attorney General's office. MR. SWANSON replied that it was
just those 11 that had been forwarded.
SENATOR SHARP asked if the rest of the 500 were ready to be
forwarded. MR. SWANSON answered they were ready as far as their
documentation goes.
SENATOR SHARP asked what kind of criteria was involved in selecting
these test cases. MR. SWANSON answered they used several faceted
criteria like land ownership. They picked cases they thought were
sure winners just because of the level of use. They wanted to
validate just what type of construction is valid in Alaska. They
didn't want one of the first test cases to be basically against the
U.S. Park Service.
SENATOR SHARP asked if any of them were designed to access known
resource areas. MR. SWANSON answered that they were all picked to
access resource areas.
SENATOR SHARP asked who they anticipated would run the costs up of
the assertion. MR. SWANSON answered that the main objections would
come from two fronts, the federal government and private land
owners.
SENATOR SHARP asked if the statute of limitations was proposed in
the new federal regulations. MR. SWANSON replied that was correct.
He said that Congressman Hanson, from Utah, has introduced
legislation that would put the burden of proof on the federal
government instead of the state. It has a statute of limitations
period of ten years versus two years. If the federal government
doesn't do something, the trail automatically is validated. He
noted that the Administration hadn't taken a stand on that
legislation yet.
REPRESENTATIVE GAIL PHILLIPS asked if that was the same bill
Representative Hanson had to deed all the BLM land over to the
individual states. MR. SWANSON said that was totally different.
Number 490
REPRESENTATIVE GREEN asked if there is a statute of limitations,
would Alaska be able to look at all the trails. MR. SWANSON
replied that they had done the initial research that would meet the
federal draft test. If they are denied, at least they would be on
record.
SENATOR SHARP asked when the statute of limitations runs out. MR.
SWANSON replied that for the first five conservation units that
were adopted, it would be July of next year.
SENATOR DONLEY asked if the next year's budget request would
include a component for dealing with the next steps that need to be
taken. MR. SWANSON replied that the Department of Natural
Resources would not have any money identified for continued RS 2477
research in next year's budget.
Number 400
SENATOR DONLEY said that it didn't look like the state's interests
were being protected.
MR. SWANSON explained that there were two separate processes here.
One is the research which they turn over to the feds and say, "Stop
the clock." We think it's valid. The other is, once it's valid,
how are we going to manage these things.
REPRESENTATIVE GREEN asked if the state had proper documentation of
the trails to validate their claims in court. MR. SWANSON answered
that under current state law, they have the documentation for
approximately 580 trails. The issue is which rules are going to
apply.
SENATOR PHILLIPS asked how the land disposal program was going
right now. MR. SWANSON answered that they had gone through 3,000
brochures. Less than five percent were from out-of-state.
SENATOR SHARP asked if regulations had been promulgated, and have
they had any applicants for large track leasing for oil companies.
MR. SWANSON said he didn't have any idea about that. An
unidentified speaker said the regulations were in place, but he
didn't know if there were any applications.
JUNE MCATEE, Calista Corporation, said they are currently doing a
joint venture with Placer Dome on Native corporation lands at
Donlin Creek. Currently, the only access to this property is a cub
strip which has reached capacity for flying fuel in. She is in the
process of submitting permit applications for an air strip that
will handle bigger aircraft. They are 12 miles from barge service
and omnibus right-of-way from Crooked Creek on the Kuskokwim River
to the sight. They really need surface access. She said there are
other similar holdings with access difficulties.
Number 325
REPRESENTATIVE GREEN asked, regarding the 12 miles she mentioned,
how close would a permanent right-of-way have to be to an old
trail. MS. MCATEE thought that needed to be worked out through the
Department of Law.
REPRESENTATIVE JAMES asked if that 12 mile access was on the list
of trails they just received from the Division of Lands. MS.
MCATEE said she thought it was 547.
REPRESENTATIVE BRIAN PORTER asked if they were able to coordinate
with DNR as far as identifying the trails. MS. MCATEE said that
the didn't have to very much, because the state has very few land
holdings within Calista Region.
REPRESENTATIVE PORTER asked if the state's criteria was sufficient
to meet their needs. MS. MCATEE answered they were o.k. for the
short term.
Number 275
SENATOR SHARP asked if 15 - 20 miles of all-weather pioneer road
would get her to Crooked Creek. MS. MCATEE replied that it would
and that it had barge and air service.
SENATOR SHARP asked if the RS 2477 didn't track the most economic
way to get a road from Crooked Creek to the mine, is most of that
land private land? MS. MCATEE answered, "Yes."
SENATOR LEMAN asked if the airstrip at Crooked Creek was along the
same caliber they were proposing for the mine. She replied that it
wasn't and the airport at Crooked Creek was 3,000 feet and they
needed preferably 5,000 feet.
SENATOR SHARP asked which she would prefer. MS. MCATEE said over
the long haul, it was better to move fuel over the surface rather
than by air.
Number 200
SENATOR SHARP announced a short break which lasted through the end
of the tape.
TAPE 95-26, SIDE A
Number 001
SENATOR SHARP called the meeting back to order.
JULES TILESTON, Director, Division of Mining, brought a map of the
major mining activities going on in the state right now. He said
mineral resources have been, and will continue to be, an important
element of a diversified economy in Alaska.
MR. TILESTON noted that in the Schultz Case, which is the RS 2477
that is in the Ninth Circuit now, one of the issues was relocation.
If you have a winter trail which is generally located in the low
lands and marsh areas and you want to conduct an all-weather road,
you would have to move to the uplands. This is an issue that needs
to be pursued for clarification.
Historically, he said, access to mineral deposits are reflected in
the major portions of today's road system. Many airfields and
ports reflect access to and from communities built around mineral
deposits.
MR. TILESTON pointed out that a recent review of the mineral
industry in Alaska by a committee appointed by the Governor to look
at marketing Alaska recommended that a comprehensive transportation
plan include reasonable access to mineral properties using all
available authorities including RS 2477 and Title 11, ANILCA.
Partnerships were encouraged as a means to help mineral development
in remote areas. He noted that a lot of the water bodies in Alaska
are navigable, and as a result of the Alaska Statehood Act and the
Submerged Land Act, they belong to the state.
Once you get away from tide water and you are off of an existing
transportation system, the cost of transportation suddenly becomes
a controlling factor as to whether that resource is or is not
economically viable, MR. TILESTON said.
Illinois Creek, in the Interior, has very high value mineral
property. He explained that placer gold was found in this area and
now with new technology, people are beginning to look for the place
that came from. So there is a recycling of interest in certain
given areas.
Number 275
SENATOR SHARP asked roughly how many miles of road would be needed
from the Kuskokwim River. MR. TILESTON replied about 15 miles.
SENATOR SHARP said he thought it would be a lot easier to deal with
this issue with site specifics than to set goals that are statewide
in nature.
SENATOR PHILLIPS asked about Cooper Landing and the enforcement
issue there. MR. TILESTON explained that at Cooper Landing there
were a number of things that happened. The key event was that
several years ago, land was transferred to the borough and the
borough was looking at what its ultimate designs were. They got to
looking at a series of mining claims which were being used for
permanent homes. The Division of Mines and the borough looked at
the issue and decided the level of activity taking place did not
warrant a permanent residence.
SENATOR PHILLIPS asked about that issue statewide. MR. TILESTON
replied that he didn't have the staff, the capability, or the
fortitude to take on a statewide trespass problem. They deal with
the problems appropriately as they come up.
An unidentified speaker asked if the Division of Mining was
involved in any kind of market analysis of, for instance, steaming
coal. MR. TILESTON replied that his division simply handles the
legal requirements, in this case, required for the transfer of an
existing set of permits within the division. Market conditions are
really left up to private enterprise.
Number 300
SENATOR PHILLIPS asked the status of the AJ Mine. MR. TILESTON
said his understanding is that the mine is being redesigned, the
company hasn't yet decided how all the components are going to link
together. A joint federal/state task force has been created,
because the key driving force is going to be the Environmental
Protection Agency (EPA) water discharge. They are looking at a
submarine tailings disposal. He is encouraged by the fact that the
Kensington, a couple of weeks ago, had reached an agreement with
all of the stake holders dealing with potential litigation to bring
all of those issues to the table and let them be addressed. He
thought that was where the AJ was trying to go.
Number 325
TOM BOUTIN, Director, Division of Forestry, Department of Natural
Resources, reviewed timber sales. He said the only place there is
a timber sale program in Southeast is the Haines State Forest,
seven million feet a year. He said they are exceeding the
allowable cut in salvage sales, but that is a sustained yield
technique. He briefed the committee on upcoming timber sales. He
said the only place where a significant timber resource will be a
long time coming is in the river system - along the Kuskokwim - but
it will be decades before anyone can figure out how to access that.
SENATOR PHILLIPS asked what regulations the Tetlin Indian
Reservation had to comply with. MR. BOUTIN replied that they do
have to comply with the Forest Practices Act and submit
notifications. They need to have Title 16 permits for water
crossings. They do written inspections which includes the Alaska
Department of Fish and Game (ADF&G), also. They have found a few
violations, but they have been easy to remedy.
MR. BOUTIN said there has been a very strong export chip market for
the white spruce which has worked out well since there are so many
trees infested with the spruce bark beetle.
SENATOR SHARP asked what method of cut would be used. MR. BOUTIN
replied that they have told the Trustees of Alaska in court that
they are modifying their prescriptions to account for what adjacent
land owners are doing, to the extent that they can. He noted that
they have found that every time the state has tried to do a seed
tree cut, they have found the seed trees have died before a seed
year comes along. He explained their buffer policy and added that
wherever they can, they don't use the clear cut method.
Number 450
REPRESENTATIVE GREEN asked if any future sales have a requirement
that some or all of the timber be used in state? MR. BOUTIN
answered, no; that the state had lost on this issue in the Supreme
Court. He added that our congressional delegation is working to
get the federal law changed that would allow some kind of an in
state processing requirement.
REPRESENTATIVE JAMES asked, regarding the spruce bark beetle
infestation, is there any plan to take mature trees that aren't
infested, yet, because that's what they eat? MR. BOUTIN answered
that wherever they find regeneration trees of about two inches in
diameter, they leave them. They have found that generally the
beetles eat the eight inches and more diameter trees.
REPRESENTATIVE JAMES asked what was the plan for reforestation in
these areas. MR. BOUTIN answered that reforestation in salvage
sales isn't required by the Forest Practices Act. They are dealing
with private land owners and what they have to do to get an
exemption from reforestation. The state is committed to
reforesting all sales.
Number 550
REPRESENTATIVE JAMES asked if anything could be done about the
blood worm and the small trees. MR. BOUTIN said that is more of a
localized epidemic. The first salvage sales of blood worm will be
offered in November.
TAPE 95-26, SIDE B
Number 580
SENATOR ED WILLIS asked what was the status of the spruce bark
beetle in the Anchorage/Eagle River Valley area. MR. BOUTIN said
that it is there, and no one knows for sure why there is this
epidemic at this time.
REPRESENTATIVE GREEN asked if there would be merit in having timber
sales in forests to get the premium quality of the timber prior to
devastation. MR. BOUTIN said a lot of their Moose Pass sales were
maybe just before the beetle. Currently, they don't have enough
money to lay out more sales in that area. He hasn't heard a way of
using timber harvest to somehow curtail the epidemic. He explained
that they are using salvage sales in the Haines State Forest to
contain the forest health situation.
SENATOR SHARP recessed the meeting until 1:30 p.m.
Number 525
SENATOR SHARP called the meeting to order at approximately 1:30
p.m. and announced that Joseph Perkins, Commissioner, Department of
Transportation would testify.
JOSEPH PERKINS, Commissioner, Department of Transportation and
Public Facilities, said in early June, the Governor laid out a new
transportation program for the state. He focused on the money we
receive from the federal government that we match with
approximately 9 percent. They were particularly concerned with the
status of the reconstruction of the major lines of communications
in the state of Alaska. They asked how much it would cost and how
long it would take to do an upgrade on our major highway system -
and bring the roads up to minimal standards. They defined these
roads as being part of the National Highway System (NHS).
COMMISSIONER PERKINS explained that the state of Alaska can't count
on getting the same level of federal funding in the future and we
should have the basic highway system finished before then, because
it would be very hard for the state to do that.
It would take about $1.2 billion and ten years to upgrade those
roads to minimal standards. This also includes the Alaska Marine
Highway System, because it is part of the National Highway System.
They also recognize future federal appropriations may well hinge on
how many miles of road we have in the National Highway System. So
they requested that the Dalton Highway, 500 miles, be added to this
system. With the Dalton Highway, it becomes a 12 year program and
would cost about $1.4 billion.
COMMISSIONER PERKINS thought that 12 years was a good number to use
and he hoped that the funds lasted that long. He did not think the
DOT could keep up with road design any faster than this, because on
a majority of roads in this system, the most difficult construction
parts are left.
Number 350
The first part of the Governor's program is a commitment to use
$120 million per year for 12 years for the National Highway System.
There is a report containing the generalized listing of all the
projects and when they are going to be upgraded with the dollar
amounts. The NHS does include roads that are within cities.
He asked the three regional directors from DOT which projects were
most needed.
There are regional roads that are not in the NHS, he said. This
includes roads like the Steese past the turnoff going up to
Prudhoe, the Elliott, the Taylor, and the Edgerton to name a few.
DOT selected $80 million, per year, to work on these roads.
To decide which roads would be built first, in case federal funding
decreases, they instituted a new competitive system.
Number 300
The system has about 12 factors with scores and weights and asked
all the communities in the State to submit projects. DOT has
finished grading all the community roads and assigned them numeric
values. They graded on need, usage, whether or not the community
would take over maintenance of the road, whether or not the
community would come up with help on the matching funds in terms of
right-of-ways, pits, etc., environmental, and safety.
The $80 million figure will be spread over a three year term (a
total of $240 million), because the first year may be needed for
design, the second and third for construction.
COMMISSIONER PERKINS explained that each regional director scored
every road in the state. The three directors got together and came
up with a priority list.
Under community and regional roads, they also looked at any new
roads in the state and these are graded in with this program.
Another factor they used in grading was economic benefit.
Another category they have is the Track Program which is basically
an umbrella that several state programs fit under. For instance,
the Off-Road Trails Program fits under the Track Program. The
regional directors have not yet selected the approximately $20
million Track projects.
COMMISSIONER PERKINS said that the federal transportation bill is
in a conference committee. It does away with the federal speed
limit and eliminates the deduction for the motorcycle helmet law.
The reason this program is so important is that the highway trust
fund will be up for reauthorization next year. The biggest problem
is to hold our formula. We need to keep our 7 plus 1 to 1 ratio on
federal funds.
Number 225
REPRESENTATIVE JAMES asked what provision his program had for RS
2477. COMMISSIONER PERKINS said he would update this plan yearly.
REPRESENTATIVE JAMES asked if they were going to fix roads so they
stay fixed. COMMISSIONER PERKINS replied that they have tried and
spent millions of dollars in research on how to build in permafrost
and keep it there. They have designs that retard where permafrost
is going. He thought it was a loosing battle to keep investing
money into trying to solve permafrost. In his opinion, the only
solution is to freeze the ground which is too costly.
Instead of letting the roads deteriorate in five years, he thought
we should come up with a yearly maintenance policy and accept the
fact that we need to quit rebuilding. He hoped to talk about this
at the national level.
REPRESENTATIVE JAMES asked how he was going to address regular
maintenance of roads, especially gravel roads that don't
necessarily need resurfacing. COMMISSIONER PERKINS replied that
the problem is that none of the money they are talking about can be
spent on maintenance. He is experimenting now on the Parks Highway
with chip seal over existing pavement to add up to five years of
life. If the experiment is successful over a year, the feds will
pay for some chip sealing.
REPRESENTATIVE WILLIS asked how "AMAPS" fits into this.
COMMISSIONER PERKINS explained that this fits into the NHS by those
roads going through Anchorage. They are ranked in the community
and regional road program as AMAPS and are given to the department.
Number 500
SENATOR LEMAN asked if he had a commitment to use design resources
available in the private sector or is he focusing on rebuilding the
internal staff of DOT and using their design. COMMISSIONER PERKINS
replied that they have the capability between project consultants
and the State DOT right now of placing about $220 million worth of
design and construction per year. They want to stay at about that
capability. He does not want to get too many of the community and
regional roads going on at the same time.
They do not plan to reduce staff in Anchorage and Fairbanks, but
they will shift projects.
SENATOR LEMAN asked if he was working with the design community to
see if they are satisfied with how DOT is allocating work.
COMMISSIONER PERKINS said he had talked to them twice at the
Consulting Engineer's Council. He said he was going to change some
methods of how the design community submits proposals.
TAPE 95-27, SIDE A
Number 001
SENATOR SHARP asked what category the Denali Highway was in.
COMMISSIONER PERKINS replied that it was a highway.
SENATOR SHARP asked who actually gets to spend the $80 million.
COMMISSIONER PERKINS said that the State DOT would do the work.
SENATOR SHARP asked which trails they could build. COMMISSIONER
PERKINS answered that they could only build a trail adjacent to the
highway, like a bike trail, or a trail head. He said they were
also going to come up with a standard for shoulders.
Number 174
ATTORNEY GENERAL BRUCE BOTELHO introduced Elizabeth Barry, Chief,
Natural Resources Section, Department of Law (DOL), who is working
on the RS 2477 issue. He said that his department has had three
roles to play - the litigation context, the legislative arena
(primarily congressional), and the alternative dispute resolution.
He said of the 558 routes, 11 were chosen by DNR and DOL as the
most likely candidates for litigation. They have given the federal
government six months notice of the suits, but have not pursued the
cases further, because of the budget limitation, the agency support
they would require, and pending federal legislation which could
substantially change the rules of the game.
He said that Ms. Barry had been working in conjunction with other
western states who are also concerned with the attempt to curtail
RS 2477.
An unidentified person asked if the federal government agreed with
us on the definition of criteria for establishing routes.
ELIZABETH BARRY, Chief, Natural Resources Section, Department of
Law, replied that they do not accept the basic premise that state
law should control the determination and validity. Their standards
are not very clear, either, at this point.
Number 300
REPRESENTATIVE GREEN asked if there was anything we could do to the
historic trails that would enhance our position. ATTORNEY GENERAL
BOTELHO answered that we need the resources to litigate. He
thought we needed to establish a state process for identifying
these routes.
REPRESENTATIVE GREEN asked if he knew how much deviation a route
could have. MS. BARRY answered that was still an open question.
Number 350
REPRESENTATIVE OGAN asked if the federal position was in violation
of the statehood compact. ATTORNEY GENERAL BOTELHO answered that
he believed we have a reserved right of reasonable access to state
lands that are surrounded by federal lands.
REPRESENTATIVE JAMES asked what are we doing to respond to federal
regulations. ATTORNEY GENERAL BOTELHO answered that we had
submitted testimony last year, and reaffirmed this year, that we
oppose the regulations proposed by the Department of Interior. She
asked about the statute of limitations. ATTORNEY GENERAL BOTELHO
and MS. BARRY answered that depends on whether the federal
government has taken some action that puts the state on notice and
we disagree with the claim. Next summer is the twelfth anniversary
of the first general management plans for conservation. These
plans refer very generally to RS 2477 and contain language that
could be construed either way.
REPRESENTATIVE JAMES asked what was going to be their budget
request to resolve this issue. ATTORNEY GENERAL BOTELHO said there
wasn't a plan to deal with contingencies, like the Chulista route,
in his department. He expects that the Governor will request his
department to make further cuts consistent with recommendations
from the Long-Range Fiscal Planning Commission and he is not
expecting to add any more positions.
An unidentified speaker said he thought there was a shift in
priorities within DOL away from RS 2477. ATTORNEY GENERAL BOTELHO
said he made reductions in all the sections that are general
funded. He explained that the state is moving toward a defensive
posture in all litigation, because of budget limitations, and RS
2477 is an aggressive posture.
Number 400
SENATOR SHARP asked if the federal government had to be put on
notice for every one of the issues. ATTORNEY GENERAL BOTELHO
answered yes. He added that they are doing their best to put the
federal government on notice about state views on the statute of
limitations. We could also do great harm to the State by trying to
file on many of them and have the feds start picking us off by our
inability to put forward the kind of evidence we would win on. We
could establish bad precedent as well as good.
Number 500
REPRESENTATIVE JAMES said that if we don't have any economic
development in this state, we won't have money for anything. Who
should be responsible for getting the RS 2477 issue moving, she
asked. ATTORNEY GENERAL BOTELHO suggested a good approach would be
to involve a joint meeting of key members of the committees meeting
now, the Governor's office, and the commissioners of the
departments that have a strong interest in this issue.
REPRESENTATIVE GAIL PHILLIPS, Speaker of the House, announced that
she was in attendance via teleconference.
REPRESENTATIVE GREEN asked if we could possibly combine resources
with the other states. ATTORNEY GENERAL BOTELHO said they have
already been working with other states. The difficulty is that the
routes are specific and have to be litigated case by case.
REPRESENTATIVE GREEN asked why they all had to be litigated on
their own. ATTORNEY GENERAL BOTELHO replied that each of those
routes is dependent upon a demonstration of an historic use.
TAPE 95-27, SIDE B
Number 580
ATTORNEY GENERAL BOTELHO said he believes the federal government is
hostile toward RS 2477 and is highly motivated to fight it at every
opportunity.
SENATOR SHARP announced a five minute break.
SENATOR SHARP called the meeting back to order and invited Warren
Olson to testify.
WARREN OLSON said he couldn't imagine a more important issue to
Alaskans than access to lands and waters. It has to be a number
one priority. Cobb Lakes Trail is one that he thought important,
because one lady, Mrs. Conkel, had been dealing with the access
issue there for over 30 years and has been unable to come up with
a right-of-way. The public and business are the ones who are
loosing dramatically if we can't have access to water ways, etc.
Having access is the only way we can spread people out which will
cut down on conflicts between users. He is very disappointed the
Attorney General said we are going to diminish work on these cases.
He is also concerned that we will lose important historical
documentation from older Alaskans if we don't act on this issue
now.
MR. OLSON said the situation with air strips is that the National
Park Service will not allow mechanical equipment in to maintain
them.
DALE BONDURANT said he has been involved in this issue for as long
as anybody in the state. He has been back to congress three
different times during Statehood, ANGSA, and ANILCA. The first
issue he became involved in was access. He thought the state has
been very lax in this issue going back to the Gulkana decision
which gave move wealth to this state than any other decision in the
Supreme Court. It put practically every piece of water in this
state into navigability. He thought it was up to the state to do
something about it right now.
Number 375
CANDIE CARAWAY said she and her family ran a sport fishing lodge in
Beluga. Their guide activities are possible through the use of a
public access road locally known as the Chuitna River Crossing. In
1993, the easement which provided public access to the river by
that road was locked in a transfer of land to the Tyonek Native
Corporation. Little, or no, state oversight was involved in the
transfer of those lands. Another parcel of land transferred in
that same area effectively blocked a key stretch of the road south
of Beluga. This road connects Arco's airstrip to the barge landing
where they receive much of their equipment. When they lost the
public access, an iron toll gate was put in.
Number 500
MS. CARAWAY strongly urged the state to give priority to the access
issue. She urged the legislature to give the Department of Natural
Resources the funds they need to provide the oversight to make sure
land transactions are done in a proper way so more premier lands
are not lost to the average Alaskan.
LEWIS HIDANO said he had purchased land in the Beluga area before
he realized there was an access issue which has caused a hardship
on his family and friends.
TAPE 95-28, SIDE A
Number 001
MR. HIDANO said he had used the road personally since 1979. Last
year, he came up and there was a gate and he was told by the Tyonek
Native Corporation that the public access was no longer there.
Number 050
DENNIS TORREY said he had lived on the Chuit River for 21 years.
The access road that Candie Caraway was talking about. The Tyonek
Village is trying to shut him out so he has no access to the river
where he has his lodge. He has two children who would have no
access to school. He said that he found a legal description error
before it was conveyed and showed it to Bob Lloyd, Bureau of Land
Management. The right-of-way was in section 21 and it should have
been in section 23. He is very upset that no one listened to him
and now there are signs up saying, "No white people allowed." His
daughter had to move a hundred miles away in order to get a public
education. He cannot go to the village of Tyonek because he has no
access. His lodge business has been shut down in June and July for
the last four years, because of Tyonek. So he is on welfare and
food stamps to be able to support his kids for the winter.
SENATOR PHILLIPS asked if he could attend ADF&G meetings in Tyonek
if he flew in? MR. TORREY answered that he couldn't, because he
had to sign papers saying he would not go on any Tyonek land
without written permission. He even has two half Native children.
He said they kicked an ADF&G biologist, Larry Bartlett, out of the
village, also. He said that his kids were beat up every time they
tried to go to school in Tyonek.
Number 175
REPRESENTATIVE WILLIS said there is a law about adverse possession
saying that if a person uses an access for a certain number of
years, he can go to court and attempt to gain legal access. He
asked if this would apply in any of these cases. MR. TORREY said
that wouldn't apply in his case, because it's a Native allotment
and they are dealing with the federal government.
TOM HARRIS, Chief Executive Officer, Tyonek Native Corporation,
explained that he is not Tyonek, but is Tlingit from the Tongass
Tribe. He said the Tongass National Forest was named after their
tribe, because they claimed property rights. To this date, they
are not recognized by either the state or the federal government.
He said he is also the great-grandson of Richard Harris who
discovered gold with Joe Juneau.
He said the issue at hand, supposedly, is access, but in reality
the issue at hand is the fifth amendment, property rights. The
village of Tyonek is made up of the remnants of the village of
Anchorage, Kenai, Ninilchik, Soldotna, and others that were
destroyed on contact. The Tyonek Village is here today primarily
because of one thing, he said, because they continue to protect
their property rights.
He said the road in question goes through partially Tyonek
property, Tyonek Corporation property, and Native allotment.
Number 350
Regarding the sign saying, "No white people allow," he said that it
was signed by the Acting Director of the Bureau of Land Management
along with him. The sign simply says that the ownership of the
road was in the hands of Tyonek Native Corporation and nothing
more. This means you need to ask permission to use it. He said
they have tried very hard to act like good neighbors. Village
children have been physically threatened on the south side of the
river.
The reason they are concerned is that in 1979, the Department of
Energy said if the smallest of the coal companies started going,
they would not have just Beluga for neighbors and the 150 people
who live there, but they would have 1,500 people living in that
area. As it happens, the largest company is the one getting ready
to go. Conservative estimates place that community at somewhere
between 5,000 and 7,000. The community is doing everything it can
to prepare for that day.
MR. HARRIS said that the Chuitna River is not the only river of
access. The Theodore, the Lewis, and others can be developed. He
reiterated that Tyonek is acting like a private property owner and
acting within the law.
Number 400
REPRESENTATIVE JAMES said her understanding of the issue is that it
is an issue of a misidentified existing trail within Bureau of Land
Management. She asked him if he recognized the RS 2477 as a valid
establishment of right-of-way. MR. HARRIS said he couldn't answer
that, at this point.
An unidentified committee member asked if he knew of any policies
in Tyonek for access based on race. MR. HARRIS answered, "No." He
explained that he, as the CEO, is a visitor in Tyonek and even he
has to ask permission to stay there.
The same person asked if he knew of any other Native communities
had the same policy. MR. HARRIS answered that he thought the
Russian Communities on the Kenai had similar policies. He was
asked if they have services provided by the state and federal
government. MR. HARRIS said there are no public easements on
private property. A speaker noted that there are sure a lot of
public services. MR. HARRIS responded that the state of Alaska has
not recognized that the Native village of Tyonek exists.
The same speaker said that private property owners historically
must give public access, if they want public services. That's what
streets, schools, and those things do to private property.
Number 400
SENATOR PHILLIPS asked if he parachuted his kids into Tyonek, could
they go to that school. MR. HARRIS said he didn't have the
authority to answer that. SENATOR PHILLIPS said that it was a
difficult concept to grasp to exclude some people and include
others in a state funded school.
REPRESENTATIVE PORTER asked if the village had a constable. MR.
HARRIS answered that it did and that he is ordered by the village
and voluntarily reports to the state. He has no authority to
arrest, only to report to the state. He is not armed.
Number 525
SENATOR PHILLIPS asked if culturally there was any concept of
access. There was no comment.
REPRESENTATIVE JAMES stated that we would fight to keep property
rights. MR. HARRIS said on behalf of Tyonek, they are working
actively to develop the resources in that area - with oil, timber,
and coal companies.
REPRESENTATIVE JAMES thanked everyone for their participation in
this meeting which, she thought, was very worthwhile.
SENATOR SHARP said it was important to deal with this issue before
it got a lot worse. He thanked everyone for their testimony and
adjourned the meeting.
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