Legislature(1993 - 1994)

02/03/1994 04:45 PM Senate TRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
        JOINT SENATE AND HOUSE TRANSPORTATION COMMITTEE                        
                        February 3, 1994                                       
                           4:45 p.m.                                           
                                                                               
  SENATE MEMBERS PRESENT                                                       
                                                                               
 Senator Bert Sharp, Chairman                                                  
 Senator Randy Phillips, Vice Chairman                                         
 Senator Georgianna Lincoln                                                    
                                                                               
  SENATE MEMBERS ABSENT                                                        
                                                                               
 Senator Tim Kelly                                                             
 Senator Jay Kerttula                                                          
                                                                               
  HOUSE MEMBERS PRESENT                                                        
                                                                               
 Representative Richard Foster, Chairman                                       
 Representative Gary Davis, Vice Chairman                                      
 Representative Curt Menard                                                    
                                                                               
  HOUSE MEMBERS ABSENT                                                         
                                                                               
 Representative Al Vezey                                                       
 Representative Eldon Mulder                                                   
 Representative Bill Hudson                                                    
 Representative Jerry Mackie                                                   
                                                                               
  WITNESS REGISTER                                                             
                                                                               
 Anne Plager                                                                   
 Division of Land, Department of Natural Resources                             
 3700 Airport Way, Fairbanks, AK 99709-4699¶451-2700                           
  POSITION STATEMENT:  testified on RS 2477                                    
                                                                               
 Mike Dalton, Liaison                                                          
 Lieutenant Governor's Office                                                  
 P.O. Box 110015, Juneau, AK 99811-0015¶465-3520                               
  POSITION STATEMENT:  testified on RS 2477                                    
                                                                               
 Rick Smith, Manager                                                           
 Northern Regional Office, Div. of Land, Dept. of Natural Resources            
 3700 Airport Way, Fairbanks AK 99709-4699¶451-2700                            
  POSITION STATEMENT:  testified on RS 2477                                    
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
 TAPE 94-3, SIDE A                                                             
                                                                               
 CHAIRMAN SHARP calls the meeting to order and invites Ms. Plager of           
 the Department of Natural Resources to begin the briefing.                    
 Number 001                                                                    
                                                                               
 ANNE PLAGER, Department of Natural Resources (DNR), Division of               
 Land, states the purpose of the briefing is to bring everyone up to           
 speed on what RS 2477 is and why it is important.  RS stands for              
 revised statute.  It is part of an 1866 mining law.  RS 2477 states           
 "The right of way for the construction of highways over public                
 lands, not reserved for public uses, is hereby granted."  What DNR            
 must do is document that historical use occurred, and prove that it           
 occurred at a time when the land was unreserved public land.                  
 Unreserved public land means the federal government had never done            
 anything with it.  That means it was not set aside for a park, an             
 oil reserve, a national forest, a native allotment, for settlement,           
 etcetera.                                                                     
                                                                               
 Ms. Plager states RS 2477 was repealed in 1976 in FLMPA (Federal              
 Land Management Policy Act).  However, it did not erase grants                
 occurring during the time RS 2477 was in law.  Those grants still             
 exist, it is simply that no new grants can be created.                        
                                                                               
 Number 080                                                                    
                                                                               
 MS. PLAGER notes RS 2477 was (for all intents and purposes)                   
 repealed in Alaska in 1968 when Secretary of Interior Udall                   
 withdrew the entire state from unreserved status in anticipation of           
 the Alaska Native Claims Settlement Act (ANCSA).                              
                                                                               
 Number 084                                                                    
                                                                               
 MS. PLAGER says the state must now establish rights of way under RS           
 2477 by showing historic use on unreserved public lands prior to              
 1968.  It is particularly important to document and claim rights of           
 way now because of proposed federal legislation which would curtail           
 Alaska's ability to establish rights of way under RS 2477.  That              
 legislation is currently on hold in lieu of new regulations                   
 expected to be issued by the U.S. Department of Interior.  The                
 changes are not anticipated to be to the state's advantage.                   
                                                                               
 Number 125                                                                    
                                                                               
 REPRESENTATIVE FOSTER asks Ms. Plager where most of the 500                   
 projects DNR is working on are located.                                       
                                                                               
 Number 130                                                                    
                                                                               
 MS. PLAGER shows maps of the state indicating where the projects              
 are located.  DNR has one year to document up to 500 routes with 15           
 paid staff persons and two volunteers.  Six staff members are                 
 student interns.  The staff is divided into two groups, with one              
 group working on the historical research, and the other group                 
 working to research land ownership.  200 of the 500 potential                 
 routes have gone through the entire process.  Our goal is to have             
 500 routes researched and applied for under RS 2477 by the end of             
 this fiscal year.  There are upwards of 2,000 historical trails,              
 and one of our efforts is to identify which 500 of those we should            
 research and document.                                                        
                                                                               
 Ms. Plager adds the Department of Transportation and Public                   
 Facilities (DOT) has contributed much work to the effort in trying            
 to identify future transportation corridors.  DNR is also working             
 closely with the minerals industry to determine which routes may be           
 needed for minerals extraction in the future.  We are working with            
 communities to determine inter-community routes.  We are not                  
 talking simply about roads, but about access.  Some people are in             
 opposition to this project because they think we will put roads on            
 all the routes identified by the project.  That is not the intent;            
 we don't have the funding to do that, and very few of these routes            
 will actually become roads.                                                   
                                                                               
 Number 210                                                                    
                                                                               
 MS. PLAGER states that this project is intended to preserve our               
 access options.  RS 2477 is a very powerful tool for acquiring                
 access.  The eleven trails that DNR did first were carefully                  
 selected last year and carefully researched, documented, and                  
 adjudicated.  Such an inordinate amount of time was spent so that             
 DNR could establish, in court, precedence allowing DNR to determine           
 the criteria for the rest of the trails so DNR will not have to go            
 to court on every single trail identified under RS 2477.  Ms.                 
 Plager hands out data on the eleven trails just mentioned.  DNR               
 hopes to be in court in June to establish quiet title to the first            
 eleven rights of way.                                                         
                                                                               
 Ms. Plager says the state is focusing on federal lands, because               
 those are the lands for which the state has very limited access               
 options.  With private lands, the state can negotiate with                    
 landowners, offer to buy out owners, or get a prescriptive easement           
 across their land.  With the federal government, none of those                
 things can be done.  ANILCA (Alaska National Interest Lands                   
 Conservation Act) allows for the state to have Title 11                       
 acquisitions, but Title 11 is so cumbersome, the state has never,             
 in the fourteen years ANILCA has been in effect, been able to                 
 acquire a right of way under Title 11.  For example, to build the             
 Red Dog Road for the Red Dog Mine, Cominco and NANA found it easier           
 to go to congress and do a land exchange than to get access under             
 Title 11 of ANILCA.  Under ANCSA, the state is supposed to be able            
 to get access under 17(b).  17(b) easements are limited in use.               
 They cannot be a transportation corridor.  Also, they can disappear           
 without any public recourse.  For these reasons, and more, RS 2477            
 is a very important tool for the state.                                       
                                                                               
                                                                               
 Number 285                                                                    
                                                                               
 MS. PLAGER comments DOT was working on a similar project twenty               
 years ago.  At that time, DOT documented 1,500 trails.  However,              
 they only did the historical documentation, they did not do the               
 follow-up documentation.  Unfortunately, all that is left of that             
 work is the maps; we do not have the historical documentation.  We            
 are recreating that documentation.  We are being careful to save              
 the research we are doing.                                                    
                                                                               
 Number 308                                                                    
                                                                               
 CHAIRMAN SHARP asks Ms. Plager if there is any indication on the              
 first eleven trails what the federal government's options are for             
 objecting to the state's claims under RS 2477.  Ms. Plager responds           
 the state may be in court on a few of the trails or on all of the             
 trails, or the federal government might simply give the state quiet           
 title.                                                                        
                                                                               
 Number 316                                                                    
                                                                               
 REPRESENTATIVE FOSTER asks Ms. Plager who pays the court costs for            
 the litigation.  Ms. Plager replies the Attorney General's Office             
 will be handling the court cases.  Representative Foster asks if              
 DNR will need additional funds to continue their work.                        
                                                                               
 Number 330                                                                    
                                                                               
 MIKE DALTON, Liaison, Lieutenant Governor's Office, responds that             
 DNR has requested some additional funding to complete the project,            
 but the cost of litigation is up to the administration of the State           
 of Alaska.  DNR is simply preparing the case files and handing them           
 over to the AG's office.                                                      
                                                                               
 Number 345                                                                    
                                                                               
 REPRESENTATIVE FOSTER thanks Ms. Dalton for her presentation before           
 the federal commission on land areas.  Representative Foster asks             
 Ms. Plager what the time table is for getting rights of ways                  
 asserted.                                                                     
                                                                               
 Number 347                                                                    
                                                                               
 MS. PLAGER replies the projects being researched now will be                  
 finished by the end of the fiscal year.  She hopes people will come           
 forward with comments on which projects they believe are important.           
                                                                               
 Number 352                                                                    
                                                                               
 SENATOR LINCOLN asks Ms. Plager if she has an estimate regarding              
 how long litigation will take.  Ms. Plager responds she cannot make           
 an estimate regarding how long litigation might take.  Senator                
 Lincoln also asks what relationship DNR has established with the              
 regional and village native corporations.  Ms. Plager replies that            
 DNR has communicated with any corporations affected by work done on           
 the first eleven trails.                                                      
                                                                               
 Number 385                                                                    
                                                                               
 SENATOR LINCOLN comments six or seven of the first eleven projects            
 are in her district and she does not recall being notified of them.           
                                                                               
 Ms. Plager responds that notice regarding the first eleven projects           
 was sent to all the village and regional native corporations                  
 affected by the projects, in addition to all municipalities, all              
 identifiable landowners, and the coastal districts affected by the            
 projects.  They also put adds in newspapers throughout the state.             
 The only item sent to Senator Lincoln's office so far is a                    
 newsletter on the project which was sent out several weeks ago.               
                                                                               
 Senator Lincoln advises Ms. Plager to make all notification to                
 village and regional native corporations in writing.                          
                                                                               
 Ms. Plager affirms that all notification has been done in writing.            
                                                                               
 Number 400                                                                    
                                                                               
 RICK SMITH, Northern Regional Manager, Division of Land, DNR, says            
 that research has been conducted on 200 of the 500 trails so far,             
 but that a public comment period hasn't yet begun, which is one of            
 the main reasons for this hearing: when the public comment period             
 begins, you will probably hear from some constituents about the               
 project.                                                                      
                                                                               
 Number 410                                                                    
                                                                               
 REPRESENTATIVE FOSTER notes for Senator Lincoln that he sits on               
 both the village and regional native corporations in Nome, and that           
 the land managers for both of the corporations have been real keen            
 on the subject and have received all the correspondence and have              
 been keeping close track of the project.  He thanks Ms. Plager for            
 keeping in communication with the native corporations.                        
                                                                               
 Number 420                                                                    
                                                                               
 REPRESENTATIVE MENARD asks Ms. Plager to define the time period DNR           
 has to work within, what the term "assert the trail" means, and how           
 the public process is being tied into the project.                            
                                                                               
 Number 430                                                                    
                                                                               
 MS. PLAGER says there is no requirement for a public process to               
 establish an RS 2477.  However, DNR does intend to at least let               
 people know the result of the department's research.  DNR does                
 solicit input that could either corroborate or refute the                     
 conclusion of the research.  DNR spent a lot of time researching              
 the first eleven trails to try to make them "court proof", or able            
 to stand up to scrutiny in court, but will only be able to spend              
 one person's day researching the trail, and one person's day                  
 researching land ownership.                                                   
                                                                               
 Asserting the trail means we intend to acquire quiet title to these           
 trails in federal court.  For private landowners, we may or may not           
 ever need to carry the case in to court.  We may or may not ever              
 need to serve them notice that we want to assert right of way                 
 across their property.  RS 2477 can be used as a tool for                     
 negotiation and discussion, it will not always be necessary to go             
 to court.                                                                     
                                                                               
 The goal is to wrap the project up by June 30, 1994 and leave it in           
 a form that could be picked up at any point in time or put to bed             
 forever.  Ms. Plager shows the committee a time line and explains             
 it to the committee.                                                          
                                                                               
 Number 500                                                                    
                                                                               
 REPRESENTATIVE MENARD asks Ms. Plager if it is Title 11 in ANILCA             
 which deals with rights of way on native lands.                               
                                                                               
 Ms. Plager responds Title 11 does not deal with rights of way on              
 native lands, but rights of way on federal lands.                             
                                                                               
 Number 510                                                                    
                                                                               
 CHAIRMAN SHARP asks if when DNR is ready to assert quiet title to             
 rights of way under RS 2477, they send the project to the Attorney            
 General's Office, who then picks and chooses which one they will              
 adjudicate or send notice to the federal government.                          
                                                                               
 Ms. Plager replies DNR will keep the files on the RS 2477's and               
 will have warning before new federal regulations go in to effect.             
                                                                               
 Chairman Sharp asks what the advantage is of waiting until the new            
 regulations are set up before asserting rights of way.                        
                                                                               
 Number 525                                                                    
                                                                               
 MS. PLAGER says she will be ready by next month to assert rights of           
 way to 200 trails, but has been asked by the Attorney General's               
 Office to wait.  They are not confident that DNR should proceed               
 without the new regulations in place.                                         
                                                                               
 Chairman Sharp says he does not expect any favors from the federal            
 government's new regulations and has a problem with waiting.                  
                                                                               
 Number 532                                                                    
                                                                               
 REPRESENTATIVE DAVIS asks Ms. Plager if the interns are paid for              
 their work on the RS 2477's.  Ms. Plager responds that they are               
 paid internships.                                                             
                                                                               
 Number 538                                                                    
                                                                               
 REPRESENTATIVE FOSTER asks how hostile the opposing agencies might            
 be and how they might fight the assertions of rights of way in                
 court.                                                                        
                                                                               
 Number 540                                                                    
                                                                               
 MIKE DALTON replies one should look at what happened in Denali                
 National Park and ANILCA for examples of what will happen.  She               
 believes there will be a lot of opposition.                                   
                                                                               
 Number 545                                                                    
                                                                               
 REPRESENTATIVE DAVIS asks if there are any court cases from other             
 states that could be utilized as an example of what is used to                
 determine historical rights.                                                  
                                                                               
 Number 550                                                                    
                                                                               
 MS. PLAGER responds there is a large body of court cases to refer             
 to, not all of which agree with one another.  She also adds that              
 the environmental community is adamantly opposed to the work DNR is           
 doing on RS 2477 rights of ways.  They have promised in no                    
 uncertain terms to see the DNR in court over the issue.                       
                                                                               
 Number 560                                                                    
                                                                               
 SENATOR LINCOLN asks how the eleven initial trails were chosen.               
                                                                               
 Ms. Plager responds the selection of the first eleven trails                  
 occurred before the current project was even funded.  These trails            
 were selected over a year ago by the staff of the governor and                
 lieutenant governor, John Katz, and DOT and DNR commissioners                 
 because these eleven trails contained all the possible combinations           
 one might come up with for subsequent trail assertions.  These                
 trails were also chosen for their current need by user groups.                
                                                                               
 Number 568                                                                    
                                                                               
 SENATOR LINCOLN asks if ISTEA (Intermodal Surface Transportation              
 Efficiency Act) criteria had any bearing on which trails were                 
 chosen for the first group of eleven.  Ms. Plager replies they are            
 looking into all trails in which DOT indicates a high priority                
 interest.  DNR has also made future state identified transportation           
 corridors a high priority.                                                    
                                                                               
 Number 585                                                                    
                                                                               
 CHAIRMAN SHARP thanks all the participants and asks that DNR keep             
 the legislature updated.  The chairman adjourns the meeting at 5:35           
 p.m.                                                                          
                                                                               

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