HJR 40-RS 2477 RIGHTS-OF-WAY  2:30:32 PM CO-CHAIR SEATON announced that the final order of business would be HOUSE JOINT RESOLUTION NO. 40, Commending the governor and the administration for aggressively working to enforce the rights of the state in R.S. 2477 rights-of-way; urging the governor and the attorney general to develop a working alliance with other western states to protect and enforce the states' interests in ensuring access using rights-of-way authorized by R.S. 2477; urging the governor and the attorney general to support the State of Utah and the southern counties of Utah in a lawsuit against the federal government concerning R.S. 2477 rights-of-way, including filing an amicus brief in support of Utah; urging the governor to dedicate state resources to establish, protect, and enforce the state's interests in R.S. 2477 rights-of-way and to preserve state rights-of-way against encroachment by the federal government; urging the governor to reestablish a federalism section in the Department of Law and sections in the Department of Natural Resources and the Department of Fish and Game to support the preservation of the state's rights and powers in compact cases; and urging the governor to prepare an appropriation request to fund an aggressive effort by the state to resolve issues relating to R.S. 2477 rights-of-way, including possible litigation, and to continue to work to preserve the rights of the state in regard to R.S. 2477 rights-of-way. 2:31:06 PM REPRESENTATIVE WES KELLER, Alaska State Legislature, speaking as the sponsor of HJR 40, stated that his staff, Jim Pound, would explain the changes in the proposed committee substitute. Additionally, Mr. Kent Sullivan, Department of Law (DOL) is also available to answer questions. 2:32:19 PM CO-CHAIR FEIGE moved to adopt the proposed committee substitute (CS) for HJR 40, Version 27-LS1407\M, Bullock, 3/29/12, as the working document. CO-CHAIR SEATON objected for the purpose of discussion. 2:32:35 PM JIM POUND, Staff, Representative Wes Keller, Alaska State Legislature, stated that the sponsor worked with DOL on the changes. Some of the original language referred to language related to the state of Utah's lawsuit with the federal government. The sponsor proposed the Alaska DOL would file an amicus brief; however, DOL held conversations with the Utah official, who preferred that Alaska not do so. Therefore, the language relating to the amicus brief is dropped; however, the reference to the Utah lawsuit remains. He highlighted that the administration has been very active in the R.S. 2477 assertions and the language is slightly changed with respect to commending the governor. He noted that Malcolm Roberts has worked on the R.S. 2477 issue dating back to Senator Jack Coghill's tenure. He reiterated Version M deleted language regarding the lawsuit and inserts that the state will continue asserting its efforts to assert Alaska's R.S. 2477, which is supported by Utah. MR. POUND referred to page 3, line 31, which adds the language such that it would read as follows: "... that the Alaska State Legislature urges the governor further to strengthen the resources of the state for protecting the state's rights by continuing to focus the efforts of the Department of Law, the Department of Natural Resources, the Department of Fish and Game, and other departments on defending the state's rights and powers with regard to access and federalism issues;..." This would address the federalism section which wasn't necessary since the possibility exists that it would add a layer of bureaucracy over DOL that is not needed. At the same time, the Department of Environmental Conservation (DEC) has sometimes been involved in this type of litigation. Further, other departments may be involved with asserting state's rights at some point in time and this additional language would allow for that to happen. 2:37:06 PM CO-CHAIR SEATON referred to page 3, line 29, " ... to strengthen the resources of the state ...." He asked whether that means the state would appropriate funds. MR. POUND agreed that would be the case at some point, but he believes that currently sufficient funds exist in DOL. In further response to Co-Chair Seaton, Mr. Pound responded that should the governor need more funds, he/she would need to approach the legislature and so indicate the need to improve the state's stance of federalism-type issues. 2:37:59 PM REPRESENTATIVE GARDNER referred to page 2, lines 13-14, which read "WHEREAS R.S. 2477 rights-of-way were established in the state through use or development until virtually all federal land in the state was withdrawn in 1969; and...." She asked whether that refers to Alaska. MR. POUND replied yes, adding that is when the federal government started taking land from the state of Alaska. In further response to Representative Gardner, he offered his belief that the land was withdrawn from development for parks and forest and withdrawn from being considered state land. 2:39:12 PM REPRESENTATIVE MUNOZ suggested that resolutions normally send copies to interested parties, such as the U.S. Delegation and members of Utah. REPRESENTATIVE KELLER said he considered this and asked the committee for guidance on whether to expand the distribution list, which would be fine. 2:40:17 PM MR. POUND explained the next changes are repetitive and conforming changes through the title and resolution. He referred to page 1, lines 10-13, which eliminate the language "federalism section," that is also found on page 3, lines 23-27, of the original version. These changes make the title and resolution text same. 2:41:03 PM CO-CHAIR SEATON referred to page 4, line 1, and asked whether this addresses federalism issues or should be removed. MR. POUND answered that it should remain since it refers to the definition of federalism, but not a federalism section. 2:41:47 PM REPRESENTATIVE P. WILSON asked for clarification of the term "federalism" and the R.S. 2477 plans. REPRESENTATIVE KELLER stated that the R.S. 2477 stands for Revised Statute 2477 from 1866, which is one year prior to Alaska's purchase from Russia. The Federal Land Policy and Management Act retained Alaska's rights to R.S. 2477 access across federal land. He declared he is passionate about this issue. Although R.S. 2477 is specifically recognized, departments have taken the stand that they don't authorize them unless there is litigation and adjudication. What has happened is that the current and prior attorney general have supported and encouraged the governor to maintain Alaska's rights and Utah is connected since other Western states share similar concerns. He pointed out that 66 percent of Utah's land is federal. 2:44:09 PM REPRESENTATIVE MUNOZ asked for clarification on rights-of-way and historically the reason they are so important. REPRESENTATIVE KELLER deferred to DOL. 2:44:37 PM CO-CHAIR SEATON understood aggressively pursuing the protection of R.S. 2477s; however, he said he is troubled with specific language urging the governor and the attorney general to support litigation in Utah. He commented they can decide to do so, but he was unsure how this resolves the R.S. 2477. He suggested that the legislature would have a stronger resolution if it worked with the governor and the Congressional Delegation to resolve Alaska's issues. He recapped his concern over addressing specific counties and another state. 2:46:25 PM REPRESENTATIVE GARDNER asked the reason this resolution references the State of Utah. MR. POUND answered that Utah is involved because they're on point, and are already in court and have won. They have already established R.S. 2477 trails and the court has upheld their assertion. Although, he noted it is on appeal in some counties. The attorney general has been in contact with the attorneys in Utah. He said, "Our money is better spent if we start asserting our R.S. 2477 and try to get litigation." 2:48:22 PM KENT SULLIVAN, Assistant Attorney General, Natural Resources Section, Department of Law, stated that R.S. 2477 is important - the federal law of 1866 said that anytime the public created trails over unreserved federal land that created a public right- of-way in favor of the state. That statute continued to 1976 when it was repealed by the federal repealed in 1976 upon enactment of the Federal Land Policy and Management Act (FLPMA), but already existing rights-of-way were grandfathered into the law. This is important to states with high amounts of public lands, which has been how roadways in many Western states were created. In particular, in Alaska with its recent history, it is important since Alaska needs to have rights over federal land. Today, the federal land may have been transferred to Native Corporations, or private landowners, but if the rights were created earlier they still exist. 2:50:40 PM MR. SULLIVAN referred to Representative Gardner's question about the significance of 1969 and the withdrawal of federal lands. In 1969 Public Land Order [PLO 4582] took all land in Alaska under general federal ownership, withdrew the remaining land under federal ownership, and transferred it to wildlife refuges or for state or Native Corporation selection, as part of the Alaska National Interest Lands Conservation Act (ANILCA) and the Alaska Native Claims Settlement Act (ANCSA) processes. The last of general federal land came out of ownership in 1969. He explained that when the state examines establishing R.S. 2477 rights-of-way, it has to look at roads created prior to 1969 because roads created after 1969 do not qualify for R.S. 2477 rights-of-way. MR. SULLIVAN, regarding Co-Chair Seaton's question about initiating litigation in Utah, noted that DOL has worked closely with the sponsor on HJR 40 and Version M. The department is supportive of Version M with a minor exception. The state of Utah has related that the best way to help them is not to file an amicus brief, but for Alaska to file similar litigation in Alaska. Therefore, on page 3, line 20, following "Utah", he suggested deleting "in a lawsuit to enforce Utah's interests in" and replacing it with "concerning" and on line 22 following "rights-of-way" inserting "in this state." He said that will make clear what the state is doing is to seek to assist Utah in its R.S. 2477 efforts by initiating litigation in this state without tying it to Utah's litigation or leave it open to whether Alaska would be asked to file an amicus brief in their litigation. Save that one minor issue, DOL is very supportive of all of the changes [embodied in Version M]. 2:54:38 PM REPRESENTATIVE GARDNER surmised then that federal land has some specific designation, but is not under general federal ownership. MR. SULLIVAN answered yes. 2:55:03 PM REPRESENTATIVE MUNOZ related her understanding that the Alaska legislature, through statute, has identified these R.S. 2477 rights-of-way, but now the federal government is saying that Alaska does not have a legitimate right unless the state litigates. MR. SULLIVAN responded yes. Basically, the federal land managers have taken a policy - due to actions the Congress has taken - that the federal government's "hands are tied" to recognize R.S. 2477s unless a court of law adjudicates the rights-of-way. He referred to language on page 4 of Version M, which urges the Congressional Delegation and/or the Congress to enact legislation requiring federal land managers to develop a policy to recognize R.S. 2477s once a notice of intent to litigate on R.S. 2477 has been filed and in instances where it is a valid and existing R.S. 2477. Currently, the federal government does not have any policy in place to do so. 2:56:26 PM REPRESENTATIVE MUNOZ stated that Utah has successfully litigated these rights-of-way. MR. SULLIVAN answered yes; the state of Utah is at forefront. He said he has read all of the R.S. 2477 cases since 1866. There are approximately 50 of these cases, of which 90 percent were from Utah. Currently, there are three cases filed in Alaska, which have been settled, and Utah has several dozen cases actively being litigated. Furthermore, Utah is ready to embark on litigation on 18,000 roads before the end of May. He commented that Alaska can learn from Utah's successes and failures. 2:57:44 PM REPRESENTATIVE MUNOZ inquired as to how the Roadless Rule in the Tongass National Forest impacts the R.S. 2477 rights-of-way in Southeast Alaska. MR. SULLIVAN related that he has worked with DOL's attorney who is handling the Roadless Rule. He related his understanding that there are exceptions within the Roadless Rule that recognize valid and existing rights, for instance, R.S. 2477. He did not think the U.S. Forest Service Roadless Rule policy closes the door; however, the agency still maintains, as other federal agencies have said, that they cannot recognize the R.S. 2477 rights unless litigation occurs. 2:59:03 PM REPRESENTATIVE GARDNER said it doesn't make sense to litigate all cases state-by-state and road-by-road to retain R.S. 2477 rights-of-way. She asked whether it makes sense to lobby the federal government to enact legislation to retain the pre-1969, R.S. 2477 rights-of-way. MR. SULLIVAN said that makes a lot of sense, but Alaskans all know that things can seem easier to accomplish than they actually are. 3:00:14 PM CO-CHAIR FEIGE offered his belief that the courts don't render decisions in many of the cases that are litigated so there isn't any case law. Instead, the federal court just runs the case out until it is settled. MR. SULLIVAN stated his agreement, adding that 95 percent of the cases are resolved through summary judgment or settlement, short of actual trials. However, there is concern that one of the motivations by the federal government to delay or not adopt policies is that witnesses are people who were alive in 1969. He related that Utah is concerned that the federal government is waiting and there won't be any witnesses. The longer they wait, the fewer the witnesses and the more difficult it is to prosecute. Although it is possible to litigate without living witnesses, it is much more difficult and challenging to do so. 3:02:06 PM CO-CHAIR SEATON referred to page 3, lines 13-22, and asked whether this language gives the attorney general full direction in pursuing the state's interest. MR. SULLIVAN referred to the language on page 3, lines 19-22, and said with slight changes the language is helpful because Utah requested this approach and both estimate it is the best way of achieving it. 3:03:39 PM CO-CHAIR SEATON referred to page 4, line 1, with respect to introducing federalism issues. He asked whether this language is fully understandable and doesn't give the attorney general any problems. MR. SULLIVAN answered that is not problematic from DOL's perspective. The DOL's only concern was to establish a separate federalism section. Although DOL is handling federalism and access issues currently and has been effective, DOL wants to preserve the status quo. He pointed out the DOL is still working on federalism issues and this language accurately reflects this. 3:04:53 PM CO-CHAIR SEATON removed his objection to Version M. [There being no further objection, Version M was treated as adopted.] 3:05:14 PM REPRESENTATIVE MUNOZ offered to make an amendment. CO-CHAIR SEATON said he preferred to have Legislative Legal Services prepare the amendment. [HJR 40 was held over.]