HOUSE STATE AFFAIRS STANDING COMMITTEE March 31, 1998 8:00 a.m. MEMBERS PRESENT Representative Jeannette James, Chair Representative Ivan Ivan, Vice Chairman Representative Ethan Berkowitz Representative Joe Ryan Representative Kim Elton Representative Mark Hodgins MEMBERS ABSENT Representative Al Vezey COMMITTEE CALENDAR HOUSE BILL NO. 466 "An Act relating to violations of state election laws." - MOVED HB 466 OUT OF COMMITTEE HOUSE BILL NO. 464 "An Act relating to state veterans' home facilities." - MOVED CSHB 464(STA) OUT OF COMMITTEE CS FOR SENATE BILL NO. 180(FIN) "An Act relating to state rights-of-way." - MOVED CSSB 180(FIN) OUT OF COMMITTEE SENATE BILL NO. 309 "An Act relating to the use of force by peace officers and correctional officers." - SCHEDULED BUT NOT HEARD CS FOR SENATE CONCURRENT RESOLUTION NO. 22(STA) Relating to promotion of Kids Voting Alaska programs. - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 44 "An Act relating to admission to an Alaska Pioneers' Home." - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 468 "An Act relating to damages awarded in complaints before the State Commission for Human Rights." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: HB 466 SHORT TITLE: CAMPAIGN MISCONDUCT: FALSE INFORMATION SPONSOR(S): STATE AFFAIRS Jrn-Date Jrn-Page Action 03/06/98 2542 (H) READ THE FIRST TIME - REFERRAL(S) 03/06/98 2542 (H) STATE AFFAIRS, JUDICIARY 03/19/98 (H) STA AT 8:00 AM CAPITOL 102 03/19/98 (H) MINUTE(STA) 03/21/98 (H) STA AT 10:00 AM CAPITOL 102 03/21/98 (H) MINUTE(STA) 03/31/98 (H) STA AT 8:00 AM CAPITOL 102 BILL: HB 464 SHORT TITLE: NURSING CARE AT STATE VETERANS' HOME SPONSOR(S): STATE AFFAIRS Jrn-Date Jrn-Page Action 03/04/98 2499 (H) READ THE FIRST TIME - REFERRAL(S) 03/04/98 2499 (H) MLV, STATE AFFAIRS 03/19/98 (H) MLV AT 4:30 PM CAPITOL 124 03/19/98 (H) MLV(MINUTE) 03/20/98 2680 (H) MLV RPT 1DP 5NR 03/20/98 2680 (H) DP: FOSTER; NR: RYAN, MULDER, KOTT, 03/20/98 2680 (H) MASEK, JOULE 03/20/98 2680 (H) FISCAL NOTE (ADM) 03/20/98 2680 (H) ZERO FISCAL NOTE (DHSS) 03/31/98 (H) STA AT 8:00 AM CAPITOL 102 BILL: SB 180 SHORT TITLE: STATE RIGHTS-OF-WAY: RS 2477 SPONSOR(S): SENATOR(S) HALFORD, Green, Leman, Sharp, Torgerson, Wilken, Pearce, Ward, Taylor Jrn-Date Jrn-Page Action 04/18/97 1277 (S) READ THE FIRST TIME - REFERRAL(S) 04/18/97 1277 (S) RESOURCES, FINANCE 02/06/98 (S) RES AT 3:30 PM BUTROVICH ROOM 205 02/09/98 (S) RES AT 3:30 PM BUTROVICH ROOM 205 02/09/98 (S) MINUTE(RES) 02/23/98 (S) MINUTE(RES) 02/24/98 2629 (S) RES RPT CS 4DP SAME TITLE 02/24/98 2629 (S) DP: HALFORD, LEMAN, SHARP, GREEN 02/24/98 2629 (S) FISCAL NOTE TO SB & CS (DNR) 02/24/98 2629 (S) ZERO FISCAL NOTE TO SB & CS (DOT) 03/11/98 (S) FIN AT 9:30 AM SENATE FINANCE 532 03/12/98 2839 (S) FIN RPT CS 5DP 1NR SAME TITLE 03/12/98 2839 (S) DP: SHARP, PEARCE, PHILLIPS 03/12/98 2839 (S) DONLEY, TORGERSON NR: ADAMS 03/12/98 2839 (S) PREVIOUS FN APPLIES TO CS (DOT) 03/18/98 2881 (S) FISCAL NOTE TO CS (DNR) 03/19/98 (S) RLS AT 11:30 AM FAHRENKAMP RM 203 03/19/98 (S) MINUTE(RLS) 03/20/98 2918 (S) RULES TO CALENDAR 3/20/98 03/20/98 2919 (S) READ THE SECOND TIME 03/20/98 2919 (S) FIN CS ADOPTED UNAN CONSENT 03/20/98 2919 (S) COSPONSOR(S): PEARCE, WARD, TAYLOR 03/20/98 2919 (S) ADVANCED TO THIRD READING UNAN CONSENT 03/20/98 2920 (S) READ THE THIRD TIME CSSB 180(FIN) 03/20/98 2920 (S) PASSED Y15 N3 E2 03/20/98 2920 (S) ADAMS NOTICE OF RECONSIDERATION 03/23/98 2957 (S) RECONSIDERATION NOT TAKEN UP 03/23/98 2958 (S) TRANSMITTED TO (H) 03/24/98 2721 (H) READ THE FIRST TIME - REFERRAL(S) 03/24/98 2722 (H) STATE AFFAIRS, RESOURCES, FINANCE 03/31/98 (H) STA AT 8:00 AM CAPITOL 102 WITNESS REGISTER PAT CARTER, Legislative Assistant to Representative Mark Hodgins Alaska State Legislature Capitol Building, Room 110 Juneau, Alaska 99801 Telephone: (907) 465-2283 POSITION STATEMENT: Explained HB 466. RICHARD GLOVER, Attorney Legislative Legal and Research Services Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau, Alaska 99801-2105 Telephone: (907) 2450 POSITION STATEMENT: Answered questions pertaining to HB 466. GERALD J. DORSHER, Legislative Officer Alaska Veterans of Foreign Wars P.O. Box 240003 Douglas, Alaska 99824 Telephone: (907) 364-3346 POSITION STATEMENT: Testified in support of HB 464. JAMES L. KOHN, Director Division of Alaska Longevity Programs Department of Administration P.O. Box 110211 Juneau, Alaska 99811-0211 Telephone: (907) 465-2159 POSITION STATEMENT: Testified on HB 464. CHARLES McLEOD, Special Assistant Office of Veteran Affairs Department of Military and Veterans Affairs P.O. Box 5800 Fort Richardson, Alaska 99505-0800 Telephone: (907) 428-6068 POSITION STATEMENT: Testified in support of HB 464. DOUG VIG, State Commander The American Legion P.O. Box 5121 Ketchikan, Alaska 99901 Telephone: (907) 225-3898 POSITION STATEMENT: Testified in support of HB 464. LEON BERTRAM 2925 DeBarr Road Anchorage, Alaska 99508 Telephone: (907) 276-8211 POSITION STATEMENT: Testified in support of HB 464. JOSEPH CRAIG 2323 First Avenue Ketchikan, Alaska 99901 Telephone: (907) 225-4671 POSITION STATEMENT: Testified in support of HB 464. GARY KURPIUS Veterans of Foreign Wars 2925 DeBarr Road Anchorage, Alaska 99508 Telephone: (907) 276-8213 POSITION STATEMENT: Testified in support of HB 464. ALAN F. WALKER, Legislative Assistant to the Department of Alaska, Disabled American Veterans 3437 Meander Way Juneau, Alaska 99801 Telephone: (907) 790-3636 POSITION STATEMENT: Testified in support of HB 464. TOM STREEPER P.O. Box 5121 Ketchikan, Alaska 99901 Telephone: (907) 225-4544 POSITION STATEMENT: Testified in support of HB 464. BRETT HUBER, Legislative Assistant to Senator Rick Halford Alaska State Legislature Capitol Building, Room 121 Juneau, Alaska 99801 Telephone: (907) 465-4958 POSITION STATEMENT: Presented sponsor statement for CSSB 180(FIN). JANE ANGVIK, Director Central Office Division of Land Department of Natural Resources 3601 "C" Street, Suite 1122 Anchorage, Alaska 99503-5947 Telephone: (907) 269-8503 POSITION STATEMENT: Testified in opposition to CSSB 180(FIN). ACTION NARRATIVE TAPE 98-43, SIDE A Number 0001 CHAIR JEANNETTE JAMES called the House State Affairs Standing Committee meeting to order at 8:00 a.m. Members present at the call to order were Representatives James, Ivan, Ryan, Elton and Hodgins. Representative Elton arrived at 8:04 a.m. and Representative Berkowitz arrived at 8:28 a.m. HB 466 - CAMPAIGN MISCONDUCT: FALSE INFORMATION Number 020 CHAIR JAMES announced the first order of business would be HB 466 "An Act relating to violations of state election laws," sponsored by Representative Hodgins Number 025 REPRESENTATIVE MARK HODGINS explained that the essence of HB 466 is to create a deterrent to some of the "mud slinging campaigns" that have existed in the past. He said it builds on an existing law in that it elevates the offense from a misdemeanor to a felony. He said in speaking with the district attorney (DA) and the prosecutors, they have said they will not expend state dollars to go after a misdemeanor offender, where if it was a felony offense, they would. Number 042 PAT CARTER, Legislative Assistant to Representative Mark Hodgins, Alaska State Legislature, explained the essence of the legislation is to elevate the punishment for knowingly disseminating false and misleading information with reckless disregard for the truth. He noted Mr. Glover has done some investigative work with regards to existing case law. Number 056 RICHARD GLOVER, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, came before the committee. He explained HB 466 makes a change to the election code, but it specifies a crime which replaces an existing portion of the statutes. It slightly expands the type of conveyances that would be a crime. Mr. Glover pointed out that the existing statute makes it a crime when somebody transmits false information relating to a candidate for an election. The legislation expands that to not only a class B felony, but it also states which types of information would be considered a crime, what dissemination would be a crime. In the old statute, it was simply false information. In the new provision, it would not only be false information, but false and misleading information. Mr. Glover explained one of the difficulties in prosecuting a case like this is proving the falsity of what's disseminated, a question, for instance, is neither true nor false. If somebody asks a question and disseminates information in a form of a question it would never qualify under the old statute as being false. Mr. Glover said, "However, if it is intentionally misleading, the person speaks as a question something that's intended to bring forth a false implication, that would be covered under this new statute." CHAIR JAMES asked if the bill speaks just to candidates and people running for office or does it have anything to with initiatives. MR. GLOVER responded an element of the crime is that the information relates to a candidate for an election. It specifically relates to somebody running for office. Number 103 MR. CARTER explained, "The intent of the bill was to talk about elevating this to a crime of a class B felony." He said in a previous hearing, there was talk about including an initiative or a ballot proposition. Currently, there are existing laws that protect that and it would be a class A misdemeanor. However, in looking into the history and development of criminal dissemination laws, dating back to England and prior to the American Revolution, they had two purposes. It was to prevent public unrest caused by critical statements concerning those in power or to preserve public order by providing criminal sanctions for insults against private persons. It was to prevent a breach of the peace. Mr. Carter said it is not thought that ballot initiatives would cause such a breach of the peace although that may be in question as well. Initially they thought to defame a private man would deserve a severe punishment because it not only incites that person, but it also incites his family and all those people who are in association with him. Mr. Carter read from information he had, "It tends to result in quarrels or a breach of piece and may cause the shedding of blood and great inconvenience." He said against a public person, it is an even greater offense because not only is it defaming the person in question, but it also presents a scandal of government. He said the intention is to raise that level of crime and not necessarily a ballot initiative. REPRESENTATIVE IVAN IVAN asked if the bill would apply to municipal elections. MR. CARTER replied in the affirmative. Number 151 REPRESENTATIVE JOE RYAN asked if the bill would apply to a reporter or publisher of a newspaper who makes unsupported allegations about a person. MR. GLOVER stated it would as the bill speaks to a person who commits the crime. Not only would it be the person who is speaking, or in this case disseminating the information, it would reach perhaps to legal people as well. REPRESENTATIVE RYAN said a year or two ago the United State Supreme Court ruled that anonymous political communication is protected by freedom of speech and they say that the (indisc.) papers. He asked how the legislation will impact that decision. MR. GLOVER pointed out that anonymous speech would be protected. However, there has not ever there has never been a general rule that false speech is protected. He noted a famous case with this regard is The New York Times v. Sullivan case in about 1964. This case elevated the "state of mind requirement" when you're speaking about a public official. A public official has to have, to a certain extent, a thicker skin in the view of the supreme court. The person who is doing the speaking would have to speak knowing that the speech was false, knowing that the statements were false or with reckless disregard for their truth when speaking about a public person. Mr. Glover said, "The case I think that you're speaking about only spoke to whether or not an anonymous speaker be protected and, of course, they would be unless, of course, it was false or spoken with known disregard for the truth." Number 187 REPRESENTATIVE KIM ELTON asked if there would be a different standard for campaign misconduct than there would be liable for somebody that owned a newspaper. MR. GLOVER explained the difference with the legislation is that this is a criminal statute. So all elements of the crime would have to be proven beyond a reasonable doubt, whereas if you sued somebody in civil context for either liable or slander, then all you would have to do would be to establish the facts to a preponderance of the evidence - 51 percent. Mr. Glover stated that there is a slight difference between the types of speech or the remedy that would be pursued. Mr. Glover said, "Of course, typically what you see are people who are plaintiffs or are spoken against will many times pursue their criminal remedy first - bring it to the attention of the DA and let that trial go forward because then the elements of the crime are established to the higher standard to beyond a reasonable doubt. Then once those elements are established beyond a reasonable doubt, then they become established for the later trial. And I think the country saw a good example of that with regard to the O. J. [O. J. Simpson] cases in California (indisc.). Number 212 REPRESENTATIVE ELTON asked if there has to be an element or discussion of reckless disregard for the truth that you would have to have for a liable case. MR. GLOVER explained the reckless disregard and the knowing falsity are subjective elements. You would have to have proof of a subjective element which is very difficult. If, for instance, somebody spoke some speech and then was corrected, "No, what you just said is false," and it was publicly brought to their attention, you would have some introducible evidence. He said, "Now they knew or they were given some information where they could check out what they were saying was false, then you have demonstrable proof that you could bring forth in either a criminal or civil trial -- that when they spoke the second time that it was done with knowing falsity or with reckless disregard. They were given information where they could check out the record that they perhaps were speaking against the candidate and did not. That would be reckless disregard. But the first time, showing that somebody, between their ears, knew that it was false or that they recklessly said, 'Oh, this sounds interesting, I'll put it on the front page of the newspaper.' It is a very difficult element prove, either criminally or civil." REPRESENTATIVE ELTON asked Mr. Glover if he sees a difference between a paid public speech and a non-paid public speech. He referred to somebody who bought an ad in a newspaper and somebody could make a claim that it was misleading information, therefore, it was campaign misconduct involving false information. He asked, "Do you see that a newspaper would be - are they protected if it is paid speech if they're just a vehicle or would they also be culpable." MR. GLOVER informed the committee that the general principle of paid speech is given less First Amendment protections than a political speech, a person's personal speech. As a general principle in the law, commercial speech is generally given less protection. He referred to printing hand bills and putting them on the windshield wipers of parked cars and said that is generally considered to be susceptible to anti-litter statutes. So paid commercial speech is more restrictable and has less First Amendment protection than a person's core political speech. He referred to the ability of the press to publish opinions in its editorial pages and said that may or may not be commercial speech, but a paid advertisement certainly would be. He noted a commercial speech could be when somebody takes out an ad and pays the newspaper for the privilege of publishing. CHAIR JAMES referred to somebody who paid a newspaper to put something in that was false and the newspaper ran the paid advertisement. She asked if they were culpable in any way for being the vehicle that made this available. MR. GLOVER stated, "Under the text of this particular crime - of this particular statute they would be because it says, 'any person who disseminates...' And so if they knew when the paper published that it was false or recklessly disregard that it was false, even though they were paid, they would be liable under this statute." Number 283 REPRESENTATIVE HODGINS said if somebody comes out and says something, they can say anything they want. When they are shown that what they're saying is false and the proof is there, they can no longer say that. The essence of HB 466 is just to clean up some of the rhetoric that is heard regarding campaigns. CHAIR JAMES noted that there is not a fiscal note on the bill. She said that possibly the State Affairs Committee needs to write a zero fiscal note as it doesn't have a fiscal impact. Number 300 REPRESENTATIVE HODGINS made a motion to move HB 466 out of committee with individual recommendations and an attached zero fiscal note. REPRESENTATIVE ELTON objected to the motion. He said he knows that there are times when people have gone overboard in the course of a campaign. He said instead of creating a vehicle in which campaign speech can be controlled, he thinks that the bill could be used as a bludgeon that could be used by some to depress campaign speech. For example, it would be very easy toward the end of a campaign to go to a radio station and say, "That ad you have on is false and because it's false, if you keep running that ad you're going to be subject to a felony, not a misdemeanor any more, but a felony involving campaign misconduct involving false information." He pointed that that puts a radio station, a newspaper or another campaign in a very awkward situation. They can take a risk and they can say, 'Well, you know, we didn't check out the claim, but you know it sounds legitimate.' But they're at risk of a felony if they keep going and if, in fact, somebody in a black robe some time six months down the road says, 'Well, you know it's a close call, but we think you were guilty.' I think that what happens is we're creating a situation to control something that is often times indefensible, but it could be used a club and could be used inappropriately and can actually suppress public (indisc.) of speech." CHAIR JAMES explained that a person couldn't come running in and say, "That's not true." That person would have to have some evidence that it's not true. She said, "In other words, they would have to know when that person left that it was not true and they would not necessarily know because that person told them." Chair James said the type of proof that you would have to have that they know is very important to this issue. Just saying that it's not true won't do it. She said, "They still don't know for sure that it's not true unless they've been given some proof. So even if they go ahead and they don't know one way or the other whether it's true or not, they're not going to be held responsible. This is a pretty high thing. And so I understand your concern, I have no problem putting it on the record, but I don't want to belabor this too long." REPRESENTATIVE ELTON said sometimes it's difficult to prove what isn't true. For example, if somebody buys a radio ad saying that he has been convicted of a DWI [driving while intoxicated] in a different jurisdiction three different times, it might take a week to prove that it isn't true. First, you've got to go to the other jurisdiction and then you ask for court records that aren't there. CHAIR JAMES said if somebody did say that Representative Elton had DWIs in three different locations, they would be putting themselves very much in jeopardy if they didn't know that was true. That is a pretty broad comment about somebody. Number 353 A roll call vote was taken. Representatives Hodgins, Ryan, Ivan and James voted in favor of moving HB 466. Representative Elton voted against moving HB 466. So HB 466 moved out of the House State Affairs Standing Committee. HB 464 - NURSING CARE AT STATE VETERANS' HOME Number 370 CHAIR JAMES announced the next order of business would be HB 464, "An Act relating to state veterans' home facilities," sponsored by the House State Affairs Committee. Number 375 GERALD J. DORSHER, Legislative Officer, Alaska Veterans of Foreign Wars (VFW), came before the committee. He explained HB 464 is a bill that his organization has been looking forward to for many years. The language of cleaning up and adding the nursing care and related medical facilities is what the need has been. With the legislation, they will be able to move forward to the federal government. Mr. Dorsher explained that this is a three phased operation. He said, "The first phase needs no fiscal attachments to it. In it's entirety, [it] goes before the bodies for approval if we have then a feasibility study, which the members of the Veterans of Foreign Wars, the American Legions and DAVs [Disabled American Veterans] have appropriated funds for, with matching funds coming from the Governor's office of $20,000, hopefully, for this independent study of feasibility. After this feasibility study, we go to the federal government for monies. The federal government has 65 percent of a veterans' home, under these conditions, for the veterans of Alaska. Thirty-five percent would come from state funds which could be in-kind services as land for the veterans' home. That is where we're at on this. The bill that is before us today, 464 is what the veterans of Alaska are asking for without a fiscal attachment note. That will come down the way through the study of feasibility and then on to the federal government for their appropriations for the veterans' home." MR. DORSHER explained there are 42 states that have veterans' homes and some have more than one. He pointed out that after they're up and running, they're self sufficient through third parties such as veterans' insurance programs and retirement programs. In two years, 47 states will have at least one veterans' home. Alaska has a great population of veterans, and he believes that the state of Alaska should have a veterans home. Number 427 CHAIR JAMES pointed out that Alaska has a larger percentage of population of veterans than any other state. Alaska is also the furthest away from all the rest of the states. She confirmed that the legislation doesn't say that we are going to have a home, it only puts into the law the ability for us to have a study to see if we need one. Without that in the law, there are no federal funds available for a veterans' home. MR. DORSHER responded in the affirmative. Number 456 REPRESENTATIVE IVAN said, "Since Alaska is such a large state, some [veterans] may be living in rural communities and qualify to be in this veterans' home. Does that individual have to move from a community to a veterans' home or would they be allowed to receive the same services from a veterans' home in their community?" MR. DORSHER said there would be one veterans' home which would be ideally attached to a medical services facility. Where it would be, we have no idea and that is why a feasibility would be appropriate. CHAIR JAMES said as she understands, HB 464 only allows a home, it doesn't make one. The feasibility study that Mr. Dorsher is talking about would identify those concerns. She said she believes that Representative Ivan's concern is that currently, because there isn't a veterans' home in the state, these people can get benefits to stay locally. Representative Ivan is worried that if there was a veterans' home, the veterans in the rural areas would have to go to the veterans' home to receive benefits and they couldn't get any in their community. She said she isn't sure that is correct, but that would be something that would be addressed in the feasibility study process. She said, "Before we could get one, you'd have to be back before this body again for the in-kind for the land, or whatever it is, to build a home. So this is not the last door to swing shut. This only opens the door for any possibility of this ever happening." MR. DORSHER pointed out that the bill is only phase I. He noted the first resolution was introduced in 1992, and the nursing facility was not included. To have HB 464 before the committee is a big improvement over anything and the veterans appreciate it. Number 482 JAMES L. KOHN, Director, Division of Alaska Longevity Programs, Department of Administration, came before the committee to testify on HB 464. He stated that the department supports the change to the bill. Mr. Kohn said, "We feel that whether or not a veterans' home is ultimately built, which you've already heard this bill does not build a veterans' home, that in fact what we need to look at is veterans' needs and we need to look at the whole range of veterans' needs from domiciliary care to skilled nursing care. And what this bill allows is that we can look at the entire range of needs that veterans would have. So we endorse the bill." CHAIR JAMES said, "I do have from the Department of Administration a fiscal note here which is pretty scary." MR. KOHN stated that anything relating to long-term care costs is scary. CHAIR JAMES indicated the bill doesn't authorize long-term care. She said, "We're only authorizing the fact that if there was an application before one, we could deal with it because this needs to be changed so..." She pointed out that the committee heard testimony from Mr. Dorsher that the Governor has agreed to put up $20,000 for a feasibility and she can't remember where the rest of the money would come from, but it is a match. Chair James said she assumes the $20,000 would come from the Governor's existing budget. She said it is her impression that the fiscal note is excessive and is not needed. MR. KOHN said that Chair James is correct. He said the department was requested to supply a fiscal note based on the conception of constructing and operating a veterans' home. That fiscal note reflects that conception, however, the bill does not reflect that. Number 516 CHARLES McLEOD, Special Assistant, Office of Veteran Affairs, Department of Military and Veterans Affairs, testified via teleconference from Anchorage. He stated, "I am very much in favor of passage of this amendment that will allow the state to do the nursing care for veterans of this state. As you well know, we have pretty close to over 65,000 veterans in the state of Alaska, one of the highest number of veterans per capita. We're one of three states that presently do not have a state home. The other two states are Hawaii and Delaware. And as mentioned by the testimony of Mr. Dorsher, this amendment does not obligate the state to any funds at this time. There will be a study to determine the needs of the veterans as far as nursing care, domiciliary care, and so forth. And at that time we will be able to approach this particular project with some ideas on how we should move forward." Number 533 DOUG VIG, State Commander, The American Legion, testified via teleconference from Ketchikan. He noted he has sent the committee a letter dated March 27, 1998, regarding the bill. He emphasized that for the past several years, the joint coalition of the American Legion, the VFW and the DAV have supported the need for a state veterans' home. The Veteran's Administration indicates that there are close to 63,000 veterans residing in Alaska. Many are Korean War and Vietnam veterans moving into the twilight years. Mr. Vig informed the committee members that some veterans are currently in nursing care facilities such as the Pioneers' Home and others will need this type of facility in the near future. He reiterated Mr. Dorsher's testimony regarding the number of states operating veterans' homes. He noted other states are appropriating money for this purpose. It is projected that within two years, 47 states will be operating over 120 veterans' homes, and Alaska has none. Mr. Vig stated they asked for the $40,000 appropriation to conduct a thorough comprehensive and independent third party study for the need of a veterans' home or homes in Alaska to support existing and projected veterans' needs. Mr. Vig said the Governor has indicated that he would come up with $20,000 for that study. The joint coalition of the VFW and The American Legion has come up with $10,000. There have been indications that the Finance Committees could come up with another $10,000 to match the other parts of that appropriation so that there would be the $40,000 for an independent study. Mr. Vig stated, "All indications of preliminary studies, that we have had individuals go down to Oregon and Idaho, indicate that the cost to the states are minimal. Third party payers, such as insurance companies and the Medicare and Medicaid, are usually self sustaining, but as pinpointed out that's kind of putting the cart before the horse because we do need the nursing care part put in that bill and I thank Representative James for doing that. Thank you." Number 570 LEON BERTRAM testified via teleconference from Anchorage. He stated, "I believe that the case has pretty well been stated and I think that the committee has the information that is necessary. Mr. Vig, from our office, did cover it pretty well. I know there is going to be a lot to be done in the future on this. I thank you very much, Madam Chairman, for your input." Number 578 JOSEPH CRAIG testified via teleconference from Ketchikan. He said, "I concur with basically everything that our commander, Doug Vig, has said and the coalition. But I would like to add that I just returned from Washington, D.C., and talking to our three representatives there they were all very supportive of a veterans' home in Alaska as long as things can be worked out on this end. So I would like to note that we do have support in Washington for a veterans' home in Alaska. Thank you." GARY KURPIUS, Veterans of Foreign Wars, was next to testify via teleconference from Anchorage. He said, "On behalf of the Veterans of Foreign Wars, I would like to thank you for putting in this amendment and assure you that of our close to 7,000 members of the state of Alaska - we are all in support of this." He indicated he would answer any questions the committee may have. Number 589 CHAIR JAMES referred to the letter that Mr. Vig sent to the committee and said he indicated that the $40,000 that is needed for the study, which the Governor has committed $20,000 from his existing budget. In the letter, he talks about another $10,000 commitment on the Senate side in the state budget. She said that is out of her reach and she is not interested in putting any kind of a fiscal note on the bill today. Number 577 ALAN F. WALKER, Legislative Assistant to the Department of Alaska, Disabled American Veterans, came before the committee. He pointed out that the Governor did commit that he would put up $20,000 for a study. The veterans service organizations, at that time committed to $10,000 from the VFW. He referred to their national convention two weeks ago and explained that they were able to receive from the DAV, Department of Idaho, a commitment for a $1,000 contribution towards the study, and the same from the Department of Oregon. Mr. Walker said they are seeking those additional funds so that there would not be any need to address the fiscal issue to the House, Senate or the Governor so that the $20,000 commitment would stand. He stated, "We will find those matching funds, somewhere - somehow. And I think this reflects clearly the perception of need for the state of Alaska from other veterans' organizations in the Lower 48, that no one wants to see a veteran displaced from their home just because they need medical care, least of all, out of the state of Alaska. We don't want to see a veteran in Kotzebue or in Dutch Harbor who has to relocate to Idaho to go to one of their veterans' homes just because they need necessary care." Number 616 REPRESENTATIVE ETHAN BERKOWITZ indicated concern regarding the broadness of the title. He suggested tightening it up. CHAIR JAMES asked Representative Berkowtiz if he has any suggestions. REPRESENTATIVE BERKOWITZ said he understands that what the committee is trying to do is to attempt to initiate a study, which is a preliminary step. CHAIR JAMES explained the purpose of the legislation is to note that nursing home care and related medical services is also allowed. Currently, it is not allowed under the statute. She said they want to open the door so that along with the domiciliary care that nursing home care and related medical services can be provided in-home. She said, "All this does is make a change in the law so that that would qualify to be able to have that in Alaska and get federal funds to do it. We have to have this in our laws to be able to get federal funds for this facility." REPRESENTATIVE BERKOWITZ stated he supports the legislation, but perhaps "An Act permitting nursing home care with related medical service in state veterans' home facilities" would tighten the title. CHAIR JAMES said she does not have a problem with the wording. She asked if anybody else had a problem with the wording. REPRESENTATIVE HODGINS said he has a problem. He said he believes the title should remain in its current form as he likes the title. CHAIR JAMES referred to veterans' issues and said it has been her opinion and experience, in the six years she has been coming to Juneau, that she has not wanted to see people wanting to play with the issue. She said it seems to her that it is a pretty straight forward issue. Chair James said it seems to her that veterans are the champion of the day today and people were going to yield to what they have to say. She said she doesn't have a problem with the current title, nor does she have a problem with Representative Berkowitz's suggestion. She said she will leave it up to the committee members to decide whether they want to change the title. She pointed out that it could read, "An Act relating to state veterans' home facilities, including nursing home care with related medical services." She said, "If we just, at the end, put 'including' and leave off the 'and' and put all the rest of the underlined and we could... Do we have something else here? Okay, Mr. Streeper wants to respond." Number 661 TOM STREEPER testified via teleconference from Ketchikan. He said two years ago he visited the veterans' home in Boise, Idaho, for the purpose of seeing what Alaska would need in order to institute a home. One of the things that was brought to his attention was the fact that without the nursing care, we're going to have some horrendous problems. You would not have the Medicare, Medicaid or other insurance programs that could be utilized to help with the funding of keeping a home on an even keel without having additional funds from the state coming in. He said, "They were the first ones to hold a 20-bed facility for Alzheimer. I am told that within our state homes that they have for the so called pioneer homes - that before many years expire, and that's very soon, it will be 100 percent almost in Alzheimer cases. I would encourage you to please leave this as -- well the sponsor statement that I'm looking at here right at this moment. And I thank you for allowing me to come in late." CHAIR JAMES said, "The motion on the floor then is to amend the title on line 1 to add at the end, 'including nursing home care with related medical services.' There is an objection to that motion so then we'll call the roll." A roll call vote was taken. Representatives Berkowitz, Elton, Ivan and James voted in favor of amending the title. Representatives Ryan and Hodgins voted against amending the title. So the amendment was adopted. Number 689 REPRESENTATIVE RYAN noted concern with people having to come from the rural communities, in their final years, to a facility far away from family and friends and to be stuck there. He said, "I even envision them putting here in Juneau, so in my final years I come down here and pay a bloody sales tax to be at home. That is the only distrust I have with this bill. I'm going to support it, but I'm going to watch it very very closely." REPRESENTATIVE ELTON made a motion to move HB 464, as amended, with an attached zero fiscal note and with individual recommendations out of committee. CHAIR JAMES indicated there is a motion to move HB 464, as amended, out of committee with a zero fiscal note from the Department of Health and Social Services. She noted the committee would either prepare a zero fiscal note from the Department of Administration or they may submit one. There being no objection, CSHB 464(STA) moved out of the House State Affairs Standing Committee. TAPE 98-43, SIDE B CSSB 180(FIN) - STATE RIGHTS-OF-WAY: RS 2477 Number 001 CHAIR JAMES announced the committee would hear CSSB 180(FIN), "An Act relating to state rights-of-way." BRETT HUBER, Legislative Assistant to Senator Rick Halford, Prime Sponsor of SB 180, said R.S. 2477 was a right granted to the states by the United States Congress with the passage of the Mining Act of 1866. The purpose of the original law was to provide for and guarantee the pubic's right to establish access across federal lands. Subsequent congressional and more than 100 years of case law have recognized that state law is controlling on the issue - both in determining and defining R.S. 2477 rights-of-way. MR. HUBER stated that although Congress repealed R.S. 2477, in 1976, with the passage of the Federal Land Policy and Management Act (FLIPMA). They specifically acknowledged the legal existence of R.S. 2477 rights-of-way that were established prior to the repeal. Current federal regulation explicitly provides that any right conferred by the R.S. 2477 grant shall not be diminished. MR. HUBER said beginning with legislative appropriations in 1992 and 1993, which funded the research and compilation of historic information regarding the R.S. 2477 routes, the legislature has taken the lead in moving this issue forward. The Department of Natural Resources (DNR) has reviewed 1,700 potential R.S. 2477s and identified 602 rights-of-way that appear to qualify and are supported with appropriate documentation. These 602 routes are published in the historic trails catalogue and are incorporated in the state land administration system. Last year, the legislature passed SJR 13 with broad support reiterating their position regarding R.S. 2477 and making clear the objections to Secretary Babbitt's policy memorandum of last January. MR. HUBER pointed out that SB 180 codifies the 602 documented R.S. 2477 rights-of-way; it requires them to be recorded and provides a process for limitations on their vacation and sets out liability limits for the State. While the R.S. 2477 rights-of-way codified in this bill have already been accepted by public users and deemed supportable by the state, it's likely that the federal government will contest ownership on some or all of these routes. Although the current federal administration is attempting to limit the state's rights regarding R.S. 2477, over 100 years of case law recognize state law as controlling on the issue. Codifying these routes in statute will strengthen the state's position for possible subsequent court action and provide the affected land owners and the general public notice that these R.S. 2477 rights-of-way are out there and available for use. Basically, SB 180 says these are our rights-of-way and it's alright to use them. They are essential to provide access to mineral deposits, travel to and from remote areas, and recreational opportunities; they are not a panacea for transportation, but are an important option we need to preserve from the federal encroachment. MR. HUBER informed the committee there are letters of support from the Resource Development Council, the Alaska State Chamber, the Alaska Outdoor Council, the Territorial Sportsmen, the Alaska Forest Association, and the Alaska Miners Association. Number 104 CHAIRMAN JAMES asked if the old mail trail along the Yukon River was one of these trails. MR. HUBER said the list he has isn't conclusive. The bill asks the DNR to continue their on-going search into R.S. 2477 documentation and bring other qualifying routes forward for the legislature's consideration. REPRESENTATIVE BERKOWITZ asked what the screening process was. MR. HUBER answered that in 1992-93, the DNR reviewed "potential routes." Actual documented use of the trail prior to 1971 needs to be found for public use acceptance of the grant. The DNR did field work on the ground looking at the trails, consulted with a lot of the old dog sled mail routes and other historical information. CHAIRMAN JAMES said she had participated with this search and they were looking for documentation they could take to court as evidence. REPRESENTATIVE BERKOWITZ asked if there was distinction between a right-of-way and an easement. MR. HUBER responded that an R.S. 2477 would be a limitation on the survey of the State granting access and he thought that would be true of an easement, as well. Section line easements are a type of R.S. 2477, so he thought the terms were interchangeable. REPRESENTATIVE BERKOWITZ said the reason he asked is because, if there is an easement based on use and someone crosses his backyard all the time and he doesn't do anything about it, they essentially earn a property right to that easement. Property rights can be established by crossing federal land. He asked if all this is even necessary. MR. HUBER answered that when you are talking about prescriptive use by easement or adverse possession, you are talking about a different issue than you are with R.S. 2477s, which is an actual law and policy saying that we need access to and from and across federal lands that can be accepted by an act of the State and the federal government for public use. This isn't so much a private property adverse possession question as a public right to access across federal land. REPRESENTATIVE HODGINS asked what the mechanism was for nominating other areas or trails. MR. HUBER answered that the DNR actually has a nomination process in place by regulation, in a small booklet. They aren't included in the committee packet. Number 191 REPRESENTATIVE RYAN asked if he looked at Ms. Mike Dalton's work and that she had worked for Lieutenant Governor Coghill. MR. HUBER responded that he would be remiss not to mention the amount of work Mike Dalton has put into this project. She is the reason we have the data base and atlas right now. REPRESENTATIVE BERKOWITZ said he was still trying to understand the purpose of the legislation. He asked if there had been an effort to constrict the rights of Alaskans to cross these federal lands in any way. MR. HUBER answered the policy memo put out by Secretary Babbitt in January, 1997, was an overall effort to restrict the state's ability to claim the R.S. 2477s through changes in definitions. Since that policy memo has come out, Congress has specifically forbid the Department of Interior from establishing any other permanent regulations dealing with R.S. 2477, without a specific act of Congress. REPRESENTATIVE BERKOWITZ asked if they had said specifically we could not use any particular right-of-way in any instance. MR. HUBER answered yes, there's on-going litigation in Fairbanks and other court cases with private parties. Number 223 REPRESENTATIVE BERKOWITZ said Secretary Babbitt's memo talks about the role of state law and it's basically the same problem we are running into with subsistence, which is the supremacy clause of the U.S. Constitution saying if there's a conflict between federal law and the state law, the feds reign supreme. MR. HUBER said this was a policy memo that was contradicted by Congressional intent. He didn't think he could draw a correlation between this and subsistence, because law currently on the books says, "rights granted by R.S. 2477s shall not be diminished." This is controlling federal law right now. REPRESENTATIVE BERKOWITZ asked what this legislation accomplishes. MR. HUBER said that it's possible that even with the controlling federal law, there is a difference of opinion on ownership or title to the route and the only way you actually get title is through quiet title. Quiet title will be decided in federal court at some point when the federal government allows themselves to be sued for quiet title. State law is cited in the case law in our Supreme Court, and many other state courts, as controlling, so the more we can do to reenforce our position in state law, the better the title argument comes, if there is a right-of-way in conflict with the federal government. CHAIRMAN JAMES added that the law granting us authority to be able to establish a right-of-way was on the books for a long time. The feds decided not to do that anymore which established a cut-off date. So the evidence of establishing a right-of-way before the cut-off date is imperative. It's only available if you established it during that window of opportunity. REPRESENTATIVE BERKOWITZ asked if we were asserting title over these 602 rights-of-way on federal land. CHAIRMAN JAMES and MR. HUBER answered yes. MR. HUBER explained the actual title decision would be done in a federal court through a quite title act. CHAIRMAN JAMES said this issue did not have anything to do with subsistence and she didn't intend to discuss it further. Number 294 REPRESENTATIVE IVAN said he wanted to know if some of the rights- of-way went through private land belonging to villages and corporations. MR. HUBER responded that these rights were originally established across vacant and unreserved federal lands, but rights-of-way have been established now across state land, federal, private, and a variety of types of lands in one specific route. Codifying them doesn't create the right. The right-of-way already exists. This merely lists them in statute and provides notice to the private property. The bill specifically does not address scope and management of the routes, but leaves that up to the DNR through the regulatory process. Private land conveyances were conveyed to existing easements, vacations, private property rights, and rights- of-way. CHAIRMAN JAMES said her experience on the Planning and Zoning Board is that when you have a piece of private property, and there is an existing right-of-way for access across the piece of private property, in order to move it, you just have to allow them to get from one place to anther. MR. HUBER added that the process to move it is set out in the findings and intent section of the bill, a Senate Resources amendment, and also Section 3, the vacation process in the back of the bill. Number 350 REPRESENTATIVE IVAN noted when the Alaska Native Claims Settlement Act (ANCSA) passed, the Bureau of Land management (BLM) almost set up six-mile wide corridor easements. They went nuts, but ended up not pursuing that. REPRESENTATIVE ELTON asked if a lot of public lands were transferred to private parties before the private parties knew these existing rights-of-ways were there. MR. HUBER answered that it is entirely possible that the right-of- way existed and that a private property owner doesn't have specific documentation. The rights in this bill are the ones that have been deemed supportable and used during a time that the land qualified as federal unreserved land prior to conveyance. REPRESENTATIVE ELTON asked if the private party may have selected lands without knowing these rights-of-way were there. MR. HUBER said there was boiler plate language in the conveyance that said this land conveyance is subjection to these existing rights-of-way; it didn't necessary delineate the route. CHAIRMAN JAMES said she had specific exposure on this issue in her district when land was transferred to the University saying that existing trails are recognized. It didn't say where they were. This was a transfer from BLM to the State to the University. MR. HUBER said it's pretty typical to find the language of "valid existing rights, if any, including, but not limited to, those created by any lease, contract, permit, right-of-way, or easement, and the right of lessee, etc. is recognized and benefits thereby granted to him." This means basically that other interests in the land that exist are not extinguished in the conveyance. REPRESENTATIVE RYAN said the portion of the R.S. 2477 that is law says rights-of-way for construction of highways over public lands not reserved for public use is hereby granted. In 1866, there were vast areas of the west with nothing, the Homestead Law had recently passed, the railroads had gotten their great push, and there was no way to get anywhere if you didn't trespass on federal land. So all you had to do was go out and use it and the right-of-way was granted. That right-of-way is granted until such time as it's revoked. If it isn't revoked, it's still in effect. In Alaska that's very important, because once a right-of-way is there, all we have to do is appropriate money and build a road. He thought this is one of the most important pieces of legislation this body will ever consider in the history of the State and he wanted to move it as fast as possible. Number 422 REPRESENTATIVE BERKOWITZ asked when the ANCSA conveyances were made, were the rights-of-way grandfathered into the conveyances. MR. HUBER answered that was correct. He said the bill requires them to be recorded, but it doesn't create or establish a new right. It merely codifies that those rights already exist. CHAIRMAN JAMES added that it doesn't mean this can't be challenged. REPRESENTATIVE BERKOWITZ asked if there would be anything stopping the state from building a highway across these lands. MR. HUBER answered that this bill specifically does not address the management and scope question on R.S. 2477s which is state land and managed like other state land by the department. REPRESENTATIVE BERKOWITZ asked what the consequences would be if one of the private land holders had somehow interrupted a right-of- way. MR. HUBER said he should address that question to the land manager, Ms. Jane Angvik. He assumed they would treat it like any other obstruction of state property by someone who didn't have the right to do it. MR. HUBER said it is important to note that both the findings and the vacations sections of the bill that say, if you provide reasonable alternative access, you can vacate the right-of-way. If a school was built across an existing trail, the DNR would vacate that portion of the trail and reroute around that obstruction, if it was in the State's best interest. REPRESENTATIVE BERKOWITZ said he thought that would have Fifth Amendment "taking" implications as well. MR. HUBER said we aren't talking about "taking;" the right-of-way already exists. He thought the state would say a public right-of- way had been encroached and there are several different possible resolutions, one of which would be to vacate the existing right-of- way for another piece to replace it. Number 485 REPRESENTATIVE ELTON asked what the process was used in developing the 602 rights-of-way and if there would be any interaction with the private land owners that may be affected when this was developed. MR. HUBER said the process for actually establishing the list was nominations of historic routes and then research compiled to see if actual public use can be documented which the State believes is supportable in court. This is more of a disclosure issue with rights-of-way than it is a "takings" issue or a notice issue. CHAIRMAN JAMES responded that evidence was used like old maps with trails drawn in and interviews with people, who are old now, but actually used the routes during the authorized time. She didn't know if there had been public hearings per se, but there were a lot of public hearings where the lists were provided and brochures were sent out. People could add to the list or make suggestions. MR. HUBER reiterated that the nomination and research process is on-going. Number 517 JANE ANGVIK, Director, Central Office, Division of Land, Department of Natural Resources, testified via teleconference from Anchorage. She said the department opposes SB 180, with sadness. They have one principle concern which is that it requires them to record the 602 routes that potentially qualify as R.S. 2477 routes. That action of recording, she believes, would place a cloud on the title of third parties, principally private land owners, when we are not yet far enough along in the research process to be able to know exactly where the rights-of-way are located. All of what Mr. Huber said is correct and true in that we are in an argument with the federal government over the rights-of-way and who manages and owns them. She is in complete accordance with Senator Halford's point of view with respect to the state of Alaska to own and manage these rights-of-way. MS. ANGVIK said the process they engage in is they research the routes first and of that 602 have been identified and they then go through another process which is called certification. They have only certified 11 of the routes so far. This includes a title search to identify third party interests such as mining claims or other private property. It goes through a 45-day public notice period to municipalities, goes to coastal districts, village corporations, etc. by certified mail, specifically along the route. They finally go through a finding of fact and conclusions of law that a R.S. 2477 grant has been accepted. In the fight between federal and state government, the only entity that can say it exists is a federal court. To date, we are in court over five of these. MS. ANGVIK said the department's concern here is that we should continue our fight, our assertion of state's rights over ownership of these rights-of-way. This bill places a cloud on the title of private owners, and the state is not far enough along in our research to say some things for certain. MS. ANGVIK stated that in an effort to expand the transportation corridors in the state of Alaska, it is clear the Resources Development Council (RDC), the Alaska State Chamber of Commerce, and the Alaska Miners Association have all said they are in favor. However, Alaska Federation of Natives (AFN), the Rural Development Council (RDC), and the State Chamber express concern about what affect this bill might have on private land owners. The intent language is designed to address the concern that recording of these rights-of-way might place a cloud on the title of private land owners, but it is the position of the Administration that the intent language does not fully satisfy concerns that third party interests will have a cloud on their title and the state can't demonstrate that this land is exactly where we say it is. MS. ANGVIK summed up that we are sure we have 602, but we have only done all the homework on 11 of them, and we are in court on only 5 of them. To record them is premature. We should either certify additional routes which requires additional research and notification of private parties and survey them and locate them on the ground. Number 602 CHAIRMAN JAMES asked how long the list had been substantiated. MS. ANGVIK answered that the list of 602 was 585 until one month ago, so it's a dynamic list. The principal work was done by dedicated people in Fairbanks in 1992, 1993, and 1994. In some cases they just have a an old U.S.G.S. map that indicated it was there. They still have to find a human being who walked it. CHAIRMAN JAMES asked if the cloud wasn't already there, if these aren't documented. MS. ANGVIK answered that the cloud exists, but we don't know where. CHAIRMAN JAMES said she is concerned that we are having land conveyances now and no one has any authority to determine whether anyone has legal access out there. At the rate they are going, 602 rights-of-way are going to take many years and the public needs to know about them. She said there was an interest among lots of parties in connecting our state and she isn't interested in a spaghetti road system. We are interested in establishing rights- of-way for access for gas lines, fiber optic cable, and all sorts of other things that we want to get to people who live in western Alaska, so they can have some of the same benefits they have in the railbelt. If there is no effort in trying to find where these routes are going to go, we are going to have a jumbled up mess we can't back up on. She asked for her suggestion to speed up the process if SB 180 isn't it. MS. ANGVIK said she thought there were two issues; asserting ownership, and we could certainly do that, and start using an R.S. 2477 today. If it crosses land of private individuals, she advises to at least communicate with the private individual before one crosses it so that they don't shoot you. She believes this right- of-way exists. However, one is not able to go ahead and construct highways and roads on R.S. 2477s without going through the regulatory process in either DNR or DOT. CHAIRMAN JAMES interrupted to ask if within the boundaries of Native lands, they can't build a road. MS. ANGVIK answered they could build a road on their land, the state can't. Number 671 MR. HUBER said that they have worked with the department a great deal on this bill and was surprised to hear that they oppose the bill. He did, however, hear their concerns about surveys, actual locations on the ground, and the private property rights. He agreed with Chairman James that the right already exists. We are really talking about disclosure with private property owners. The title is already clouded. He said he had talked to the real estate community and private property concerns and their response is they feel they have been addressed. MR. HUBER pointed out that in a Joint meeting last February, Senator Halford asked both Commissioner Shively and the Attorney General if they would support recording all the routes that had been researched and documented and put in an atlas. Both responded that they would support that process which is what this bill does. CHAIRMAN JAMES said she agreed and not to file these would be an error. It would lead people to believe that a cloud was not there. TAPE 98-44, SIDE A Number 001 CHAIR JAMES said the public has the right to know that there may be an assertion of a right-of-way or a cloud. MS. ANGVIK agreed that the public should know that and believed that through publication of the R.S. 2477 maps and efforts to work with land owners throughout the State, they are providing people with information. She responded to Mr. Huber's comment about opposing the bill, that her department has always been opposed to recording the rights-of-way, because they don't know where they are. CHAIRMAN JAMES said she thought they could find out where the rights-of-way are if the need was there, but they need to know approximately where they are to start with. Number 081 REPRESENTATIVE ELTON asked what the process of certification was for the 11 routes they had already certified. MS. ANGVIK explained that they do a title search to identify all third party interests such as mining claims, a 45-day public notice period to municipalities, federal and state agencies, coastal districts, and land owners by certified mail. A decision is issued, including a finding of fact and a conclusion of law that the R.S. 2477 right-of-way grant has been accepted. It also includes a determination of the location and width of the right-of- way in accordance with the law. This process is described in regulation that was adopted in 1992. REPRESENTATIVE ELTON asked why the five cases were in court. MS. ANGVIK clarified that they have five R.S. 2477 lawsuits right now. Of those five, only one has been initiated by the state where we are asserting ownership in federal court - the Harrison/Portage Creek Trail out of Fairbanks. Anyone can assert ownership, not just the State. The Shultz case in Fairbanks is a private individual who asserted a right-of-way that goes across the military reserve. In the case of the Knik Glacier, a private individual asserted the existence of the right-of-way across another private person's property. In the case of the Chickaloon Road, there is a summary judgement between the tribal organization and the federal government over whether or not the condemnation of a right-of-way by the federal government was in violation of tribal interests. The department is in negotiations over the Llewellyn Mine in Southeast Alaska with the relocation of a right-of-way that would facilitate expansion of a mining facility. In this case it's the mining company versus the Forest Service and the State is on the side of the individual mining company. The state has fourteen cases in court over the one route we are trying to assert ownership on. REPRESENTATIVE ELTON asked what happens if private land owners wants to transfer property to another land owners. Is there another process that would bump them up for certification or do they just stand in line and wait until her department gets to them. MS. ANGVIK answered that there is no process that bumps anyone up in line. However, if a court orders her to go survey a route and identify exactly where it is, they would do that. This is the way to identify where it is and who it belongs to. REPRESENTATIVE ELTON asked if there was any way for a private land owner to accelerate that process. MS. ANGVIK said what is probable is that it would be worked out so that both sides would argue, not withstanding any existing prior right, and then go forward. Number 215 REPRESENTATIVE HODGINS asked he was to know what qualified as an R.S. 2477, in reference to the Pile Bay trail to Iliamna. MS. ANGVIK answered that R.S. 2477s that are in the bill are rights-of-way that haven't been developed as roads. There are other R.S. 2477s that exists in Anchorage, DeBarr Road, for instance. Gold Stream Road in Fairbanks is another one. REPRESENTATIVE RYAN asked if it would be another one and a half centuries before they finish. MS. ANGVIK answered yes. REPRESENTATIVE RYAN said he didn't know what the problem was and thought they were studying this thing to death. CHAIRMAN JAMES said she can understand that this is an overwhelming job, but the issue is what to do first. She thought the public had a right to know about all the documented cases to date. MS. ANGVIK responded to Representative Ryan's comment saying that a year ago in an effort to highlight the activities associated with the assertion and research of R.S. 2477s and the assertion of State's rights on navigability, the legislature created a separate BRU in the budget of the Division of Land that segregated money for them to do navigability and R.S. 2477s. There is approximately $200,000 which purchases the research and staff which is used mostly in preparation for litigation. Previously, the legislature had funded capital improvement projects worth millions of dollars that provided staff to do the research. It is not lack of interest on her part on doing it, it's lack of resources. Number 300 REPRESENTATIVE HODGINS moved to pass CSSB 180(FIN) out of Committee with individual recommendations. REPRESENTATIVE BERKOWITZ objected, because he said this bill invites all kinds of unintended consequences which hadn't been adequately explored. He wanted to hear from private land owners. He thought to go forward would cost a lot for litigation and wanted to hear from the Department of Law or Natural Resources about the cost of implementing this act. CHAIRMAN JAMES retorted that there is no way they could establish the final decision on the 602 routes without going to court. Yes, there are unintended consequences, but there is a huge stack of unintended consequences, if they don't pass it. The public has a right to know what documentation exists. REPRESENTATIVE BERKOWITZ responded that the public has access to that information with the historic trails data base. He thought the title and realty companies needed to be heard. CHAIRMAN JAMES responded that now there is no platting authority in the State for unorganized boroughs or any place where there isn't an existing platting authority. A statute says the platting authority files the plat; no one is looking to see if there is a right-of-way. People are blindly transferring land in the unorganized boroughs and don't know if they have one on their property or not. REPRESENTATIVE IVAN said he wasn't sure of the impact this bill would have on regional or village corporation lands selected under the ANCSA and said he was going to follow up on his concerns. REPRESENTATIVE ELTON said he thought the information was already out there. This bill asks the department to record the right-of- way without the appropriate data to make that recording. By enforcing that, they are creating a playground for attorneys. A roll call vote was taken. Representatives Hodgins, Ryan, Ivan and James voted in favor of moving the legislation. Representatives Elton and Berkowitz voted against moving the legislation. So CSSB 180(FIN) moved out of the House State Affairs Standing Committee. ADJOURNMENT Number 428 CHAIRMAN JAMES adjourned the House State Affairs Committee meeting at 10:00 p.m.