Legislature(2025 - 2026)

05/15/2025 01:00 PM House JUD

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HB 136-RAILROAD UTILITY CORRIDORS                                                                            
                                                                                                                                
1:50:34 PM                                                                                                                    
                                                                                                                                
CHAIR GRAY  announced that  the next order  of business  would be                                                               
HOUSE  BILL  NO.  136,  "An  Act  relating  to  use  of  railroad                                                               
easements."  [Before the committee was CSHB 136(TRA).]                                                                          
                                                                                                                                
1:50:47 PM                                                                                                                    
                                                                                                                                
The committee took a brief at-ease at 1:50 p.m.                                                                                 
                                                                                                                                
1:51:18 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP,  as prime sponsor, presented  CSHB 136(TRA).                                                               
He  directed attention  to a  PowerPoint presentation  on HB  136                                                               
[hard copy included in the  committee packet], beginning on slide                                                               
2,  "Purpose  of  HB  136,"   which  read  as  follows  [original                                                               
punctuation provided]:                                                                                                          
                                                                                                                                
        HB 136 affirms Alaska's right to set management                                                                         
     policies for the Alaska Railroad Easement                                                                                  
                                                                                                                                
REPRESENTATIVE KOPP continued  to slide 3, "What HB  136 does not                                                               
do," which read as follows [original punctuation provided]:                                                                     
                                                                                                                                
      HB 136 does not amend AS 42.40.420, the statute that                                                                      
     enables the Alaska Railroad to permit public projects                                                                      
     within the right of way                                                                                                    
                                                                                                                                
1:54:40 PM                                                                                                                    
                                                                                                                                
CHAIR GRAY asked whether the  bill would prevent the installation                                                               
of the Fish Creek Trail connector.                                                                                              
                                                                                                                                
REPRESENTATIVE KOPP stated the bill has no impact on that trail.                                                                
                                                                                                                                
1:55:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP moved  to slides 4-5, "How did  we get here?"                                                               
Which showed a historical timeline  of railroad rights-of-way and                                                               
easements in the U.S.                                                                                                           
                                                                                                                                
2:00:03 PM                                                                                                                    
                                                                                                                                
CHAIR GRAY asked about fee interest.                                                                                            
                                                                                                                                
REPRESENTATIVE KOPP  defined fee  interest as  "owning outright."                                                               
He resumed  the presentation on  slide 5 which an  explanation of                                                               
Reeves  v. Godspeed  and Alaska  Railroad  Corporation v.  Flying                                                           
Crown  Homeowners' Association,  which brought  legal uncertainty                                                             
when the railroad  asserted the right to fence  off several homes                                                               
that  encroached on  the easement  despite  the homeowners'  land                                                               
patent making no mention of the railroad.                                                                                       
                                                                                                                                
2:04:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP moved to slide  6 and discussed the intent of                                                               
Alaska Railroad Transfer  Act (ARTA).  He shared  his belief that                                                               
the Ninth Circuit  Court of Appeals misapplied the  law in Alaska                                                             
Railroad  Corporation  v.  Flying Crown  Homeowners'  Association                                                             
when  asserting that  the railroad  had the  right to  absolutely                                                               
exclude,  even for  noninterfering  uses.   In 2018,  Congressman                                                               
Young,  the only  living member  of Congress  who debated  on the                                                               
passage of  ARTA, gave  a written  statement clarifying  ARTA did                                                               
not intend to authorize the  transfer of privately owned property                                                               
interest.                                                                                                                       
                                                                                                                                
2:05:57 PM                                                                                                                    
                                                                                                                                
CHAIR  GRAY asked  about if  the railroad  had built  a fence  on                                                               
those homeowners' property, whether they  would have the right to                                                               
do  things that  did not  interfere  with the  railroad on  their                                                               
property.                                                                                                                       
                                                                                                                                
REPRESENTATIVE KOPP  answered in  his view,  yes, which  the bill                                                               
would make clear.                                                                                                               
                                                                                                                                
2:07:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP  continued to  slide 7,  "What is  a Railroad                                                               
'right-of-way,"  which  defined  "right-of-way as  the  right  of                                                               
passage  through the  public  lands  of the  United  States.   He                                                               
advanced to  slide 8, "What is  an 'easement'?"  Slide  8 read as                                                               
follows [original punctuation provided]:                                                                                        
                                                                                                                                
        A non-possessory right to use property owned by                                                                         
         another for a specific purpose - Marvin Brandt                                                                         
     Revocable Trust v. United States, 572 U.S. 93 (2014)                                                                       
                                                                                                                                
     The Railroad right of way becomes an easement when it                                                                      
      crosses another person or entity's private property                                                                       
     i.e., Homestead patented lands                                                                                             
                                                                                                                                
REPRESENTATIVE  KOPP  moved  to   slide  9,  "Exclusive  Use  for                                                               
Railroad, Telegraph  and Telephone  only," which read  as follows                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
      • The right to exclude is the essence of ownership,                                                                       
          conversely, to the extent one does not have                                                                           
          exclusion rights, one does not have property                                                                          
       • Exclusivity has many meanings and applies to the                                                                       
          easement holder, not the landowner                                                                                    
        • An easement that permits the holder to exclude                                                                        
          the underlying landowner is no longer an easement                                                                     
          but is full ownership                                                                                                 
                                                                                                                                
REPRESENTATIVE  KOPP   turned  to   slide  10,   "Homestead  Land                                                               
Patents," which read as follows [original punctuation provided]:                                                                
                                                                                                                                
     These are privately owned lands  over which much of the                                                                    
     Railroad easement  crosses. More  than 142.34  miles of                                                                    
     track  in Alaska  crosses lands  that  are patented  to                                                                    
     individuals*                                                                                                               
                                                                                                                                
     These   patents  cite   a  reservation   to  the   U.S.                                                                    
     government of a  right of way for  rail, telegraph, and                                                                    
     telephone                                                                                                                  
                                                                                                                                
     * USRA Valuation of the Alaska Railroad Sep. 1983                                                                          
                                                                                                                                
REPRESENTATIVE KOPP continued to slide  11, which stated that the                                                               
railroad right of way was  reserved for "railroad, telegraph, and                                                               
telephone."  He  advanced to slide 12, "Why does  HB 136 matter?"                                                               
Slide 12 read as follows [original punctuation provided]:                                                                       
                                                                                                                                
     The  9th  Circuit's  2023  ruling  in  Alaska  Railroad                                                                    
     Corporation v.  Flying Crown held the  ARC possesses an                                                                    
     "exclusive use"  easement in the  entire right  of way,                                                                    
     which  conflicts with  significant  U.S. Supreme  Court                                                                    
     and Alaska Supreme Court rulings  on the general nature                                                                    
     of  the property  interest  that  railroads possess  in                                                                    
     their easement over private property                                                                                       
                                                                                                                                
2:14:19 PM                                                                                                                    
                                                                                                                                
CHAIR  GRAY questioned  why the  Ninth Circuit  Court of  Appeals                                                               
held that ARRC possesses an exclusive use easement.                                                                             
                                                                                                                                
REPRESENTATIVE  KOPP   said  the  court  argued   that  ARRC  had                                                               
"something special," and while not  explicitly stated in the 1914                                                               
Railroad  Act, Congress  intended  for it  to  be exclusive  use.                                                               
However, because  of the legal  uncertainty now due to  the Ninth                                                               
Circuit's ruling left unchallenged,  the railroad can exclude all                                                               
noninterfering  uses and  they are  the  sol arbiter  of what  to                                                               
exclude.      Fortunately   in  the   Flying   Crown   Homeowners                                                               
Association's  case, a  land use  agreement  was negotiated  that                                                               
said ARRC  would not  stop land  owners from  using the  air park                                                               
until the case was finally resolved.                                                                                            
                                                                                                                                
REPRESENTATIVE KOPP moved to slide  13, "What's the harm?"  Slide                                                               
13 read as follows [original punctuation provided]:                                                                             
                                                                                                                                
        • The Alaska Railroad does not own the land over                                                                        
          which more than half of the railroad right of way                                                                     
          traverses*                                                                                                            
        • The Alaska Railroad wrongly asserts a fee                                                                             
          interest in the easement over these private lands                                                                     
        • This policy allows the Alaska Railroad discretion                                                                     
          to deny safe, noninterfering landowner uses of                                                                        
          land within the easement                                                                                              
        • The Alaska Railroad restricts access via onerous                                                                      
          fees, permits, and crossing restrictions to                                                                           
          property owners whose land is bisected by the                                                                         
          railroad easement                                                                                                     
                                                                                                                                
2:17:16 PM                                                                                                                    
                                                                                                                                
CHAIR GRAY  asked why ARRC would  assert a fee interest  and what                                                               
it would  allow the  corporation to  do with  the land  that they                                                               
wouldn't otherwise be able to do with an easement.                                                                              
                                                                                                                                
REPRESENTATIVE  KOPP  said  it   would  allow  for  monetization.                                                               
Furthermore,  it   would  impact   the  resale  value   of  these                                                               
properties.   He stressed  that the  goal of the  bill is  not to                                                               
stop ARRC from excluding any  interfering use that would prohibit                                                               
them  from  safely  operating the  right-of  way;  however,  it's                                                               
important that the railroad does  not have the discretion to deny                                                               
safe,  noninterfering   landowner  uses  of  land   within  those                                                               
easements.  He  added that ARRC can restrict  access with onerous                                                               
fees,  permits,  and  crossing restrictions  to  property  owners                                                               
whose land is bisected by the railroad easement.                                                                                
                                                                                                                                
CHAIR GRAY  asked why a person  can't just walk across  the track                                                               
and why a fee would be levied.                                                                                                  
                                                                                                                                
REPRESENTATIVE  KOPP explained  that property  owners must  pay a                                                               
fee to  build a  crossing and  maintain it even  if they  own the                                                               
land on both sides of the track.                                                                                                
                                                                                                                                
2:21:15 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP  transitioned to slide 14,  "Examples," which                                                               
read as follows [original punctuation provided]:                                                                                
                                                                                                                                
        • Homestead properties being charged for access to                                                                      
          their own property, or road access blocked                                                                            
        • Private property owners being charged for                                                                             
          utilities buried on their property                                                                                    
        • Business owners  denied the opportunity to  use or                                                                    
          develop their commercial properties                                                                                   
        • Municipalities denied access  to lands and charged                                                                    
         large sums of money to maintain road crossings                                                                         
        • Utility  companies  charged   exorbitant  fees  to                                                                    
          access the right of way                                                                                               
        • Homeowner Associations being sued                                                                                     
        • Outdoor  recreationists  being  denied  access  to                                                                    
          public property                                                                                                       
                                                                                                                                
REPRESENTATIVE KOPP continued to slide 15, "Crossing Fees,"                                                                     
which read as follows [original punctuation provided]:                                                                          
                                                                                                                                
        • The State is forced to  pay the Railroad to access                                                                    
          and maintain its own public roads.                                                                                    
        • In  FY2025,  DOT&PF  paid  over  $453,000  to  the                                                                    
          Alaska   Railroad   in  annual   signal   crossing                                                                    
          maintenance   fees  for   just   23  highway   and                                                                    
          pedestrian crossings.                                                                                                 
        • In  FY2025,  ARRC   charged  DOT&PF  approx.  $1.6                                                                    
          million  for   signal  maintenance   projects  and                                                                    
          crossing   repair,    including   steep   overhead                                                                    
          markups.                                                                                                              
        • A  project repairing  the  Parks Highway  Milepost                                                                    
          235 railroad  crossing cost the state  $931,230 in                                                                    
          FY 2025, with $380,955 charged as overhead alone.                                                                     
                                                                                                                                
2:24:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP moved to slide 16, "Crossing Fees Cont'd,"                                                                  
which read as follows [original punctuation provided]"                                                                          
                                                                                                                                
        • The  House   Transportation  Committee  recognized                                                                    
          that   ARRC's  current   fee  practices   resemble                                                                    
          private-sector  profiteering,  despite its  status                                                                    
          as a state-owned corporation.                                                                                         
        • Private   landowners  subject   to  the   railroad                                                                    
          easement  have  faced similar  unreasonable  fees,                                                                    
          with  no statutory  check on  ARRC's discretionary                                                                    
          authority.                                                                                                            
        • To protect  Alaskans' property rights  and prevent                                                                    
          financial exploitation, the  Committee amended the                                                                    
          bill  to  require   that  crossing  fees  assessed                                                                    
          against  private  landowners  be  revenue-neutral                                                                     
          limited to actual cost recovery.                                                                                      
                                                                                                                                
REPRESENTATIVE KOPP  turned to slide  17, "A matter  of justice,"                                                               
which read as follows [original punctuation provided]:                                                                          
                                                                                                                                
     Under due process, the Government cannot give or sell                                                                      
     the same parcel of property to two different owners.                                                                       
                                                                                                                                
         "Unlawful acts, performed long enough and with                                                                         
     sufficient vigor, are never enough to amend the law."                                                                      
     - Justice Gorsuch                                                                                                          
     -McGirt v. Oklahoma U.S. Supreme Court July 9, 2020                                                                        
                                                                                                                                
2:29:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE VANCE  sought to better understand  the difference                                                               
between the corridor, rights-of-way, and easements.                                                                             
                                                                                                                                
REPRESENTATIVE KOPP  said the ARRC  transportation corridor  is a                                                               
creature of  statute that was  added when Alaska  took possession                                                               
of  the federal  railroad to  make clear  that more  uses of  the                                                               
easement were permitted.                                                                                                        
                                                                                                                                
REPRESENTATIVE   VANCE    asked   what   ARRC    would   consider                                                               
"unreasonable interference" with regard to easements.                                                                           
                                                                                                                                
REPRESENTATIVE  KOPP said  it would  come down  to a  commonsense                                                               
decision  regarding potentially  derailment in  high-speed areas.                                                               
He added that  landowners are some of the best  protectors of the                                                               
easement because  they understand  the danger  and the  beauty of                                                               
the railroad.                                                                                                                   
                                                                                                                                
2:36:17 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  VANCE  asked  about liability  with  permits  and                                                               
whether  issuance of  a permit  transfers liability  if something                                                               
were to happen on that area of the easement.                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP  confirmed that  crossings require  a permit,                                                               
and permits make  clear that the railroad is  not responsible for                                                               
that private crossing.                                                                                                          
                                                                                                                                
REPRESENTATIVE VANCE asked who has liability on the easements.                                                                  
                                                                                                                                
REPRESENTATIVE  KOPP  said the  liability  falls  on both.    The                                                               
landowner  is   responsible  for   noninterfering  use,   and  if                                                               
interfering use results  in injury, they would be  held liable to                                                               
the  railroad.   He  added  that  the  question of  liability  is                                                               
addressed in  the permit and  agreed to by both  parties, whereas                                                               
the fee issue is the real area if concern for landowners.                                                                       
                                                                                                                                
2:39:25 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EISCHEID asked  whether a  non-exclusive easement                                                               
would conflict with  the federal law that  allows the corporation                                                               
to fence the easements.                                                                                                         
                                                                                                                                
REPRESENTATIVE KOPP  answered no.   He said  ARTA never  gave the                                                               
railroad an exclusive license to  the right-of-way.  He explained                                                               
that homestead  patent landowners were never  notified that their                                                               
properties  could be  impacted by  ARTA  because their  interests                                                               
were  never to  be affected  by the  act, as  they held  "perfect                                                               
title" to the  land.  However, the government  was concerned that                                                               
those  with  contested  title  would  not be  able  to  stop  the                                                               
railroad  from using  the corridor.   He  said the  bill narrowly                                                               
focused on  non-exclusivity where the railroad  crosses homestead                                                               
patent lands because it was  never Congress's intent to claw back                                                               
their fundamental property interests.                                                                                           
                                                                                                                                
2:43:04 PM                                                                                                                    
                                                                                                                                
CHAIR  GRAY asked  whether the  bill would  prevent the  railroad                                                               
from asserting its right to put a fence in.                                                                                     
                                                                                                                                
REPRESENTATIVE  KOPP  said  absolutely,  without  the  bill,  the                                                               
railroad does  not need  to claim interference  to exclude.   The                                                               
bill would  make clear that the  policy of the state  is to avoid                                                               
fencing people  off and disallowing  safe noninterfering  uses of                                                               
their property when the easement crosses their land.                                                                            
                                                                                                                                
2:44:48 PM                                                                                                                    
                                                                                                                                
IVAN LONDON,  Senior Attorney,  Mountain State  Legal Foundation,                                                               
provided   invited  testimony.     He   stated  that   he  is   a                                                               
constitutional and  property rights attorney.   He noted  that he                                                               
has  experience  litigating  easements  with  state  and  federal                                                               
legislative authority.  He opined  that the railroad is an entity                                                               
that can be  governed by the legislation  because the legislature                                                               
created  ARRC;  therefore, giving  it  the  right to  govern  and                                                               
regulate it.   He continued  that the proposed  legislation would                                                               
not change the nature of the property rights.                                                                                   
                                                                                                                                
2:48:39 PM                                                                                                                    
                                                                                                                                
HUGH ASHLOCK,  Owner, Diamond Center  Mall, LLC;,  Diamond Center                                                               
Holdings,  LLC, provided  invited testimony.   He  explained that                                                               
his  parents originally  built the  Diamond Mall,  and it  is the                                                               
highest trafficked facility in the  state.  He explained that the                                                               
mall is  located on a  former homestead property that  his family                                                               
purchased  as a  direct transfer  from  the original  owner.   He                                                               
suggested  that the  right-of-way  on the  property  is the  most                                                               
valuable piece of right-of-way in the  state.  He stated that the                                                               
right-of-way is  subject to only  rail, telegraph,  and telephone                                                               
use.   He expressed the desire  to build a culvert  on the right-                                                               
of-way  and create  a parking  lot, housing,  or other  mixed-use                                                               
projects in the area, and  this would be without interrupting the                                                               
railroad's  usage.    He  stated  that in  2005  he  received  $3                                                               
million,  per   a  bill   sponsored  by   Alaska's  Congressional                                                               
Delegation,  to  implement   intermodal  transportation,  with  a                                                               
train/bus combination.  He explained  that this resulted in a bus                                                               
station in  the Diamond Mall  parking lot; however,  the railroad                                                               
was not interested in participating in the project.                                                                             
                                                                                                                                
MR. ASHLOCK  stated that after  the multimodal project, he  had a                                                               
national  chain  restaurant  interested  in  the  Diamond  Center                                                               
location, but  he needed  5,000 square  feet of  the right-of-way                                                               
for  landscaping.   He noted  that  he was  quoted an  exorbitant                                                               
price;  however,  now he  understands  that  he would  have  been                                                               
paying for the  use of his own land.   After relaying this story,                                                               
he said, "I  have run into some  bad actors over the  years."  He                                                               
continued  by  expressing  the desire  to  create  an  intermodal                                                               
station or create a new parking  lot, as the easement property is                                                               
worth "a lot of money."                                                                                                         
                                                                                                                                
2:53:23 PM                                                                                                                    
                                                                                                                                
JOE  MATHIS, property  owner, provided  invited  testimony on  HB
136.   He shared that his  family has owned a  160-acre homestead                                                               
in  the  state for  69  years.   He  stated  that  the parcel  is                                                               
bisected by the Alaska Railroad  right-of-way, which is contained                                                               
in the patent for the land.   He said that before state ownership                                                               
of  the  railroad, his  relatives  had  helped install  the  rail                                                               
crossing   on  the   property;  however,   since  the   ownership                                                               
transferred to  the state,  annual permit  fees for  crossing and                                                               
contract renewal fees have continually  increased.  He added that                                                               
an underground electric  line was installed by the  family at its                                                               
own expense,  with no  maintenance cost and  no liability  to the                                                               
railroad; however,  this requires  an additional annual  $500 fee                                                               
to ARRC.                                                                                                                        
                                                                                                                                
2:58:38 PM                                                                                                                    
                                                                                                                                
JOHN PLETCHER,  property owner, provided  invited testimony.   He                                                               
shared that  his family moved  to their property in  Anchorage in                                                               
1981, and  since that time,  they have maintained a  large garden                                                               
in  the easement.   He  stated that  the parcel  of land  has not                                                               
caused  problems; however,  they do  not want  to be  continually                                                               
threatened   by  ARRC's   permit  requirements.     Regarding   a                                                               
residential  use policy,  he  stated that  he  received a  letter                                                               
informing him that he needed a  permit, which he declined.  After                                                               
this, ARRC threatened  to put a lien on the  property.  He stated                                                               
that, per  the exclusive  use provision,  the railroad  wanted to                                                               
charge  $2,200  annually.    He  discussed  the  details  of  the                                                               
exclusive  use  provision,  of  which will  be  published  in  an                                                               
article on the website, www.railroadedalaska.com.   He shared his                                                               
understanding of  what the courts  have said about  the exclusive                                                               
use provision.   He noted that  there is nothing in  the property                                                               
patent about ARRC's exclusive use.                                                                                              
                                                                                                                                
MR. PLETCHER  stated that  his community  has created  a railroad                                                               
committee, of which he chairs.   He advised the committee members                                                               
to  go to  its website  [listed above]  and visit  the document's                                                               
page.  He cited that the  legislature has directed policy on ARRC                                                               
in  the  past,  and  he  noted these  sections  in  the  statute.                                                               
Concerning  the comment  made by  Mr. O'Leary  that the  railroad                                                               
paid all the  legal fees in the Flying Crown  case, he said, "The                                                               
governor forced  them to do it."   He added, "The  railroad's got                                                               
more money than God."                                                                                                           
                                                                                                                                
3:06:45 PM                                                                                                                    
                                                                                                                                
CHAIR GRAY  asked Mr.  London whether  there is  some expectation                                                               
that affected homeowners have some  understanding about the legal                                                               
rights of the railroad.                                                                                                         
                                                                                                                                
MR.  LONDON emphasized  that  the  bill has  nothing  to do  with                                                               
property rights  or expectations,  and instead, outlines  how the                                                               
state will let ARRC operate.                                                                                                    
                                                                                                                                
3:10:30 PM                                                                                                                    
                                                                                                                                
The committee took an at-ease from 3:10 p.m. to 3:14 p.m.                                                                       
                                                                                                                                
3:14:47 PM                                                                                                                    
                                                                                                                                
CHAIR GRAY opened public testimony on HB 136.                                                                                   
                                                                                                                                
3:15:05 PM                                                                                                                    
                                                                                                                                
MEGHAN  CLEMENS,   External  Affairs  Directo,   Alaska  Railroad                                                               
Corporation,  said while  she agrees  with many  of the  comments                                                               
made today, she  disagrees on some key items, such  as the nature                                                               
of the exclusive  use easement.  She said  the augments presented                                                               
today  were heard  and analyzed  by  the district  court and  the                                                               
Ninth  Circuit Court  of  Appeals, and  the  opinions offered  by                                                               
those courts  do a  good job  of explaining how  they came  to be                                                               
fully  in favor  of  ARRC  and the  need  for  the exclusive  use                                                               
easement,  as  well  as  a  clear legal  case  of  how  that  was                                                               
transferred from the federal government.                                                                                        
                                                                                                                                
3:17:26 PM                                                                                                                    
                                                                                                                                
CHAIR GRAY questioned Judge Kindred's  reasoning for the greatest                                                               
exclusive use finding.                                                                                                          
                                                                                                                                
MS. CLEMENS  referred to a  PowerPoint, titled "HB  136: Railroad                                                               
Utility  Corridors," and  explained  that  the courts  approached                                                               
determining the nature of the  property interest by answering the                                                               
nature of  the interest  reserved by  the federal  government, as                                                               
well as  the interest  in the right-of-way  that was  conveyed to                                                               
the railroad  by ARTA.  She  acknowledged that the 1914  act that                                                               
reserved the right-of-way  for the railroad did  not fully define                                                               
the nature of the property  interest, so to answer that question,                                                               
the court considered the legal  precedent for Lower-48 railroads,                                                               
and how the original federal  ownership of the Alaska Railroad at                                                               
impacts this consideration.   She continued to slide  4, "What is                                                               
Standard  for Lower  48  Railroads?"   Slide  4  read as  follows                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
     •Prior  to  1875  General  Railroad  Right-of-Way  Act,                                                                    
     railroads  were granted  ROW in  fee simple  by federal                                                                    
     government                                                                                                                 
     •1875 Act granted easement, not  fee. Two Supreme Court                                                                    
     rulings related to limits of 1875 Act easements:                                                                           
     •1875 Act  railroads do not possess  subsurface mineral                                                                    
     rights                                                                                                                     
     Great Northern Railway Company v United States                                                                             
     •If  1875   Act  railroad   abandons  ROW,   the  court                                                                    
     confirmed  reversionary rights  to underlying  property                                                                    
     owner                                                                                                                      
     Marvin M. Brandt Revocable Trust v. United States                                                                          
     •Tenth Circuit  ruled 1875 Act railroads  had the right                                                                    
     to exclude from  ROW under the 1875  Act, in congruence                                                                    
     with Great  Northern and Brandt, because  "[a] railroad                                                                    
     easement is exclusive in character"                                                                                        
     LKL Associates., Inc., v. Union Pacific Railroad Co.                                                                       
                                                                                                                                
MS. CLEMENS continued to slide 5, "Does original federal                                                                        
ownership affect consideration?"  Slide 5 read as follows                                                                       
[original punctuation provided]:                                                                                                
                                                                                                                                
     •The Alaska  Railroad was unique: the  only railroad in                                                                    
     the country  wholly owned and  operated by  the federal                                                                    
     government                                                                                                                 
     •In 1914  Act, federal government was  reserving ROW to                                                                    
     itself                                                                                                                     
     •Difficult  to  imagine  the federal  government  would                                                                    
     have  reserved a  lesser property  interest for  itself                                                                    
     than that granted to 1875 Act railroads                                                                                    
     •Established   precedent:   where   land   grants   are                                                                    
     ambiguous, such ambiguity must be  resolved in favor of                                                                    
     the sovereign grantor the federal government                                                                               
     •1982  Congress clearly  found  the federal  government                                                                    
     held  either fee  simple or  exclusive use  easement in                                                                    
     ROW                                                                                                                        
                                                                                                                                
MS. CLEMENS turned to slide 6, "What interest in the ROW did                                                                    
Congress convey to ARRC?"  Slide 6 read as follows [original                                                                    
punctuation provided]:                                                                                                          
                                                                                                                                
     1982 Alaska Railroad Transfer  Act: "the Congress finds                                                                    
     that  exclusive control  over the  right-of-way by  the                                                                    
     Alaska Railroad has been and  continues to be necessary                                                                    
     to afford  sufficient protection for safe  and economic                                                                    
     operation of the railroad."                                                                                                
     Congress  is  unambiguous  in  reserving  and  defining                                                                    
     exclusive use easement in ARTA:                                                                                            
     ARTA specifies  that the federal government  must grant                                                                    
     the State an easement that is                                                                                              
     "not less than an exclusive-use easement"                                                                                  
     ARTA  Definition: ''exclusive-use  easement'' means  an                                                                    
     easement  which  affords  to the  easement  holder  the                                                                    
     following:                                                                                                                 
          (A)  the  exclusive  right to  use,  possess,  and                                                                    
          enjoy the  surface estate of  the land  subject to                                                                    
          this  easement for  transportation, communication,                                                                    
          and   transmission   purposes  and   for   support                                                                    
          functions associated with such purposes;                                                                              
          (B) the  right to  use so  much of  the subsurface                                                                    
          estate of  the lands  subject to this  easement as                                                                    
          is     necessary    for     the    transportation,                                                                    
          communication,   and  transmission   purposes  and                                                                    
          associated   support  functions   for  which   the                                                                    
          surface of such lands is used;                                                                                        
          (C)  subjacent and  lateral support  of the  lands                                                                    
          subject to the easement; and                                                                                          
          (D)   the   right   (in  the   easement   holder's                                                                    
          discretion)  to fence  all or  part  of the  lands                                                                    
          subject  to  this  easement and  to  affix  track,                                                                    
          fixtures,  and structures  to  such  lands and  to                                                                    
          exclude  other persons  from all  or part  of such                                                                    
          lands;                                                                                                                
                                                                                                                                
3:21:42 PM                                                                                                                    
                                                                                                                                
CHAIR  GRAY asked,  in the  case of  Flying Crown,  why ARRC  was                                                             
asserting the right to build fence.                                                                                             
                                                                                                                                
MS. CLEMANS  did not know  the answer.   She referenced  the ARRC                                                               
right-of-way residential  use policy,  which charged  fair market                                                               
value  for residential  uses  of the  right-of-way.   The  policy                                                               
lacked   public   support   and   was   subsequently   rescinded;                                                               
nonetheless,  the   homeowners  association  demanded   that  the                                                               
railroad  relinquish  any  claim  to an  exclusive  use  easement                                                               
within the right-of-way.  She  said the exclusive use easement is                                                               
very important to ARRC's ability  to operate a safe and efficient                                                               
railroad.   She added that  active airstrips in  the right-of-way                                                               
are  uncommon; nevertheless,  ARRC does  its  best to  be a  good                                                               
neighbor,  but  by  virtue of  managing  the  railroad,  property                                                               
owners are not always given the answer they want.                                                                               
                                                                                                                                
3:23:57 PM                                                                                                                    
                                                                                                                                
CHAIR  GRAY asked  whether Ms.  Clemens supports  or opposes  the                                                               
bill.                                                                                                                           
                                                                                                                                
MS.  CLEMANS  stated that  the  bill  language looks  similar  to                                                               
current practices  and reiterated that  ARRC does not  charge for                                                               
residential lawn or gardening uses  within the right-of-way if it                                                               
does  not interfere  with  the  purposes of  the  corridor.   She                                                               
clarified that fee  structures are defined to  be revenue neutral                                                               
across  departments.   She summarized  slide 9,  "HB 136,"  which                                                               
read as follows [original punctuation provided]:                                                                                
                                                                                                                                
     Proposed bill language:                                                                                                    
                                                                                                                                
     "The corporation shall allow  an owner of real property                                                                    
     subject to an easement in  favor of the corporation? to                                                                    
     use   the  property   in  a   manner   that  does   not                                                                    
     unreasonably  interfere with  the corporation's  use of                                                                    
     the property.                                                                                                              
     The corporation may require the  owner of real property                                                                    
     subject to an  easement in favor of  the corporation to                                                                    
     obtain  a permit  from the  corporation to  construct a                                                                    
     railroad crossing  within the  easement and  may charge                                                                    
     the  owner   a  revenue-neutral  fee   associated  with                                                                    
     issuing the  permit and developing and  maintaining the                                                                    
     crossing."                                                                                                                 
     Bill  Sponsor's  presentation  implied the  above  bill                                                                    
     language would:                                                                                                            
     •Undermine ARRC's exclusive use easement                                                                                   
     •Require ARRC  to assume the expense  of road crossings                                                                    
     burdening  the   rail  line  even  when   permitted  to                                                                    
     entities without property interests in the ROW                                                                             
     •Allow  ARRC to  use  ROW for  Railroad, Telegraph  and                                                                    
     Telephone purposes only                                                                                                    
     (ARTA  allows  for  Transportation,  Communication  and                                                                    
     Transmission)                                                                                                              
     •Address  "Outdoor recreationists  being denied  access                                                                    
     to public property"                                                                                                        
                                                                                                                                
3:28:16 PM                                                                                                                    
                                                                                                                                
VICE CHAIR KOPP  asked whether there's anything ARRC  could do to                                                               
help  Mr.  Mathis maintain  his  private  crossing in  a  revenue                                                               
neutral capacity.   He added  that an annual  fee of $1,000  is a                                                               
lot for a family on Social Security.                                                                                            
                                                                                                                                
MS.  CLEMANS said  she's not  prepared  to fully  answer for  the                                                               
maintenance and operations of that  particular crossing; but it's                                                               
unusual  for   a  crossing  owner  to   personally  maintain  the                                                               
crossing,  as ARRC  owns the  regulatory  obligation and  usually                                                               
oversees the work  with reimbursement requests to  ensure that it                                                               
meets industry standards.                                                                                                       
                                                                                                                                
3:30:52 PM                                                                                                                    
                                                                                                                                
VICE  CHAIR KOPP  commented  that the  bill is  trying  to set  a                                                               
management policy, not relitigate the issue.                                                                                    
                                                                                                                                
3:31:57 PM                                                                                                                    
                                                                                                                                
DIANA  RHOADES,  Program  Director,  Anchorage  Park  Foundation,                                                               
testified in  opposition to HB 136.   She said the  foundation is                                                               
one of  the lead advocates for  the connection of the  Fish Creek                                                               
Trail to  the Tony Knowles  coastal trail in the  Alaska Railroad                                                               
right-of-way for one  mile.  She opined that  CSHB 136(TRA) would                                                               
still cause  legal uncertainty for  the Fish Creek  Trail, adding                                                               
that the  exclusive use is what  allows the trail to  be built in                                                               
the right-of-way.   She further posited that  the existing right-                                                               
of-way is not wide enough for  future uses that might benefit the                                                               
public.   She  expressed concern  that the  legislation may  have                                                               
unintended consequences.                                                                                                        
                                                                                                                                
3:35:37 PM                                                                                                                    
                                                                                                                                
ALEXA DOBSON,  Executive Director,  Bike Anchorage,  testified in                                                               
opposition  to HB  136.   She  stated that  Bike  Anchorage is  a                                                               
nonprofit  organization  working  to  make  Anchorage  more  bike                                                               
friendly.    She  argued  that  the  proposed  legislation  would                                                               
threaten the  trail projects along the  railroad corridors across                                                               
the state.  She  noted that she has not reviewed  Version H.  She                                                               
expressed the  understanding that some believe  the proposed bill                                                               
is not about  the Fish Creek Trail; however, she  argued that the                                                               
bill has been supported by the  interest of those wanting to stop                                                               
this and other trails.  She  pointed out that during the 04/01/25                                                               
hearing of HB 136, Hugh  Ashlock, Ivan London, John Pletcher, and                                                               
Joe  Mathis,  were  invited  to   testify.    She  expressed  the                                                               
understanding that they  were all involved with  the Flying Crown                                                               
case, of which  the sponsor has cited as the  impetus for HB 136.                                                               
She argued  that the reason  for this  would be to  set precedent                                                               
for private  landowners along  the railroad.   She  expressed the                                                               
understanding that  the bill  sponsor's firm  was hired  to lobby                                                               
against the  Fish Creek  Trail extension  project, which  is also                                                               
connected with  the Flying Crown case  concerning easement usage.                                                               
She reiterated  that the proposed  legislation might  not mention                                                               
trails; however, she argued that  individuals with known interest                                                               
in stopping trails  are advancing it.  She pointed  out that many                                                               
of the  most promising  trail corridors in  the state  align with                                                               
the railroad.   She argued that  if the proposed bill  passes, it                                                               
could  cause legal  delays for  trail projects,  or stoppage  all                                                               
together.    She  urged  the committee  to  oppose  the  proposed                                                               
legislation and support the state's "world-class" trail network.                                                                
                                                                                                                                
3:37:38 PM                                                                                                                    
                                                                                                                                
CHAIR GRAY  announced that  public testimony on  HB 136  would be                                                               
kept open and the bill would be held over.                                                                                      
                                                                                                                                

Document Name Date/Time Subjects