Legislature(2001 - 2002)
02/27/2002 03:43 PM Senate RES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HB 241-RAIL AND UTILITY CORRIDOR TO CANADA
CHAIRMAN JOHN TORGERSON called the Senate Resources Committee
meeting to order at 3:43 p.m. and announced HB 241 to be up for
consideration.
REPRESENTATIVE JEANETTE JAMES, sponsor of HB 241, said she filed
this legislation to increase the size of the transportation and
utility corridor from 300 to 500 ft. wide. A corridor from
Fairbanks to Seward has been identified; this bill would create a
railroad connection to the North American rail system. She has
had a lot of support for this idea from the Canadians, as well as
from within the state. The accelerated interest is due, in part,
to Senator Murkowski's effort to support a bilateral commission
to do a feasibility study at the federal level. However, the
Canadians will have to do the same, so while the U.S. has
appropriated $6 million for this three-year process, no funds
have been expended yet.
HB 241 authorizes the Alaska Railroad Corporation (ARRC) to
survey on the ground and monument the corridor. Right now there
is great interest in building a gas pipeline along the same route
and she wants to be sure that neither the gas line nor the
railroad exclude the other by taking a position that doesn't
leave anything for the other. In discussions with the gas
producers, it has become apparent that there may be some
synergies between the two.
This particular legislation authorizes ARRC to investigate
extension of the railroad to White Horse, Yukon Territory. She
personally thought this would be a hand out to Canada. The other
issue is that the White Pass Railroad could go to White Horse,
but currently it only goes as far as Carcross. The Canadians have
indicated to her that if the Alaska Railroad went to White Horse,
they would extend their schedule to go there, too. This would
open the deep-water port of Skagway to that part of Alaska and
the Yukon.
The part of the bill that may be more controversial provides that
once ARRC has received the funds to do the surveying, the state
would transfer the state land within that corridor to ARRC.
REPRESENTATIVE JAMES said that many things have changed since an
aerial survey was done 20 years ago and it may well be that some
changes in the direction of the already delineated route would
have to be made. NASA did a fly-over with a high-resolution
evaluation of the whole area two years ago that is currently
being mapped by the Department of Natural Resources (DNR) and
will soon be finished.
In 1994 a route from Fairbanks to the Seward Peninsula was
authorized that excluded the requirement in Title 38 to identify
the use of the lands. She reminded the committee that ARRC has
eminent domain authority and that it is looking at a
transportation and utility corridor wide enough to possibly
include fiber optics or anything else that would need to go in
the corridor in the future.
CHAIRMAN TORGERSON said the first issue he wanted to discuss was
on page 2, lines 18 - 22. It gives DNR the authority to transfer
the land without legislative review. He has heard rumblings that
[legislators] would like to see a report when it's completed and
then do the final transfer.
REPRESENTATIVE JAMES said that would not necessarily negatively
affect the direction she is going in.
CHAIRMAN TORGERSON said the committee requested a legal opinion
on the reference to AS 42.40.370, which transfers all subsurface
rights, including the surface materials, mineral rights, the
right to use the timber, etc. to the corporation, but clearly the
[legislature] is not interested in giving the oil and gas to
ARRC. If they happen to build a road, they don't want to transfer
it and then buy the gravel back either. So, they are working on
an equal access issue to where the state would take care of a lot
of the right-of-way if needed, but still achieve the purpose they
want for ARRC.
REPRESENTATIVE JAMES said she had no problem with that either.
She never intended to include the subsurface rights with the
exception of gravel, which ARRC will need. She had discussed this
with ARRC and they were working on language about who would
manage the gravel while giving the state access to it.
CHAIRMAN TORGERSON next questioned giving ARRC the authority to
own property in Canada in the last sentence in the bill, which
says, "the corporation may acquire land or interest in Canada".
4:00 p.m.
SENATOR TAYLOR said he was concerned that the fiber optic
contract alone renders a significant income and that the state
should manage those revenues.
REPRESENTATIVE JAMES said she shares his concerns and she would
not have sponsored this bill if she didn't believe that this is
going to benefit Alaska as a whole. She noted that Alaska has a
lot of stranded resources that have the potential to be developed
if better connections were available. It appears to her that, for
safety reasons, wherever ARRC has a right-of-way, that land
should be managed by ARRC.
SENATOR TAYLOR expressed concern about giving ARRC title to the
500 ft. width. He questioned, "Why don't they just have a right-
of-way or easement for the use of that portion, but not an
exclusive right-of-way or easement." He said that he would give
ARRC the exclusive right to run the railroad on a 100 ft.
corridor but cautioned, "I wouldn't give them the exclusive right
to control all other uses that might be compatible with theirs."
REPRESENTATIVE JAMES said currently ARRC has fee simple title to
its railroad corridor and she believes it should all be the same.
She assumed that the basic minimum is 100 ft. for one track and
that they would need some double tracks and ancillary things
along the way. She said she didn't think the existing corridor is
going to work for future needs. She added:
If there is an EIS to do for the Railroad down there, I
was of the opinion that we could do the whole thing at
once and so when it comes to putting a transmission
line down, it'll be already done…
She said she didn't agree with Senator Taylor that it was that
much of a problem and in Fairbanks ARRC is working with federal
money to make separated grade crossings over 46 different at-
grade crossings. She noted, "The goal is to have separated grade
crossings, not at-grade crossings."
SENATOR LINCOLN commented the bill provides for "at least" a 500
ft. corridor, but that is just a minimum. She asked if there was
a reason to have a minimum and no maximum.
REPRESENTATIVE JAMES replied there is a reason, that being the
corridor needs to be wider in some areas to allow for turning,
double tracks and other things a railroad needs, but those
locations can't be determined until a survey is done.
SENATOR LINCOLN asked what the maximum could be.
REPRESENTATIVE JAMES said she didn't think they could know that
until the survey is complete. She reiterated that nothing would
happen until the survey and monuments were actually done on the
ground and people knew what was required and where.
SENATOR ELTON said the bill proposes that ARRC can identify a
corridor (page 2, lines 18 to 23) in accordance with cited
statutes and convey state land within the railroad utility
corridor. He asked who will negotiate if there are prior claims
on that land, whether they be mineral claims or farm leases.
REPRESENTATIVE JAMES replied that it is her understanding that if
DNR were to transfer any land to anyone for any reason, it would
have to identify the existing rights, whatever they happen to be.
Generally, if a piece of property that has existing rights on it
is purchased, you either make an agreement of compensation or
provide satisfaction or you accept the land with the existing
rights. She assumed this transfer would be handled in the same
way, but it needs to be clearer in the statute.
SENATOR ELTON said he understood then that it wouldn't be up to
DNR. It would be up to ARRC to extinguish those previous existing
rights that might conflict with ARRC's use and ARRC would incur
any costs associated with extinguishing those rights.
REPRESENTATIVE JAMES responded that she thought that is how it
would work.
SENATOR TAYLOR asked what was meant by "associated rail land" on
line 17 and in several other places.
REPRESENTATIVE JAMES said she understood that to mean sites and
other kinds of facilities along the line, including passenger and
freight stations.
SENATOR TAYLOR asked if they would be outside the corridor.
REPRESENTATIVE JAMES said she thought it would be part of the
corridor.
SENATOR TAYLOR asked if there was a definition of "associated
rail land" and whether it could go beyond the intended 500 ft. He
wondered if "associated rail land" meant lands beyond 500 ft.
REPRESENTATIVE JAMES replied that they can't specifically
describe what they need until the legislature authorizes the on-
the-ground survey.
CHAIRMAN TORGERSON said he thought that is the reason the
legislature wants to review the findings. He said he would set
the bill aside and work with the sponsor to resolve some of the
issues.
SENATOR LINCOLN asked if DNR would testify today.
MR. BILL BRITT, Gas Pipeline Coordinator, said that a majority of
DNR's concerns had already been identified. He explained:
First, there is likely to be some overlap between the
railroad corridor and the gas pipeline right-of-way as
has been indicated. Any gas pipeline right-of-way lands
transfers the railroad would stake [indisc.]
authorization, construction, operation, maintenance and
[indisc.] of the gas pipeline. The transfer would also
reduce the lease payment and may also affect the
tariff… This is not an abstract concern, given that the
railroad [indisc.] about 10 times what the state does
for fiber optics right-of-way.
Having the contract returned for review should be considered so
that other state interests can be identified. The bill should
also make conveyance subject to third party interests, a concern
that Senator Elton brought up. The state's mineral rights need to
be protected as well and the transfer should be made subject to
AS 38.05.125. The bill does not protect public use and access
within and across the corridor. At a minimum, the bill should
make the transfer subject to AS 38.05.127, retaining access along
navigable waterways. He suggested the committee might want to do
more. The bill also needs to clarify who will bear the expense
associated with the conveyance and there doesn't appear to be an
upper limit on the amount of land that can be conveyed.
CHAIRMAN TORGERSON asked him the difference between AS 38.05.125
and AS 38.05.035.
MR. DICK MYLIUS, Director, Division of Mining, Land and Water,
Department of Natural Resources (DNR), answered that AS 38.05.125
is language DNR uses when conveying land out of state ownership
while it retains the mineral rights.
CHAIRMAN TORGERSON asked if he agreed that AS 42.43.070 transfers
mineral rights.
MR. MYLIUS said that is DNR's understanding of it.
SENATOR ELTON noted that the only fiscal note in the packet
affects DCED and was written by the staff to the Senate
Transportation Committee. He thought DNR should prepare one also.
SENATOR TAYLOR asked if ARRC's purpose could not be just as well
provided for with an easement within a declared utility corridor
that was retained and owned by the state.
MR. JIM KUBITZ, Alaska Railroad Corporation, replied that depends
on what you want to accomplish. ARRC hopes this business will be
profitable or it may need to do other things on the land until it
is. He also explained that every once in a while you have to turn
a train around and that can't be done in a 500 ft. corridor. So,
every fifty miles or so ARRC will need a bigger piece of land on
which to do that.
SENATOR TAYLOR asked if that could also be accomplished by an
easement.
MR. KUBITZ said it could probably be accomplished by an exclusive
easement.
SENATOR TAYLOR said he wanted ARRC to stay in the railroad
business. He maintained, "I don't intend to give you I don't how
many thousand acres of land and resources and mineral rights so
you can go into the oil drilling business or go into the land
selling business or the land leasing business…"
MS. PHYLLIS JOHNSON, general counsel to the Alaska Railroad
Corporation, added:
From the Railroad's perspective, certainly we don't
have to have full fee title. It's an administrative
convenience to treat all the land we're involved with
the same way, but we can certainly differentiate. What
we would need to be especially careful about, though,
is in crafting or defining the language that creates
this easement interest, even if we don't say exclusive
- because I know that raised a few eyebrows just a
second ago when Jim said exclusive - we feel the need
to be able to have a very strong say about other
activities. Again, we get back to the safety sort of
angle of things. So, even if we have an easement, we
would need to be careful about how we define it so the
Railroad can protect both itself and the public and the
environment and all the interests there from those kind
of peculiar railroad hazards that goes along with the
kind of business we're in…You can call it an easement
or a duck as long as we're able to protect those
important public interests.
CHAIRMAN TORGERSON asked why the legislature would want to give
ARRC authority to own land or interest in Canada. He asked if it
is an important provision.
MR. KUBITZ replied that all ARRC is after is to be able to
control its corridor and right-of-way for its own reasons.
MS. JOHNSON asked them to envision the border and the interchange
with other rail lines and other activities; ARRC would need a
fairly spread out area to work in there. ARRC envisions buying a
little additional land to make it work out right at the border.
CHAIRMAN TORGERSON said they would work on language with them.
SENATOR TAYLOR asked if she could draft a paragraph indicating
what the essential elements are of an easement providing for a
priority of use by the railroad, but not an exclusive use.
MS. JOHNSON said she could take a stab at it and use the Federal
Transfer Act as her guide, because that would cover the most
important interests that need to be protected.
CHAIRMAN TORGERSON said they would hold this bill for further
work.
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