Legislature(1997 - 1998)
02/20/1997 01:07 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HJR 20 - OPPOSE DEPT. OF INTERIOR RS 2477 POLICY TAPE 97-17, SIDE A Number 0001 CO-CHAIRMAN OGAN provided the sponsor statement for the next order of business, House Joint Resolution No. 20, relating to RS 2477 rights-of-way. He explained, "Revised Statute 2477 was a right granted to the states in the United States Congress with the passage of the mining act in 1866. Subsequent congressional action, and more than 100 years of case law, has recognized the state's authority to determine and define RS 2477 rights-of-way." CO-CHAIRMAN OGAN noted that Congress had repealed RS 2477 in 1976. However, they specifically acknowledged the legal existence of RS 2477 rights-of-way established prior to the repeal. On January 22, 1977, Secretary of the Interior Bruce Babbitt issued an interim departmental policy which contained bureaucratic roadblocks and created new definitions, including language relating to existing highways. CO-CHAIRMAN OGAN concluded, "RS 2477 rights-of-way are critical to the future of our young state. We do not have the transportation corridors that other states have, and the one-size-fits-all mentality of, sometimes, our friends in the administration in Washington, D.C., doesn't necessarily work for us. Therefore, I have introduced this resolution." Number 0214 REPRESENTATIVE BARNES offered an amendment, provided by Co-Chairman Ogan, and asked unanimous consent. The amendment read: Page 3, line 29, following "the": Insert "Honorable William Clinton, President of the United States of America; and to the Honorable Bruce Babbitt, Secretary of the Interior; and to the" CO-CHAIRMAN OGAN asked if there was an objection. There being none, the amendment was adopted. Number 0264 JODY KENNEDY, Volunteer, Alaska Environmental Lobby (AEL), referred to her written testimony and pointed out that references to SJR 13 should read HJR 20. Ms. Kennedy said, "This resolution and Secretary of the Interior Babbitt's newly-stated policy for administering RS 2477 claims continue to fuel the controversy over this 120-year-old statute. The Alaska Environmental Lobby represents 22 environmental organizations and over 10,000 Alaskans, The lobby strongly opposes HJR 20 for the following reasons: "RS 2477 rights-of-way are no panacea for the perceived inadequacy of the state's road system. Supporters of HJR 20 are misleading the public when they claim that these rights-of-way are the answer to public access across federal lands. The routes of primitive trails and dirt roads alleged to be RS 2477 rights-of-way are inadequate for modern highway alignments even if the courts were ultimately to determine that these rights-of-way could be used for modern highways. "An attempt to secure RS 2477 routes by the state will engender intense controversy and impose staggering litigation costs on private property owners, homesteaders, allotment owners, mining claim owners and Native landowners who will need to defend their private property rights against the state's claims that they likely have no idea exist. If HJR 20 is adopted and the Knowles Administration follows through on its instructions, Alaska will go to war with thousands of its own citizens. "State acquisition of these rights-of-way through national conservation systems and across millions of acres of Native and other private lands will lead to a multitude of undesirable impacts, such as destruction of fish and wildlife habitat, disturbance of wildlife and other quiet users, increased hunting pressure in competition with rural residents, poaching and off-road vehicle trespassing. "The state has other avenues it can pursue to obtain rights-of-way across much of the federal land in Alaska, such as ANILCA's Title XI provisions for establishing transportation corridors. These alternative approaches for the state to establish rights-of-way are far less contentious than asserting RS 2477 claims and provide opportunity to obtain the necessary alignments needed for construction for a modern road or highway. "The Alaska Legislature's posturing on this issue, with its overtones and undercurrents of Sagebrush Rebellion and Wise Use rhetoric, is clearly another example of state's rights sword- rattling. By embracing the Utah county approach for `exert your rights first, get asked questions later,' the legislature is promoting an approach that is [the] antithesis of reasoned statesmanship. "The Alaska Environmental Lobby urges the promoters of HJR 20 to call off their declaration of war on thousands of fellow Alaskans. State-federal discourse and negotiation is needed, not a quick-fix scheme costing state and landowners staggering sums of money and time. Should this misguided resolution pass, AEL urges the Governor to ignore it in favor of calm and rational discussions with the Department of Interior on how Title XI can be implemented in the best interests of Alaska and the nation." Number 0642 CRAIG PUDDICOMBE testified via teleconference from Mat-Su, saying he and Jack Dunham are plaintiffs in an ongoing quiet-title lawsuit related to RS 2477. Although at first it was a claim of adverse possession, it became an RS 2477 issue after defendants failed on adverse possession. There had been seven years of court proceedings. They believed because theirs was the only active RS 2477 case, they were becoming a test case for the State of Alaska. MR. PUDDICOMBE referred to the Joint Senate/House Resources Committees overview of RS 2477 on February 2, 1997. He believed it was inappropriate for Doug Blankenship, the defendants' attorney, to testify about the plaintiffs' case at that meeting and for Attorney General Bruce Botelho to say that the State of Alaska had filed an amicus of significant contribution in the case. Number 0723 MR. PUDDICOMBE said the "pro" of RS 2477 is to access land, whereas the "con" is that with the different types of land in Alaska, there will be different RS 2477s. First, there were RS 2477s concerning federal lands. He thought it was naive for the state to believe the federal government would not want a say concerning RS 2477s on federal land. He foresaw costly litigation relating to these. MR. PUDDICOMBE said second, RS 2477s asserted on state land would also not be settled without costs and litigations because of the different user groups. Third were RS 2477s to be asserted on private property, of particular concern, for example, to a private property owner who thought he owned his land because no easements were reserved in the patent or the deed. MR. PUDDICOMBE cited his own case as an example. It involved a five-acre parcel surrounded by thousands of acres of state land, which contained other access routes to the area in question. A state decision from a two-year study by the Department of Natural Resources (DNR) had found no RS 2477s on his property. That was appealed, and the lower court's decision was reversed. However, there was no reference to the State of Alaska decision, he said. "Because of the Supreme Court's decision, the same assistant attorney general that was involved extensively in the state's decision also (indisc.) not appealed by him - not appealable by him - now is asking the court for a 100-foot right-of-way through our property," he said. "This is just one case. Think about the ones to come." MR. PUDDICOMBE said fourth, RS 2477s will be asserted on Native lands, which basically are the same as private property. Fifth, RS 2477s will be asserted on federal and state parks, military installations, borough and city land and possibly game refuges. He said, "2477 as defined as a right-of-way for the construction of highways over public lands, not reserved for public use, is hereby granted - about as broad as it gets." He suggested every 18-inch game trail followed by humans for hunting, fishing, mining, hiking, and so forth would be included. CO-CHAIRMAN OGAN asked Mr. Puddicombe to summarize because of time constraints. He noted that testimony provided in writing would be included in the record and made available to members on the floor. Number 0980 MR. PUDDICOMBE suggested appropriate parts of that last statement be included in RS 2477 regulations concerning private property. He stated, "It was and is very irresponsible for the State of Alaska not to note all easements, including 2477s, on the deed at the time of patent. The State of Alaska should advertise for 2477s on all land that is to become private property. If one exists, then record it as such. If not, don't. If the State of Alaska can come forward at any time after a patent is issued and assert a 2477, then there is no property that is sacred and no reason why a person would want to own so-called private property. Without a 2477 easement recorded, your title insurance is useless. ... You have wasted thousands of dollars on worthless property or thousands more proving there isn't one." Number 1047 CO-CHAIRMAN OGAN noted that RS 2477 rights-of-way have been identified. He said there is public record of those, although he did not know whether it was all recorded, which may be part of the problem. "But we're working on that," he added. Number 1086 CO-CHAIRMAN OGAN advised that Jane Angvik from DNR was available on teleconference. Number 1111 REPRESENTATIVE GREEN referred to a 1995 report of the Natural Resources Policy Transition Team, provided shortly after the new administration came into office. The report said, under transportation, that one suggestion was to develop consensus among all affected groups to assert or vacate RS 2477 rights-of-way, place limits on how RS 2477 rights-of-way may be used and managed, and then address all existing ANCSA claims. Representative Green stated concern that the term "or vacate" would imply they were really thinking about dropping this, despite what the committee had heard. He asked Ms. Angvik to address the DNR's current attitude. Number 1175 JANE ANGVIK, Director, Division of Land, Department of Natural Resources (DNR), testified via teleconference. Although not familiar with that report, she believed the Administration was diligently trying to come up with management policies for RS 2477s. She explained, "As you're well aware, we have existing regulations that govern rights-of-way. You're asking me if they're still interested in vacating, and I'd say that we're still trying to figure out how to do the assertions. And that would occur long before anybody would vacate any of these." Ms. Angvik said as far as procedure, the Attorney General's office, the Department of Transportation and the DNR were trying to work out any regulatory changes that they would propose for the management of RS 2477s after they were asserted and successfully asserted in the courts. Number 1253 REPRESENTATIVE GREEN expressed concern that they were still trying to assert the RS 2477 issue, after which they would address vacating it or, if not that, place limitations on it. He reminded the committee of the extreme difficultly in getting the TAPS pipeline rights-of-way needed to go across federal lands. "And that's our umbilical cord to survival," he said. "Can you imagine a mere thing like a road or an accessibility?" He said he had heard Ms. Angvik say the DNR was not yet sure yet where they were. "And to me, that's scary," he said. Number 1304 REPRESENTATIVE BARNES said, "I would like to think that this Administration, if they got it in their head to vacate right-of- ways, that they would certainly come before this legislature to discuss their intent so we could take appropriate action, because I believe that there would be an appropriate remedy whereby we could stop them from doing such a thing. And I cannot imagine, in my wildest dream, that ... this transition report that they have, that it is something that they would consider doing as something that would be looked upon feasibly or looked upon well by the Alaska public. And while there may be 10,000 people represented by the environmental organizations, I'd like to say that there's some 660,000 Alaskans, and I don't think many of them would like to see these right-of-ways vacated." Number 1361 MS. ANGVIK emphasized that the Administration was not advocating vacating any RS 2477s. She said vacations only occur when there is another, more favorable or beneficial route. The DNR was neither vacating nor proposing to vacate anything. Number 1380 CO-CHAIRMAN OGAN indicated he would like to discuss Mr. Puddicombe's case privately with Ms. Angvik. He asked Ms. Angvik whether she or the DNR supported HJR 20. Number 1401 MS. ANGVIK at first said she did not know. She said they were as outraged as the committee by the actions of Secretary of Interior Babbitt. They wholeheartedly supported, and had actively spoken out against, his actions on the promulgation of the new policy. Ms. Angvik concluded by stating support for the resolution. Number 1444 MR. NELSON ANGAPAK, Special Assistant - Lands, Alaska Federation of Natives (AFN), said the AFN believes Section 17(b) of the Alaska Native Claims Settlement Act (ANCSA) is the proper method of identifying access across ANCSA lands, not Title XI of ANILCA. A number of regions in the state had attempted to use Title XI for access to lands they wanted to develop. The cost was prohibitive and they do not see it as an answer to access onto private lands. As an author of Title XI, he knew its intent. Therefore, access into ANCSA lands should be through Section 17(b) of ANCSA. Number 1551 REPRESENTATIVE DYSON informed the committee of a possible conflict of interest because he owns land south of Denali with an easement across it. Although he would support HJR 20, he wished the easement were not there. Number 1556 REPRESENTATIVE BARNES made a motion to move HJR 20, as amended, with individual recommendations and a zero fiscal note. There being no objection, CSHJR 20(RES) moved from the House Resources Standing Committee.
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