03/26/2012 01:00 PM House RESOURCES

                  HJR 40-RS 2477 RIGHTS-OF-WAY                                                                              
                                                                                                                                
2:48:22 PM                                                                                                                    
                                                                                                                                
CO-CHAIR SEATON announced that the  final order of business would                                                               
be HOUSE  JOINT RESOLUTION  NO. 40,  Commending the  governor and                                                               
the  administration  for  aggressively  working  to  enforce  the                                                               
rights  of  the state  in  R.S.  2477 rights-of-way;  urging  the                                                               
governor and the  attorney general to develop  a working alliance                                                               
with  other western  states to  protect and  enforce the  states'                                                               
interests in  ensuring access  using rights-of-way  authorized by                                                               
R.S.  2477;  urging the  governor  and  the attorney  general  to                                                               
support the State of Utah and  the southern counties of Utah in a                                                               
lawsuit  against  the  federal government  concerning  R.S.  2477                                                               
rights-of-way,  including filing  an amicus  brief in  support of                                                               
Utah;  urging  the  governor  to   dedicate  state  resources  to                                                               
establish,  protect, and  enforce the  state's interests  in R.S.                                                               
2477 rights-of-way  and to  preserve state  rights-of-way against                                                               
encroachment by  the federal government;  urging the  governor to                                                               
reestablish a  federalism section  in the  Department of  Law and                                                               
sections  in   the  Department  of  Natural   Resources  and  the                                                               
Department of  Fish and Game  to support the preservation  of the                                                               
state's  rights  and powers  in  compact  cases; and  urging  the                                                               
governor  to   prepare  an  appropriation  request   to  fund  an                                                               
aggressive  effort by  the state  to resolve  issues relating  to                                                               
R.S. 2477  rights-of-way, including  possible litigation,  and to                                                               
continue to  work to preserve the  rights of the state  in regard                                                               
to R.S. 2477 rights-of-way.                                                                                                     
                                                                                                                                
2:48:37 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WES KELLER,  Alaska State  Legislature, began  by                                                               
explaining that R.S. 2477 stands  for Revised Statutes 2477 1866,                                                               
which  basically says  that [the  state] can  obtain right-of-way                                                               
across  federal  land because  the  federal  government wants  to                                                               
encourage development.  Representative  Keller specified that the                                                               
intent of  HJR 40 is to  commend the governor and  the Department                                                               
of Law (DOL)  for the progress made while  recognizing the things                                                               
that still  need to be done.   He highlighted that  there is time                                                               
sensitivity  with  R.S.  2477s   because  as  the  state's  older                                                               
citizens die, the information necessary  to verify the R.S. 2477s                                                               
is lost.                                                                                                                        
                                                                                                                                
2:50:46 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KAWASAKI  directed attention  to page 2,  line 14,                                                               
which  is a  "WHEREAS"  provision that  addresses  the number  of                                                               
rights-of-way already  in statute.   He noted that  Department of                                                               
Natural Resources (DNR) has identified  67 additional R.S. 2477s.                                                               
He then inquired as to how the R.S. 2477 process doesn't work.                                                                  
                                                                                                                                
REPRESENTATIVE KELLER  pointed out  that just  because rights-of-                                                               
way are  identified in statute  doesn't mean they  are recognized                                                               
by the U.S.  Department of Interior and the  U.S. Forest Service.                                                               
Therefore, the state  has to adjudicate.  He  then suggested that                                                               
the  state  needs  to  put more  resources  behind  the  existing                                                               
process  in  order  to have  accurate  records.    Representative                                                               
Keller  then recommended  that the  DOL  representative would  be                                                               
better to answer Representative Kawasaki's question.                                                                            
                                                                                                                                
2:52:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KAWASAKI inquired  how  much money  has been  put                                                               
toward this  issue so far.   He  recalled that the  committee was                                                               
told that up to $8 million  of general funds was attached to this                                                               
year's budget [for R.S. 2477s].                                                                                                 
                                                                                                                                
REPRESENTATIVE  KELLER stated  that  litigation and  adjudication                                                               
costs money.  The recent expansion  of the attorney is an example                                                               
of  the  funds   appropriate  in  the  past.     He  related  his                                                               
understanding that $600,000 has been set aside for R.S. 2477s.                                                                  
                                                                                                                                
2:53:23 PM                                                                                                                    
                                                                                                                                
KENT  SULLIVAN,  Assistant  Attorney General,  Natural  Resources                                                               
Section,  Civil Section  (Juneau),  Department of  Law, told  the                                                               
committee  that he  is the  attorney that  has been  assigned and                                                               
dedicated to the  R.S. 2477 issues.  Since his  hire in December,                                                               
he has attempted to revamp  the R.S. 2477 prosecution strategy in                                                               
order  to resolve  claims more  quickly and  push things  forward                                                               
more efficiently  than has occurred  in the  past.  To  that end,                                                               
Mr.  Sullivan and  a representative  from DNR  traveled to  Utah,                                                               
which  has aggressively  pursued R.S.  2477s, to  learn from  its                                                               
successes and failures.  In fact,  in the next three or so months                                                               
Utah  will  file  23  different  cases  on  approximately  18,000                                                               
separate R.S. 2477 plans.   Furthermore, Utah has had about 10-20                                                               
years of  experience in the  litigation of  R.S. 2477 plans.   He                                                               
said that the  trip to Utah has proven helpful.   For example, he                                                               
has  helped DOL  put together  a prosecution  strategy such  that                                                               
Alaska  will  put  forth  its best  cases  first  because  Alaska                                                               
doesn't have much precedent on  R.S. 2477s.  Therefore, it's very                                                               
important  in moving  forward that  Alaska  establish strong  and                                                               
favorable precedent  from the  beginning.  He  noted that  he has                                                               
identified such cases and is  seeking approval to move forward on                                                               
litigation now.   Furthermore, the intent is to  attempt a multi-                                                               
faceted  approach rather  than only  using litigation  to resolve                                                               
R.S.  2477 claims.    For instance,  he  is reviewing  confirming                                                               
public access rights  through Title 5 of the  Federal Land Policy                                                               
and Management Act  of 1976 (FLPMA).  Since the  passage of FLPMA                                                               
and R.S. 2477  has been repealed there has been  reluctance to do                                                               
that because  under FLPMA the rights-of-way  aren't perpetual and                                                               
could only  be granted for  25 years at  a time.   The department                                                               
also wants to  use the recordable disclaimer  of interest process                                                               
the state has  been using for navigable waterways.   Although the                                                               
Bureau of  Land Management  (BLM) has been  reluctant to  use the                                                               
aforementioned process  for R.S. 2477s  in the past, the  hope is                                                               
that the pressure  on the federal government in  Utah will result                                                               
in a repositioning  of that stance.  Mr.  Sullivan further stated                                                               
that DOL wants to review  having these rights-of-way confirmed by                                                               
the land  planning process of  the federal government,  which has                                                               
been successful in some cases in Utah.                                                                                          
                                                                                                                                
2:59:10 PM                                                                                                                    
                                                                                                                                
MR.  SULLIVAN  explained that  DOL  is  attempting to  supplement                                                               
DNR's  R.S. 2477  files.   When  the initial  set  of roads  were                                                               
identified and  codified by  the legislature  as R.S.  2477s, the                                                               
real  effort  was  identifying them  and  ensuring  that  certain                                                               
minimum  criteria were  met in  identifying them  as R.S.  2477s.                                                               
The focus wasn't  on what it would take to  prosecute a claim all                                                               
the way  through litigation.   He emphasized  that there's  a lot                                                               
that  goes into  a file  to successfully  prosecute something  in                                                               
court, and therefore  the files need to be supplemented.   One of                                                               
the  things  needed is  the  identity  of witnesses  and  witness                                                               
testimony.  These witnesses are  going to be individuals who have                                                               
knowledge  of use  and existence  of these  roads prior  to 1969.                                                               
Therefore,  there  needs  to  be  public  outreach  in  order  to                                                               
identify these  people and  place the  information in  the files.                                                               
Lastly, there needs  to be a process to lock-in  the testimony in                                                               
order  to use  it.   The  aforementioned can  be accomplished  by                                                               
petitioning the court to do pre-litigation depositions.                                                                         
                                                                                                                                
3:01:29 PM                                                                                                                    
                                                                                                                                
MR. SULLIVAN  then informed the  committee that DOL  is currently                                                               
involved  in R.S.  2477  litigation  in a  case  filed by  Ahtna,                                                               
Incorporated out  of Copper Center.   The case is in  state court                                                               
and  the  state hopes  to  achieve  promising  results.   As  was                                                               
mentioned earlier, DOL is  considering initiating litigation very                                                               
shortly in federal  court on some of the best  case examples that                                                               
have  been identified.   Mr.  Sullivan related  his understanding                                                               
that in  the past there was  a Statehood Defense Unit  within DOL                                                               
and that  unit existed as  a separate budgetary  component within                                                               
the department through fiscal year 2010.   At the time the agency                                                               
was subsumed within DOL, that  unit had five attorneys that dealt                                                               
with navigability,  R.S. 2477s,  the Endangered Species  Act, and                                                               
subsistence  program issues.   He  highlighted  that such  issues                                                               
were dealt with before the creation  of the unit as well as after                                                               
the creation of the unit.   Although the only difference was that                                                               
there  was  the identity  of  a  separate  unit within  DOL  that                                                               
received a  separate budgetary component, it  was discovered that                                                               
having   a  separate   unit  placed   constraints  in   terms  of                                                               
supervision and management  and wasn't the most  efficient use of                                                               
time.  Therefore, in fiscal year  2010 the unit was dissolved and                                                               
the  functions and  litigation is  being handled  by the  Natural                                                               
Resources Section  within DOL.   For example, his  position deals                                                               
with  state's rights  through  R.S. 2477s  and  there is  ongoing                                                               
litigation with regard to access  through navigable waters in the                                                               
national parks.                                                                                                                 
                                                                                                                                
3:04:47 PM                                                                                                                    
                                                                                                                                
CO-CHAIR SEATON  directed attention  to the  language on  page 3,                                                               
lines  22-24,   which  urges  the   governor  to   reestablish  a                                                               
federalism section  within DOL.   However,  he recalled  that Mr.                                                               
Sullivan said  that was determined  not to be the  most efficient                                                               
way to  do things.  Therefore,  he inquired as to  Mr. Sullivan's                                                               
thoughts.                                                                                                                       
                                                                                                                                
MR. SULLIVAN  said that DOL  is still  reviewing that it  and may                                                               
provide  comments on  that point  later.   He  clarified that  he                                                               
merely  wanted  to  provide  the   committee  with  some  history                                                               
regarding that particular component.                                                                                            
                                                                                                                                
CO-CHAIR SEATON then requested DOL's  comments on that section in                                                               
a  timely  manner  because  the  committee  wants  to  bring  the                                                               
resolution before it again soon.                                                                                                
                                                                                                                                
3:07:03 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MUNOZ suggested  that  that the  language in  the                                                               
"FURTHER RESOLVED"  located on  page 3,  lines 22-27,  be removed                                                             
and the resolution moved forward.                                                                                               
                                                                                                                                
3:07:33 PM                                                                                                                    
                                                                                                                                
CO-CHAIR SEATON pointed out that  this is an introductory hearing                                                               
of only  15 minutes.  He  reminded the committee that  he doesn't                                                               
intend to forward  the resolution today.  He  then suggested that                                                               
Representative  Munoz   could  work  with  the   sponsor  on  the                                                               
provision.  With that, HJR 40 was held over.