03/30/2012 01:00 PM House RESOURCES

                  HJR 40-RS 2477 RIGHTS-OF-WAY                                                                              
                                                                                                                                
2:30:32 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.                                                                                                     
                                                                                                                                
2:31:06 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WES KELLER, Alaska  State Legislature, speaking as                                                               
the sponsor  of HJR 40, stated  that his staff, Jim  Pound, would                                                               
explain  the  changes  in   the  proposed  committee  substitute.                                                               
Additionally, Mr. Kent Sullivan, Department  of Law (DOL) is also                                                               
available to answer questions.                                                                                                  
                                                                                                                                
2:32:19 PM                                                                                                                    
                                                                                                                                
CO-CHAIR FEIGE  moved to adopt the  proposed committee substitute                                                               
(CS) for  HJR 40, Version  27-LS1407\M, Bullock, 3/29/12,  as the                                                               
working document.                                                                                                               
                                                                                                                                
CO-CHAIR SEATON objected for the purpose of discussion.                                                                         
                                                                                                                                
2:32:35 PM                                                                                                                    
                                                                                                                                
JIM  POUND,  Staff,  Representative   Wes  Keller,  Alaska  State                                                               
Legislature,  stated that  the  sponsor worked  with  DOL on  the                                                               
changes.   Some  of the  original language  referred to  language                                                               
related  to  the  state  of   Utah's  lawsuit  with  the  federal                                                               
government.   The sponsor proposed  the Alaska DOL would  file an                                                               
amicus  brief;  however, DOL  held  conversations  with the  Utah                                                               
official, who  preferred that Alaska  not do so.   Therefore, the                                                               
language relating  to the amicus  brief is dropped;  however, the                                                               
reference to the  Utah lawsuit remains.  He  highlighted that the                                                               
administration has been  very active in the  R.S. 2477 assertions                                                               
and the language  is slightly changed with  respect to commending                                                               
the governor.   He noted that  Malcolm Roberts has worked  on the                                                               
R.S. 2477  issue dating  back to  Senator Jack  Coghill's tenure.                                                               
He reiterated  Version M deleted  language regarding  the lawsuit                                                               
and inserts  that the state  will continue asserting  its efforts                                                               
to assert Alaska's R.S. 2477, which is supported by Utah.                                                                       
                                                                                                                                
MR. POUND  referred to page 3,  line 31, which adds  the language                                                               
such that it  would read as follows:  "...  that the Alaska State                                                               
Legislature  urges   the  governor  further  to   strengthen  the                                                               
resources  of the  state  for protecting  the  state's rights  by                                                               
continuing to  focus the  efforts of the  Department of  Law, the                                                               
Department  of  Natural Resources,  the  Department  of Fish  and                                                               
Game, and other  departments on defending the  state's rights and                                                               
powers with  regard to  access and  federalism issues;..."   This                                                               
would  address  the  federalism section  which  wasn't  necessary                                                               
since  the  possibility exists  that  it  would  add a  layer  of                                                               
bureaucracy over DOL  that is not needed.  At  the same time, the                                                               
Department  of  Environmental  Conservation (DEC)  has  sometimes                                                               
been  involved  in  this  type of  litigation.    Further,  other                                                               
departments  may be  involved with  asserting  state's rights  at                                                               
some point in  time and this additional language  would allow for                                                               
that to happen.                                                                                                                 
                                                                                                                                
2:37:06 PM                                                                                                                    
                                                                                                                                
CO-CHAIR SEATON referred to page 3,  line 29, " ... to strengthen                                                               
the resources  of the state  ...."   He asked whether  that means                                                               
the state would appropriate funds.                                                                                              
                                                                                                                                
MR. POUND  agreed that would  be the case  at some point,  but he                                                               
believes  that  currently sufficient  funds  exist  in DOL.    In                                                               
further  response to  Co-Chair Seaton,  Mr. Pound  responded that                                                               
should  the  governor  need  more funds,  he/she  would  need  to                                                               
approach the legislature and so  indicate the need to improve the                                                               
state's stance of federalism-type issues.                                                                                       
                                                                                                                                
2:37:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GARDNER referred  to page  2, lines  13-14, which                                                               
read  "WHEREAS R.S.  2477 rights-of-way  were established  in the                                                             
state  through use  or development  until  virtually all  federal                                                               
land in  the state  was withdrawn  in 1969;  and...."   She asked                                                               
whether that refers to Alaska.                                                                                                  
                                                                                                                                
MR.  POUND  replied   yes,  adding  that  is   when  the  federal                                                               
government  started taking  land from  the state  of Alaska.   In                                                               
further  response  to  Representative  Gardner,  he  offered  his                                                               
belief that  the land  was withdrawn  from development  for parks                                                               
and forest and withdrawn from being considered state land.                                                                      
                                                                                                                                
2:39:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MUNOZ suggested  that  resolutions normally  send                                                               
copies to  interested parties,  such as  the U.S.  Delegation and                                                               
members of Utah.                                                                                                                
                                                                                                                                
REPRESENTATIVE  KELLER  said he  considered  this  and asked  the                                                               
committee  for guidance  on whether  to  expand the  distribution                                                               
list, which would be fine.                                                                                                      
                                                                                                                                
2:40:17 PM                                                                                                                    
                                                                                                                                
MR.  POUND   explained  the  next  changes   are  repetitive  and                                                               
conforming  changes  through  the   title  and  resolution.    He                                                               
referred to  page 1,  lines 10-13,  which eliminate  the language                                                               
"federalism section," that is also  found on page 3, lines 23-27,                                                               
of  the original  version.    These changes  make  the title  and                                                               
resolution text same.                                                                                                           
                                                                                                                                
2:41:03 PM                                                                                                                    
                                                                                                                                
CO-CHAIR SEATON  referred to  page 4, line  1, and  asked whether                                                               
this addresses federalism issues or should be removed.                                                                          
                                                                                                                                
MR. POUND answered  that it should remain since it  refers to the                                                               
definition of federalism, but not a federalism section.                                                                         
                                                                                                                                
2:41:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  P. WILSON  asked  for clarification  of the  term                                                               
"federalism" and the R.S. 2477 plans.                                                                                           
                                                                                                                                
REPRESENTATIVE  KELLER  stated  that  the R.S.  2477  stands  for                                                               
Revised  Statute 2477  from  1866,  which is  one  year prior  to                                                               
Alaska's  purchase from  Russia.   The  Federal  Land Policy  and                                                               
Management  Act  retained Alaska's  rights  to  R.S. 2477  access                                                               
across federal  land.   He declared he  is passionate  about this                                                               
issue.   Although   R.S.   2477   is   specifically   recognized,                                                               
departments have taken  the stand that they  don't authorize them                                                               
unless there is  litigation and adjudication.   What has happened                                                               
is that  the current  and prior  attorney general  have supported                                                               
and encouraged the governor to  maintain Alaska's rights and Utah                                                               
is connected  since other Western states  share similar concerns.                                                               
He pointed out that 66 percent of Utah's land is federal.                                                                       
                                                                                                                                
2:44:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MUNOZ asked  for  clarification on  rights-of-way                                                               
and historically the reason they are so important.                                                                              
                                                                                                                                
REPRESENTATIVE KELLER deferred to DOL.                                                                                          
                                                                                                                                
2:44:37 PM                                                                                                                    
                                                                                                                                
CO-CHAIR SEATON  understood aggressively pursuing  the protection                                                               
of  R.S. 2477s;  however, he  said he  is troubled  with specific                                                               
language urging the governor and  the attorney general to support                                                               
litigation in Utah.   He commented they can decide  to do so, but                                                               
he was  unsure how  this resolves  the R.S.  2477.   He suggested                                                               
that  the legislature  would  have a  stronger  resolution if  it                                                               
worked  with the  governor and  the  Congressional Delegation  to                                                               
resolve  Alaska's   issues.    He   recapped  his   concern  over                                                               
addressing specific counties and another state.                                                                                 
                                                                                                                                
2:46:25 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   GARDNER  asked   the   reason  this   resolution                                                               
references the State of Utah.                                                                                                   
                                                                                                                                
MR.  POUND answered  that  Utah is  involved  because they're  on                                                               
point, and are already in court  and have won.  They have already                                                               
established  R.S. 2477  trails  and the  court  has upheld  their                                                               
assertion.  Although, he noted it  is on appeal in some counties.                                                               
The attorney  general has been  in contact with the  attorneys in                                                               
Utah.  He said, "Our money  is better spent if we start asserting                                                               
our R.S. 2477 and try to get litigation."                                                                                       
                                                                                                                                
2:48:22 PM                                                                                                                    
                                                                                                                                
KENT  SULLIVAN,  Assistant  Attorney General,  Natural  Resources                                                               
Section, Department of Law, stated  that R.S. 2477 is important -                                                               
the  federal law  of 1866  said that  anytime the  public created                                                               
trails over unreserved federal land  that created a public right-                                                               
of-way in  favor of the  state.   That statute continued  to 1976                                                               
when  it  was repealed  by  the  federal  repealed in  1976  upon                                                               
enactment of the Federal Land  Policy and Management Act (FLPMA),                                                               
but already  existing rights-of-way  were grandfathered  into the                                                               
law.   This is important  to states  with high amounts  of public                                                               
lands, which  has been how  roadways in many Western  states were                                                               
created.   In particular, in  Alaska with its recent  history, it                                                               
is  important since  Alaska  needs to  have  rights over  federal                                                               
land.   Today,  the federal  land  may have  been transferred  to                                                               
Native  Corporations, or  private landowners,  but if  the rights                                                               
were created earlier they still exist.                                                                                          
                                                                                                                                
2:50:40 PM                                                                                                                    
                                                                                                                                
MR. SULLIVAN referred to  Representative Gardner's question about                                                               
the significance  of 1969  and the  withdrawal of  federal lands.                                                               
In 1969  Public Land  Order [PLO  4582] took  all land  in Alaska                                                               
under  general federal  ownership,  withdrew  the remaining  land                                                               
under federal  ownership, and transferred it  to wildlife refuges                                                               
or  for state  or Native  Corporation selection,  as part  of the                                                               
Alaska National Interest Lands Conservation  Act (ANILCA) and the                                                               
Alaska Native Claims Settlement Act  (ANCSA) processes.  The last                                                               
of  general federal  land  came out  of ownership  in  1969.   He                                                               
explained  that when  the state  examines establishing  R.S. 2477                                                               
rights-of-way,  it has  to look  at roads  created prior  to 1969                                                               
because roads  created after  1969 do not  qualify for  R.S. 2477                                                               
rights-of-way.                                                                                                                  
                                                                                                                                
MR.   SULLIVAN,  regarding   Co-Chair  Seaton's   question  about                                                               
initiating litigation in Utah, noted  that DOL has worked closely                                                               
with the  sponsor on  HJR 40  and Version M.   The  department is                                                               
supportive of  Version M with  a minor  exception.  The  state of                                                               
Utah has related  that the best way  to help them is  not to file                                                               
an amicus  brief, but  for Alaska to  file similar  litigation in                                                               
Alaska.   Therefore,  on page  3, line  20, following  "Utah", he                                                               
suggested deleting "in a lawsuit  to enforce Utah's interests in"                                                               
and  replacing it  with  "concerning" and  on  line 22  following                                                               
"rights-of-way" inserting  "in this  state."   He said  that will                                                               
make clear what the  state is doing is to seek  to assist Utah in                                                               
its  R.S. 2477  efforts by  initiating litigation  in this  state                                                               
without  tying  it to  Utah's  litigation  or  leave it  open  to                                                               
whether Alaska  would be asked to  file an amicus brief  in their                                                               
litigation.   Save that one  minor issue, DOL is  very supportive                                                               
of all of the changes [embodied in Version M].                                                                                  
                                                                                                                                
2:54:38 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARDNER  surmised then that federal  land has some                                                               
specific   designation,  but   is  not   under  general   federal                                                               
ownership.                                                                                                                      
                                                                                                                                
MR. SULLIVAN answered yes.                                                                                                      
                                                                                                                                
2:55:03 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MUNOZ  related her  understanding that  the Alaska                                                               
legislature,  through statute,  has  identified  these R.S.  2477                                                               
rights-of-way,  but now  the federal  government  is saying  that                                                               
Alaska  does  not  have  a  legitimate  right  unless  the  state                                                               
litigates.                                                                                                                      
                                                                                                                                
MR.  SULLIVAN  responded  yes.     Basically,  the  federal  land                                                               
managers have  taken a policy -  due to actions the  Congress has                                                               
taken  -  that  the  federal government's  "hands  are  tied"  to                                                               
recognize  R.S.  2477s unless  a  court  of law  adjudicates  the                                                               
rights-of-way.  He  referred to language on page 4  of Version M,                                                               
which urges  the Congressional Delegation and/or  the Congress to                                                               
enact legislation  requiring federal  land managers to  develop a                                                               
policy  to  recognize R.S.  2477s  once  a  notice of  intent  to                                                               
litigate on  R.S. 2477 has been  filed and in instances  where it                                                               
is  a valid  and  existing  R.S. 2477.    Currently, the  federal                                                               
government does not have any policy in place to do so.                                                                          
                                                                                                                                
2:56:26 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MUNOZ stated that  Utah has successfully litigated                                                               
these rights-of-way.                                                                                                            
                                                                                                                                
MR. SULLIVAN  answered yes;  the state of  Utah is  at forefront.                                                               
He  said he  has read  all  of the  R.S. 2477  cases since  1866.                                                               
There are  approximately 50 of  these cases, of which  90 percent                                                               
were  from Utah.    Currently,  there are  three  cases filed  in                                                               
Alaska,  which have  been  settled, and  Utah  has several  dozen                                                               
cases actively  being litigated.   Furthermore, Utah is  ready to                                                               
embark on litigation  on 18,000 roads before the end  of May.  He                                                               
commented  that  Alaska  can  learn  from  Utah's  successes  and                                                               
failures.                                                                                                                       
                                                                                                                                
2:57:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MUNOZ inquired as to  how the Roadless Rule in the                                                               
Tongass National  Forest impacts  the R.S. 2477  rights-of-way in                                                               
Southeast Alaska.                                                                                                               
                                                                                                                                
MR. SULLIVAN related  that he has worked with  DOL's attorney who                                                               
is  handling the  Roadless Rule.   He  related his  understanding                                                               
that  there   are  exceptions  within  the   Roadless  Rule  that                                                               
recognize  valid and  existing rights,  for instance,  R.S. 2477.                                                               
He did  not think  the U.S. Forest  Service Roadless  Rule policy                                                               
closes the  door; however, the  agency still maintains,  as other                                                               
federal agencies have  said, that they cannot  recognize the R.S.                                                               
2477 rights unless litigation occurs.                                                                                           
                                                                                                                                
2:59:03 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GARDNER said  it doesn't  make sense  to litigate                                                               
all  cases state-by-state  and road-by-road  to retain  R.S. 2477                                                               
rights-of-way.   She asked  whether it makes  sense to  lobby the                                                               
federal government  to enact legislation to  retain the pre-1969,                                                               
R.S. 2477 rights-of-way.                                                                                                        
                                                                                                                                
MR. SULLIVAN  said that makes  a lot  of sense, but  Alaskans all                                                               
know  that  things  can  seem  easier  to  accomplish  than  they                                                               
actually are.                                                                                                                   
                                                                                                                                
3:00:14 PM                                                                                                                    
                                                                                                                                
CO-CHAIR FEIGE  offered his belief  that the courts  don't render                                                               
decisions in many of the cases  that are litigated so there isn't                                                               
any case law.  Instead, the  federal court just runs the case out                                                               
until it is settled.                                                                                                            
                                                                                                                                
MR. SULLIVAN stated his agreement,  adding that 95 percent of the                                                               
cases are resolved through summary  judgment or settlement, short                                                               
of actual  trials.   However, there  is concern  that one  of the                                                               
motivations  by the  federal  government to  delay  or not  adopt                                                               
policies is  that witnesses  are people who  were alive  in 1969.                                                               
He related that Utah is  concerned that the federal government is                                                               
waiting and there won't be any  witnesses.  The longer they wait,                                                               
the  fewer  the  witnesses  and  the  more  difficult  it  is  to                                                               
prosecute.   Although it is  possible to litigate  without living                                                               
witnesses, it is much more difficult and challenging to do so.                                                                  
                                                                                                                                
3:02:06 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  SEATON  referred to  page  3,  lines 13-22,  and  asked                                                               
whether this  language gives the attorney  general full direction                                                               
in pursuing the state's interest.                                                                                               
                                                                                                                                
MR. SULLIVAN  referred to  the language on  page 3,  lines 19-22,                                                               
and  said with  slight changes  the language  is helpful  because                                                               
Utah requested  this approach  and both estimate  it is  the best                                                               
way of achieving it.                                                                                                            
                                                                                                                                
3:03:39 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  SEATON referred  to page  4,  line 1,  with respect  to                                                               
introducing federalism  issues.   He asked whether  this language                                                               
is  fully understandable  and doesn't  give the  attorney general                                                               
any problems.                                                                                                                   
                                                                                                                                
MR.  SULLIVAN  answered  that  is   not  problematic  from  DOL's                                                               
perspective.  The DOL's only  concern was to establish a separate                                                               
federalism  section.   Although  DOL is  handling federalism  and                                                               
access  issues currently  and has  been effective,  DOL wants  to                                                               
preserve  the status  quo.    He pointed  out  the  DOL is  still                                                               
working  on  federalism  issues   and  this  language  accurately                                                               
reflects this.                                                                                                                  
                                                                                                                                
3:04:53 PM                                                                                                                    
                                                                                                                                
CO-CHAIR SEATON removed his objection to Version M.                                                                             
                                                                                                                                
[There being no further objection, Version M was treated as                                                                     
adopted.]                                                                                                                       
                                                                                                                                
3:05:14 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MUNOZ offered to make an amendment.                                                                              
                                                                                                                                
CO-CHAIR SEATON said he preferred to have Legislative Legal                                                                     
Services prepare the amendment.                                                                                                 
                                                                                                                                
[HJR 40 was held over.]