Legislature(1997 - 1998)
03/11/1998 08:25 AM Senate FIN
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CS FOR SENATE BILL NO. 180(RES)
"An Act relating to state rights-of-way."
BRETT HUBER, staff to Senator Halford, the prime sponsor of
the bill, came to the table to testify. He explained the
RS2744 rights-of-way had been a long-standing issue and was
complex. He offered to address his comments to first, give
a brief history of the issue then give a brief overview of
previous action and then address the bill before the
committee.
Mr. Huber said, "RS2477 was a right granted to the states
by the US Congress with the passage of the Mining Act of
1866. The purpose of the law was to provide for and to
guarantee the public's right to establish access across
federal land. Subsequent congressional action and more
that 100 years of case law recognize the state's authority
to determine and define RS2477 rights-of-way. Although
Congress repealed RS2477 in 1976 when they adopted the
Federal Land Policy and Management Act, they specifically
acknowledged the legal existence of previous RS2477 rights-
of-way that were established prior to the repeal. Current
federal regulation explicitly provides that any rights
conferred by the RS2477 grant shall not be diminished."
He continued, "Mr. Chairman as you are aware, this
important state's rights issue has received legislative
attention in the past. Beginning with appropriations in
1992 and 1993, which funded the research and compilation of
the historical information regarding the rights-of way.
The Legislature has taken the lead in moving the issue
forward. In undertaking the legislatively designated
projects, the Department of Natural Resources has reviewed
some 117 potential RS2477 routes. The review resulted in
them coming up with 582 routes they believed were accepted
prior to the extinguishment of RS2477 grant process and
that they have enough research and documentation to
support."
"Last year the Legislature passed SJR 13. That was a
resolution that reiterated the position regarding RS2477,
and it made clear the objection of the Department of the
Interior's proposed policy last year. Basically changing
the entire playing field on how RS2477's are defined. You
should have a copy of the policy memo from Secretary
Babbitt in your packet. Information that came forward
during that process and also during the joint oversight
hearing last year with the House and Senate Resource
Committees resulted in SB 180."
"SB 180 codifies 582 documented rights-of-way, requires
them to be recorded, and provides a process for, and
limitations on their vacation as well as setting out
liability limitation for the state. While the RS2477
rights-of-way codifies in this bill have already been
accepted by public use and deemed supportable by the state,
it is likely the federal government will dispute the
state's ownership on some or perhaps all of these routes."
"Although the current federal administration is attempting
to limit the state's rights regarding RS2477, over 100
years of case-law on point recognizes stated law as
controlling on the issue. We feel that by codifying these
routes in statutes will strengthen the state's position for
possible subsequent court action and provide the affected
landowners and general public clear notification that these
RS2477 rights-of-way are out there and available for use."
"Mr. Chairman RS2477 rights-of-way are an existing state
right. This bill doesn't make any new rights, it just
asserts those rights statutorily."
This concluded Mr. Huber's presentation on the bill.
Senator Phillips referred to the numbers assigned to the
trails. He noticed they were not in sequence and wondered
if there was a reason for that. Where there other trails
that were not considered for this legislation, he asked.
Mr. Huber explained the numbers were the RST numbers from
the Historic Trails Atlas. DNR actually started with about
1800 routes as possibly qualifying. They brought 582
forward that were included in the bill. The reason all the
RST numbers were not listed; was because they didn't all
qualify for designation under RS2477, he said.
Senator Phillips looked for the Iditarod Trail on the list.
Mr. Huber conceded that he had not memorized all the trails
included, but guessed that the Iditarod Trail was included.
Senator Adams had a question about easements. He wanted to
know what size of easement was proposed in the bill. He
said that many of the trails in his area were very small
dog trails in nature. Mr. Huber said he and Senator
Halford shared that concern and had decided to address the
whole scope and management aspect in this legislation and
not address the easement portion at this time. He
explained that the department had a regulatory process that
could be applied later. DNR, when it had been accepting an
RS2477, had been asserting them at a 100-foot easement
width, he noted. This bill did nothing to require a
specific easement width, a specific scope or a specific
use. The sponsor believed that individual trails would
probably need individual decisions. He gave examples,
saying that, some of the trails were dog sled routes, some
trails led to burial grounds located one hill away from the
village.
Senator Adams clarified that the decision would be left up
to the department to make the width determinations. Mr.
Huber affirmed that. He suggested there would be another
possibility where a court would make a specific width
determination if there were subsequent court action.
Senator Adams told the committee had an amendment to offer
and he spoke to that amendment. He said he felt that
basically the Legislature needed to require the department
to survey the rights-of-ways before they were recorded. He
asked the sponsor's opinion of the amendment. Mr. Huber
responded, thanking the senator for prior notification of
the amendment. In his opinion however, of the 588 trails
listed in the bill, not all had potential conflicts. Some
crossed state lands only, some crossed federal lands only;
some crossed a mix of state, federal, Native corporations'
lands. To go out and survey all 582 trails would be a
tremendous project. It would be difficult to prioritize.
He anticipated the priority to be set when an affected
landowner had a dispute. The bill included a process the
landowner could follow to work with the department to
vacate a portion of the route if an alternate was
established. The other option the landowner had would be
to take the case to court and have the judge make a clear
determination. Mr. Huber summarized that when a conflict
came up; DNR would do a survey.
Senator Adams asked if there was a timeline for
implementation of this legislation. Mr. Huber replied the
only time limit in the bill required the recording of these
routes no later than January 1, 1999. He continued saying
it was important to note that the routes listed in the bill
were not the only RS2477 that existed. Others could be
added, and the bill also directed DNR to continue its
efforts to identify new routes.
The committee then invited JANE ANGVIK to testify on behalf
of DNR. She showed the committee a map showing the routes
referred to in this legislation. She noted that the RS2477
routes were identified on the map. She spoke of the
research the department did in determining which routes
qualified.
She spoke to a problem the department had with this bill.
She said, that while the map had lines depicting the
trails, the department did not know exactly where the
trails were on the ground. While the department completely
supported the effort of the sponsor to assert ownership of
the trails, she felt that if DNR recorded the trail
locations today, they would unduly cast shadows on title.
The problem was not with determining ownership on state or
federal lands, the question would be with private lands,
she warned.
Senator Phillips asked for a copy of the map. Ms. Angvik
gave him the map she had and told the committee she would
provide additional copies for each member.
Ms. Angvik said the map was a product of the capital
improvement project the Legislature funded three years ago,
which provided the department with the funding to actually
do the research and do the historical identification.
There were over 1000 routes that were originally proposed.
This legislation represented those ...(tape unintelligible
due to paper-shuffling of the map in question.)
Ms. Angvik explained the steps the department had taken to
certify the routes. She mentioned public participation.
She said they had only done the certification process on 11
of the trails in question, and of that they had taken one
to court with respect to ownership of the federal
government. She spoke to the importance of letting the
public know of the trails' existence.
She said DNR had concerns about actually recording the
routes before their location had been actually identified
on the land. Therefore, she said the department supported
Senator Adam's amendment requiring the trails be surveyed
before they were actually recorded. That would give proof
positive of the location. The downside, she admitted would
be the expense and the fiscal note would be large. She
gave the committee an estimate of the cost to survey just
the 11 trails that had already been certified. (This
amount was in written form, and not stated on the audio
record.)
Senator Parnell speculated there were a lot of private
property owners who would love to have the state pay for
surveys. If the title was already clouded by assertion of
the rights, and if someone wanted to transfer or use
property, whether the trails were recorded or not, the
individual would have to file an "Action to Quiet Title" or
pay for a survey. Therefore, he agreed with Mr. Huber and
felt that to require a survey before recording would not
accomplish anything.
Ms. Angvik agreed that they believed that the right-of-way
existed and was out there somewhere. What DNR was
concerned about was asserting that ownership without
knowing exactly where it was. She would not anticipate
doing surveys strictly for private interests. What they
would be doing would be finding a centerline of the state's
own easements. She used a possible example, "There's a
road going through your land, and we would like to let you
know exactly where it is. Right now we don't know exactly
where it is. What that does is make if difficult for
people to know. They can say, 'OK, I've got an encumbrance
on my land, but you can't even tell me if it goes through
the middle of my house or not.'"
Senator Parnell said that would take years and suggested it
would be better to put them on notice now and then start
working the survey process. Ms. Angvik responded that
there was no question that the state should tell the public
if there was an easement on their land. However, generally
speaking, the RS2477 question was cast as the federal
government versus the State Of Alaska. It was the State Of
Alaska trying to provide access the conservation districts
that were created as a result of ANILCA. The big fight was
with the federal government.
Senator Phillips referred to the identification of historic
trails, which he surmised this legislation was all about,
and asked how the identification was arrived. He noted
that during the Gold Rush there had been another trail
north of Yakutat that miners used that was not marked on
the map. He saw the trail marked on the Canadian side of
the border.
Ms. Angvik responded that the original design of the RS2477
law was to allow people to get from point A to point B, on
their way to someplace else. The requirement for the trial
designation was that some government somewhere needed to
have stated that the trail was real. In the case of
Alaska, the government entity was often the Territorial
Highways. There may be many trails that exist, but there
was never a time when a government indicated such for that
trail, she said. When the division reviewed the historical
records, they looked at not only if the trail had been
used, but also whether there was any government
acknowledgement of the trail.
Mr. Huber interjected that his understanding that no
government action was required to create an RD2477 route.
They could be accepted by public use so long as that use
pre-dated the extinguishment of the act in 1976. Pre-dated
public use constituted acceptance. He noted there was a
lot of case law to support that.
Senator Pearce asked why a route such as the Copper River
Railroad did not appear as a historic transportation route.
Co-Chair Sharp answered that was because the route was
already an existing right-of-way that has been established.
Ms. Angvik added that many routes are actively managed by a
government or, as in the case of the railroad, by the
railroad entity.
Senator Pearce pointed out many other trails the government
manages that were in fact included in the designation. Ms.
Angvik responded the trails included a historical record
that indicated they could be provable, with respect that
they exist and there are entities that recognize that they
exist. Senator Pearce asked if the railroad didn't exist.
Senator Phillips commented (undecipherable).
Senator Phillips questioned how the division arrived at
"historical trails". Ms. Angvik replied that the
definition was established both in the federal law and in
regulations that had been adopted. One way to demonstrate
qualification, is by going through records of government
use and individual use that had been provided. In cases
such as the Copper River Railroad, the route had been
established but is not an RS2477 under the terms of this
law. It exists as a separate easement that already exists.
Mr. Huber pointed out that it was important to remember
that this exercise of establishing these rights-of-way was
not to show all state rights-of way, but to identify these
historic rights-of-ways that were accepted by public use
that aren't already a part of the state's right-of-way or
transportation system.
Co-Chair Sharp invited Senator Halford to join the
committee at the table if he so desired.
Senator Pearce said the reason she asked the question, was
because there was some dispute over the Copper River right-
of-way and who owned part of it. The original railway bed
is gone because it was over a glacier and the land it now
occupies belongs to one of the Native corporations, not to
the State Of Alaska. Mr. Huber told her that while he
didn't have a specific answer on this right-of-way, it was
certainly possible that is would apply under the portion of
the law that reads, "lands that are not already reserved."
If there was a federal reservation of that right-of-way
initially, that was not previous to public use, then it
would not be acceptable by public use because it was
already reserved ground. He qualified by saying that was a
possibility, but he didn't know the particulars on the
Copper River corridor.
Senator Parnell wanted to know if there was any more public
testimony to be heard on this bill. Co-Chair Sharp said
there was one more person signed up. Senator Adams
indicated that he needed to leave for another meeting and
requested the committee take up his amendment first. Co-
Chair Sharp granted the request stating that the public
testimony left to be heard probably wouldn't be affected by
the passage or failure of the amendment.
Senator Adams moved to adopt Amendment #2. Senator
Torgerson objected. Senator Adams spoke to the amendment.
He acknowledged the enormous cost of implementing the
provision of the amendment, which would require all of the
surveys done prior to recording. He still felt it was a
necessary issue. Co-Chair Sharp asked for roll call on the
amendment. The amendment failed 1-5 (Senator Adams, yea.)
Senator Torgerson moved to adopt Amendment #1, a technical
amendment. Mr. Huber spoke to the amendment, which would
add 20 additional routes to the original 182 routes listed
in the Resources Committee version of the bill. Those
routes had been supplied to the sponsor by DNR as routes
researched and documented to a level the department was
comfortable with their validity.
Senator Torgerson had a question on Page 22 Line 13;
changing the word "shall" to "may" and asked for
explanation. Mr. Huber responded that the change was
purely a drafter recommendation. It would not change what
the bill was trying to do. There was some discussion as to
the meanings of "shall" and "may".
There were no objections and Amendment #2 was adopted.
Co-Chair Sharp called PAM LA BOLLE to testify. The Alaska
State Chamber of Commerce supported the research and
mapping of RS2477 rights-of-way on federal lands and the
state's assertion of those rights on federal lands, she
told the committee. However, they had concerns about the
private property issue and urged the committee give careful
consideration. Another concern dealt with liability. She
said her group supported the state's efforts to assert its
rights and do the mapping.
There were no questions by committee members. There was no
other public testimony. Senator Halford was asked if he
had anything more to offer.
Co-Chair Sharp had one more question of Ms. Angvik about
the fiscal note. He wondered if the documents' existence
on magnetic form might excellorate the process at a lower
cost that the fiscal note quoted. He pointed out the 3200
man-hours needed for copying paper files. Ms. Angvik
replied that unfortunately the Recorder's Office had no
capacity to receive electronic files. DNR would happily
give them a disk, but the process of recording had
stringent requirements. Paper size must be exact. The
department is even facing challenges of how to submit the
maps themselves since they cannot be larger than legal
size.
Co-Chair Sharp voiced his opinion that the state should at
least assert its rights over routes that had been
documented and proven. He felt that to do any less would
do more harm to private citizens that might be purchasing
or acquiring land. Those people should be put on notice
that there may be an RS2477 right-of-way on their land.
Without that information on file, it would be nearly
impossible for them to be aware of the encumbrance. If
surveying needs to be done later, then that could be a
focus.
Senator Pearce moved Senate Finance Committee Substitute
for SB 180 with individual recommendations and appropriate
fiscal note. There were no objections and the bill moved
out of committee.
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