Legislature(2001 - 2002)
04/30/2002 01:36 PM Senate TRA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 362-VACATE RS2477 RIGHT OF WAY ON USS 5265
CHAIRMAN COWDERY announced SB 362 to be up for consideration.
MS. VICKI KINDSETH, staff to Senator Lyda Green, sponsor of SB
362, said the legislation was introduced to address the concerns
of Mr. Craig Puddicombe and his partner, Mr. Jack Dunham, about
the RS2477 right-of-way through their property on the Knik
Glacier Trail, USS 5265, Section 34, Township 16 North, Range 5
East, Seward Meridian. She explained:
Mr. Puddicombe came to our office after exhausting
efforts through DNR to accomplish a vacate process on
his property in the Mat-Su.
The Knik Glacier Trail begins in Palmer and ends at a
mining camp located approximately 3 miles up Metal
Creek and was used as a continuous route. However,
there is an existing RS2477 recognized by DNR for the
area since 1995 that does not go through USS 5265. The
intent of this bill is to vacate an RS2477 on private
property when there is already an existing established
RS2477 route for the area that provides access around
private property.
The vacation of rights-of-way is found in AS 19.30.410.
The vacate may be approved by the legislature.
CHAIRMAN COWDERY announced that they would hear the bill later in
the meeting when the teleconference difficulties were fixed.
SB 362-VACATE RS2477 RIGHT OF WAY ON USS 5265
CHAIRMAN COWDERY announced SB 362 to be up for consideration.
MR. CRAIG PUDDICOMBE, co-owner of property USS 5265, said he
asked Senator Green to sponsor this bill. [Indisc.] He read the
DNR decision regarding vacating the right-of-way and said, "This
has been a 12-year long battle for us for something that should
have never happened. This vacate is very important to us."
MR. MIKE CONNER said he was a defendant in this court case. He
said if this right-of-way is vacated, the state would be
transferring a public asset to a private interest. Second, even
though the state asked for jurisdiction at remand, the state's
request was confused by the court and he is not sure what
interest would be vacated, since it doesn't have lease or owner
jurisdiction over it. Finally, he said that he and others have
used the right-of-way for subsistence purposes for about 30
years. The land has long been classified since state ownership
for public recreation and mining, not private interest or as a
private preserve.
SENATOR TAYLOR asked him what he thought land was worth in that
area per acre.
MR. CONNER said he did not know.
SENATOR TAYLOR asked him if it was valuable land.
MR. CONNER responded that he hadn't checked the assessment, but
he thought it was about $5,000.
SENATOR TAYLOR asked if there are about 30,000 acres of state
owned land in that area.
MR. CONNER replied that there was about 250,000 square miles of
state land accessible by a single right-of-way.
SENATOR TAYLOR asked if he had an alternative route to get to his
subsistence activities.
MR. CONNER replied he did not and that no alternative route is
possible due to the nature of the country and the court made that
same determination.
SENATOR TAYLOR said he had a map that shows an alternative route
and asked him if he was familiar with that map.
MR. CONNER replied that they were just handed the bill with
nothing else attached to it.
CHAIRMAN COWDERY asked Mr. Puddicombe to speak to the alternative
route.
MR. PUDDICOMBE said DNR's final departmental decision, dated
1995, is the alternative access. That is the RS 2477 4D area. He
noted it was not "appealable" and dismissed by the courts. He
explained that there are now two of them; one was put on his
private property by the Supreme Court after the State of Alaska
made that final departmental decision. He asked members to read
DNR's decision.
SENATOR TAYLOR said he was looking at the map and he was
referring to the route labeled "alternate."
MR. PUDDICOMBE said the alternate route is the state's decision.
The other route clearly goes right through private property.
SENATOR TAYLOR asked how he acquired title to that property.
MR. PUDDICOMBE replied he acquired it from Mr. Doug Sumner.
SENATOR TAYLOR asked if he was the first person after patent.
MR. PUDDICOMBE replied that he was the patent person.
SENTOR TAYLOR asked if he got patent from the state or federal
government.
MR. PUDDICOMBE'S replied it was a federal patent that was deeded
to the state.
MR. PUDDICOMBE said:
What I'm trying to say here is if you look at the map
and you look three five-acre parcels surrounded by all
this state land, you've got an RS2477 right through the
center of it - a hundred foot right-of-way that does
not go anywhere. Are you still listening?…We already
have an established existing RS2477 for the area
determined by the administration of DNR in 1994…What me
and my co-owners are saying is why have two in the same
area - they are only 500 yards apart - when both of
them are equal, better and comparable to this whole 25
mile trail…that goes to the glacier. It also jogs off
and goes three or four miles to a mining claim…
SENATOR TAYLOR asked what position DNR has taken on this bill.
MR. LOEFFLER said he wanted to give members some background on
this.
We would like to give the background, the full
information so that you understand where our previous
decision came from, but we neither support nor oppose
this bill.
CHAIRMAN COWDERY asked for further public testimony.
MR. JAMES KRACKER said he could get 1,000 signatures against this
bill for them in a couple weeks. It would be against the public's
interest and his interests, as well. [Most of Mr. Kracker's
testimony was indiscernible.] He felt Mr. Puddicombe got what he
deserved.
MS. JOANNE FITZGERALD said she represented herself and the public
and acknowledged that she is involved in the Fitzgerald versus
Puddicombe court case. She noted that Mr. Puddicombe stated that
his file has a copy of the DNR's final determination, but he
didn't mention that in September 2000, DNR made a thorough review
that included public comments and the Commissioner denied the
request for vacation on this road. DNR determined that the
alternate does not provide safe access to the mining claim for
most of the public. The Supreme Court determined that the
alternative route was too dangerous for the public. The vacation
was also denied at the Mat-Su Borough level. There doesn't seem
to be any health or safety issues for this request and there
doesn't seem to be any reason to give up the right-of-way of the
public that would close off a major part of the Knik Glacier
trail and access for miners to their claims and subsistence
hunters.
MR. KEN FITZGERALD said there is a history of 80 or 90 years of
use on the trail and Mr. Puddicombe even admitted under oath that
he had used the trail prior to the purchase of the land.
CHAIRMAN COWDERY asked what the width of the trail.
MR. FITZGERALD replied that it is a 100 ft. right-of-way after
the Supreme Court decision. He added it is the only safe and
dependable route to the area.
CHAIRMAN COWDERY asked how they traverse this trail.
MR. FITZGERALD replied by snow machine, four-wheeler, or pickup
truck.
3:05 p.m.
SENATOR WARD asked Mr. Puddicombe if the trail was disclosed when
he purchased the property.
MR. PUDDICOMBE replied no, it was a private driveway at that
time.
SENATOR WARD asked how he got to the property.
MR. PUDDICOMBE replied by swamp buggy.
SENATOR WARD asked if he used the RS2477 trail.
MR. PUDDICOMBE replied that it wasn't an RS2477 then. He added,
"That happened in October of 1995."
SENATOR WARD asked when he purchased it.
MR. PUDDICOME replied in 1983. He said that none of the miners
appealed the state's decision. They were all going to live with
it. He said they were going to destroy his property when they
could have other access.
MR. KRACKER said he and DNR offered to get together to try to
take another right-of-way and Mr. Puddicombe refused any
settlement. The only one who is destroying property is Mr.
Puddicombe. The 100 ft. width is not by court order, but was
based on legislative action.
SENATOR TAYLOR said it looked to him like the reason they have
this bill before them is that Mr. Puddicombe needs to have the
bill passed to convey the right-of-way back to him and asked if
that was right.
MR. PUDDICOMBE asked to read the sponsor statement: "The intent
of the bill is to vacate an RS2477 on private property when there
is already an existing established RS2477 route for the area to
provide access around the private property."
TAPE 02-20, SIDE A
SENATOR TAYLOR asked him if he had to have the property vacated
to clear title to his property so it's not encumbered by a state
right-of-way.
MR. PUDDICOMBE replied that was correct. He has owned the land
for 53 years and DNR had done a very careful on-site
investigation.
SENATOR TAYLOR asked Mr. Loeffler why DNR did not
administratively vacate that RS2477 easement as provided by state
law.
MR. LOEFFLER replied:
In 2001, we went out to look at it with respect to
vacation. As you may know, the vacation standard is
three-fold - one vacated by the legislature, two if
requested by the municipality and with an alternate
route to provide reasonable access and the municipality
has requested it or three, our vacation standard is
there another - you may not vacate an RS2477 right-of-
way unless a reasonable and comparable established
alternative right-of-way on each tract does exist and
is sufficient to satisfy access in the reasonably
foreseeable future.
We went out there and determined that reasonably
foreseeable uses included [indisc.] mining vehicles,
recreation and things of that nature. When we looked at
the alternative trail and determined there were a
number of sections that were steep for mining
[indisc.].
They determined the alternative trail was too steep without
additional construction and did not meet the standards of AS
19.34.10.
SENATOR TAYLOR said he appreciated that explanation and said he
was one of the authors of that proviso that he just read through,
because they had encountered difficulties all over the state with
RS2477 rights-of-way suddenly appearing on people's land that
they were unaware of. He wanted to make certain there were good
alternatives available and to give the department the authority
to exercise some discretion in this regard. It sounds like DNR
exercised that discretion and with good reason.
SENATOR WARD said he hadn't been down this trail and asked why
they didn't just go around the property and not up the hill.
MR. LOEFFLER replied that the alternative route had been
established through many years of use.
SENATOR WARD asked if it was within his ability under current law
to establish an alternative route that goes behind the people's
property and not up the hill.
MR. LOEFFLER replied that it would take very little construction
to establish an alternative route that is suitable.
We do not have the money in our budget to go around
doing [this] for his RS2477 or for the many others that
have similar requests. With the expenditure of limited
funds we would be very happy to permit and flatten an
alternative route that would allow for a vacation by
Mr. Puddicombe.
SENATOR WARD asked how many feet they were talking about with the
parcels involved.
MR. LOEFFLER replied that it was roughly a half-mile trail.
SENATOR WARD said he thought it looked like he was talking about
less than 1000 ft. of trail in order to clear that lot.
MR. LOEFFLER said it looked like the least expensive alternative
construction would be to do some work in a few of the steep
spots.
SENATOR WARD said it seemed that something wasn't right, because
the alternative trail is very steep and it seems if they just
scooted around the outside of that one parcel, they would be
downhill, at least, and not going up the mountain.
MR. LOEFFLER replied that he didn't have a map in front of him,
but they would be happy to permit someone to make an alternative
trail, if they wished to do so, but the alternative trail in
their view would be only for construction on less than five
locations before it would satisfy the criteria in AS 19.34.10.
SENATOR TAYLOR said looking at the map, it looked like for years
there had been two trails there. One trail was for moving mining
equipment up and that's the one on Mr. Puddicombe's property. The
other trail looks like a shortcut.
SENATOR WARD asked if DNR had the ability to grant a waiver on a
trail if there no is alternative trail to go to.
MR. LOEFFLER replied absolutely.
SENATOR WARD asked what would be the criteria for the law.
MR. LOEFFLER replied that the criteria for vacation is reasonably
comparable to establishing an alternative right-of-way to satisfy
all present and reasonably foreseeable uses.
MR. FITZGERALD said the alternative route would cut into the 80s
and on Mr. Puddicombe's original patent issued by the federal
government, the road is as surveyed [indisc.].
MR. JACK DUNHAM said the trail through his property had to be
blasted to be able to get through.
SENATOR WILKEN said he wanted to talk to the sponsor of this bill
before they moved it from committee and asked Mr. Loeffler to
look at the map called "The Preliminary Across the Middle" - USS
5265, which shows the west boundary is 484 ft. He asked if there
were any private parcels like it between the northern boundary
and point C.
MR. LOEFFLER replied yes, USS 5839, which is roughly the same
size as USS 5265. He said their west borders are not directly
parallel.
SENATOR WILKEN asked how long of a trail would be needed to get
to the existing trail that would intersect to point C.
MR. LOEFFLER said he thought it would be somewhat longer, but
that it would be less extensive to render the alternative trail
[indisc.].
SENATOR WILKEN asked if it would be easier to make the alternate
trail a better trail than to build a new trail along the west
boundary of USS 5265 and the piece that's on top of it.
MR. LOEFFLER replied it would.
SENATOR TAYLOR asked for a ballpark figure of what it would cost
to go in there and blast the alternative trail so it was useable.
MR. LOEFFLER replied that there were five steep sections and two
side slopes and he didn't know how much it would cost.
SENATOR WARD moved to pass SB 362 from committee with individual
recommendations.
SENATOR ELTON objected. SENATORS WILKEN, WARD, TAYLOR and COWDERY
voted in favor; SENATOR ELTON voted against. SB 362 moved to the
next committee.
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