Legislature(2017 - 2018)GRUENBERG 120
04/06/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB351 | |
| HJR38 | |
| HB75 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 351 | TELECONFERENCED | |
| + | HJR 38 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 75 | TELECONFERENCED | |
HJR 38-AK RAILROAD TRANSFER ACT; CONVEYANCES
1:15:43 PM
CHAIR CLAMAN announced that the next order of business would be
HOUSE JOINT RESOLUTION NO. 38, Relating to certain conveyances
to the Alaska Railroad Corporation under the Alaska Railroad
Transfer Act of 1982.
1:16:34 PM
REPRESENTATIVE KOPP presented PowerPoint, "HJR 38 - Restoring
Property Rights," and described HJR 38 as the most important
piece of property rights legislation this session. It is within
this legislature's purview to weigh in on this matter because
the Alaska Railroad Corporation is an instrumentality of the
state and properly subject to the legislature's oversight and
guidance.
REPRESENTATIVE KOPP turned to slide 2, "Purpose" and explained
that this resolution is targeted at recent Alaska Railroad
claims to an exclusive use easement conveyed over more than 200
homestead patents. Except, he pointed out, the United States
did not conclusively hold that interest in the right-of-way at
the time of the transfer from federal to state ownership in
1983. By way of background history, he offered that the Alaska
Railroad Act of 1914 put the standard railroad easement across
the nearly 500 miles of track in Alaska, and that the railroad
easement is for rail, telegraph and telephone, and above-ground
co-located utilities. This, he explained, was the initial re-
reserved limited interest easement. Today, this limited
interest right-of-way easement provides the foundation for
approximately 80 percent of all railroad tracks in America
because the 1875 United States Congress stopped allowing fee
simple interest ownership in rights-of-way for railroads.
Initially, he explained, the fee simple interest ownership was
to incentivize the East/West route across the United States.
Except, he advised, legislative history revealed the many
problems with railroads charging outrageous fees, and blocking
landowners from accessing a crossing to get to the other side
with regard to ranchers and then later with homesteaders as the
country expanded West. That denial of shared use of the right-
of-way, in any capacity, lead to the United States Congress
decision to stop offering fee simple interest ownership. The
General Railroad Act of 1875 provided for a surface easement
only, an easement across another person's property. He
explained that this Act was relied upon by the United States
Interior Board of Land Appeals in 1982 when Alaska was properly
making its statehood land claims under the Alaska Statehood
Compact [(72 Stat. 339) Public Law 85-508, 85th Congress, H. R.
7999, July 7, 1958]. The State of Alaska made claim to the
rights-of-way along the railroad tracks, and the railroad said,
"You can't select this, this has already been appropriated or
reserved to us, we own it, state, you can't select it."
1:19:50 PM
REPRESENTATIVE KOPP referred to the "House Joint Resolution 38
Meeting Packet" booklet and its yellow tab, and noted that it is
the Interior Board of Land Appels 81-426 ruling. He explained
that the ruling on this case went directly to the General
Railroad Right-of-Way Act of 1875, showing how it was directly
connected to the 1914 Alaska Railroad Act. The General Railroad
Right-of-Way Act of March 3, 1875, granting a similar right-of-
way for railroad across public lands outside of Alaska has been
held to convey only an easement and not a fee simple interest in
the land. The Interior Board of Land Appeals (IBLA) relied upon
the 1875 case telling the railroad that it did not have a fee
simple interest; therefore, the state could select the Alaska
Railroad right-of-way in its statehood lands selection, and the
railroad lost the case. Thereby, Alaska was able to make those
statehood land selections because the law was clear that the
railroad did not have fee simple interest in the right-of-way,
it had surface easement only. He paraphrased the IBLA's
decision as follows:
These cases decided under other railroad right-
of-way statutes persuade us that the lands embraced in
the appellant's right-of-way should not be considered
to be appropriated or reserved at the time of State
selection so has to be excluded therefrom. The
decision correctly held that a right-of-way for
railroad shall be reserved in any State selection
patent issued.
Accordingly, pursuant to the authority delegated
to the Board of Land Appeals by the Secretary of the
Tnteiim, 43 CFR 4.1, the decision appealed from is
affirmed.
REPRESENTATIVE KOPP advised that the state was able to make
those selections of state land and reserve the 1914 standard
easement.
1:20:55 PM
REPRESENTATIVE KOPP turned to slide 3, "What's the Harm?" and
answered that hundreds of landowners along the Alaska Railroad
Corporation's right-of-way have had their property rights
confiscated and a cloud put on their title of land through an
unlawful "exclusive use" easement claim that the Alaska Railroad
makes to the entire right-of-way. On that point, he advised,
the entire right-of-way is over 470 miles of track, and hundreds
of miles of that right-of-way have gone into private ownership,
from 1914 through 1983, when it was transferred to the State of
Alaska. Therefore, everyone with a homestead patent during that
period of time are the people who had received their 160-acre
Homestead Patent from the federal government, and they had a
"Federal Patent," a deed to the land where the federal
government totally divested themselves of ownership, he
explained. (Indisc.) the federal government never claimed or
exercised an exclusive use easement on that private property
because it was considered (indisc.) right-of-way, and no one
disputed that the underlying landowner was still the
homesteader.
REPRESENTATIVE KOPP related that that claim to the entire right-
of-way brings HJR 38 before this body because some of the issues
that drove that claim were highlighted on page 8 of the 4/25/14
letter to John Pletcher from Andy Behrend, Senior Attorney,
Alaska Railroad Corporation. He paraphrased the letter as
follows: "Regardless of what ... the federal government's
interest is in the right-of-way, the obligation exists
regardless of what the United States owned at the time, to
transfer this exclusive use easement to the entire right-of-
way." He said (indisc.). Representative Kopp pointed out that
the Alaska Railroad's attorney advised, "We don't care what the
federal government owned, they could still transfer this
interest to the state even if they didn't own it." Also, the
railroad (indisc.) outright ownership to the entire strip of
land for all 470 miles of the right-of-way, he offered. This
assertion must be squared under Marvin Brandt Revocable Trust v.
United States, 572 U.S. ___ (2014), decision when the United
State Supreme Court reaffirmed that railroads have surface
easements only, and when those easements are no longer being
used, they revert to the underlying landowner. When the
railroad stopped using that easement, it reverted to the Marvin
Brandt Revocable Trust and, he commented, the Alaska Railroad
will advise there is no connection.
1:24:46 PM
REPRESENTATIVE KOPP, in response to Chair Claman, advised that
the yellow tab was the 1982 IBLA case, and the 4/25/14 letter to
John Pletcher from Andy Behrend, Senior Attorney, Alaska
Railroad Corporation is contained within the committee packet.
1:25:28 PM
REPRESENTATIVE KOPP advised that the second point on slide 3 is
that HJR 38 addresses a violation of state statute such that in
2005 and 2006, the Alaska Railroad circumvented required
legislative approval by apply for, and receiving from, the
United States Department of the Interior, Bureau of Land
Management land patents within a municipality, specifically
Anchorage. These land patents overlaid original homestead
federal land patents that go all the way through the core of
Anchorage, and run all the way up through the Matanuska-Susitna
Valley toward Talkeetna, and continuing on, he said. The Alaska
Railroad's position is that it did not have to ask the
legislature for this because the exclusive use easement was the
federal governments to give to the railroad. Except, he pointed
out, the Alaska Railroad is accountable to state law, and the
state said that the Alaska Railroad is required to ask the
legislature before it can accept or receive such a grant.
Further, he said, the law is clear that an exclusive use
easement was never contemplated in the Alaska Railroad Transfer
Act to be considered across all 470 miles of track. He related
that it was only in areas where the federal government actually
owns such an easement, such as the Denali Borough and in areas
where federal land is among contested Native Corporation Land
Claims.
1:26:50 PM
REPRESENTATIVE KOPP turned to slides 4-6, titled "What HJR 38
Does," and advised that the resolution provides legislative
approval for the Alaska Railroad or the governor to disclaim
unlawfully acquired property by the state. Representative Kopp
explained as follows:
Disclaim means, we're not touching that property
interest because we consider it a hot interest, a
possibly stolen interest. And so, we -- we walk away
from that because we do not want to incur liability to
the state by making a property interest claim that the
state does not lawfully have.
REPRESENTATIVE KOPP explained that HJR 38 directs that a
property interest was not available to the Alaska Railroad under
federal law and ownership, and it certainly is not available to
the Alaska Railroad now.
REPRESENTATIVE KOPP noted that HJR 38 also calls upon Alaska's
congressional delegation to help resolve claims to the right-of-
way as a result of the misapplication of the Alaska Railroad
Transfer Act. He pointed out that Alaska's congressional
delegation has been helpful and responsive as a result of this
effort.
1:27:54 PM
REPRESENTATIVE KOPP turned to slides 7-9, titled "HJR 38 Does
Not," and advised that it does not remove the Alaska Railroad
Corporation's ability and duty to police and keep tracks and
rights-of-way safe, affect its speeds, as so forth. He advised
that the Alaska Railroad "put out a narrative" and encouraged
people to say that if HJR 38 passes, it will have to reduce
speeds and will possibly not meet schedule commitments.
Representative Kopp stressed that nothing could be further from
the truth, the Alaska Railroad has operated with a standard
railroad easement. Under the Memorandum of Understanding in
1983, Governor Jay Hammond signed that the 1914 Standard
Railroad easement would be the easement for all future
expansions of the railroad. He offered that the Alaska Railroad
has been moving jet fuel and all manner of hazardous materials
under that right-of-way easement. Eighty percent of railroad
tracks in America operate under the same easement and only pre-
1987 railroads have fee simple titles. Almost every operational
railroad today does not have an exclusive use easement, "none
that I know of." Secondly, HJR 38 does not affect any lawfully
obtained property of the Alaska Railroad Corporation, including
any right, title, or interest passed from federal to state
ownership in 1983. This resolution does not impact the
railroad's ability to profit or impact its economic model
because he does want the Alaska Railroad to be successful,
except it will tell the committee that it must run a train at 20
mph across 100 miles of homestead land due to the possibility
that something might happen. Currently, he said, the Alaska
Railroad has, and always has had, full authority to stop
anything in the right-of-way that is dangerous. This resolution
will not affect its ability to obtain an injunction on any
interfering or competing use of the right-of-way, as it has
always done since 1923 when the Alaska Railroad was completed.
1:30:03 PM
REPRESENTATIVE KOPP turned to slides 10-11, titled "A Brief
History," regarding the 1914 Alaska Railroad Act, and advised
that the federal government owned and operated the Alaska
Railroad and some of the land over which the railroad operated.
However, he noted, much railroad right-of-way passed into
private hands that was in non-federal ownership because many
Alaskans received homestead patents. When those patents
included land crossed by the railroad, the federal government
still transferred ownership of the land to the citizen, but
reserved for itself a specific property interest called the
"right-of-way" so it could use 100 feet on either side of the
centerline of the railroad to operate the railroad, as well as
telegraph and telephone lines. The 1914 Alaska Railroad Act
gave the railroad a right to use the land owned by others, as
identified in each federal patent, but it did not transfer a
right to own and control a property in a manner unrelated to the
patent reservation.
1:31:00 PM
REPRESENTATIVE KOPP turned to slide 12, and advised that the
federal government cannot transfer a property interest to the
State of Alaska if it never owned the property interest in the
first place.
REPRESENTATIVE KOPP turned to slides 13-15, and advised that a
standard railroad easement is not fee simple ownership of land
or necessarily the right to exclusivity, it is an interest in
land owned by other people. The standard railroad easement is
usually limited in the extent of occupancy and use, and it can
involve a general or specific portion of the property. This, he
explained, was the limited interest the United States Congress
allowed all railroads to have after 1875. The "rail properties"
granted to the state include only the "right, title, and
interest" which belonged to the United States in 1983. Other
than within the Denali Borough, and on a few other federal
parcels of land, there was no outright exclusive use in the
Alaska Railroad Transfer Act (ARTA) related to other areas, it
was only where the federal government actually possessed that
interest.
1:31:56 PM
REPRESENTATIVE KOPP explained that the exclusive use easement
discussion allows the holder to exclude all others, including to
fence and bar off any other user of the land whether or not that
use is a safety issue. He reiterated that there is no question
the Alaska Railroad did have an exclusive use in Denali National
Park and Preserve and in areas subject to unresolved Native
claims because the federal government owned that property. Due
to a fundamental mis-reading of ARTA, the Alaska Railroad claims
that at least an exclusive use easement must be granted to the
state in the entire right-of-way "regardless of what the federal
interest was in the right-of-way over private property," which
was stated in the letter to Mr. Pletcher. Representative Kopp
stated that no credible argument can be made that an exclusive
use easement belongs to the Alaska Railroad without establishing
what the private parties and the federal government actually
owned in 1983. He pointed out that in 1996, Phyllis Johnson,
legal counsel for the Alaska Railroad said, and he paraphrased
as follows: "We, the railroad, might not have owned all we
thought we had owned, and that we have to do a parcel-by-parcel
search to know what the property interests were before we came
along." Except, something took place after 1996, wherein the
Alaska Railroad's current legal counsel moved away from that
statement because it is easier to claim that a parcel-by-parcel
research is not necessary, that an entire exclusive use easement
was given to the "right-of-way" even if it cannot be proved
through our title recording system. While, he pointed out, it
may be easy for the railroad, it is wholly foisted on the
state's innocent property owners along the track, and that claim
was made without notice or recourse for the property owners to
contest otherwise.
1:33:58 PM
REPRESENTATIVE KOPP turned to slides 16-18, which read as
follows:
BE IT RESOLVED that the Alaska State Legislature
believes, as it pertains to privately held properties
in the state that contain or are required to contain a
reservation for the purposes set out in the Alaska
Railroad Act, all conveyances to the Alaska Railroad
Corporation under the Alaska Railroad Transfer Act of
1982 that purport to convey an "exclusive-use
easement" as defined in 45 U.S.C. 1202(6), in which
associated rights, titles, or interests were not
conclusively owned by the federal government at the
time of the transfer, are contrary to law; and be it
FURTHER RESOLVED that the Alaska State
Legislature believes that any right, title, or
interest not conclusively owned by the federal
government at the time of the Alaska Railroad Transfer
Act of 1982 that was erroneously conveyed to the
Alaska Railroad Corporation, and certain interests in
land conveyed to the Alaska Railroad Corporation
without the legislative approval required under AS
42.40.285, should be disclaimed as a matter of law;
and be it
FURTHER RESOLVED that the Alaska State
Legislature urges the Alaska delegation in Congress to
recognize the views of the Alaska State Legislature
expressed in this resolution and to take appropriate
action to encourage the recognition of validly held
private property rights that were not conveyed under
the Alaska Railroad Transfer Act of 1982.
1:34:52 PM
REPRESENTATIVE KOPP 19 turned to slide 19, and advised that the
supporters of this resolution are not limited to the following:
Adventure 60 North, Seward; Municipality of Anchorage;
Alaska Association of Realtors; Anchorage Association
of Realtors; The Bradley Company Construction; Dimond
Center; Flying Crown Homeowners Association; Lynden
Air Cargo; National Association of Reversionary
Property Owners; Old Seward Oceanview Community
Council; South Anchorage Red Robin; Taku Campbell
Community Council; Talkeetna Historical Society;
Tantikil Unlimited Land and Resource Management; and
countless private property owners along the Railroad
Right-of-Way
1:35:23 PM
REPRESENTATIVE KOPP turned to slides 20-22, titled, "Property
Owners Speak Out," and advised that the property owners have
been denied access to their properties and this issue has put a
cloud on their titles. In 2005 and 2006, the United States
Department of the Interior land patents were issued "over on top
of" federal homestead patents without notification to the
landowners. The property owners began to realize that in 2012,
the residential right-of-way use permits were being rolled out
to bite down on the exclusive use claim. The property owners
further realized that they, in fact, had a land patent overlaid
on their homestead patent. He asked the committee to imagine
having a land patent for 50-years and suddenly a federal patent
is overlaid on your land patent making a claim that was never
previously issued.
1:36:35 PM
ERICK CORDERO GIOGANA, Staff, Representative Chuck Kopp, Alaska
State Legislature, stated that (indisc.) contains a sample of
homestead patents and a current (indisc.) on top of it for
review.
1:37:21 PM
REPRESENTATIVE STUTES asked who pays the property taxes on this
property.
REPRESENTATIVE KOPP answered that she would have to ask the
Alaska Railroad because he was unsure. In South Anchorage,
specifically the Ocean View neighborhood, that issue has been a
point of contention because the size of the lot includes the
right-of-way, he said. Whether that right-of-way should be
taxed is a separate issue, but it has been pointed out that the
lot size "goes over into the right-of-way," he offered.
1:38:05 PM
REPRESENTATIVE STUTES surmised that currently the (indisc.)
property tax on that right-of-way.
REPRESENTATIVE KOPP responded that (indisc.) does go into the
right-of-way where they are being assessed value.
1:38:35 PM
CHAIR CLAMAN opened invited testimony on HJR 38.
1:39:16 PM
WILLIAM O'LEARY, President/Chief Executive Officer, Alaska
Railroad Corporation, advised that he represents 600 employees,
numerous customers, and 500,000 passengers carried every year by
the Alaska Railroad. On their behalf, he said that he is
speaking in opposition to HJR 38, and that the numerous reasons
for this opposition fall into two primary categories, safety,
and legal issues. He said he would explain why safety
necessitates that the Alaska Railroad have that exclusivity in
the right-of-way, and the impacts to the railroad and its
customers should it not have that exclusive use of the right-of-
way. He commented that as was noted in past discussion by
members of the House Judiciary Standing Committee, House State
Affairs Standing Committee, and by several member of the
Anchorage Assembly recently, this is an issue that belongs in
court. When reasonable people disagree about the nuances of a
law, the decision of that law should be made in a court of law.
Simply put, he offered, safety is the Alaska Railroad's top
priority, (indisc.) safety as seriously as it should, and that
the number of fatalities (indisc.) YouTube videos shot on
railroad tracks every day and year bears out the safety issue.
Each year, almost 500 people are killed in this country while
trespassing on railroad property, time and time again people
vastly underestimate the danger to themselves and others when
trespassing on railroad rights-of-way, drive around gates at
crossings, or put structures in the rights-of-way. Fourteen
people have been killed trespassing on the Alaska Railroad since
its transfer in 1985, including a 23-year old woman (indisc.)
since the last hearing on this resolution, and every single
death was avoidable.
1:41:58 PM
MR. O'LEARY remarked that loss of exclusive control of the
right-of-way could be detrimental to the operation of the
railroad, its customers, passengers, business partners, and the
people of Alaska who are the ultimate owners of the Alaska
Railroad. As it is currently, (indisc.) the railroad can assume
control in all areas of its right-of-way and assumes its
professionally trained security personnel, track managers,
maintenance crews, on-board personnel, to name a few, are making
certain the tracks and right-of-way are clear, safe, and
operational. The Alaska Railroad has full control and
discretion to remove anything and everything that poses a safety
hazard to its operations, yet in the event the right-of-way is
turned into a checkerboard of control from Seward to Fairbanks,
the safety assumption cannot be made and it may become necessary
to reduce track speeds in the areas without the railroad's
complete control, he related. In the event there is one parcel
of land that is not under the control of the railroad along
miles of the long stretches of track, the Alaska Railroad may
have to reduce speeds along that entire stretch, thereby, making
it impossible to meet its commitments, get passengers or freight
to wherever they are traveling in a timely and economical
manner. This resolution also brings up the question, who can
control what goes in the right-of-way, can the railroad's
neighbors store junked cars leaking oil, which has happened, can
they plow snow berms so the people approaching or stopped at
railroad crossings can't see an oncoming train, can they store
hazardous materials on the right-of-way, remove a swing set 30
feet from the tracks, or the railroad remove it if the party
refuses, he asked. The Alaska Railroad's train cars are 80 feet
long and in a case of derailment, having a 100-foot buffer on
each side of the track is critical. He commented that the
Alaska Railroad has had to take its neighbors to court when
performing something that is unsafe.
1:43:54 PM
MR. O'LEARY posed the question of what is actually allowed in
the right-of-way, and offered that the Alaska Railroad's
neighbors may disagree with a public trail being in the right-
of-way, such as the Coastal Trail. The railroad has been
working with the Municipality of Anchorage and Turnagain
Community Council regarding the Fish Creek Trail. He asked
whether "they can stop" a community from building a trail
specifically allowed for in state law, or a gas pipeline,
electric line, highway, or street that might use the right-of-
way, can they demand outrageous (indisc.) small section of the
right-of-way, he asked. This ambiguity could tie up projects
for years, decades, or even kill them altogether due to
questions of ownership. He related that HJR 38 incorrectly
describes the rights held by the federal government and the
Alaska Railroad right-of-way; it mis-interprets the property
rights that the federal government transferred to the State of
Alaska and the court cases regarding railroad rights-of-way. He
reiterated that this is an issue for the courts to decide in
order to determine the legal answer, and he encouraged the
committee to not support HJR 38.
1:45:09 PM
REPRESENTATIVE EASTMAN commented that last year his family
traveled on the Alaska Railroad and he could not remember
anytime during or after, when the railroad asked them any of
their thoughts "on this matter." Customarily, he said, it would
be best to either obtain permission or obtain some idea of
(indisc.) committee. As someone who does support HJR 38, he
asked that Mr. O'Leary not speak on his behalf or that of the
other passengers.
1:45:53 PM
REPRESENTATIVE REINBOLD asked Mr. O'Leary to address traditional
homestead use, recreation, and why the railroad would not want
the legislature's approval when it is a state corporation.
MR. O'LEARY responded that he was unsure he understood
Representative Reinbold's question, and offered that the Alaska
Railroad's concern is with its ability to operate a safe
railroad and have exclusive control of the right-of-way.
1:46:54 PM
REPRESENTATIVE REINBOLD commented that his response is obvious
because everyone wants safety. However, she asked, how does the
railroad deal with the traditional users that were living there
prior to the Alaska Railroad, and to also address why
legislators would not want to participate in this issue.
MR. O'LEARY replied that the Alaska Railroad is not opposed to
people recreating because it understands and bisects this state
to a large degree. The railroad is a large operating entity and
its primary concern is safety, and then its concern is about
being able to run an economical railroad in this situation. He
acknowledged that he does not have a great answer because he is
unsure he fully understands the question.
1:48:31 PM
REPRESENTATIVE REINBOLD offered the example that a correctional
facility is located in her neighborhood, and male prisoners were
recently admitted into that female prison. She related that the
community council passed a resolution against that occurrence
because [the prison system] was not being a good neighbors in
addressing those concerns, which causes a red flag for her as to
this issue. She commented that the railroad needs to be a good
neighbor, there are historical traditional uses that took place
far before the Alaska Railroad, and the churches recrate in the
area. As to the 14 incidents since 1982, she asked whether any
of those deaths were deemed suicide. As a state, it needs to
lead by example and be good collaborative neighbors and not
impose rights above the traditional rights of others, she
offered.
MR. O'LEARY answered that the Alaska Railroad's desire is to be
a good neighbor and there have been situations where the
railroad rightly or wrongly has been painted with "not being a
good neighbor." It is important to the railroad and its board
that it does work collaboratively and well with the many
different organizations, but for the railroad to run a safe
operation there are certain things wherein it must draw the
line. He commented that that is similar to airports who want to
be good neighbors but they are all fenced off and no one can be
on the tarmac to recreate.
1:50:24 PM
REPRESENTATIVE REINBOLD referred to his example of the airport
and pointed out that an airport is a small area and the railroad
runs through traditional use and recreational properties. She
reiterated that she would like to know whether the 14 deaths
were the railroad's fault where it hit something on the track,
or whether the deaths were suicides, and what caused the deaths.
She asked whether there are areas with signage, awareness, fees
imposed if violated, can be put up to reduce the danger if Mr.
O'Leary is claiming that there is danger. Wherein the
traditional uses, such as homesteads, recreational areas, and so
forth, are still allowed to have their use or even people that
are paying property taxes.
MR. O'LEARY responded that it is the Alaska Railroad's position
that while he does not have the specifics, the 14 people were
trespassing on the railroad when they were killed.
CHAIR CLAMAN offered his understanding that the most recent
death was when a woman was asleep on the track at night, and by
the time she was spotted it was too late to stop the train.
1:51:50 PM
REPRESENTATIVE REINBOLD commented that 500 miles is a long swath
between critical habited areas, and she wants "us to be good
respectable neighbors" that honor historic traditions while
still maintaining safety. She said she was unsure where she
stood regarding this resolution but as legislators with
oversight, it appears to be a reasonable resolution. She
related that she has worked on trails for many years and for the
Alaska Railroad to come forward and say, "this is ours, it's
exclusive use," appears harsh.
1:53:10 PM
REPRESENTATIVE KREISS-TOMKINS asked whether Mr. O'Leary had said
there have been 14 fatalities since the transfer in 198[5].
MR. O'LEARY replied that there have been 14 fatalities on the
Alaska Railroad since the 1985 transfer.
1:53:34 PM
REPRESENTATIVE KREISS-TOMKINS noted that the train cars are 80-
90 feet long. He asked whether it was Mr. O'Leary's belief that
the railroad must manage the right-of-way for any hypothetical
situation. For example, at any point along the right-of-way, a
car may derail and travel entirely perpendicular to the tracks
and wipe out everything. Therefore, the railroad must prepare
for every inch of the right-of-way wherein a train car might be
snowplowing along and everything needs to be removed from those
margins along the tracks. He related that he is trying to
better understand the context of Mr. O'Leary's comments.
MR. O'LEARY responded that from the Alaska Railroad's
perspective, it has 100 feet on either side of the centerline of
the track as right-of-way. From a purely safety perspective, he
said, "yes, I would say that we would like to protect that
right-of-way very seriously" because that is something that can
happen, and it has happened. When heavy freight trains or
railcars derail, they can take up to a mile to stop and can cut
quite a swath of damage and destruction. (Audio difficulties.)
1:55:15 PM
REPRESENTATIVE KREISS-TOMKINS related that he is from the
Southeast and is not familiar with the railroad's history. He
asked, during the history of the Alaska Railroad, whether there
has been a derailment and a train car cut a swath of
destruction, such as Mr. O'Leary described, wiping out property
or causing someone's death.
MR. O'LEARY answered that he was unsure whether anyone has been
killed in the right-of-way as a result of a derailment, and his
initial response is that it has not occurred but he will
research the issue. As with every railroad over the years,
there have been serious and horrific derailments in the past and
derailment is taken seriously.
1:56:23 PM
REPRESENTATIVE STUTES referred to the 4/5/18 letter from Doug
Chapados, CEO/President of Petro Star, Inc., directed to Chair
Claman, and noted that the letter was written on behalf of the
Alaska Railroad Corporation. She pointed to the following
language, "denying ARRC an exclusive ROW will impede
developments to connect Anchorage to the Interior," and asked
Mr. O'Leary to speak to that assertion.
MR. O'LEARY responded that from the Alaska Railroad's
perspective, it moves freight between Anchorage and Fairbanks
and throughout the state, and without having exclusive control
of the right-of-way, it needs to know what is around the next
corner. He reiterated that it is important to run a safe and
economical railroad in control of that right-of-way, and if it
is not in control, there could easily be operational impacts and
it could impact the economics of the abilities of the Alaska
Railroad.
1:58:05 PM
REPRESENTATIVE KOPP referred to Mr. O'Leary's comment about
taking property owners to court to resolve differences, and
asked the last time the Alaska Railroad went to court to resolve
an issue between a property owner and the Alaska Railroad.
MR. O'LEARY deferred to Andy Behrend, attorney for the Alaska
Railroad.
1:58:47 PM
ANDY BEHREND, Chief Legal Counsel, Alaska Railroad Corporation,
advised that he is unaware of any court action that actually
occurred in order to resolve differences between the railroad
and property owners. During his tenure of eight years working
for the railroad, he recalled at least three situations wherein
commercial entities used the right-of-way for their own business
without permission and without a permit. During those
occasions, the railroad engaged with the commercial entities and
discussed removing their business from the right-of-way. He
offered that junk cars were leaking oil and the Department of
Environmental Conservation (DEC) had to get involved. As to the
three cases, he advised, the railroad directed several "cease
and desist" types of letters, then drafted complaints and
advised that the complaints would be filed within 30-days if the
companies did not cooperate, and all three entities left the
right-of-way. As to residential property owners, he said that
he is not aware of any court actions the Alaska Railroad has
taken.
2:00:15 PM
REPRESENTATIVE KOPP pointed out that HJR 38 primarily deals with
homestead patent areas that are primarily residential. He asked
whether it would be fair to say that it is a "very rare
occurrence" when the court has to get involved to resolve an
issue.
MR. BEHREND acknowledged that the court getting involved has
been rare, and the railroad has worked with residential
landowners in an attempt to put together a residential use
policy and permit policy. The policy was passed by the Alaska
Railroad Board of Directors, except it was controversial and has
since been rescinded. Generally speaking, he opined, there have
been issues with drainage or erosion in the right-of-way due to
over-watering and through discussions have "generally worked it
out." He explained that when the Alaska Railroad talks about
going to court, if there is a legal dispute about property
rights, the courts are the correct venue to answer those
questions. As far as residential uses of the right-of-way, he
offered that the railroad does its best to work through those
issues. He acknowledged the issues of property owners being
there before the Alaska Railroad, but in many of those
situations the federal railroad mainline has been there since
1919-1923 when the full railroad was completed. Despite that
fact, he said the railroad made an attempt to regulate those
residential uses, which is something the railroad contends is
its right and the exclusive use easement allows. He explained
that it is a mechanism where the railroad, at its discretion,
regulates what happens with the right-of-way.
2:03:11 PM
REPRESENTATIVE KOPP explained that HJR 38 simply reads that the
current understanding is of a standard railroad easement, which
the Alaska Railroad has not asserted more than that before 2012
in any widespread manner. He asked whether the railroad's fear
is that by continuing a standard railroad easement
understanding, the landowners will suddenly rise up with new and
unsettling behavior that will threaten the safety and existence
of the railroad.
MR. O'LEARY answered that the Alaska Railroad does not know what
HJR 38 means, but it can see issues with the resolution.
2:04:12 PM
CHAIR CLAMAN referred to the Anchorage area property owners
adjacent to the railroad, and asked whether the railroad pays
any property taxes on those easements and how the easement
affects the property evaluation paid to the Municipality of
Anchorage.
MR. O'LEARY answered that the Alaska Railroad, as an
instrumentality of the State of Alaska, is a tax-exempt entity
and is exempt from such taxes. He related that he is unaware of
any part of the right-of-way that adjacent homeowners are paying
property taxes.
2:05:41 PM
MR. BEHREND advised that the proponents of HJR 38 assert that
the federal government transferred exclusive rights to the
Alaska Railroad right-of-way that the federal government did not
own, and further assert that the Alaska Railroad right-of-way is
a non-exclusive easement that adjoining landowners can use in
any manner that does not interfere with railroad operations.
These assertions are incorrect, he stated, because the Alaska
Railroad does have exclusive control of its right-of-way for
several reasons. First, he said, as the United States Congress
expressly found when considering the Alaska Railroad Transfer
Act in 1982, the federal government owned most of the Alaska
Railroad right-of-way in fee simple title which it had acquired
as a result of the 1914 Congressional Act that created the
Alaska Railroad. Second, he stated, specifically guaranteed in
the Alaska Railroad Transfer Act (ARTA), the federal government
transferred at least an exclusive use easement in all of the
Alaska Railroad right-of-way to the state-owned railroad in
1985. Third, even if the Alaska Railroad had not received fee
simple title or an exclusive use easement in the right-of-way,
railroad easements have consistently been held by the courts for
well over 100 years to provide railroads with exclusive rights
in the right-of-way.
2:07:22 PM
MR. BEHREND referred to Alaska Railroad Memorandum titled,
"Ownership and Exclusive Control of the Alaska Railroad Right-
of-Way" [contained in the committee packet] and advised that
while he does not have time to explore all of the issues in
depth, he would highlight some of the most important issues.
Mr. Behrend offered that the origins of the Alaska Railroad
exclusive rights in its right-of-way trace back to the Act of
March 12, 1914, which authorized and directed the location,
construction, and operation of a railroad route in the Territory
of Alaska. He paraphrased the intention of the railroad route
of the 1914 Act, as follows:
To provide transportation of coal for the Army and
Navy, transportation of troops, arms, and munitions of
war, the mails, and for other governmental and public
uses.
MR. BEHREND stated that the 1914 Act also granted rights-of-way
through federal lands for that railroad and authorized the
federal government to establish rules and regulations for
control and operation of the railroad.
2:08:19 PM
MR. BEHREND explained that the Alaska Railroad right-of-way was
designated and construction was completed in 1923, and for the
next 60-years, the federal government owned and operated the
Alaska Railroad using it as both as a railroad and a utility
corridor. When the United States Congress began discussing the
concept of transferring the railroad to another entity in the
early 1980s, Congressional committees determined that most of
the Alaska Railroad land, including its right-of-way, was held
in fee simple title by the United States. He paraphrased one of
the Congressional committees as to the intent of Congress "was
that ARTA would convey to the state a fee interest in the 200-
foot strip comprising the railroad track right-of-way amounting
to roughly 12,000 acres. This fee estate is recognized by the
committee to be the current interest of the Alaska Railroad
derived from common practice and authorized under Section 1 of
the March 12, 1914 Alaska Railroad Act." He said that the
committee went on to explain that "conveying the right-of-way in
fee was required so that the state can continue to operate the
railroad." The United States Congress also recognized, during
the process of looking at the Alaska Railroad Transfer Act, that
some Alaska Railroad lands could be subject to third-party
claims. Therefore, Congress included in ARTA a process for
determining such claims, but still providing the state with
exclusive control of the right-of-way. Senator Ted Stevens
confirmed this on the floor of the United States Congress just a
few weeks before ARTA passed the Congress, and he paraphrased
Senator Stevens' statement as follows:
The concept of an exclusive use easement also is
introduced in the substitute. This defined interest
represents the minimal interest the state is to
receive in the Alaska Railroad right-of-way following
completion of the expeditated adjudication process.
MR. BEHREND advised that Senator Stevens went to describe the
purpose of this exclusive use easement being proposed in ARTA,
as follows:
Essentially, the exclusive use easement is defined to
ensure that the state-owned railroad will receive
exclusive and complete control over lands traversed by
the right-of-way.
2:10:44 PM
MR. BEHREND offered that within the enacted version of ARTA, its
plain language confirms that the state-owned railroad was to
receive exclusive control of the entire right-of-way. He
paraphrased a provision of ARTA, as follows:
Congress finds that exclusive control over the right-
of-way by the Alaska Railroad, has been and continues
to be necessary to afford sufficient protection for
safe and economic operation of the railroad.
MR. BEHREND explained that this exclusive control provision
specifically applied to any areas of the right-of-way that left
federal ownership prior to the enactment date of ARTA. He
pointed out that this gets to the discussion of the homestead
patents, and paraphrased a provision of ARTA, as follows:
Where lands within the right-of-way or any interest in
such lands have been conveyed from federal ownership
prior to January 14, 1983, or is subject to a claim of
valid existing rights by a party other than a village
corporation, the conveyance to the state of the
federal interest in such properties pursuant to
Section 1203(b)(1) or (2) of this title, shall grant
not less than an exclusive use easement of such
properties.
MR. BEHREND advised that consistent with the above language from
ARTA, the transfers, the conveyances, were made of Alaska
Railroad land to the state-owned newly formed Alaska Railroad
Corporation. He said that consistent with the above language,
the interim conveyances issued in January 1985, conveyed the
right-of-way to the state-owned railroad and also the final
patents that followed later, and they all expressly conveyed an
exclusive use easement as that defined in the Alaska Railroad
Transfer Act (ARTA).
2:12:48 PM
MR. BEHREND related that his third point is that the Alaska
Railroad right-of-way would be held exclusively by the railroad
even if ARTA had not guaranteed this minimal interest of an
exclusive use easement as defined in that statute. He explained
that his statement is true because courts have consistently held
for over 100 years, that railroads have exclusive rights to
their right-of-way. He referred to the memorandum, pages 9-11,
and advised that some of those authorities are discussed in both
court cases, legal treatise, commentators, and so forth. He
said that he would quote from a couple of the cases that explain
what the courts have done with these railroad right-of-way
easements, as follows:
Midland Valley R. Co. v. Sutter, et al. 28 F.2d at
167-68 (1928)
The decisions of the national courts and a majority of
the state jurisdictions however, are to the effect
that the railroad company is entitled to the exclusive
use and possession of its right-of-way and that the
owner of the servient estate has no right to occupy
the surface of the land conveyed for right-of-way, in
any mode, or for any purpose, without the railroad
company's consent.
MR. BEHREND advised that the court went on to talk about the
reasons for that rule, as follows:
The basic reason for the majority rule is that the
exclusive possession is necessary to enable the
railroad company to safe conduct its business and meet
the duty of exercising that high degree of care which
the general law and administrative rules enjoin upon
it. ... These duties require it to have the exclusive
possession of its right-of-way.
2:15:03 PM
MR. BEHREND acknowledged that some of the cases are old and the
memorandum provided cases up through recent date. The
proponents of HJR 38 talk a lot about the 1875 Act, and a 2014
case talks about this question as to whether the right-of-way
was exclusive under the 1875 Act.
Union Pacific R.R. v. Santa Fe Pacific Pipelines 231
Cal.App 4th 134, 163 (Cal. Ct. App. 2014
As to rights-of-way granted by Congress in 1875 and
beyond, the railroad has exclusive rights to the
surface and in addition, broad and extensive rights of
sub-lateral and subjacent support to prohibit
interference with railroad operations and maintenance.
2:16:02 PM
REPRESENTATIVE KOPP referred to Mr. Behrend's statement that
ARTA's plain language requires transfer of the federal interest
in the right-of-way, and asked where in ARTA does it read that
something the federal government does not own must be
transferred.
MR. BEHREND opined that there is no language to that effect in
ARTA, but there is language that says the federal government
must transfer at least an exclusive use easement as defined in
ARTA. He stressed that that is clear, that interest must be
conveyed and it does not talk about interest being conveyed that
is not owned. Clearly, he said, from the legislative history,
Congress appears to believe that the federal railroad had these
exclusive rights to transfer. Therefore, the real point is that
Congress found that exclusive control was necessary to run a
safe and economic railroad, and Congress determined that that
minimum interest must be transferred, and those interests were
transferred. He pointed out that it does not say that interests
that (indisc.) owned have to be transferred. From the
legislative history, it is clear that the statute was premised
on the fact that the federal railroad actually did own those
rights. He added that the Alaska folks negotiating for the
transfer of the railroad were clear that exclusive rights to the
right-of-way were necessary for them to take the step of
purchasing a railroad which had dated infrastructure, had been
losing money under the management of the federal government, and
that they clearly believed that Congress had found that
exclusive control of the right-of-way was necessary to have
"this going concern railroad." All of those issues come
together to where there is not only the direction to convey an
exclusive use easement to the state-owned railroad, but also the
federal government saying that if any party brings an action
challenging the railroad's title to its property, the federal
government will step in and defend that title. He commented
that it is an unusual provision, but it shows the importance of
that issue.
2:19:11 PM
REPRESENTATIVE KOPP asked whether Mr. Behrend was confident that
the federal government possessed an interest strong enough to
pass an exclusive use easement of the entire right-of-way to the
state.
MR. BEHREND answered that the Alaska Railroad believes it has a
strong argument to that effect and it does not question the
sincerity of those folks arguing on the other side of the
argument. Except, he remarked, the Alaska Railroad disagrees
that the 1914 Act provided the same title as, for instance, the
1875 Act. One reason it is much different, he offered, is that
the 1875 Act, as Representative Kopp correctly pointed out, was
an Act which basically went from granting what is almost
basically fee interest to an Act which granted a railroad
easement. In the case of the 1914 Act that created the Alaska
Railroad, the federal government was not directing a grant to
private railroad companies. The real problem before 1875 was
that private railroad companies tied up large swaths of land and
blocked people from its use, he reiterated. The Alaska Railroad
Act of 1914 directed the president to create up to a 1,000-mile-
long Alaska Railroad. The Act also directed "them to bring in
resources from the Panama Canal Project" to help get the Alaska
Railroad built, it did so as a way of opening up and developing
the State of Alaska, and this was to be a federally owned,
federally operated, railroad. It was not a grant of federal
land to a private company, he explained, it was the federal
government designating land to be used for a railroad, which is
a much different (indisc.). In further response to
Representative Kopp's question of comfort, he advised that these
cases which show that railroad rights-of-way, even where there
is an 1875 Act easement, it does provide exclusive rights to
the railroad. There is no question that the federal government
ran the Alaska Railroad for 60 years, it moved trains and
utility uses were made of the right-of-way, he advised. It is
the Alaska Railroad's belief that that argument is more of a
backup argument, but it is an additional argument that shows
there were exclusive rights of the right-of-way that could be
conveyed, he further explained.
2:22:13 PM
CHAIR CLAMAN noted that lawyers are good at speaking a long time
and they are also good at following time limits, he would be
putting time limits on Mr. Behrend's answers.
2:22:24 PM
REPRESENTATIVE KOPP offered that HJR 38 simply read that the
federal government cannot transfer an interest to the state that
the federal government does not own. He related that if Mr.
Behrend is confident that that did not happen, why would the
Alaska Railroad be in opposition to this resolution.
MR. BEHREND replied that the Alaska Railroad does feel
comfortable with its position, and that is the position it
depends upon every day to operate the railroad. The Alaska
Railroad believes there have been examples from his testimony
where it disagreed with some of the premises of HJR 38. The
other piece to the railroad's confidence is that it appears HJR
38 is seeking to ask Congress to take some sort of action, but
there is no specification as to the description of that action.
He reiterated that while the Alaska Railroad strongly believes
it is correct on the law, the constituents supporting this
legislation believe they are correct on the law. Therefore, he
pointed out, the court is the correct venue for review because
these are complex legal issues.
2:23:52 PM
REPRESENTATIVE REINBOLD commented that if the railroad must run,
for example, five minutes longer, that is not a huge amount of
delay to lock up the whole area for exclusive easement rights
forever. She requested a ball park figure of the total amount
of public funds that the Alaska Railroad has used for the
corporation since 1985.
MR. O'LEARY answered that as a matter of course, the Alaska
Railroad does not request state funds. In the 1990s, there was
approximately a $10 million appropriation related to the
purchase of railcars for the Wishbone Hill Project, which did
not quite materialize. He opined that approximately $80 million
was related to the bridge over the Tanana River as part of the
Northern Rail Extension, and approximately $34 million related
to the unfunded federal mandate of positive train control.
(Indisc.) over large projects that are not necessarily a matter
of daily business for the railroad has state money been
requested or received.
2:26:16 PM
REPRESENTATIVE REINBOLD commented that she thought the Alaska
Railroad should have gone to the federal government for an
unfunded federal mandate, and she was upset that the railroad
"made us use state funds" when the state was facing a crisis.
She asked how profitable the Alaska Railroad is as a corporation
and whether any money ever come back to the general fund.
MR. O'LEARY said (indisc.) our financials look more like a
private enterprise, it measures net income and on an average of
10 years is somewhere in the $12-$14 million range. (Indisc.)
capital intensive. The Alaska Railroad believes it is necessary
to put upwards of $40 million per year into its existing
infrastructure, without any type of expansion, to keep the
wheels on the wagon. He stated that the Alaska Railroad does
not pay any money into the general fund.
2:27:49 PM
REPRESENTATIVE REINBOLD requested a description of the entities
with oversight over the Alaska Railroad.
MR. O'LEARY responded (indisc.) oversees at this point as well
as all of the regulatory agencies; the Federal Transit
Administration; a seven-member board of directors appointed by
the governor with specific statutory requirements for those
board members; the Alaska Railroad reports to the legislature
and is required to go to the legislature for specific
activities; and two members of the board are commissioners of
the governor's cabinet. He commented, "We serve many masters."
2:28:58 PM
REPRESENTATIVE EASTMAN asked whether Mr. O'Leary is aware of any
other United States property law where a property owner is
paying taxes on their property, but someone else has exclusive
use to a portion of that property and is not paying taxes.
MR. BEHREND answered that he had not participated in the
response to the taxation issue, and was not aware of the issue
regarding the Flying Crown. Although, he said, he has looked at
the tax lot situation in most of the Potter Hill area in South
Anchorage, consistent with the platting of those subdivisions
which show the lots only going up to but not across the boundary
of the right-of-way, and he is only aware of one situation where
a property owner is being taxed on a lot in that area. As to
the remainder of the whole Potter Hill area, the residents are
not paying taxes on the right-of-way. He offered the example of
a taxpayer who showed the Alaska Railroad that she was being
taxed on the right-of-way; the railroad advised that it could
not directly assist her. The railroad offered to write a letter
on her behalf to the Municipality of Anchorage advising of its
belief that this person should not be taxed because the property
belongs to the Alaska Railroad, and she declined the railroad's
assistance. He commented that he is not aware of any similar
situations, and that the railroad believes the property owners
along the right-of-way are not paying those types of property
taxes, but the Alaska Railroad would be happy to write a letter
on behalf of any taxpayer paying property tax on part of the
railroad's right-of-way.
2:31:49 PM
REPRESENTATIVE EASTMAN asked, other than the cases Mr. Behrend
referred, whether he was aware of any other examples in United
States property law of such situations.
MR. BEHREND responded that his answers are based on whether
property owners are paying taxes on right-of-way property
subject to the exclusive use easements. Outside of Alaska, he
said that he does not know what typically takes place and he is
not aware of anything in other jurisdictions, but he has not
researched the issue.
2:33:15 PM
ERROL CHAMPION, Chairman, Legislative Issues Committee, Alaska
Association of Realtors, advised that the Alaska Association of
Realtors believes benefit will come if the resolution is passed
and put into place.
2:34:01 PM
KATE BLAIR, Manager, Government and Public Affairs, ENDEAVOR fka
Tesoro Corporation, advised that ENDEAVOR, fka Tesoro
Corporation, is an integrated refining logistics and marketing
company with assets across the United States; it operates ten
refineries and owns a series of pipelines, tank farms, marine,
rail; and a network of fuel stations. This is its 49th year of
operating in Alaska, refining Alaska's crude oil, and
transporting fuels and home heating fuels for Alaskans. In
2016, ENDEAVOR purchased assets in Anchorage and Fairbanks from
Flint Hills Resources and a main driver for that investment was
the rail facilities at either end. The Alaska Railroad also
moved ENDEAVOR's products into the Interior of Alaska in a safe,
reliable, and economic manner. She expressed the ENDEAVOR'S
concern with the resolution is the impact it could potentially
have on the railroad's commercial operations and its ability to
run the train at higher speeds. As the Alaska Railroad has
asserted, the unrestricted use of the right-of-way by adjoining
residents and the public would require lower train speeds of 20
mph or 16 mph in some areas. She offered that that a slowdown
would mean a significant change in the current travel time to
Fairbanks, and would change the schedule and economics of
deliveries into the Interior. While it is not ENDEAVOR's place
to weigh in on the property or landownership issues of the
right-of-way; however, if changes are made in the manner in
which the railroad has to operate, it is important to recognize
that those changes would in turn affect ENDEAVOR's fuel delivery
and make transportation into the Interior more expensive.
2:35:52 PM
REPRESENTATIVE EASTMAN asked Ms. Blair to distinguish what would
legally require the operator to travel at those slower speeds so
he can explain to his constituents that it is not politically
motivated.
MS. BLAIR pointed out that ENDEAVOR is not the operator of the
Alaska Railroad, it works with the railroad and is ENDEAVOR's
operator. In the event the railroad tells ENDEAVOR that due to
safety through the right-of-way, it must travel at slower speeds
then ENDEAVOR must trust the Alaska Railroad's decision because
safety is ENDEAVOR's number one core value.
2:37:35 PM
BARBARA HUFF-TUCKNESS, Director, Governmental and Legislative
Affairs, Teamsters Local 959, advised that the Teamsters Union
is opposed to HJR 38 because legal arguments should be left with
the attorneys. There should be concern regarding the safety of
not only the Teamster memberships working for the railroad, but
also for the public. This resolution, as written, threatens and
undermines the protections offered by an exclusive use right-of-
way, and it could create uncertainty as well as potential
financial liability for the railroad. The Alaska Railroad's
full control of its access to the right-of-way and the
particular buffer, is important to the successful operation of
the trains when traveling at higher speeds when transporting
passengers and freight through the state. She advised that
reducing the effectiveness of the trains by reducing speeds
would have a huge negative impact on the railroad's ability to
meet delivery times and force many people to look at other means
of transportation, she pointed out. Alaska does not have a lot
of roads and there has always been a working relationship
between the truckers and the railroad as to how the different
goods and services are transported around the state.
Additionally, she said, the elimination of exclusive control of
the right-of-way reduces revenues for the railroad and also
creates an unsafe situation.
2:40:15 PM
REPRESENTATIVE EASTMAN asked whether her concern was based on
her own legal analysis, or was she simply taking the perspective
of the Alaska Railroad as far as the requirement for reduced
speeds and so forth.
MS. HUFF-TUCKNESS answered that it is not a legal perspective
and that she is not an attorney. She advised that the
perspective of the Teamsters is due to its discussions with
members that actually work on the railroad, and it is her
understanding that the reduced speeds would be throughout all of
the miles of the track itself. She advised that she took a
train ride this summer and it took eight hours to travel from
Anchorage to Denali, and there were areas where the train did
slow down which was possibly to view wildlife.
2:41:32 PM
REPRESENTATIVE REINBOLD commented that she heard testimony that
slowing the train down to 20 mph would increase safety and
possibly slowdown delivery times, but she could not see how
arriving five minutes later was a huge crisis and prevented the
railroad from working with the property owners and being a good
neighbor. She asked how slowing a train down could impact
safety.
MS. HUFF-TUCKNESS opined that the Teamster's counsel read this
resolution and noted that it asks Alaska's congressional
delegation to actually re-interpret the law. In the event the
law was to be re-interpreted and one side did not like the
decision, the parties would ultimately end up in court. The
safety part would be a requirement and a concern that if the
railroad did not have any control over those areas of right-of-
way any longer, to make certain children were not running out
into the middle of the track or cars traveling through, if there
were not any crossings or any protections for that right-of-way
area. From her perspective, she said, the slowdown would be for
protection because the railroad no longer had control of the
right-of-way.
2:43:35 PM
REPRESENTATIVE KOPP asked whether she could imagine why a
property owner would opt for conduct that would cause a spill on
their property or a disaster on their property that would get
them hurt or killed.
MS. HUFF-TUCKNESS replied that she was unsure how to answer that
question, she knows that individuals have been killed wherein a
child was killed the Municipality of Anchorage where fences had
been constructed.
2:45:03 PM
CHARLES DILLARD, Inspector, Brotherhood Railway Carmen, advised
that he is a 50-year employee of the Alaska Railroad, and has
worked on railcars almost his entire life. He noted that he
represents the 40 members of the Brotherhood Railway Carmen
Division of the Transportation Communications International
Union (TCU) at the Alaska Railroad, of which he is member. On
behalf of the members of TCU, he asked the committee to oppose
HJR 38 because it is an incredibly important issue for those
working at the Alaska Railroad, he described. For the 50-years
he has worked at this job, he pointed out that safety has been
its highest priority, and making safety a priority is what has
allowed him to arrive home every night. This resolution greatly
reduces the ability to operate a safe railroad, it asks Congress
to remove the Alaska Railroad's exclusive control of the right-
of-way, and after working for 50-years the railroad has always
had exclusive use. This resolution poses a safety risk to all
of the Alaska Railroad employees who work on the tracks because
they would not have a say in what happens in the right-of-way.
The resolution also poses a threat to their jobs because the
railroad would have to significantly reduce speeds in areas
without its exclusive control. This could make it nearly
impossible to move passengers and freight in a timely manner and
it would cause the railroad to lose business. (Indisc.)
encouraged the committee to vote no on HJR 38.
2:47:44 PM
JAMES ABITZ, Brotherhood Railway Carmen, advised that he
represents the 40 members of the Brotherhood Railway Carmen
Division of the Transportation Communications International
Union (TCU) and asked the committee to oppose HJR 38. He said
that this is an incredibly important issue for those working at
the Alaska Railroad and this resolution asks Congress to remove
the Alaska Railroad's exclusive control of the right-of-way of
which it has always possessed. This resolution poses a safety
risk to all of the Alaska Railroad employees who work on the
tracks because they would not have a say as to what happens in
the right-of-way. It also poses a threat to their jobs because
the railroad would have to significantly reduce speeds in areas
without its exclusive control. This could make it almost
impossible to move passengers and freight in a timely manner and
would cause the railroad to lose business and it could cause
many members to lose their jobs. He asked the committee to
recognize that the disagreement over who owns the land should
take place in the courts to legally determine who is right and
who is wrong. He said that it is not something that should take
place politically by going back and changing the law to suit the
desires of some people.
2:49:35 PM
VERN GILLIS, Conductor, Alaska Railroad Corporation, United
Transportation Union Representative, advised that he has worked
in the transportation industry for 28 years, he is a conductor
with the Alaska Railroad, and it is his responsibility to move
passengers and freight safely and efficiently. He said he
represents 150 members who strongly oppose HJR 38 due to
concerns that opening up the right-of-way will only increase the
dangers to the public and the railroad. As a conductor, he said
that one of the worst feelings he has experienced is coming
around a curve and looking into the eyes of trespasser who has
no idea whether they should move to the left or to the right to
escape the train. In most cases, he said, people freeze and are
unable to move, parents teach with instincts, and one of the
most important things parents teach their children is not to
play in the road, and to not play in the right-of-way of which
he is trying to work.
2:50:53 PM
LEE DAVIS, Conductor/Engineer, Alaska Railroad Corporation,
United Transportation Union Officer, advised that he has been an
engineer for 25 years (indisc.) interactions. He then offered
one of his most frightening experience as an engineer working in
Girdwoood wherein a man was walking with his two young
daughters, one five years and one younger, and when they heard
the whistle, the man stepped off the tracks on one side and his
daughter stepped on the other side. The few seconds between
when they started blowing the horn, the older daughter made a
few steps to the tracks and cut across in front of the train to
get back her father while he was telling her to stay. On March
13, 2018, 23-year old Skyler Luke was struck and killed by an
Alaska Railroad train between "C" Street and Arctic Boulevard.
Immediately, the engineer blew the horn, rang the bell, applied
the brakes, and he was that engineer, he related. (Indisc.)
fatalities (indisc.) nationwide (indisc.) employees volunteer
for training to assist crew members involved in serious
accidents, and they have that support at the Alaska Railroad.
Each time a train makes an emergency stop, there is a risk that
the train will break apart and cause derailment. (Indisc.)
involve (indisc.). There are many more examples of people on
the tracks who are killed or injured, it is certainly a more
dangerous place than it appears. He asked the committee to
leave control of the right-of-way in the hands of the Alaska
Railroad in order to provide a safe environment for himself, his
co-workers, and the citizens living along the tracks.
2:53:33 PM
TOM MEACHAM, Attorney, advised that he does not represent any
party involved in the HJR 38 issue, but he is familiar with the
statute that transferred the railroad from the federal
government to the state. He related that Mr. Behrend, perhaps
conveniently, ignored the fact that the only two areas of
substantive operative law in the Alaska Railroad Transfer Act in
which exclusive use easements are imposed, are the federal lands
in the Denali National Park and Preserve and the unresolved
Native Land Claims. He opined that Representative Kopp
accurately outlined the situation here and explained why HJR 38
is necessary. He pointed out that during 70 years of the
operation of the Federal Alaska Railroad, without it asserting
an explicit exclusive use easement, was successful. In fact,
the portion of the exclusive use easement that upset most people
is the fact that the railroad (indisc.) can fence the land and
prevent any other use, even use that is compatible with railroad
operations. Another point, he emphasized, is that under a
specific provision in ARTA, any unresolved issues regarding the
rights of the railroad and other properties, owners, or
claimants, are to be resolved by the Secretary of the Interior.
He commented that Representative Kopp asked the Alaska Railroad
for a list of all conflicting claims resolved through this
provision, and he has not yet received the list. Mr. Meacham
related that he ventures to say that none of the 200-private
homesteader-type landowners along the railroad were involved in
any such adjudications because they did not take place.
2:55:54 PM
JOHN PLETCHER advised that he is a resident of Anchorage, a
member of the Old Seward/Oceanview Community Council Railroad
Committee, and his website is www.railroadedAlaska.com regarding
the background of the exclusive use easement issue. He referred
to the mention of trespassers, and stated that trespassers do
not get on the tracks over private property, they get on the
track via road crossings, of which is a public area, and
somewhat via parks. Several years ago, he recalled, a woman got
out of her car in the Potter area, walked up onto the railroad
tracks, took a picture, and was run over by a train. He related
that "all of this" has nothing to do with HJR 38 because the
resolution only goes to the issue of how the federal government
managed to convey property rights that the federal government
did not own. The property rights owned by the federal
government across homestead land is the reservation for
railroad, telegraph, and telephone found in every federal land
patent along the tracks. While thoroughly researching this
issue, he said he found that (indisc.) railroad telegraph and
telephone easement was what Governor Jay Hammond called the
"Standard Easement in Alaska" for railroads. Governor Hammond
explained that it was a national standard created under the
General Railroad Act of 1875. In a letter of March (indisc.) to
the United States Congress, during the time the "Fence Act" was
pending, "He said that he hoped" it would be the easement even
for rail extensions, such as going into Canada. There is no way
that Governor Hammond would have gone along with changing it, he
stressed, and offered that during his interview with United
States Representative Don Young, he confirmed that there was no
intention to change this "vested property rights and homestead
patents."
2:58:24 PM
STEPHEN MCALPINE advised that he is with the Regulatory
Commission of Alaska; however, he was speaking as a private
individual. He related that he was the Lieutenant Governor at
the time the Alaska Railroad Transfer Act (ARTA) had been
finalized and the state was securing the actual transfer. He
said that he could assure the members of the House Judiciary
Standing Committee, the Alaska Legislature, and the Alaska
public that an overriding concern, one of the most important
concerns they experienced, was that the Alaska Railroad would
have an exclusive easement. When pondering the issue, he
related, Alaska is one of the few states with an easement that
runs "clear across the state" from Prudhoe Bay to Fairbanks,
travels on to Valdez with the Trans-Alaska Pipeline System, and
down to Seward with the Alaska Railroad. This resolution is
actually a license to trespass, he stressed, and one could say
it almost rises to the level of advocating larceny. The court
is the venue where "these people should go" if they believe ARTA
is contrary to law because in every other circumstance, the
court is where legal disputes are settled. He expressed that
the intent of this resolution is for the Alaska Legislature to
adopt a resolution in support of the proponents' position so
they can take it to the United States Congress and parade it
before the federal body saying that they have the support of the
State of Alaska and to go back and amend ARTA.
3:00:10 PM
FRED ROSENBERG, Owner, Dimond Capital Company, advised that he
owns the Dimond Capital Company on Dimond Boulevard in Anchorage
where the Red Robin Gourmet Burgers is currently located.
Everyone wants safety, he commented, but the Alaska Railroad
says that it needs the exclusive right-of-way to be safe.
Except, he pointed out, this is not a question of its need, it
actually is a question of property ownership and property
rights. This resolution is simple because property owners have
a fee simple ownership dating back to the lineage and real
estate title from a patent. The federal and state governments
apparently tried to transfer certain rights, "or did it
unclearly," but [the federal government] didn't have the right
to transfer. It is like a person owning their home and having
someone else transfer rights to the person's property without
their knowledge or proper authority. Simply put, he remarked,
the conveyances being discussed infringe on private property
rights, they are not valid, and the titles to these properties
in question and the railroad's claim should not be considered.
Those claims should be expunged to not impair the property
rights of private property owners. The railroad refers to
"other issues or other railroads" around the Lower-48, except
the properties in Alaska have fee simple ownership due to the
manner in which it came about and are not the same as the
properties in the Lower-48. Alaskans have fee simple ownership
dating back to an original federal patent and no one has the
right to abridge that right of the property owner, he stated.
3:02:11 PM
HUGH ASHLOCK, Owner, Dimond Center Mall, advised that on behalf
of (indisc.) annual customers and his family (indisc.) over 40
years, they are concerned about the cloud this creates on his
family's title because his father purchased the property
(indisc.) homesteader. Through the Alaska Homestead Act he has
rights that are (indisc.) worth in excess of $100 million, and
they recently invested an additional $40 million into the
shopping center so they have a large economic concern.
3:03:32 PM
JODI TAYLOR, Church of Jesus Christ of Latter Day Saints,
advised that the Church of Jesus Christ of Latter Day Saints
owns 80 acres of property located in Willow, Alaska, and the
church has approximately 34,000 members in Alaska, and several
youth camps, salmon camps, young adult camps use that property.
The Alaska Railroad runs through part of its property and in
early 2000, the railroad mandated that the church install a 6-
foot high fence 500 feet on either side of the railroad, and the
church would receive one mandate on either side of the property
to let people come in and travel out with one vehicle gate. The
Alaska Railroad, in 2005, asked the church to rip down that
fence and put in another fence. She explained that the first
mandate from the railroad was that the fence was to be 50-feet
off the center of the tracks, and the second mandate was that
the fence was to be 100-feet off the center of the tracks. Both
of these mandates were at the church's expense, the church put a
padlock on the vehicle gate, and the railroad cut the church's
padlock off and put its own padlock on the gate. Thereby,
preventing the church from access to the lakefront portion of
the property it owns. (Indisc.) with youth, young adults, and
families, and if a problem were to arise at the lakefront, the
church could not provide access for the first responders, or
otherwise, to get through to the lakefront property to assist.
She said the church supports the right for the railroad to have
safety, but it also believes that this resolution provides a
common-sense solution to letting property owners manage their
property.
3:05:25 PM
ROBERT TIMMINS advised that he echoed everything Jody Taylor had
to say about HJR 38, and that he is in full support of the
resolution. He said he is also a member of the Church of Jesus
Christ of Latter Day Saints, has been to the camp, and he
realizes the injustice this resolution will resolve. He
encouraged the committee to understand the veracity of Ms.
Taylor's testimony.
3:06:20 PM
CHAIR CLAMAN, after ascertaining no one wished to testify,
closed public testimony on HJR 38.
3:06:48 PM
REPRESENTATIVE LEDOUX referred to HJR 38, page 3, lines 28-31
and page 4, line 1, and commented that the entire intent of this
resolution is to encourage Congress to recognize "validly held
private property rights that were not conveyed under the Alaska
Railroad Transfer Act of 1982." Except, she related, whether or
not there were validly held private property rights that were
not conveyed under the Alaska Railroad Transfer Act (ARTA) does
not actually seem to be something Congress can do because
Congress is not a court that makes legal decisions about what is
validly held and what was not conveyed. Representative LeDoux
acknowledged that she is a lawyer but not a property lawyer, and
described that the discussions sound like a bunch of "legal
gobbledy goop" about rights-of-way. She related that she
doubts, other than the property attorneys listening to this
hearing, that anyone actually knows whether the railroad is
correct or Representative Kopp is correct. She related that she
will not try to keep this resolution from moving forward, but
she is unsure what the resolution actually does because it
appears that this issue should be decided in the courts.
3:09:06 PM
REPRESENTATIVE REINBOLD advised (indisc.) knows the Timmons and
Taylor families who have been outstanding neighbors, and to
think, see, and hear, what the railroad is doing, and when these
"big bullies" cut the padlock off the fence, is the type of
actions that cause her to lean closer to supporting this
resolution.
3:10:02 PM
REPRESENTATIVE KOPP said (indisc.) contention is that while the
Alaska Railroad Transfer Act (ARTA) directed that the federal
interest be transferred to the state, it was the United States
Department of Interior that inexplicably and indefensibly
transferred more than what the federal government owned in these
2005 and 2006 land patents without any notice to the affected
landowners. That, he explained, is where the misapplication of
a federal agency became involved and Congress is necessary to
resolve that issue.
[HJR 38 was held over.]