Legislature(1995 - 1996)

04/17/1996 08:04 AM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 HB 331 - POSTING OF BOND BEFORE LAND ENTRY                                  
 Number 202                                                                    
 SARA FISHER, Legislative Aide to Representative Gene Therriault,              
 said that HB 331 simply clarifies that the act of staking a mining            
 claim does not require permission of the surface owner or require             
 bonding where the surface is no longer owned by the state.  This              
 ambiguity has the potential of involving the department in                    
 resolving disputes from the mere act of staking.  Hopefully, HB 331           
 helps to avoid these potential future costs to the department.  She           
 invited questions from committee members.                                     
 CO-CHAIRMAN GREEN asked if there were any questions of the sponsor.           
 Hearing none, he announced the committee would hear testimony via             
 Number 259                                                                    
 JULES TILESTON, Director, Division of Mining & Water Management,              
 Department of Natural Resources, said this legislation was                    
 introduced late in the session last year and a support of the bill            
 analysis and a zero fiscal note had been forwarded at that time on            
 the knowledge that this bill would come up again.  The division               
 took another look at what they said last year and that position               
 still stands.  The division's basic concern is there is a potential           
 situation which could go back to Statehood where mining claims                
 located on property where the state no longer holds the title might           
 be in jeopardy by the mere fact that they did not have permission             
 from the surface owner to go in.  The division believes this is an            
 unreasonable and untenable risk.  He said, "Accordingly, we not               
 only support the bill, but we do recommend one addition and that is           
 the bill be effective retroactively to the date of Statehood                  
 because the basic statute was passed in the first legislature at              
 that point in time.  One other thing, posting requires a discovery;           
 discovery does not require in all cases -- you have a D-9 digging             
 up somebody's flower bed as an example.  With our remote sensing              
 technologies today, a lot of the discoveries are being done by such           
 things as the aeromagnetic studies in Fairbanks.  A lot of claims             
 have been properly located on that method so we're not talking                
 about something where private property is at risk, in my judgment."           
 Number 335                                                                    
 REPRESENTATIVE DAVIES said he understood there was a lawsuit on               
 this issue and asked Mr. Tileston to describe the lawsuit and what            
 the retroactivity would do to that situation.                                 
 MR. TILESTON said he would give a brief overview.  There was a                
 court suit dealing with metal values associated with the AJ rock              
 dump.  There had been production and gold recovered from the rock             
 dump prior to the individual (indisc.) to go into staking.  There             
 was a dispute between the surface owners and the individual trying            
 to stake the claims.  The Superior Court made a ruling that the               
 staking could not take place without the consent of the landowner.            
 It was recently held by the Supreme Court.                                    
 REPRESENTATIVE DAVIES asked if it was a private landowner who had             
 the land?                                                                     
 MR. TILESTON replied, "Yes, it was.  It was right there at Juneau."           
 REPRESENTATIVE DAVIES asked if this bill would give permission for            
 people to go on private land to stake mining claims?                          
 MR. TILESTON responded the state maintains full and absolute right            
 to the subsurface minerals for any land the state has previously              
 owned.  He added that is covered under AS 38.05.125.  That                    
 reservation is a absolute right for the state to go in; it does not           
 give the absolute right to go in and damage another property and              
 that's what AS 38.05.130 is intended to protect.  This bill amends            
 AS 38.05.130 by exempting the physical staking, which is the                  
 posting of the corners from the bonding and permission                        
 REPRESENTATIVE DAVIES asked what kinds of things would be permitted           
 under staking?  For example, would a person be allowed to clear               
 survey line of sight to put stakes in?                                        
 MR. TILESTON replied, "No.  You could do your line by simply                  
 Number 475                                                                    
 CO-CHAIRMAN GREEN asked, "Are mineral rights for example, say a               
 surface mine, similar to oil rights in that surface damages would             
 have to be paid?"                                                             
 MR. TILESTON said that was true and added AS 38.05.130 requires the           
 consent agreement and bonding for all surface disturbing uses                 
 associated with mining.                                                       
 CO-CHAIRMAN GREEN asked if it was Mr. Tileston's feeling that                 
 staking would not be sufficient disturbance to cause any damages or           
 need to repay?                                                                
 MR. TILESTON affirmed that.                                                   
 Number 515                                                                    
 REPRESENTATIVE IRENE NICHOLIA asked if a permit was needed to stake           
 a mining claim?  Also, wouldn't the individual have to furnish a              
 map of the claim?                                                             
 MR. TILESTON responded that permission was not required to stake              
 which is what was being discussed.  He added, "If you are going to            
 do something in the way of using mechanical equipment to actually             
 mine, you are required to have permission for that."                          
 Number 551                                                                    
 REPRESENTATIVE DAVIES inquired if there are other instances, apart            
 from the AJ mine situation,  where this has been a problem.                   
 MR. TILESTON responded no.                                                    
 Number 566                                                                    
 CO-CHAIRMAN GREEN asked Steven Borell to present his testimony.               
 Number 569                                                                    
 STEVEN C. BORELL, P.E., Executive Director, Alaska Miners                     
 Association, Inc., testified from Anchorage that a letter of                  
 support for HB 331 could be found in committee member's packets.              
 He noted this bill doesn't change anything.  It maintains the                 
 status quo that the industry and the state has understood since               
 Statehood in that indeed the mining claim could be staked, but no             
 surface disturbance could take place until permission of the                  
 surface owner occurred.  He said, "That's the hallmark of the past            
 practice, of past interpretation and that's what this bill would              
 maintain in place.  It doesn't change anything at all in state                
 practice or interpretation.  To comment briefly on Representative             
 Davies' question previously, I agree with Director Tileston that              
 there has not, to my knowledge at least, been any other instances             
 than the one there at the AJ rock dump.  However, in your district            
 in particular, are areas where there could very likely be, and I              
 would suspect there will be, instances where say a small surface              
 stake has been - say 5 acres or 10 acres - is held by a surface               
 owner and the mining claim has been staked over a large area, and             
 somewhere off in the middle of this large area is this 5 acre plot.           
 Obviously, before any surface disturbing activity can take place,             
 that individual is going to have to concur in that.  But, we just             
 believe it's unreasonable that those minerals which have been                 
 reserved by the state would be sterilized, if you will, by the                
 requirement to have to have the permission of the surface owner               
 just for the mere purpose of staking the claim."  He invited                  
 questions from committee members.                                             
 Number 677                                                                    
 REPRESENTATIVE DAVIES agreed there were many circumstances in his             
 district where there are even borough subdivisions on top of areas            
 that have valid, and in some cases, patented claims.  His concern             
 is that we don't want to set up a situation of introducing                    
 unnecessary conflict.  It was his understanding that the normal               
 practice is that a person going on someone else's property would at           
 least notify them and ask permission in a polite way, even if not             
 technically required by law.  He wondered if there shouldn't be               
 some reasonable notice required to a property owner before a person           
 goes on the property to avoid a situation of unnecessary conflict.            
 MR. BORELL commented he had seen no such conflicts in the past.  No           
 one has raised that as an issue and it has not been a concern.  He            
 added, "If you will, state mining claims are 40 acres and a 4-inch            
 by 4-inch wooden post, typically a small block of wood with a piece           
 of rebar to drive in the ground, with a block of wood sitting on              
 top of a piece of rebar, that forms a claim for them, so any                  
 disturbance that would be caused by an individual placing that 4-             
 inch by 4-inch block of wood and the little aluminum plate that               
 goes on it, I sure can't see that that's any damage."                         
 Number 790                                                                    
 REPRESENTATIVE DAVIES said his concern wasn't that damage was being           
 caused, but rather of perceived trespass.  He realized this hasn't            
 occurred very often.  He questioned why the statute was needed if             
 there wasn't a problem.  Also, if the statute was going to be                 
 changed in such a way that permits entry onto private property with           
 no requirement of notice or permission, he was concerned about                
 setting up a situation of trespass that could lead to hostilities.            
 MR. BORELL noted that statutory authority is in place currently.              
 The current need is because of the court case.  The danger is that            
 if the Supreme Court were to rule that the mining claims on the AJ            
 rock dump were void by virtue of not having permission from the               
 surface owner, all of a sudden throughout the Fairbanks district              
 there would be a multitude of court cases arguing that various                
 mining claims were void because the surface owner had not been                
 notified.  He added the problem is not with the status quo; the               
 problem is if the state Supreme Court were to rule that those                 
 claims were void.                                                             
 Number 890                                                                    
 REPRESENTATIVE DAVIES said he understood that, but he thought Mr.             
 Borell was avoiding his question about reasonable notice.  He asked           
 if there was anything that would be harmful to the mining industry            
 to require some kind of reasonable notice?                                    
 MR. BORELL responded he wasn't trying to bypass the question, he              
 just failed to address it.  He said, "The situation will exist if             
 you have to give notice to someone, a spark - a light bulb is                 
 surely going to come on and they will then have pre-notification              
 that your personal energies and time and exploration throughout the           
 district have shown that there might be something valuable.  And if           
 they're told there might be something valuable, they are very                 
 likely to jump out there right quick and put their own claim                  
 corners down.  You would expect a prudent person to do that."                 
 Number 943                                                                    
 CO-CHAIRMAN GREEN noted that it's an awkward situation when the               
 mineral rights are different from the surface rights.                         
 Number 953                                                                    
 REPRESENTATIVE DAVIES commented that perhaps something could be               
 worked out where the notice would prevent the private property                
 owner from staking.  He added there should be some reasonable time            
 limits involved, but he thought there should be some way to solve             
 that problem.  He was uncomfortable with the notion that a person             
 would expect someone to show up on their property without any                 
 Number 980                                                                    
 REPRESENTATIVE OGAN asked if there were lines shot and surveyed               
 when the properties were staked?                                              
 MR. BORELL responded that currently they are done just by a GPS               
 unit.  He added, "You'll position them and there will not be an               
 actual survey until such time as you go to perfect it - as you go             
 to put your -- obviously at a later date - put your operating plan            
 CO-CHAIRMAN GREEN asked if there were any other questions of Mr.              
 Borell.  Hearing none, he asked Mic Manns to testify.                         
 Number 1022                                                                   
 MIC MANNS, Representative, Paradise Valley Mines, testified from              
 Fairbanks that Paradise Valley Mines and Rich Hughes of the Ryan              
 Gold Mine supported HB 331.  He noted there are already laws that             
 require that before any surface disturbance by anyone on a piece of           
 property can take place, the person doing that must acquire both              
 bonding and insurance sufficient to pay for any damage or damages.            
 Number 1082                                                                   
 CO-CHAIRMAN GREEN asked if there were any questions of Mr. Manns.             
 Hearing none, he announced that concluded the testimony via                   
 Number 1096                                                                   
 REPRESENTATIVE KOTT moved a conceptual amendment to make the bill             
 retroactive to Statehood since it appears this is the practice that           
 has been ongoing and understood by not only the industry but also             
 by the Division of Mining.                                                    
 CO-CHAIRMAN GREEN asked if that would add a Section 2 with an                 
 effective date.                                                               
 REPRESENTATIVE KOTT said that would allow for the drafters to work            
 it in and it would probably be Section 2.                                     
 CO-CHAIRMAN GREEN asked if there was discussion or objection to the           
 conceptual amendment?  Hearing none, the conceptual amendment was             
 Number 1138                                                                   
 REPRESENTATIVE DAVIES expressed his ongoing concern about                     
 notification and requested the bill be held in committee to allow             
 time to think about an amendment.                                             
 Number 1174                                                                   
 CO-CHAIRMAN WILLIAMS said in the interest of time remaining in this           
 legislative session, he made a motion to pass HB 331 out of                   
 committee with individual recommendations and attached fiscal                 
 CO-CHAIRMAN GREEN noted that would allow for an amendment in the              
 Finance Committee.  He asked if there was any objection?                      
 REPRESENTATIVE DAVIES objected.                                               
 CO-CHAIRMAN GREEN asked for a roll call vote.  Voting in favor of             
 the motion were Representatives Austerman, Kott, Ogan, Williams and           
 Green.  Voting against the motion were Representatives Davies and             
 CO-CHAIRMAN GREEN announced that CSHB 331(RES) was moved from the             
 House Resources Committee.                                                    

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