Legislature(2013 - 2014)BUTROVICH 205
03/13/2014 01:30 PM Senate TRANSPORTATION
| Audio | Topic |
|---|---|
| Start | |
| SB178 | |
| SB94 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 94 | TELECONFERENCED | |
| *+ | SB 197 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 178 | TELECONFERENCED | |
SB 94-RIGHTS-OF-WAY
2:05:05 PM
CHAIR EGAN announced SB 94 to be up for consideration [SSSB 94,
version 28-LS0516\C was before the committee].
2:05:43 PM
DAVID SCOTT, staff to Senator Donald Olson, sponsor of SB 94,
explained that SB 94 offers ease of mind to private landowners
that have RS-2477s (public access easements) going through their
properties. Section 1 deals with a specific RS-2477 that would
be explained later. Section 2 limits RS-2477s that cross private
lands to a 60 ft. width and for the purpose of transportation.
Another subsection allows the state to perform routine
maintenance, repair, and make necessary improvements to preserve
the transportation use of the right-of-way (ROW). It also
requires the state to consult and gain permission from the
private land owner prior to making improvements other than
routine maintenance and repair. It allows for mediation of
disputes between the state and a private land owner and it also
requires the state to consult with the land owner who owns the
underlying land if the ROW has been damaged beyond repair and
needs to be realigned. The eminent domain section of law is in
that same section (page 3, line 5) AS 09.55.240 - AS 09.55.460.
The bill has a zero fiscal note.
2:08:29 PM
SENATOR FAIRCLOUGH directed attention to page 2 of the fiscal
note that indicated the loss of value of these routes would
exceed $48.5 million, assuming a $1,000 per acre base cost for
the land along the public access. She asked if there is any RS-
2477 access on the TAPS.
MR. SCOTT said he didn't know.
SENATOR FAIRCLOUGH asked if there is any RS-2477 in Parks.
MR. SCOTT said he knew of some in the Wrangell St. Elias Park.
SENATOR DYSON asked what happens on page 2, line 14. It says,
"before improvements other than routine maintenance the state
shall consult with and gain permission from the private land
owner." Taken in isolation, that would seem that they couldn't
go forward without permission, but then line 25 says if they
don't come to agreement then there is mediation. He thought
things stopped without the agreement of the land owner, but they
don't, and he wanted to know what was going on.
2:12:01 PM
JOE BOVEE, Vice President, Land and Resources, Ahtna
Incorporated, Glennallen, Alaska, supported SB 94. He explained
that basically that meant notification of the land owner for any
improvements where they would be widening the road and
installing bridges and culverts, something outside the 60 ft.,
but if they couldn't come to terms of agreement in working
outside the ROW, then they would go into mediation.
SENATOR DYSON asked if they could go to court if they don't
agree at the end of mediation.
MR. BOVEE said that is the idea.
SENATOR DYSON asked what problem they are trying to solve in
that section.
MR. BOVEE said he had a power point that might answer some of
his questions.
SENATOR BISHOP asked if there is a dispute resolution process if
an agreement can't be reached under mediation.
MR. BOVEE didn't know how that would go.
2:14:34 PM
At ease from 2:14 to 2:17 p.m.
2:17:58 PM
CHAIR EGAN called the meeting back to order and invited Mr.
Bovee to present his power point.
MR. BOVEE explained that the RS-2477 is an obscure 1866 mining
law statute that was prepared for the western states and the
Alaska Territory to encourage development. The word "highway"
was historically used to refer to "foot trails, pack trails,
sled dog trails, crudely built wagon roads, and other corridors
for transportation." Most of the RS-2477s in the state were
developed either as Indian and mining trails and eventually
became some of the state's major highways, such as the Farmer's
Loop Rd. in Fairbanks and the Debarr Rd. in Anchorage.
2:19:26 PM
In 1998, the Alaska Legislature provided for the public's right
to use these historic access easements, and that "every effort
should be made to minimize the effect on private property
owners." The intent was for the agencies and the administration
to work with the private land owners. Currently there are 669
RS-2477s; out of those, 142 are located in the Ahtna region.
SENATOR DYSON asked if most of the lands on his map were Native
held lands.
MR. BOVEE answered yes; Ahtna lands contain 402 linear miles of
RS-2477-classified roads. If the ROWs are 100 ft., which the
state is encouraging them to be, over 9,000 acres of Ahtna land
would be consumed. Ahtna lands also contain 221 linear miles of
17(b) easements, required under the Alaska Native Claims
Settlement Act (ANCSA) allowing travel across private lands to
public lands on the other side. There are 520 miles worth of
17(b) easements that are duplicative of RS-2477s.
SENATOR FAIRCLOUGH pointed out that bullet 2 said, "proposed 100
ft. right-of-ways" and asked why the word "proposed" was used.
MR. BOVEE answered that there is a real loose definition of
these RS-2477s and this bill is trying to define and interpret
the regulations. Even today it is uncertain who has the
authority over RS-2477s, the feds or the state.
2:23:03 PM
He showed several slides of easements. One was Cantwell, the
access into Denali National Park referred to as Windy Creek
Trail. He stated that RS-2477s are a burden on the underlying
landowner. They are never really described in a deed or a
patent, and it's hard to find out. Often the trails were
constructed as the shortest point between point A and point B.
2:25:06 PM
As a solution they propose limiting the scope of use of RS-2477s
to transportation purposes only across private lands as well as
limiting the physical width of the ROW to the established or
historical use of the route. (An Assistant Attorney General said
that these trails would be defined with their previous
historical use whether they were 25 ft. or 150 ft. as on some of
the state highways). They also propose to limit the state's
authority to maintain, repair and improve the ROW; the state
would still have the authority to do the maintenance within a 60
ft. ROW, but for anything outside of that permission from the
underlying private land owner would be needed.
2:26:30 PM
SENATOR FRENCH asked who pays to maintain that trail [referring
to the Parks Highway, mile 228].
MR. BOVEE answered that it also serves as an access for Golden
Valley Electric Association, and their agreement with them is to
"backplate." Primarily that trail is used only for hunting,
horse travel and light-use ATVs.
SENATOR FRENCH asked if the maintenance was paid for by Golden
Valley.
MR. BOVEE responded that was another consideration with
establishing all these RS-2477s; there is no management plan or
money to development or maintain them. A DOTPF representative
told him that there are 10,000 miles of RS-2477s across the
state on private lands. Local people take care of them.
SENATOR FRENCH asked if it was fair to say that he didn't know
who pays to maintain that road.
MR. BOVEE said there are no maintenance funds at all.
Occasionally, the BLM (since this is duplicative of a 17(b)
trail) does some, but mostly the owners do what they can to
maintain roads or trails, because it keeps people off of their
property.
2:28:19 PM
SENATOR FAIRCLOUGH asked if a 17(b) easement is BLM property.
MR. BOVEE replied that 17(b) is a provision in ANCSA that
provides a federal easement across private ANCSA land from
public land to public land. The owner of the trail is
technically Ahtna, Inc. and BLM through the federal government
is supposed to allocate funds to maintain these, which they
haven't. So, he cautioned, if the state exerts a lot of these
RS-2477s across the state, someone is going to be responsible
for maintaining them, but eventually the state would be on the
hook.
SENATOR BISHOP asked if he knew how many 3 ft. wide walking
trails have been identified.
MR. BOVEE didn't know, because the state asserts that they are
all 100 ft. He said Ahtna signed an MOU with the DOTPF, ADF&G,
and DNR last year to meet quarterly, so issues could be resolved
early. He stated that Ahtna is not trying to stop development,
but wants to do it in a "good stewardship" and sustainable
fashion. Specifically, the Klutina Lake Road that travels up
from the Richardson Highway to the head of Klutina Lake not only
crosses Ahtna property for about 22 miles, it also crosses
private non-ANCSA properties.
He said people have been developing places to recreate, but
there is no management plan in place for what to do when people
come there: how to take care of the trash and to put out fires.
It's good to have the discussion now.
2:32:50 PM
SENATOR BISHOP said he had also experienced the maintenance
problems and understood what he was talking about.
2:34:15 PM
GEORGE HELMS, representing himself, Anchorage, Alaska, supported
SB 94 in its current version. He was one of the private property
owners affected by this bill. When the state exerted [sic] these
rights in his area, they picked the route and didn't give the
property owners any say. The 100 ft. route will encompass man-
made development that currently exists including cabins, decks,
and sheds. This bill will help limit the use of that to just
transportation. He had suffered losses from break-ins and
malicious behavior. He was also hearing that the department will
take not only the RS-2477s but the potential for arterials for
which the state could take more land.
2:36:29 PM
NICOLE BORROMEO, General Council, Alaska Federation of Natives
(AFN), Anchorage, Alaska, supported SB 94. It generally seeks to
remedy the effects of RS-2477s that threatens to thwart the
effective management of much of Alaska's lands due to several
uncertainties including which rights-of-way were accepted prior
to the act repeal. The remedy in SB 94 is to narrow the ROW
widths and confine them to transportation and emergency purposes
and to redefine the state's authority to maintain, repair, and
improve them.
2:38:11 PM
RANDLE MAULDIN, representing himself, Birchwood, Alaska,
supported SB 94. He is a private property owner on Klutina Road
and if they were to widen access along the lake, it would almost
take out several of his cabins and camp sites. The road never
came as far as his place and stopped at what is called "The Boys
Camp," and then the local people as they went to their
recreational places punched a trail to bring materials in. He
has had problems with vandalism, but he put a gate on the road
and stopped it. He said an easement runs around the private
properties that the state could use if it wanted to make a small
trail; it's what the property owners use for the ATVs.
2:40:50 PM
SENATOR FRENCH asked whether the administration supports this
bill.
KENT SULLIVAN, Assistant Attorney General, Civil Division,
Natural Resources Section, Alaska Department of Law (DOL), said
the department didn't have a position on SB 94 and had some
concerns with how it works. One issue is that this bill attempts
to very narrowly tailor the scope of rights the state already
possesses. He explained that if one would think of an RS-2477
ROW as a conglomeration of rights, the parts include width,
scope, the modes of transportation, the types of activities that
can occur within the ROW and the rights the state has to make
improvements and perform maintenance, and all of those things
are separate sticks in a big bundle of sticks. Effectively, this
bill would strip away many of those sticks from that bundle of
rights the state currently possesses and would result in a
massive give-away of state property interests on an
unprecedented scale. That is part of the reason the fiscal note
is $48 million; the state would give away $48 million worth of
property and only from narrowing the width of the ROW from 100
ft. to 60 ft. That doesn't take into consideration all the other
impacts to the state of reducing the scope of use.
This bill says these ROWs are frozen in place as what they were
at the time RS-2477 was repealed in 1976. If there are ROWs
across the state that have not yet been developed, which a very
high percentage of them would qualify for in that way, that
would mean they never could be developed any more than they were
in 1976. So, a footpath that existed in 1976 will always be a
footpath, to the extent that Debarr Rd. and Farmers Loop Rd. are
frozen in place as they were in 1976; the Dalton Highway is an
RS-2477 and frozen in place as to what can be done and the way
that it's shaped and maintained.
2:45:19 PM
This bill also provides that the state, to the extent that it
has a broader scope with regards to its ROWs, and it would be
forced to buy that broadened scope back through condemnation;
effectively the state would be forced to buy back that which it
presently possesses.
2:46:41 PM
Another issue with the bill is a recent decision by Judge
Beistline that indicates the state can't invoke condemnation
proceedings against Native corporations or Native allotments in
the State of Alaska now that there is no court jurisdiction to
do that. So, this bill creates a mechanism for the state to buy
back through condemnation things that it would give away by way
of this bill, but it could not do that as to Native corporations
and Native allotment owners.
Finally, Mr. Sullivan said, with regards to the Klutina Lake
litigation, this bill seeks to basically do away with the
state's rights in the defense it has asserted in on going active
litigation against Ahtna Corporation over Klutina Lake Rd. The
bill tries to make RS-2477s in Alaska synonymous with 17(b)
easements, which are entirely different. The federal government
owns, controls, and possesses 17(b) easements; the State of
Alaska owns, controls, and manages RS-2477 easements. RS-2477s
are much broader in scope than 17(b) easements. So eliminating
RS-2477s where it overlaps a 17(b) would be essentially creating
a patchwork of legal responsibility all along the Klutina Lake
Road, because they are two very different legal animals and have
very different rights and responsibilities; it would be
extremely unworkable.
The other problem with Klutina Lake Road is under the bill the
only thing that you could do is access the lake through ingress
and egress; you could not launch boats from the easement or
camp. You couldn't do all the things that the public is
currently doing in recreating and using that ROW now. That is
why it is important. It takes almost three hours to get from the
bottom of that road on the Richardson Highway up to Klutina
Lake, and if you couldn't stop along there and have day use
sites or occasionally camp, it would make that ROW practically
unusable and of very low utility.
2:50:11 PM
SENATOR FAIRCLOUGH asked if he had a "white paper" written on
this bill or comments.
MR. SULLIVAN said he would send them.
2:51:27 PM
SENATOR BISHOP, going back to the fiscal note, commented that
the $1000/acre determination was a little troubling, because he
knows people whom the state has bought property from for a road
or airport construction, and they didn't receive that much.
CHAIR EGAN stated he would hold SB 94 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 94 Sponsor Statement.pdf |
STRA 3/13/2014 1:30:00 PM |
SB 94 |
| SSSB 94.pdf |
STRA 3/13/2014 1:30:00 PM |
SB 94 |
| SSSB 94 - Sectional Analysis.pdf |
STRA 3/13/2014 1:30:00 PM |
SB 94 |
| SB094SS-DOT-NDAES-3-8-14.pdf |
STRA 3/13/2014 1:30:00 PM |
SB 94 |
| SB094SS-DNR-MLW-3-8-14.pdf |
STRA 3/13/2014 1:30:00 PM |
SB 94 |
| SB 197 - Sponsor Statement.pdf |
STRA 3/13/2014 1:30:00 PM |
SB 197 |
| SB197-DOT-SDES-3-8-14.pdf |
STRA 3/13/2014 1:30:00 PM |
SB 197 |
| CSSB 178 DRAFT Letter of Intent.pdf |
STRA 3/13/2014 1:30:00 PM |
SB 178 |
| CSSB 178 DRAFT Text.pdf |
STRA 3/13/2014 1:30:00 PM |
SB 178 |
| CSSB 178 Sectional Analysis.PDF |
STRA 3/13/2014 1:30:00 PM |
SB 178 |
| CSSB 178 Sponsor Statement.PDF |
STRA 3/13/2014 1:30:00 PM |
SB 178 |
| SB 178 Letters Supporting - Third Batch.PDF |
STRA 3/13/2014 1:30:00 PM |
SB 178 |
| SB 178 Side by Side Analysis with CSSB 178.pdf |
STRA 3/13/2014 1:30:00 PM |
SB 178 |
| CSSB178(TRA)-DOR-TAX-03-18-14.pdf |
STRA 3/13/2014 1:30:00 PM |
SB 178 |
| SB 178 Delta Leasing documents.PDF |
STRA 3/13/2014 1:30:00 PM |
SB 178 |
| SB 94 FINAL_AHTNA_PPT_HANDOUT.pdf |
STRA 3/13/2014 1:30:00 PM |
SB 94 |