Legislature(2017 - 2018)GRUENBERG 120
03/01/2018 03:15 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB400 | |
| HCR22 | |
| HJR38 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 400 | TELECONFERENCED | |
| += | HCR 22 | TELECONFERENCED | |
| += | HJR 38 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 1, 2018
3:18 p.m.
MEMBERS PRESENT
Representative Gabrielle LeDoux, Vice Chair
Representative Chris Tuck
Representative Adam Wool
Representative Chris Birch
Representative DeLena Johnson
Representative Gary Knopp
MEMBERS ABSENT
Representative Jonathan Kreiss-Tomkins, Chair
Representative Andy Josephson (alternate)
Representative Chuck Kopp (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 400
"An Act relating to the collection of fees by the Department of
Public Safety for fire and explosion prevention and safety
services."
- HEARD & HELD
HOUSE CONCURRENT RESOLUTION NO. 22
Proclaiming April 2018 as Sexual Assault Awareness Month.
- MOVED HCR 22 OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 38
Relating to certain conveyances to the Alaska Railroad
Corporation under the Alaska Railroad Transfer Act of 1982.
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 400
SHORT TITLE: FEES FOR FIRE PREVENTION MEASURES
SPONSOR(s): STATE AFFAIRS
02/28/18 (H) READ THE FIRST TIME - REFERRALS
02/28/18 (H) STA, FIN
03/01/18 (H) STA AT 3:15 PM GRUENBERG 120
BILL: HCR 22
SHORT TITLE: APRIL 2018:SEXUAL ASSAULT AWARENESS MONTH
SPONSOR(s): MILLETT
02/19/18 (H) READ THE FIRST TIME - REFERRALS
02/19/18 (H) STA, HSS
02/27/18 (H) STA AT 3:15 PM GRUENBERG 120
02/27/18 (H) Heard & Held
02/27/18 (H) MINUTE(STA)
03/01/18 (H) STA AT 3:15 PM GRUENBERG 120
BILL: HJR 38
SHORT TITLE: AK RAILROAD TRANSFER ACT; CONVEYANCES
SPONSOR(s): KOPP
02/21/18 (H) READ THE FIRST TIME - REFERRALS
02/21/18 (H) STA, JUD
02/27/18 (H) STA AT 3:15 PM GRUENBERG 120
02/27/18 (H) Heard & Held
02/27/18 (H) MINUTE(STA)
03/01/18 (H) STA AT 3:15 PM GRUENBERG 120
WITNESS REGISTER
CATHY SCHLINGHEYDE, Staff
Representative Jonathan Kreiss-Tomkins
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 400 on behalf of the House
State Affairs Standing Committee, prime sponsor.
DAVID TYLER, Director State Fire Marshal
Division of Fire and Life Safety (DFLS)
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
400.
CARMEN LOWRY, Executive Director
Alaska Network on Domestic Violence and Sexual Assault (ANDVSA)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HCR 22.
GRACE ABBOTT, Staff
Representative Charisse Millett
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on
HCR 22, on behalf of Representative Millett, prime sponsor.
JOHN PLETCHER
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HJR 38.
JACK BROWN
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HJR 38.
FRED ROSENBURG
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HJR 38.
HUGH ASHLOCK, Owner
Dimond Center
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HJR 38.
TOM MEACHAM
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HJR 38.
BILL O'LEARY, Chief Executive Officer
Alaska Railroad Corporation (ARRC)
POSITION STATEMENT: Testified in opposition to HJR 38.
ANDY BEHREND, Chief Counsel
Alaska Railroad Corporation
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing of
HJR 38.
ACTION NARRATIVE
3:18:11 PM
VICE CHAIR LeDoux called the House State Affairs Standing
Committee meeting to order at 3:18 p.m. Representatives Wool,
Birch, Johnson, Knopp, and LeDoux were present at the call to
order. Representative Tuck arrived as the meeting was in
progress.
HB 400-FEES FOR FIRE PREVENTION MEASURES
3:19:19 PM
VICE CHAIR LEDOUX announced that the first order of business
would be HOUSE BILL NO. 400, "An Act relating to the collection
of fees by the Department of Public Safety for fire and
explosion prevention and safety services."
3:19:40 PM
CATHY SCHLINGHEYDE, Staff, Representative Jonathan Kreiss-
Tomkins, Alaska State Legislature, relayed that the proposed
legislation relates to fees for fire prevention measures. She
explained that currently the Division of Fire and Life Safety
(DFLS) [Department of Public Safety (DPS)] can collect fees for
building plan checks but not for fire inspections or for the
permit programs for installing fire systems or fire
extinguishers. The proposed legislation would allow regulations
to be drafted for the collection of those fees.
MS. SCHLINGHEYDE relayed that Section 1 of HB 400 [page 1, lines
5-9] would give DFLS the authority to collect the fees; Section
2 [page 1, lines 11-13] would include the collection of fees in
the DFLS budget receipt authority.
MS. SCHLINGHEYDE explained that the fiscal note for HB 400 was
received just prior to the committee meeting; it would be
distributed to committee members after the meeting. It is an
indeterminate fiscal note; it is estimated that the program will
bring in $84,000 per year.
3:21:05 PM
REPRESENTATIVE KNOPP requested and received clarification that
the fiscal note would be forthcoming.
3:21:33 PM
REPRESENTATIVE WOOL asked whether the fees would apply only to
commercial buildings.
3:21:55 PM
DAVID TYLER, Director State Fire Marshal, Division of Fire and
Life Safety (DFLS), Department of Public Safety (DPS), answered
that the proposed legislation would apply to commercial
buildings - assemblies, industrial, educational, hospitals, and
such.
REPRESENTATIVE WOOL mentioned that he has a commercial building,
which is occasionally inspected by the fire marshall. He asked
whether under HB 400, he would be charged a fee for the
inspection in the future.
MR. TYLER replied yes.
REPRESENTATIVE WOOL asked whether there would be other services
associated with the fee under HB 400, and what the costs would
be for the services.
MR. TYLER answered that he does not know the costs yet; research
is needed to ensure the fees are fair, equitable, and
affordable. He said that the research will include the
practices in cities like Fairbanks and Anchorage, as well as in
other states.
MR. TYLER relayed that fees would include permitting for fire
extinguisher technicians and fire systems technicians.
3:23:55 PM
REPRESENTATIVE KNOPP noted from the copy of the fiscal note
circulated by Ms. Schlingheyde that the goal is 1,500
inspections per year but right now 500 is more likely. He asked
whether DFLS is currently performing 500 inspections per year or
if that is a goal.
MR. TYLER responded that currently DFLS is doing between 200 and
300 inspections per year. Just recently all the deputy fire
marshal positions have been filled; therefore, DFLS will be
capable of performing more inspections. He stated that what
prompted the introduction of the proposed legislation was the
need for travel funds to do inspections in rural areas. He
maintained that the inspections should be done every two years;
however, some have not been inspected for four to eight years
and longer.
REPRESENTATIVE KNOPP offered that the inspections are required
by statute and adopted regulations. He maintained that there
are private fire service companies that charge extinguishers and
prove them. He mentioned that DFLS also reviews plans for new
construction and fire systems. He asked whether utilizing
private companies [for inspections] would be a better process,
like how boiler system inspections are accomplished. He
questioned why DPS must do it and mentioned that use of private
companies provides the added benefit of the company servicing
and repairing the equipment if needed.
MR. TYLER responded that DFLS does more than just fire sprinkler
and fire alarm system inspections; the fire marshals check the
egress for electrical hazards and verify whether the alarm
systems and sprinklers are up to date.
REPRESENTATIVE KNOPP asked for confirmation that the DFLS
process goes beyond checking the fire extinguisher systems and
the fire suppression systems. He suggested that under HB 400
the fee-for-service inspection would be a broad range
inspection. He stated that his misgiving was that the
inspections would result only in citations to organizations.
MR. TYLER responded that DFLS performs the inspections as
thoroughly as possible. He relayed that staff is looking at
other systems and measures, which may help reduce the cost; DFLS
is looking at shared databases with those who do maintenance on
the alarm systems and suppression systems. He stated that the
goal of DFLS staff is to keep the buildings safe while keeping
in mind that the business owners need to stay in business. He
maintained that what DFLS does is designed not to be onerous on
the owners.
3:28:28 PM
REPRESENTATIVE TUCK expressed his understanding that the life
safety plan checks are currently occurring, and no fess are
being charged. He suggested that it appears that DFLS is
currently allowed to set fees under statute.
MR. TYLER replied that DFLS may charge fees for plan reviews for
new construction, new additions, and large-scale remodeling. He
stated that it does not have authority to charge for the fire
inspections, as it is a different operation entirely.
REPRESENTATIVE TUCK cited page 1, lines 5-7, of HB 400, which
read, "The commissioner of public safety may establish by
regulation, and the department may charge, reasonable fees for
fire and life safety plan checks"; he asked if he was correct in
his understanding that the statute refers to initial occupancy
certification.
MR. TYLER answered, that's correct.
3:29:48 PM
REPRESENTATIVE BIRCH expressed his appreciation for the work
done by DFLS.
3:30:22 PM
REPRESENTATIVE LEDOUX announced that HB 400 would be held over.
HCR 22-APRIL 2018:SEXUAL ASSAULT AWARENESS MONTH
3:30:43 PM
REPRESENTATIVE LEDOUX announced that the next order of business
would be HOUSE CONCURRENT RESOLUTION NO. 22, Proclaiming April
2018 as Sexual Assault Awareness Month.
3:31:10 PM
REPRESENTATIVE LEDOUX opened public testimony on HCR 22.
3:31:33 PM
CARMEN LOWRY, Executive Director, Alaska Network on Domestic
Violence and Sexual Assault (ANDVSA), testified that ANDVSA is a
membership organization comprised of 19 organizations throughout
the state providing lifesaving services to victims and
survivors. She expressed gratitude to the sponsors of HCR 22
and SCR 17, recognizing April as Sexual Assault Awareness Month.
She also expressed appreciation for work done by the
legislature: moving forward to manage the sexual assault rape
kits in a more efficient and affirming way; recognizing the
value of and need for teen violence prevention programs in the
schools; and supporting the (Alaska) Safe Children's Act [House
Bill 44, Twenty-Ninth Alaska State Legislature, 2015-2016], also
known as Bree's Law.
MS. LOWRY urged the full support of the committee. She thanked
the committee members for their consideration of the proposed
resolution and their belief that sexual violence can be ended.
REPRESENTATIVE TUCK referred to page 2, line 9, of HCR 22, which
read, "in 2016, 16 communities--Anchorage, Barrow, Bethel,
Cordova, Dillingham, Eielson Air Force Base, Fairbanks, Fort
Wainwright, Juneau, Kodiak, Kotzebue, Nome, Palmer, Seward,
Unalaska, and Valdez--had sexual assault response teams to
investigate more effectively crimes of sexual violence". He
asked whether the response teams were new for those communities
in 2016.
MS. LOWRY responded that she did not know but would provide that
information.
REPRESENTATIVE TUCK asked if there has been any change since
2016.
MS. LOWRY answered that she did not have that information but
would provide it to the committee.
3:34:15 PM
GRACE ABBOTT, Staff, Representative Charisse Millett, Alaska
State Legislature, on behalf of Representative Millett, prime
sponsor of HCR 22, stated that she was available for questions.
REPRESENTATIVE TUCK asked for the number of years that the
legislature has proclaimed April as Sexual Assault Awareness
Month.
MS. ABBOTT answered that the effort has been both on the
national level and the state level. She relayed that she did
not know how many years the state has recognized April as Sexual
Assault Awareness Month; it has been an ongoing effort
nationally for decades.
REPRESENTATIVE TUCK asked for clarification of the national
effort that has occurred for decades: whether April has been
proclaimed every year as Sexual Assault Awareness Month or
whether under federal law, April is always proclaimed as Sexual
Assault Awareness Month. He explained that such a resolution is
introduced in the legislature every two years. He suggested
that legislation be introduced to put the proclamation of April
as Sexual Assault Awareness Month into statute.
MS. ABBOTT replied that the reason for not putting the
proclamation into statute is the need for constant dialog about
prevention efforts and victim and survivor support. She
referred to the discussion on the Senate floor [3/1/18, SCR 17]
on that point: Why not make the recognition of Sexual Assault
Awareness Month "the law of the land?" She maintained that this
issue needs to be a topic of conversation every year; and ANDVSA
needs the opportunity to explain available community resources
critical to preventing and supporting victims of sexual
violence.
REPRESENTATIVE TUCK asked if the proclamation was in law at the
federal level.
MS. ABBOTT replied that she did not believe so; she believed it
to be a continuous dialog and a reoccurring conversation every
year. She offered that in this way, progress can be explained,
Alaska victimization surveys can be consulted, and rates of
sexual violence tracked. She added that it serves as a reminder
that rates of sexual violence are still unacceptable, and more
work needs to be done.
3:37:21 PM
REPRESENTATIVE BIRCH mentioned that April 2001 was the first
observance of the national Sexual Assault Awareness Month; other
public awareness efforts date back to the '80s.
3:38:05 PM
REPRESENTATIVE LEDOUX, after ascertaining that there was no one
else who wished to testify, closed public testimony on HCR 22.
3:38:20 PM
REPRESENTATIVE WOOL moved to report HCR 22 out of committee with
individual recommendations and the accompanying zero fiscal
note. There being no objection, HCR 22 was reported from the
House State Affairs Standing Committee.
HJR 38-AK RAILROAD TRANSFER ACT; CONVEYANCES
3:38:43 PM
REPRESENTATIVE LEDOUX announced that the final 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.
3:39:46 PM
JOHN PLETCHER testified that he has a home next to Oceanview
Park in South Anchorage and became aware of the Alaska Railroad
(ARR) issue when the Residential Right-Of-Way Use Permit Program
was initiated in 2012. He stated that his testimony is in
response to the safety issues raised by the Alaska Railroad
Corporation (ARRC). He referred the committee to his written
comments and photographs, included in the committee packet.
MR. PLETCHER stated that ARR's safety problems fall under two
categories: 1) trespassers and 2) some landowners whose actions
are inconsistent with railroad operations.
MR. PLETCHER referred to the photograph on page 2 of his written
comments, which shows the Potter area, south of Anchorage. He
stated that an Asian woman got onto the railroad tracks and was
hit by a train. He relayed that trespassing is largely confined
to the public areas; people get on the tracks at road crossings
and then go off the highway. He maintained that this does not
represent a private property issue, because most landowners are
as interested in keeping trespassers off their property as is
ARRC. He emphasized that the idea of "exclusive-use" being
necessary to keep trespassers off the railroad is a "red-
herring" argument.
MR. PLETCHER concluded by saying that the legislature could
assist by providing more detail regarding what constitutes a
"trespass" and by defining it through legislation.
3:43:43 PM
REPRESENTATIVE TUCK asked about the second concern that Mr.
Pletcher mentioned: landowner property use being inconsistent
with railroad operations.
MR. PLETCHER answered that there may be some instances in which
landowners have caused problems, but if ARRC has a problem with
a landowner, its recourse should be to go to court and get an
injunction against the landowner. He maintained that the Alaska
Supreme Court has stated that ARRC should not be engaging in
"self-help." He stated that he has never been informed by ARRC
that he is causing a problem and does not know of any neighbors
causing problems except for one neighbor, who was parking trucks
in an area that ARRC considered to be too close to the tracks;
ARRC blocked the area off. He cited that incident as being an
example of self-help that the Alaska Supreme Court discourages;
instead the parties with the dispute should go to court.
3:45:03 PM
REPRESENTATIVE LEDOUX relayed that Representative Kopp made a
very eloquent presentation on HJR 38 before the House State
Affairs Standing Committee [2/27/18 meeting]. She asked why the
Alaska State Legislature is asking Congress to resolve the
issue, which appears to be an issue of illegality, rather than
taking the issue to court for resolution.
MR. PLETCHER responded that at this time he is asking for the
legislature to address the issue; there are many ways to handle
problems, and one way is legislatively. He maintained that not
every situation requires court action; this situation is very
simple and could be handled through the legislature. He added
that litigation is extremely expensive.
3:46:32 PM
REPRESENTATIVE KNOPP relayed that Representative Kopp indicated
that under the Alaska Railroad Transfer Act (ARTA) of 1982, ARR
received surface easements for railroad operations; ARRC is
arguing that it has "exclusive-use easements." Representative
Knopp asked if his understanding is correct that this
discrepancy represents the point of contention.
MR. PLETCHER replied that the point of contention is that ARRC
[claims] property rights that the federal government did not own
upon transfer of the railroad to the state.
REPRESENTATIVE KNOPP suggested that the resolution would ask
Congress to clarify the nature of the easement. He agreed that
litigation would be prohibitively expensive for a single
landowner, and a class action suit would take a long time. He
asked if clarification is what Mr. Pletcher is seeking from the
Alaska congressional delegation.
MR. PLETCHER concurred that the delegation has maintained that
it is a state issue and welcomes the legislature's input. He
maintained that the proposed resolution would give both the
governor and Congress the legislature's input, and that would
help all three entities to help the landowners.
MR. PLETCHER stated that two years ago, Alaska Congressman Don
Young told him that ARRC changed its property rights; the change
was not intended by Congress; and in fact, a transfer changing
existing property rights would not have passed Congress.
3:49:28 PM
JACK BROWN testified urging the committee members to study
Section 1205 of ARTA, [U.S. Code Title 45, Chapter 21, included
in the committee packet], subparagraphs (a) and (b), to better
understand and represent the "exclusive-use" issue. He also
encouraged review of the Homestead Act [1862] ("homestead")
patent. He stated that the homestead patent represented supreme
title to the land and is not something that ARRC and the U.S.
Department of the Interior (USDOI) should be able to disregard
based on one line in ARTA, which has been taken out of context.
He maintained that the intent of ARTA was not as ARRC
interpreted it, and Alaska U.S. Congressman Don Young "literally
pounded his fist on the table and came out of his chair, when he
found out what the railroad had done with this."
MR. BROWN relayed that the law is clear that the General
Railroad Right-of-Way Act of 1875 ("1875 Act") was created to
prevent [the exclusive-use easement claim] from happening. He
said the intent of the Act was to state that future railroads
were to have a surface easement interest only; ARRC completely
ignored the constitution and stole Alaskans' land, thereby
putting them in a position of trying to sue the government
"until they're all dead or broke." He maintained that ARRC
"dumped this entire mess into the lap of just a very few of us
in South Anchorage," because it was testing the waters of the
Residential Right-Of-Way Use Permit Program. He offered that it
has been "sucking the life out of us, and we're quite tired."
MR. BROWN maintained that it is time for ARRC to "come clean and
take the high road." He commented, "The whole charade was based
on deception and confusion and secrecy." He said the issue is
now public and clear.
3:53:12 PM
FRED ROSENBURG testified that he is a property owner and sole
shareholder of Dimond Capital Company, which owns commercial
property on Dimond Boulevard in Anchorage. He stated that the
property abuts ARR property; the lineage of the title indicates
that the property is subject to a homestead patent. He
explained that a land patent is an exclusive land grant made by
a sovereign entity, which in this case was the federal
government. Under a land patent, one is granted benefits that
deed holders do not have. State constitutions and statutes are
subordinate to federal land patents. He relayed that the U.S.
Supreme Court has upheld the supremacy of the right of patents;
those benefits exist for heirs and assigns forever. He
mentioned that the U.S. Supreme Court case, Brandt Revocable
Trust v. U.S., was a landmark case; it involved a railroad that
wanted to benefit from land that it was not using anymore; the
U.S. Supreme Court ruled that the land reverted to the original
patent holder.
MR. ROSENBURG continued by saying that ARRC issued an opposition
to HJR 38; however, many of their legal arguments apply to
village corporations, not private property owners. He stated
that he has experienced an issue with ARRC regarding a two-and-
a-half-acre piece of property with a Red Robin Restaurant on it.
Without any notice or discussion, ARRC had contractors cut down
all the landscaping along the property line and install a fence.
He stated that ARRC trespassed and cut down landscaping that was
not on the ARR easement but on private property. He reiterated
that the property is subject to patents; the patents supersede
ARTA and any subsequent patents or deeds that are issued; and it
is important to note that ARRC does not have the rights it
claims to have under ARTA, because the patent is superior and
supersedes it.
3:56:22 PM
REPRESENTATIVE TUCK asked how long Dimond Capital has owned the
property.
MR. ROSENBURG responded that he has owned the property through
various entities since the early '90s. He added that even
though he has the right to use the property if it doesn't
interfere with the ARR, ARRC charged him rent to store snow on a
limited portion of the property. He mentioned that at the time,
he was not aware of the patent issues and how his rights were
being abrogated.
REPRESENTATIVE TUCK asked Mr. Rosenburg whether he has been
paying for snow storage since the early '90s.
MR. ROSENBURG replied, "No, I haven't." He said he paid for two
years and then was able to rearrange the storage of snow.
REPRESENTATIVE TUCK asked how he knew the landscaping had been
cut and whether he had it surveyed.
MR. ROSENBURG answered that he has a survey from when he
purchased the property and an "as-built" from when he built the
building. He stated that ARRC has made markings to indicate the
easement, and it is evident from looking at the property that
the markings are on his property. He maintained that ARRC has
acknowledged that it cut down the trees and put its fence on Mr.
Rosenburg's property; the trees had been there for 25 years and
were very large and beautiful; and ARRC is trying to make
amends.
REPRESENTATIVE TUCK asked whether ARRC offered any remedy.
MR. ROSENBURG responded that it did not. He has corresponded
through emails; ARRC acquiesced and mentioned it would like to
make amends; there has been no conclusion yet. He maintained
that according to the age of the trees and the size of the
roots, replacement cost is expected to be about $200,000.
3:58:49 PM
REPRESENTATIVE WOOL asked whether the rent for snow storage was
the only rent charged; and when Mr. Rosenburg stored snow
elsewhere, if ARRC stopped charging rent.
MR. ROSENBURG replied that the rent was just for storage of snow
on a small portion of property in the easement. He didn't need
that storage space later, as business was down, and he could use
part of his parking lot for snow storage.
REPRESENTATIVE WOOL asked whether the fence was erected after
the trees were cut down.
MR. ROSENBURG answered that it was, and cutting the trees down
was necessary to erect the fence. He explained that ARRC did
not dig up the trees properly but had someone cut them down with
a chain saw; it left unsightly stumps that were potentially
dangerous and created a liability.
4:00:04 PM
HUGH ASHLOCK, Owner, Dimond Center, testified that his family
bought the property from the Tetze estate; the Tetze family
received their homestead patent in 1952; and the property is
subject to the Alaska Railroad Act of 1914 ("1914 Act"), which
transferred ARR to the State of Alaska. He stated that he owns
the property to the center line of the ARR right of way (ROW);
since Dimond Center is worth over $80 million, the property
outside of the railroad track area is most likely worth in the
millions of dollars. He maintained that he wishes to
commercially use that property. He added that he is willing to
work with ARRC long-term, that is, implementing intermodal uses,
a commuter rail stop, or other development.
REPRESENTATIVE TUCK asked whether there are any barriers to Mr.
Ashlock being a better partner with ARRC.
MR. ASHLOCK answered that he would be amenable to fencing the
tracks off to public access and using some of the ROW for snow
storage or parking. He mentioned the possibility of an
intermodal station with funding through Alaska's congressional
delegation. He stated that he is willing to work together with
ARRC in a positive and constructive manner.
REPRESENTATIVE TUCK asked whether any discussions in that
direction have begun.
MR. ASHLOCK replied no, but he and ARRC have both "reached out"
to discuss a positive step forward. He stated that ARRC still
maintains that it has an exclusive-use easement and no other
options are available at this point. He said that Governor Bill
Walker will have a task force meeting in the next couple months
to develop a long-range plan for commuter rail; Mr. Ashlock
expressed his desire to be a stakeholder in that process and to
positively push that effort forward.
REPRESENTATIVE TUCK asked Mr. Ashlock whether he supports HJR
38.
MR. ASHLOCK replied that he does.
4:03:53 PM
TOM MEACHAM testified that he has practiced natural resources
law for 47 years. He referred to paragraph 1 of the statement
of opposition submitted by ARRC, included in the committee
packet, which read in part, "In addition, settled law relating
to railroad rights-of-way states that even where a railroad
lacks full fee simple title in its ROW, it still has full
exclusive rights to use the surface of the ROW due to the
inherently hazardous nature of railroad operations." He
recommended that committee members specifically request that
ARRC produce the citations to civil law that support that
statement.
MR. MEACHAM relayed that his testimony is that the exclusive-use
easement under ARTA applies in two specific situations: 1) the
ARR ROW through Denali National Park and Preserve (DNPP), and 2)
village claims under Alaska Native Claims Settlement Act (ANCSA)
that were not resolved by the time ARTA was made law. He
maintained that these are the only two instances for which ARRC
has legal authority under ARTA to impose an exclusive-use
easement; the remainder of its ROW is subject to the 1914 Act
easement, the subsequent U.S. Supreme Court decisions, and the
land appeal decision that interpreted the ARR easement to be an
easement for railroad purposes only and not for exclusive use.
MR. MEACHAM referred to paragraph 5 of ARRC's statement of
opposition, which read in part, "the federal government's
guarantee that it will defend ARRC's title of at least an
exclusive use easement shows that the State and ARRC would have
recourse to enforce ARTA's guarantee of exclusive control of the
ROW should a neighboring landowner assert ownership rights in
the ROW." He maintained that the proposed resolution would
encourage Alaska's congressional delegation to demand an answer
from USDOI as to whether it would support the position of ARRC
and defend it if sued or leave it to ARRC to make its own case
for its interpretation of ARTA.
4:07:54 PM
REPRESENTATIVE KNOPP referred to the two situations in which the
exclusive-use easement applies - DNPP and ANCSA - and asked when
ARTA was modified to address exclusive use for these two
situations.
MR. MEACHAM replied that DNPP was created decades before ARTA;
and the unresolved claims of Native village corporations
occurred at least a decade before ARTA. He maintained that ARTA
tried to deal with the kind of rights that would be reserved for
those two specific properties, but it did not proport to attempt
changing any existing easement or ROW provisions.
REPRESENTATIVE BIRCH asked if ARRC ever asserted a claim that it
owned an exclusive-use easement for its ROW prior to the [1982]
transfer.
MR. MEACHAM responded that he is not aware of any instance prior
to ARTA in which ARRC or the federal government asserted an
exclusive-use easement, which is why the landowners were
surprised to learn that interim conveyances had been drafted and
issued asserting exclusive-use easements; that issue had never
come up under the 1914 Act.
4:11:24 PM
REPRESENTATIVE TUCK referred to ARRC's statement of opposition
to HJR 38, paragraph 3, which read in part, "45 U.S.C.
1205(b)(2) required the U.S. Department of Interior to resolve
any remaining claims of valid existing rights by January 1986.
Those provisions were followed, and claims were adjudicated.
This mechanism provided any adjacent landowners who asserted
claims to ownership rights in the ROW a final opportunity to
have those claims adjudicated." He asked, "If there is a
dispute ... on those claims being adjudicated and an opportunity
wasn't afforded, is there any type of constitutional due process
... that refuses that 'disavowment'?"
MR. MEACHAM replied that the statement by ARRC is incorrect; the
citation, 45 U.S.C. 1205(b)(2), refers to the Secretary of
USDOI resolving unresolved pending Native village claims; it
does not pertain to patent holders along the ARR ROW. He
maintained that the procedures were not followed regarding those
patent holders, because the Secretary of USDOI has no
jurisdiction over their properties. He said that the question
of "due process" arises when ARRC asserts a new exclusive-use
claim; the landowners had no prior notice before the interim
conveyance was instituted. He mentioned a U.S. Supreme Court
case in the late '40s, [Mullane v. Central Hanover Bank & Trust
Co.]: the City of New York decided it needed a new reservoir
for the public water supply; it posted notices in some
courthouses identifying all the properties it would take; the
court ruled that the City could not enlarge its property
interests at the expense of private landowners without informing
each individual landowner. He continued by saying that ARRC
knew who the landowners were along the ROW; if it was going to
assert an exclusive-use easement, it had a constitutional
obligation to inform all the landowners before it took effect.
REPRESENTATIVE TUCK asked, "If the railroad refused to disavow
its present claim on owning an extension control of the entire
ROW, ... is there anything a landowner can do?"
MR. MEACHAM suggested two options: 1) to pass HJR 38 and
deliver it to Alaska's congressional delegation to demand an
answer from USDOI whether it supports ARRC's interpretation of
exclusive-use easement overall and not just for DNPP and Native
claim lands, and 2) to litigate against ARRC and USDOI, since it
involves federal law and it is the obligation of the federal
courts to interpret it.
4:16:22 PM
BILL O'LEARY, Chief Executive Officer, Alaska Railroad
Corporation (ARRC), paraphrased from his written testimony,
which read as follows [original punctuation provided]:
Thank you madam chair, members of the committee. For
the record my name is Bill O'Leary. I am the President
and CEO of the Alaska Railroad and I'm here
representing our 600 employees, numerous customers,
and the half a million passengers that we carry every
year. On their behalf I am here in opposition to House
Joint Resolution 38.
I am going to talk about three issues today: the
history of the ownership of the Alaska Railroad right-
of-way, why we need exclusivity in the right-of-way,
and the impacts to the Alaska Railroad and our
customers should we not have exclusive control of the
right-of-way.
I appreciate the opportunity to clear up some of the
issues that were brought up Tuesday and some of the
other testimony that you will most certainly hear here
today. But I would like to start by saying that
Representative LeDoux was absolutely correct in her
assertion Tuesday that this is an issue that belongs
in court. When it comes to a situation where
reasonable people disagree about the nuances of a
point of law, a court of law is where the decisions on
that point of law should be made.
Related to that, I also want to let you know that I
will do my best to answer questions after my
testimony, but since I am neither a legal or real
estate expert, I am a CPA by training, I have our
chief counsel Andy Behrend and our Manager of Land
Services, Doug Stephens on line to answer those
questions in depth.
The committee heard at length on Tuesday about the
supposed connection between the 1875 Railroad Act and
the 1914 Act, which created the federally-owned Alaska
Railroad. The fact that Congress created a separate
act for the creation of our railroad, one not based on
nor resembling the 1875 Act, points out just how and
why we were and are unique.
Without going into an exhaustive history lesson,
railroads built in the lower 48 in the 1800s were land
grant railroads. That means that the federal
government gave land to private builders, usually
every other section along the right-of-way of the
tracks, as part of the payment for building the
railroad. When concerns were raised about early grants
of fee simple title in vast amounts of federal land to
private railroads, Congress passed the Act of 1875,
which granted railroad rights-of-way that were not in
fee simple, but which still gave railroads exclusive
use of the land for railroad use.
4:19:56 PM
When it came to building the Alaska Railroad, however,
Congress and the President recognized that the
failures of private interests to build a railroad in
Alaska meant that the federal government would have to
do it. This was an entirely different situation than
the land grant railroads that were the subject of the
1875 Act. So they wrote entirely new law in the 1914
Act that did not refer to and was not grounded in the
1875 Act. As such, the President had full authority to
purchase the failed railroad out of Seward, a narrow
gauge railroad out of Fairbanks, and reserve a right-
of-way through land that the federal government
already owned. It was only years later that the
federal government would issue patents to
homesteaders, while reserving the right-of-way for the
Alaska Railroad, which the federal government owned
exclusively and in its entirety.
This is also shown in discussions that happened at the
time of transfer of the Alaska Railroad to the State
of Alaska. The congressional record is clear on what
the government owned and what it was giving to the
State of Alaska in terms of an Exclusive Use Easement.
And while the term Exclusive Use Easement was new at
the time, what it included was not.
In the congressional record of June 22, 1982, the
Senate Committee on Commerce, Science and
Transportation specified, under the proposed Alaska
Railroad Transfer Act, that the United States "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
The language of the Alaska Railroad Transfer Act also
plainly notes the historical and intended future
status of the right-of-way in 45 U.S.C. ?
1205(b)(4)(A)(ii): "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."
Alaska's [former] U.S. Senator Ted Stevens also made
it clear in his statements on the floor of the Senate
on December 21, 1982, exactly what the State of Alaska
was receiving from the federal government for the
entirety of the right-of-way when he said, "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 expedited adjudication process?It is
also the interest the State will receive through the
Denali National Park and Preserve. In other areas,
where the right-of-way crosses land owned in fee by
the Federal Government, the full fee title to the
right-of-way will be transferred to the State...
Essentially, it is defined to insure [sic] that the
State-owned railroad will receive exclusive and
complete control over land traversed by the right-of-
way."
You heard on Tuesday about a handful of court cases
that had to do with the ownership and exclusivity of
railroad's rights-of-way in general and specifically
in the Brandt case. The conclusions of the Brandt case
are based on easements derived from the 1875 Railroad
Act and have nothing to do with the rights-of-way
established by the 1914 Alaska Railroad Act.
Additionally, Brandt does not consider the exclusivity
of a railroad's rights-of-way, but instead only
considers the reversion of land when railroads abandon
the right-of-way.
You also heard the assertion that if a railroad does
not own its right-of-way in fee, then it holds it only
as a non-exclusive easement that allows adjoining
landowners broad use of the right-of-way. That
statement, however, does not square with the
traditional interpretation of railroad rights-of-way.
Many other court cases over the years have held that
even when railroads do not own fee title to their
rights-of-way, they nevertheless have exclusive
control over those rights-of-way. As far back as 1904,
the U.S. Supreme Court found that "A railroad right-
of-way is a very substantial thing. It is more than a
mere right [sic] of passage. [A right-of-way] is more
than an easement. . . . [I]f a railroad's right-of-way
was an easement it was 'one having the attributes of
the fee, perpetuity and exclusive use and possession."
In 1928 the Eighth Circuit Court of Appeals found
that, "The decisions of the national courts and of 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." That rule has been
reaffirmed over the intervening years.
4:24:45 PM
Again, I would like to point out that Representative
LeDoux was correct. It's the discussing of different
court cases and decisions that make this an issue that
absolutely belongs in a court of law, and certainly
not in the court of public opinion.
On Tuesday, doubts were expressed about the fact that
we, along with every other railroad and mode of
transportation, say that safety is our top priority.
It was stated that our neighbors know what is safe
just as well as those in the railroad industry do.
Anyone who has spent any time at all with our safety
personnel, our federal safety regulators, and railroad
professionals at any level, know that simply isn't
true.
We know that people outside the industry do not take
safety as seriously as they should. The numbers of
fatalities, injuries, and YouTube videos shot on
railroad tracks bear that out. Every year nearly 500
people are killed in this country trespassing on
railroad property. And not just walking on the tracks.
In 2012, two teenage girls in Maryland were killed
when a coal train derailed and flipped over on top of
them. People, time and time again, either do not
consider or vastly underestimate the dangers to
themselves and others when they trespass onto railroad
rights-of-way, when they drive around the gates at
crossings, and when they put structures such as swing
sets and hot tubs in the right-of-way. And the idea
that our neighbors know what is safe and unsafe that
just doesn't ring true. In 2016, one of our neighbors
in Crown Point decided to walk his dog down the middle
of our railroad tracks and was killed when he was
struck by one of our trains. 13 people have been
killed trespassing on the Alaska Railroad since the
transfer in 1985. Every one of those deaths was
avoidable.
And here's where I must say that frankly, the comments
made Tuesday regarding the fence between the Coastal
Trail and the railroad tracks scare the hell out of
me. The comment was made that the fence between the
railroad tracks and the Coastal Trail near Westchester
Lagoon was unnecessary. That couldn't be further from
the truth. A trail, or any public access, near
railroad tracks creates an attractive nuisance. In
1995, a twelve-year-old boy climbed through a hole in
the fence near Westchester Lagoon. When a train came
along, he tried to latch onto it, and ended up losing
both his legs.
Loss of exclusive control of the right-of-way would be
detrimental to the operations of the Alaska Railroad,
our customers, our passengers, our business partners
and the people of Alaska, who ultimately own the
Alaska Railroad. As it is now, we can assume control
in all areas of our right-of-way and assume that our
professionally trained security personnel, track
managers, maintenance crews, and on-board personnel,
just to mention a few, are making sure that the tracks
and the right-of-way are clear, safe, and operational.
We have full control and discretion to remove anything
and everything that poses a safety hazard to our
operations. If the right-of-way is turned into a
checkerboard of control from Seward to Denali, then we
cannot make that assumption. We would find it
necessary to reduce track speeds in any area that we
don't have complete control. That would mean if we
have one parcel that is not under our control along a
miles [sic] long stretch of track, it could reduce our
speeds from 49 miles per hour down to 16 miles per
hour for that whole stretch. Because it's a mile long
train and not a Corvette, slowing down and speeding up
takes miles of track. This would make it impossible to
get passengers to Denali or freight to Fairbanks in a
timely and economical fashion and would spell the end
for the Alaska Railroad.
4:27:55 PM
Additionally, this resolution brings up the issue of
who could control what goes in the right-of-way. Can
our neighbors store junked cars leaking oil (which has
happened) on the right-of-way? Can they plow snow
berms up so that people approaching or stopped at
railroad crossings can't see an oncoming train? Can
they store hazardous materials on the right-of-way?
Can we tell our neighbors to remove a swing set 30
feet from the tracks or remove it ourselves if they
refuse to? Remember that our train cars are 80 feet
long; in case of a derailment, having a 100-foot
right-of-way buffer on each side of the track can be
critical. Or will we have to take our neighbors to
court each and every time they are doing something
unsafe?
And what about what we do allow in the right-of-way?
If our neighbors disagree with a public trail in the
right-of-way, like the Coastal Trail, or the Fish
Creek Trail that we've been working on with the
Turnagain Community Council and the Municipality of
Anchorage, can they stop the community from building a
trail, something allowed for specifically in state
law? Can they stop a gas pipeline, electric line,
highway or street that might use the right-of-way? Can
they demand outrageous payments for crossing their
small section of the right-of-way? This ambiguity
could tie up numerous projects for years, if not
decades, or kill them altogether, because of the
questions of ownership.
Madam Chair, members of the committee, thank you for
your time and your patience. Respectfully, this
resolution incorrectly describes the rights held by
the federal government in the Alaska Railroad right-
of-way, and misinterprets the property rights the
government transferred to the State of Alaska and
court cases regarding railroad rights-of-way. I again
would like to state that Representaive [sic] LeDoux
was correct that this is an issue for the courts and I
encourage you not to support House Joint Resolution
38.
4:29:32 PM
REPRESENTATIVE BIRCH relayed that the committee received
testimony stating that 80 percent of all railroads in the U.S.
function full well under the guidelines of the 1875 Act, which
established that railroads could operate safety with a simple
easement over the property of others. He asked, "If 80 percent
of railroads in the U.S. can operate with a simple easement, why
doesn't that work here?"
MR. O'LEARY responded that he is not familiar with that
statistic.
REPRESENTATIVE TUCK mentioned pedestrians walking next to roads
upon which traffic is traveling at 50 miles per hour. He
suggested that such a situation is hazardous; he would be
interested in knowing how many people are killed walking next to
roads. He offered that ARR has a good track record in
comparison to pedestrians and roadways. He expressed his belief
that walking along a railroad track is safer than walking along
a highway. He offered that the landowner concerns are regarding
the ARRC imposing new limitations in the name of safety, when it
has been a "good neighbor" for such a long time; those same
safety concerns do not seem to exist for roadways; and a car
could veer off the roadway much easier than a train could
derail.
MR. O'LEARY answered, "All it takes is one and being in the
wrong place at the wrong time, when a derailment does happen to
cause such an issue - a very serious issue."
REPRESENTATIVE TUCK responded, "Don't derail your cars. Slow
them down."
4:32:01 PM
REPRESENTATIVE KNOPP relayed that there was much testimony on
the 1875 Act, but not much on the 1914 Act. He offered that
Representative Kopp's testimony was that it was not the federal
government's land - free and clear - to give away.
Representative Knopp stated that it would seem appropriate to
ask for clarification as to whether the land was the federal
government's to give as an exclusive-use easement. He
maintained that he appreciates the need for court action on the
matter, as well as clarification by Congress of the two Acts.
MR. O'LEARY expressed his belief that the 1914 Act is clear and
the controlling Act; ARRC feels secure in its position; however,
if there is a reasonable difference of opinion on that point,
then the court is the best place to clarify it.
REPRESENTATIVE KNOPP stated that ARRC maintains its position is
correct and has invoked exclusive-use easement to promote
safety; yet it allows use of the easement if someone pays a fee.
He said that his question is not about which Act came first, but
rather why ARRC is responding [now] to infringements, when it
always had exclusive-use easements.
MR. O'LEARY replied that historically ARRC has not done a good
job of managing its ROW and ensuring that it is safe. He
maintained that ARRC has taken more of an interest in response
to its increased concern for safety.
4:35:06 PM
ANDY BEHREND, Chief Counsel, Alaska Railroad Corporation (ARRC),
responded that the principal of exclusive-use easements for
railroads is the discretion to exclude all others from the ROW
or to allow use of the ROW. He maintained that this provides
the railroad with the ability to control the ROW and to look at
each situation, each proposed use, and the location of the
proposed use, and thereby decide if the use interferes with
railroad operation and can be done safely. He stated that there
are activities that can be performed safely in the ROW,
especially in the margins of the ROW. He asserted that ARRC
serves as a control, and without that control, activities in the
ROW could expose people to danger. He added that if a train
makes an emergency stop, there is a potential for derailment,
physical injury to train crew and people in the ROW, and
environmental damage due to spillage.
4:40:00 PM
MR. BEHREND continued by saying that the second part of the
question can be answered by explaining ARRC's theory of its
rights under ARTA, which repealed the 1914 Act: the history of
those rights, what they are, and how they have been exercised
over time. He maintained that the 1914 Act does not use any of
the language of the 1875 Act; it does not refer to or take its
authority from the 1875 Act; in fact, the reasons for the 1914
Act were completely different from those for the earlier land
grant Act. He said that the 1914 Act basically directed and
authorized the President of the U.S. and the Secretary of USDOI
to use materials and equipment from the Panama Canal project to
build the ARR; then directed the federal government to operate
the ARR. He maintained that the 1914 Act granted federal lands
for ROWs and other lands necessary for a railroad to operate.
These were designations of existing federal land; that is, the
federal ROW established on federal land.
REPRESENTATIVE KNOPP asked Mr. Behrend to explain "federal lands
and other lands." He asked if he is referring to federal lands
and the authority to acquire whatever other lands the railroad
deemed necessary.
MR. BEHREND explained that the [land] grant language referred to
the granting of federal lands for ROWs and other ARR properties.
There was also a provision for acquiring rights.
MR. BEHREND continued by saying that it was a federal railroad
operating across a federal ROW, which was under federal
ownership and remained under the use and ownership of the
federal government for the next 60 years. He conceded that
during that period, some homestead patents were issued along the
ROW. He said that at the time of ARTA in 1982, it was
abundantly clear from the congressional record and the language
of ARTA, that the U.S. Congress had investigated the status of
the ARR ROW and concluded that the ROW was owned in fee simple;
that was true regardless of other types of interest that lay
along the ARR. He maintained that the determination [in ARTA]
was that the ARR ROW was owned in fee simple; however, it
recognized other potential claims, including both Native claims
and what ARTA called "other third-party claims." He stated that
ARTA put in place a two- to three-year process for determining
those claims; the Secretary of USDOI was charged with that duty;
and ARTA authorized and directed a conveyance to the state of
the ROW and other lands.
4:45:13 PM
REPRESENTATIVE BIRCH asked for Mr. Behrend's understanding of
Section 1205 of ARTA, which recognized that unresolved claims of
valid existing rights were to be resolved by the Secretary of
USDOI after the transfer of the railroad. He stated that
everyone lived peaceably for some time, and now there is a
dispute. He mentioned that the legislature represents the
"public" owners of the railroad and those who live along the
railroad. He asked, "What resolution do we have for addressing
unresolved claims on valid and existing rights?" He asked
whether those claims are to be referred to the Secretary of
USDOI.
MR. BEHREND responded that the process that was set up was to
run to 1986 and be completed in that time. The Secretary of
USDOI entertained the claims, investigated the claims, engaged
in negotiation, and determined that all outstanding claims had
been addressed. He added that the provision sunsetted in 1986.
REPRESENTATIVE BIRCH asked whether it is Mr. Behrend's viewpoint
that the Secretary of USDOI and the federal government no long
have a role in adjudicating or resolving disputes on unresolved
claims on valid and existing rights. He offered that HJR 38
would ask the Alaska congressional delegation for its help in
clarifying the issue regarding Alaska's acquisition from the
federal government.
MR. BEHRENS expressed his understanding that the claims and the
adjudication process were completed and sunsetted, therefore,
would no longer be available.
4:48:16 PM
REPRESENTATIVE WOOL referred to the statistics regarding the
number of people killed by trains - 500 per year in the U.S. -
and asked for the Alaska statistics.
MR. O'LEARY answered that there were 13 deaths on ARR since
transfer in 1985.
REPRESENTATIVE WOOL offered that it was a low number of deaths
for 33 years. He stated that he grew up on the East coast;
there were many trains and train tracks; there was a great deal
of access to the tracks. He asked whether ARRC advocates
fencing off the entire railroad in the name of safety if given
the opportunity.
MR. O'LEARY answered no. He relayed that ARR bisects a very
large portion of the state; the state has grown up around ARR
and as a result, that is where the residents are. He said that
ARRC recognized that there are times when people will need to
cross; ARRC asks that they do it safely and quickly and not walk
along the tracks. He maintained that fencing the ROW is neither
an option nor ARRC's goal; in certain cases, ARRC has used
fencing because of high density trespass areas that are not
safe, especially in the Turnagain Arm area.
REPRESENTATIVE WOOL mentioned the 100-foot easement on each side
of the track and suggested that ARRC want to exercise full
control over that easement. If someone wanted to move an
airplane or set up a swing set within 100 feet of a train track,
ARRC would like it moved. He asked whether the practice of
charging rent has been disbanded [by ARRC].
MR. O'LEARY replied that the ARRC board [of directors] rule to
institute the Residential Right-Of-Way Use Permit Program was
removed last November.
REPRESENTATIVE WOOL asked if his understanding is correct: the
easement encompasses 100 feet on either side of the railroad
tracks; this is the area in which issues have surfaced; ARRC
would like to remove anything in this area; and some property
owners feel that they can safety put things in that space.
MR. O'LEARY responded that it is difficult to understand what
problem is trying to be solved with the proposed resolution; it
appears to be a disagreement over the ownership of the land upon
which the railroad operates.
4:52:33 PM
REPRESENTATIVE TUCK referred to the statement of opposition from
ARRC, paragraph 3, which read in part: "45 U.S.C 1205(b)(2)
required the U.S. Department of Interior to resolve any
remaining claims of valid existing rights by January 1986. Those
provisions were followed, and claims were adjudicated." He
asked whether USDOI's involvement included only state land, or
if it included all third-party lands, including those of private
ownership.
MR. BEHREND answered that the provision for adjudication of
third-party claims was being handled by the Secretary of USDOI,
because the federal government was transferring the railroad.
Any claims at that point would have been against the federal
government, and the claims would have included any third-party
claims, including from those from the state or any other public
or private entity.
REPRESENTATIVE TUCK asked whether for someone not filing a claim
prior to 1986, there would no longer be an opportunity to
resolve the claim.
MR. BEHREND opined that for someone filing a claim in which
his/her property interest was different from ARRC's property
interest, the proper approach would be a "quiet title" action in
court. He maintained that there is nothing in ARTA or the
Alaska Railroad Corporation Act (ARCA) of 1984 that provides for
a different process.
4:56:23 PM
REPRESENTATIVE JOHNSON asked Mr. O'Leary to describe the
difference between an easement and a ROW. She also asked
whether anyone was paying taxes on any portion of the railroad
easements.
MR. O'LEARY answered no. He said the landowners abutting the
ROW pay taxes on their property, which ends 100 feet from the
center line of the railroad.
REPRESENTATIVE JOHNSON asked whether it is the clear position of
ARRC that the 1914 Act is not subject to any of the court cases
from the 1875 Act.
MR. BEHREND responded that ARRC's position is that the 1875 Act
and the 1914 Act have nothing to do with one another and were
enacted for different purposes. The 1875 Act was a private land
grant Act; the 1914 Act directed the creation of the railroad
and its ROW by the federal government - to be owned and operated
by the federal government. He added that there have been court
cases examining the 1875 Act; these cases have occurred
throughout the 20th century and into the current century. He
referred to a 2014 California case, [Union Pacific Railroad v.
Santa Fe Pacific Pipelines, 2014], involving the Union Pacific
Railroad (UPRR) and its ROW. The ruling read: "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.'" He relayed that ARRC believes that the 1914 Act
provided it with not only an exclusive-use easement, but
ultimately with fee simple ownership of much of the ROW.
MR. BEHREND continued by saying that even if ARRC was wrong -
something which the court would have to decide - the way the
ROW has been interpreted by the 1875 Act to give exclusive usage
to the railroad, ARRC would still believe that the federal
government had at a minimum an exclusive-use easement in the ROW
when it was transferred to ARRC; therefore, the interim
conveyances and the patents that have been issued giving ARRC an
exclusive-use easement were correct and proper.
5:01:16 PM
REPRESENTATIVE JOHNSON asked Mr. Behrend if his testimony is
that the 1875 Act is not applicable to ARR, therefore, neither
is the proposed resolution.
MR. BEHREND stated that it is ARRC's position that the 1875 Act
neither applies to the ROW now nor originally, since the ROW was
created through the 1914 Act, which was not connected or related
to the 1875 Act. He added that under ARTA, Congress transferred
the ROW to the state, and the state received patents through
that process. He reiterated that ARRC does not believe the 1875
Act plays any role in establishing its property interests.
REPRESENTATIVE JOHNSON asked whether his testimony is that there
are some parts of the ARR ROW that ARRC does not own.
MR. BEHREND replied that it is not. It is the position of ARRC
that it owns the entire ROW; his testimony is that under the
1914 Act, most of the ROW was established by reserving ROWs on
federal land, and there may have been some authority in the 1914
Act to acquire other areas for the ROWs as necessary to create a
full rail line.
5:04:02 PM
REPRESENTATIVE WOOL mentioned that Mr. O'Leary commented that he
did not understand what problem the proposed resolution was
attempting to solve. Representative Wool offered that there is
no shortage of Alaska residents who have had issue with the ARR
ROW, which presents a problem to be solved. He asked whether
ARRC has instituted a program to build fences in the interest of
safety where the ROW abuts private land; and if so, has it been
discontinued like the program that charged rents.
MR. O'LEARY replied that every year, ARRC looks for ways to
address trespassing and improve safety. He stated that the
fencing in the Turnagain Arm area is an example of that; fencing
is the most efficient way to try to funnel people away from a
very dangerous area, in which they are trespassing. He relayed
that ARRC does not have a program to fence off portions of the
ARR ROW; it has trespass mitigation programs and safety
programs; and he added that fencing can be a part of those
efforts.
REPRESENTATIVE WOOL referred to testifiers relating that their
property has been bisected or obscured by fencing - property
that they have lived on for decades and believed to be safe.
Anyone growing up near train tracks with active trains knows not
to stand on the tracks. He conceded that 13 deaths over 33
years is not a good thing but is far less alarming than
automobile death statistics. He mentioned that if someone were
to put up a fence by a road easement and make everyone drive 25
miles per hour in the interest of safety, people would complain
to the state. He suggested that there should be discussions
with landowners before putting up a fence.
MR. O'LEARY responded, "We screwed up at the Red Robin
Restaurant." He maintained that ARRC personnel talked to an
individual that they believed had the authority to approve the
fence; it turned out that person did not have the authority; and
ARRC compounded the error by erecting the fence six inches [over
the property line.] He stated that ARRC took trees down and put
a fence up; it fixed the fence and will "make it right" with the
trees.
REPRESENTATIVE WOOL stated that his question goes to the broader
issue: people have private property that is being bisected by
the ARR in the name of safety, and maybe that isn't in the
overall best interest.
5:08:18 PM
MR. O'LEARY maintained that he is not aware of these situations;
he is not denying that they exist; and he needs to become of
aware of them.
REPRESENTATIVE TUCK asked for an explanation of the terms
"exclusive rights to the surface" and "exclusive use."
MR. BEHREND replied that the terms are used differently in
different situations. He relayed that the 1914 Act did more
than direct the creation of the railroad for railroad purposes.
He cited the 1914 Act, Chapter 37, to describe the other reasons
for the creation of the railroad, which read in part, "so as
best to aid in the development of the agricultural and mineral
or other resources of Alaska, and the settlement of the public
lands therein, and so as to provide transportation of coal for
the Army and Navy, transportation of troops, arms, munitions of
war, the mails, and for other governmental and public uses". He
maintained that ARRC believes that there was a broad purpose
behind the 1914 Act in creating the railroad and its ROW.
MR. BEHREND continued by saying that in ARTA and in ARCA, there
was a requirement in the exclusive-use easement that the ROW be
used for transportation - including railroad, communication, and
transmission purposes. The ARCA requires that ARRC manages the
ROW as a utility corridor for all those purposes - including
roads, transmission lines, pipelines, and communication lines of
various kinds. He said that an exclusive-use easement as
conveyed to the state in the general conveyances and patents
under ARTA is more than the exclusive use of the surface; ARRC
can also use as much of the subsurface as necessary to support
those transportation, communication, and transmission functions.
REPRESENTATIVE TUCK expressed his understanding that 100 years
ago, there were no buried communication lines or transmission
lines; because utilities are now buried, it is ARRC's position
that it should be allowed to use the subsurface [of the
easement] as well as the surface.
5:12:10 PM
MR. BEHREND responded that is correct. If the utilities are
related to transportation, transmission, or communication, ARRC
is allowed under its exclusive rights - whether it be easement
or simple ownership - to use as much of the subsurface as is
necessary to support those uses.
REPRESENTATIVE WOOL asked for the number of derailments ARRC has
had since the transfer [in 1982].
MR. O'LEARY answered that he did not know the number; there have
been major and minor derailments; there have not been any since
his association with ARRC. He mentioned one major derailment:
the 1999 derailment at Gold Creek, spilling tremendous
quantities of jet fuel. He conceded that the ARR has had some
large derailments over the years.
REPRESENTATIVE TUCK suggested that there was a derailment along
the Seward Highway with a formaldehyde spill.
MR. O'LEARY replied that he did not recall such a derailment; he
reiterated that there have been significant derailments over the
years. He maintained that this point "gets to the heart of this
whole thing" from ARRC's perspective: the easement is 100 feet
on each side of the center line; a railcar can be 80-90 feet
long and can turn sideways; and it can take up to a mile to stop
a fully loaded freight train even after derailment, causing a
swath of destruction. He stated that safety is real and not
something ARRC is trying to "hide behind" in the discussion.
5:15:20 PM
REPRESENTATIVE BIRCH expressed that he would like to hear from
the sponsor on several issues that came up during testimony.
REPRESENTATIVE LEDOUX closed public testimony on HJR 38 and
announced that HJR 38 would be held over.
5:16:28 PM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 5:16
p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB400 Sponsor Statement 2.28.18.pdf |
HSTA 3/1/2018 3:15:00 PM |
HB 400 |
| HB400 Sectional Analysis 2.28.18.pdf |
HSTA 3/1/2018 3:15:00 PM |
HB 400 |
| HB400 ver A 2.28.18.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM HSTA 3/13/2018 3:15:00 PM HSTA 3/15/2018 3:15:00 PM |
HB 400 |
| HB400 Fiscal Note DPS 3.1.18.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM HSTA 3/13/2018 3:15:00 PM HSTA 3/15/2018 3:15:00 PM |
HB 400 |
| HCR22 Sponsor Statement 2.19.18.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM |
HCR 22 |
| HCR22 Version A.PDF |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM |
HCR 22 |
| HCR22 Fiscal Note LEG 2.26.18.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM |
HCR 22 |
| HCR22 Additional Documents - ANDVSA Key Results from the 2015 Alaska Victimization Survey 2.19.18.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM |
HCR 22 |
| HCR22 Additional Documents - CDC National Intimate Partner and Sexual Violence Survey 2.19.18.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM |
HCR 22 |
| HCR22 Supporting Document ANDVSA Letter of Support 2.27.18.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM |
HCR 22 |
| HJR38 Sponsor Statement 2.26.2018.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR038 ver A 2.22.18.PDF |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Fiscal Note LEG 2.26.18.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Index of Support Documents 2.26.2018.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Supporting Document- Letters of Support 2.26.18.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Index of Reference Documents 2.26.2018b.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Additional Documents- Reference 2.26.18.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Supporting Document- Powerpoint Presentation 2.27.2018.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Support Letter from Dick Welsh 2.27.2018.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Support Letter from Ocean View Community Council 2.27.2018.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Support Letter from Beth Fread 2.27.2018.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Support Letter Anchorage Board of Realtors 2.28.2018.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Support Letter from Ocean View Community Council 2.28.2018.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Support Document Written Testimony from Bob Gastrock 2.28.2018.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Support Letter from Alaska Association of Realtors 2.28.18.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Support Letter from Dimond Shopping Center 2.28.2018.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Supporting Document- Public Letters of Support 2.28.18.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Support Document Written Testimony from John Pletcher 2.28.18.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Supporting Document Testifier Resume 3.1.18.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Supporting Documnet- Letter Robert Gastrock 3.1.18.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Supporting Document- Pictures from John Pletcher 3.1.2018.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR 38 Supporting Letter from Bonne' Woldstad 3.1.2018.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Support Letter from James Armstrong 3.1.2018.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR 38 Supporting Document- Jack Brown Wirtten Testimony 3.1.18.pdf |
HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |
| HJR38 Opposing Document- Alaska Railroad Letter of Opposition 2.27.18.pdf |
HSTA 2/27/2018 3:15:00 PM HSTA 3/1/2018 3:15:00 PM HSTA 3/8/2018 3:15:00 PM |
HJR 38 |