Legislature(1993 - 1994)
02/03/1994 04:30 PM House TRA
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* first hearing in first committee of referral
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JOINT SENATE AND HOUSE TRANSPORTATION
STANDING COMMITTEES
February 3, 1994
4:30 p.m.
SENATE MEMBERS PRESENT
Senator Bert Sharp, Chairman
Senator Randy Phillips, Vice Chairman
Senator Georgianna Lincoln
SENATE MEMBERS ABSENT
Senator Tim Kelly
Senator Jay Kerttula
HOUSE MEMBERS PRESENT
Representative Richard Foster, Chairman
Representative Gary Davis, Vice Chairman
Representative Curt Menard
HOUSE MEMBERS ABSENT
Representative Al Vezey
Representative Eldon Mulder
Representative Bill Hudson
Representative Jerry Mackie
COMMITTEE CALENDAR
RS 2477 - Update from the Department of Natural Resources
WITNESS REGISTER
ANNE PLAGER
Division of Land
Department of Natural Resources
3700 Airport Way
Fairbanks, AK 99709-4699
451-2700
POSITION STATEMENT: testified on RS 2477
MIKE DALTON, Liaison
Lieutenant Governor's Office
P.O. Box 110015
Juneau, AK 99811-0015
465-3520
POSITION STATEMENT: testified on RS 2477
RICK SMITH, Manager
Northern Regional Office
Division of Land
Department of Natural Resources
3700 Airport Way
Fairbanks AK 99709-4699
451-2700
POSITION STATEMENT: testified on RS 2477
ACTION NARRATIVE
SENATE TAPE 94-3, SIDE A
Number 000
CHAIRMAN SHARP calls the meeting to order at 4:45 p.m. and
invites Ms. Plager of the Department of Natural Resources to
begin the briefing.
Number 001
ANNE PLAGER, Department of Natural Resources (DNR), Division
of Land, states the purpose of the briefing is to bring
everyone up to speed on what RS 2477 is and why it is
important. RS stands for revised statute. It is part of an
1866 mining law. RS 2477 states: "The right-of-way for the
construction of highways over public lands, not reserved for
public uses, is hereby granted." What DNR must do is
document that historical use occurred and prove that it
occurred at a time when the land was unreserved public land.
Unreserved public land means the federal government had
never done anything with it. That means it was not set
aside for a park, an oil reserve, a national forest, a
Native allotment, for settlement, etcetera.
MS. PLAGER states RS 2477 was repealed in 1976 in FLMPA
(Federal Land Management Policy Act). However, it did not
erase grants occurring during the time RS 2477 was in law.
Those grants still exist, it is simply that no new grants
can be created.
Number 080
MS. PLAGER notes RS 2477 was (for all intents and purposes)
repealed in Alaska in 1968 when Secretary of Interior Udall
withdrew the entire state from unreserved status in
anticipation of the Alaska Native Claims Settlement Act
(ANCSA).
Number 084
MS. PLAGER says the state must now establish rights-of-way
under RS 2477 by showing historic use on unreserved public
lands prior to 1968. It is particularly important to
document and claim rights-of-way now because of proposed
federal legislation which would curtail Alaska's ability to
establish rights-of-way under RS 2477. That legislation is
currently on hold in lieu of new regulations expected to be
issued by the U.S. Department of Interior. The changes are
not anticipated to be to the state's advantage.
Number 125
REPRESENTATIVE FOSTER asks Ms. Plager where most of the 500
projects DNR is working on are located.
Number 130
MS. PLAGER shows maps of the state indicating where the
projects are located. DNR has one year to document up to
500 routes with 15 paid staff persons and two volunteers.
Six staff members are student interns. The staff is divided
into two groups, with one group working on the historical
research, and the other group working to research land
ownership. 200 of the 500 potential routes have gone
through the entire process. Our goal is to have 500 routes
researched and applied for under RS 2477 by the end of this
fiscal year. There are upwards of 2,000 historical trails,
and one of our efforts is to identify which 500 of those we
should research and document.
MS. PLAGER adds the Department of Transportation and Public
Facilities (DOT) has contributed much work to the effort in
trying to identify future transportation corridors. DNR is
also working closely with the minerals industry to determine
which routes may be needed for minerals extraction in the
future. We are working with communities to determine
intercommunity routes. We are not talking simply about
roads, but about access. Some people are in opposition to
this project because they think we will put roads on all the
routes identified by the project. That is not the intent;
we don't have the funding to do that, and very few of these
routes will actually become roads.
Number 210
MS. PLAGER states that this project is intended to preserve
our access options. RS 2477 is a very powerful tool for
acquiring access. The eleven trails that DNR did first were
carefully selected last year and carefully researched,
documented, and adjudicated. Such an inordinate amount of
time was spent so that DNR could establish, in court,
precedence allowing DNR to determine the criteria for the
rest of the trails so DNR will not have to go to court on
every single trail identified under RS 2477. Ms. Plager
hands out data on the eleven trails just mentioned. DNR
hopes to be in court in June to establish quiet title to the
first eleven rights-of-way.
MS. PLAGER says the state is focusing on federal lands,
because those are the lands for which the state has very
limited access options. With private lands, the state can
negotiate with landowners, offer to buy out owners, or get a
prescriptive easement across their land. With the federal
government, none of those things can be done. ANILCA
(Alaska National Interest Lands Conservation Act) allows for
the state to have Title 11 acquisitions, but Title 11 is so
cumbersome, the state has never, in the fourteen years
ANILCA has been in effect, been able to acquire a right-of-
way under Title 11. For example, to build the Red Dog Road
for the Red Dog Mine, Cominco and NANA found it easier to go
to congress and do a land exchange than to get access under
Title 11 of ANILCA. Under ANCSA, the state is supposed to
be able to get access under 17(b). 17(b) easements are
limited in use. They cannot be a transportation corridor.
Also, they can disappear without any public recourse. For
these reasons, and more, RS 2477 is a very important tool
for the state.
Number 285
MS. PLAGER comments DOT was working on a similar project
twenty years ago. At that time, DOT documented 1,500
trails. However, they only did the historical
documentation, they did not do the follow-up documentation.
Unfortunately, all that is left of that work is the maps; we
do not have the historical documentation. We are recreating
that documentation. We are being careful to save the
research we are doing.
Number 308
CHAIRMAN SHARP asks Ms. Plager if there is any indication on
the first eleven trails what the federal government's
options are for objecting to the state's claims under RS
2477.
MS. PLAGER responds the state may be in court on a few of
the trails or on all of the trails, or the federal
government might simply give the state quiet title.
Number 316
REPRESENTATIVE FOSTER asks Ms. Plager who pays the court
costs for the litigation.
Number 320
MS. PLAGER replies the Attorney General's Office will be
handling the court cases.
Number 325
REPRESENTATIVE FOSTER asks if DNR will need additional funds
to continue their work.
Number 330
MIKE DALTON, Liaison, Lieutenant Governor's Office, responds
that DNR has requested some additional funding to complete
the project, but the cost of litigation is up to the
administration of the State of Alaska. DNR is simply
preparing the case files and handing them over to the AG's
office.
Number 345
REPRESENTATIVE FOSTER thanks Ms. Dalton for her presentation
before the federal commission on land areas. Representative
Foster asks Ms. Plager what the time table is for getting
rights-of-ways asserted.
Number 347
MS. PLAGER replies the projects being researched now will be
finished by the end of the fiscal year. She hopes people
will come forward with comments on which projects they
believe are important.
Number 352
SENATOR LINCOLN asks Ms. Plager if she has an estimate
regarding how long litigation will take.
MS. PLAGER responds she cannot make an estimate regarding
how long litigation might take.
Number 360
SENATOR LINCOLN also asks what relationship DNR has
established with the regional and village Native
corporations.
MS. PLAGER replies that DNR has communicated with any
corporations affected by work done on the first eleven
trails.
Number 385
SENATOR LINCOLN comments six or seven of the first eleven
projects are in her district and she does not recall being
notified of them.
MS. PLAGER responds that notice regarding the first eleven
projects was sent to all the village and regional Native
corporations affected by the projects, in addition to all
municipalities, all identifiable landowners, and the coastal
districts affected by the projects. They also put ads in
newspapers throughout the state. The only item sent to
Senator Lincoln's office so far is a newsletter on the
project which was sent out several weeks ago.
SENATOR LINCOLN advises Ms. Plager to make all notification
to village and regional Native corporations in writing.
MS. PLAGER affirms that all notification has been done in
writing.
Number 400
RICK SMITH, Northern Regional Manager, Division of Land,
DNR, says that research has been conducted on 200 of the 500
trails so far, but a public comment period hasn't yet begun,
which is one of the main reasons for this hearing: when the
public comment period begins, you will probably hear from
some constituents about the project.
Number 410
REPRESENTATIVE FOSTER notes for Senator Lincoln that he sits
on both the village and regional Native corporations in
Nome, and the land managers for both of the corporations
have been real keen on the subject and have received all the
correspondence and have been keeping close track of the
project. He thanks Ms. Plager for keeping in communication
with the Native corporations.
Number 420
REPRESENTATIVE MENARD asks Ms. Plager to define the time
period DNR has to work within, what the term "assert the
trail" means, and how the public process is being tied into
the project.
Number 430
MS. PLAGER says there is no requirement for a public process
to establish an RS 2477. However, DNR does intend to at
least let people know the result of the department's
research. DNR does solicit input that could either
corroborate or refute the conclusion of the research. DNR
spent a lot of time researching the first eleven trails to
try to make them "court proof," or able to stand up to
scrutiny in court, but will only be able to spend one
person's day researching the trail, and one person's day
researching land ownership.
Asserting the trail means we intend to acquire quiet title
to these trails in federal court. For private landowners,
we may or may not ever need to carry the case in to court.
We may or may not ever need to serve them notice that we
want to assert right-of-way across their property. RS 2477
can be used as a tool for negotiation and discussion, it
will not always be necessary to go to court.
The goal is to wrap the project up by June 30, 1994, and
leave it in a form that could be picked up at any point in
time or put to bed forever. Ms. Plager shows the committee
a time line and explains it to the committee.
Number 500
REPRESENTATIVE MENARD asks Ms. Plager if it is Title 11 in
ANILCA which deals with rights-of-way on Native lands.
MS. PLAGER responds Title 11 does not deal with rights-of-
way on Native lands, but rights-of-way on federal lands.
Number 510
CHAIRMAN SHARP asks if, when DNR is ready to assert quiet
title to rights-of-way under RS 2477, they send the project
to the Attorney General's Office, who then picks and chooses
which one they will adjudicate or send notice to the federal
government.
MS. PLAGER replies DNR will keep the files on the RS 2477's
and will have warning before new federal regulations go in
to effect.
CHAIRMAN SHARP asks what the advantage is of waiting until
the new regulations are set up before asserting rights-of-
way.
Number 525
MS. PLAGER says she will be ready by next month to assert
rights-of-way to 200 trails, but has been asked by the
Attorney General's Office to wait. They are not confident
that DNR should proceed without the new regulations in
place.
CHAIRMAN SHARP says he does not expect any favors from the
federal government's new regulations and has a problem with
waiting.
Number 532
REPRESENTATIVE DAVIS asks Ms. Plager if the interns are paid
for their work on the RS 2477's.
MS. PLAGER responds that they are paid internships.
Number 538
REPRESENTATIVE FOSTER asks how hostile the opposing agencies
might be and how they might fight the assertions of rights-
of-way in court.
Number 540
MIKE DALTON replies one should look at what happened in
Denali National Park and ANILCA for examples of what will
happen. She believes there will be a lot of opposition.
Number 545
REPRESENTATIVE DAVIS asks if there are any court cases from
other states that could be utilized as an example of what is
used to determine historical rights.
MS. PLAGER responds there is a large body of court cases to
refer to, not all of which agree with one another. She also
adds that the environmental community is adamantly opposed
to the work DNR is doing on RS 2477 rights-of-ways. They
have promised in no uncertain terms to see the DNR in court
over the issue.
Number 560
SENATOR LINCOLN asks how the eleven initial trails were
chosen.
MS. PLAGER responds the selection of the first eleven trails
occurred before the current project was even funded. These
trails were selected over a year ago by the staff of the
governor and lieutenant governor, John Katz, and DOT and DNR
commissioners because these eleven trails contained all the
possible combinations one might come up with for subsequent
trail assertions. These trails were also chosen for their
current need by user groups.
Number 568
SENATOR LINCOLN asks if ISTEA (Intermodal Surface
Transportation Efficiency Act) criteria had any bearing on
which trails were chosen for the first group of eleven.
MS. PLAGER replies they are looking into all trails in which
DOT indicates a high priority interest. DNR has also made
future state identified transportation corridors a high
priority.
Number 585
CHAIRMAN SHARP thanks all the participants and asks that DNR
keep the legislature updated. The chairman adjourns the
meeting at 5:35 p.m.
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