Legislature(1993 - 1994)
02/03/1994 04:45 PM Senate TRA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
JOINT SENATE AND HOUSE TRANSPORTATION COMMITTEE
February 3, 1994
4:45 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
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, Div. of Land, Dept. of Natural Resources
3700 Airport Way, Fairbanks AK 99709-4699¶451-2700
POSITION STATEMENT: testified on RS 2477
ACTION NARRATIVE
TAPE 94-3, SIDE A
CHAIRMAN SHARP calls the meeting to order 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 Plager states RS 2477 was repealed in 1976 in FLMPA (Federal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 inter-community 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. Ms. Plager replies the Attorney General's Office
will be handling the court cases. 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. 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 adds 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 that 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 that
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.
Number 550
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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