HJR 38-AK RAILROAD TRANSFER ACT; CONVEYANCES  1:15:43 PM CHAIR CLAMAN announced that the next 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. 1:16:34 PM REPRESENTATIVE KOPP presented PowerPoint, "HJR 38 - Restoring Property Rights," and described HJR 38 as the most important piece of property rights legislation this session. It is within this legislature's purview to weigh in on this matter because the Alaska Railroad Corporation is an instrumentality of the state and properly subject to the legislature's oversight and guidance. REPRESENTATIVE KOPP turned to slide 2, "Purpose" and explained that this resolution is targeted at recent Alaska Railroad claims to an exclusive use easement conveyed over more than 200 homestead patents. Except, he pointed out, the United States did not conclusively hold that interest in the right-of-way at the time of the transfer from federal to state ownership in 1983. By way of background history, he offered that the Alaska Railroad Act of 1914 put the standard railroad easement across the nearly 500 miles of track in Alaska, and that the railroad easement is for rail, telegraph and telephone, and above-ground co-located utilities. This, he explained, was the initial re- reserved limited interest easement. Today, this limited interest right-of-way easement provides the foundation for approximately 80 percent of all railroad tracks in America because the 1875 United States Congress stopped allowing fee simple interest ownership in rights-of-way for railroads. Initially, he explained, the fee simple interest ownership was to incentivize the East/West route across the United States. Except, he advised, legislative history revealed the many problems with railroads charging outrageous fees, and blocking landowners from accessing a crossing to get to the other side with regard to ranchers and then later with homesteaders as the country expanded West. That denial of shared use of the right- of-way, in any capacity, lead to the United States Congress decision to stop offering fee simple interest ownership. The General Railroad Act of 1875 provided for a surface easement only, an easement across another person's property. He explained that this Act was relied upon by the United States Interior Board of Land Appeals in 1982 when Alaska was properly making its statehood land claims under the Alaska Statehood Compact [(72 Stat. 339) Public Law 85-508, 85th Congress, H. R. 7999, July 7, 1958]. The State of Alaska made claim to the rights-of-way along the railroad tracks, and the railroad said, "You can't select this, this has already been appropriated or reserved to us, we own it, state, you can't select it." 1:19:50 PM REPRESENTATIVE KOPP referred to the "House Joint Resolution 38 Meeting Packet" booklet and its yellow tab, and noted that it is the Interior Board of Land Appels 81-426 ruling. He explained that the ruling on this case went directly to the General Railroad Right-of-Way Act of 1875, showing how it was directly connected to the 1914 Alaska Railroad Act. The General Railroad Right-of-Way Act of March 3, 1875, granting a similar right-of- way for railroad across public lands outside of Alaska has been held to convey only an easement and not a fee simple interest in the land. The Interior Board of Land Appeals (IBLA) relied upon the 1875 case telling the railroad that it did not have a fee simple interest; therefore, the state could select the Alaska Railroad right-of-way in its statehood lands selection, and the railroad lost the case. Thereby, Alaska was able to make those statehood land selections because the law was clear that the railroad did not have fee simple interest in the right-of-way, it had surface easement only. He paraphrased the IBLA's decision as follows: These cases decided under other railroad right- of-way statutes persuade us that the lands embraced in the appellant's right-of-way should not be considered to be appropriated or reserved at the time of State selection so has to be excluded therefrom. The decision correctly held that a right-of-way for railroad shall be reserved in any State selection patent issued. Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Tnteiim, 43 CFR 4.1, the decision appealed from is affirmed. REPRESENTATIVE KOPP advised that the state was able to make those selections of state land and reserve the 1914 standard easement. 1:20:55 PM REPRESENTATIVE KOPP turned to slide 3, "What's the Harm?" and answered that hundreds of landowners along the Alaska Railroad Corporation's right-of-way have had their property rights confiscated and a cloud put on their title of land through an unlawful "exclusive use" easement claim that the Alaska Railroad makes to the entire right-of-way. On that point, he advised, the entire right-of-way is over 470 miles of track, and hundreds of miles of that right-of-way have gone into private ownership, from 1914 through 1983, when it was transferred to the State of Alaska. Therefore, everyone with a homestead patent during that period of time are the people who had received their 160-acre Homestead Patent from the federal government, and they had a "Federal Patent," a deed to the land where the federal government totally divested themselves of ownership, he explained. (Indisc.) the federal government never claimed or exercised an exclusive use easement on that private property because it was considered (indisc.) right-of-way, and no one disputed that the underlying landowner was still the homesteader. REPRESENTATIVE KOPP related that that claim to the entire right- of-way brings HJR 38 before this body because some of the issues that drove that claim were highlighted on page 8 of the 4/25/14 letter to John Pletcher from Andy Behrend, Senior Attorney, Alaska Railroad Corporation. He paraphrased the letter as follows: "Regardless of what ... the federal government's interest is in the right-of-way, the obligation exists regardless of what the United States owned at the time, to transfer this exclusive use easement to the entire right-of- way." He said (indisc.). Representative Kopp pointed out that the Alaska Railroad's attorney advised, "We don't care what the federal government owned, they could still transfer this interest to the state even if they didn't own it." Also, the railroad (indisc.) outright ownership to the entire strip of land for all 470 miles of the right-of-way, he offered. This assertion must be squared under Marvin Brandt Revocable Trust v. United States, 572 U.S. ___ (2014), decision when the United State Supreme Court reaffirmed that railroads have surface easements only, and when those easements are no longer being used, they revert to the underlying landowner. When the railroad stopped using that easement, it reverted to the Marvin Brandt Revocable Trust and, he commented, the Alaska Railroad will advise there is no connection. 1:24:46 PM REPRESENTATIVE KOPP, in response to Chair Claman, advised that the yellow tab was the 1982 IBLA case, and the 4/25/14 letter to John Pletcher from Andy Behrend, Senior Attorney, Alaska Railroad Corporation is contained within the committee packet. 1:25:28 PM REPRESENTATIVE KOPP advised that the second point on slide 3 is that HJR 38 addresses a violation of state statute such that in 2005 and 2006, the Alaska Railroad circumvented required legislative approval by apply for, and receiving from, the United States Department of the Interior, Bureau of Land Management land patents within a municipality, specifically Anchorage. These land patents overlaid original homestead federal land patents that go all the way through the core of Anchorage, and run all the way up through the Matanuska-Susitna Valley toward Talkeetna, and continuing on, he said. The Alaska Railroad's position is that it did not have to ask the legislature for this because the exclusive use easement was the federal governments to give to the railroad. Except, he pointed out, the Alaska Railroad is accountable to state law, and the state said that the Alaska Railroad is required to ask the legislature before it can accept or receive such a grant. Further, he said, the law is clear that an exclusive use easement was never contemplated in the Alaska Railroad Transfer Act to be considered across all 470 miles of track. He related that it was only in areas where the federal government actually owns such an easement, such as the Denali Borough and in areas where federal land is among contested Native Corporation Land Claims. 1:26:50 PM REPRESENTATIVE KOPP turned to slides 4-6, titled "What HJR 38 Does," and advised that the resolution provides legislative approval for the Alaska Railroad or the governor to disclaim unlawfully acquired property by the state. Representative Kopp explained as follows: Disclaim means, we're not touching that property interest because we consider it a hot interest, a possibly stolen interest. And so, we -- we walk away from that because we do not want to incur liability to the state by making a property interest claim that the state does not lawfully have. REPRESENTATIVE KOPP explained that HJR 38 directs that a property interest was not available to the Alaska Railroad under federal law and ownership, and it certainly is not available to the Alaska Railroad now. REPRESENTATIVE KOPP noted that HJR 38 also calls upon Alaska's congressional delegation to help resolve claims to the right-of- way as a result of the misapplication of the Alaska Railroad Transfer Act. He pointed out that Alaska's congressional delegation has been helpful and responsive as a result of this effort. 1:27:54 PM REPRESENTATIVE KOPP turned to slides 7-9, titled "HJR 38 Does Not," and advised that it does not remove the Alaska Railroad Corporation's ability and duty to police and keep tracks and rights-of-way safe, affect its speeds, as so forth. He advised that the Alaska Railroad "put out a narrative" and encouraged people to say that if HJR 38 passes, it will have to reduce speeds and will possibly not meet schedule commitments. Representative Kopp stressed that nothing could be further from the truth, the Alaska Railroad has operated with a standard railroad easement. Under the Memorandum of Understanding in 1983, Governor Jay Hammond signed that the 1914 Standard Railroad easement would be the easement for all future expansions of the railroad. He offered that the Alaska Railroad has been moving jet fuel and all manner of hazardous materials under that right-of-way easement. Eighty percent of railroad tracks in America operate under the same easement and only pre- 1987 railroads have fee simple titles. Almost every operational railroad today does not have an exclusive use easement, "none that I know of." Secondly, HJR 38 does not affect any lawfully obtained property of the Alaska Railroad Corporation, including any right, title, or interest passed from federal to state ownership in 1983. This resolution does not impact the railroad's ability to profit or impact its economic model because he does want the Alaska Railroad to be successful, except it will tell the committee that it must run a train at 20 mph across 100 miles of homestead land due to the possibility that something might happen. Currently, he said, the Alaska Railroad has, and always has had, full authority to stop anything in the right-of-way that is dangerous. This resolution will not affect its ability to obtain an injunction on any interfering or competing use of the right-of-way, as it has always done since 1923 when the Alaska Railroad was completed. 1:30:03 PM REPRESENTATIVE KOPP turned to slides 10-11, titled "A Brief History," regarding the 1914 Alaska Railroad Act, and advised that the federal government owned and operated the Alaska Railroad and some of the land over which the railroad operated. However, he noted, much railroad right-of-way passed into private hands that was in non-federal ownership because many Alaskans received homestead patents. When those patents included land crossed by the railroad, the federal government still transferred ownership of the land to the citizen, but reserved for itself a specific property interest called the "right-of-way" so it could use 100 feet on either side of the centerline of the railroad to operate the railroad, as well as telegraph and telephone lines. The 1914 Alaska Railroad Act gave the railroad a right to use the land owned by others, as identified in each federal patent, but it did not transfer a right to own and control a property in a manner unrelated to the patent reservation. 1:31:00 PM REPRESENTATIVE KOPP turned to slide 12, and advised that the federal government cannot transfer a property interest to the State of Alaska if it never owned the property interest in the first place. REPRESENTATIVE KOPP turned to slides 13-15, and advised that a standard railroad easement is not fee simple ownership of land or necessarily the right to exclusivity, it is an interest in land owned by other people. The standard railroad easement is usually limited in the extent of occupancy and use, and it can involve a general or specific portion of the property. This, he explained, was the limited interest the United States Congress allowed all railroads to have after 1875. The "rail properties" granted to the state include only the "right, title, and interest" which belonged to the United States in 1983. Other than within the Denali Borough, and on a few other federal parcels of land, there was no outright exclusive use in the Alaska Railroad Transfer Act (ARTA) related to other areas, it was only where the federal government actually possessed that interest. 1:31:56 PM REPRESENTATIVE KOPP explained that the exclusive use easement discussion allows the holder to exclude all others, including to fence and bar off any other user of the land whether or not that use is a safety issue. He reiterated that there is no question the Alaska Railroad did have an exclusive use in Denali National Park and Preserve and in areas subject to unresolved Native claims because the federal government owned that property. Due to a fundamental mis-reading of ARTA, the Alaska Railroad claims that at least an exclusive use easement must be granted to the state in the entire right-of-way "regardless of what the federal interest was in the right-of-way over private property," which was stated in the letter to Mr. Pletcher. Representative Kopp stated that no credible argument can be made that an exclusive use easement belongs to the Alaska Railroad without establishing what the private parties and the federal government actually owned in 1983. He pointed out that in 1996, Phyllis Johnson, legal counsel for the Alaska Railroad said, and he paraphrased as follows: "We, the railroad, might not have owned all we thought we had owned, and that we have to do a parcel-by-parcel search to know what the property interests were before we came along." Except, something took place after 1996, wherein the Alaska Railroad's current legal counsel moved away from that statement because it is easier to claim that a parcel-by-parcel research is not necessary, that an entire exclusive use easement was given to the "right-of-way" even if it cannot be proved through our title recording system. While, he pointed out, it may be easy for the railroad, it is wholly foisted on the state's innocent property owners along the track, and that claim was made without notice or recourse for the property owners to contest otherwise. 1:33:58 PM REPRESENTATIVE KOPP turned to slides 16-18, which read as follows: BE IT RESOLVED that the Alaska State Legislature believes, as it pertains to privately held properties in the state that contain or are required to contain a reservation for the purposes set out in the Alaska Railroad Act, all conveyances to the Alaska Railroad Corporation under the Alaska Railroad Transfer Act of 1982 that purport to convey an "exclusive-use easement" as defined in 45 U.S.C. 1202(6), in which associated rights, titles, or interests were not conclusively owned by the federal government at the time of the transfer, are contrary to law; and be it FURTHER RESOLVED that the Alaska State Legislature believes that any right, title, or interest not conclusively owned by the federal government at the time of the Alaska Railroad Transfer Act of 1982 that was erroneously conveyed to the Alaska Railroad Corporation, and certain interests in land conveyed to the Alaska Railroad Corporation without the legislative approval required under AS 42.40.285, should be disclaimed as a matter of law; and be it FURTHER RESOLVED that the Alaska State Legislature urges the Alaska delegation in Congress to recognize the views of the Alaska State Legislature expressed in this resolution and to take appropriate action to encourage the recognition of validly held private property rights that were not conveyed under the Alaska Railroad Transfer Act of 1982. 1:34:52 PM REPRESENTATIVE KOPP 19 turned to slide 19, and advised that the supporters of this resolution are not limited to the following: Adventure 60 North, Seward; Municipality of Anchorage; Alaska Association of Realtors; Anchorage Association of Realtors; The Bradley Company Construction; Dimond Center; Flying Crown Homeowners Association; Lynden Air Cargo; National Association of Reversionary Property Owners; Old Seward Oceanview Community Council; South Anchorage Red Robin; Taku Campbell Community Council; Talkeetna Historical Society; Tantikil Unlimited Land and Resource Management; and countless private property owners along the Railroad Right-of-Way 1:35:23 PM REPRESENTATIVE KOPP turned to slides 20-22, titled, "Property Owners Speak Out," and advised that the property owners have been denied access to their properties and this issue has put a cloud on their titles. In 2005 and 2006, the United States Department of the Interior land patents were issued "over on top of" federal homestead patents without notification to the landowners. The property owners began to realize that in 2012, the residential right-of-way use permits were being rolled out to bite down on the exclusive use claim. The property owners further realized that they, in fact, had a land patent overlaid on their homestead patent. He asked the committee to imagine having a land patent for 50-years and suddenly a federal patent is overlaid on your land patent making a claim that was never previously issued. 1:36:35 PM ERICK CORDERO GIOGANA, Staff, Representative Chuck Kopp, Alaska State Legislature, stated that (indisc.) contains a sample of homestead patents and a current (indisc.) on top of it for review. 1:37:21 PM REPRESENTATIVE STUTES asked who pays the property taxes on this property. REPRESENTATIVE KOPP answered that she would have to ask the Alaska Railroad because he was unsure. In South Anchorage, specifically the Ocean View neighborhood, that issue has been a point of contention because the size of the lot includes the right-of-way, he said. Whether that right-of-way should be taxed is a separate issue, but it has been pointed out that the lot size "goes over into the right-of-way," he offered. 1:38:05 PM REPRESENTATIVE STUTES surmised that currently the (indisc.) property tax on that right-of-way. REPRESENTATIVE KOPP responded that (indisc.) does go into the right-of-way where they are being assessed value. 1:38:35 PM CHAIR CLAMAN opened invited testimony on HJR 38. 1:39:16 PM WILLIAM O'LEARY, President/Chief Executive Officer, Alaska Railroad Corporation, advised that he represents 600 employees, numerous customers, and 500,000 passengers carried every year by the Alaska Railroad. On their behalf, he said that he is speaking in opposition to HJR 38, and that the numerous reasons for this opposition fall into two primary categories, safety, and legal issues. He said he would explain why safety necessitates that the Alaska Railroad have that exclusivity in the right-of-way, and the impacts to the railroad and its customers should it not have that exclusive use of the right-of- way. He commented that as was noted in past discussion by members of the House Judiciary Standing Committee, House State Affairs Standing Committee, and by several member of the Anchorage Assembly recently, this is an issue that belongs in court. When reasonable people disagree about the nuances of a law, the decision of that law should be made in a court of law. Simply put, he offered, safety is the Alaska Railroad's top priority, (indisc.) safety as seriously as it should, and that the number of fatalities (indisc.) YouTube videos shot on railroad tracks every day and year bears out the safety issue. Each year, almost 500 people are killed in this country while trespassing on railroad property, time and time again people vastly underestimate the danger to themselves and others when trespassing on railroad rights-of-way, drive around gates at crossings, or put structures in the rights-of-way. Fourteen people have been killed trespassing on the Alaska Railroad since its transfer in 1985, including a 23-year old woman (indisc.) since the last hearing on this resolution, and every single death was avoidable. 1:41:58 PM MR. O'LEARY remarked that loss of exclusive control of the right-of-way could be detrimental to the operation of the railroad, its customers, passengers, business partners, and the people of Alaska who are the ultimate owners of the Alaska Railroad. As it is currently, (indisc.) the railroad can assume control in all areas of its right-of-way and assumes its professionally trained security personnel, track managers, maintenance crews, on-board personnel, to name a few, are making certain the tracks and right-of-way are clear, safe, and operational. The Alaska Railroad has full control and discretion to remove anything and everything that poses a safety hazard to its operations, yet in the event the right-of-way is turned into a checkerboard of control from Seward to Fairbanks, the safety assumption cannot be made and it may become necessary to reduce track speeds in the areas without the railroad's complete control, he related. In the event there is one parcel of land that is not under the control of the railroad along miles of the long stretches of track, the Alaska Railroad may have to reduce speeds along that entire stretch, thereby, making it impossible to meet its commitments, get passengers or freight to wherever they are traveling in a timely and economical manner. This resolution also brings up the question, who can control what goes in the right-of-way, can the railroad's neighbors store junked cars leaking oil, which has happened, can they plow snow berms so the people approaching or stopped at railroad crossings can't see an oncoming train, can they store hazardous materials on the right-of-way, remove a swing set 30 feet from the tracks, or the railroad remove it if the party refuses, he asked. The Alaska Railroad's train cars are 80 feet long and in a case of derailment, having a 100-foot buffer on each side of the track is critical. He commented that the Alaska Railroad has had to take its neighbors to court when performing something that is unsafe. 1:43:54 PM MR. O'LEARY posed the question of what is actually allowed in the right-of-way, and offered that the Alaska Railroad's neighbors may disagree with a public trail being in the right- of-way, such as the Coastal Trail. The railroad has been working with the Municipality of Anchorage and Turnagain Community Council regarding the Fish Creek Trail. He asked whether "they can stop" a community from building a trail specifically allowed for in state law, or a gas pipeline, electric line, highway, or street that might use the right-of- way, can they demand outrageous (indisc.) small section of the right-of-way, he asked. This ambiguity could tie up projects for years, decades, or even kill them altogether due to questions of ownership. He related that HJR 38 incorrectly describes the rights held by the federal government and the Alaska Railroad right-of-way; it mis-interprets the property rights that the federal government transferred to the State of Alaska and the court cases regarding railroad rights-of-way. He reiterated that this is an issue for the courts to decide in order to determine the legal answer, and he encouraged the committee to not support HJR 38. 1:45:09 PM REPRESENTATIVE EASTMAN commented that last year his family traveled on the Alaska Railroad and he could not remember anytime during or after, when the railroad asked them any of their thoughts "on this matter." Customarily, he said, it would be best to either obtain permission or obtain some idea of (indisc.) committee. As someone who does support HJR 38, he asked that Mr. O'Leary not speak on his behalf or that of the other passengers. 1:45:53 PM REPRESENTATIVE REINBOLD asked Mr. O'Leary to address traditional homestead use, recreation, and why the railroad would not want the legislature's approval when it is a state corporation. MR. O'LEARY responded that he was unsure he understood Representative Reinbold's question, and offered that the Alaska Railroad's concern is with its ability to operate a safe railroad and have exclusive control of the right-of-way. 1:46:54 PM REPRESENTATIVE REINBOLD commented that his response is obvious because everyone wants safety. However, she asked, how does the railroad deal with the traditional users that were living there prior to the Alaska Railroad, and to also address why legislators would not want to participate in this issue. MR. O'LEARY replied that the Alaska Railroad is not opposed to people recreating because it understands and bisects this state to a large degree. The railroad is a large operating entity and its primary concern is safety, and then its concern is about being able to run an economical railroad in this situation. He acknowledged that he does not have a great answer because he is unsure he fully understands the question. 1:48:31 PM REPRESENTATIVE REINBOLD offered the example that a correctional facility is located in her neighborhood, and male prisoners were recently admitted into that female prison. She related that the community council passed a resolution against that occurrence because [the prison system] was not being a good neighbors in addressing those concerns, which causes a red flag for her as to this issue. She commented that the railroad needs to be a good neighbor, there are historical traditional uses that took place far before the Alaska Railroad, and the churches recrate in the area. As to the 14 incidents since 1982, she asked whether any of those deaths were deemed suicide. As a state, it needs to lead by example and be good collaborative neighbors and not impose rights above the traditional rights of others, she offered. MR. O'LEARY answered that the Alaska Railroad's desire is to be a good neighbor and there have been situations where the railroad rightly or wrongly has been painted with "not being a good neighbor." It is important to the railroad and its board that it does work collaboratively and well with the many different organizations, but for the railroad to run a safe operation there are certain things wherein it must draw the line. He commented that that is similar to airports who want to be good neighbors but they are all fenced off and no one can be on the tarmac to recreate. 1:50:24 PM REPRESENTATIVE REINBOLD referred to his example of the airport and pointed out that an airport is a small area and the railroad runs through traditional use and recreational properties. She reiterated that she would like to know whether the 14 deaths were the railroad's fault where it hit something on the track, or whether the deaths were suicides, and what caused the deaths. She asked whether there are areas with signage, awareness, fees imposed if violated, can be put up to reduce the danger if Mr. O'Leary is claiming that there is danger. Wherein the traditional uses, such as homesteads, recreational areas, and so forth, are still allowed to have their use or even people that are paying property taxes. MR. O'LEARY responded that it is the Alaska Railroad's position that while he does not have the specifics, the 14 people were trespassing on the railroad when they were killed. CHAIR CLAMAN offered his understanding that the most recent death was when a woman was asleep on the track at night, and by the time she was spotted it was too late to stop the train. 1:51:50 PM REPRESENTATIVE REINBOLD commented that 500 miles is a long swath between critical habited areas, and she wants "us to be good respectable neighbors" that honor historic traditions while still maintaining safety. She said she was unsure where she stood regarding this resolution but as legislators with oversight, it appears to be a reasonable resolution. She related that she has worked on trails for many years and for the Alaska Railroad to come forward and say, "this is ours, it's exclusive use," appears harsh. 1:53:10 PM REPRESENTATIVE KREISS-TOMKINS asked whether Mr. O'Leary had said there have been 14 fatalities since the transfer in 198[5]. MR. O'LEARY replied that there have been 14 fatalities on the Alaska Railroad since the 1985 transfer. 1:53:34 PM REPRESENTATIVE KREISS-TOMKINS noted that the train cars are 80- 90 feet long. He asked whether it was Mr. O'Leary's belief that the railroad must manage the right-of-way for any hypothetical situation. For example, at any point along the right-of-way, a car may derail and travel entirely perpendicular to the tracks and wipe out everything. Therefore, the railroad must prepare for every inch of the right-of-way wherein a train car might be snowplowing along and everything needs to be removed from those margins along the tracks. He related that he is trying to better understand the context of Mr. O'Leary's comments. MR. O'LEARY responded that from the Alaska Railroad's perspective, it has 100 feet on either side of the centerline of the track as right-of-way. From a purely safety perspective, he said, "yes, I would say that we would like to protect that right-of-way very seriously" because that is something that can happen, and it has happened. When heavy freight trains or railcars derail, they can take up to a mile to stop and can cut quite a swath of damage and destruction. (Audio difficulties.) 1:55:15 PM REPRESENTATIVE KREISS-TOMKINS related that he is from the Southeast and is not familiar with the railroad's history. He asked, during the history of the Alaska Railroad, whether there has been a derailment and a train car cut a swath of destruction, such as Mr. O'Leary described, wiping out property or causing someone's death. MR. O'LEARY answered that he was unsure whether anyone has been killed in the right-of-way as a result of a derailment, and his initial response is that it has not occurred but he will research the issue. As with every railroad over the years, there have been serious and horrific derailments in the past and derailment is taken seriously. 1:56:23 PM REPRESENTATIVE STUTES referred to the 4/5/18 letter from Doug Chapados, CEO/President of Petro Star, Inc., directed to Chair Claman, and noted that the letter was written on behalf of the Alaska Railroad Corporation. She pointed to the following language, "denying ARRC an exclusive ROW will impede developments to connect Anchorage to the Interior," and asked Mr. O'Leary to speak to that assertion. MR. O'LEARY responded that from the Alaska Railroad's perspective, it moves freight between Anchorage and Fairbanks and throughout the state, and without having exclusive control of the right-of-way, it needs to know what is around the next corner. He reiterated that it is important to run a safe and economical railroad in control of that right-of-way, and if it is not in control, there could easily be operational impacts and it could impact the economics of the abilities of the Alaska Railroad. 1:58:05 PM REPRESENTATIVE KOPP referred to Mr. O'Leary's comment about taking property owners to court to resolve differences, and asked the last time the Alaska Railroad went to court to resolve an issue between a property owner and the Alaska Railroad. MR. O'LEARY deferred to Andy Behrend, attorney for the Alaska Railroad. 1:58:47 PM ANDY BEHREND, Chief Legal Counsel, Alaska Railroad Corporation, advised that he is unaware of any court action that actually occurred in order to resolve differences between the railroad and property owners. During his tenure of eight years working for the railroad, he recalled at least three situations wherein commercial entities used the right-of-way for their own business without permission and without a permit. During those occasions, the railroad engaged with the commercial entities and discussed removing their business from the right-of-way. He offered that junk cars were leaking oil and the Department of Environmental Conservation (DEC) had to get involved. As to the three cases, he advised, the railroad directed several "cease and desist" types of letters, then drafted complaints and advised that the complaints would be filed within 30-days if the companies did not cooperate, and all three entities left the right-of-way. As to residential property owners, he said that he is not aware of any court actions the Alaska Railroad has taken. 2:00:15 PM REPRESENTATIVE KOPP pointed out that HJR 38 primarily deals with homestead patent areas that are primarily residential. He asked whether it would be fair to say that it is a "very rare occurrence" when the court has to get involved to resolve an issue. MR. BEHREND acknowledged that the court getting involved has been rare, and the railroad has worked with residential landowners in an attempt to put together a residential use policy and permit policy. The policy was passed by the Alaska Railroad Board of Directors, except it was controversial and has since been rescinded. Generally speaking, he opined, there have been issues with drainage or erosion in the right-of-way due to over-watering and through discussions have "generally worked it out." He explained that when the Alaska Railroad talks about going to court, if there is a legal dispute about property rights, the courts are the correct venue to answer those questions. As far as residential uses of the right-of-way, he offered that the railroad does its best to work through those issues. He acknowledged the issues of property owners being there before the Alaska Railroad, but in many of those situations the federal railroad mainline has been there since 1919-1923 when the full railroad was completed. Despite that fact, he said the railroad made an attempt to regulate those residential uses, which is something the railroad contends is its right and the exclusive use easement allows. He explained that it is a mechanism where the railroad, at its discretion, regulates what happens with the right-of-way. 2:03:11 PM REPRESENTATIVE KOPP explained that HJR 38 simply reads that the current understanding is of a standard railroad easement, which the Alaska Railroad has not asserted more than that before 2012 in any widespread manner. He asked whether the railroad's fear is that by continuing a standard railroad easement understanding, the landowners will suddenly rise up with new and unsettling behavior that will threaten the safety and existence of the railroad. MR. O'LEARY answered that the Alaska Railroad does not know what HJR 38 means, but it can see issues with the resolution. 2:04:12 PM CHAIR CLAMAN referred to the Anchorage area property owners adjacent to the railroad, and asked whether the railroad pays any property taxes on those easements and how the easement affects the property evaluation paid to the Municipality of Anchorage. MR. O'LEARY answered that the Alaska Railroad, as an instrumentality of the State of Alaska, is a tax-exempt entity and is exempt from such taxes. He related that he is unaware of any part of the right-of-way that adjacent homeowners are paying property taxes. 2:05:41 PM MR. BEHREND advised that the proponents of HJR 38 assert that the federal government transferred exclusive rights to the Alaska Railroad right-of-way that the federal government did not own, and further assert that the Alaska Railroad right-of-way is a non-exclusive easement that adjoining landowners can use in any manner that does not interfere with railroad operations. These assertions are incorrect, he stated, because the Alaska Railroad does have exclusive control of its right-of-way for several reasons. First, he said, as the United States Congress expressly found when considering the Alaska Railroad Transfer Act in 1982, the federal government owned most of the Alaska Railroad right-of-way in fee simple title which it had acquired as a result of the 1914 Congressional Act that created the Alaska Railroad. Second, he stated, specifically guaranteed in the Alaska Railroad Transfer Act (ARTA), the federal government transferred at least an exclusive use easement in all of the Alaska Railroad right-of-way to the state-owned railroad in 1985. Third, even if the Alaska Railroad had not received fee simple title or an exclusive use easement in the right-of-way, railroad easements have consistently been held by the courts for well over 100 years to provide railroads with exclusive rights in the right-of-way. 2:07:22 PM MR. BEHREND referred to Alaska Railroad Memorandum titled, "Ownership and Exclusive Control of the Alaska Railroad Right- of-Way" [contained in the committee packet] and advised that while he does not have time to explore all of the issues in depth, he would highlight some of the most important issues. Mr. Behrend offered that the origins of the Alaska Railroad exclusive rights in its right-of-way trace back to the Act of March 12, 1914, which authorized and directed the location, construction, and operation of a railroad route in the Territory of Alaska. He paraphrased the intention of the railroad route of the 1914 Act, as follows: To provide transportation of coal for the Army and Navy, transportation of troops, arms, and munitions of war, the mails, and for other governmental and public uses. MR. BEHREND stated that the 1914 Act also granted rights-of-way through federal lands for that railroad and authorized the federal government to establish rules and regulations for control and operation of the railroad. 2:08:19 PM MR. BEHREND explained that the Alaska Railroad right-of-way was designated and construction was completed in 1923, and for the next 60-years, the federal government owned and operated the Alaska Railroad using it as both as a railroad and a utility corridor. When the United States Congress began discussing the concept of transferring the railroad to another entity in the early 1980s, Congressional committees determined that most of the Alaska Railroad land, including its right-of-way, was held in fee simple title by the United States. He paraphrased one of the Congressional committees as to the intent of Congress "was that ARTA 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." He said that the committee went on to explain that "conveying the right-of-way in fee was required so that the state can continue to operate the railroad." The United States Congress also recognized, during the process of looking at the Alaska Railroad Transfer Act, that some Alaska Railroad lands could be subject to third-party claims. Therefore, Congress included in ARTA a process for determining such claims, but still providing the state with exclusive control of the right-of-way. Senator Ted Stevens confirmed this on the floor of the United States Congress just a few weeks before ARTA passed the Congress, and he paraphrased Senator Stevens' statement as follows: 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 expeditated adjudication process. MR. BEHREND advised that Senator Stevens went to describe the purpose of this exclusive use easement being proposed in ARTA, as follows: Essentially, the exclusive use easement is defined to ensure that the state-owned railroad will receive exclusive and complete control over lands traversed by the right-of-way. 2:10:44 PM MR. BEHREND offered that within the enacted version of ARTA, its plain language confirms that the state-owned railroad was to receive exclusive control of the entire right-of-way. He paraphrased a provision of ARTA, as follows: 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. MR. BEHREND explained that this exclusive control provision specifically applied to any areas of the right-of-way that left federal ownership prior to the enactment date of ARTA. He pointed out that this gets to the discussion of the homestead patents, and paraphrased a provision of ARTA, as follows: Where lands within the right-of-way or any interest in such lands have been conveyed from federal ownership prior to January 14, 1983, or is subject to a claim of valid existing rights by a party other than a village corporation, the conveyance to the state of the federal interest in such properties pursuant to Section 1203(b)(1) or (2) of this title, shall grant not less than an exclusive use easement of such properties. MR. BEHREND advised that consistent with the above language from ARTA, the transfers, the conveyances, were made of Alaska Railroad land to the state-owned newly formed Alaska Railroad Corporation. He said that consistent with the above language, the interim conveyances issued in January 1985, conveyed the right-of-way to the state-owned railroad and also the final patents that followed later, and they all expressly conveyed an exclusive use easement as that defined in the Alaska Railroad Transfer Act (ARTA). 2:12:48 PM MR. BEHREND related that his third point is that the Alaska Railroad right-of-way would be held exclusively by the railroad even if ARTA had not guaranteed this minimal interest of an exclusive use easement as defined in that statute. He explained that his statement is true because courts have consistently held for over 100 years, that railroads have exclusive rights to their right-of-way. He referred to the memorandum, pages 9-11, and advised that some of those authorities are discussed in both court cases, legal treatise, commentators, and so forth. He said that he would quote from a couple of the cases that explain what the courts have done with these railroad right-of-way easements, as follows: Midland Valley R. Co. v. Sutter, et al. 28 F.2d at 167-68 (1928) The decisions of the national courts and 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. MR. BEHREND advised that the court went on to talk about the reasons for that rule, as follows: The basic reason for the majority rule is that the exclusive possession is necessary to enable the railroad company to safe conduct its business and meet the duty of exercising that high degree of care which the general law and administrative rules enjoin upon it. ... These duties require it to have the exclusive possession of its right-of-way. 2:15:03 PM MR. BEHREND acknowledged that some of the cases are old and the memorandum provided cases up through recent date. The proponents of HJR 38 talk a lot about the 1875 Act, and a 2014 case talks about this question as to whether the right-of-way was exclusive under the 1875 Act. Union Pacific R.R. v. Santa Fe Pacific Pipelines 231 Cal.App 4th 134, 163 (Cal. Ct. App. 2014 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. 2:16:02 PM REPRESENTATIVE KOPP referred to Mr. Behrend's statement that ARTA's plain language requires transfer of the federal interest in the right-of-way, and asked where in ARTA does it read that something the federal government does not own must be transferred. MR. BEHREND opined that there is no language to that effect in ARTA, but there is language that says the federal government must transfer at least an exclusive use easement as defined in ARTA. He stressed that that is clear, that interest must be conveyed and it does not talk about interest being conveyed that is not owned. Clearly, he said, from the legislative history, Congress appears to believe that the federal railroad had these exclusive rights to transfer. Therefore, the real point is that Congress found that exclusive control was necessary to run a safe and economic railroad, and Congress determined that that minimum interest must be transferred, and those interests were transferred. He pointed out that it does not say that interests that (indisc.) owned have to be transferred. From the legislative history, it is clear that the statute was premised on the fact that the federal railroad actually did own those rights. He added that the Alaska folks negotiating for the transfer of the railroad were clear that exclusive rights to the right-of-way were necessary for them to take the step of purchasing a railroad which had dated infrastructure, had been losing money under the management of the federal government, and that they clearly believed that Congress had found that exclusive control of the right-of-way was necessary to have "this going concern railroad." All of those issues come together to where there is not only the direction to convey an exclusive use easement to the state-owned railroad, but also the federal government saying that if any party brings an action challenging the railroad's title to its property, the federal government will step in and defend that title. He commented that it is an unusual provision, but it shows the importance of that issue. 2:19:11 PM REPRESENTATIVE KOPP asked whether Mr. Behrend was confident that the federal government possessed an interest strong enough to pass an exclusive use easement of the entire right-of-way to the state. MR. BEHREND answered that the Alaska Railroad believes it has a strong argument to that effect and it does not question the sincerity of those folks arguing on the other side of the argument. Except, he remarked, the Alaska Railroad disagrees that the 1914 Act provided the same title as, for instance, the 1875 Act. One reason it is much different, he offered, is that the 1875 Act, as Representative Kopp correctly pointed out, was an Act which basically went from granting what is almost basically fee interest to an Act which granted a railroad easement. In the case of the 1914 Act that created the Alaska Railroad, the federal government was not directing a grant to private railroad companies. The real problem before 1875 was that private railroad companies tied up large swaths of land and blocked people from its use, he reiterated. The Alaska Railroad Act of 1914 directed the president to create up to a 1,000-mile- long Alaska Railroad. The Act also directed "them to bring in resources from the Panama Canal Project" to help get the Alaska Railroad built, it did so as a way of opening up and developing the State of Alaska, and this was to be a federally owned, federally operated, railroad. It was not a grant of federal land to a private company, he explained, it was the federal government designating land to be used for a railroad, which is a much different (indisc.). In further response to Representative Kopp's question of comfort, he advised that these cases which show that railroad rights-of-way, even where there is an 1875 Act easement, it does provide exclusive rights to the railroad. There is no question that the federal government ran the Alaska Railroad for 60 years, it moved trains and utility uses were made of the right-of-way, he advised. It is the Alaska Railroad's belief that that argument is more of a backup argument, but it is an additional argument that shows there were exclusive rights of the right-of-way that could be conveyed, he further explained. 2:22:13 PM CHAIR CLAMAN noted that lawyers are good at speaking a long time and they are also good at following time limits, he would be putting time limits on Mr. Behrend's answers. 2:22:24 PM REPRESENTATIVE KOPP offered that HJR 38 simply read that the federal government cannot transfer an interest to the state that the federal government does not own. He related that if Mr. Behrend is confident that that did not happen, why would the Alaska Railroad be in opposition to this resolution. MR. BEHREND replied that the Alaska Railroad does feel comfortable with its position, and that is the position it depends upon every day to operate the railroad. The Alaska Railroad believes there have been examples from his testimony where it disagreed with some of the premises of HJR 38. The other piece to the railroad's confidence is that it appears HJR 38 is seeking to ask Congress to take some sort of action, but there is no specification as to the description of that action. He reiterated that while the Alaska Railroad strongly believes it is correct on the law, the constituents supporting this legislation believe they are correct on the law. Therefore, he pointed out, the court is the correct venue for review because these are complex legal issues. 2:23:52 PM REPRESENTATIVE REINBOLD commented that if the railroad must run, for example, five minutes longer, that is not a huge amount of delay to lock up the whole area for exclusive easement rights forever. She requested a ball park figure of the total amount of public funds that the Alaska Railroad has used for the corporation since 1985. MR. O'LEARY answered that as a matter of course, the Alaska Railroad does not request state funds. In the 1990s, there was approximately a $10 million appropriation related to the purchase of railcars for the Wishbone Hill Project, which did not quite materialize. He opined that approximately $80 million was related to the bridge over the Tanana River as part of the Northern Rail Extension, and approximately $34 million related to the unfunded federal mandate of positive train control. (Indisc.) over large projects that are not necessarily a matter of daily business for the railroad has state money been requested or received. 2:26:16 PM REPRESENTATIVE REINBOLD commented that she thought the Alaska Railroad should have gone to the federal government for an unfunded federal mandate, and she was upset that the railroad "made us use state funds" when the state was facing a crisis. She asked how profitable the Alaska Railroad is as a corporation and whether any money ever come back to the general fund. MR. O'LEARY said (indisc.) our financials look more like a private enterprise, it measures net income and on an average of 10 years is somewhere in the $12-$14 million range. (Indisc.) capital intensive. The Alaska Railroad believes it is necessary to put upwards of $40 million per year into its existing infrastructure, without any type of expansion, to keep the wheels on the wagon. He stated that the Alaska Railroad does not pay any money into the general fund. 2:27:49 PM REPRESENTATIVE REINBOLD requested a description of the entities with oversight over the Alaska Railroad. MR. O'LEARY responded (indisc.) oversees at this point as well as all of the regulatory agencies; the Federal Transit Administration; a seven-member board of directors appointed by the governor with specific statutory requirements for those board members; the Alaska Railroad reports to the legislature and is required to go to the legislature for specific activities; and two members of the board are commissioners of the governor's cabinet. He commented, "We serve many masters." 2:28:58 PM REPRESENTATIVE EASTMAN asked whether Mr. O'Leary is aware of any other United States property law where a property owner is paying taxes on their property, but someone else has exclusive use to a portion of that property and is not paying taxes. MR. BEHREND answered that he had not participated in the response to the taxation issue, and was not aware of the issue regarding the Flying Crown. Although, he said, he has looked at the tax lot situation in most of the Potter Hill area in South Anchorage, consistent with the platting of those subdivisions which show the lots only going up to but not across the boundary of the right-of-way, and he is only aware of one situation where a property owner is being taxed on a lot in that area. As to the remainder of the whole Potter Hill area, the residents are not paying taxes on the right-of-way. He offered the example of a taxpayer who showed the Alaska Railroad that she was being taxed on the right-of-way; the railroad advised that it could not directly assist her. The railroad offered to write a letter on her behalf to the Municipality of Anchorage advising of its belief that this person should not be taxed because the property belongs to the Alaska Railroad, and she declined the railroad's assistance. He commented that he is not aware of any similar situations, and that the railroad believes the property owners along the right-of-way are not paying those types of property taxes, but the Alaska Railroad would be happy to write a letter on behalf of any taxpayer paying property tax on part of the railroad's right-of-way. 2:31:49 PM REPRESENTATIVE EASTMAN asked, other than the cases Mr. Behrend referred, whether he was aware of any other examples in United States property law of such situations. MR. BEHREND responded that his answers are based on whether property owners are paying taxes on right-of-way property subject to the exclusive use easements. Outside of Alaska, he said that he does not know what typically takes place and he is not aware of anything in other jurisdictions, but he has not researched the issue. 2:33:15 PM ERROL CHAMPION, Chairman, Legislative Issues Committee, Alaska Association of Realtors, advised that the Alaska Association of Realtors believes benefit will come if the resolution is passed and put into place. 2:34:01 PM KATE BLAIR, Manager, Government and Public Affairs, ENDEAVOR fka Tesoro Corporation, advised that ENDEAVOR, fka Tesoro Corporation, is an integrated refining logistics and marketing company with assets across the United States; it operates ten refineries and owns a series of pipelines, tank farms, marine, rail; and a network of fuel stations. This is its 49th year of operating in Alaska, refining Alaska's crude oil, and transporting fuels and home heating fuels for Alaskans. In 2016, ENDEAVOR purchased assets in Anchorage and Fairbanks from Flint Hills Resources and a main driver for that investment was the rail facilities at either end. The Alaska Railroad also moved ENDEAVOR's products into the Interior of Alaska in a safe, reliable, and economic manner. She expressed the ENDEAVOR'S concern with the resolution is the impact it could potentially have on the railroad's commercial operations and its ability to run the train at higher speeds. As the Alaska Railroad has asserted, the unrestricted use of the right-of-way by adjoining residents and the public would require lower train speeds of 20 mph or 16 mph in some areas. She offered that that a slowdown would mean a significant change in the current travel time to Fairbanks, and would change the schedule and economics of deliveries into the Interior. While it is not ENDEAVOR's place to weigh in on the property or landownership issues of the right-of-way; however, if changes are made in the manner in which the railroad has to operate, it is important to recognize that those changes would in turn affect ENDEAVOR's fuel delivery and make transportation into the Interior more expensive. 2:35:52 PM REPRESENTATIVE EASTMAN asked Ms. Blair to distinguish what would legally require the operator to travel at those slower speeds so he can explain to his constituents that it is not politically motivated. MS. BLAIR pointed out that ENDEAVOR is not the operator of the Alaska Railroad, it works with the railroad and is ENDEAVOR's operator. In the event the railroad tells ENDEAVOR that due to safety through the right-of-way, it must travel at slower speeds then ENDEAVOR must trust the Alaska Railroad's decision because safety is ENDEAVOR's number one core value. 2:37:35 PM BARBARA HUFF-TUCKNESS, Director, Governmental and Legislative Affairs, Teamsters Local 959, advised that the Teamsters Union is opposed to HJR 38 because legal arguments should be left with the attorneys. There should be concern regarding the safety of not only the Teamster memberships working for the railroad, but also for the public. This resolution, as written, threatens and undermines the protections offered by an exclusive use right-of- way, and it could create uncertainty as well as potential financial liability for the railroad. The Alaska Railroad's full control of its access to the right-of-way and the particular buffer, is important to the successful operation of the trains when traveling at higher speeds when transporting passengers and freight through the state. She advised that reducing the effectiveness of the trains by reducing speeds would have a huge negative impact on the railroad's ability to meet delivery times and force many people to look at other means of transportation, she pointed out. Alaska does not have a lot of roads and there has always been a working relationship between the truckers and the railroad as to how the different goods and services are transported around the state. Additionally, she said, the elimination of exclusive control of the right-of-way reduces revenues for the railroad and also creates an unsafe situation. 2:40:15 PM REPRESENTATIVE EASTMAN asked whether her concern was based on her own legal analysis, or was she simply taking the perspective of the Alaska Railroad as far as the requirement for reduced speeds and so forth. MS. HUFF-TUCKNESS answered that it is not a legal perspective and that she is not an attorney. She advised that the perspective of the Teamsters is due to its discussions with members that actually work on the railroad, and it is her understanding that the reduced speeds would be throughout all of the miles of the track itself. She advised that she took a train ride this summer and it took eight hours to travel from Anchorage to Denali, and there were areas where the train did slow down which was possibly to view wildlife. 2:41:32 PM REPRESENTATIVE REINBOLD commented that she heard testimony that slowing the train down to 20 mph would increase safety and possibly slowdown delivery times, but she could not see how arriving five minutes later was a huge crisis and prevented the railroad from working with the property owners and being a good neighbor. She asked how slowing a train down could impact safety. MS. HUFF-TUCKNESS opined that the Teamster's counsel read this resolution and noted that it asks Alaska's congressional delegation to actually re-interpret the law. In the event the law was to be re-interpreted and one side did not like the decision, the parties would ultimately end up in court. The safety part would be a requirement and a concern that if the railroad did not have any control over those areas of right-of- way any longer, to make certain children were not running out into the middle of the track or cars traveling through, if there were not any crossings or any protections for that right-of-way area. From her perspective, she said, the slowdown would be for protection because the railroad no longer had control of the right-of-way. 2:43:35 PM REPRESENTATIVE KOPP asked whether she could imagine why a property owner would opt for conduct that would cause a spill on their property or a disaster on their property that would get them hurt or killed. MS. HUFF-TUCKNESS replied that she was unsure how to answer that question, she knows that individuals have been killed wherein a child was killed the Municipality of Anchorage where fences had been constructed. 2:45:03 PM CHARLES DILLARD, Inspector, Brotherhood Railway Carmen, advised that he is a 50-year employee of the Alaska Railroad, and has worked on railcars almost his entire life. He noted that he represents the 40 members of the Brotherhood Railway Carmen Division of the Transportation Communications International Union (TCU) at the Alaska Railroad, of which he is member. On behalf of the members of TCU, he asked the committee to oppose HJR 38 because it is an incredibly important issue for those working at the Alaska Railroad, he described. For the 50-years he has worked at this job, he pointed out that safety has been its highest priority, and making safety a priority is what has allowed him to arrive home every night. This resolution greatly reduces the ability to operate a safe railroad, it asks Congress to remove the Alaska Railroad's exclusive control of the right- of-way, and after working for 50-years the railroad has always had exclusive use. This resolution poses a safety risk to all of the Alaska Railroad employees who work on the tracks because they would not have a say in what happens in the right-of-way. The resolution also poses a threat to their jobs because the railroad would have to significantly reduce speeds in areas without its exclusive control. This could make it nearly impossible to move passengers and freight in a timely manner and it would cause the railroad to lose business. (Indisc.) encouraged the committee to vote no on HJR 38. 2:47:44 PM JAMES ABITZ, Brotherhood Railway Carmen, advised that he represents the 40 members of the Brotherhood Railway Carmen Division of the Transportation Communications International Union (TCU) and asked the committee to oppose HJR 38. He said that this is an incredibly important issue for those working at the Alaska Railroad and this resolution asks Congress to remove the Alaska Railroad's exclusive control of the right-of-way of which it has always possessed. This resolution poses a safety risk to all of the Alaska Railroad employees who work on the tracks because they would not have a say as to what happens in the right-of-way. It also poses a threat to their jobs because the railroad would have to significantly reduce speeds in areas without its exclusive control. This could make it almost impossible to move passengers and freight in a timely manner and would cause the railroad to lose business and it could cause many members to lose their jobs. He asked the committee to recognize that the disagreement over who owns the land should take place in the courts to legally determine who is right and who is wrong. He said that it is not something that should take place politically by going back and changing the law to suit the desires of some people. 2:49:35 PM VERN GILLIS, Conductor, Alaska Railroad Corporation, United Transportation Union Representative, advised that he has worked in the transportation industry for 28 years, he is a conductor with the Alaska Railroad, and it is his responsibility to move passengers and freight safely and efficiently. He said he represents 150 members who strongly oppose HJR 38 due to concerns that opening up the right-of-way will only increase the dangers to the public and the railroad. As a conductor, he said that one of the worst feelings he has experienced is coming around a curve and looking into the eyes of trespasser who has no idea whether they should move to the left or to the right to escape the train. In most cases, he said, people freeze and are unable to move, parents teach with instincts, and one of the most important things parents teach their children is not to play in the road, and to not play in the right-of-way of which he is trying to work. 2:50:53 PM LEE DAVIS, Conductor/Engineer, Alaska Railroad Corporation, United Transportation Union Officer, advised that he has been an engineer for 25 years (indisc.) interactions. He then offered one of his most frightening experience as an engineer working in Girdwoood wherein a man was walking with his two young daughters, one five years and one younger, and when they heard the whistle, the man stepped off the tracks on one side and his daughter stepped on the other side. The few seconds between when they started blowing the horn, the older daughter made a few steps to the tracks and cut across in front of the train to get back her father while he was telling her to stay. On March 13, 2018, 23-year old Skyler Luke was struck and killed by an Alaska Railroad train between "C" Street and Arctic Boulevard. Immediately, the engineer blew the horn, rang the bell, applied the brakes, and he was that engineer, he related. (Indisc.) fatalities (indisc.) nationwide (indisc.) employees volunteer for training to assist crew members involved in serious accidents, and they have that support at the Alaska Railroad. Each time a train makes an emergency stop, there is a risk that the train will break apart and cause derailment. (Indisc.) involve (indisc.). There are many more examples of people on the tracks who are killed or injured, it is certainly a more dangerous place than it appears. He asked the committee to leave control of the right-of-way in the hands of the Alaska Railroad in order to provide a safe environment for himself, his co-workers, and the citizens living along the tracks. 2:53:33 PM TOM MEACHAM, Attorney, advised that he does not represent any party involved in the HJR 38 issue, but he is familiar with the statute that transferred the railroad from the federal government to the state. He related that Mr. Behrend, perhaps conveniently, ignored the fact that the only two areas of substantive operative law in the Alaska Railroad Transfer Act in which exclusive use easements are imposed, are the federal lands in the Denali National Park and Preserve and the unresolved Native Land Claims. He opined that Representative Kopp accurately outlined the situation here and explained why HJR 38 is necessary. He pointed out that during 70 years of the operation of the Federal Alaska Railroad, without it asserting an explicit exclusive use easement, was successful. In fact, the portion of the exclusive use easement that upset most people is the fact that the railroad (indisc.) can fence the land and prevent any other use, even use that is compatible with railroad operations. Another point, he emphasized, is that under a specific provision in ARTA, any unresolved issues regarding the rights of the railroad and other properties, owners, or claimants, are to be resolved by the Secretary of the Interior. He commented that Representative Kopp asked the Alaska Railroad for a list of all conflicting claims resolved through this provision, and he has not yet received the list. Mr. Meacham related that he ventures to say that none of the 200-private homesteader-type landowners along the railroad were involved in any such adjudications because they did not take place. 2:55:54 PM JOHN PLETCHER advised that he is a resident of Anchorage, a member of the Old Seward/Oceanview Community Council Railroad Committee, and his website is www.railroadedAlaska.com regarding the background of the exclusive use easement issue. He referred to the mention of trespassers, and stated that trespassers do not get on the tracks over private property, they get on the track via road crossings, of which is a public area, and somewhat via parks. Several years ago, he recalled, a woman got out of her car in the Potter area, walked up onto the railroad tracks, took a picture, and was run over by a train. He related that "all of this" has nothing to do with HJR 38 because the resolution only goes to the issue of how the federal government managed to convey property rights that the federal government did not own. The property rights owned by the federal government across homestead land is the reservation for railroad, telegraph, and telephone found in every federal land patent along the tracks. While thoroughly researching this issue, he said he found that (indisc.) railroad telegraph and telephone easement was what Governor Jay Hammond called the "Standard Easement in Alaska" for railroads. Governor Hammond explained that it was a national standard created under the General Railroad Act of 1875. In a letter of March (indisc.) to the United States Congress, during the time the "Fence Act" was pending, "He said that he hoped" it would be the easement even for rail extensions, such as going into Canada. There is no way that Governor Hammond would have gone along with changing it, he stressed, and offered that during his interview with United States Representative Don Young, he confirmed that there was no intention to change this "vested property rights and homestead patents." 2:58:24 PM STEPHEN MCALPINE advised that he is with the Regulatory Commission of Alaska; however, he was speaking as a private individual. He related that he was the Lieutenant Governor at the time the Alaska Railroad Transfer Act (ARTA) had been finalized and the state was securing the actual transfer. He said that he could assure the members of the House Judiciary Standing Committee, the Alaska Legislature, and the Alaska public that an overriding concern, one of the most important concerns they experienced, was that the Alaska Railroad would have an exclusive easement. When pondering the issue, he related, Alaska is one of the few states with an easement that runs "clear across the state" from Prudhoe Bay to Fairbanks, travels on to Valdez with the Trans-Alaska Pipeline System, and down to Seward with the Alaska Railroad. This resolution is actually a license to trespass, he stressed, and one could say it almost rises to the level of advocating larceny. The court is the venue where "these people should go" if they believe ARTA is contrary to law because in every other circumstance, the court is where legal disputes are settled. He expressed that the intent of this resolution is for the Alaska Legislature to adopt a resolution in support of the proponents' position so they can take it to the United States Congress and parade it before the federal body saying that they have the support of the State of Alaska and to go back and amend ARTA. 3:00:10 PM FRED ROSENBERG, Owner, Dimond Capital Company, advised that he owns the Dimond Capital Company on Dimond Boulevard in Anchorage where the Red Robin Gourmet Burgers is currently located. Everyone wants safety, he commented, but the Alaska Railroad says that it needs the exclusive right-of-way to be safe. Except, he pointed out, this is not a question of its need, it actually is a question of property ownership and property rights. This resolution is simple because property owners have a fee simple ownership dating back to the lineage and real estate title from a patent. The federal and state governments apparently tried to transfer certain rights, "or did it unclearly," but [the federal government] didn't have the right to transfer. It is like a person owning their home and having someone else transfer rights to the person's property without their knowledge or proper authority. Simply put, he remarked, the conveyances being discussed infringe on private property rights, they are not valid, and the titles to these properties in question and the railroad's claim should not be considered. Those claims should be expunged to not impair the property rights of private property owners. The railroad refers to "other issues or other railroads" around the Lower-48, except the properties in Alaska have fee simple ownership due to the manner in which it came about and are not the same as the properties in the Lower-48. Alaskans have fee simple ownership dating back to an original federal patent and no one has the right to abridge that right of the property owner, he stated. 3:02:11 PM HUGH ASHLOCK, Owner, Dimond Center Mall, advised that on behalf of (indisc.) annual customers and his family (indisc.) over 40 years, they are concerned about the cloud this creates on his family's title because his father purchased the property (indisc.) homesteader. Through the Alaska Homestead Act he has rights that are (indisc.) worth in excess of $100 million, and they recently invested an additional $40 million into the shopping center so they have a large economic concern. 3:03:32 PM JODI TAYLOR, Church of Jesus Christ of Latter Day Saints, advised that the Church of Jesus Christ of Latter Day Saints owns 80 acres of property located in Willow, Alaska, and the church has approximately 34,000 members in Alaska, and several youth camps, salmon camps, young adult camps use that property. The Alaska Railroad runs through part of its property and in early 2000, the railroad mandated that the church install a 6- foot high fence 500 feet on either side of the railroad, and the church would receive one mandate on either side of the property to let people come in and travel out with one vehicle gate. The Alaska Railroad, in 2005, asked the church to rip down that fence and put in another fence. She explained that the first mandate from the railroad was that the fence was to be 50-feet off the center of the tracks, and the second mandate was that the fence was to be 100-feet off the center of the tracks. Both of these mandates were at the church's expense, the church put a padlock on the vehicle gate, and the railroad cut the church's padlock off and put its own padlock on the gate. Thereby, preventing the church from access to the lakefront portion of the property it owns. (Indisc.) with youth, young adults, and families, and if a problem were to arise at the lakefront, the church could not provide access for the first responders, or otherwise, to get through to the lakefront property to assist. She said the church supports the right for the railroad to have safety, but it also believes that this resolution provides a common-sense solution to letting property owners manage their property. 3:05:25 PM ROBERT TIMMINS advised that he echoed everything Jody Taylor had to say about HJR 38, and that he is in full support of the resolution. He said he is also a member of the Church of Jesus Christ of Latter Day Saints, has been to the camp, and he realizes the injustice this resolution will resolve. He encouraged the committee to understand the veracity of Ms. Taylor's testimony. 3:06:20 PM CHAIR CLAMAN, after ascertaining no one wished to testify, closed public testimony on HJR 38. 3:06:48 PM REPRESENTATIVE LEDOUX referred to HJR 38, page 3, lines 28-31 and page 4, line 1, and commented that the entire intent of this resolution is to encourage Congress to recognize "validly held private property rights that were not conveyed under the Alaska Railroad Transfer Act of 1982." Except, she related, whether or not there were validly held private property rights that were not conveyed under the Alaska Railroad Transfer Act (ARTA) does not actually seem to be something Congress can do because Congress is not a court that makes legal decisions about what is validly held and what was not conveyed. Representative LeDoux acknowledged that she is a lawyer but not a property lawyer, and described that the discussions sound like a bunch of "legal gobbledy goop" about rights-of-way. She related that she doubts, other than the property attorneys listening to this hearing, that anyone actually knows whether the railroad is correct or Representative Kopp is correct. She related that she will not try to keep this resolution from moving forward, but she is unsure what the resolution actually does because it appears that this issue should be decided in the courts. 3:09:06 PM REPRESENTATIVE REINBOLD advised (indisc.) knows the Timmons and Taylor families who have been outstanding neighbors, and to think, see, and hear, what the railroad is doing, and when these "big bullies" cut the padlock off the fence, is the type of actions that cause her to lean closer to supporting this resolution. 3:10:02 PM REPRESENTATIVE KOPP said (indisc.) contention is that while the Alaska Railroad Transfer Act (ARTA) directed that the federal interest be transferred to the state, it was the United States Department of Interior that inexplicably and indefensibly transferred more than what the federal government owned in these 2005 and 2006 land patents without any notice to the affected landowners. That, he explained, is where the misapplication of a federal agency became involved and Congress is necessary to resolve that issue. [HJR 38 was held over.]