HJR 40-RS 2477 RIGHTS-OF-WAY  2:48:22 PM CO-CHAIR SEATON announced that the final order of business would be HOUSE JOINT RESOLUTION NO. 40, Commending the governor and the administration for aggressively working to enforce the rights of the state in R.S. 2477 rights-of-way; urging the governor and the attorney general to develop a working alliance with other western states to protect and enforce the states' interests in ensuring access using rights-of-way authorized by R.S. 2477; urging the governor and the attorney general to support the State of Utah and the southern counties of Utah in a lawsuit against the federal government concerning R.S. 2477 rights-of-way, including filing an amicus brief in support of Utah; urging the governor to dedicate state resources to establish, protect, and enforce the state's interests in R.S. 2477 rights-of-way and to preserve state rights-of-way against encroachment by the federal government; urging the governor to reestablish a federalism section in the Department of Law and sections in the Department of Natural Resources and the Department of Fish and Game to support the preservation of the state's rights and powers in compact cases; and urging the governor to prepare an appropriation request to fund an aggressive effort by the state to resolve issues relating to R.S. 2477 rights-of-way, including possible litigation, and to continue to work to preserve the rights of the state in regard to R.S. 2477 rights-of-way. 2:48:37 PM REPRESENTATIVE WES KELLER, Alaska State Legislature, began by explaining that R.S. 2477 stands for Revised Statutes 2477 1866, which basically says that [the state] can obtain right-of-way across federal land because the federal government wants to encourage development. Representative Keller specified that the intent of HJR 40 is to commend the governor and the Department of Law (DOL) for the progress made while recognizing the things that still need to be done. He highlighted that there is time sensitivity with R.S. 2477s because as the state's older citizens die, the information necessary to verify the R.S. 2477s is lost. 2:50:46 PM REPRESENTATIVE KAWASAKI directed attention to page 2, line 14, which is a "WHEREAS" provision that addresses the number of rights-of-way already in statute. He noted that Department of Natural Resources (DNR) has identified 67 additional R.S. 2477s. He then inquired as to how the R.S. 2477 process doesn't work. REPRESENTATIVE KELLER pointed out that just because rights-of- way are identified in statute doesn't mean they are recognized by the U.S. Department of Interior and the U.S. Forest Service. Therefore, the state has to adjudicate. He then suggested that the state needs to put more resources behind the existing process in order to have accurate records. Representative Keller then recommended that the DOL representative would be better to answer Representative Kawasaki's question. 2:52:11 PM REPRESENTATIVE KAWASAKI inquired how much money has been put toward this issue so far. He recalled that the committee was told that up to $8 million of general funds was attached to this year's budget [for R.S. 2477s]. REPRESENTATIVE KELLER stated that litigation and adjudication costs money. The recent expansion of the attorney is an example of the funds appropriate in the past. He related his understanding that $600,000 has been set aside for R.S. 2477s. 2:53:23 PM KENT SULLIVAN, Assistant Attorney General, Natural Resources Section, Civil Section (Juneau), Department of Law, told the committee that he is the attorney that has been assigned and dedicated to the R.S. 2477 issues. Since his hire in December, he has attempted to revamp the R.S. 2477 prosecution strategy in order to resolve claims more quickly and push things forward more efficiently than has occurred in the past. To that end, Mr. Sullivan and a representative from DNR traveled to Utah, which has aggressively pursued R.S. 2477s, to learn from its successes and failures. In fact, in the next three or so months Utah will file 23 different cases on approximately 18,000 separate R.S. 2477 plans. Furthermore, Utah has had about 10-20 years of experience in the litigation of R.S. 2477 plans. He said that the trip to Utah has proven helpful. For example, he has helped DOL put together a prosecution strategy such that Alaska will put forth its best cases first because Alaska doesn't have much precedent on R.S. 2477s. Therefore, it's very important in moving forward that Alaska establish strong and favorable precedent from the beginning. He noted that he has identified such cases and is seeking approval to move forward on litigation now. Furthermore, the intent is to attempt a multi- faceted approach rather than only using litigation to resolve R.S. 2477 claims. For instance, he is reviewing confirming public access rights through Title 5 of the Federal Land Policy and Management Act of 1976 (FLPMA). Since the passage of FLPMA and R.S. 2477 has been repealed there has been reluctance to do that because under FLPMA the rights-of-way aren't perpetual and could only be granted for 25 years at a time. The department also wants to use the recordable disclaimer of interest process the state has been using for navigable waterways. Although the Bureau of Land Management (BLM) has been reluctant to use the aforementioned process for R.S. 2477s in the past, the hope is that the pressure on the federal government in Utah will result in a repositioning of that stance. Mr. Sullivan further stated that DOL wants to review having these rights-of-way confirmed by the land planning process of the federal government, which has been successful in some cases in Utah. 2:59:10 PM MR. SULLIVAN explained that DOL is attempting to supplement DNR's R.S. 2477 files. When the initial set of roads were identified and codified by the legislature as R.S. 2477s, the real effort was identifying them and ensuring that certain minimum criteria were met in identifying them as R.S. 2477s. The focus wasn't on what it would take to prosecute a claim all the way through litigation. He emphasized that there's a lot that goes into a file to successfully prosecute something in court, and therefore the files need to be supplemented. One of the things needed is the identity of witnesses and witness testimony. These witnesses are going to be individuals who have knowledge of use and existence of these roads prior to 1969. Therefore, there needs to be public outreach in order to identify these people and place the information in the files. Lastly, there needs to be a process to lock-in the testimony in order to use it. The aforementioned can be accomplished by petitioning the court to do pre-litigation depositions. 3:01:29 PM MR. SULLIVAN then informed the committee that DOL is currently involved in R.S. 2477 litigation in a case filed by Ahtna, Incorporated out of Copper Center. The case is in state court and the state hopes to achieve promising results. As was mentioned earlier, DOL is considering initiating litigation very shortly in federal court on some of the best case examples that have been identified. Mr. Sullivan related his understanding that in the past there was a Statehood Defense Unit within DOL and that unit existed as a separate budgetary component within the department through fiscal year 2010. At the time the agency was subsumed within DOL, that unit had five attorneys that dealt with navigability, R.S. 2477s, the Endangered Species Act, and subsistence program issues. He highlighted that such issues were dealt with before the creation of the unit as well as after the creation of the unit. Although the only difference was that there was the identity of a separate unit within DOL that received a separate budgetary component, it was discovered that having a separate unit placed constraints in terms of supervision and management and wasn't the most efficient use of time. Therefore, in fiscal year 2010 the unit was dissolved and the functions and litigation is being handled by the Natural Resources Section within DOL. For example, his position deals with state's rights through R.S. 2477s and there is ongoing litigation with regard to access through navigable waters in the national parks. 3:04:47 PM CO-CHAIR SEATON directed attention to the language on page 3, lines 22-24, which urges the governor to reestablish a federalism section within DOL. However, he recalled that Mr. Sullivan said that was determined not to be the most efficient way to do things. Therefore, he inquired as to Mr. Sullivan's thoughts. MR. SULLIVAN said that DOL is still reviewing that it and may provide comments on that point later. He clarified that he merely wanted to provide the committee with some history regarding that particular component. CO-CHAIR SEATON then requested DOL's comments on that section in a timely manner because the committee wants to bring the resolution before it again soon. 3:07:03 PM REPRESENTATIVE MUNOZ suggested that that the language in the "FURTHER RESOLVED" located on page 3, lines 22-27, be removed and the resolution moved forward. 3:07:33 PM CO-CHAIR SEATON pointed out that this is an introductory hearing of only 15 minutes. He reminded the committee that he doesn't intend to forward the resolution today. He then suggested that Representative Munoz could work with the sponsor on the provision. With that, HJR 40 was held over.