HJR 40-RS 2477 RIGHTS-OF-WAY  1:32:32 PM CO-CHAIR FEIGE announced that the next 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. [Before the committee was the proposed committee substitute (CS), Version M, labeled 27- LS1407\M, Bullock, 3/29/12, adopted as the working document on 3/30/12.] 1:32:49 PM CO-CHAIR SEATON moved to adopt the proposed committee substitute (CS) for HJR 40, Version 27-LS1407\B, Bullock, 3/30/12 as the working document. REPRESENTATIVE KAWASAKI objected for the purpose of discussion. REPRESENTATIVE SEATON requested an explanation on the changes between this version and the prior version. 1:33:18 PM JIM POUND, Staff, Representative Wes Keller, Alaska State Legislature, stated that Version B of HJR 40 addresses some concerns that the Department of Law (DOL) had with the prior committee substitute (CS). He referred to Version M, page 1, line 6, which read "the attorney general to support the State of Utah" Version B changes it to the "interests of the State of Utah" and on page 1, line 7, of Version M, deletes "lawsuit to enforce." On page 3, line 20 of Version M, add "interests of." On page 3, lines 20-21 delete "in a lawsuit to enforce Utah's interest" and add on line 22, "litigation in the state." On page 4, adds a paragraph to indicate the parties who will receive copies of the resolution. 1:34:53 PM REPRESENTATIVE SEATON referred to page 1, line 8, and asked whether "in the state" was added. MR. POUND answered yes. 1:35:14 PM REPRESENTATIVE KAWASAKI referred to the first "further resolved" [page 3, line 19] and said he still has a concern regarding the clause. He wondered what "supporting the interests of the State of Utah" actually would represent. MR. POUND related his understanding that Utah is on point for R.S. 2477 in the West. Utah has won one case in the courts and is in the same situation - greatly exaggerated - since Utah currently has 18,000 specific R.S. 2477 cases the state is asserting. However, Utah's interests are very similar to Alaska's in terms of asserting a right for access through land that previously belonged to the Territory of Alaska that in 1969 was removed, in part. Since then, Alaska has been attempting to assert its right in what was supposed to be an orderly fashion in 1976, but the "orderly fashion" has been restricted by various federal agencies and departments. Currently, Utah is moving forward in the court system, which gives Alaska a chance to learn from that state's mistakes and victories. REPRESENTATIVE KAWASAKI withdrew his objection. There being no further objection, Version B was before the committee. 1:37:51 PM REPRESENTATIVE KAWASAKI observed that the first "further resolved" speaks to the fact the legislature would urge the governor and the attorney general's office to support the interests of the State of Utah. He asked how he would view this request. 1:38:19 PM KENT SULLIVAN, Assistant Attorney General, Natural Resources Section, Department of Law, stated Utah is very similarly aligned with Alaska on R.S. 2477, but is ahead of Alaska with respect to getting R.S. 2477 recognized. Alaska wants to support Utah, to the extent that Alaska can join Utah in moving R.S. 2477 forward and having federal officials recognize the rights-of-way, and create policies to recognize those rights-of- way without having to resort to litigation to assert those rights. MR. SULLIVAN related his understanding, from meeting with attorney generals from Utah as well as county officials, that Utah would like Alaska to support their efforts by asserting litigation, identifying rights-of-way, and attempting to get federal managers to recognize that through a change in policy, without filing litigation, or by initiating litigation in Alaska. 1:39:54 PM CO-CHAIR SEATON referred to the language on page 3, line 20, which seems confusing since it says, "urging to support the interests of the State of Utah; however, he asked whether that is limited because after the counties of Utah, it reads, "in R.S. 2477 rights-of-way" so that is the only interest Alaska is asking for in HJR 40. MR. SULLIVAN confirmed that this is correct. He said, "It's simply R.S. 2477 rights-of-way since Alaska and Utah are facing the exact same issues. He clarified that Alaska is basically promoting Alaska's interest vis-à-vis supporting Utah's interests with respect to R.S. 2477." 1:41:00 PM CO-CHAIR FEIGE opened public testimony on HJR 40. 1:41:15 PM MALCOLM ROBERTS, Consultant, Malcolm Roberts & Associates, stated he is also a senior fellow at the Institute of the North; however today he is representing himself. He stated two critical issues are addressed in this resolution with significant ramifications for Alaska's resources until the end of this century and beyond. First, the resolution addresses the valid existing rights of access across federal properties in Alaska, which make up two-thirds of our state. Second, the need to demand that the federal government lives up to the promises made to the Alaska people in 1958 in Alaska's statehood compact. He related his understanding in the reference to the federalism division of the Department of Law that was discussed last Friday. 1:42:19 PM MR. ROBERTS related that U.S. Senator Ted Stevens once commented that Alaska has more disputes with the federal government daily than most states have annually and these disputes are primarily over access. This illustrates how powerful and important this question is to the state. He stated that having vast resources means nothing if Alaska cannot get to them. He said he was not referring only to resources on federal land, but on state land that is unreachable, Native corporate land, Native allotments, and what is left of other private inholdings. He highlighted the good news is that Alaska has legal rights of access that belong to the state and thereby its citizens. MR. ROBERTS indicated Alaska's rights are based on proven historic trails and were authorized by federal law revised statute 2477 (R.S. 2477), as part of the Mining Act of 1866. He stated these rights should be asserted by the state and it should support Utah and urge other states to do the same. Last Friday it appeared the DOL suggests [the bill sponsor] should back off from the second recommendation with respect to the defense of Alaska's rights agreed to in Alaska's statehood compact. 1:43:26 PM MR. ROBERTS said he strongly disagrees with that change if it was made in Version B. He respectfully recommends this committee call for a reestablishment of a division in the DOL for this purpose. Former Governor Walter Hickel set up such a division in the 1990s. This division should be a permanent arm of the state's DOL and should be staffed by the best and brightest attorneys Alaska can attract. He recalled in his 42 year career in Alaska that he has studied, debated, and written reports on both of the issue addressed in this resolution: access and the compact. 1:44:13 PM MR. ROBERTS related that he was recruited in 1995 to head a task force to research existing R.S. 2477 rights-of-way throughout Alaska by former Senator Jack Coghill, who was at that time, Chair of the Senate Transportation Standing Committee. Former Senator Coghill was determined to preserve the state's rights of access and he achieved a great deal in that regard. MR. ROBERTS highlighted that R.S. 2477 has been utilized by western states to provide public use ranging from walking trails to remote fishing streams and lakes, to access to the banks of state-owned navigable waters, to highway construction on public lands now called Roads to Resources. He stated that the statutory definition of highway as a unique transportation system in Alaska includes roads, trails, streets, and bridges. 1:45:09 PM MR. ROBERTS explained that his first assignment was to provide the National Park Service with the information collected indicating the state's valid, existing rights of access so it could be included in the federal planning documents. He noted these were plans that needed to be done after the passage of Alaska National Interest Lands Conservation Act (ANILCA) in 1980. The task force's mission was later expanded to provide similar data for the refuge plans by the U.S. Fish and Wildlife Service (USF&W), scenic rivers, and conservation areas managed by the Bureau of Land Management (BLM) and the U.S. Forest Service. He reported that the task force's final report on January 15, 1987 identified over 600 R.S. 2477 rights-of-way on federal lands in Alaska. However, in the ensuing years the federal government insisted that Alaska must litigate when it wants to assert an R.S. 2477 right-of-way. He emphasized that it is patently absurd to require the state must sue to use something that already belongs to the state. He said, "It's like saying that in spite of the Bill of Rights American citizens have to sue the federal government to get permission to speak." He highlighted that this is one of the rights granted to the state in federal law and it has always been preserved in federal law. The rights belong to the state. The fears that motivated the federal establishment in Alaska were partly the result of a gaffe by the opponents of state access in the federal government, who published a report and put a map on the cover that included all of the possible or proposed roads, trails, and rail lines throughout Alaska. It became known as the spaghetti map and made the State of Alaska look like downtown Los Angeles. The backlash was strong, even from many Alaskans who support access and resource development since it paralyzed the process. As a result, Alaska has retained its standing as having fewer miles of roads than the smallest state in the nation, which is Rhode Island. 1:47:05 PM MR. ROBERTS concluded that as a result, Alaska has retained its standing as having fewer miles of roads than the smallest state in the Union - Rhode Island. When the task force wrote its final report in the 1980s, it recommended that the state focus on only eight vital transportation corridors to be asserted and set aside for future use. He highlighted that the recommendation is still valid and should be pursued. He suggested that if he were to read the names of these corridors, most people would understand the reasons for their importance since they would connect key resource areas and communities that are currently isolated due to the lack of access. MR. ROBERTS said he has been very involved in the Statehood Compact, beginning in the 1980s, with a study by the organization, Commonwealth North, whose members included publisher Bob Atwood, Governor Wally Hickel, Judge James Singleton, Department of Natural Resources (DNR) commissioner Irene Ryan, and environmental planner, Dave Hicka. The report was published as a small book by APU Press called Going up in Flames: The Promises of Alaska's Statehood Under Attack. He offered his belief that this book should be required reading for all those elected or appointed to public office prior to asking them to swear to uphold the Alaska Constitution. 1:48:30 PM MR. ROBERTS related he worked closely with Governor Hickel and his legal team to launch four major lawsuits against the federal government that addressed egregious violations of Alaska's Statehood Compact. Unfortunately, these cases were filed late n Governor Hickel's second term - too late to follow through - and those who followed were lukewarm in their support. MR. ROBERTS stated in 2002, U.S. Senators Ted Stevens and Frank Murkowski through the U.S. Department of the Interior, commissioned the Institute of the North to prepare a detailed 180 page ANILCA training curriculum for land managers, staff, inholders, and all interested Alaskans. Since then the institute has used that curriculum to conduct executive training sessions on ANILCA. MR. ROBERTS highlighted that page 60 of the curriculum quotes Section 1109 of ANILCA, "Nothing in this title [the transportation title of ANILCA] shall be construed to adversely affect any valid, existing right of access." Section 1110 (b), which read," ... assure adequate and feasible access ... " to inholdings is guaranteed. Yet these valid, existing rights of access have been ignore or violated - nearly daily - since the passage of ANILCA. 1:50:12 PM MR. ROBERTS said it is up to the State of Alaska to force the federal government to obey the law. This will only happen if the state creates a team of top attorneys who are committed to defend Alaska's rights and a governor and attorney general who will back them up. He offered his support for passage of HJR 40 and urged the committee not to leave it at that since there is much to be done. CO-CHAIR FEIGE, after first determining no one else wished to testify, closed public testimony on HJR 40. 1:51:08 PM CO-CHAIR SEATON moved to report the proposed committee substitute (CS) for HJR 40, Version 27-LS1407\B, Bullock, 3/30/12 out of committee with individual recommendations and the accompanying zero fiscal note. There being no objection the CSHJR 40(RES) was reported from the House Resources Standing Committee.