CS FOR SENATE BILL NO. 180(RES) "An Act relating to state rights-of-way." BRETT HUBER, staff to Senator Halford, the prime sponsor of the bill, came to the table to testify. He explained the RS2744 rights-of-way had been a long-standing issue and was complex. He offered to address his comments to first, give a brief history of the issue then give a brief overview of previous action and then address the bill before the committee. Mr. Huber said, "RS2477 was a right granted to the states by the US Congress with the passage of the Mining Act of 1866. The purpose of the law was to provide for and to guarantee the public's right to establish access across federal land. Subsequent congressional action and more that 100 years of case law recognize the state's authority to determine and define RS2477 rights-of-way. Although Congress repealed RS2477 in 1976 when they adopted the Federal Land Policy and Management Act, they specifically acknowledged the legal existence of previous RS2477 rights- of-way that were established prior to the repeal. Current federal regulation explicitly provides that any rights conferred by the RS2477 grant shall not be diminished." He continued, "Mr. Chairman as you are aware, this important state's rights issue has received legislative attention in the past. Beginning with appropriations in 1992 and 1993, which funded the research and compilation of the historical information regarding the rights-of way. The Legislature has taken the lead in moving the issue forward. In undertaking the legislatively designated projects, the Department of Natural Resources has reviewed some 117 potential RS2477 routes. The review resulted in them coming up with 582 routes they believed were accepted prior to the extinguishment of RS2477 grant process and that they have enough research and documentation to support." "Last year the Legislature passed SJR 13. That was a resolution that reiterated the position regarding RS2477, and it made clear the objection of the Department of the Interior's proposed policy last year. Basically changing the entire playing field on how RS2477's are defined. You should have a copy of the policy memo from Secretary Babbitt in your packet. Information that came forward during that process and also during the joint oversight hearing last year with the House and Senate Resource Committees resulted in SB 180." "SB 180 codifies 582 documented rights-of-way, requires them to be recorded, and provides a process for, and limitations on their vacation as well as setting out liability limitation for the state. While the RS2477 rights-of-way codifies in this bill have already been accepted by public use and deemed supportable by the state, it is likely the federal government will dispute the state's ownership on some or perhaps all of these routes." "Although the current federal administration is attempting to limit the state's rights regarding RS2477, over 100 years of case-law on point recognizes stated law as controlling on the issue. We feel that by codifying these routes in statutes will strengthen the state's position for possible subsequent court action and provide the affected landowners and general public clear notification that these RS2477 rights-of-way are out there and available for use." "Mr. Chairman RS2477 rights-of-way are an existing state right. This bill doesn't make any new rights, it just asserts those rights statutorily." This concluded Mr. Huber's presentation on the bill. Senator Phillips referred to the numbers assigned to the trails. He noticed they were not in sequence and wondered if there was a reason for that. Where there other trails that were not considered for this legislation, he asked. Mr. Huber explained the numbers were the RST numbers from the Historic Trails Atlas. DNR actually started with about 1800 routes as possibly qualifying. They brought 582 forward that were included in the bill. The reason all the RST numbers were not listed; was because they didn't all qualify for designation under RS2477, he said. Senator Phillips looked for the Iditarod Trail on the list. Mr. Huber conceded that he had not memorized all the trails included, but guessed that the Iditarod Trail was included. Senator Adams had a question about easements. He wanted to know what size of easement was proposed in the bill. He said that many of the trails in his area were very small dog trails in nature. Mr. Huber said he and Senator Halford shared that concern and had decided to address the whole scope and management aspect in this legislation and not address the easement portion at this time. He explained that the department had a regulatory process that could be applied later. DNR, when it had been accepting an RS2477, had been asserting them at a 100-foot easement width, he noted. This bill did nothing to require a specific easement width, a specific scope or a specific use. The sponsor believed that individual trails would probably need individual decisions. He gave examples, saying that, some of the trails were dog sled routes, some trails led to burial grounds located one hill away from the village. Senator Adams clarified that the decision would be left up to the department to make the width determinations. Mr. Huber affirmed that. He suggested there would be another possibility where a court would make a specific width determination if there were subsequent court action. Senator Adams told the committee had an amendment to offer and he spoke to that amendment. He said he felt that basically the Legislature needed to require the department to survey the rights-of-ways before they were recorded. He asked the sponsor's opinion of the amendment. Mr. Huber responded, thanking the senator for prior notification of the amendment. In his opinion however, of the 588 trails listed in the bill, not all had potential conflicts. Some crossed state lands only, some crossed federal lands only; some crossed a mix of state, federal, Native corporations' lands. To go out and survey all 582 trails would be a tremendous project. It would be difficult to prioritize. He anticipated the priority to be set when an affected landowner had a dispute. The bill included a process the landowner could follow to work with the department to vacate a portion of the route if an alternate was established. The other option the landowner had would be to take the case to court and have the judge make a clear determination. Mr. Huber summarized that when a conflict came up; DNR would do a survey. Senator Adams asked if there was a timeline for implementation of this legislation. Mr. Huber replied the only time limit in the bill required the recording of these routes no later than January 1, 1999. He continued saying it was important to note that the routes listed in the bill were not the only RS2477 that existed. Others could be added, and the bill also directed DNR to continue its efforts to identify new routes. The committee then invited JANE ANGVIK to testify on behalf of DNR. She showed the committee a map showing the routes referred to in this legislation. She noted that the RS2477 routes were identified on the map. She spoke of the research the department did in determining which routes qualified. She spoke to a problem the department had with this bill. She said, that while the map had lines depicting the trails, the department did not know exactly where the trails were on the ground. While the department completely supported the effort of the sponsor to assert ownership of the trails, she felt that if DNR recorded the trail locations today, they would unduly cast shadows on title. The problem was not with determining ownership on state or federal lands, the question would be with private lands, she warned. Senator Phillips asked for a copy of the map. Ms. Angvik gave him the map she had and told the committee she would provide additional copies for each member. Ms. Angvik said the map was a product of the capital improvement project the Legislature funded three years ago, which provided the department with the funding to actually do the research and do the historical identification. There were over 1000 routes that were originally proposed. This legislation represented those ...(tape unintelligible due to paper-shuffling of the map in question.) Ms. Angvik explained the steps the department had taken to certify the routes. She mentioned public participation. She said they had only done the certification process on 11 of the trails in question, and of that they had taken one to court with respect to ownership of the federal government. She spoke to the importance of letting the public know of the trails' existence. She said DNR had concerns about actually recording the routes before their location had been actually identified on the land. Therefore, she said the department supported Senator Adam's amendment requiring the trails be surveyed before they were actually recorded. That would give proof positive of the location. The downside, she admitted would be the expense and the fiscal note would be large. She gave the committee an estimate of the cost to survey just the 11 trails that had already been certified. (This amount was in written form, and not stated on the audio record.) Senator Parnell speculated there were a lot of private property owners who would love to have the state pay for surveys. If the title was already clouded by assertion of the rights, and if someone wanted to transfer or use property, whether the trails were recorded or not, the individual would have to file an "Action to Quiet Title" or pay for a survey. Therefore, he agreed with Mr. Huber and felt that to require a survey before recording would not accomplish anything. Ms. Angvik agreed that they believed that the right-of-way existed and was out there somewhere. What DNR was concerned about was asserting that ownership without knowing exactly where it was. She would not anticipate doing surveys strictly for private interests. What they would be doing would be finding a centerline of the state's own easements. She used a possible example, "There's a road going through your land, and we would like to let you know exactly where it is. Right now we don't know exactly where it is. What that does is make if difficult for people to know. They can say, 'OK, I've got an encumbrance on my land, but you can't even tell me if it goes through the middle of my house or not.'" Senator Parnell said that would take years and suggested it would be better to put them on notice now and then start working the survey process. Ms. Angvik responded that there was no question that the state should tell the public if there was an easement on their land. However, generally speaking, the RS2477 question was cast as the federal government versus the State Of Alaska. It was the State Of Alaska trying to provide access the conservation districts that were created as a result of ANILCA. The big fight was with the federal government. Senator Phillips referred to the identification of historic trails, which he surmised this legislation was all about, and asked how the identification was arrived. He noted that during the Gold Rush there had been another trail north of Yakutat that miners used that was not marked on the map. He saw the trail marked on the Canadian side of the border. Ms. Angvik responded that the original design of the RS2477 law was to allow people to get from point A to point B, on their way to someplace else. The requirement for the trial designation was that some government somewhere needed to have stated that the trail was real. In the case of Alaska, the government entity was often the Territorial Highways. There may be many trails that exist, but there was never a time when a government indicated such for that trail, she said. When the division reviewed the historical records, they looked at not only if the trail had been used, but also whether there was any government acknowledgement of the trail. Mr. Huber interjected that his understanding that no government action was required to create an RD2477 route. They could be accepted by public use so long as that use pre-dated the extinguishment of the act in 1976. Pre-dated public use constituted acceptance. He noted there was a lot of case law to support that. Senator Pearce asked why a route such as the Copper River Railroad did not appear as a historic transportation route. Co-Chair Sharp answered that was because the route was already an existing right-of-way that has been established. Ms. Angvik added that many routes are actively managed by a government or, as in the case of the railroad, by the railroad entity. Senator Pearce pointed out many other trails the government manages that were in fact included in the designation. Ms. Angvik responded the trails included a historical record that indicated they could be provable, with respect that they exist and there are entities that recognize that they exist. Senator Pearce asked if the railroad didn't exist. Senator Phillips commented (undecipherable). Senator Phillips questioned how the division arrived at "historical trails". Ms. Angvik replied that the definition was established both in the federal law and in regulations that had been adopted. One way to demonstrate qualification, is by going through records of government use and individual use that had been provided. In cases such as the Copper River Railroad, the route had been established but is not an RS2477 under the terms of this law. It exists as a separate easement that already exists. Mr. Huber pointed out that it was important to remember that this exercise of establishing these rights-of-way was not to show all state rights-of way, but to identify these historic rights-of-ways that were accepted by public use that aren't already a part of the state's right-of-way or transportation system. Co-Chair Sharp invited Senator Halford to join the committee at the table if he so desired. Senator Pearce said the reason she asked the question, was because there was some dispute over the Copper River right- of-way and who owned part of it. The original railway bed is gone because it was over a glacier and the land it now occupies belongs to one of the Native corporations, not to the State Of Alaska. Mr. Huber told her that while he didn't have a specific answer on this right-of-way, it was certainly possible that is would apply under the portion of the law that reads, "lands that are not already reserved." If there was a federal reservation of that right-of-way initially, that was not previous to public use, then it would not be acceptable by public use because it was already reserved ground. He qualified by saying that was a possibility, but he didn't know the particulars on the Copper River corridor. Senator Parnell wanted to know if there was any more public testimony to be heard on this bill. Co-Chair Sharp said there was one more person signed up. Senator Adams indicated that he needed to leave for another meeting and requested the committee take up his amendment first. Co- Chair Sharp granted the request stating that the public testimony left to be heard probably wouldn't be affected by the passage or failure of the amendment. Senator Adams moved to adopt Amendment #2. Senator Torgerson objected. Senator Adams spoke to the amendment. He acknowledged the enormous cost of implementing the provision of the amendment, which would require all of the surveys done prior to recording. He still felt it was a necessary issue. Co-Chair Sharp asked for roll call on the amendment. The amendment failed 1-5 (Senator Adams, yea.) Senator Torgerson moved to adopt Amendment #1, a technical amendment. Mr. Huber spoke to the amendment, which would add 20 additional routes to the original 182 routes listed in the Resources Committee version of the bill. Those routes had been supplied to the sponsor by DNR as routes researched and documented to a level the department was comfortable with their validity. Senator Torgerson had a question on Page 22 Line 13; changing the word "shall" to "may" and asked for explanation. Mr. Huber responded that the change was purely a drafter recommendation. It would not change what the bill was trying to do. There was some discussion as to the meanings of "shall" and "may". There were no objections and Amendment #2 was adopted. Co-Chair Sharp called PAM LA BOLLE to testify. The Alaska State Chamber of Commerce supported the research and mapping of RS2477 rights-of-way on federal lands and the state's assertion of those rights on federal lands, she told the committee. However, they had concerns about the private property issue and urged the committee give careful consideration. Another concern dealt with liability. She said her group supported the state's efforts to assert its rights and do the mapping. There were no questions by committee members. There was no other public testimony. Senator Halford was asked if he had anything more to offer. Co-Chair Sharp had one more question of Ms. Angvik about the fiscal note. He wondered if the documents' existence on magnetic form might excellorate the process at a lower cost that the fiscal note quoted. He pointed out the 3200 man-hours needed for copying paper files. Ms. Angvik replied that unfortunately the Recorder's Office had no capacity to receive electronic files. DNR would happily give them a disk, but the process of recording had stringent requirements. Paper size must be exact. The department is even facing challenges of how to submit the maps themselves since they cannot be larger than legal size. Co-Chair Sharp voiced his opinion that the state should at least assert its rights over routes that had been documented and proven. He felt that to do any less would do more harm to private citizens that might be purchasing or acquiring land. Those people should be put on notice that there may be an RS2477 right-of-way on their land. Without that information on file, it would be nearly impossible for them to be aware of the encumbrance. If surveying needs to be done later, then that could be a focus. Senator Pearce moved Senate Finance Committee Substitute for SB 180 with individual recommendations and appropriate fiscal note. There were no objections and the bill moved out of committee.