HOUSE FINANCE COMMITTEE April 15, 1998 8:30 A.M. TAPE HFC 98 - 102, Side 1. TAPE HFC 98 - 102, Side 2. CALL TO ORDER Co-Chair Therriault called the House Finance Committee meeting to order at 8:30 A.M. PRESENT Co-Chair Therriault Representative Kohring Representative J. Davies Representative Martin Representative G. Davis Representative Kelly Representative Foster Representative Mulder Representative Grussendorf Representatives Hanley and Moses were not present for the meeting. ALSO PRESENT Senator Rick Halford; Brett Huber, Staff, Senator Rick Halford; Dick Bishop, Vice President, Alaska Outdoor Council, Juneau. TESTIFIED VIA TELECONFERENCE Jane Angvik, Director, Division of Lands, Department of Natural Resources, Anchorage; Myles Conway, Assistant Attorney General, Department of Law, Anchorage; Dale Bondurant, Kenai; Kathleen Moore, Kenai; Craig Puddicombe, Matsu; Bill Miller, Tok, Peter Amundsun, Ketchikan; Nelson Angavak, Alaska Federation of Natives, Anchorage. SUMMARY SB 180 An Act relating to state rights-of-way. CSSB 180(FIN) was reported out of Committee with a "do pass" recommendation and with fiscal notes by Department of Natural Resources dated 3/18/98 and a zero note by the Department of Transportation and Public Facilities. SENATE BILL NO. 180 "An Act relating to state rights-of-way." BRETT HUBER, STAFF, SENATOR RICK HALFORD, stated that RS 2477 rights-of-way issue is long standing and complex. He provided a brief history and overview of the issue Revised Statute 2477 (R.S. 2477) was a right granted to the states by the United States Congress with the passage of the Mining Act of 1866. The purpose of this law was to provide for, and guarantee, the public's right to establish access across federal lands. Subsequent congressional action, and more than 100 years of case law, has recognized the State's authority to determine and define R.S. 2477 rights-of-way. Although Congress repealed R.S. 2477 in 1976 with the adoption of the Federal Land Policy and Management Act, they specifically acknowledged the legal existence of R.S. 2477 rights-of-way established prior to that repeal. Current Federal Regulation explicitly provides that any rights conferred by the R.S. 2477 grant shall not be diminished. (43 CFR 2801.4) Mr. Huber continued, this important states' rights issue has received legislative attention in the past. Beginning with the legislative appropriations in 1992 and 1993, which funded the research and compilation of historical information regarding R.S. 2477, the Legislature has taken the lead in moving the issue forward. In undertaking those legislatively designated projects, the Department of Natural Resources (DNR) reviewed some 1,700 potential R.S. 2477 routes. This, and subsequent DNR review resulted in the identification of 602 rights-of-way that appear to qualify and are supported with appropriate documentation. These 602 routes are published in the Historical Trails catalogue and incorporated into the State Land Administration System (LAS). Last year, the Legislature passed SJR 13 with broad support reiterating their position regarding R.S. 2477 and making clear the objection to the United States Department of the Interior's proposed policy which would have drastically reduced the State's opportunity to resolve these issues. There is a copy of the January, 1997 policy memo from Secretary Babbitt in the bill packet. Information that came forward during the committee process on SJR 13 as well as during the Joint Senate and House Resources Committee's overview of the issue last February, supports the subsequent action proposed by Senate Bill 180. SB 180, an Act relating to State rights-of-way, codifies 602 documented R.S. 2477 rights-of-way, requires them to be recorded, provides a process for, and limitations on liability limitations for the State. Mr. Huber noted that while the R.S. 2477 rights-of-way codified in this bill have already been accepted by public users and deemed supportable by the State, it is likely that the federal government will dispute the State's ownership on some or all of those routes. Although, current federal administration is attempting to limit the State's rights regarding R.S. 2477 rights-of-way, over 100 years of case law on point recognize State law as controlling on the issue. Codifying the routes in statute would strengthen the State's position for subsequent court action, and provide the affected landowners and general public clear notification that the R.S. 2477 rights-of-way are available for use. Mr. Huber commented that Senator Halford believes that, while they are not a panacea, R.S. 2477 rights-of-way are a critical option to the future transportation needs of our State. RS 2477 routes provide surface travel to mineral deposits and other natural resources, recreational areas and tourism opportunities, and access to and between Alaska's rural areas. He pointed out that R.S. 2477 rights-of-way are an existing State right which cannot be allow to be "regulated away" by the federal bureaucracy. The legislation statutorily asserts the rights we currently have. Co-Chair Therriault asked if one of the routes listed in the proposal had been asserted without proper documentation, would it be dropped from the list. Mr. Huber replied that the routes which exist in the historic trail catalogue, would also be included in statute. If someone contested a R.S. 2477, they could approach DNR to address it administratively or, another option, would be to take it to a court proceeding. If a determination was made, there is a process in which the State could vacate the trail and then a determination would be made that R.S. 2477 was not valid and dropped from the list. Representative Foster spoke to lands which he owned which were only accessible by cutting across Native lands. Mr. Huber stated that the 2477 rights-a-way were granted only at the time which the land was federal land and was unrestricted and vacant. These lands were accepted by public use. The option for rights-a-way was not available with other types of ownership. Typical of all those corporation conveyances was language which specified being subject to existing rights, the land would be transferred. Representative Foster asked if the Native Corporations have been given additional land in exchange for the rights-a-way which already existed. Mr. Huber explained that rights-a- way with each corporation has been handled differently. Co- Chair Therriault pointed out that language contained in the title made reference to that adjustment. Representative J. Davies questioned how that would improve the federal standing code. Mr. Huber replied, in order to determine title in a R.S. 2477 rights-a-way, the issue of title determination is handled through a quiet title action in federal courts. It would also be possible to address it through subsequent congressional action. Mr. Huber noted that SB 180 will not solve the title question, but would instead, statutorily assert that this is a public right. JANE ANGVIK, (TESTIFIED VIA TELECONFERENCE), DIRECTOR, DIVISION OF LANDS, DEPARTMENT OF NATURAL RESOURCES, stated that the Department of Natural Resources (DNR) is not in support of SB 180 because they believe that to record the rights-a-way would cloud the title for land owners. Ms. Angvik stated that it would particularly cloud the title of Native corporations as well as private individuals who own land. She pointed out that the reason that the Department is concerned is that the State does not know where they all these rights-a-ways rest physically on the land; they need to be surveyed before they are recorded. The State has been going through a large and lengthy process in researching the R.S. 2477 rights-a-way, although, the 602 proposed in the legislation have not been physically located. She believed that to record this would be premature and would cloud the title of the land. She noted that the Alaska Federation of Natives (AFN) strongly opposes the bill. In response to Co-Chair Therriault's inquiry regarding title clouding, Ms. Angvik explained that if the lands were recorded this would clarify where they were physically located. Whereas, an easement would make it more difficult to determine clear title. Mr. Huber advised that would be a "disclosure" and that use would have to have occurred while the land was vacant, unreserved and unrestricted. At that time, a State survey, regardless of the ownership, would be encumbered with a right-a-way. The bill does not add a new encumbrance, but instead would disclose the encumbrance that already exists. He stressed that this would not affect the selling or transferring of the land. It would only disclose information currently attached to serving the State. Mr. Huber advised that the routes to some extend have already been entered and digitized. Not until there is a survey performed can a route be delineated. One of the provisions in the bill speaks to private property interest when delineating routes. He pointed out that not all routes will be contested. Representative Foster commented that without R.S. 2477 in place, in order to access his own land, he would be forced to fly 10 miles across someone else's land. Also, without this legislation, it would make it ackward for Natives of adjoining Native corporations to obtain a permit for hunting and subsistence fishing. In response to Co-Chair Therriault, Ms. Angvik spoke to the location of the LAS roads. The Department reviews historical information and maps, everything providing public record indicating the land used and the location. In order to calculate these 602 land choices, secondary sources of information were used. Certification is the next level in the title assertion process. Of the eleven certified trails, they have gone to public notice with an opportunity for public appeal. The remaining trials could be anywhere, and that the Department does not know where they physically are placed on the land. Representative Mulder questioned Ms. Angvik suggestion that the bill "does nothing". Ms. Angvik noted that the Department noticed production of the map with significant information available from the government. She recommended that the concern be approached systematically through surveying the eleven already certified parcels, slowly building the database. Representative Mulder pointed out that concerns regarding the R.S. 2477 have been addressed for many years, and still there is nothing in statute. He claimed that SB 180 would address the State's ability to access these lands. He added that the budget does not have the fiscal power to survey all the tracts. Representative J. Davies inquired how the status of a private landowner trying to sell their land would change with passage of the bill. Ms. Angvik believed that today, title companies would be mute on the subject of rights-a- way. Should the bill become law, title companies would be responsible to identify if an egress crossed the land. Representative J. Davies questioned if this would be an improvement for the land purchaser. Ms. Angvik stated that it is important to know that rights-a-way exist, however, until DNR is in a position to identify whose land it exists on, the question of who will be affected continues to exist. Representative J. Davies asked how many of current right-a- ways might experience this problem. Ms. Angvik did not know. She acknowledged that there are many trails on State lands, which would not be a problem in the bill's passage. The Department only surveys litigated trails. Representative J. Davies asked how passage of the bill would improve the State's standing before federal court. MYLES CONWAY, (TESTIFIED VIA TELECONFERENCE), ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW, ANCHORAGE, stated that the bill would have no impact at all in federal government. If the bill were passed, there would need to be a more specific exception to deal with certain roads. The Harrison Creek case illustrates the amount of documentation needed to follow the route; it is difficult to tell where the trail goes. Because of the historical nature and trail shifting over time, it is impossible to confine the 100' corridor with any reasonable accuracy. Representative Foster argued that the Park Service currently is arbitrarily closing trails to village areas adjoining other villages where family members live. He stressed that there is a tremendous need for the proposed legislation to protect these village people from the Park Service and to help them deal with adjoining Native corporation stipulations. Representative J. Davies questioned if the proposed legislation would address the circumstances referenced by Representative Foster. He pointed out that the legislation would not affect federal government lands. Representative J. Davies believed that the bill will benefit land purchasers, but would not help in assertion of R.S. 2477. DALE BONDURANT, (TESTIFIED VIA TELECONFERENCE), SELF, KENAI, spoke in support of SB 180. He believed that access to public lands and waters were important to all people. KATHLEEN MOORE, (TESTIFIED VIA TELECONFERENCE), SELF, KENAI, spoke in support of the proposed legislation. She recommended that claim responsibility should be transferred to the Department of Transportation and Public Facilities (DOTPF) because DNR was not doing an adequate job. She emphasized support for trail enhancement on every level. Representative J. Davies noted that he agreed and asked if Ms. Moore would be willing to support a budget amendment to accomplish the proposed work. Ms. Moore responded that she would. CRAIG PUDDICOMBE, (TESTIFIED VIA TELECONFERENCE), SELF, MATSU, pointed out that R.S. 2477 does not address the width amount. He referenced Chapter 51, the appeals section. (Tape Change HFC 98- 102, Side 2). Mr. Puddicombe spoke to his own situation in which he bought the land in 1983 and then found out in 1990 that there was an easement, R.S. 2477. The State of Alaska became involved studied the situation for 21 months and determined that there was no R.S. 2477 on the property. In the meantime, the Supreme Court reversed judgement, a situation which has been on going since 1990. He referenced Chapter 51, and asked if he appealed, would the current judicial system become involved. Mr. Huber noted that AS 11 AAC S1.0.070 & 080 to the appeal provisions. After the agency judgements have been exhausted, then the judicial appeal goes to the Supreme Court. Mr. Conway agreed with Mr. Huber that it could be handled at the initial level in court. He noted that the proposed provision would not apply to Mr. Puddicombe's situation. BILL MILLER, (TESTIFIED VIA TELECONFERENCE), SELF, TOK, commented that the State of Alaska currently does not have good trespass laws which can protect private landowners. The trails provide public access to public lands and State lands. He believed that the problem lies in that the land is not being surveyed or marked, and that the State takes no responsibility for damage or injury. Representative Mulder noted that AS 09.69.200 a(1) pertains to tort immunity, personal injuries, or death occurring on unapproved land. It stipulates that an owner of unapproved land is not liable in tort except when an act omission constitutes gross negligence or potential misconduct. DICK BISHOP, VICE PRESIDENT, ALASKA OUTDOOR COUNCIL, JUNEAU, testified in support of the proposed legislation. He noted that the Alaska Outdoor Council has been concerned with the lack of initiative on the part of the State to protect the public interest in access to vast areas of Alaska for traditional uses. He reiterated strong support of the bill noting that it is an important step in the State taking effort to document these trails and providing the means to go forward, manage and identify them. PETER AMUNDSUN, (TESTIFIED VIA TELECONFERENCE), SELF, KETCHIKAN, believed that if Alaska is to develop our resources using trails and roads delineated for exploration, at a time of economic development, then the State should control these trails. He stressed that the State must retain control of the access. NELSON ANGAVAK, (TESTIFIED VIA TELECONFERENCE), ALASKA FEDERATION OF NATIVES (AFN), ANCHORAGE, voiced concern that the bill has the potential to disturb private property for public use. He stressed that if anything should occur on Native corporate lands, the State of Alaska would bear full responsibility. Mr. Angavak stressed that the proposed bill has the potential to create a "cloudy" situation not being able to locate the R.S. 2477. He recommended that accessing Section 17(b) could be used as an alternative. SENATOR RICK HALFORD interjected that there can not be a taking of private property if in fact the whole process is based on existing rights. The easements would not be extinguished and would be supplemental to prior existing rights. The transfers are based on those existing rights. He stated that there is inconsistency in the surveying done by the Department of Natural Resources, which is seen in floating easements. Representative G. Davis inquired how a private property owner's provision for pre-existing rights would appear. Senator Halford replied if the valid existing rights predated the establishment of R.S. 2477, it would be found invalid when pertaining to his property. Every patent since statehood says that the mineral rights are reserved for the State. Somewhere in every validation notes: "Subject to valid existing rights". Representative G. Davis questioned mitigation concerns. Senator Halford responded that the bill does not address the way to use the determinations. That would be left to the Department. The bill will bring ownership decisions back to State law allowing for forward movement. Representative Foster MOVED to report CSSB 180 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. CS SB 180 (FIN) was reported out of Committee with a "do pass" recommendation and with a fiscal note by the Department of Natural Resources dated 3/18/98 and a zero note by the Department of Transportation and Public Facilities. ADJOURNMENT The meeting adjourned at 9:55 a.m. H.F.C. 8 4/15/98 a.m.