JOINT COMMITTEE ON ADMINISTRATIVE REGULATION REVIEW   January 25, 2000 1:40 p.m. MEMBERS PRESENT    Senator Robin Taylor, Chairman Representative Jeanette James, Vice-chair Senator Pete Kelly Senate Georgianna Lincoln Representative Mary Kapsner Representative John Harris   MEMBERS ABSENT    All Members Present   COMMITTEE CALENDAR    Repeal of RS 2477 Rights-of-way Easement Certifications, Easement Regulations WITNESS REGISTER    Mr. Bob Loeffler, Director Division of Mining and Water Management Department of Natural Resources 3601 C St. Suite 800 Anchorage, AK 99503-5935 Mr. Myles Conway, Assistant Attorney General Department of Law 1031 W 4th Ave., Suite 200 Anchorage, AK 99501 Mr. Joseph Hart P.O. Box 649 Glennallen, AK 99588 Mr. Michael Eastham P.O. Box 3646 Homer, AK 99603 Mr. Craig Puddicombe P.O. Box 2929 Palmer, AK 99645   Mr. Bill Ward P.O. Box 1087 Delta Jct., AK 99737 Mr. Bryan Merrell 3035 C Street Anchorage, AK 99503 Ms. Audrey Brown P.O. Box 990 Delta Jct., AK 99737 Mr. Tom Scarborough 1676 Tanka Dr. Fairbanks, AK 99709 Ms. Doniel Ampuero P.O. Box 877633 Wasilla, AK 99687 Ms. Eileen Marrs Wasilla, AK 99687 Ms. Dana Olsen HC-30 box 5438 Wasilla, AK 99654 Mr. Scott Calder P.O. Box 75011 Fairbanks, AK 99707 Mr. Jim Wright P.O. Box 9 Cantwell, AK 99729 Mr. Bob Gilbertson P.O. Box 32 Cantwell, AK 99729 Mr. Jon Brautigan HC 30 Box 5480-B Wasilla, AK 99654 ACTION NARRATIVE  TAPE 00-01, SIDE A  Number 001 CHAIRMAN ROBIN TAYLOR called the Joint Committee on Administrative Regulation Review meeting to order at 1:40 p.m. Mr. Bob Loeffler, Director of the Division of Mining and Water Management, Department of Natural Resources (DNR), explained that over the last four years the legislature made quite a few changes to the public easement statutes. While those changes improved the statutes, they made DNR regulations somewhat out-of-date. In addition, in 1998 when the Legislature enacted a new statute on RS 2477s, he thought it was clear the legislature wanted DNR to be more efficient about reporting to the Legislature as it asked for an annual report. He is here for those reasons. The regulations do a couple of things to conform to the 1997 revised statutes. They require written findings from DNR on restricted access to protect public safety or property and prohibit DNR from restricting how people traditionally use an easement. The second series of changes was relevant to RS 2477s. The 1998 statute listed 600 routes the legislature said qualified as RS 2477s. It required DNR to research and report to the legislature additional routes annually. DNR has created a more streamlined process to replace the old cumbersome and expensive certification process in order to comply with legislative direction. Third, in 1998 the legislature designated DNR as the platting authority in the unorganized borough and within the municipalities with no platting authority. Regulations were established for this function for the first time. The last legislative change in 1999 changed laws prohibiting municipalities from vacating an RS 2477 right-of-way within their borders and regulations have been changed to conform to that. VICE-CHAIR JAMES said she didn't attend the hearings on the pieces of legislation he referred to and asked how much he participated when the legislature worked on these issues. MR. LOEFFLER said that he is a new director and wasn't around at that time. VICE-CHAIR JAMES said she remembered complete opposition from his department. MR. LOEFFLER said he couldn't dispute that because he wasn't there at the time. REPRESENTATIVE HARRIS referenced the fourth piece of legislation saying only state agencies can vacate a right-of-way within their borders and that he has been informed that the public may also do that. He asked if that was DNR's attempt to take the regulation process out. Number 114 MR. LOEFFLER answered, "No, absolutely not." DNR aggressively asked for public input on changes to RS 2477's, either assertions or vacations. It's in statute, regulation, and it's their policy. He believes AS 29.35.090 specifically says only the legislature or a state agency may approve a vacation of an RS 2477. VICE-CHAIR JAMES said her understanding was, if the organized boroughs have a platting and planning authority, and after public hearing they determine that a particular trail or otherwise RS 2477 is in the best interest of the public to be vacated, generally the state agency has agreed. She asked him if that was true. MR. LOEFFLER confirmed it would be an unusual case where DNR would not go along with a determination by the municipality. VICE-CHAIR JAMES said that all boroughs are not organized and that DNR is the platting authority and asked what the provisions were in regulation for that public process. MR. LOEFFLER answered that he wasn't sure of the exact provision, but DNR would do a public notice, get comments, and then under the tenets of the law and regulations in .065, they would make the decision. VICE-CHAIR JAMES said she thought he misunderstood the question. She repeated that within municipalities and organized areas, there is a public hearing process where people are notified and are able to come to a public hearing to testify as to whether or not the vacation of one of the areas is recommended. She is asking whether there is a similar process that allows the public to come and testify at a public hearing for an easement to be vacated in an area that is under DNR. MR. LOEFFLER answered that they have public notice requirements as well; he didn't think they required a hearing. Number 170 VICE-CHAIR JAMES asked if a person who lives near an RS 2477 to be vacated or asserted has the opportunity under these regulations to nominate it and to follow up and provide a public hearing, not just public notice, on those issues. MR. LOEFFLER answered that there is a different process for assert and vacation. For assertions DNR provides a general public notice with an appeals process. Anyone may nominate; anyone may provide research; and anyone may comment. It is an open process, but does not require a hearing. VICE-CHAIR JAMES said she is trying to visualize what transpires in order to vacate an RS 2477. She recapped that DNR is reporting new RS 2477s on an annual basis. This might cause a problem for some folks, because it interferes with what is already on the ground. She asked if it would be possible for the legislature to vacate through statutory change. MR. LOEFFLER answered, "Absolutely not." Public hearings are not prohibited; they're just not required. The standards for the public process are set out in AS 29.40.120-140 and 11 AAC 53.250. He apologized for not being more familiar with them, but would get them a more informed summary. Number 236 CHAIRMAN TAYLOR asked why DNR came up with a new definition of "water body" relative to navigability and a different standard than mean high. He wanted to know how that would interplay with the Gulkana case. MR. LOEFFLER said he was not as familiar as he should be with the specifics of the definition, but he would get back to him on that. CHAIRMAN TAYLOR said he hoped he would since the subject of navigability is crucial to the State right now. The federal subsistence law will be enforced on waters within the federal domains which are not "navigable." MR. LOEFFLER responded that he could cite the statute for the definition of navigability. He believed their intent and execution was to be neutral with respect to those issues. CHAIRMAN TAYLOR asked if the person who drafted the regulations was available. MR. LOEFFLER responded that a group within DNR did the drafting and they could get back to the committee. CHAIRMAN TAYLOR said he is very concerned about the question of navigability because the definition often depends on field work that's really done by the Division of Habitat, which actually makes a determination on the ground whether a particular stream or area in a stream is navigable. In addition, the legislature is concerned that public access be provided along such streams or portage areas as might be necessary to move from one navigable stream to another for purposes of access for hunting, fishing, recreation, mining activities or whatever the person might be doing. That's why the question of the viability of the RS 2477 in this State was important enough for the legislature to take up last year. Those questions of navigability are important, as are the questions of maintaining public access along stream corridors, even though some of those streams may not be navigable. MR. LOEFFLER said he understood and believed these regulations implemented that. He added that DNR was using the statutory definition of navigable waters in public water. CHAIRMAN TAYLOR said it seemed that there is an attempt within the regulations to reduce or eliminate to some extent the interpretations and the field work and assistance that DNR has relied upon in the past coming from ADF&G. MR. LOEFFLER responded, most emphatically, that isn't true. DNR works hand-in-glove with ADF&G and it's the combination of that expertise that protects the public's interest. CHAIRMAN TAYLOR said the language of 11 AAC 51.010 seems to grant DNR increased authority over section line easements and asked how this affected current regulations relating to power line easements. Number 300 MR. LOEFFLER responded that these regulations do not grant DNR any authority on sectional easements. It is not DNR's mission to be managing the kind of internal subdivision along roads or section lines or utilities. In Section 200 of the regulations there is a provision to give management of easements to DOT and the local governments and they expect to do both. There must be some agency that is the managing agency of defaults. That agency is established in AS 19.30.400 as DNR who has enough to do without trying to manage power lines within Anchorage. He said there was some confusion over this issue which was worth sorting out. CHAIRMAN TAYLOR said there was a lot of controversy last year within the Legislature about easements with telecommunication lines and he was surprised to hear DNR was reluctant to participate. MR. LOEFFLER said he wasn't suggesting they are reluctant to grant easements across state lands such as for fiber optic cables. He meant they are reluctant to be the kind of manager that is internal to subdivisions and does day-to-day infrastructure management that the Kenai or Mat-Su Borough would do. CHAIRMAN TAYLOR said it appears from language in 11 AAC 51.025 that this restricts the identification of RS 2477's to surveyed land and asked if that is correct. If it is, why aren't they considering legitimate rights-of-way or RS 2477s on unsurveyed lands. MR. LOEFFLER answered that DNR asserts rights-of-way on unsurveyed lands all the time. CHAIRMAN TAYLOR responded that .025 seemed to restrict that authority. In 11 AAC 51.065 (d)2, vacations of RS 2477 rights-of- way must provide for an equal or better alternative except where a municipal assembly or council by ordinance specifically requests the vacation. He asked why they are allowing municipalities to vacate these public access routes without providing equal or better alternative routes. Some municipalities have proved themselves to be less than considerate of public access rights. MR. LOEFFLER responded that he believes AS 19.30.410 and the regulations specifically prohibit municipalities from vacating RS 2477s without approval by either the legislature or the Department. The vacation standards are somewhat confusing and do not always include the words "people are better." Sometimes they use the words, "reasonably comparable." He noted they were parroting the standards from AS 19.30.410 and tried to make them neither higher nor lower. The different standards reflect different situations that are in the statute. In fact, municipalities may not vacate an RS 2477 as the statute lays out, without approval of the legislature or DNR. CHAIRMAN TAYLOR said that answered his question about ADF&G, but it appears from the regulations that DNR has assumed all of the discretion on the decision making process with no consideration for other state agencies that may be intimately impacted by that determination. He wants to know why. MR. LOEFFLER answered that the legislature drafted a final decision to DNR but they don't make those decisions without consulting with ADF&G. He agreed that in .035 the consultation language was deleted. However, under termination of the kinds of easement, there is still a requirement in .045(d) to consult with ADF&G. They consult with ADF&G on all of these decisions, anyhow. Number 398 CHAIRMAN TAYLOR asked if DOTPF and ADF&G are given an opportunity to respond in a timely manner before some determination is made about either the vacation or the creation of an RS 2477. MR. LOEFFLER answered, "Absolutely, and frequently they are integral to the process that leads up to the decisions, such as getting the information, prioritizing where they work next, working with BLM, and all those questions." CHAIRMAN TAYLOR asked if he sensed some reluctance within DNR to identify RS 2477s or whether that is just a perception the legislature has. MR. LOEFFLER said he hoped it wasn't a perception they held too strongly. It's not one that he has. He thought their report to the Legislature was complete, adding 66 new routes between this year and last year. Their ability to do so is limited by the staff available, but not by their will. CHAIRMAN TAYLOR said he had been trying to find out if they had made a determination on the Stikine, but he would address that later. Number 412 VICE-CHAIR JAMES said there was a lot of distress caused over identifying RS 2477s and asked what kind of criteria they were using to identify them as a viable access currently or previously being used. The reason she is asking this question is because some of these routes go through areas that are built on or are not being used and have alternate access. MR. LOEFFLER answered that the criteria are outlined in Section 55(b) of the regulations. They are relatively general but correspond to the criteria that the court uses in asserting their validity. He said her question may also have been how they allocate staff research. He explained that they do that in part through the availability of information to them as they find it and in part by information provided by other people. When someone suggests an RS 2477 and provides information, and when ADF&G tells them some access is needed to a water body, they do it. There is no policy to concentrate in one area of the state or another. Number 450 CHAIRMAN TAYLOR said he didn't see a reference to aerial photography and asked if there is a reason. MR. LOEFFLER said he wasn't sure and added that they do look for air photos. CHAIRMAN TAYLOR said there have been some disputes regarding RS 2477s across, for instance, a farmer's property, and that evidence had been presented to DNR in the form of aerial photographs that actually showed the trail. DNR had come up with a different designation that was more detrimental to the person using the land who wanted the existing trail (the one that showed through the aerial photography). MR. LOEFFLER said he wasn't familiar with that case, but in general they would use any information that was available. CHAIRMAN TAYLOR asked in general what reaction DNR has received to its proposed regulations. MR. LOEFFLER responded that the comment period closed on Friday and they hadn't read through the comments yet. CHAIRMAN TAYLOR asked if DNR is hearing from people who had prior contact with him or DNR about location or vacation of these rights- of-way. He questioned whether the comments are about individual situations or over-all policy concerns. Number 486 MR. LOEFFLER answered that they hear both, but there is certainly a tension between public access and private property rights. A lot of people are concerned about a public easement, which lets the public use what has always been considered private property. It is a legitimate concern on the part of private property owners. SENATOR LINCOLN asked if any people said that they didn't have enough time to respond to the regulations. MR. LOEFFLER said yes, and that is why DNR extended it two times. They also had someone come in an hour before it closed to request a multi-month extension. However, they have not heard a massive outpouring of a need for extensions. SENATOR LINCOLN asked if DNR is going to summarize the 40 - 50 responses for the Committee. MR. LOEFFLER answered that typically the responses don't go to the Committee, but he would be happy to provide them with a summary. CHAIRMAN TAYLOR said he thought the sooner and clearer DNR could identify a public easement, the sooner it could resolve most of the concerns and people will be on notice in the future when they purchase property that there is this encumbrance within their area. VICE-CHAIR JAMES commented that 11/22/99 - 1/4/00 is an absolutely ridiculous time to be putting out a notice to anyone. It's the holiday season of the year 2000. "This is a massive change in the way things have been done." She thought it was time for the Administration and the Legislature to work things out so the public isn't misused. Number 532 SENATOR LINCOLN wanted it clear that when the representative from North Pole said they are in a contest with the Administration, she wasn't speaking for all of the Committee. She realizes the complexity of the issue and the need to have the public involved in the whole process. VICE-CHAIR JAMES reiterated that she believed there was a contest going on between the legislature as a whole and the Administration. Number 541 REPRESENTATIVE KAPSNER said she thought a majority of the legislature was in a contest with the Administration on some points. MR. LOEFFLER responded that he's not in a contest with anyone. DNR is trying to do what is best for the public. He is happy to take comments from the Committee whenever they send them. VICE-CHAIR JAMES thanked him. REPRESENTATIVE HARRIS said his office has received many complaints about RS 2477s across private land. If he is reading the regulations properly, the private landowner is giving up ownership of their property to the State. He asked if that was correct. MR. LOEFFLER answered that RS 2477s created the private ownership of the land, so they never owned that particular portion of their bundle of rights. Typically, landowners have unfettered use of their land for whatever purposes they want consistent with law, except they cannot prohibit the public access as specified in the easement. If it is a general easement for snowmobiles, they have whatever rights they need, but they can't prohibit that kind of use. The use and the easement typically predated the private ownership. The problem is often the people purchased the land and didn't know it. Therein lies the tension between public access and private rights. REPRESENTATIVE HARRIS said he knew someone with a large agricultural piece of property with an easement going through it. He has it fenced and used it continuously for agricultural purposes. To have an alternative route is very difficult and maybe almost impossible. Historically, the trail hasn't been used in years and he asked how they would deal with a situation like that with these regulations. MR. LOEFFLER answered that the law gives them very little latitude. They must provide equal, better, or reasonably comparable access. If that can't be provided, the Department doesn't have the discretion, through regulation or any other means, to vacate an easement. REPRESENTATIVE HARRIS asked if it's the responsibility of the private landowner to maintain the easement at their expense. MR. LOEFFLER answered that they have no responsibility to maintain it. To the extent that the Department has discretion with nearby state lands, they try to use that to provide access that meets everyone's needs. When that's not feasible, their hands are tied. VICE-CHAIR JAMES said she understood that RS 2477s originated under federal law to allow people to build roads or highways where a trail had been used for access. This law has been on the books for a long time and, therefore, it's assumed that if the criteria were met for an RS 2477, that the 100 or so feet for the highway is there for the use of the people. However, the federal government has said it is not going to respond to these assertions any more. TAPE 00-07, SIDE B  Number 580 VICE-CHAIR JAMES said her concern is access in rural areas. In most of the built-up areas of the State, alternative access has been provided already. Identification of RS 2477s was not there when many people signed documents to buy their property from the State. Maybe there should be a caveat saying the existing trails are reserved or something to that effect. If that's carried out, it means if there's a trail across your property and you want to move it to a comparable place, you could do that. She also understands that one of the reasons we started identifying all these RS 2477s was because the federal government is not recognizing them any more. It was believed that before the State of Alaska could have final assertion of an RS 2477, it would have to take all of the supporting documents and go to court and assert its right against the federal government. VICE-CHAIR JAMES said she was confused about whether the State has the right to assert without going all the way to the federal government to be sure they would recognize it as being valid (since these are federal trails - not state). She asked him to respond. MR. MYLES CONWAY, Assistant Attorney General, said he has been handling the RS 2477 case the State filed against the federal government. A number of the trails listed pursuant to SB 180 by DNR are across federal lands. It's true that they don't generally recognize RS 2477s, although it appears they are going to back down in our case. They know that a couple of the claims are valid. He asked her to restate her question. VICE-CHAIR JAMES asked if you identify across someone's property, such as Representative Harris was talking about, where there is an old trail that's currently not being used because there's road access (the easier way to go), notifying the property owner that there's a 100 ft. strip of RS 2477 going through his property doesn't make it so, in her opinion. It seems that documentation of the use of that for a highway submitted to the federal government, who was the one who would have recognized that in the first place, might say this is not necessary any more, because it's already been located in a different area. How does the authority come to recognize RS 2477s, she asked. Is it from the language in the statutory direction that the Legislature has given to the Administration? Does that make it a state right-of-way? Or is an RS 2477 a federally allocated right- of-way that may or may not be recognized by the feds today. One particular owner in the Cantwell area has an assertion that goes right through his garage - another one has one that goes through a berm that's been there forever and no one travels it. Where do these people have any kind of redress, she asked. Do we vacate part of it, because some people use it for access to their house. How are those problems sorted out and what position does the federal government have, if any, in this assertion. MR. CONWAY answered that she had put her finger on what is going to be a very difficult issue in the coming years. The statute has identified a number of trails, which, if valid, will predate all of the private property interests. The private property parcels are going to be encumbered by those trails. If you have a situation such as she described, where there are alternative accesses, he thought that was a perfect example of moving through the vacation process. In some instances, the very stringent standards for vacation that have been set up by statute are going to make it very difficult to vacate those routes. It will absolutely impact private property owners. MR. LOEFFLER said the answer to the other question of whether the federal government has a role in an assertion on state land is that it doesn't have a role anymore. Once the evidence shows that the right-of-way existed, it exists until vacated. The only way to vacate is through procedures in statute. Number 526 VICE-CHAIR JAMES said she served on the Planning Board in the Fairbanks North Star Borough. Early in the process, they established a Trails Commission which extensively went through the entire borough and identified trails that were currently being used and used in the past. They did a mapping of the whole issue. As the Borough proceeded with subdivisions, they addressed every single one of those trails. They either stayed where they were or were put somewhere else that was more convenient in the subdivision. Trails are not necessarily 100 ft. wide, but whatever use required. It seemed to her that the State should use a process similar to the Fairbanks North Star Borough's. MR. LOEFFLER responded that to some extent the standards for vacation narrowed trails, but that was for trails mentioned specifically in legislation. CHAIRMAN TAYLOR asked if the statute specifies 100 ft. MR. CONWAY answered that a state statute accepted these from the federal government at 100 ft. An RS 2477 can be accepted either by public use or by act of an appropriate legislative body. There is a history of state statute and each one has set a different width requirement. The most recent sets it at 100 ft. That one doesn't govern all RS 2477s. The governing width is determined by which statute was on the books at the time the land was unappropriated as a grant from the federal government. If the grant was accepted at a very early date, the width would be less than 100 ft. The decision on the width is not up to the Administration; it was established by statute. CHAIRMAN TAYLOR asked if he was saying width established by statute at the time of taking. MR. CONWAY said that was correct. He explained that it doesn't matter whether the federal government accepts these things or not. They made the grant. That acceptance had to have occurred before the land was segregated for another use. It's within the power of the Alaska Legislature to subsequently make that width smaller. Number 479 CHAIRMAN TAYLOR explained that he thought their frustration with this process is that they have taken a cookie cutter and slapped it all over the map of the State of Alaska. Where it has impacted individuals, they must hang in a state of limbo with potential liabilities. He thought they needed to work with people to find out what size we need out there. SENATOR LINCOLN referenced a letter from Ward Farms in Delta Junction that points out that one of DNR's opinions said that the State assumes no liability for claims by the public for damages or injury on an easement and that the private landowner is liable for injury and damages incurred by the public on an easement, including any environmental damage caused by the public's activities. She asked for his response to that. MR. CONWAY clarified that he is the one who spoke to Mr. Ward and that the letter didn't accurately state what he told him. A landowner whose land is encumbered by an easement will only be liable for activities on the easement if he did something negligent. He didn't think an adjoining landowner is liable for everything that happens on the easement, absent some kind of negligent act. He believed the State is fairly well immunized for liabilities for occurrences on an easement by statute. SENATOR LINCOLN referred to Representative Harris' example of a farmer putting up a fence cutting through an easement, and asked whether that farmer would be liable. MR. CONWAY answered that it would be illegal for a person to put a fence up across the public use area. If someone drove a car into the fence, he thought there might be some liability, but he didn't think there was any basis for a private property owner to fence a public access in Alaska. DNR has allowed people to put gates up if a way through was easily accessible. VICE-CHAIR JAMES said she thought a farmer would be responsible if his dog bit someone and grazing cattle could be a problem. One thing she keeps seeing is that people buy property that has not been asserted before and is asserted later. It still seems the intent of the RS 2477 in the beginning was for right-of-way for public roads. It seems like when the State asserts a public road, they ought to take possession of that road. The subdivision she is talking about was a BLM subdivision that was divided after the Parks Highway was built and didn't recognize any kind of an RS 2477 trail. The title was given from the BLM to the next person and on and on. If this was a federally allocated right-of-way and BLM didn't recognize it when it transferred the property, she asked how can the State come back and grab it again. Number 400 MR. CONWAY said he is familiar with the case she is talking about. He suspected when BLM conveyed the land, it was subject to existing trails. The situation would be that BLM didn't have that land to give to that individual because before it was segregated, they gave the trail to the State. Therefore, it wouldn't have to be mentioned. He knows there are some people who filed the nomination application in the first place and claim to need that particular right-of-way for access to their property. If it is the situation where it's truly needed, the person should apply to DNR to vacate it and he thought it would be granted. VICE-CHAIR JAMES responded that one party needs this route for access. However, there is alternative access, but that's not the access they choose and she agrees. It's all the other folks in the subdivision who are affected and there doesn't seem to be any provision for them, whatsoever, to get any relief. CHAIRMAN TAYLOR said he assumed someone would do something about this. MR. LOEFFLER responded that they work on those types of things consistent with their availability of staff, but they are limited to the kinds of on-the-ground investigations and fixes they can do. CHAIRMAN TAYLOR said that was a matter of prioritization done by this Administration. He said he appreciated the answers to his questions. He understands why the Department has new regulations and what they're attempting to do, but the process of using the cookie cutter technology across the State and not providing for the staffing or the forms necessary or the opportunity for people affected to come in and comment would be further exacerbating a problem that was never really there. He didn't know of anyone who was going to build a 100 ft. highway through the gentleman's farm in Delta. He knew of people who would be upset if they cut off access to large hunting areas because you can no longer get across his farm. He hoped someone would work that out. MR. JOSEPH HART, Glennallen resident, read a letter that was written to Nancy Welch, Northern Regional Land Manager, Division of Mining Land and Water, saying he would send the Committee a copy. The intent of the letter was to provide comments on behalf of the shareholders of Ahtna, Inc. with 1.5 million acres of land in the Copper River/Cantwell area that were granted by the ANCSA in 1971. There are currently 150 17(b) easements of various titles. In 1970, representatives of the State of Alaska played a major role in the identification of these easements across ANCSA land that were conveyed to the villages and regional corporations. Representatives of the ANCSA corporation, the State of Alaska, and the federal government negotiated in good faith in the identification and location of these easements. The federal government and the State of Alaska assured the ANCSA corporations that no additional easements would ever be identified and reserved on their lands conveyed to them by the federal government. These commitments must be honored by the State of Alaska and the federal government. If there is a true and demonstrated need for modification of these easements, they must work together with the affected ANCSA corporation for such changes. Many of these easements are used for recreational and sports hunting purposes which is in direct violation of the prescribed uses of these easements. It constitutes trespass of Ahtna lands. The State of Alaska RS 2477 claims open additional Ahtna lands to trespass. Many of these easements can serve no other purpose and most are redundant. The location and size of easements on ANCSA land must remain as a the federal government in the 1970s established them through public process. The public at large and specifically, the State of Alaska, was given the opportunity to participate in the development of these easements. No other easement can be identified and reserved on ANCSA pursuant to the rules and regulations being developed under these statutes. The public already has access to state and federal lands through AHTNA lands and they have a right to do that. At the present time, neither the state nor federal government will take responsibility for actions the public takes while utilizing existing easements. It is inconceivable to think the State of Alaska will do anything to curb the public's abuse of additional easements. They, therefore, oppose and do not recognize the State of Alaska's claims of easements via RS 2477s. Number 268 MR. MICHAEL EASTHAM, Snowman Snowmachine Club, said the RS 2477 is a good concept, but it doesn't help people who need it. For instance, recently a member of the club requested a trail easement from a private property owner for a trail that had been in place in excess of 50 years. When the DNR disposed of the land to the owner, they didn't reserve an easement through his property where prior to his ownership, a seismograph trail was put in that split his property in two. This is a heavily used trail by landowners, homesteaders, and recreation users in the last years. The Snowman Club has had to go to court to try and win back the right-of-way easement; there is not yet a decision. MR. EASTHAM said he just learned that in situations of trail easements, if they are longer than 5 miles, it requires a survey be done. Clubs are having to foot the bill for the surveys and he thought DNR could do something to help clubs that don't have a lot of money to work with. MR. CRAIG PUDDICOMBE, Palmer resident, said he had been in litigation for 10 years and he would like to have the Legislature vacate his RS 2477. He said Senator Halford would be discussing his case in the next Resources meeting and asked Mr. Loeffler if he was going to give people more time to respond to the new proposals. MR. LOEFFLER answered that they would give the Legislature as much time as they want. They have received only one request from the public, two including Mr. Puddicombe. So they were not going to go back out and readvertise it. SENATOR TAYLOR said he thought he was just asking for more time. MR. PUDDICOMBE asked when they would finalize the new proposals. MR. LOEFFLER explained that they could give extra time to the Legislature, but not to an individual person without advertising it to everybody. He said they would finalize the proposals when the Department finished working through the comments and whatever time the Legislature needs. He thought it would be a matter of weeks. Number 164 MR. BILL WARD, Delta Junction, said he has concerns about how the regulations are being implemented. He owns 640 acres there and 240 on the Kenai Peninsula, both agricultural parcels. He is focused on section line easements that were transferred from federal ownership and subsequent access easements that were granted under State of Alaska land sales. An item on page 22 had not been discussed where it refers to an equipment list of what is approved to be used on an easement. This equipment list also applies to landowners. If it is not on DNR's list, the landowner cannot take any other equipment on the easement either. The State has retained control, not the landowner. He can not run his tractor on that easement without DNR permission. He was concerned that the regulations make no reference to private property rights. The landowner has no rights of use or management without state approval and has no say over the public's use of the easement. Yet he is held accountable for the public's activities. He explained that he owns a 640 acre block of land. On one side there is a public road built on their easement (50 ft.). Two other sides are adjacent to private land. The fourth side is bordered by state land, which is accessible all the way around, including a public road that goes along one side of it. The easements all lead to private property; there's no public land beyond that. He has a fence to his property line to be used in conjunction with his farming operations because there has been no demonstrated need for anyone to use the easement, including the private land owner beyond. He is responsible under state and federal contracts to manage that land and easement in a responsible manner. SENATOR TAYLOR asked if the easement ran through the middle of his property. MR. PUDDICOMBE answered that all easements are on his boundaries. He has them around four sides of his property and the easement he is talking about takes up 26 acres of the ground he paid for. He can't use his patented land and has no say in the public use of land he paid for, and would be liable for public damage, if he created a public nuisance just by being there. He would subject his whole farm to the potential risk of criminal activity by giving the public free reign to travel all around his property. SENATOR TAYLOR asked if he was concerned about the section line easement law. MR. PUDDICOMBE answered yes and said he wasn't into the RS 2477s. SENATOR TAYLOR asked if his primary concern is since he already has a road running down one side of it, that easement has not only been taken, it's being used. The other three sides of his property are still subjected to that possible easement should anyone need to run a road down those lines. He asked where the DNR's list of equipment that can be used came from. MR. PUDDICOMBE referenced page 22, 210.84. His concern is that public access has been stretched into being some right of access and when the founding fathers created sectional lines federally, it was for more of a public need. In every other state he has talked to, management authority is vested in the land owner until such time that the governing body determines there is a need. TAPE 00-02, Side A  Number 001 MR. WARD continued. "... criss cross on sections lines that have fences or are being used in a stewardship manner by the landowner and there's no public demand to use those or need. And I think that is where the failure is in Alaska. We have gone so overboard in trying to protect public right's of access that we are ignoring any private property rights. I mean, this thing strips me of any private property rights and we are basically abusing -- giving the public the total right of abuse to that." MR. BRIAN MERRELL, state counsel and underwriter for First American Title Insurance Company, expressed the following concerns about proposals to repeal the provisions put in place to record rights- of-ways that have been vague about locations. This obviously "causes me and the title insurers deep concern" because while, in many cases, those claims will not be covered by the title insurer, it certainly raises an administrative concern because maybe in the majority of cases, the RS 2477 asserted rights-of-way don't even affect their property, but it shows up because it's in the same section as their property and put in the public record. He saw the opinion of the Legislative Council dated yesterday and in the context of that memo, they are not a "taking (of people's rights)" in that sense, but they are a "taking" if the State records where they might be when they are not actually there. The problem is that there aren't the resources to make accurate identification. The Legislature needs to reconsider the issue of recording section wide maps with dyed lines on them that purport to be where these things might be. They would obviously affect the marketability of the title of the properties. It is clearly a taking of rights when the easements don't actually exist over their property. Title insurance may not cover that for the land owner. In the case of most rural property, there won't be any insurance anyway. MR. MERRELL said the State should go in and figure out exactly where these things are and what use is needed or necessary and how big it is needed to be. There will be the same level of complaints as long as this isn't done. SENATOR TAYLOR thanked him and commented that the federal government created this thing. As a new frontier state, we assumed we would always be able to build roads along rivers where people had walked and traded since time immemorial. We assumed we would always be allowed that. He asked Mr. Merrell if he would check with his people down south to see how they handle this situation. MR. MERRELL said he had done some checking, but it isn't as big a problem in other states, because of the vast size and rural nature. MS. AUDREY BROWN, Delta Junction attorney, said people in Delta needed an extension to the comment period and she didn't recall seeing any notice locally. Also, from reviewing AAC 51, she said these proposals are really a massive change. Chapter 51 as it was initially set down solely addressed a combination of identification and management of RS 2477 rights-of-way or trails. RS 2477s were the former 43 U.S. Code 932 and dealt with establishing rights-of-way for public highways (an act from the late 1800s). This chapter seems substantially changed by the additions of new sections, the deletion of existing sections, and the adding in of areas that go beyond RS 2477s. One of the areas she is real concerned about is adding the section line easement issue and the definition at the end regarding public access easements. RS 2477s are a separate issue from section lines. The Alaska statute that establishes section line easements is AS 19.10.010 and is titled: Dedication of Lands For Public Highways. Number 210 The first note under that statute sites Gerves vs. Kenai Peninsula which says enactment of Chapter 35 in 1953 was a positive act clearly manifesting the Territorial Legislature's intent to accept the federal grant under 43 U.S. Code 932 of rights-of-way for the construction of highways over public lands not reserved for public uses. She thought we needed to get back to the original intent which was the construction of public highways over public lands. Number 232 CHAIRMAN TAYLOR said he appreciated Mr. Loeffler's offer to extend the comment period for the Committee and asked how long would be fair. MR. LOEFFLER answered another two-three weeks. MS. BROWN said she thought people in her area would need 30 days. SENATOR LINCOLN asked the reason for the first extension and if they get requests for extensions. She didn't want to extend just to extend. MR. LOEFFLER replied that they extended it from January 4 to the 21st, a total of 60 days, because of the Christmas holidays. CHAIRMAN TAYLOR asked Mr. Loeffler to notify people that they have an extended period of time, approximately 30 days, in which to submit their comments. MR. LOEFFLER indicated he would. CHAIRMAN TAYLOR said in Canada, Australia, New Zealand and some other places, on some navigable streams they have what is called the "Queen's chain" which refers to one chain length from the high bank of the stream landward and is provided as access to the public so they can get to the stream. He thought would be a good idea to think of here. Number 334 MR. TOM SCARBOROUGH made the following comments via teleconference from Fairbanks. He and Pat Chow (ph) submitted comments to DNR in their roles as land surveyors. One comment was that the public was not given adequate time to review the regulations. He noted the land surveyors were left off of the list of parties to be notified, even though land surveyors are very involved in the easement process. Land surveyors are liable for determining owner and access costs. The proposed regulations reflect a complete change in direction; DNR will take over duties that DOTPF has been responsible for in the past. DNR plans to make this change without an increase in staff or funding. He expressed concern that managing public and private easements will be a massive operation for DNR. He stated the appeals process is not clarified at all in the proposed regulations. He noted his appreciation for an extended comment period because the land surveyors meet in Anchorage at the end of February and will have a chance to review them. CHAIRMAN TAYLOR asked Mr. Scarborough to send any comments to DNR and the committee and thanked him for his participation. MS. DONIEL AMPUERO said she has one acre of land and no one will buy it because of the stink from the incinerator. Now she is told that the transportation corridor will be run through it. Because of the incinerator, she couldn't do her outdoor business (organic growing) and, plus, they want her to have insurance. This issue has bothered her so much that she had to go to Elmendorf because of stress on her heart. CHAIRMAN TAYLOR commented that they had her letter on file and that none of those things were going to happen yet and not to worry. MS. AMPUERO responded that the people in Knik had been put through so many borough meetings that the people don't want to participate, anymore. Whenever they try to fight for something, they end up getting punished. Five people from that community are here and there has to be some kind of relief, she said. CHAIRMAN TAYLOR asked Mr. Conway for any he comments he might have on how other states handle this issue. Is there a way to reserve the right for the state and not encumber the property owner by exercising it - especially on the section line easements. MR. CONWAY acknowledged that request. Number 419 MS. EILEEN MARRS said she is the single mother of a few children with farming interests in the Knik area. She has been notified through the mail that her property has been encumbered by the Herning Trail and the Beluga Lake Indian Trail which is sixty miles from where they said it was. She has been notified that the section line easement behind her which provides access to the 40 acre parcels that are adjacent to her property are now going to be extended from 60 ft. wide easements to 100 ft., and possibly one 500 ft. easement. This would take 3/4 of her one acre and also 3/4 of an acre on the parcel behind her. All of the people involved in this would lose their homes, because they are in the 3/4 acre sections. MS. MARRS said she was notified by the Borough that due to their comprehensive plan, that she can no longer use the fertilizer provided by her animals on the raspberry bushes she is trying to grow organically. She can't get a business license to sell raspberries in the area, because they can't be certified as organic any longer, because there is an incinerator within 3/4 of a mile of her home. DNR is asking that there be no any public comment and notification. The only way she found out about this meeting last Thursday is because a local neighbor thought that more people should be involved. She said she was unable to get a letter to the Committee. CHAIRMAN TAYLOR informed her that she now has adequate time to comment. MS. MARRS continued saying that the corridor that runs behind her is a section line easement, but the paperwork she recently received said it could be used for a transportation corridor which could contain anything from dog mushing to a train right-of-way. This was not written into the paperwork when she purchased her property which has been paid off for the last seven years. She has never received anything saying her property was encumbered by the possibility of a train running through the center of it. CHAIRMAN TAYLOR reassured her that that wasn't going to happen and that she has time to respond now. MS. MARRS said that her family has been trying to get property at Pt. Mackenzie to start a farm and were recently notified that two of the parcels they have been researching are going to be encumbered by railroad easements of 300 ft. She has requested maps showing where the rights-of-way were to go and she has received absolutely no input, neither from the Department of Agriculture or DNR. These maps are essential in determining whether or not property owners are going to be affected by these trails. She was sent maps showing section lines and a trail running through them haphazardly and with no distinguishing markings, like lakes or streams. Fifteen thousand people were notified that the trails were going to go through. She thought DNR should research the trails. CHAIRMAN TAYLOR said she understood her problem and they needed to talk to the Department to see how they were going to classify these things and then get on with the process of helping people find out where the trails are located. Number 500 MS. DANA OLSON, testifying on her own behalf from Mat-Su, expressed concern about the statute of limitations for the time period in which a person can request a vacation. After she submitted documents to the Department of Natural Resources (DNR) showing the recording of an implied easement was in error, she received no administrative decision concerning the matter. According to DNR regulations, she is entitled to an administrative hearing so she sent a demand letter to the Commissioner. CHAIRMAN TAYLOR noted the committee has a copy of the documentation Ms. Olson referred to. MS. OLSON said the criteria used by DNR to determine the RS 2477 easement will not fly, so the issue will be moot. A second access issue she wrote to the Commissioner about concerns her desire to have access to the Herning Trail file. After making efforts for months, she has been unable to get access to that file. MS. OLSON stated that after you prove a vacation, DNR can come in and give you another trail. Her husband is trying to do a vocational rehabilitation business on this property and they needed to be able to mitigate their damages. They weren't going to put any more money into their property while this was going on as her husband is a disabled person who is unemployable. "The other thing I sent down to you was concerning two bills that would destroy my Chase (ph) agricultural property interests on a certain day without a hearing. So, I feel that the opportunity to engage in agriculture is really being taken away from me and my family. I don't know what you can do about concerning that but I'm finding two issues. It seems like if I assert over here that I suffer the effects of maybe having my other interests terminated. Under the rule of perpetuities, I find the interests I have in three court cases, that the Commissioner of DNR is not defending my property interests before the legislature, and yet he won't give me an administrative appeal." MS. OLSON continued: These are basically my complaints right now. I want to say that when I was involved in the lawsuit with the department at DNR and they refused to disclose under discovery -- I mean I'm even in a separate class. I specifically asked them and they refused to give me the information. They went in and they had put lines on this right-of-way claim on my property. Of issues are the call to management program, the fact that when the land was severed was the issue they brought to point when the land was severed and subdivided, whether or not a right- of-way should have come up at that time. I also gave you quite a bit of case law that shows that it was extinguished but I have no appeal process. If the statute of limitations is going to be held by the 1998 -- the title [indisc.] is coming up. It's not like I can't wait. I need to either press the error or I need an appeal. CHAIRMAN TAYLOR thanked Ms. Olson for her testimony and asked her to contact him. Number 550 MR. JAMES WRIGHT, representing himself via teleconference from Cantwell, made the following comments. Last fall his neighbor advised him the State of Alaska imposed an RS 2477 across his property which is located on US survey 3229. The access stems from an old 80 mile trail from Cantwell to the Valdez Creek Mine. The RS 2477 access encompasses about 12 miles of that trail. The access came about as the result of a land dispute between two property owners. It was addressed in 1994 but was shelved and suddenly resurfaced. MR. WRIGHT pointed out that a 100 foot right-of-way - there are 22 acres of this land - will require three-quarters of an acre. He is one of more than nine people who will be affected by this road. He feels DNR has abused its rights under the law in order to quell a dispute that should have been decided in court. Something needs to be done regarding this encroachment on individuals' rights on private land. Mr. Wright said he has been working with the Mat-Su Borough to establish some parameters for the protection of private lands from public easements when unnecessary. He thanked committee members for spending time on this issue and asked them to do something to harness such DNR activities. CHAIRMAN TAYLOR informed Mr. Wright that Vice-Chair James has a copy of his materials and that he will review the material with her. Number 577 MR. BOB GILBERTSON, a Cantwell resident, said he has lived in Cantwell since the time of homesteads and mining claims. At that time, state and federal bureaucrats realized the importance of protecting private land ownership. He is testifying today because he found out about DNR's cavalier approach to RS 2477 easements on private land. He recently underwent the process that DNR is proposing to adopt. He sent a copy of the lawsuit he filed against DNR to committee members. DNR has deprived him and his neighbors of their right to due process by ignoring their own regulations. He is really tired of state bureaucrats knowingly and willfully breaking state regulations and bending legislative intent with impunity. If he, or any other private person, did so, they would be sent to prison. Because of their positions of public trust, state bureaucrats should be held to a higher standard. Before he got into this mess, he made an effort to find out if there was an easement across his property. No one could find one anywhere, but apparently, in the file drawer in DNR's Fairbanks office was a nomination filed five years earlier. Until that time, DNR had done no research on the nominees. In their haste to cover themselves, they never checked the ownership status across the nominated route. Within a matter of weeks, the deal was done. DNR went so far as to track him down in a motel room in Anchorage to tell him he could not block the road; however, the road was already blocked in several different places. DNR was unaware of that fact because no one ever visited the proposed route. No other land owner on the route was aware of what had happened. DNR's action was not correct and just. Nowhere in America's history can he find anything remotely resembling this problem. TAPE 00-02, SIDE B  Number 590 MR. GILBERTSON said there are certain circumstances in which a government entity can assert authority over private land: the right of eminent domain for road construction; national emergencies; flood control and dam construction are some of them. In each of those cases, a clearly defined procedure must be followed by the government and every effort is made to be fair and just to the private landowner. In addition, there must be an overwhelming benefit to the public. DNR's proposed regulations attempt to put all of the responsibility and cost on the landowner. Under the proposed regulations, DNR would have the public believe that it is only identifying, not certifying, roads and that it is the legislature that is making them legal. He didn't think the Legislature could legally do that, either. The end result is that the landowner ends up with a clouded title which is the heart of the problem. MR. GILBERTSON asked who wants to buy a piece of property on which it is suspected the state owns an easement? The easement is not recorded anywhere as a legal document and its exact location and size are not known. In addition, rules concerning the easement are not available and no one knows who will be enforcing them. He questioned who will remove his neighbor's building or Golden Valley's electric power pole from the middle of the proposed RSV 625. DNR says the landowner, if he thinks DNR is wrong, can file a quiet title suit to remove the easement. Mr. Gilbertson said the landowner already had a quiet title and is now forced to bear the cost of getting it back. An original landowner might sell land without knowing an easement existed. Prospective buyers must be informed of any problem with the property. MR. GILBERTSON said when reviewing the records filed by DNR in Superior Court, it is evident they play with semantics to such a degree that their attorneys are not sure what the regulations are saying. At one point, DNR said the reason they need not follow the current regulations was that they were only a political ploy and were never intended to be followed. The end result is the same: if DNR has its way and the legislature follows its present course, and adjudication has taken place, the landowner has ended up with a clouded title in a manner which is not legal and will result in endless litigation. Irregardless of the importance of RS 2477 easements across public and corporate lands for the future growth of Alaska, nothing is so important as to warrant the destruction of private property rights without due process. Number 571 MR. SCOTT CALDER, Fairbanks resident, said he is concerned that Mr. Scarborough's Surveyors Organization would be meeting the last week of February and he didn't know if that would fall within the extension. He, therefore, thought that 50 days would be a better amount of time given the level of concern. He said there is an important public purpose to be achieved in allowing for a right-of- way for traditional trail uses, but it seems to him that the best application of that would be to prevent the federal government from dominating the State of Alaska and it is a corruption and perversion of this concept to place everyone in jeopardy who testified today. Rather than creating a pretext by which people will be denied public comment in the status of their own private land holdings, we should be thinking more in terms of protecting private ownership and asserting the rights that have been mentioned today. He thought the Legislature might consider revisions to the criminal code in light of the improper takings by public officials. Number 534 MR. JOHN BRAUTIGAN, Knik Chapter of the Iditarod Trail Blazers, read the letter they submitted. Both the Iditarod National Historical Trail and Herning Trail have historical trailheads at Knik. The Knik to Susitna Trail, RST 118 has been put in, maintained, and is currently being improved through the efforts of Knik Dog Mushers Association and his organization. Both trails have received Sims trail Grants for these improvements. Additionally, the Herning Trail is the most direct route from Knik to Big Lake and is recognized in the Big Lake and Knik-Fairview Comprehensive Plans. However, in the Knik section of the Herning Trail, the original trail crosses private land and newer sub- divisions. This has been corrected by the Knik-Fairview Comprehensive Plan by utilizing a north/south section line easement in order to prevent land use conflict with property owners. He would like to see a way to vacate portions of easements going through all private property and maybe going to all section line easements. Number 496 CHAIRMAN TAYLOR said it sounded like from his testimony that the Herning Trail question had been solved through the borough's planning process. MR. BRAUTIGAN answered yes, he hoped those problems were resolved. He said notices had been sent out. CHAIRMAN TAYLOR asked him what they did. Did they just show the old trail on their map and now they have a newer, different trail. MR. BRAUTIGAN responded yes, they basically went to section line easements for the Iditarod Trail that goes to Big Lake. An unidentified woman asked when the comment period was scheduled to end because the surveyors were meeting after it. CHAIRMAN TAYLOR said he "cut a deal" with the Department before he knew about the surveyors. He said he would discuss it with Mr. Scarborough. MR. LOEFFLER commented that he would contact the land surveyors and "work it out." CHAIRMAN TAYLOR said he would appreciate that. An unidentified gentleman said his impression was that the trails could be vacated pretty easily and he wanted to know how they would go about it. CHAIRMAN TAYLOR said he thought setting up a system by which vacations could occur would have to be part of the regulatory process. He said this was a complex problem and it was going to take some sharp thinking to come up with ideas that don't violate people's property rights. CHAIRMAN TAYLOR thanked everyone for participating and adjourned the meeting at 4:17 p.m.