JOINT SENATE AND HOUSE STATE AFFAIRS COMMITTEE October 4, 1995 9:00 a.m. Anchorage, AK SENATE MEMBERS PRESENT Senator Bert Sharp, Chair Senator Randy Phillips, Vice-Chair Senator Loren Leman Senator Dave Donley SENATE MEMBERS ABSENT Senator Jim Duncan HOUSE MEMBERS PRESENT Representative Jeannette James, Chair Representative Scott Ogan, Vice Chair Representative Ivan Ivan Representative Brian Porter Representative Ed Willis Representative Joe Green HOUSE MEMBERS ABSENT Representative Caren Robinson ALSO IN ATTENDANCE Speaker Gail Phillips COMMITTEE CALENDAR -- DISCUSSION ON RS 2477 WITNESS REGISTER Steve Borell, Executive Director Alaska Miners Association 501 W. Northern Lights Blvd. Anchorage, AK 99503 POSITION STATEMENT: Supported RS 2477. Frank Dillon, President Alaska Truckers Association 3443 Minnesota Dr. Anchorage, AK POSITION STATEMENT: Supported RS 2477. Ron Swanson, Director Division of Lands Department of Natural Resources 3601 C, Ste 1122 Anchorage, Alaska 99503-5947 POSITION STATEMENT: Commented on RS 2477 June McAtee, Exploration Geologist Calista Corporation 601 W 5th Ave., Ste. 200 Anchorage, AK 99501 POSITION STATEMENT: Commented on RS 2477 Jules Tileston, Director Division of Mining Department of Natural Resources 3601 C Street, Ste. 800 Anchorage, AK 99503-5935 POSITION STATEMENT: Commented on RS 2477 Tom Boutin, Director Division of Forestry Department of Natural Resources 400 Willoughby Ave. Juneau, AK 99801-1796 POSITION STATEMENT: Commented on RS 2477 and forestry issues. Tom Perkins, Commissioner Department of Transportation 3132 Channel Dr. Juneau, AK 99801-7898 POSITION STATEMENT: Commented on highway projects. Attorney General Bruce Botelho Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Commented on RS 2477 issues. Elizabeth Barry, Assistant Attorney General Natural Resources Division Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Commented on RS 2477 issues. Warren Olson 5961 Orth Circle Anchorage, AK 99516 POSITION STATEMENT: Supported RS 2477. Dale Bondurant HC 1, Box 1197 Kenai, AK 99669 POSITION STATEMENT: Supported RS 2477. Candie Caraway 12401 Silver Spruce Anchorage, AK 99516 POSITION STATEMENT: Supported RS 2477. Lewis Hidano No address listed POSITION STATEMENT: Commented on RS 2477. Dennis Torrey Chuit River Lodge Beluga, AK POSITION STATEMENT: Supported RS 2477. Tom Harris, CEO Tyonek Native Corporation POSITION STATEMENT: Commented on Tyonek corporate policy. ACTION NARRATIVE TAPE 95-25, SIDE A Number 001 SENATOR BERT SHARP, Chair of the Senate State Affairs Committee, called the joint meeting of the House and Senate State Affairs Committees to order at 9:00 a.m. in the Anchorage LIO conference room. He announced RS 2477 (Review and update transportation, present and future needs and goals) to be up for consideration. SENATOR RANDY PHILLIPS said he has a staff person who worked on RS 2477 who will retire in January and invited people wanting information to call her before she left. STEVE BORELL, Executive Director, Alaska Miners Association, said that RS 2477, Rights-Of-Way, are the only feasible means of guaranteeing future access. Historically, nearly all roads and trails in Alaska were developed to access mineral deposits and support mining operations. He said that mining, today, provides the greatest opportunity for new jobs and new economic development in all the areas of the state, in both rural and urban support centers. MR. BORELL informed the committee that each mining project must pay for all of the access infrastructure it requires. Referring to the Fort Knox Project in Fairbanks, he said that having major roads in place was a deciding factor in its development. The immediate issue before the state today, he said, was to guarantee future rights-of-access to protect the few and limited rights-of-way that now exist. Number 100 The issue of which rights-of-way to develop is an issue that cannot be determined until future needs are defined. Access to state lands, private lands, private Native lands, other private lands and the remaining Bureau of Land Management (BLM) public lands will require crossing federal conservation system units. If we do not guarantee our rights to the RS 2477s that have already been established and granted, we, the state, will never be given the chance to decide which routes we can build and use in the future. Alaska National Interest Lands Conservation Act (ANILCA), Title 11, has been offered as the mechanism for attaining future access across federal conservation system units. The Alaska Miners Association does not agree and this is because Title 11 is so complicated, costly, and cumbersome, that no private company would ever try to utilize this approach. MR. BORELL commented also that there is a problem where RS 2477s cross private lands, because in most instances this means Native lands. Often times RS 2477 discussions are not sensitive to the private Native and private non-Native land owners. It is discussed in a way that is an affront to private land owners who have the most to lose if they cannot obtain access. Private, non-Native lands were often obtained by patenting mineral deposits which will need access. Similarly, much of the land owned by the Native corporations was selected because of its mineral potential and the potential to create jobs and economic development to benefit the Native shareholders. However, groups and individuals who want to block all access use the picture of the spaghetti map of roads covered with Winnebagos to scare the Native peoples of the state. MR. BORELL said they are concerned that Department of Transportation's (DOT) way to establish funding priorities for road projects will result in all monies being spent on maintaining existing roads and non-vehicular trails rather than on new access needs. Under DOT rules, new roads are scored with the same standards and criteria used for the community transportation program. While economic reasons are being considered, these criteria place the most weight on "significant new, identifiable, permit economic opportunities or benefits." If this approach had been required at the Fort Knox mine, there would be no mine and the 550 on-site construction workers that are working today would be looking for other jobs. Number 200 MR. BORELL stated that participation by the legislature will be needed to help establish long-term transportation goals and to ensure that a portion of each year's transportation funding go for new access roads. In closing, he said, he saw an extreme danger for the state, especially for Western Alaska, in the ongoing campaign of the Audubon Society and the National Park Service to establish an international park covering existing federal conservation system units in Western Alaska, portions of the Russian Far East, and the waters between the countries. The title given to this is Bering International Park and there are three different designations being proposed at the same time: First, an international park; second, a marine biosphere reserve; and third, a world heritage site. Such designations would make it effectively impossible to build a railroad from the coal and metal deposits of northwest Alaska and the Ambler district to a deep water port on Norton Sound or elsewhere. If these designations were in place, U.S. Congress would have to go to the United Nations before it could build something like the Red Dog Road. With the make-up of the current U.S. Congress, the chances of such a proposal becoming law is slim. Another access issue Mr. Borell felt was important to mention was if at some point, a fuel facility, natural gas or oil, was placed on the western coast, and there would be offshore buoys to load ships with, the very logical thing for supplying the villages of Kivalina, Noatak, and Kotzebue, would be to use a pipeline along the coast. That would be done in the non-frozen tidal zone, burying it eight or ten feet deep. It would be necessary to go to the United Nations to do that. Number 300 REPRESENTATIVE JEANNETTE JAMES noted that would also be an issue with the tunnel and railroad to Russia that she is interested in. She said there is extreme interest in transportation connections in that part of the world. MR. BORELL said he has had Native people ask him what would happen to protection of marine mammals. His feeling is that if oil was found in the Chukchi Sea, the logical thing would be to do would be to bring a pipeline down and put a deep-water port on St. Lawrence Island. He asked the Audubon Society if it would be o.k. to establish a park there. The reply was that they hadn't considered that possibility. SENATOR SHARP asked Mr. Borell to identify some high priority areas of known resources and accesses that may be addressed. He thought it was important to insure future access for future generations. FRANK DILLON, President, Alaska Truckers Association, said the trucking industry views access to our mineral resources and recreational assets as being very important. The RS 2477 program is perhaps the only mechanism that will allow them to expand into areas that they have traditionally used and have known mineral values, he said. He quoted a letter from Governor Knowles which said that transportation is a key to Alaska's economic health and it is one of the most fundamental responsibilities government has to its citizens. MR. DILLON said the Alaska Trucking Association believes that transportation infrastructure is a primary governmental responsibility. If we do not have transportation infrastructure, Alaska will not be chosen for economic development. Number 350 He said they had instituted the "Trails and Recreation Access for Alaska," and that federal monies were available for this program. He thought instead of focusing on urban trail development, we could take the "Trails and Recreation" and add economic access and consider the possibility of exercising our RS 2477 development in a concerted way to put in "a primitive access road" that could be used as a trail until demand actually required that it be upgraded to road status. He thought that if we didn't take this kind of preemptive effort, we would loose forever the ability to put roads into many areas. He used the state of North Dakota, which has a lot of wetlands that now can't be touched as, an example. RON SWANSON, Director, Division of Lands, Department of Natural Resources (DNR), read a letter from Ann Plager, Project Manager for the RS 2477 project. It said that during the 1980s the state of Alaska and the U.S. Bureau of Land Management agreed to recognize pubic rights-of-way on several routes that cross public land. The federal government, due to policy changes, no longer accepts this practice and have proposed new regulations that are extremely different. The state has continued the project without federal involvement. They hope for more federal participation down the road. With a combined budget of $1.2 million over two years, the Department of Natural Resources identified trails that may qualify as public rights of way under RS 2477. Their research suggested that over 500 routes may qualify, but it did not validate the legal right-of-way. Historic routes are legally validated as RS 2477 rights-of-way either by court or by an agreement with owners of the land over which the routes cross. To date, in Alaska, this has been accomplished in only a few cases. Often a right-of-way was needed to develop a highway project. Generally, the routes they researched provided either access to resources, to state land, to communities, or to federal lands not otherwise accessible over land. The project routes were nominated primarily from the Alaska Road Commission records, about 200 routes; mineral industry nominations, about 125 routes; transportation corridor land selection project, about 100 routes; and individuals and organizations, another 150 routes. To successfully document an RS 2477 right-of-way, it must be shown the route was constructed or used when the land was unreserved federal land (basically prior to 1968 in Alaska). They relied primarily on historical agency records such as the Alaska Road Commission Annual Reports and Maps, U.S. Geological Survey Bulletins, Reports, and Maps; and the U.S. Postal Service Contracts Site Reports and Maps. Other publications such as books, newspapers, and magazines, and personal accounts with affidavits were also collected. Research further established that land ownership at the earliest documented time of trail evidence. State and Federal Bureau of Land Management land records were used to identify historic lands. As a research portion of the RS 2477 project ended in August, the numbers told the story. Of about 1,900 routes that were originally identified, more than 1,200 are researched. Of those researched, 560 appear to qualify as RS 2477. Fifteen routes do not qualify. One hundred and twenty routes already have existing rights-of-way. One hundred and ninety routes are duplicates of the same with another name. Two hundred and sixty routes were holding because more evidence was needed to decide if they qualify. More than 400 routes were deferred because they cross federal withdrawals and it is unlikely they would find construction that predates withdrawal. Of the 700 routes not researched, the majority are located entirely on state lands and RS 2477 assertion is not needed. These routes can be established through a normal right-of-way reservation process. The RS 2477 project research focused on the routes' historical evidence and the unreserved federal land status. The project did not focus on the importance of the individual routes of this state. This project did not decide how the routes would be managed or developed. It is not their position that once an RS 2477 is established, it is open to any type of use any time of the year. They are currently in the process of drafting regulations that would treat the management and development of an RS 2477 once established the same as any other right-of-way. In other words, if the route is only an all terrain vehicle (ATV) trail today, it would remain as an ATV trail until a public process is conducted that would change that level of use. Many Alaskan land owners, such as Native corporations, want assurance that their rights and interests will not be hurt by RS 2477 identification and platting. Federal, state, and local governments must recognize legitimate concerns of land owners and land managers and the people they represent. Private land owners should also realize that historic rights-of-way may cross their land. These public routes may someday be validated in court establishing legal access across private land. Historic rights-of-way can be vacated where feasible alternatives exist. It may take years to defend the assertion of a single route through the judicial system. Litigation clarifying what an RS 2477 really means to a land owner and public user is time consuming and costly. No one can predict which routes will be most needed in the future. Number 500 Rights-of-way acquired under RS 2477 provide an access tool for the state that can help meet public access and user needs. However, until the legal status of an historic route is decided, it is important that users consult with the land owner before crossing the property. Some uses of state land, called generally-allowed uses, do not require any authorization from the state. These uses include brushing or cutting a tail less than five feet wide if the route system is not disturbed. Vehicle use is allowed as long it does not tear up the trail or disturb the vegetation. Widening the trail would require authorization from the state. Eleven trails were selected as test cases to test legal questions about access across federal land and has set precedence for RS 2477 rights-of-way. Basically, these are called criteria cases to define the realm of when an RS 2477 is Alaskan. These 11 routes have been certified under our existing regulations, 11AAC51 which included public review and comment. Notice of intent to file by title has been filed through the federal government to determine in court the validity of these routes. MR. SWANSON commented that federal regulations were proposed in August, 1994, and comments are being accepted until December, 1995. Department of Interior's budget prohibits them from expending any funds during FY 96 on RS 2477 regulations and legislation. The state finds the federal rules defective in several respects, principally in the definition of construction. The federal government found that actual construction had to happen and this doesn't fit the Alaska scenario at all. They also tried to administratively implement a statute of limitations for assertions which Alaska feels they cannot legally do. They completely disregarded over a century of state law on this particular subject, MR. SWANSON said. SENATOR LOREN LEMAN asked to clarify what state law was disregarded. MR. SWANSON answered that they were ignoring state laws in the United States and this would include territorial law. Number 500 SENATOR LEMAN asked if the personal interviews would be with people who are older. MR. SWANSON agreed. SENATOR LEMAN suggested that they proceed with this aspect, since that knowledge would die with the older Alaskans. MR. SWANSON agreed with this also and stated that the project money is now gone. REPRESENTATIVE SCOTT OGAN asked if, in reference to "defects in the federal law," meant ANILCA. MR. SWANSON replied that ANILCA has nothing to do with this; it's purely federal regulations that we have to deal with. TAPE 95-25, SIDE B Number 600 SENATOR PHILLIPS asked if a route was a horse trail previously and now it's ATV trail. He asked how that would affect the user groups. MR. SWANSON answered that was the regulations process they are involved in now, but he thought the categories would be more general rather than differentiating between horse and ATV trails. SENATOR DAVE DONLEY asked if we should be developing these trails and turn them into fundamental access roads. MR. SWANSON answered that hadn't been done at this point. Just the research had been completed. Number 550 REPRESENTATIVE JOE GREEN asked if there was any problem with not upgrading the trails until they are needed once they are identified. MR. SWANSON said he didn't know the answer to that. REPRESENTATIVE GAIL PHILLIPS clarified on the report that had been filed there was nothing concrete being worked on by the Administration. MR. SWANSON said they weren't doing any more research at the time as the project funding had ended. The Administration is working on both administrative and legal ways to get some of the routes established, he emphasized. SENATOR SHARP asked if there were more than 11 cases forwarded to the Attorney General's office. MR. SWANSON replied that it was just those 11 that had been forwarded. SENATOR SHARP asked if the rest of the 500 were ready to be forwarded. MR. SWANSON answered they were ready as far as their documentation goes. SENATOR SHARP asked what kind of criteria was involved in selecting these test cases. MR. SWANSON answered they used several faceted criteria like land ownership. They picked cases they thought were sure winners just because of the level of use. They wanted to validate just what type of construction is valid in Alaska. They didn't want one of the first test cases to be basically against the U.S. Park Service. SENATOR SHARP asked if any of them were designed to access known resource areas. MR. SWANSON answered that they were all picked to access resource areas. SENATOR SHARP asked who they anticipated would run the costs up of the assertion. MR. SWANSON answered that the main objections would come from two fronts, the federal government and private land owners. SENATOR SHARP asked if the statute of limitations was proposed in the new federal regulations. MR. SWANSON replied that was correct. He said that Congressman Hanson, from Utah, has introduced legislation that would put the burden of proof on the federal government instead of the state. It has a statute of limitations period of ten years versus two years. If the federal government doesn't do something, the trail automatically is validated. He noted that the Administration hadn't taken a stand on that legislation yet. REPRESENTATIVE GAIL PHILLIPS asked if that was the same bill Representative Hanson had to deed all the BLM land over to the individual states. MR. SWANSON said that was totally different. Number 490 REPRESENTATIVE GREEN asked if there is a statute of limitations, would Alaska be able to look at all the trails. MR. SWANSON replied that they had done the initial research that would meet the federal draft test. If they are denied, at least they would be on record. SENATOR SHARP asked when the statute of limitations runs out. MR. SWANSON replied that for the first five conservation units that were adopted, it would be July of next year. SENATOR DONLEY asked if the next year's budget request would include a component for dealing with the next steps that need to be taken. MR. SWANSON replied that the Department of Natural Resources would not have any money identified for continued RS 2477 research in next year's budget. Number 400 SENATOR DONLEY said that it didn't look like the state's interests were being protected. MR. SWANSON explained that there were two separate processes here. One is the research which they turn over to the feds and say, "Stop the clock." We think it's valid. The other is, once it's valid, how are we going to manage these things. REPRESENTATIVE GREEN asked if the state had proper documentation of the trails to validate their claims in court. MR. SWANSON answered that under current state law, they have the documentation for approximately 580 trails. The issue is which rules are going to apply. SENATOR PHILLIPS asked how the land disposal program was going right now. MR. SWANSON answered that they had gone through 3,000 brochures. Less than five percent were from out-of-state. SENATOR SHARP asked if regulations had been promulgated, and have they had any applicants for large track leasing for oil companies. MR. SWANSON said he didn't have any idea about that. An unidentified speaker said the regulations were in place, but he didn't know if there were any applications. JUNE MCATEE, Calista Corporation, said they are currently doing a joint venture with Placer Dome on Native corporation lands at Donlin Creek. Currently, the only access to this property is a cub strip which has reached capacity for flying fuel in. She is in the process of submitting permit applications for an air strip that will handle bigger aircraft. They are 12 miles from barge service and omnibus right-of-way from Crooked Creek on the Kuskokwim River to the sight. They really need surface access. She said there are other similar holdings with access difficulties. Number 325 REPRESENTATIVE GREEN asked, regarding the 12 miles she mentioned, how close would a permanent right-of-way have to be to an old trail. MS. MCATEE thought that needed to be worked out through the Department of Law. REPRESENTATIVE JAMES asked if that 12 mile access was on the list of trails they just received from the Division of Lands. MS. MCATEE said she thought it was 547. REPRESENTATIVE BRIAN PORTER asked if they were able to coordinate with DNR as far as identifying the trails. MS. MCATEE said that the didn't have to very much, because the state has very few land holdings within Calista Region. REPRESENTATIVE PORTER asked if the state's criteria was sufficient to meet their needs. MS. MCATEE answered they were o.k. for the short term. Number 275 SENATOR SHARP asked if 15 - 20 miles of all-weather pioneer road would get her to Crooked Creek. MS. MCATEE replied that it would and that it had barge and air service. SENATOR SHARP asked if the RS 2477 didn't track the most economic way to get a road from Crooked Creek to the mine, is most of that land private land? MS. MCATEE answered, "Yes." SENATOR LEMAN asked if the airstrip at Crooked Creek was along the same caliber they were proposing for the mine. She replied that it wasn't and the airport at Crooked Creek was 3,000 feet and they needed preferably 5,000 feet. SENATOR SHARP asked which she would prefer. MS. MCATEE said over the long haul, it was better to move fuel over the surface rather than by air. Number 200 SENATOR SHARP announced a short break which lasted through the end of the tape. TAPE 95-26, SIDE A Number 001 SENATOR SHARP called the meeting back to order. JULES TILESTON, Director, Division of Mining, brought a map of the major mining activities going on in the state right now. He said mineral resources have been, and will continue to be, an important element of a diversified economy in Alaska. MR. TILESTON noted that in the Schultz Case, which is the RS 2477 that is in the Ninth Circuit now, one of the issues was relocation. If you have a winter trail which is generally located in the low lands and marsh areas and you want to conduct an all-weather road, you would have to move to the uplands. This is an issue that needs to be pursued for clarification. Historically, he said, access to mineral deposits are reflected in the major portions of today's road system. Many airfields and ports reflect access to and from communities built around mineral deposits. MR. TILESTON pointed out that a recent review of the mineral industry in Alaska by a committee appointed by the Governor to look at marketing Alaska recommended that a comprehensive transportation plan include reasonable access to mineral properties using all available authorities including RS 2477 and Title 11, ANILCA. Partnerships were encouraged as a means to help mineral development in remote areas. He noted that a lot of the water bodies in Alaska are navigable, and as a result of the Alaska Statehood Act and the Submerged Land Act, they belong to the state. Once you get away from tide water and you are off of an existing transportation system, the cost of transportation suddenly becomes a controlling factor as to whether that resource is or is not economically viable, MR. TILESTON said. Illinois Creek, in the Interior, has very high value mineral property. He explained that placer gold was found in this area and now with new technology, people are beginning to look for the place that came from. So there is a recycling of interest in certain given areas. Number 275 SENATOR SHARP asked roughly how many miles of road would be needed from the Kuskokwim River. MR. TILESTON replied about 15 miles. SENATOR SHARP said he thought it would be a lot easier to deal with this issue with site specifics than to set goals that are statewide in nature. SENATOR PHILLIPS asked about Cooper Landing and the enforcement issue there. MR. TILESTON explained that at Cooper Landing there were a number of things that happened. The key event was that several years ago, land was transferred to the borough and the borough was looking at what its ultimate designs were. They got to looking at a series of mining claims which were being used for permanent homes. The Division of Mines and the borough looked at the issue and decided the level of activity taking place did not warrant a permanent residence. SENATOR PHILLIPS asked about that issue statewide. MR. TILESTON replied that he didn't have the staff, the capability, or the fortitude to take on a statewide trespass problem. They deal with the problems appropriately as they come up. An unidentified speaker asked if the Division of Mining was involved in any kind of market analysis of, for instance, steaming coal. MR. TILESTON replied that his division simply handles the legal requirements, in this case, required for the transfer of an existing set of permits within the division. Market conditions are really left up to private enterprise. Number 300 SENATOR PHILLIPS asked the status of the AJ Mine. MR. TILESTON said his understanding is that the mine is being redesigned, the company hasn't yet decided how all the components are going to link together. A joint federal/state task force has been created, because the key driving force is going to be the Environmental Protection Agency (EPA) water discharge. They are looking at a submarine tailings disposal. He is encouraged by the fact that the Kensington, a couple of weeks ago, had reached an agreement with all of the stake holders dealing with potential litigation to bring all of those issues to the table and let them be addressed. He thought that was where the AJ was trying to go. Number 325 TOM BOUTIN, Director, Division of Forestry, Department of Natural Resources, reviewed timber sales. He said the only place there is a timber sale program in Southeast is the Haines State Forest, seven million feet a year. He said they are exceeding the allowable cut in salvage sales, but that is a sustained yield technique. He briefed the committee on upcoming timber sales. He said the only place where a significant timber resource will be a long time coming is in the river system - along the Kuskokwim - but it will be decades before anyone can figure out how to access that. SENATOR PHILLIPS asked what regulations the Tetlin Indian Reservation had to comply with. MR. BOUTIN replied that they do have to comply with the Forest Practices Act and submit notifications. They need to have Title 16 permits for water crossings. They do written inspections which includes the Alaska Department of Fish and Game (ADF&G), also. They have found a few violations, but they have been easy to remedy. MR. BOUTIN said there has been a very strong export chip market for the white spruce which has worked out well since there are so many trees infested with the spruce bark beetle. SENATOR SHARP asked what method of cut would be used. MR. BOUTIN replied that they have told the Trustees of Alaska in court that they are modifying their prescriptions to account for what adjacent land owners are doing, to the extent that they can. He noted that they have found that every time the state has tried to do a seed tree cut, they have found the seed trees have died before a seed year comes along. He explained their buffer policy and added that wherever they can, they don't use the clear cut method. Number 450 REPRESENTATIVE GREEN asked if any future sales have a requirement that some or all of the timber be used in state? MR. BOUTIN answered, no; that the state had lost on this issue in the Supreme Court. He added that our congressional delegation is working to get the federal law changed that would allow some kind of an in state processing requirement. REPRESENTATIVE JAMES asked, regarding the spruce bark beetle infestation, is there any plan to take mature trees that aren't infested, yet, because that's what they eat? MR. BOUTIN answered that wherever they find regeneration trees of about two inches in diameter, they leave them. They have found that generally the beetles eat the eight inches and more diameter trees. REPRESENTATIVE JAMES asked what was the plan for reforestation in these areas. MR. BOUTIN answered that reforestation in salvage sales isn't required by the Forest Practices Act. They are dealing with private land owners and what they have to do to get an exemption from reforestation. The state is committed to reforesting all sales. Number 550 REPRESENTATIVE JAMES asked if anything could be done about the blood worm and the small trees. MR. BOUTIN said that is more of a localized epidemic. The first salvage sales of blood worm will be offered in November. TAPE 95-26, SIDE B Number 580 SENATOR ED WILLIS asked what was the status of the spruce bark beetle in the Anchorage/Eagle River Valley area. MR. BOUTIN said that it is there, and no one knows for sure why there is this epidemic at this time. REPRESENTATIVE GREEN asked if there would be merit in having timber sales in forests to get the premium quality of the timber prior to devastation. MR. BOUTIN said a lot of their Moose Pass sales were maybe just before the beetle. Currently, they don't have enough money to lay out more sales in that area. He hasn't heard a way of using timber harvest to somehow curtail the epidemic. He explained that they are using salvage sales in the Haines State Forest to contain the forest health situation. SENATOR SHARP recessed the meeting until 1:30 p.m. Number 525 SENATOR SHARP called the meeting to order at approximately 1:30 p.m. and announced that Joseph Perkins, Commissioner, Department of Transportation would testify. JOSEPH PERKINS, Commissioner, Department of Transportation and Public Facilities, said in early June, the Governor laid out a new transportation program for the state. He focused on the money we receive from the federal government that we match with approximately 9 percent. They were particularly concerned with the status of the reconstruction of the major lines of communications in the state of Alaska. They asked how much it would cost and how long it would take to do an upgrade on our major highway system - and bring the roads up to minimal standards. They defined these roads as being part of the National Highway System (NHS). COMMISSIONER PERKINS explained that the state of Alaska can't count on getting the same level of federal funding in the future and we should have the basic highway system finished before then, because it would be very hard for the state to do that. It would take about $1.2 billion and ten years to upgrade those roads to minimal standards. This also includes the Alaska Marine Highway System, because it is part of the National Highway System. They also recognize future federal appropriations may well hinge on how many miles of road we have in the National Highway System. So they requested that the Dalton Highway, 500 miles, be added to this system. With the Dalton Highway, it becomes a 12 year program and would cost about $1.4 billion. COMMISSIONER PERKINS thought that 12 years was a good number to use and he hoped that the funds lasted that long. He did not think the DOT could keep up with road design any faster than this, because on a majority of roads in this system, the most difficult construction parts are left. Number 350 The first part of the Governor's program is a commitment to use $120 million per year for 12 years for the National Highway System. There is a report containing the generalized listing of all the projects and when they are going to be upgraded with the dollar amounts. The NHS does include roads that are within cities. He asked the three regional directors from DOT which projects were most needed. There are regional roads that are not in the NHS, he said. This includes roads like the Steese past the turnoff going up to Prudhoe, the Elliott, the Taylor, and the Edgerton to name a few. DOT selected $80 million, per year, to work on these roads. To decide which roads would be built first, in case federal funding decreases, they instituted a new competitive system. Number 300 The system has about 12 factors with scores and weights and asked all the communities in the State to submit projects. DOT has finished grading all the community roads and assigned them numeric values. They graded on need, usage, whether or not the community would take over maintenance of the road, whether or not the community would come up with help on the matching funds in terms of right-of-ways, pits, etc., environmental, and safety. The $80 million figure will be spread over a three year term (a total of $240 million), because the first year may be needed for design, the second and third for construction. COMMISSIONER PERKINS explained that each regional director scored every road in the state. The three directors got together and came up with a priority list. Under community and regional roads, they also looked at any new roads in the state and these are graded in with this program. Another factor they used in grading was economic benefit. Another category they have is the Track Program which is basically an umbrella that several state programs fit under. For instance, the Off-Road Trails Program fits under the Track Program. The regional directors have not yet selected the approximately $20 million Track projects. COMMISSIONER PERKINS said that the federal transportation bill is in a conference committee. It does away with the federal speed limit and eliminates the deduction for the motorcycle helmet law. The reason this program is so important is that the highway trust fund will be up for reauthorization next year. The biggest problem is to hold our formula. We need to keep our 7 plus 1 to 1 ratio on federal funds. Number 225 REPRESENTATIVE JAMES asked what provision his program had for RS 2477. COMMISSIONER PERKINS said he would update this plan yearly. REPRESENTATIVE JAMES asked if they were going to fix roads so they stay fixed. COMMISSIONER PERKINS replied that they have tried and spent millions of dollars in research on how to build in permafrost and keep it there. They have designs that retard where permafrost is going. He thought it was a loosing battle to keep investing money into trying to solve permafrost. In his opinion, the only solution is to freeze the ground which is too costly. Instead of letting the roads deteriorate in five years, he thought we should come up with a yearly maintenance policy and accept the fact that we need to quit rebuilding. He hoped to talk about this at the national level. REPRESENTATIVE JAMES asked how he was going to address regular maintenance of roads, especially gravel roads that don't necessarily need resurfacing. COMMISSIONER PERKINS replied that the problem is that none of the money they are talking about can be spent on maintenance. He is experimenting now on the Parks Highway with chip seal over existing pavement to add up to five years of life. If the experiment is successful over a year, the feds will pay for some chip sealing. REPRESENTATIVE WILLIS asked how "AMAPS" fits into this. COMMISSIONER PERKINS explained that this fits into the NHS by those roads going through Anchorage. They are ranked in the community and regional road program as AMAPS and are given to the department. Number 500 SENATOR LEMAN asked if he had a commitment to use design resources available in the private sector or is he focusing on rebuilding the internal staff of DOT and using their design. COMMISSIONER PERKINS replied that they have the capability between project consultants and the State DOT right now of placing about $220 million worth of design and construction per year. They want to stay at about that capability. He does not want to get too many of the community and regional roads going on at the same time. They do not plan to reduce staff in Anchorage and Fairbanks, but they will shift projects. SENATOR LEMAN asked if he was working with the design community to see if they are satisfied with how DOT is allocating work. COMMISSIONER PERKINS said he had talked to them twice at the Consulting Engineer's Council. He said he was going to change some methods of how the design community submits proposals. TAPE 95-27, SIDE A Number 001 SENATOR SHARP asked what category the Denali Highway was in. COMMISSIONER PERKINS replied that it was a highway. SENATOR SHARP asked who actually gets to spend the $80 million. COMMISSIONER PERKINS said that the State DOT would do the work. SENATOR SHARP asked which trails they could build. COMMISSIONER PERKINS answered that they could only build a trail adjacent to the highway, like a bike trail, or a trail head. He said they were also going to come up with a standard for shoulders. Number 174 ATTORNEY GENERAL BRUCE BOTELHO introduced Elizabeth Barry, Chief, Natural Resources Section, Department of Law (DOL), who is working on the RS 2477 issue. He said that his department has had three roles to play - the litigation context, the legislative arena (primarily congressional), and the alternative dispute resolution. He said of the 558 routes, 11 were chosen by DNR and DOL as the most likely candidates for litigation. They have given the federal government six months notice of the suits, but have not pursued the cases further, because of the budget limitation, the agency support they would require, and pending federal legislation which could substantially change the rules of the game. He said that Ms. Barry had been working in conjunction with other western states who are also concerned with the attempt to curtail RS 2477. An unidentified person asked if the federal government agreed with us on the definition of criteria for establishing routes. ELIZABETH BARRY, Chief, Natural Resources Section, Department of Law, replied that they do not accept the basic premise that state law should control the determination and validity. Their standards are not very clear, either, at this point. Number 300 REPRESENTATIVE GREEN asked if there was anything we could do to the historic trails that would enhance our position. ATTORNEY GENERAL BOTELHO answered that we need the resources to litigate. He thought we needed to establish a state process for identifying these routes. REPRESENTATIVE GREEN asked if he knew how much deviation a route could have. MS. BARRY answered that was still an open question. Number 350 REPRESENTATIVE OGAN asked if the federal position was in violation of the statehood compact. ATTORNEY GENERAL BOTELHO answered that he believed we have a reserved right of reasonable access to state lands that are surrounded by federal lands. REPRESENTATIVE JAMES asked what are we doing to respond to federal regulations. ATTORNEY GENERAL BOTELHO answered that we had submitted testimony last year, and reaffirmed this year, that we oppose the regulations proposed by the Department of Interior. She asked about the statute of limitations. ATTORNEY GENERAL BOTELHO and MS. BARRY answered that depends on whether the federal government has taken some action that puts the state on notice and we disagree with the claim. Next summer is the twelfth anniversary of the first general management plans for conservation. These plans refer very generally to RS 2477 and contain language that could be construed either way. REPRESENTATIVE JAMES asked what was going to be their budget request to resolve this issue. ATTORNEY GENERAL BOTELHO said there wasn't a plan to deal with contingencies, like the Chulista route, in his department. He expects that the Governor will request his department to make further cuts consistent with recommendations from the Long-Range Fiscal Planning Commission and he is not expecting to add any more positions. An unidentified speaker said he thought there was a shift in priorities within DOL away from RS 2477. ATTORNEY GENERAL BOTELHO said he made reductions in all the sections that are general funded. He explained that the state is moving toward a defensive posture in all litigation, because of budget limitations, and RS 2477 is an aggressive posture. Number 400 SENATOR SHARP asked if the federal government had to be put on notice for every one of the issues. ATTORNEY GENERAL BOTELHO answered yes. He added that they are doing their best to put the federal government on notice about state views on the statute of limitations. We could also do great harm to the State by trying to file on many of them and have the feds start picking us off by our inability to put forward the kind of evidence we would win on. We could establish bad precedent as well as good. Number 500 REPRESENTATIVE JAMES said that if we don't have any economic development in this state, we won't have money for anything. Who should be responsible for getting the RS 2477 issue moving, she asked. ATTORNEY GENERAL BOTELHO suggested a good approach would be to involve a joint meeting of key members of the committees meeting now, the Governor's office, and the commissioners of the departments that have a strong interest in this issue. REPRESENTATIVE GAIL PHILLIPS, Speaker of the House, announced that she was in attendance via teleconference. REPRESENTATIVE GREEN asked if we could possibly combine resources with the other states. ATTORNEY GENERAL BOTELHO said they have already been working with other states. The difficulty is that the routes are specific and have to be litigated case by case. REPRESENTATIVE GREEN asked why they all had to be litigated on their own. ATTORNEY GENERAL BOTELHO replied that each of those routes is dependent upon a demonstration of an historic use. TAPE 95-27, SIDE B Number 580 ATTORNEY GENERAL BOTELHO said he believes the federal government is hostile toward RS 2477 and is highly motivated to fight it at every opportunity. SENATOR SHARP announced a five minute break. SENATOR SHARP called the meeting back to order and invited Warren Olson to testify. WARREN OLSON said he couldn't imagine a more important issue to Alaskans than access to lands and waters. It has to be a number one priority. Cobb Lakes Trail is one that he thought important, because one lady, Mrs. Conkel, had been dealing with the access issue there for over 30 years and has been unable to come up with a right-of-way. The public and business are the ones who are loosing dramatically if we can't have access to water ways, etc. Having access is the only way we can spread people out which will cut down on conflicts between users. He is very disappointed the Attorney General said we are going to diminish work on these cases. He is also concerned that we will lose important historical documentation from older Alaskans if we don't act on this issue now. MR. OLSON said the situation with air strips is that the National Park Service will not allow mechanical equipment in to maintain them. DALE BONDURANT said he has been involved in this issue for as long as anybody in the state. He has been back to congress three different times during Statehood, ANGSA, and ANILCA. The first issue he became involved in was access. He thought the state has been very lax in this issue going back to the Gulkana decision which gave move wealth to this state than any other decision in the Supreme Court. It put practically every piece of water in this state into navigability. He thought it was up to the state to do something about it right now. Number 375 CANDIE CARAWAY said she and her family ran a sport fishing lodge in Beluga. Their guide activities are possible through the use of a public access road locally known as the Chuitna River Crossing. In 1993, the easement which provided public access to the river by that road was locked in a transfer of land to the Tyonek Native Corporation. Little, or no, state oversight was involved in the transfer of those lands. Another parcel of land transferred in that same area effectively blocked a key stretch of the road south of Beluga. This road connects Arco's airstrip to the barge landing where they receive much of their equipment. When they lost the public access, an iron toll gate was put in. Number 500 MS. CARAWAY strongly urged the state to give priority to the access issue. She urged the legislature to give the Department of Natural Resources the funds they need to provide the oversight to make sure land transactions are done in a proper way so more premier lands are not lost to the average Alaskan. LEWIS HIDANO said he had purchased land in the Beluga area before he realized there was an access issue which has caused a hardship on his family and friends. TAPE 95-28, SIDE A Number 001 MR. HIDANO said he had used the road personally since 1979. Last year, he came up and there was a gate and he was told by the Tyonek Native Corporation that the public access was no longer there. Number 050 DENNIS TORREY said he had lived on the Chuit River for 21 years. The access road that Candie Caraway was talking about. The Tyonek Village is trying to shut him out so he has no access to the river where he has his lodge. He has two children who would have no access to school. He said that he found a legal description error before it was conveyed and showed it to Bob Lloyd, Bureau of Land Management. The right-of-way was in section 21 and it should have been in section 23. He is very upset that no one listened to him and now there are signs up saying, "No white people allowed." His daughter had to move a hundred miles away in order to get a public education. He cannot go to the village of Tyonek because he has no access. His lodge business has been shut down in June and July for the last four years, because of Tyonek. So he is on welfare and food stamps to be able to support his kids for the winter. SENATOR PHILLIPS asked if he could attend ADF&G meetings in Tyonek if he flew in? MR. TORREY answered that he couldn't, because he had to sign papers saying he would not go on any Tyonek land without written permission. He even has two half Native children. He said they kicked an ADF&G biologist, Larry Bartlett, out of the village, also. He said that his kids were beat up every time they tried to go to school in Tyonek. Number 175 REPRESENTATIVE WILLIS said there is a law about adverse possession saying that if a person uses an access for a certain number of years, he can go to court and attempt to gain legal access. He asked if this would apply in any of these cases. MR. TORREY said that wouldn't apply in his case, because it's a Native allotment and they are dealing with the federal government. TOM HARRIS, Chief Executive Officer, Tyonek Native Corporation, explained that he is not Tyonek, but is Tlingit from the Tongass Tribe. He said the Tongass National Forest was named after their tribe, because they claimed property rights. To this date, they are not recognized by either the state or the federal government. He said he is also the great-grandson of Richard Harris who discovered gold with Joe Juneau. He said the issue at hand, supposedly, is access, but in reality the issue at hand is the fifth amendment, property rights. The village of Tyonek is made up of the remnants of the village of Anchorage, Kenai, Ninilchik, Soldotna, and others that were destroyed on contact. The Tyonek Village is here today primarily because of one thing, he said, because they continue to protect their property rights. He said the road in question goes through partially Tyonek property, Tyonek Corporation property, and Native allotment. Number 350 Regarding the sign saying, "No white people allow," he said that it was signed by the Acting Director of the Bureau of Land Management along with him. The sign simply says that the ownership of the road was in the hands of Tyonek Native Corporation and nothing more. This means you need to ask permission to use it. He said they have tried very hard to act like good neighbors. Village children have been physically threatened on the south side of the river. The reason they are concerned is that in 1979, the Department of Energy said if the smallest of the coal companies started going, they would not have just Beluga for neighbors and the 150 people who live there, but they would have 1,500 people living in that area. As it happens, the largest company is the one getting ready to go. Conservative estimates place that community at somewhere between 5,000 and 7,000. The community is doing everything it can to prepare for that day. MR. HARRIS said that the Chuitna River is not the only river of access. The Theodore, the Lewis, and others can be developed. He reiterated that Tyonek is acting like a private property owner and acting within the law. Number 400 REPRESENTATIVE JAMES said her understanding of the issue is that it is an issue of a misidentified existing trail within Bureau of Land Management. She asked him if he recognized the RS 2477 as a valid establishment of right-of-way. MR. HARRIS said he couldn't answer that, at this point. An unidentified committee member asked if he knew of any policies in Tyonek for access based on race. MR. HARRIS answered, "No." He explained that he, as the CEO, is a visitor in Tyonek and even he has to ask permission to stay there. The same person asked if he knew of any other Native communities had the same policy. MR. HARRIS answered that he thought the Russian Communities on the Kenai had similar policies. He was asked if they have services provided by the state and federal government. MR. HARRIS said there are no public easements on private property. A speaker noted that there are sure a lot of public services. MR. HARRIS responded that the state of Alaska has not recognized that the Native village of Tyonek exists. The same speaker said that private property owners historically must give public access, if they want public services. That's what streets, schools, and those things do to private property. Number 400 SENATOR PHILLIPS asked if he parachuted his kids into Tyonek, could they go to that school. MR. HARRIS said he didn't have the authority to answer that. SENATOR PHILLIPS said that it was a difficult concept to grasp to exclude some people and include others in a state funded school. REPRESENTATIVE PORTER asked if the village had a constable. MR. HARRIS answered that it did and that he is ordered by the village and voluntarily reports to the state. He has no authority to arrest, only to report to the state. He is not armed. Number 525 SENATOR PHILLIPS asked if culturally there was any concept of access. There was no comment. REPRESENTATIVE JAMES stated that we would fight to keep property rights. MR. HARRIS said on behalf of Tyonek, they are working actively to develop the resources in that area - with oil, timber, and coal companies. REPRESENTATIVE JAMES thanked everyone for their participation in this meeting which, she thought, was very worthwhile. SENATOR SHARP said it was important to deal with this issue before it got a lot worse. He thanked everyone for their testimony and adjourned the meeting.