JOINT SENATE AND HOUSE TRANSPORTATION COMMITTEE February 3, 1994 4:45 p.m. SENATE MEMBERS PRESENT Senator Bert Sharp, Chairman Senator Randy Phillips, Vice Chairman Senator Georgianna Lincoln SENATE MEMBERS ABSENT Senator Tim Kelly Senator Jay Kerttula HOUSE MEMBERS PRESENT Representative Richard Foster, Chairman Representative Gary Davis, Vice Chairman Representative Curt Menard HOUSE MEMBERS ABSENT Representative Al Vezey Representative Eldon Mulder Representative Bill Hudson Representative Jerry Mackie WITNESS REGISTER Anne Plager Division of Land, Department of Natural Resources 3700 Airport Way, Fairbanks, AK 99709-4699¶451-2700 POSITION STATEMENT: testified on RS 2477 Mike Dalton, Liaison Lieutenant Governor's Office P.O. Box 110015, Juneau, AK 99811-0015¶465-3520 POSITION STATEMENT: testified on RS 2477 Rick Smith, Manager Northern Regional Office, Div. of Land, Dept. of Natural Resources 3700 Airport Way, Fairbanks AK 99709-4699¶451-2700 POSITION STATEMENT: testified on RS 2477 ACTION NARRATIVE TAPE 94-3, SIDE A CHAIRMAN SHARP calls the meeting to order and invites Ms. Plager of the Department of Natural Resources to begin the briefing. Number 001 ANNE PLAGER, Department of Natural Resources (DNR), Division of Land, states the purpose of the briefing is to bring everyone up to speed on what RS 2477 is and why it is important. RS stands for revised statute. It is part of an 1866 mining law. RS 2477 states "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." What DNR must do is document that historical use occurred, and prove that it occurred at a time when the land was unreserved public land. Unreserved public land means the federal government had never done anything with it. That means it was not set aside for a park, an oil reserve, a national forest, a native allotment, for settlement, etcetera. Ms. Plager states RS 2477 was repealed in 1976 in FLMPA (Federal Land Management Policy Act). However, it did not erase grants occurring during the time RS 2477 was in law. Those grants still exist, it is simply that no new grants can be created. Number 080 MS. PLAGER notes RS 2477 was (for all intents and purposes) repealed in Alaska in 1968 when Secretary of Interior Udall withdrew the entire state from unreserved status in anticipation of the Alaska Native Claims Settlement Act (ANCSA). Number 084 MS. PLAGER says the state must now establish rights of way under RS 2477 by showing historic use on unreserved public lands prior to 1968. It is particularly important to document and claim rights of way now because of proposed federal legislation which would curtail Alaska's ability to establish rights of way under RS 2477. That legislation is currently on hold in lieu of new regulations expected to be issued by the U.S. Department of Interior. The changes are not anticipated to be to the state's advantage. Number 125 REPRESENTATIVE FOSTER asks Ms. Plager where most of the 500 projects DNR is working on are located. Number 130 MS. PLAGER shows maps of the state indicating where the projects are located. DNR has one year to document up to 500 routes with 15 paid staff persons and two volunteers. Six staff members are student interns. The staff is divided into two groups, with one group working on the historical research, and the other group working to research land ownership. 200 of the 500 potential routes have gone through the entire process. Our goal is to have 500 routes researched and applied for under RS 2477 by the end of this fiscal year. There are upwards of 2,000 historical trails, and one of our efforts is to identify which 500 of those we should research and document. Ms. Plager adds the Department of Transportation and Public Facilities (DOT) has contributed much work to the effort in trying to identify future transportation corridors. DNR is also working closely with the minerals industry to determine which routes may be needed for minerals extraction in the future. We are working with communities to determine inter-community routes. We are not talking simply about roads, but about access. Some people are in opposition to this project because they think we will put roads on all the routes identified by the project. That is not the intent; we don't have the funding to do that, and very few of these routes will actually become roads. Number 210 MS. PLAGER states that this project is intended to preserve our access options. RS 2477 is a very powerful tool for acquiring access. The eleven trails that DNR did first were carefully selected last year and carefully researched, documented, and adjudicated. Such an inordinate amount of time was spent so that DNR could establish, in court, precedence allowing DNR to determine the criteria for the rest of the trails so DNR will not have to go to court on every single trail identified under RS 2477. Ms. Plager hands out data on the eleven trails just mentioned. DNR hopes to be in court in June to establish quiet title to the first eleven rights of way. Ms. Plager says the state is focusing on federal lands, because those are the lands for which the state has very limited access options. With private lands, the state can negotiate with landowners, offer to buy out owners, or get a prescriptive easement across their land. With the federal government, none of those things can be done. ANILCA (Alaska National Interest Lands Conservation Act) allows for the state to have Title 11 acquisitions, but Title 11 is so cumbersome, the state has never, in the fourteen years ANILCA has been in effect, been able to acquire a right of way under Title 11. For example, to build the Red Dog Road for the Red Dog Mine, Cominco and NANA found it easier to go to congress and do a land exchange than to get access under Title 11 of ANILCA. Under ANCSA, the state is supposed to be able to get access under 17(b). 17(b) easements are limited in use. They cannot be a transportation corridor. Also, they can disappear without any public recourse. For these reasons, and more, RS 2477 is a very important tool for the state. Number 285 MS. PLAGER comments DOT was working on a similar project twenty years ago. At that time, DOT documented 1,500 trails. However, they only did the historical documentation, they did not do the follow-up documentation. Unfortunately, all that is left of that work is the maps; we do not have the historical documentation. We are recreating that documentation. We are being careful to save the research we are doing. Number 308 CHAIRMAN SHARP asks Ms. Plager if there is any indication on the first eleven trails what the federal government's options are for objecting to the state's claims under RS 2477. Ms. Plager responds the state may be in court on a few of the trails or on all of the trails, or the federal government might simply give the state quiet title. Number 316 REPRESENTATIVE FOSTER asks Ms. Plager who pays the court costs for the litigation. Ms. Plager replies the Attorney General's Office will be handling the court cases. Representative Foster asks if DNR will need additional funds to continue their work. Number 330 MIKE DALTON, Liaison, Lieutenant Governor's Office, responds that DNR has requested some additional funding to complete the project, but the cost of litigation is up to the administration of the State of Alaska. DNR is simply preparing the case files and handing them over to the AG's office. Number 345 REPRESENTATIVE FOSTER thanks Ms. Dalton for her presentation before the federal commission on land areas. Representative Foster asks Ms. Plager what the time table is for getting rights of ways asserted. Number 347 MS. PLAGER replies the projects being researched now will be finished by the end of the fiscal year. She hopes people will come forward with comments on which projects they believe are important. Number 352 SENATOR LINCOLN asks Ms. Plager if she has an estimate regarding how long litigation will take. Ms. Plager responds she cannot make an estimate regarding how long litigation might take. Senator Lincoln also asks what relationship DNR has established with the regional and village native corporations. Ms. Plager replies that DNR has communicated with any corporations affected by work done on the first eleven trails. Number 385 SENATOR LINCOLN comments six or seven of the first eleven projects are in her district and she does not recall being notified of them. Ms. Plager responds that notice regarding the first eleven projects was sent to all the village and regional native corporations affected by the projects, in addition to all municipalities, all identifiable landowners, and the coastal districts affected by the projects. They also put adds in newspapers throughout the state. The only item sent to Senator Lincoln's office so far is a newsletter on the project which was sent out several weeks ago. Senator Lincoln advises Ms. Plager to make all notification to village and regional native corporations in writing. Ms. Plager affirms that all notification has been done in writing. Number 400 RICK SMITH, Northern Regional Manager, Division of Land, DNR, says that research has been conducted on 200 of the 500 trails so far, but that a public comment period hasn't yet begun, which is one of the main reasons for this hearing: when the public comment period begins, you will probably hear from some constituents about the project. Number 410 REPRESENTATIVE FOSTER notes for Senator Lincoln that he sits on both the village and regional native corporations in Nome, and that the land managers for both of the corporations have been real keen on the subject and have received all the correspondence and have been keeping close track of the project. He thanks Ms. Plager for keeping in communication with the native corporations. Number 420 REPRESENTATIVE MENARD asks Ms. Plager to define the time period DNR has to work within, what the term "assert the trail" means, and how the public process is being tied into the project. Number 430 MS. PLAGER says there is no requirement for a public process to establish an RS 2477. However, DNR does intend to at least let people know the result of the department's research. DNR does solicit input that could either corroborate or refute the conclusion of the research. DNR spent a lot of time researching the first eleven trails to try to make them "court proof", or able to stand up to scrutiny in court, but will only be able to spend one person's day researching the trail, and one person's day researching land ownership. Asserting the trail means we intend to acquire quiet title to these trails in federal court. For private landowners, we may or may not ever need to carry the case in to court. We may or may not ever need to serve them notice that we want to assert right of way across their property. RS 2477 can be used as a tool for negotiation and discussion, it will not always be necessary to go to court. The goal is to wrap the project up by June 30, 1994 and leave it in a form that could be picked up at any point in time or put to bed forever. Ms. Plager shows the committee a time line and explains it to the committee. Number 500 REPRESENTATIVE MENARD asks Ms. Plager if it is Title 11 in ANILCA which deals with rights of way on native lands. Ms. Plager responds Title 11 does not deal with rights of way on native lands, but rights of way on federal lands. Number 510 CHAIRMAN SHARP asks if when DNR is ready to assert quiet title to rights of way under RS 2477, they send the project to the Attorney General's Office, who then picks and chooses which one they will adjudicate or send notice to the federal government. Ms. Plager replies DNR will keep the files on the RS 2477's and will have warning before new federal regulations go in to effect. Chairman Sharp asks what the advantage is of waiting until the new regulations are set up before asserting rights of way. Number 525 MS. PLAGER says she will be ready by next month to assert rights of way to 200 trails, but has been asked by the Attorney General's Office to wait. They are not confident that DNR should proceed without the new regulations in place. Chairman Sharp says he does not expect any favors from the federal government's new regulations and has a problem with waiting. Number 532 REPRESENTATIVE DAVIS asks Ms. Plager if the interns are paid for their work on the RS 2477's. Ms. Plager responds that they are paid internships. Number 538 REPRESENTATIVE FOSTER asks how hostile the opposing agencies might be and how they might fight the assertions of rights of way in court. Number 540 MIKE DALTON replies one should look at what happened in Denali National Park and ANILCA for examples of what will happen. She believes there will be a lot of opposition. Number 545 REPRESENTATIVE DAVIS asks if there are any court cases from other states that could be utilized as an example of what is used to determine historical rights. Number 550 MS. PLAGER responds there is a large body of court cases to refer to, not all of which agree with one another. She also adds that the environmental community is adamantly opposed to the work DNR is doing on RS 2477 rights of ways. They have promised in no uncertain terms to see the DNR in court over the issue. Number 560 SENATOR LINCOLN asks how the eleven initial trails were chosen. Ms. Plager responds the selection of the first eleven trails occurred before the current project was even funded. These trails were selected over a year ago by the staff of the governor and lieutenant governor, John Katz, and DOT and DNR commissioners because these eleven trails contained all the possible combinations one might come up with for subsequent trail assertions. These trails were also chosen for their current need by user groups. Number 568 SENATOR LINCOLN asks if ISTEA (Intermodal Surface Transportation Efficiency Act) criteria had any bearing on which trails were chosen for the first group of eleven. Ms. Plager replies they are looking into all trails in which DOT indicates a high priority interest. DNR has also made future state identified transportation corridors a high priority. Number 585 CHAIRMAN SHARP thanks all the participants and asks that DNR keep the legislature updated. The chairman adjourns the meeting at 5:35 p.m.