Legislature(2017 - 2018)GRUENBERG 120

04/06/2018 01:00 PM House JUDICIARY

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          HJR 38-AK RAILROAD TRANSFER ACT; CONVEYANCES                                                                      
1:15:43 PM                                                                                                                    
CHAIR CLAMAN announced  that the next order of  business would be                                                               
HOUSE JOINT  RESOLUTION NO. 38,  Relating to  certain conveyances                                                               
to  the Alaska  Railroad  Corporation under  the Alaska  Railroad                                                               
Transfer Act of 1982.                                                                                                           
1:16:34 PM                                                                                                                    
REPRESENTATIVE  KOPP presented  PowerPoint, "HJR  38 -  Restoring                                                               
Property  Rights," and  described HJR  38 as  the most  important                                                               
piece of property rights legislation  this session.  It is within                                                               
this legislature's  purview to  weigh in  on this  matter because                                                               
the  Alaska Railroad  Corporation  is an  instrumentality of  the                                                               
state  and properly  subject to  the legislature's  oversight and                                                               
REPRESENTATIVE KOPP  turned to slide  2, "Purpose"  and explained                                                               
that  this  resolution  is targeted  at  recent  Alaska  Railroad                                                               
claims to an  exclusive use easement conveyed over  more than 200                                                               
homestead patents.   Except,  he pointed  out, the  United States                                                               
did not  conclusively hold that  interest in the  right-of-way at                                                               
the  time of  the transfer  from  federal to  state ownership  in                                                               
1983.  By  way of background history, he offered  that the Alaska                                                               
Railroad Act  of 1914 put  the standard railroad  easement across                                                               
the nearly  500 miles of track  in Alaska, and that  the railroad                                                               
easement is  for rail, telegraph and  telephone, and above-ground                                                               
co-located utilities.  This, he explained, was the initial re-                                                                  
reserved  limited   interest  easement.    Today,   this  limited                                                               
interest  right-of-way  easement   provides  the  foundation  for                                                               
approximately  80  percent  of all  railroad  tracks  in  America                                                               
because  the 1875  United States  Congress  stopped allowing  fee                                                               
simple  interest   ownership  in  rights-of-way   for  railroads.                                                               
Initially, he  explained, the fee  simple interest  ownership was                                                               
to  incentivize the  East/West route  across  the United  States.                                                               
Except,  he  advised,  legislative   history  revealed  the  many                                                               
problems with  railroads charging  outrageous fees,  and blocking                                                               
landowners from  accessing a  crossing to get  to the  other side                                                               
with regard to  ranchers and then later with  homesteaders as the                                                               
country expanded West.   That denial of shared use  of the right-                                                               
of-way,  in any  capacity,  lead to  the  United States  Congress                                                               
decision to  stop offering  fee simple  interest ownership.   The                                                               
General  Railroad Act  of 1875  provided for  a surface  easement                                                               
only,  an   easement  across  another  person's   property.    He                                                               
explained  that this  Act was  relied upon  by the  United States                                                               
Interior Board of  Land Appeals in 1982 when  Alaska was properly                                                               
making  its  statehood land  claims  under  the Alaska  Statehood                                                               
Compact [(72 Stat.  339) Public Law 85-508, 85th  Congress, H. R.                                                               
7999,  July 7,  1958].   The State  of Alaska  made claim  to the                                                               
rights-of-way along  the railroad tracks, and  the railroad said,                                                               
"You can't  select this,  this has  already been  appropriated or                                                               
reserved to us, we own it, state, you can't select it."                                                                         
1:19:50 PM                                                                                                                    
REPRESENTATIVE KOPP  referred to  the "House Joint  Resolution 38                                                               
Meeting Packet" booklet and its yellow  tab, and noted that it is                                                               
the Interior  Board of Land  Appels 81-426 ruling.   He explained                                                               
that  the  ruling on  this  case  went  directly to  the  General                                                               
Railroad Right-of-Way  Act of 1875,  showing how it  was directly                                                               
connected to the 1914 Alaska  Railroad Act.  The General Railroad                                                               
Right-of-Way Act of  March 3, 1875, granting  a similar right-of-                                                               
way for railroad  across public lands outside of  Alaska has been                                                               
held to convey only an easement  and not a fee simple interest in                                                               
the land.  The Interior Board  of Land Appeals (IBLA) relied upon                                                               
the 1875  case telling the  railroad that it  did not have  a fee                                                               
simple  interest; therefore,  the state  could select  the Alaska                                                               
Railroad right-of-way  in its statehood lands  selection, and the                                                               
railroad lost the  case.  Thereby, Alaska was able  to make those                                                               
statehood  land selections  because the  law was  clear that  the                                                               
railroad did  not have fee  simple interest in  the right-of-way,                                                               
it  had  surface  easement  only.    He  paraphrased  the  IBLA's                                                               
decision as follows:                                                                                                            
          These  cases decided  under other  railroad right-                                                                    
     of-way statutes persuade us that  the lands embraced in                                                                    
     the appellant's  right-of-way should not  be considered                                                                    
     to be  appropriated or  reserved at  the time  of State                                                                    
     selection  so  has  to  be  excluded  therefrom.    The                                                                    
     decision  correctly   held  that  a   right-of-way  for                                                                    
     railroad  shall  be  reserved in  any  State  selection                                                                    
     patent issued.                                                                                                             
          Accordingly, pursuant  to the  authority delegated                                                                    
     to the  Board of Land  Appeals by the Secretary  of the                                                                    
     Tnteiim,  43 CFR  4.1, the  decision  appealed from  is                                                                    
REPRESENTATIVE  KOPP advised  that  the state  was  able to  make                                                               
those  selections of  state land  and reserve  the 1914  standard                                                               
1:20:55 PM                                                                                                                    
REPRESENTATIVE KOPP  turned to  slide 3,  "What's the  Harm?" and                                                               
answered that  hundreds of landowners  along the  Alaska Railroad                                                               
Corporation's  right-of-way   have  had  their   property  rights                                                               
confiscated and  a cloud put  on their  title of land  through an                                                               
unlawful "exclusive use" easement  claim that the Alaska Railroad                                                               
makes to  the entire  right-of-way.  On  that point,  he advised,                                                               
the entire right-of-way is over  470 miles of track, and hundreds                                                               
of miles of  that right-of-way have gone  into private ownership,                                                               
from 1914 through  1983, when it was transferred to  the State of                                                               
Alaska.  Therefore, everyone with  a homestead patent during that                                                               
period of  time are  the people who  had received  their 160-acre                                                               
Homestead  Patent from  the federal  government, and  they had  a                                                               
"Federal  Patent,"  a   deed  to  the  land   where  the  federal                                                               
government   totally  divested   themselves   of  ownership,   he                                                               
explained.   (Indisc.)  the federal  government never  claimed or                                                               
exercised  an exclusive  use easement  on  that private  property                                                               
because  it was  considered  (indisc.) right-of-way,  and no  one                                                               
disputed   that   the   underlying  landowner   was   still   the                                                               
REPRESENTATIVE KOPP related that that  claim to the entire right-                                                               
of-way brings HJR 38 before this  body because some of the issues                                                               
that drove that  claim were highlighted on page 8  of the 4/25/14                                                               
letter  to  John Pletcher  from  Andy  Behrend, Senior  Attorney,                                                               
Alaska  Railroad  Corporation.    He paraphrased  the  letter  as                                                               
follows:    "Regardless  of what  ...  the  federal  government's                                                               
interest   is  in   the  right-of-way,   the  obligation   exists                                                               
regardless  of what  the  United  States owned  at  the time,  to                                                               
transfer this exclusive use easement to the entire right-of-                                                                    
way."  He  said (indisc.).  Representative Kopp  pointed out that                                                               
the Alaska Railroad's  attorney advised, "We don't  care what the                                                               
federal  government   owned,  they  could  still   transfer  this                                                               
interest to  the state even  if they didn't  own it."   Also, the                                                               
railroad  (indisc.) outright  ownership  to the  entire strip  of                                                               
land  for all  470 miles  of the  right-of-way, he  offered. This                                                               
assertion must be squared under  Marvin Brandt Revocable Trust v.                                                             
United  States, 572  U.S. ___  (2014), decision  when the  United                                                             
State  Supreme  Court  reaffirmed  that  railroads  have  surface                                                               
easements  only, and  when those  easements are  no longer  being                                                               
used,  they  revert  to  the  underlying  landowner.    When  the                                                               
railroad stopped using  that easement, it reverted  to the Marvin                                                               
Brandt  Revocable Trust  and, he  commented, the  Alaska Railroad                                                               
will advise there is no connection.                                                                                             
1:24:46 PM                                                                                                                    
REPRESENTATIVE KOPP,  in response  to Chair Claman,  advised that                                                               
the yellow tab was the 1982  IBLA case, and the 4/25/14 letter to                                                               
John  Pletcher   from  Andy  Behrend,  Senior   Attorney,  Alaska                                                               
Railroad Corporation is contained within the committee packet.                                                                  
1:25:28 PM                                                                                                                    
REPRESENTATIVE KOPP advised  that the second point on  slide 3 is                                                               
that HJR 38  addresses a violation of state statute  such that in                                                               
2005  and   2006,  the  Alaska  Railroad   circumvented  required                                                               
legislative  approval  by  apply  for, and  receiving  from,  the                                                               
United  States  Department  of   the  Interior,  Bureau  of  Land                                                               
Management  land  patents  within  a  municipality,  specifically                                                               
Anchorage.    These  land  patents  overlaid  original  homestead                                                               
federal land  patents that  go all  the way  through the  core of                                                               
Anchorage, and run  all the way up  through the Matanuska-Susitna                                                               
Valley toward Talkeetna, and continuing  on, he said.  The Alaska                                                               
Railroad's  position  is  that  it   did  not  have  to  ask  the                                                               
legislature for this  because the exclusive use  easement was the                                                               
federal governments to give to  the railroad.  Except, he pointed                                                               
out, the  Alaska Railroad  is accountable to  state law,  and the                                                               
state  said that  the  Alaska  Railroad is  required  to ask  the                                                               
legislature  before  it  can  accept or  receive  such  a  grant.                                                               
Further,  he  said,  the  law  is clear  that  an  exclusive  use                                                               
easement was  never contemplated in the  Alaska Railroad Transfer                                                               
Act to be  considered across all 470 miles of  track.  He related                                                               
that it was  only in areas where the  federal government actually                                                               
owns such  an easement, such as  the Denali Borough and  in areas                                                               
where  federal land  is among  contested Native  Corporation Land                                                               
1:26:50 PM                                                                                                                    
REPRESENTATIVE KOPP  turned to  slides 4-6,  titled "What  HJR 38                                                               
Does,"  and  advised  that the  resolution  provides  legislative                                                               
approval  for the  Alaska Railroad  or the  governor to  disclaim                                                               
unlawfully acquired  property by the state.   Representative Kopp                                                               
explained as follows:                                                                                                           
     Disclaim  means,  we're   not  touching  that  property                                                                    
     interest  because  we consider  it  a  hot interest,  a                                                                    
     possibly stolen interest.   And so, we --  we walk away                                                                    
     from that because we do  not want to incur liability to                                                                    
     the state by making a  property interest claim that the                                                                    
     state does not lawfully have.                                                                                              
REPRESENTATIVE  KOPP  explained  that   HJR  38  directs  that  a                                                               
property interest was not available  to the Alaska Railroad under                                                               
federal law and  ownership, and it certainly is  not available to                                                               
the Alaska Railroad now.                                                                                                        
REPRESENTATIVE KOPP  noted that HJR  38 also calls  upon Alaska's                                                               
congressional delegation to help resolve claims to the right-of-                                                                
way  as a  result of  the misapplication  of the  Alaska Railroad                                                               
Transfer  Act.    He  pointed  out  that  Alaska's  congressional                                                               
delegation has  been helpful and  responsive as a result  of this                                                               
1:27:54 PM                                                                                                                    
REPRESENTATIVE KOPP  turned to  slides 7-9,  titled "HJR  38 Does                                                               
Not," and  advised that  it does not  remove the  Alaska Railroad                                                               
Corporation's  ability and  duty to  police and  keep tracks  and                                                               
rights-of-way safe, affect  its speeds, as so forth.   He advised                                                               
that the  Alaska Railroad  "put out  a narrative"  and encouraged                                                               
people  to say  that if  HJR 38  passes, it  will have  to reduce                                                               
speeds  and   will  possibly   not  meet   schedule  commitments.                                                               
Representative Kopp  stressed that nothing could  be further from                                                               
the  truth, the  Alaska  Railroad has  operated  with a  standard                                                               
railroad  easement.   Under the  Memorandum  of Understanding  in                                                               
1983,  Governor  Jay  Hammond   signed  that  the  1914  Standard                                                               
Railroad  easement   would  be   the  easement  for   all  future                                                               
expansions of the railroad.   He offered that the Alaska Railroad                                                               
has been  moving jet fuel  and all manner of  hazardous materials                                                               
under  that right-of-way  easement.   Eighty percent  of railroad                                                               
tracks in America  operate under the same easement  and only pre-                                                               
1987 railroads have fee simple  titles.  Almost every operational                                                               
railroad today  does not  have an  exclusive use  easement, "none                                                               
that I know  of."  Secondly, HJR 38 does  not affect any lawfully                                                               
obtained property  of the Alaska Railroad  Corporation, including                                                               
any  right,  title, or  interest  passed  from federal  to  state                                                               
ownership  in   1983.  This  resolution   does  not   impact  the                                                               
railroad's  ability  to  profit  or  impact  its  economic  model                                                               
because  he  does want  the  Alaska  Railroad to  be  successful,                                                               
except it will tell the committee that  it must run a train at 20                                                               
mph across  100 miles  of homestead land  due to  the possibility                                                               
that  something might  happen.   Currently, he  said, the  Alaska                                                               
Railroad  has,  and  always  has  had,  full  authority  to  stop                                                               
anything in the right-of-way that  is dangerous.  This resolution                                                               
will  not affect  its  ability  to obtain  an  injunction on  any                                                               
interfering  or competing  use  of the  right-of-way,  as it  has                                                               
always done since 1923 when the Alaska Railroad was completed.                                                                  
1:30:03 PM                                                                                                                    
REPRESENTATIVE  KOPP  turned to  slides  10-11,  titled "A  Brief                                                               
History,"  regarding the  1914 Alaska  Railroad Act,  and advised                                                               
that  the  federal  government  owned  and  operated  the  Alaska                                                               
Railroad and some  of the land over which  the railroad operated.                                                               
However,  he  noted,  much   railroad  right-of-way  passed  into                                                               
private  hands that  was in  non-federal  ownership because  many                                                               
Alaskans  received   homestead  patents.    When   those  patents                                                               
included  land crossed  by the  railroad, the  federal government                                                               
still  transferred ownership  of  the land  to  the citizen,  but                                                               
reserved  for  itself a  specific  property  interest called  the                                                               
"right-of-way" so  it could use  100 feet  on either side  of the                                                               
centerline of  the railroad to  operate the railroad, as  well as                                                               
telegraph  and telephone  lines.   The 1914  Alaska Railroad  Act                                                               
gave the  railroad a right  to use the  land owned by  others, as                                                               
identified  in each  federal patent,  but it  did not  transfer a                                                               
right to own and control a  property in a manner unrelated to the                                                               
patent reservation.                                                                                                             
1:31:00 PM                                                                                                                    
REPRESENTATIVE  KOPP turned  to slide  12, and  advised that  the                                                               
federal  government cannot  transfer a  property interest  to the                                                               
State of  Alaska if it never  owned the property interest  in the                                                               
first place.                                                                                                                    
REPRESENTATIVE KOPP  turned to slides  13-15, and advised  that a                                                               
standard railroad  easement is not  fee simple ownership  of land                                                               
or necessarily  the right  to exclusivity, it  is an  interest in                                                               
land owned  by other people.   The standard railroad  easement is                                                               
usually limited  in the extent of  occupancy and use, and  it can                                                               
involve a general or specific portion  of the property.  This, he                                                               
explained, was  the limited interest  the United  States Congress                                                               
allowed all railroads to have  after 1875.  The "rail properties"                                                               
granted  to  the  state  include  only  the  "right,  title,  and                                                               
interest" which  belonged to  the United States  in 1983.   Other                                                               
than  within the  Denali  Borough,  and on  a  few other  federal                                                               
parcels  of land,  there was  no  outright exclusive  use in  the                                                               
Alaska Railroad  Transfer Act (ARTA)  related to other  areas, it                                                               
was  only where  the federal  government actually  possessed that                                                               
1:31:56 PM                                                                                                                    
REPRESENTATIVE  KOPP explained  that the  exclusive use  easement                                                               
discussion allows the holder to  exclude all others, including to                                                               
fence and bar off any other user  of the land whether or not that                                                               
use is a  safety issue.  He reiterated that  there is no question                                                               
the Alaska Railroad did have  an exclusive use in Denali National                                                               
Park  and Preserve  and  in areas  subject  to unresolved  Native                                                               
claims because the  federal government owned that  property.  Due                                                               
to a fundamental mis-reading of  ARTA, the Alaska Railroad claims                                                               
that at  least an exclusive use  easement must be granted  to the                                                               
state in the entire right-of-way  "regardless of what the federal                                                               
interest was  in the right-of-way  over private  property," which                                                               
was stated  in the letter  to Mr. Pletcher.   Representative Kopp                                                               
stated that  no credible argument  can be made that  an exclusive                                                               
use easement belongs to the  Alaska Railroad without establishing                                                               
what  the private  parties and  the  federal government  actually                                                               
owned in  1983.  He  pointed out  that in 1996,  Phyllis Johnson,                                                               
legal counsel  for the Alaska  Railroad said, and  he paraphrased                                                               
as  follows: "We,  the  railroad,  might not  have  owned all  we                                                               
thought we had  owned, and that we have to  do a parcel-by-parcel                                                               
search to  know what the  property interests were before  we came                                                               
along."   Except, something  took place  after 1996,  wherein the                                                               
Alaska  Railroad's current  legal  counsel moved  away from  that                                                               
statement because it  is easier to claim  that a parcel-by-parcel                                                               
research is not necessary, that  an entire exclusive use easement                                                               
was  given to  the "right-of-way"  even  if it  cannot be  proved                                                               
through our  title recording system.   While, he pointed  out, it                                                               
may  be easy  for  the  railroad, it  is  wholly  foisted on  the                                                               
state's innocent property owners along  the track, and that claim                                                               
was made  without notice or  recourse for the property  owners to                                                               
contest otherwise.                                                                                                              
1:33:58 PM                                                                                                                    
REPRESENTATIVE  KOPP  turned  to  slides  16-18,  which  read  as                                                               
          BE IT  RESOLVED that the Alaska  State Legislature                                                                    
     believes, as  it pertains to privately  held properties                                                                    
     in the state that contain  or are required to contain a                                                                    
     reservation  for the  purposes  set out  in the  Alaska                                                                    
     Railroad Act,  all conveyances  to the  Alaska Railroad                                                                    
     Corporation under  the Alaska Railroad Transfer  Act of                                                                    
     1982   that  purport   to   convey  an   "exclusive-use                                                                    
     easement"  as defined  in 45  U.S.C. 1202(6),  in which                                                                    
     associated  rights,  titles,   or  interests  were  not                                                                    
     conclusively  owned by  the federal  government at  the                                                                    
     time of the transfer, are contrary to law; and be it                                                                       
          FURTHER   RESOLVED    that   the    Alaska   State                                                                    
     Legislature   believes  that   any  right,   title,  or                                                                    
     interest   not  conclusively   owned  by   the  federal                                                                    
     government at the time of  the Alaska Railroad Transfer                                                                    
     Act  of  1982  that  was erroneously  conveyed  to  the                                                                    
     Alaska Railroad  Corporation, and certain  interests in                                                                    
     land  conveyed  to   the  Alaska  Railroad  Corporation                                                                    
     without  the  legislative  approval required  under  AS                                                                    
     42.40.285,  should be  disclaimed as  a matter  of law;                                                                    
     and be it                                                                                                                  
          FURTHER   RESOLVED    that   the    Alaska   State                                                                    
     Legislature urges the Alaska  delegation in Congress to                                                                    
     recognize  the views  of the  Alaska State  Legislature                                                                    
     expressed in  this resolution  and to  take appropriate                                                                    
     action  to encourage  the recognition  of validly  held                                                                    
     private property  rights that  were not  conveyed under                                                                    
     the Alaska Railroad Transfer Act of 1982.                                                                                  
1:34:52 PM                                                                                                                    
REPRESENTATIVE KOPP 19  turned to slide 19, and  advised that the                                                               
supporters of this resolution are not limited to the following:                                                                 
     Adventure 60 North,  Seward; Municipality of Anchorage;                                                                    
     Alaska Association  of Realtors;  Anchorage Association                                                                    
     of Realtors;  The Bradley Company  Construction; Dimond                                                                    
     Center;  Flying  Crown Homeowners  Association;  Lynden                                                                    
     Air   Cargo;  National   Association  of   Reversionary                                                                    
     Property   Owners;  Old   Seward  Oceanview   Community                                                                    
     Council;  South  Anchorage  Red  Robin;  Taku  Campbell                                                                    
     Community   Council;   Talkeetna  Historical   Society;                                                                    
     Tantikil Unlimited   Land  and Resource Management; and                                                                    
     countless  private property  owners along  the Railroad                                                                    
1:35:23 PM                                                                                                                    
REPRESENTATIVE  KOPP turned  to slides  20-22, titled,  "Property                                                               
Owners  Speak Out,"  and advised  that the  property owners  have                                                               
been denied access  to their properties and this issue  has put a                                                               
cloud  on their  titles.   In 2005  and 2006,  the United  States                                                               
Department of the Interior land  patents were issued "over on top                                                               
of"  federal  homestead  patents   without  notification  to  the                                                               
landowners.  The  property owners began to realize  that in 2012,                                                               
the residential  right-of-way use  permits were being  rolled out                                                               
to bite  down on the  exclusive use  claim.  The  property owners                                                               
further realized that  they, in fact, had a  land patent overlaid                                                               
on their  homestead patent.   He asked  the committee  to imagine                                                               
having a land  patent for 50-years and suddenly  a federal patent                                                               
is overlaid  on your land  patent making  a claim that  was never                                                               
previously issued.                                                                                                              
1:36:35 PM                                                                                                                    
ERICK CORDERO  GIOGANA, Staff, Representative Chuck  Kopp, Alaska                                                               
State  Legislature, stated  that (indisc.)  contains a  sample of                                                               
homestead  patents and  a  current  (indisc.) on  top  of it  for                                                               
1:37:21 PM                                                                                                                    
REPRESENTATIVE STUTES asked  who pays the property  taxes on this                                                               
REPRESENTATIVE  KOPP answered  that  she would  have  to ask  the                                                               
Alaska  Railroad because  he  was unsure.    In South  Anchorage,                                                               
specifically the Ocean  View neighborhood, that issue  has been a                                                               
point  of contention  because the  size of  the lot  includes the                                                               
right-of-way,  he  said.   Whether  that  right-of-way should  be                                                               
taxed is a  separate issue, but it has been  pointed out that the                                                               
lot size "goes over into the right-of-way," he offered.                                                                         
1:38:05 PM                                                                                                                    
REPRESENTATIVE  STUTES  surmised  that  currently  the  (indisc.)                                                               
property tax on that right-of-way.                                                                                              
REPRESENTATIVE  KOPP responded  that (indisc.)  does go  into the                                                               
right-of-way where they are being assessed value.                                                                               
1:38:35 PM                                                                                                                    
CHAIR CLAMAN opened invited testimony on HJR 38.                                                                                
1:39:16 PM                                                                                                                    
WILLIAM  O'LEARY,   President/Chief  Executive   Officer,  Alaska                                                               
Railroad Corporation,  advised that he represents  600 employees,                                                               
numerous customers, and 500,000  passengers carried every year by                                                               
the  Alaska Railroad.    On  their behalf,  he  said  that he  is                                                               
speaking in opposition  to HJR 38, and that  the numerous reasons                                                               
for  this opposition  fall into  two primary  categories, safety,                                                               
and  legal  issues.    He   said  he  would  explain  why  safety                                                               
necessitates that  the Alaska Railroad  have that  exclusivity in                                                               
the  right-of-way,  and  the  impacts to  the  railroad  and  its                                                               
customers should it not have  that exclusive use of the right-of-                                                               
way.   He  commented  that as  was noted  in  past discussion  by                                                               
members of  the House Judiciary  Standing Committee,  House State                                                               
Affairs  Standing  Committee,  and   by  several  member  of  the                                                               
Anchorage Assembly  recently, this  is an  issue that  belongs in                                                               
court.   When reasonable people  disagree about the nuances  of a                                                               
law, the decision of  that law should be made in  a court of law.                                                               
Simply  put, he  offered,  safety is  the  Alaska Railroad's  top                                                               
priority, (indisc.)  safety as seriously  as it should,  and that                                                               
the  number  of  fatalities  (indisc.)  YouTube  videos  shot  on                                                               
railroad tracks  every day and  year bears out the  safety issue.                                                               
Each year,  almost 500  people are killed  in this  country while                                                               
trespassing  on railroad  property,  time and  time again  people                                                               
vastly  underestimate the  danger to  themselves and  others when                                                               
trespassing  on railroad  rights-of-way,  drive  around gates  at                                                               
crossings,  or put  structures in  the  rights-of-way.   Fourteen                                                               
people have been killed trespassing  on the Alaska Railroad since                                                               
its transfer  in 1985,  including a  23-year old  woman (indisc.)                                                               
since  the last  hearing  on this  resolution,  and every  single                                                               
death was avoidable.                                                                                                            
1:41:58 PM                                                                                                                    
MR.  O'LEARY  remarked that  loss  of  exclusive control  of  the                                                               
right-of-way  could  be  detrimental  to  the  operation  of  the                                                               
railroad, its  customers, passengers, business partners,  and the                                                               
people  of Alaska  who  are  the ultimate  owners  of the  Alaska                                                               
Railroad.  As it is  currently, (indisc.) the railroad can assume                                                               
control  in  all  areas  of  its  right-of-way  and  assumes  its                                                               
professionally  trained   security  personnel,   track  managers,                                                               
maintenance crews, on-board personnel, to  name a few, are making                                                               
certain  the  tracks  and  right-of-way   are  clear,  safe,  and                                                               
operational.     The  Alaska  Railroad   has  full   control  and                                                               
discretion to remove anything and  everything that poses a safety                                                               
hazard to  its operations, yet  in the event the  right-of-way is                                                               
turned into a  checkerboard of control from  Seward to Fairbanks,                                                               
the safety assumption cannot be  made and it may become necessary                                                               
to  reduce  track speeds  in  the  areas without  the  railroad's                                                               
complete control, he  related.  In the event there  is one parcel                                                               
of  land that  is not  under the  control of  the railroad  along                                                               
miles of  the long  stretches of track,  the Alaska  Railroad may                                                               
have to reduce speeds along  that entire stretch, thereby, making                                                               
it impossible to meet its  commitments, get passengers or freight                                                               
to  wherever  they  are  traveling in  a  timely  and  economical                                                               
manner.   This resolution  also brings up  the question,  who can                                                               
control  what  goes  in  the  right-of-way,  can  the  railroad's                                                               
neighbors store junked cars leaking  oil, which has happened, can                                                               
they  plow snow  berms so  the people  approaching or  stopped at                                                               
railroad crossings  can't see an  oncoming train, can  they store                                                               
hazardous materials  on the right-of-way,  remove a swing  set 30                                                               
feet from  the tracks,  or the  railroad remove  it if  the party                                                               
refuses, he asked.  The Alaska  Railroad's train cars are 80 feet                                                               
long and  in a case  of derailment,  having a 100-foot  buffer on                                                               
each  side of  the  track is  critical.   He  commented that  the                                                               
Alaska  Railroad has  had to  take  its neighbors  to court  when                                                               
performing something that is unsafe.                                                                                            
1:43:54 PM                                                                                                                    
MR. O'LEARY  posed the  question of what  is actually  allowed in                                                               
the  right-of-way,   and  offered  that  the   Alaska  Railroad's                                                               
neighbors may  disagree with a  public trail being in  the right-                                                               
of-way,  such  as the  Coastal  Trail.    The railroad  has  been                                                               
working  with   the  Municipality  of  Anchorage   and  Turnagain                                                               
Community  Council regarding  the  Fish Creek  Trail.   He  asked                                                               
whether  "they  can  stop"  a community  from  building  a  trail                                                               
specifically  allowed  for  in  state law,  or  a  gas  pipeline,                                                               
electric line,  highway, or street  that might use  the right-of-                                                               
way, can  they demand outrageous  (indisc.) small section  of the                                                               
right-of-way, he  asked.   This ambiguity  could tie  up projects                                                               
for  years,  decades,  or  even   kill  them  altogether  due  to                                                               
questions  of ownership.    He related  that  HJR 38  incorrectly                                                               
describes  the rights  held  by the  federal  government and  the                                                               
Alaska  Railroad  right-of-way;  it mis-interprets  the  property                                                               
rights that  the federal government  transferred to the  State of                                                               
Alaska and the court cases  regarding railroad rights-of-way.  He                                                               
reiterated that  this is  an issue  for the  courts to  decide in                                                               
order  to  determine the  legal  answer,  and he  encouraged  the                                                               
committee to not support HJR 38.                                                                                                
1:45:09 PM                                                                                                                    
REPRESENTATIVE  EASTMAN  commented  that  last  year  his  family                                                               
traveled  on  the  Alaska  Railroad and  he  could  not  remember                                                               
anytime  during or  after, when  the railroad  asked them  any of                                                               
their thoughts "on this matter."   Customarily, he said, it would                                                               
be  best to  either  obtain  permission or  obtain  some idea  of                                                               
(indisc.)  committee.   As someone  who does  support HJR  38, he                                                               
asked that  Mr. O'Leary not  speak on his  behalf or that  of the                                                               
other passengers.                                                                                                               
1:45:53 PM                                                                                                                    
REPRESENTATIVE REINBOLD asked Mr.  O'Leary to address traditional                                                               
homestead use,  recreation, and why  the railroad would  not want                                                               
the legislature's approval when it is a state corporation.                                                                      
MR.  O'LEARY   responded  that  he   was  unsure   he  understood                                                               
Representative Reinbold's  question, and offered that  the Alaska                                                               
Railroad's  concern  is  with  its  ability  to  operate  a  safe                                                               
railroad and have exclusive control of the right-of-way.                                                                        
1:46:54 PM                                                                                                                    
REPRESENTATIVE REINBOLD  commented that  his response  is obvious                                                               
because everyone wants safety.   However, she asked, how does the                                                               
railroad deal with  the traditional users that  were living there                                                               
prior  to   the  Alaska  Railroad,   and  to  also   address  why                                                               
legislators would not want to participate in this issue.                                                                        
MR. O'LEARY  replied that the  Alaska Railroad is not  opposed to                                                               
people recreating  because it understands and  bisects this state                                                               
to a large degree.  The  railroad is a large operating entity and                                                               
its  primary concern  is safety,  and then  its concern  is about                                                               
being able to  run an economical railroad in this  situation.  He                                                               
acknowledged that he  does not have a great answer  because he is                                                               
unsure he fully understands the question.                                                                                       
1:48:31 PM                                                                                                                    
REPRESENTATIVE REINBOLD  offered the example that  a correctional                                                               
facility is located in her  neighborhood, and male prisoners were                                                               
recently admitted into that female  prison.  She related that the                                                               
community  council passed  a resolution  against that  occurrence                                                               
because [the  prison system]  was not being  a good  neighbors in                                                               
addressing those concerns, which causes a  red flag for her as to                                                               
this issue.   She commented that the railroad needs  to be a good                                                               
neighbor, there  are historical traditional uses  that took place                                                               
far before the  Alaska Railroad, and the churches  recrate in the                                                               
area.  As  to the 14 incidents since 1982,  she asked whether any                                                               
of those  deaths were deemed  suicide.  As  a state, it  needs to                                                               
lead  by example  and  be good  collaborative  neighbors and  not                                                               
impose  rights  above  the  traditional  rights  of  others,  she                                                               
MR. O'LEARY answered  that the Alaska Railroad's desire  is to be                                                               
a  good  neighbor  and  there  have  been  situations  where  the                                                               
railroad rightly  or wrongly has  been painted with "not  being a                                                               
good neighbor."   It is important  to the railroad and  its board                                                               
that  it  does  work  collaboratively  and  well  with  the  many                                                               
different  organizations, but  for  the railroad  to  run a  safe                                                               
operation  there are  certain  things wherein  it  must draw  the                                                               
line.  He commented that that  is similar to airports who want to                                                               
be good neighbors but  they are all fenced off and  no one can be                                                               
on the tarmac to recreate.                                                                                                      
1:50:24 PM                                                                                                                    
REPRESENTATIVE REINBOLD  referred to  his example of  the airport                                                               
and pointed out that an airport  is a small area and the railroad                                                               
runs through  traditional use and  recreational properties.   She                                                               
reiterated  that she  would like  to know  whether the  14 deaths                                                               
were the  railroad's fault where  it hit something on  the track,                                                               
or whether the deaths were  suicides, and what caused the deaths.                                                               
She asked whether  there are areas with  signage, awareness, fees                                                               
imposed if  violated, can be put  up to reduce the  danger if Mr.                                                               
O'Leary  is  claiming   that  there  is  danger.     Wherein  the                                                               
traditional uses, such as homesteads,  recreational areas, and so                                                               
forth, are  still allowed to have  their use or even  people that                                                               
are paying property taxes.                                                                                                      
MR. O'LEARY responded  that it is the  Alaska Railroad's position                                                               
that while  he does not  have the  specifics, the 14  people were                                                               
trespassing on the railroad when they were killed.                                                                              
CHAIR  CLAMAN  offered his  understanding  that  the most  recent                                                               
death was when a  woman was asleep on the track  at night, and by                                                               
the time she was spotted it was too late to stop the train.                                                                     
1:51:50 PM                                                                                                                    
REPRESENTATIVE REINBOLD commented that 500  miles is a long swath                                                               
between  critical habited  areas, and  she wants  "us to  be good                                                               
respectable  neighbors"  that  honor  historic  traditions  while                                                               
still  maintaining safety.   She  said she  was unsure  where she                                                               
stood  regarding   this  resolution   but  as   legislators  with                                                               
oversight,  it  appears  to  be a  reasonable  resolution.    She                                                               
related that she has worked on  trails for many years and for the                                                               
Alaska  Railroad to  come forward  and say,  "this is  ours, it's                                                               
exclusive use," appears harsh.                                                                                                  
1:53:10 PM                                                                                                                    
REPRESENTATIVE KREISS-TOMKINS asked whether  Mr. O'Leary had said                                                               
there have been 14 fatalities since the transfer in 198[5].                                                                     
MR. O'LEARY  replied that  there have been  14 fatalities  on the                                                               
Alaska Railroad since the 1985 transfer.                                                                                        
1:53:34 PM                                                                                                                    
REPRESENTATIVE KREISS-TOMKINS  noted that the train  cars are 80-                                                               
90 feet long.  He asked  whether it was Mr. O'Leary's belief that                                                               
the railroad  must manage the  right-of-way for  any hypothetical                                                               
situation.  For  example, at any point along  the right-of-way, a                                                               
car may  derail and travel  entirely perpendicular to  the tracks                                                               
and wipe  out everything.   Therefore, the railroad  must prepare                                                               
for every inch  of the right-of-way wherein a train  car might be                                                               
snowplowing along and  everything needs to be  removed from those                                                               
margins  along the  tracks.   He  related that  he  is trying  to                                                               
better understand the context of Mr. O'Leary's comments.                                                                        
MR.   O'LEARY  responded   that   from   the  Alaska   Railroad's                                                               
perspective, it has 100 feet on  either side of the centerline of                                                               
the track as right-of-way.   From a purely safety perspective, he                                                               
said,  "yes, I  would  say that  we would  like  to protect  that                                                               
right-of-way very  seriously" because that is  something that can                                                               
happen,  and it  has  happened.   When  heavy  freight trains  or                                                               
railcars derail, they can  take up to a mile to  stop and can cut                                                               
quite a swath of damage and destruction.  (Audio difficulties.)                                                                 
1:55:15 PM                                                                                                                    
REPRESENTATIVE  KREISS-TOMKINS  related  that   he  is  from  the                                                               
Southeast and  is not familiar  with the railroad's history.   He                                                               
asked, during the  history of the Alaska  Railroad, whether there                                                               
has  been  a   derailment  and  a  train  car  cut   a  swath  of                                                               
destruction, such  as Mr. O'Leary described,  wiping out property                                                               
or causing someone's death.                                                                                                     
MR. O'LEARY answered  that he was unsure whether  anyone has been                                                               
killed in the  right-of-way as a result of a  derailment, and his                                                               
initial  response  is  that  it  has not  occurred  but  he  will                                                               
research  the issue.   As  with  every railroad  over the  years,                                                               
there have been serious and  horrific derailments in the past and                                                               
derailment is taken seriously.                                                                                                  
1:56:23 PM                                                                                                                    
REPRESENTATIVE  STUTES referred  to the  4/5/18 letter  from Doug                                                               
Chapados, CEO/President  of Petro  Star, Inc., directed  to Chair                                                               
Claman, and  noted that the letter  was written on behalf  of the                                                               
Alaska  Railroad  Corporation.    She pointed  to  the  following                                                               
language,   "denying   ARRC   an  exclusive   ROW   will   impede                                                               
developments  to connect  Anchorage to  the Interior,"  and asked                                                               
Mr. O'Leary to speak to that assertion.                                                                                         
MR.   O'LEARY  responded   that   from   the  Alaska   Railroad's                                                               
perspective,  it moves  freight between  Anchorage and  Fairbanks                                                               
and throughout  the state, and  without having  exclusive control                                                               
of the  right-of-way, it needs  to know  what is around  the next                                                               
corner.   He reiterated that  it is important  to run a  safe and                                                               
economical railroad  in control of  that right-of-way, and  if it                                                               
is not in control, there  could easily be operational impacts and                                                               
it  could impact  the economics  of the  abilities of  the Alaska                                                               
1:58:05 PM                                                                                                                    
REPRESENTATIVE  KOPP  referred  to Mr.  O'Leary's  comment  about                                                               
taking  property  owners to  court  to  resolve differences,  and                                                               
asked the last time the Alaska  Railroad went to court to resolve                                                               
an issue between a property owner and the Alaska Railroad.                                                                      
MR. O'LEARY  deferred to  Andy Behrend,  attorney for  the Alaska                                                               
1:58:47 PM                                                                                                                    
ANDY BEHREND,  Chief Legal Counsel, Alaska  Railroad Corporation,                                                               
advised  that he  is unaware  of any  court action  that actually                                                               
occurred  in order  to resolve  differences between  the railroad                                                               
and property  owners.  During  his tenure of eight  years working                                                               
for the railroad,  he recalled at least  three situations wherein                                                               
commercial entities used the right-of-way  for their own business                                                               
without  permission   and  without   a  permit.     During  those                                                               
occasions, the railroad engaged  with the commercial entities and                                                               
discussed  removing their  business  from the  right-of-way.   He                                                               
offered that  junk cars  were leaking oil  and the  Department of                                                               
Environmental Conservation (DEC) had to  get involved.  As to the                                                               
three  cases, he  advised, the  railroad directed  several "cease                                                               
and  desist"  types  of  letters,  then  drafted  complaints  and                                                               
advised that the complaints would  be filed within 30-days if the                                                               
companies  did not  cooperate, and  all three  entities left  the                                                               
right-of-way.   As to residential  property owners, he  said that                                                               
he is  not aware  of any  court actions  the Alaska  Railroad has                                                               
2:00:15 PM                                                                                                                    
REPRESENTATIVE KOPP pointed out that  HJR 38 primarily deals with                                                               
homestead patent areas that are  primarily residential.  He asked                                                               
whether  it  would  be fair  to  say  that  it  is a  "very  rare                                                               
occurrence"  when the  court has  to get  involved to  resolve an                                                               
MR.  BEHREND acknowledged  that  the court  getting involved  has                                                               
been  rare,   and  the  railroad  has   worked  with  residential                                                               
landowners  in  an attempt  to  put  together a  residential  use                                                               
policy and  permit policy.  The  policy was passed by  the Alaska                                                               
Railroad Board of Directors, except  it was controversial and has                                                               
since been rescinded.  Generally  speaking, he opined, there have                                                               
been issues with  drainage or erosion in the  right-of-way due to                                                               
over-watering and  through discussions have "generally  worked it                                                               
out."   He explained  that when the  Alaska Railroad  talks about                                                               
going  to court,  if  there  is a  legal  dispute about  property                                                               
rights,  the  courts  are  the  correct  venue  to  answer  those                                                               
questions.   As far as  residential uses of the  right-of-way, he                                                               
offered that  the railroad  does its best  to work  through those                                                               
issues.   He  acknowledged the  issues of  property owners  being                                                               
there  before  the   Alaska  Railroad,  but  in   many  of  those                                                               
situations  the federal  railroad mainline  has been  there since                                                               
1919-1923 when  the full  railroad was  completed.   Despite that                                                               
fact,  he said  the railroad  made an  attempt to  regulate those                                                               
residential  uses, which  is something  the railroad  contends is                                                               
its right  and the exclusive  use easement allows.   He explained                                                               
that it  is a  mechanism where the  railroad, at  its discretion,                                                               
regulates what happens with the right-of-way.                                                                                   
2:03:11 PM                                                                                                                    
REPRESENTATIVE KOPP explained  that HJR 38 simply  reads that the                                                               
current understanding  is of a standard  railroad easement, which                                                               
the Alaska Railroad  has not asserted more than  that before 2012                                                               
in any widespread  manner.  He asked whether  the railroad's fear                                                               
is   that   by   continuing    a   standard   railroad   easement                                                               
understanding, the landowners will suddenly  rise up with new and                                                               
unsettling behavior  that will threaten the  safety and existence                                                               
of the railroad.                                                                                                                
MR. O'LEARY answered that the  Alaska Railroad does not know what                                                               
HJR 38 means, but it can see issues with the resolution.                                                                        
2:04:12 PM                                                                                                                    
CHAIR  CLAMAN  referred to  the  Anchorage  area property  owners                                                               
adjacent to  the railroad,  and asked  whether the  railroad pays                                                               
any  property  taxes on  those  easements  and how  the  easement                                                               
affects  the  property evaluation  paid  to  the Municipality  of                                                               
MR.   O'LEARY  answered   that   the  Alaska   Railroad,  as   an                                                               
instrumentality of  the State of  Alaska, is a  tax-exempt entity                                                               
and is exempt from such taxes.   He related that he is unaware of                                                               
any part of the right-of-way  that adjacent homeowners are paying                                                               
property taxes.                                                                                                                 
2:05:41 PM                                                                                                                    
MR. BEHREND  advised that  the proponents of  HJR 38  assert that                                                               
the  federal  government  transferred  exclusive  rights  to  the                                                               
Alaska Railroad right-of-way that  the federal government did not                                                               
own, and further assert that  the Alaska Railroad right-of-way is                                                               
a  non-exclusive easement  that adjoining  landowners can  use in                                                               
any  manner that  does not  interfere  with railroad  operations.                                                               
These  assertions are  incorrect, he  stated, because  the Alaska                                                               
Railroad  does have  exclusive control  of  its right-of-way  for                                                               
several reasons.   First, he said, as the  United States Congress                                                               
expressly  found when  considering the  Alaska Railroad  Transfer                                                               
Act  in 1982,  the federal  government owned  most of  the Alaska                                                               
Railroad right-of-way in  fee simple title which  it had acquired                                                               
as  a result  of  the  1914 Congressional  Act  that created  the                                                               
Alaska Railroad.   Second, he stated,  specifically guaranteed in                                                               
the Alaska  Railroad Transfer Act (ARTA),  the federal government                                                               
transferred  at least  an exclusive  use easement  in all  of the                                                               
Alaska  Railroad  right-of-way  to the  state-owned  railroad  in                                                               
1985.   Third, even if the  Alaska Railroad had not  received fee                                                               
simple title  or an exclusive  use easement in  the right-of-way,                                                               
railroad easements have consistently been  held by the courts for                                                               
well over  100 years to  provide railroads with  exclusive rights                                                               
in the right-of-way.                                                                                                            
2:07:22 PM                                                                                                                    
MR.  BEHREND  referred  to  Alaska  Railroad  Memorandum  titled,                                                               
"Ownership and  Exclusive Control  of the Alaska  Railroad Right-                                                               
of-Way"  [contained in  the committee  packet]  and advised  that                                                               
while  he does  not have  time to  explore all  of the  issues in                                                               
depth,  he would  highlight some  of the  most important  issues.                                                               
Mr.  Behrend offered  that  the origins  of  the Alaska  Railroad                                                               
exclusive rights  in its  right-of-way trace back  to the  Act of                                                               
March  12,  1914, which  authorized  and  directed the  location,                                                               
construction, and operation of a  railroad route in the Territory                                                               
of Alaska.   He paraphrased  the intention of the  railroad route                                                               
of the 1914 Act, as follows:                                                                                                    
     To  provide transportation  of coal  for  the Army  and                                                                    
     Navy, transportation of troops,  arms, and munitions of                                                                    
     war, the  mails, and for other  governmental and public                                                                    
MR. BEHREND stated  that the 1914 Act  also granted rights-of-way                                                               
through  federal  lands  for that  railroad  and  authorized  the                                                               
federal  government  to  establish   rules  and  regulations  for                                                               
control and operation of the railroad.                                                                                          
2:08:19 PM                                                                                                                    
MR. BEHREND  explained that the Alaska  Railroad right-of-way was                                                               
designated and  construction was completed  in 1923, and  for the                                                               
next  60-years, the  federal government  owned  and operated  the                                                               
Alaska Railroad  using it  as both  as a  railroad and  a utility                                                               
corridor.  When  the United States Congress  began discussing the                                                               
concept of  transferring the  railroad to  another entity  in the                                                               
early  1980s, Congressional  committees determined  that most  of                                                               
the Alaska  Railroad land, including  its right-of-way,  was held                                                               
in fee simple title by the  United States.  He paraphrased one of                                                               
the Congressional  committees as to  the intent of  Congress "was                                                               
that ARTA  would convey to the  state a fee interest  in the 200-                                                               
foot strip  comprising the railroad track  right-of-way amounting                                                               
to roughly  12,000 acres.  This  fee estate is recognized  by the                                                               
committee  to be  the  current interest  of  the Alaska  Railroad                                                               
derived from  common practice and  authorized under Section  1 of                                                               
the  March 12,  1914  Alaska Railroad  Act."   He  said that  the                                                               
committee went on to explain  that "conveying the right-of-way in                                                               
fee was  required so that the  state can continue to  operate the                                                               
railroad."   The United States  Congress also  recognized, during                                                               
the process of looking at  the Alaska Railroad Transfer Act, that                                                               
some  Alaska  Railroad  lands could  be  subject  to  third-party                                                               
claims.   Therefore,  Congress  included in  ARTA  a process  for                                                               
determining  such  claims, but  still  providing  the state  with                                                               
exclusive  control  of the  right-of-way.    Senator Ted  Stevens                                                               
confirmed this on the floor of  the United States Congress just a                                                               
few weeks  before ARTA  passed the  Congress, and  he paraphrased                                                               
Senator Stevens' statement as follows:                                                                                          
     The  concept  of  an exclusive  use  easement  also  is                                                                    
     introduced in  the substitute.   This  defined interest                                                                    
     represents  the  minimal  interest   the  state  is  to                                                                    
     receive in  the Alaska Railroad  right-of-way following                                                                    
     completion of the expeditated adjudication process.                                                                        
MR. BEHREND  advised that  Senator Stevens  went to  describe the                                                               
purpose of  this exclusive use  easement being proposed  in ARTA,                                                               
as follows:                                                                                                                     
     Essentially, the  exclusive use easement is  defined to                                                                    
     ensure  that  the  state-owned  railroad  will  receive                                                                    
     exclusive and complete control  over lands traversed by                                                                    
     the right-of-way.                                                                                                          
2:10:44 PM                                                                                                                    
MR. BEHREND offered that within  the enacted version of ARTA, its                                                               
plain  language confirms  that the  state-owned  railroad was  to                                                               
receive  exclusive  control  of  the  entire  right-of-way.    He                                                               
paraphrased a provision of ARTA, as follows:                                                                                    
     Congress finds  that exclusive control over  the right-                                                                    
     of-way by  the Alaska Railroad, has  been and continues                                                                    
     to  be necessary  to afford  sufficient protection  for                                                                    
     safe and economic operation of the railroad.                                                                               
MR.  BEHREND  explained  that this  exclusive  control  provision                                                               
specifically applied to  any areas of the  right-of-way that left                                                               
federal  ownership prior  to  the  enactment date  of  ARTA.   He                                                               
pointed out  that this  gets to the  discussion of  the homestead                                                               
patents, and paraphrased a provision of ARTA, as follows:                                                                       
     Where lands within the right-of-way  or any interest in                                                                    
     such lands  have been  conveyed from  federal ownership                                                                    
     prior to January 14, 1983, or  is subject to a claim of                                                                    
     valid existing rights  by a party other  than a village                                                                    
     corporation,  the  conveyance  to   the  state  of  the                                                                    
     federal  interest   in  such  properties   pursuant  to                                                                    
     Section 1203(b)(1)  or (2) of  this title,  shall grant                                                                    
     not  less  than  an  exclusive  use  easement  of  such                                                                    
MR. BEHREND advised that consistent  with the above language from                                                               
ARTA,  the  transfers,  the  conveyances,  were  made  of  Alaska                                                               
Railroad  land to  the state-owned  newly formed  Alaska Railroad                                                               
Corporation.   He said that  consistent with the  above language,                                                               
the  interim conveyances  issued  in January  1985, conveyed  the                                                               
right-of-way  to  the state-owned  railroad  and  also the  final                                                               
patents that followed  later, and they all  expressly conveyed an                                                               
exclusive use  easement as  that defined  in the  Alaska Railroad                                                               
Transfer Act (ARTA).                                                                                                            
2:12:48 PM                                                                                                                    
MR.  BEHREND related  that his  third  point is  that the  Alaska                                                               
Railroad right-of-way  would be held exclusively  by the railroad                                                               
even  if ARTA  had not  guaranteed  this minimal  interest of  an                                                               
exclusive use easement as defined  in that statute.  He explained                                                               
that his statement is true  because courts have consistently held                                                               
for  over 100  years,  that railroads  have  exclusive rights  to                                                               
their right-of-way.   He referred to the  memorandum, pages 9-11,                                                               
and advised that some of  those authorities are discussed in both                                                               
court  cases, legal  treatise, commentators,  and so  forth.   He                                                               
said that he would quote from  a couple of the cases that explain                                                               
what  the  courts  have done  with  these  railroad  right-of-way                                                               
easements, as follows:                                                                                                          
     Midland  Valley R.  Co. v.  Sutter, et  al. 28  F.2d at                                                                  
     167-68 (1928)                                                                                                              
     The decisions of the national  courts and a majority of                                                                    
     the  state jurisdictions  however,  are  to the  effect                                                                    
     that the railroad company is  entitled to the exclusive                                                                    
     use  and possession  of its  right-of-way and  that the                                                                    
     owner of  the servient  estate has  no right  to occupy                                                                    
     the surface  of the land conveyed  for right-of-way, in                                                                    
     any  mode, or  for  any purpose,  without the  railroad                                                                    
     company's consent.                                                                                                         
MR. BEHREND  advised that  the court  went on  to talk  about the                                                               
reasons for that rule, as follows:                                                                                              
     The  basic reason  for the  majority rule  is that  the                                                                    
     exclusive  possession   is  necessary  to   enable  the                                                                    
     railroad company to safe conduct  its business and meet                                                                    
     the duty of  exercising that high degree  of care which                                                                    
     the general  law and  administrative rules  enjoin upon                                                                    
     it.  ... These duties  require it to have the exclusive                                                                    
     possession of its right-of-way.                                                                                            
2:15:03 PM                                                                                                                    
MR. BEHREND acknowledged  that some of the cases are  old and the                                                               
memorandum  provided   cases  up   through  recent  date.     The                                                               
proponents of HJR  38 talk a lot  about the 1875 Act,  and a 2014                                                               
case talks  about this  question as  to whether  the right-of-way                                                               
was exclusive under the 1875 Act.                                                                                               
      Union Pacific R.R. v. Santa Fe Pacific Pipelines 231                                                                    
     Cal.App 4th 134, 163 (Cal. Ct. App. 2014                                                                                   
     As  to rights-of-way  granted by  Congress in  1875 and                                                                    
     beyond,  the  railroad  has  exclusive  rights  to  the                                                                    
     surface and in addition,  broad and extensive rights of                                                                    
     sub-lateral   and   subjacent   support   to   prohibit                                                                    
     interference with railroad operations and maintenance.                                                                     
2:16:02 PM                                                                                                                    
REPRESENTATIVE  KOPP referred  to  Mr.  Behrend's statement  that                                                               
ARTA's plain  language requires transfer of  the federal interest                                                               
in the  right-of-way, and asked where  in ARTA does it  read that                                                               
something   the  federal   government  does   not  own   must  be                                                               
MR. BEHREND  opined that there is  no language to that  effect in                                                               
ARTA,  but there  is language  that says  the federal  government                                                               
must transfer  at least an  exclusive use easement as  defined in                                                               
ARTA.   He stressed  that that  is clear,  that interest  must be                                                               
conveyed and it does not  talk about interest being conveyed that                                                               
is not  owned.  Clearly,  he said, from the  legislative history,                                                               
Congress appears to  believe that the federal  railroad had these                                                               
exclusive rights to transfer.   Therefore, the real point is that                                                               
Congress  found that  exclusive control  was necessary  to run  a                                                               
safe  and economic  railroad, and  Congress determined  that that                                                               
minimum interest  must be transferred,  and those  interests were                                                               
transferred.  He pointed out that  it does not say that interests                                                               
that  (indisc.)  owned   have  to  be  transferred.     From  the                                                               
legislative history,  it is clear  that the statute  was premised                                                               
on  the fact  that the  federal railroad  actually did  own those                                                               
rights.   He  added that  the  Alaska folks  negotiating for  the                                                               
transfer of the railroad were  clear that exclusive rights to the                                                               
right-of-way  were  necessary  for  them  to  take  the  step  of                                                               
purchasing a  railroad which had  dated infrastructure,  had been                                                               
losing money under the management  of the federal government, and                                                               
that  they   clearly  believed  that  Congress   had  found  that                                                               
exclusive  control  of the  right-of-way  was  necessary to  have                                                               
"this  going  concern  railroad."    All  of  those  issues  come                                                               
together to  where there is not  only the direction to  convey an                                                               
exclusive use easement to the  state-owned railroad, but also the                                                               
federal  government saying  that if  any party  brings an  action                                                               
challenging  the railroad's  title to  its property,  the federal                                                               
government  will step  in and  defend that  title.   He commented                                                               
that it is  an unusual provision, but it shows  the importance of                                                               
that issue.                                                                                                                     
2:19:11 PM                                                                                                                    
REPRESENTATIVE KOPP asked whether  Mr. Behrend was confident that                                                               
the  federal government  possessed an  interest strong  enough to                                                               
pass an exclusive use easement  of the entire right-of-way to the                                                               
MR. BEHREND answered  that the Alaska Railroad believes  it has a                                                               
strong  argument to  that effect  and  it does  not question  the                                                               
sincerity  of  those folks  arguing  on  the  other side  of  the                                                               
argument.   Except,  he remarked,  the Alaska  Railroad disagrees                                                               
that the 1914  Act provided the same title as,  for instance, the                                                               
1875 Act.   One reason it is much different,  he offered, is that                                                               
the 1875 Act,  as Representative Kopp correctly  pointed out, was                                                               
an  Act  which  basically  went  from  granting  what  is  almost                                                               
basically  fee  interest  to  an Act  which  granted  a  railroad                                                               
easement.   In the case of  the 1914 Act that  created the Alaska                                                               
Railroad, the  federal government  was not  directing a  grant to                                                               
private railroad  companies.   The real  problem before  1875 was                                                               
that private railroad companies tied  up large swaths of land and                                                               
blocked people from its use,  he reiterated.  The Alaska Railroad                                                               
Act of 1914 directed the president  to create up to a 1,000-mile-                                                               
long Alaska  Railroad.  The Act  also directed "them to  bring in                                                               
resources from the  Panama Canal Project" to help  get the Alaska                                                               
Railroad built, it  did so as a way of  opening up and developing                                                               
the  State of  Alaska,  and this  was to  be  a federally  owned,                                                               
federally  operated, railroad.   It  was not  a grant  of federal                                                               
land  to a  private company,  he  explained, it  was the  federal                                                               
government designating land  to be used for a  railroad, which is                                                               
a   much   different  (indisc.).      In   further  response   to                                                               
Representative Kopp's question of  comfort, he advised that these                                                               
cases which  show that railroad  rights-of-way, even  where there                                                               
is   an 1875 Act  easement, it  does provide exclusive  rights to                                                               
the railroad.   There is no question that  the federal government                                                               
ran  the  Alaska Railroad  for  60  years,  it moved  trains  and                                                               
utility uses  were made of the  right-of-way, he advised.   It is                                                               
the  Alaska Railroad's  belief that  that argument  is more  of a                                                               
backup  argument, but  it is  an additional  argument that  shows                                                               
there were  exclusive rights  of the  right-of-way that  could be                                                               
conveyed, he further explained.                                                                                                 
2:22:13 PM                                                                                                                    
CHAIR CLAMAN noted that lawyers are  good at speaking a long time                                                               
and they  are also  good at  following time  limits, he  would be                                                               
putting time limits on Mr. Behrend's answers.                                                                                   
2:22:24 PM                                                                                                                    
REPRESENTATIVE  KOPP offered  that HJR  38 simply  read that  the                                                               
federal government cannot transfer an  interest to the state that                                                               
the federal  government does  not own.   He  related that  if Mr.                                                               
Behrend  is confident  that that  did not  happen, why  would the                                                               
Alaska Railroad be in opposition to this resolution.                                                                            
MR.  BEHREND   replied  that  the   Alaska  Railroad   does  feel                                                               
comfortable  with  its position,  and  that  is the  position  it                                                               
depends  upon every  day to  operate  the railroad.   The  Alaska                                                               
Railroad  believes there  have been  examples from  his testimony                                                               
where it  disagreed with  some of  the premises of  HJR 38.   The                                                               
other piece to  the railroad's confidence is that  it appears HJR
38 is  seeking to ask Congress  to take some sort  of action, but                                                               
there is no  specification as to the description  of that action.                                                               
He reiterated  that while the  Alaska Railroad  strongly believes                                                               
it  is  correct on  the  law,  the constituents  supporting  this                                                               
legislation believe they  are correct on the law.   Therefore, he                                                               
pointed out,  the court is  the correct venue for  review because                                                               
these are complex legal issues.                                                                                                 
2:23:52 PM                                                                                                                    
REPRESENTATIVE REINBOLD commented that  if the railroad must run,                                                               
for example,  five minutes longer, that  is not a huge  amount of                                                               
delay to  lock up  the whole area  for exclusive  easement rights                                                               
forever.   She requested a ball  park figure of the  total amount                                                               
of  public  funds that  the  Alaska  Railroad  has used  for  the                                                               
corporation since 1985.                                                                                                         
MR.  O'LEARY answered  that as  a  matter of  course, the  Alaska                                                               
Railroad does not  request state funds.  In the  1990s, there was                                                               
approximately  a   $10  million  appropriation  related   to  the                                                               
purchase of  railcars for  the Wishbone  Hill Project,  which did                                                               
not quite materialize.  He  opined that approximately $80 million                                                               
was related  to the bridge over  the Tanana River as  part of the                                                               
Northern Rail  Extension, and  approximately $34  million related                                                               
to  the  unfunded  federal mandate  of  positive  train  control.                                                               
(Indisc.) over large  projects that are not  necessarily a matter                                                               
of  daily  business  for  the   railroad  has  state  money  been                                                               
requested or received.                                                                                                          
2:26:16 PM                                                                                                                    
REPRESENTATIVE  REINBOLD commented  that she  thought the  Alaska                                                               
Railroad  should  have gone  to  the  federal government  for  an                                                               
unfunded federal  mandate, and  she was  upset that  the railroad                                                               
"made us  use state funds"  when the  state was facing  a crisis.                                                               
She asked how profitable the  Alaska Railroad is as a corporation                                                               
and whether any money ever come back to the general fund.                                                                       
MR.  O'LEARY  said (indisc.)  our  financials  look more  like  a                                                               
private enterprise, it  measures net income and on  an average of                                                               
10 years  is somewhere in  the $12-$14 million range.   (Indisc.)                                                               
capital intensive.  The Alaska  Railroad believes it is necessary                                                               
to  put  upwards  of  $40  million per  year  into  its  existing                                                               
infrastructure,  without  any  type  of expansion,  to  keep  the                                                               
wheels on  the wagon.   He stated  that the Alaska  Railroad does                                                               
not pay any money into the general fund.                                                                                        
2:27:49 PM                                                                                                                    
REPRESENTATIVE REINBOLD  requested a description of  the entities                                                               
with oversight over the Alaska Railroad.                                                                                        
MR. O'LEARY  responded (indisc.) oversees  at this point  as well                                                               
as  all   of  the  regulatory   agencies;  the   Federal  Transit                                                               
Administration; a  seven-member board  of directors  appointed by                                                               
the  governor  with  specific statutory  requirements  for  those                                                               
board  members; the  Alaska Railroad  reports to  the legislature                                                               
and  is   required  to  go   to  the  legislature   for  specific                                                               
activities; and  two members  of the  board are  commissioners of                                                               
the governor's cabinet.  He commented, "We serve many masters."                                                                 
2:28:58 PM                                                                                                                    
REPRESENTATIVE EASTMAN asked whether Mr.  O'Leary is aware of any                                                               
other  United  States property  law  where  a property  owner  is                                                               
paying taxes  on their property,  but someone else  has exclusive                                                               
use to a portion of that property and is not paying taxes.                                                                      
MR.  BEHREND  answered  that  he  had  not  participated  in  the                                                               
response to  the taxation issue, and  was not aware of  the issue                                                               
regarding the Flying Crown.  Although,  he said, he has looked at                                                               
the tax  lot situation in most  of the Potter Hill  area in South                                                               
Anchorage,  consistent with  the platting  of those  subdivisions                                                               
which show the lots only going  up to but not across the boundary                                                               
of the right-of-way, and he is  only aware of one situation where                                                               
a property  owner is being taxed  on a lot  in that area.   As to                                                               
the remainder  of the whole  Potter Hill area, the  residents are                                                               
not paying taxes on the right-of-way.   He offered the example of                                                               
a  taxpayer who  showed the  Alaska Railroad  that she  was being                                                               
taxed on  the right-of-way;  the railroad  advised that  it could                                                               
not directly assist her.  The  railroad offered to write a letter                                                               
on her  behalf to the  Municipality of Anchorage advising  of its                                                               
belief that this person should  not be taxed because the property                                                               
belongs to the  Alaska Railroad, and she  declined the railroad's                                                               
assistance.   He commented that  he is  not aware of  any similar                                                               
situations, and  that the railroad  believes the  property owners                                                               
along the  right-of-way are  not paying  those types  of property                                                               
taxes, but the  Alaska Railroad would be happy to  write a letter                                                               
on behalf  of any  taxpayer paying  property tax  on part  of the                                                               
railroad's right-of-way.                                                                                                        
2:31:49 PM                                                                                                                    
REPRESENTATIVE EASTMAN  asked, other  than the cases  Mr. Behrend                                                               
referred, whether  he was aware  of any other examples  in United                                                               
States property law of such situations.                                                                                         
MR.  BEHREND responded  that  his answers  are  based on  whether                                                               
property  owners  are  paying   taxes  on  right-of-way  property                                                               
subject to  the exclusive use  easements.  Outside of  Alaska, he                                                               
said that he  does not know what typically takes  place and he is                                                               
not  aware of  anything in  other jurisdictions,  but he  has not                                                               
researched the issue.                                                                                                           
2:33:15 PM                                                                                                                    
ERROL  CHAMPION, Chairman,  Legislative Issues  Committee, Alaska                                                               
Association of  Realtors, advised that the  Alaska Association of                                                               
Realtors believes benefit  will come if the  resolution is passed                                                               
and put into place.                                                                                                             
2:34:01 PM                                                                                                                    
KATE BLAIR, Manager, Government  and Public Affairs, ENDEAVOR fka                                                               
Tesoro   Corporation,   advised   that   ENDEAVOR,   fka   Tesoro                                                               
Corporation, is  an integrated  refining logistics  and marketing                                                               
company with  assets across  the United  States; it  operates ten                                                               
refineries and  owns a series  of pipelines, tank  farms, marine,                                                               
rail; and a network  of fuel stations.  This is  its 49th year of                                                               
operating   in  Alaska,   refining   Alaska's   crude  oil,   and                                                               
transporting  fuels and  home  heating fuels  for  Alaskans.   In                                                               
2016, ENDEAVOR  purchased assets in Anchorage  and Fairbanks from                                                               
Flint Hills Resources  and a main driver for  that investment was                                                               
the  rail facilities  at either  end.   The Alaska  Railroad also                                                               
moved ENDEAVOR's products into the  Interior of Alaska in a safe,                                                               
reliable,  and economic  manner.   She  expressed the  ENDEAVOR'S                                                               
concern with  the resolution is  the impact it  could potentially                                                               
have on the  railroad's commercial operations and  its ability to                                                               
run  the train  at higher  speeds.   As the  Alaska Railroad  has                                                               
asserted, the  unrestricted use of the  right-of-way by adjoining                                                               
residents and the  public would require lower train  speeds of 20                                                               
mph or 16  mph in some areas.   She offered that  that a slowdown                                                               
would mean  a significant  change in the  current travel  time to                                                               
Fairbanks,  and  would  change  the  schedule  and  economics  of                                                               
deliveries into the  Interior.  While it is  not ENDEAVOR's place                                                               
to  weigh in  on  the  property or  landownership  issues of  the                                                               
right-of-way;  however, if  changes  are made  in  the manner  in                                                               
which the railroad  has to operate, it is  important to recognize                                                               
that those changes would in  turn affect ENDEAVOR's fuel delivery                                                               
and make transportation into the Interior more expensive.                                                                       
2:35:52 PM                                                                                                                    
REPRESENTATIVE EASTMAN asked Ms.  Blair to distinguish what would                                                               
legally require the operator to  travel at those slower speeds so                                                               
he can  explain to  his constituents that  it is  not politically                                                               
MS. BLAIR  pointed out that ENDEAVOR  is not the operator  of the                                                               
Alaska Railroad,  it works  with the  railroad and  is ENDEAVOR's                                                               
operator.  In  the event the railroad tells ENDEAVOR  that due to                                                               
safety through the right-of-way, it  must travel at slower speeds                                                               
then ENDEAVOR  must trust the Alaska  Railroad's decision because                                                               
safety is ENDEAVOR's number one core value.                                                                                     
2:37:35 PM                                                                                                                    
BARBARA  HUFF-TUCKNESS,  Director, Governmental  and  Legislative                                                               
Affairs, Teamsters  Local 959, advised  that the  Teamsters Union                                                               
is opposed to HJR 38 because  legal arguments should be left with                                                               
the attorneys.   There should be concern regarding  the safety of                                                               
not only the  Teamster memberships working for  the railroad, but                                                               
also for the public.   This resolution, as written, threatens and                                                               
undermines the protections offered  by an exclusive use right-of-                                                               
way,  and  it  could  create uncertainty  as  well  as  potential                                                               
financial  liability for  the railroad.    The Alaska  Railroad's                                                               
full  control  of   its  access  to  the   right-of-way  and  the                                                               
particular buffer,  is important  to the successful  operation of                                                               
the  trains when  traveling at  higher  speeds when  transporting                                                               
passengers  and freight  through  the state.    She advised  that                                                               
reducing  the  effectiveness of  the  trains  by reducing  speeds                                                               
would have  a huge negative  impact on the railroad's  ability to                                                               
meet delivery times and force many  people to look at other means                                                               
of transportation, she  pointed out.  Alaska does not  have a lot                                                               
of  roads  and  there  has always  been  a  working  relationship                                                               
between the  truckers and  the railroad as  to how  the different                                                               
goods   and   services   are  transported   around   the   state.                                                               
Additionally, she  said, the elimination of  exclusive control of                                                               
the  right-of-way  reduces revenues  for  the  railroad and  also                                                               
creates an unsafe situation.                                                                                                    
2:40:15 PM                                                                                                                    
REPRESENTATIVE  EASTMAN asked  whether her  concern was  based on                                                               
her own legal analysis, or  was she simply taking the perspective                                                               
of  the Alaska  Railroad as  far as  the requirement  for reduced                                                               
speeds and so forth.                                                                                                            
MS. HUFF-TUCKNESS  answered that  it is  not a  legal perspective                                                               
and  that  she  is  not  an  attorney.    She  advised  that  the                                                               
perspective  of the  Teamsters  is due  to  its discussions  with                                                               
members  that  actually work  on  the  railroad,  and it  is  her                                                               
understanding that the reduced speeds  would be throughout all of                                                               
the  miles of  the track  itself.   She advised  that she  took a                                                               
train ride  this summer and  it took  eight hours to  travel from                                                               
Anchorage to  Denali, and  there were areas  where the  train did                                                               
slow down which was possibly to view wildlife.                                                                                  
2:41:32 PM                                                                                                                    
REPRESENTATIVE REINBOLD  commented that she heard  testimony that                                                               
slowing  the train  down  to  20 mph  would  increase safety  and                                                               
possibly  slowdown delivery  times,  but she  could  not see  how                                                               
arriving five minutes  later was a huge crisis  and prevented the                                                               
railroad from working  with the property owners and  being a good                                                               
neighbor.   She  asked  how  slowing a  train  down could  impact                                                               
MS. HUFF-TUCKNESS  opined that the  Teamster's counsel  read this                                                               
resolution  and   noted  that  it  asks   Alaska's  congressional                                                               
delegation to  actually re-interpret the  law.  In the  event the                                                               
law  was to  be  re-interpreted and  one side  did  not like  the                                                               
decision,  the parties  would ultimately  end up  in court.   The                                                               
safety part  would be  a requirement  and a  concern that  if the                                                               
railroad did not  have any control over those  areas of right-of-                                                               
way any  longer, to  make certain children  were not  running out                                                               
into the middle of the track  or cars traveling through, if there                                                               
were not any  crossings or any protections  for that right-of-way                                                               
area.  From her perspective, she  said, the slowdown would be for                                                               
protection  because the  railroad no  longer had  control of  the                                                               
2:43:35 PM                                                                                                                    
REPRESENTATIVE  KOPP  asked  whether  she  could  imagine  why  a                                                               
property owner would opt for conduct  that would cause a spill on                                                               
their property  or a  disaster on their  property that  would get                                                               
them hurt or killed.                                                                                                            
MS. HUFF-TUCKNESS replied that she  was unsure how to answer that                                                               
question, she knows  that individuals have been  killed wherein a                                                               
child was killed  the Municipality of Anchorage  where fences had                                                               
been constructed.                                                                                                               
2:45:03 PM                                                                                                                    
CHARLES DILLARD,  Inspector, Brotherhood Railway  Carmen, advised                                                               
that he  is a 50-year  employee of  the Alaska Railroad,  and has                                                               
worked on  railcars almost  his entire  life.   He noted  that he                                                               
represents  the  40 members  of  the  Brotherhood Railway  Carmen                                                               
Division  of  the   Transportation  Communications  International                                                               
Union (TCU)  at the Alaska Railroad,  of which he is  member.  On                                                               
behalf of  the members of TCU,  he asked the committee  to oppose                                                               
HJR  38 because  it is  an incredibly  important issue  for those                                                               
working at the  Alaska Railroad, he described.   For the 50-years                                                               
he has  worked at this job,  he pointed out that  safety has been                                                               
its highest  priority, and making  safety a priority is  what has                                                               
allowed him to arrive home  every night.  This resolution greatly                                                               
reduces the ability to operate  a safe railroad, it asks Congress                                                               
to remove the  Alaska Railroad's exclusive control  of the right-                                                               
of-way, and  after working for  50-years the railroad  has always                                                               
had exclusive  use.  This resolution  poses a safety risk  to all                                                               
of the Alaska  Railroad employees who work on  the tracks because                                                               
they would  not have a say  in what happens in  the right-of-way.                                                               
The  resolution also  poses a  threat to  their jobs  because the                                                               
railroad  would  have to  significantly  reduce  speeds in  areas                                                               
without  its  exclusive  control.   This  could  make  it  nearly                                                               
impossible to move passengers and  freight in a timely manner and                                                               
it  would  cause  the  railroad  to  lose  business.    (Indisc.)                                                               
encouraged the committee to vote no on HJR 38.                                                                                  
2:47:44 PM                                                                                                                    
JAMES  ABITZ,   Brotherhood  Railway  Carmen,  advised   that  he                                                               
represents  the  40 members  of  the  Brotherhood Railway  Carmen                                                               
Division  of  the   Transportation  Communications  International                                                               
Union (TCU)  and asked the committee  to oppose HJR 38.   He said                                                               
that this is  an incredibly important issue for  those working at                                                               
the Alaska Railroad  and this resolution asks  Congress to remove                                                               
the Alaska  Railroad's exclusive  control of the  right-of-way of                                                               
which it  has always possessed.   This resolution poses  a safety                                                               
risk to  all of  the Alaska  Railroad employees  who work  on the                                                               
tracks because  they would not have  a say as to  what happens in                                                               
the right-of-way.   It also poses a threat to  their jobs because                                                               
the railroad would  have to significantly reduce  speeds in areas                                                               
without  its  exclusive  control.   This  could  make  it  almost                                                               
impossible to move passengers and  freight in a timely manner and                                                               
would  cause the  railroad to  lose business  and it  could cause                                                               
many  members to  lose their  jobs.   He asked  the committee  to                                                               
recognize that  the disagreement  over who  owns the  land should                                                               
take place  in the courts to  legally determine who is  right and                                                               
who is wrong.  He said that  it is not something that should take                                                               
place politically by going back and  changing the law to suit the                                                               
desires of some people.                                                                                                         
2:49:35 PM                                                                                                                    
VERN  GILLIS,  Conductor,  Alaska  Railroad  Corporation,  United                                                               
Transportation Union  Representative, advised that he  has worked                                                               
in the  transportation industry for  28 years, he is  a conductor                                                               
with the  Alaska Railroad, and  it is his responsibility  to move                                                               
passengers  and  freight safely  and  efficiently.   He  said  he                                                               
represents  150  members  who  strongly  oppose  HJR  38  due  to                                                               
concerns that opening up the  right-of-way will only increase the                                                               
dangers to the public and the  railroad.  As a conductor, he said                                                               
that  one of  the worst  feelings  he has  experienced is  coming                                                               
around a  curve and looking into  the eyes of trespasser  who has                                                               
no idea whether they  should move to the left or  to the right to                                                               
escape the train.  In most  cases, he said, people freeze and are                                                               
unable  to move,  parents teach  with instincts,  and one  of the                                                               
most  important things  parents teach  their children  is not  to                                                               
play in  the road, and to  not play in the  right-of-way of which                                                               
he is trying to work.                                                                                                           
2:50:53 PM                                                                                                                    
LEE  DAVIS,  Conductor/Engineer,   Alaska  Railroad  Corporation,                                                               
United Transportation Union Officer, advised  that he has been an                                                               
engineer for  25 years (indisc.)  interactions.  He  then offered                                                               
one of his most frightening  experience as an engineer working in                                                               
Girdwoood  wherein  a   man  was  walking  with   his  two  young                                                               
daughters, one  five years and  one younger, and when  they heard                                                               
the whistle, the  man stepped off the tracks on  one side and his                                                               
daughter  stepped on  the other  side.   The few  seconds between                                                               
when they  started blowing  the horn, the  older daughter  made a                                                               
few steps to the  tracks and cut across in front  of the train to                                                               
get back her father  while he was telling her to  stay.  On March                                                               
13, 2018,  23-year old Skyler  Luke was  struck and killed  by an                                                               
Alaska Railroad  train between "C"  Street and  Arctic Boulevard.                                                               
Immediately, the engineer  blew the horn, rang  the bell, applied                                                               
the  brakes, and  he  was that  engineer,  he related.  (Indisc.)                                                               
fatalities  (indisc.)  nationwide (indisc.)  employees  volunteer                                                               
for  training   to  assist  crew  members   involved  in  serious                                                               
accidents, and  they have  that support  at the  Alaska Railroad.                                                               
Each time a  train makes an emergency stop, there  is a risk that                                                               
the  train will  break  apart and  cause  derailment.   (Indisc.)                                                               
involve (indisc.).   There  are many more  examples of  people on                                                               
the tracks  who are  killed or  injured, it  is certainly  a more                                                               
dangerous  place than  it appears.    He asked  the committee  to                                                               
leave  control of  the right-of-way  in the  hands of  the Alaska                                                               
Railroad in order to provide  a safe environment for himself, his                                                               
co-workers, and the citizens living along the tracks.                                                                           
2:53:33 PM                                                                                                                    
TOM MEACHAM,  Attorney, advised  that he  does not  represent any                                                               
party involved in  the HJR 38 issue, but he  is familiar with the                                                               
statute   that  transferred   the  railroad   from  the   federal                                                               
government to  the state.   He related that Mr.  Behrend, perhaps                                                               
conveniently,  ignored  the  fact  that the  only  two  areas  of                                                               
substantive operative law in the  Alaska Railroad Transfer Act in                                                               
which exclusive use easements are  imposed, are the federal lands                                                               
in  the Denali  National  Park and  Preserve  and the  unresolved                                                               
Native  Land   Claims.    He  opined   that  Representative  Kopp                                                               
accurately outlined the  situation here and explained  why HJR 38                                                               
is  necessary.   He  pointed  out that  during  70  years of  the                                                               
operation of  the Federal Alaska  Railroad, without  it asserting                                                               
an explicit  exclusive use  easement, was  successful.   In fact,                                                               
the portion of the exclusive  use easement that upset most people                                                               
is the  fact that the railroad  (indisc.) can fence the  land and                                                               
prevent any other use, even  use that is compatible with railroad                                                               
operations.    Another point,  he  emphasized,  is that  under  a                                                               
specific provision  in ARTA, any unresolved  issues regarding the                                                               
rights  of   the  railroad  and  other   properties,  owners,  or                                                               
claimants, are to  be resolved by the Secretary  of the Interior.                                                               
He commented  that Representative Kopp asked  the Alaska Railroad                                                               
for  a  list of  all  conflicting  claims resolved  through  this                                                               
provision, and  he has not  yet received  the list.   Mr. Meacham                                                               
related  that he  ventures to  say that  none of  the 200-private                                                               
homesteader-type landowners  along the railroad were  involved in                                                               
any such adjudications because they did not take place.                                                                         
2:55:54 PM                                                                                                                    
JOHN  PLETCHER advised  that he  is  a resident  of Anchorage,  a                                                               
member  of the  Old Seward/Oceanview  Community Council  Railroad                                                               
Committee, and his  website is www.railroadedAlaska.com regarding                                                               
the background of the exclusive  use easement issue.  He referred                                                               
to the  mention of  trespassers, and  stated that  trespassers do                                                               
not get  on the  tracks over  private property,  they get  on the                                                               
track  via  road  crossings,  of  which is  a  public  area,  and                                                               
somewhat via parks.  Several years  ago, he recalled, a woman got                                                               
out of  her car in the  Potter area, walked up  onto the railroad                                                               
tracks, took a picture, and was run  over by a train.  He related                                                               
that "all  of this"  has nothing  to do with  HJR 38  because the                                                               
resolution only goes  to the issue of how  the federal government                                                               
managed  to convey  property rights  that the  federal government                                                               
did  not  own.    The   property  rights  owned  by  the  federal                                                               
government  across   homestead  land   is  the   reservation  for                                                               
railroad, telegraph,  and telephone  found in every  federal land                                                               
patent  along  the tracks.    While  thoroughly researching  this                                                               
issue, he  said he  found that  (indisc.) railroad  telegraph and                                                               
telephone  easement  was what  Governor  Jay  Hammond called  the                                                               
"Standard Easement  in Alaska" for  railroads.   Governor Hammond                                                               
explained  that it  was  a national  standard  created under  the                                                               
General Railroad Act of 1875.   In a letter of March (indisc.) to                                                               
the United States  Congress, during the time the  "Fence Act" was                                                               
pending, "He  said that he hoped"  it would be the  easement even                                                               
for rail extensions, such as going  into Canada.  There is no way                                                               
that Governor Hammond would have  gone along with changing it, he                                                               
stressed,  and  offered that  during  his  interview with  United                                                               
States Representative Don  Young, he confirmed that  there was no                                                               
intention to  change this "vested  property rights  and homestead                                                               
2:58:24 PM                                                                                                                    
STEPHEN  MCALPINE   advised  that  he  is   with  the  Regulatory                                                               
Commission  of Alaska;  however,  he was  speaking  as a  private                                                               
individual.   He related that  he was the Lieutenant  Governor at                                                               
the  time  the  Alaska  Railroad Transfer  Act  (ARTA)  had  been                                                               
finalized and  the state  was securing the  actual transfer.   He                                                               
said  that he  could assure  the members  of the  House Judiciary                                                               
Standing  Committee,  the  Alaska  Legislature,  and  the  Alaska                                                               
public  that an  overriding concern,  one of  the most  important                                                               
concerns  they experienced,  was that  the Alaska  Railroad would                                                               
have  an  exclusive  easement.   When  pondering  the  issue,  he                                                               
related, Alaska  is one of the  few states with an  easement that                                                               
runs  "clear across  the state"  from Prudhoe  Bay to  Fairbanks,                                                               
travels on to  Valdez with the Trans-Alaska  Pipeline System, and                                                               
down  to Seward  with the  Alaska Railroad.   This  resolution is                                                               
actually a  license to trespass,  he stressed, and one  could say                                                               
it almost  rises to the level  of advocating larceny.   The court                                                               
is the venue where "these people  should go" if they believe ARTA                                                               
is  contrary to  law  because in  every  other circumstance,  the                                                               
court is  where legal  disputes are settled.   He  expressed that                                                               
the intent  of this resolution  is for the Alaska  Legislature to                                                               
adopt  a resolution  in support  of the  proponents' position  so                                                               
they can  take it  to the  United States  Congress and  parade it                                                               
before the federal body saying that  they have the support of the                                                               
State of Alaska and to go back and amend ARTA.                                                                                  
3:00:10 PM                                                                                                                    
FRED ROSENBERG,  Owner, Dimond Capital  Company, advised  that he                                                               
owns the Dimond Capital Company  on Dimond Boulevard in Anchorage                                                               
where  the  Red  Robin  Gourmet  Burgers  is  currently  located.                                                               
Everyone  wants safety,  he commented,  but  the Alaska  Railroad                                                               
says  that  it  needs  the exclusive  right-of-way  to  be  safe.                                                               
Except, he  pointed out, this is  not a question of  its need, it                                                               
actually  is  a  question  of  property  ownership  and  property                                                               
rights.  This  resolution is simple because  property owners have                                                               
a  fee simple  ownership  dating  back to  the  lineage and  real                                                               
estate title  from a patent.   The federal and  state governments                                                               
apparently  tried   to  transfer  certain  rights,   "or  did  it                                                               
unclearly," but  [the federal government]  didn't have  the right                                                               
to transfer.   It is like  a person owning their  home and having                                                               
someone  else transfer  rights to  the person's  property without                                                               
their knowledge  or proper authority.   Simply put,  he remarked,                                                               
the  conveyances being  discussed  infringe  on private  property                                                               
rights, they  are not valid,  and the titles to  these properties                                                               
in question  and the railroad's  claim should not  be considered.                                                               
Those  claims  should be  expunged  to  not impair  the  property                                                               
rights  of  private property  owners.    The railroad  refers  to                                                               
"other  issues or  other railroads"  around the  Lower-48, except                                                               
the properties  in Alaska  have fee simple  ownership due  to the                                                               
manner  in which  it  came about  and  are not  the  same as  the                                                               
properties in the  Lower-48.  Alaskans have  fee simple ownership                                                               
dating back  to an  original federal  patent and  no one  has the                                                               
right to abridge that right of the property owner, he stated.                                                                   
3:02:11 PM                                                                                                                    
HUGH ASHLOCK, Owner,  Dimond Center Mall, advised  that on behalf                                                               
of (indisc.)  annual customers and  his family (indisc.)  over 40                                                               
years, they  are concerned  about the cloud  this creates  on his                                                               
family's  title   because  his  father  purchased   the  property                                                               
(indisc.) homesteader.   Through the Alaska Homestead  Act he has                                                               
rights that  are (indisc.) worth  in excess of $100  million, and                                                               
they  recently  invested  an  additional  $40  million  into  the                                                               
shopping center so they have a large economic concern.                                                                          
3:03:32 PM                                                                                                                    
JODI  TAYLOR,  Church  of  Jesus Christ  of  Latter  Day  Saints,                                                               
advised  that the  Church of  Jesus Christ  of Latter  Day Saints                                                               
owns  80 acres  of property  located in  Willow, Alaska,  and the                                                               
church has  approximately 34,000  members in Alaska,  and several                                                               
youth camps, salmon  camps, young adult camps  use that property.                                                               
The  Alaska Railroad  runs through  part of  its property  and in                                                               
early 2000,  the railroad mandated  that the church install  a 6-                                                               
foot high fence 500 feet on  either side of the railroad, and the                                                               
church would receive  one mandate on either side  of the property                                                               
to let people come in and travel  out with one vehicle gate.  The                                                               
Alaska  Railroad, in  2005, asked  the  church to  rip down  that                                                               
fence and  put in another  fence.   She explained that  the first                                                               
mandate from  the railroad was that  the fence was to  be 50-feet                                                               
off the  center of the  tracks, and  the second mandate  was that                                                               
the fence was to be 100-feet off  the center of the tracks.  Both                                                               
of these mandates were at the  church's expense, the church put a                                                               
padlock on  the vehicle gate,  and the railroad cut  the church's                                                               
padlock  off and  put  its own  padlock on  the  gate.   Thereby,                                                               
preventing the  church from  access to  the lakefront  portion of                                                               
the property  it owns.   (Indisc.) with youth, young  adults, and                                                               
families, and  if a problem were  to arise at the  lakefront, the                                                               
church  could not  provide access  for the  first responders,  or                                                               
otherwise, to  get through to  the lakefront property  to assist.                                                               
She said the  church supports the right for the  railroad to have                                                               
safety,  but it  also believes  that this  resolution provides  a                                                               
common-sense  solution to  letting property  owners manage  their                                                               
3:05:25 PM                                                                                                                    
ROBERT TIMMINS advised that he  echoed everything Jody Taylor had                                                               
to  say about  HJR 38,  and that  he is  in full  support of  the                                                               
resolution.  He said  he is also a member of  the Church of Jesus                                                               
Christ  of Latter  Day  Saints,  has been  to  the  camp, and  he                                                               
realizes  the  injustice  this   resolution  will  resolve.    He                                                               
encouraged  the  committee  to understand  the  veracity  of  Ms.                                                               
Taylor's testimony.                                                                                                             
3:06:20 PM                                                                                                                    
CHAIR  CLAMAN,  after  ascertaining  no one  wished  to  testify,                                                               
closed public testimony on HJR 38.                                                                                              
3:06:48 PM                                                                                                                    
REPRESENTATIVE LEDOUX  referred to  HJR 38,  page 3,  lines 28-31                                                               
and page 4, line 1, and  commented that the entire intent of this                                                               
resolution is  to encourage Congress  to recognize  "validly held                                                               
private property rights  that were not conveyed  under the Alaska                                                               
Railroad Transfer Act of 1982."   Except, she related, whether or                                                               
not there  were validly  held private  property rights  that were                                                               
not conveyed under  the Alaska Railroad Transfer  Act (ARTA) does                                                               
not  actually  seem  to  be something  Congress  can  do  because                                                               
Congress is not a court that  makes legal decisions about what is                                                               
validly held  and what was  not conveyed.   Representative LeDoux                                                               
acknowledged that she is a lawyer  but not a property lawyer, and                                                               
described  that the  discussions  sound like  a  bunch of  "legal                                                               
gobbledy  goop"  about  rights-of-way.    She  related  that  she                                                               
doubts,  other  than the  property  attorneys  listening to  this                                                               
hearing,  that  anyone actually  knows  whether  the railroad  is                                                               
correct or Representative Kopp is  correct.  She related that she                                                               
will not  try to  keep this resolution  from moving  forward, but                                                               
she  is  unsure what  the  resolution  actually does  because  it                                                               
appears that this issue should be decided in the courts.                                                                        
3:09:06 PM                                                                                                                    
REPRESENTATIVE REINBOLD  advised (indisc.) knows the  Timmons and                                                               
Taylor  families  who have  been  outstanding  neighbors, and  to                                                               
think, see, and hear, what the  railroad is doing, and when these                                                               
"big  bullies" cut  the padlock  off the  fence, is  the type  of                                                               
actions  that  cause  her  to  lean  closer  to  supporting  this                                                               
3:10:02 PM                                                                                                                    
REPRESENTATIVE KOPP  said (indisc.) contention is  that while the                                                               
Alaska  Railroad Transfer  Act (ARTA)  directed that  the federal                                                               
interest be  transferred to the  state, it was the  United States                                                               
Department  of   Interior  that  inexplicably   and  indefensibly                                                               
transferred more than what the  federal government owned in these                                                               
2005 and  2006 land  patents without any  notice to  the affected                                                               
landowners.  That,  he explained, is where  the misapplication of                                                               
a federal  agency became  involved and  Congress is  necessary to                                                               
resolve that issue.                                                                                                             
[HJR 38 was held over.]                                                                                                         

Document Name Date/Time Subjects
HB351 ver N 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HJUD 4/11/2018 7:00:00 PM
HB 351
HB351 Sponsor Statement 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HJUD 4/11/2018 7:00:00 PM
HB 351
HB351 Explanation of Changes 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HB 351
HB351 Sectional Analysis 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HB 351
HB351 Supporting Document-Letter from DJJ 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HB 351
HB351 Additional Document-DJJ Responses to HSS Committee Questions 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HB 351
HB351 Fiscal Note DHSS-PS 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HJUD 4/11/2018 7:00:00 PM
HB 351
HJR38 ver J 4.6.18.PDF HJUD 4/6/2018 1:00:00 PM
HJR 38
HJR38 Sponsor Statement 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HJR 38
HJR38 Reference Documents with Index 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HJR 38
HJR38 Supporting Document-Letters & Public Comment 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HJR 38
HJR38 Supporting Document-Alaska Snowmobile Club Letter 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HJR 38
HJR38 Opposing Document-Letters 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HJR 38
HJR38 Opposing Document-Petro Star Inc. Letter 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HJR 38
HJR38 Opposing Document-ARRC Memo - Re ROW Ownership and Exclusivity 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HJR 38
HJR38 Fiscal Note LEG-SESS 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HJR 38
HJR38 PowerPoint Presentation 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HJR 38
HB075 Amendments #1-7 4.6.18.pdf HJUD 4/6/2018 1:00:00 PM
HB 75