Legislature(1995 - 1996)

03/14/1996 01:12 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 HJR 60 - RS 2477 HIGHWAY RIGHTS OF WAY                                      
                                                                               
 Number 0033                                                                   
                                                                               
 CO-CHAIRMAN WILLIAMS announced that the committee would take                  
 testimony on HJR 60 while awaiting the arrival of the bill's                  
 sponsor, Representative Jeannette James.                                      
                                                                               
 Number 0109                                                                   
                                                                               
 TOM HARRIS, Chief Executive Officer, Tyonek Native Corporation,               
 testified on behalf of the Village of Tyonek.  He requested that              
 the March 14, 1996 letter addressed to Senator Georgianna Lincoln             
 from the Tyonek Native Corporation be entered into the record as              
 part of the corporation's testimony:                                          
                                                                               
 "Tyonek Native Corporation and The Native Village of Tyonek are               
 requesting your assistance in conveying our concerns over House               
 Joint Resolution No. 60. relating to Revised Statute 2477 right-of-           
 way (RS 2477).                                                                
                                                                               
 "Please be aware that the State has made a claim of RS 2477 (200)             
 that crosses the Chuitna River at its mouth, takes out a 100 feet             
 through the village, and violates the Russian Orthodox cemetery in            
 the village, then travels on to the old village site where it                 
 terminates in the old village cemetery (also Russian Orthodox),               
 turns around and comes back.                                                  
                                                                               
 "The purpose of RS 2477 is supposedly to provide access to                    
 mineralized areas to the general public.  As you know, Tyonek is a            
 private community much like the private communities elsewhere in              
 the lower 48.  However to meet the needs of the resource                      
 development industry, Tyonek has already provided access to                   
 resource developers such as ARCO, Pacer Dome, Unocal, to name a               
 few.  Such access was provided by Tyonek, at no cost to the State             
 of Alaska and without disrupting the community.  Why then is                  
 RS2477(200) needed?  Why does the state need access to Tyonek's               
 cemeteries?                                                                   
                                                                               
 "RS 2477 as written and proposed by U.S. Congress Bill H.R. 2081,             
 provides for no public review or comment on any RS 2477 right-of-             
 way, no permitting or environmental impact review, no compensation            
 to the land owner (constituting a taking under the 5th Amendment),            
 and no commitment by the State to maintain the right-of-way after             
 it's taken.  While we agree that there are certain rights-of-way              
 that everyone can agree to support, we cannot and do not support RS           
 2477(200) in its present format, and have grave concerns about the            
 constitutionality of RS 2477 in its present form.  Thank you for              
 your support and consideration on this issue."                                
                                                                               
 CO-CHAIRMAN WILLIAMS asked Mr. Harris if he had further testimony.            
                                                                               
 Number 0134                                                                   
                                                                               
 MR. HARRIS emphasized that Tyonek is not opposed to resource                  
 development and supports responsible resource development, but does           
 not believe that RS 2477 allows any public land, 100 foot public              
 right-of-way, anywhere for any reason, without public comment or              
 review, without appropriate federal, state or local government                
 permitting and without appropriate confrontation with the land                
 owners that it is reasonable, responsible or in Alaska's best                 
 interest.                                                                     
                                                                               
 Number 0197                                                                   
                                                                               
 MR. HARRIS stated that Tyonek's opposition is primarily in respect            
 to RS 2477 (200).  He reminded the committee that there are over              
 1,800 of these rights-of-ways and stated that HJR 60 lists just               
 over 500.  He said that none of those rights-of-ways have been                
 publicly reviewed and stated that the resolution is worded that the           
 rights-of-ways were documented and qualified.  He said he had                 
 received no information that they were qualified and by whom.                 
                                                                               
 Number 0230                                                                   
                                                                               
 MR. HARRIS said that RS 2477 (200) goes right through the Village             
 of Tyonek.  It violates two cemeteries, Russian Orthodox cemetery,            
 and terminates in one of those cemeteries and then turns around and           
 goes back.  We just do not see the need for that.  This kind of               
 development is very counterproductive to relationships across the             
 state.                                                                        
                                                                               
 Number 0256                                                                   
                                                                               
 MR. HARRIS referred to page 3, line 1, "to enable this generation             
 and future generations of Alaskans to use the routes established by           
 pioneer Alaskans."  He said, "Respectfully, Mr. Chairman and                  
 committee members, we believe that it ought to state pioneer and              
 `Native Alaskans.'"  It is only appropriate if this bill is going             
 to be considered, it ought to document pioneer Alaskans and also              
 Native Alaskans usage of the land.                                            
                                                                               
 Number 0293                                                                   
                                                                               
 REPRESENTATIVE JEANNETTE JAMES, sponsor of HJR 60, responded to Mr.           
 Harris that she would be happy to write in "Native Alaskans."                 
                                                                               
 REPRESENTATIVE LONG suggested that deleting the word "pioneer"                
 would simplify the issue.                                                     
                                                                               
 Number 0328                                                                   
                                                                               
 KATHLEEN DALTON testified from Fairbanks, stating she was formerly            
 associated with the study of the 1,500-1,800 RS 2477 rights-of-               
 ways.  She complimented HJR 60 on being well written and factual.             
                                                                               
 MS. DALTON informed the committee that the Department of the                  
 Interior has been attempting in the last four years to legislate by           
 regulation.  She cautioned, "In other words, to eliminate any                 
 access to an RS 2477 right-of-way before the assertion is made, if            
 an assertion is ever made, before the state can review it."                   
                                                                               
 Number 0400                                                                   
                                                                               
 MS. DALTON applauded legislative leadership in recognizing that               
 this is a serious problem.  She said access is a serious problem in           
 Alaska and we know that ANILCA has Title XI which has appeared as             
 a solution to any access problem by some, but she believes that               
 ANILCA does not answer all access problems.  She referred to 17 (b)           
 under ANCSA relating to access possibility, and said it is not an             
 access possibility except at the time of a conveyance of Native               
 land to a Native corporation.  There are very strict limitations on           
 those.                                                                        
                                                                               
 Number 0437                                                                   
 MS. DALTON referred to page 2, line 17 reading, "Whereas federal              
 and state courts have consistently ruled for 100 years that it was            
 the intent of the Congress in enacting RS 2477 that the law of the            
 state where the RS 2477 right-of-way is located defines the acts              
 that constitute acceptance and the scope of the right-of-way."  She           
 indicated that the state has not had an opportunity as far as                 
 decline (indisc.) and she hopes the issue will remain open and it             
 may be 10 years from now that this is needed.                                 
                                                                               
 MS. DALTON addressed Mr. Harris from Tyonek stating that some of              
 the trails that were looked at in the study were traditional Native           
 trails.  She mentioned Shishmaref across the conservation unit.               
 There is a cultural trail from the upper Alatna area over into                
 Kobuk.  That trail has been established there for centuries.                  
                                                                               
 Number 0502                                                                   
                                                                               
 CO-CHAIRMAN WILLIAMS closed teleconference testimony and invited              
 Juneau participants to come forward.                                          
                                                                               
 Number 0530                                                                   
                                                                               
 BILL PERHACH, Volunteer, Alaska Environmental Lobby, testified that           
 the Alaska Environmental Lobby cannot support HJR 60 and read his             
 statement into the record:                                                    
                                                                               
 "This resolution accurately quotes the language of RS 2477                    
 providing that the "right-of-way for the construction of highways             
 over public lands, not reserved for public use, is hereby granted."           
                                                                               
 MR. PERHACH continued, "It correctly notes the Federal Land Policy            
 and Management Act repealing RS 2477 in 1976 expressly reserves               
 existing rights-of-way created under RS 2477.                                 
                                                                               
 MR. PERHACH proceeded, "It laudably commits Alaska `to a balanced             
 philosophy of the development and wise use of Alaska's scenic                 
 beauty, mineral wealth, wildlife, and other natural resources                 
 coupled with environmental protection to ensure future generations'           
 might experience Alaska as we still know it.                                  
                                                                               
 MR. PERHACH stated, "However, this resolution's reliance on case              
 law supporting the intent of a Congress that governed the United              
 States 130 years ago might very well be misplaced.  `The law must             
 be stable, but it cannot stand still.'                                        
                                                                               
 MR. PERHACH, "The resolution's confidence in a definition of                  
 `construction' satisfied by mere use is tenuous and - at the very             
 least - will make lawyers wealthy.                                            
                                                                               
 MR. PERHACH said, "Ultimately, however, HJR 60 fails to deserve               
 support because it endorses bad legislation:  U.S. Senate Bill 1425           
 and U.S. House Bill 2081.  These Bills are open ended and do not              
 address major concerns of many Alaskans such as the `taking' of               
 private lands; the status of Native Lands; the disposition of                 
 surveyed and unsurveyed section lines, the scope of `upgrades'                
 (winter trails across wetlands to all weather highways); unmanaged            
 motorized access, and access to and through National Parks.                   
                                                                               
 MR. PERHACH concluded, "Ultimately, Alaska is acquiring a poor                
 reputation as steward of its resources.  This resolution does                 
 nothing for that image and only provides more ammunition for those            
 who say we're not."                                                           
                                                                               
 MR. PERHACH further stated that he is from the Denali Borough and             
 in initial studies that were done in Denali Park, there were 30 RS            
 2477 routes identified.  Six of those were routes that go into the            
 Kantishna.  You will recall that part of all six routes were looked           
 at as a way of bringing another road into the Kantishna providing             
 what is referred to as North Side Access.  He said the engineers,             
 the Fairbanks Northern Regional DOT, referred to the favored route            
 also known as the Stampede Trail, all of those routes are winter              
 trails.                                                                       
                                                                               
 Number 0709                                                                   
                                                                               
 REPRESENTATIVE LONG thanked Mr. Perhach for his testimony stating             
 that he had been teetering on whether to support this legislation             
 until the testimony alleged that lawmakers were poor stewards.                
                                                                               
 Number 0727                                                                   
                                                                               
 REPRESENTATIVE OGAN stated that he was not teetering and takes high           
 offense to Mr. Perhach's assertion that the legislature is a poor             
 steward. He said, "The ultimate lockup and the ultimate win for the           
 environmental community would be to, forever, have no access to the           
 state.  I think the environmental community is quietly sitting back           
 and hoping, and praying, that we will not be able to establish any            
 rights-of-ways, because it is the only win.  Then you guys will not           
 have to fight things project-by-project, because then there will              
 never be any projects."                                                       
                                                                               
 Number 0771                                                                   
                                                                               
 REPRESENTATIVE JEANNETTE JAMES prefaced that HJR 60 was designed to           
 establish that the state has some rights in the RS 2477, and said             
 that the Federal Revised Statute 2477 (RS 2477) provided for `the             
 right-of-way' for the construction of highways over public lands,             
 not reserved for public use.  HJR 60 preserves access all over                
 Alaska using traditional roads and trails for future roads and                
 trails.                                                                       
                                                                               
 REPRESENTATIVE JAMES said the definition of "highways" could be               
 construed to mean black top and in Alaska that is not the case.  We           
 have spent a lot of time and money trying to identify where these             
 trails are and time is running out.  We need some assistance.                 
                                                                               
 REPRESENTATIVE JAMES further speculated if a trail is protected, it           
 is possible by negotiation to move the trail a little to be sure              
 that it is physically able to be constructed or does not interfere            
 with some other uses since the trail was used.  I think that if               
 Alaska wants to have a successful future, this resolution is a very           
 important part of it.  We are going to have to talk this out and              
 work this out together.                                                       
                                                                               
 REPRESENTATIVE JAMES further said, I do not see that we have any              
 controversy with the Native lands and the Native issues in the                
 state.  I think that our entire goal should be to be able to                  
 provide ourselves with income off of our resources.  We need these            
 trails in order to do that.  Yes, we have spent a lot of money                
 trying to identify where these trails are.  No, we have not been              
 able to get into court to assert our rights and get a court                   
 decision that says, in fact, this is a valid trail.  When we bring            
 forward these identified trails throughout the state, and we go to            
 court to establish them, that is the time when people can come                
 forward with their objections.  These are not automatic, we have to           
 assert them first.                                                            
                                                                               
 Number 0898                                                                   
                                                                               
 REPRESENTATIVE RAMONA BARNES referred to page 3, line 2 and moved             
 to insert "Native and" before the word "pioneer."  The sentence               
 would read, "to enable this generation and future generations of              
 Alaskan to use the routes established by Native and pioneer                   
 Alaskans."  She said Native Alaskans were here first and it stands            
 to reason that they should be included first.                                 
                                                                               
 Number 0922                                                                   
                                                                               
 CO-CHAIRMAN WILLIAMS said, hearing no objection, it is so ordered.            
                                                                               
 Number 0938                                                                   
                                                                               
 REPRESENTATIVE JAMES stated that if we are going to continue to be            
 good stewards of the state, and manage the state's resources in a             
 responsible manner, and we continue to represent the protection of            
 the environment in a safe way, this is the public process.  To not            
 do anything is the wrong answer.  The thing is to do it in a                  
 responsible manner. I think this is an important message to send to           
 Washington, D.C.                                                              
                                                                               
 Number 0983                                                                   
                                                                               
 REPRESENTATIVE DAVIES offered an amendment on page 2, line 25-29:             
 delete all material.                                                          
                                                                               
 REPRESENTATIVE BARNES objected.                                               
 Number 1016                                                                   
                                                                               
 REPRESENTATIVE JAMES responded that she understands Representative            
 Davies concern but felt it imperative to keep the language, "to               
 preserve the long-standing judicial and executive interpretation of           
 RS 2477 and to protect the existence of rights-of-way previously              
 granted by the federal government under RS 2477."                             
                                                                               
 Number 1070                                                                   
                                                                               
 REPRESENTATIVE BARNES interpreted Representative Davies intent and            
 suggested the deletion of "S. 1425" on line 25; the language could            
 read, "Whereas legislation has been introduced in the United States           
 Senate."  On line 26 delete "H.R. 2081" and the language could                
 read, "Whereas legislation has been introduced in the United States           
 House."  She felt that would accomplish Representative Davies                 
 purpose and stated that she supported that amendment.                         
                                                                               
 Number 1100                                                                   
                                                                               
 REPRESENTATIVE DAVIES accepted Representative Barnes amendment to             
 the amendment.  Hearing no objection, it was so ordered.                      
                                                                               
 Number 1120                                                                   
                                                                               
 CO-CHAIRMAN WILLIAMS asked if there was objection to the amendment.           
 Hearing no objection, it was so ordered.                                      
                                                                               
 Number 1123                                                                   
                                                                               
 REPRESENTATIVE BARNES moved that HJR 60, as amended, move from the            
 House Resources Committee with individual recommendations and                 
 attached zero fiscal note.  There being no objection, CSHJR 60(RES)           
 passed from the House Resources Committee.                                    
                                                                               

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