Legislature(1995 - 1996)
03/14/1996 01:12 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.