Legislature(2017 - 2018)GRUENBERG 120

03/01/2018 03:15 PM House STATE AFFAIRS

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* first hearing in first committee of referral
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Heard & Held
Moved HCR 22 Out of Committee
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Heard & Held
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+ Bills Previously Heard/Scheduled TELECONFERENCED
          HJR 38-AK RAILROAD TRANSFER ACT; CONVEYANCES                                                                      
3:38:43 PM                                                                                                                    
REPRESENTATIVE LEDOUX announced that  the final 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.                                                                                                  
3:39:46 PM                                                                                                                    
JOHN  PLETCHER testified  that he  has a  home next  to Oceanview                                                               
Park in South  Anchorage and became aware of  the Alaska Railroad                                                               
(ARR) issue when the Residential  Right-Of-Way Use Permit Program                                                               
was  initiated in  2012.   He  stated that  his  testimony is  in                                                               
response  to the  safety  issues raised  by  the Alaska  Railroad                                                               
Corporation (ARRC).   He  referred the  committee to  his written                                                               
comments and photographs, included in the committee packet.                                                                     
MR. PLETCHER  stated that  ARR's safety  problems fall  under two                                                               
categories:  1) trespassers and  2) some landowners whose actions                                                               
are inconsistent with railroad operations.                                                                                      
MR. PLETCHER referred to the photograph  on page 2 of his written                                                               
comments, which  shows the Potter  area, south of Anchorage.   He                                                               
stated that an  Asian woman got onto the railroad  tracks and was                                                               
hit by a train.  He  relayed that trespassing is largely confined                                                               
to the public  areas; people get on the tracks  at road crossings                                                               
and then  go off the highway.   He maintained that  this does not                                                               
represent a  private property issue, because  most landowners are                                                               
as interested  in keeping  trespassers off  their property  as is                                                               
ARRC.   He  emphasized  that the  idea  of "exclusive-use"  being                                                               
necessary  to  keep  trespassers  off the  railroad  is  a  "red-                                                               
herring" argument.                                                                                                              
MR.  PLETCHER  concluded by  saying  that  the legislature  could                                                               
assist  by providing  more detail  regarding  what constitutes  a                                                               
"trespass" and by defining it through legislation.                                                                              
3:43:43 PM                                                                                                                    
REPRESENTATIVE  TUCK  asked about  the  second  concern that  Mr.                                                               
Pletcher mentioned:   landowner  property use  being inconsistent                                                               
with railroad operations.                                                                                                       
MR. PLETCHER answered  that there may be some  instances in which                                                               
landowners have caused  problems, but if ARRC has  a problem with                                                               
a landowner,  its recourse should  be to go  to court and  get an                                                               
injunction against the landowner.   He maintained that the Alaska                                                               
Supreme  Court has  stated that  ARRC should  not be  engaging in                                                               
"self-help."  He  stated that he has never been  informed by ARRC                                                               
that he is  causing a problem and does not  know of any neighbors                                                               
causing problems except for one  neighbor, who was parking trucks                                                               
in an  area that ARRC considered  to be too close  to the tracks;                                                               
ARRC blocked  the area off.   He cited that incident  as being an                                                               
example of  self-help that the Alaska  Supreme Court discourages;                                                               
instead the parties with the dispute should go to court.                                                                        
3:45:03 PM                                                                                                                    
REPRESENTATIVE  LEDOUX relayed  that Representative  Kopp made  a                                                               
very  eloquent presentation  on  HJR 38  before  the House  State                                                               
Affairs Standing Committee [2/27/18 meeting].   She asked why the                                                               
Alaska  State  Legislature  is asking  Congress  to  resolve  the                                                               
issue, which  appears to be  an issue of illegality,  rather than                                                               
taking the issue to court for resolution.                                                                                       
MR. PLETCHER  responded that at  this time  he is asking  for the                                                               
legislature to address  the issue; there are many  ways to handle                                                               
problems, and one  way is legislatively.  He  maintained that not                                                               
every  situation requires  court action;  this situation  is very                                                               
simple and  could be handled  through the legislature.   He added                                                               
that litigation is extremely expensive.                                                                                         
3:46:32 PM                                                                                                                    
REPRESENTATIVE KNOPP  relayed that Representative  Kopp indicated                                                               
that under the  Alaska Railroad Transfer Act (ARTA)  of 1982, ARR                                                               
received  surface  easements  for railroad  operations;  ARRC  is                                                               
arguing that  it has  "exclusive-use easements."   Representative                                                               
Knopp   asked  if   his  understanding   is  correct   that  this                                                               
discrepancy represents the point of contention.                                                                                 
MR. PLETCHER  replied that the  point of contention is  that ARRC                                                               
[claims] property rights that the  federal government did not own                                                               
upon transfer of the railroad to the state.                                                                                     
REPRESENTATIVE  KNOPP suggested  that  the  resolution would  ask                                                               
Congress to clarify  the nature of the easement.   He agreed that                                                               
litigation  would   be  prohibitively  expensive  for   a  single                                                               
landowner, and  a class action suit  would take a long  time.  He                                                               
asked if clarification  is what Mr. Pletcher is  seeking from the                                                               
Alaska congressional delegation.                                                                                                
MR. PLETCHER  concurred that the  delegation has  maintained that                                                               
it is  a state issue  and welcomes  the legislature's input.   He                                                               
maintained  that  the proposed  resolution  would  give both  the                                                               
governor  and Congress  the legislature's  input, and  that would                                                               
help all three entities to help the landowners.                                                                                 
MR. PLETCHER  stated that two  years ago, Alaska  Congressman Don                                                               
Young told him that ARRC  changed its property rights; the change                                                               
was not  intended by Congress;  and in fact, a  transfer changing                                                               
existing property rights would not have passed Congress.                                                                        
3:49:28 PM                                                                                                                    
JACK  BROWN  testified  urging the  committee  members  to  study                                                               
Section 1205 of  ARTA, [U.S. Code Title 45,  Chapter 21, included                                                               
in the  committee packet], subparagraphs  (a) and (b),  to better                                                               
understand  and represent  the "exclusive-use"  issue.   He  also                                                               
encouraged  review  of  the Homestead  Act  [1862]  ("homestead")                                                               
patent.  He stated that  the homestead patent represented supreme                                                               
title to  the land and  is not something  that ARRC and  the U.S.                                                               
Department of  the Interior (USDOI)  should be able  to disregard                                                               
based on one  line in ARTA, which has been  taken out of context.                                                               
He  maintained  that   the  intent  of  ARTA  was   not  as  ARRC                                                               
interpreted it, and Alaska U.S.  Congressman Don Young "literally                                                               
pounded his fist on the table and  came out of his chair, when he                                                               
found out what the railroad had done with this."                                                                                
MR.  BROWN  relayed  that  the  law is  clear  that  the  General                                                               
Railroad Right-of-Way  Act of  1875 ("1875  Act") was  created to                                                               
prevent [the  exclusive-use easement  claim] from happening.   He                                                               
said the  intent of the  Act was  to state that  future railroads                                                               
were to  have a surface  easement interest only;  ARRC completely                                                               
ignored  the  constitution  and  stole  Alaskans'  land,  thereby                                                               
putting  them in  a  position  of trying  to  sue the  government                                                               
"until  they're all  dead or  broke."   He  maintained that  ARRC                                                               
"dumped this entire  mess into the lap  of just a very  few of us                                                               
in South  Anchorage," because  it was testing  the waters  of the                                                               
Residential Right-Of-Way Use Permit Program.   He offered that it                                                               
has been "sucking the life out of us, and we're quite tired."                                                                   
MR. BROWN maintained that it is  time for ARRC to "come clean and                                                               
take the high road."  He  commented, "The whole charade was based                                                               
on deception  and confusion and secrecy."   He said the  issue is                                                               
now public and clear.                                                                                                           
3:53:12 PM                                                                                                                    
FRED ROSENBURG  testified that  he is a  property owner  and sole                                                               
shareholder  of Dimond  Capital  Company,  which owns  commercial                                                               
property on  Dimond Boulevard in  Anchorage.  He stated  that the                                                               
property abuts ARR  property; the lineage of  the title indicates                                                               
that  the  property  is  subject  to  a  homestead  patent.    He                                                               
explained that a  land patent is an exclusive land  grant made by                                                               
a  sovereign  entity,   which  in  this  case   was  the  federal                                                               
government.   Under a land  patent, one is granted  benefits that                                                               
deed holders do  not have.  State constitutions  and statutes are                                                               
subordinate to  federal land patents.   He relayed that  the U.S.                                                               
Supreme Court has  upheld the supremacy of the  right of patents;                                                               
those  benefits  exist  for  heirs   and  assigns  forever.    He                                                               
mentioned  that the  U.S. Supreme  Court  case, Brandt  Revocable                                                             
Trust v. U.S.,  was a landmark case; it involved  a railroad that                                                             
wanted to  benefit from land that  it was not using  anymore; the                                                               
U.S. Supreme Court  ruled that the land reverted  to the original                                                               
patent holder.                                                                                                                  
MR. ROSENBURG continued by saying  that ARRC issued an opposition                                                               
to  HJR 38;  however,  many  of their  legal  arguments apply  to                                                               
village  corporations, not  private property  owners.   He stated                                                               
that he has  experienced an issue with ARRC  regarding a two-and-                                                               
a-half-acre piece of property with  a Red Robin Restaurant on it.                                                               
Without any notice  or discussion, ARRC had  contractors cut down                                                               
all the landscaping along the  property line and install a fence.                                                               
He stated that ARRC trespassed  and cut down landscaping that was                                                               
not on the  ARR easement but on private property.   He reiterated                                                               
that the  property is subject  to patents; the  patents supersede                                                               
ARTA and any subsequent patents or  deeds that are issued; and it                                                               
is  important to  note  that ARRC  does not  have  the rights  it                                                               
claims to  have under  ARTA, because the  patent is  superior and                                                               
supersedes it.                                                                                                                  
3:56:22 PM                                                                                                                    
REPRESENTATIVE TUCK asked  how long Dimond Capital  has owned the                                                               
MR. ROSENBURG  responded that he  has owned the  property through                                                               
various  entities since  the  early  '90s.   He  added that  even                                                               
though  he has  the  right  to use  the  property  if it  doesn't                                                               
interfere with the ARR, ARRC charged  him rent to store snow on a                                                               
limited portion of the property.   He mentioned that at the time,                                                               
he was  not aware of  the patent issues  and how his  rights were                                                               
being abrogated.                                                                                                                
REPRESENTATIVE  TUCK  asked Mr.  Rosenburg  whether  he has  been                                                               
paying for snow storage since the early '90s.                                                                                   
MR. ROSENBURG replied, "No, I haven't."   He said he paid for two                                                               
years and then was able to rearrange the storage of snow.                                                                       
REPRESENTATIVE TUCK  asked how he  knew the landscaping  had been                                                               
cut and whether he had it surveyed.                                                                                             
MR.  ROSENBURG  answered  that  he  has a  survey  from  when  he                                                               
purchased the property  and an "as-built" from when  he built the                                                               
building.  He stated that ARRC  has made markings to indicate the                                                               
easement, and  it is  evident from looking  at the  property that                                                               
the markings  are on his property.   He maintained that  ARRC has                                                               
acknowledged that it cut down the  trees and put its fence on Mr.                                                               
Rosenburg's property; the  trees had been there for  25 years and                                                               
were  very  large and  beautiful;  and  ARRC  is trying  to  make                                                               
REPRESENTATIVE TUCK asked whether ARRC offered any remedy.                                                                      
MR. ROSENBURG  responded that  it did not.   He  has corresponded                                                               
through emails;  ARRC acquiesced and  mentioned it would  like to                                                               
make amends;  there has  been no conclusion  yet.   He maintained                                                               
that  according to  the age  of  the trees  and the  size of  the                                                               
roots, replacement cost is expected to be about $200,000.                                                                       
3:58:49 PM                                                                                                                    
REPRESENTATIVE WOOL asked  whether the rent for  snow storage was                                                               
the  only  rent  charged;  and when  Mr.  Rosenburg  stored  snow                                                               
elsewhere, if ARRC stopped charging rent.                                                                                       
MR. ROSENBURG replied that the rent  was just for storage of snow                                                               
on a small  portion of property in the easement.   He didn't need                                                               
that storage space later, as business  was down, and he could use                                                               
part of his parking lot for snow storage.                                                                                       
REPRESENTATIVE  WOOL asked  whether the  fence was  erected after                                                               
the trees were cut down.                                                                                                        
MR. ROSENBURG  answered that it  was, and cutting the  trees down                                                               
was necessary  to erect the  fence.   He explained that  ARRC did                                                               
not dig up the trees properly  but had someone cut them down with                                                               
a  chain saw;  it  left unsightly  stumps  that were  potentially                                                               
dangerous and created a liability.                                                                                              
4:00:04 PM                                                                                                                    
HUGH  ASHLOCK, Owner,  Dimond Center,  testified that  his family                                                               
bought  the property  from  the Tetze  estate;  the Tetze  family                                                               
received  their homestead  patent in  1952; and  the property  is                                                               
subject to  the Alaska Railroad  Act of 1914 ("1914  Act"), which                                                               
transferred ARR to  the State of Alaska.  He  stated that he owns                                                               
the property  to the center line  of the ARR right  of way (ROW);                                                               
since  Dimond Center  is  worth over  $80  million, the  property                                                               
outside of  the railroad track area  is most likely worth  in the                                                               
millions  of   dollars.    He   maintained  that  he   wishes  to                                                               
commercially use that  property.  He added that he  is willing to                                                               
work with ARRC long-term, that  is, implementing intermodal uses,                                                               
a commuter rail stop, or other development.                                                                                     
REPRESENTATIVE TUCK asked  whether there are any  barriers to Mr.                                                               
Ashlock being a better partner with ARRC.                                                                                       
MR. ASHLOCK  answered that  he would be  amenable to  fencing the                                                               
tracks off  to public access and  using some of the  ROW for snow                                                               
storage  or  parking.    He   mentioned  the  possibility  of  an                                                               
intermodal  station with  funding through  Alaska's congressional                                                               
delegation.  He  stated that he is willing to  work together with                                                               
ARRC in a positive and constructive manner.                                                                                     
REPRESENTATIVE  TUCK  asked  whether   any  discussions  in  that                                                               
direction have begun.                                                                                                           
MR. ASHLOCK replied  no, but he and ARRC have  both "reached out"                                                               
to discuss  a positive step forward.   He stated that  ARRC still                                                               
maintains  that it  has an  exclusive-use easement  and no  other                                                               
options are available at this point.   He said that Governor Bill                                                               
Walker will have  a task force meeting in the  next couple months                                                               
to  develop a  long-range  plan for  commuter  rail; Mr.  Ashlock                                                               
expressed his desire  to be a stakeholder in that  process and to                                                               
positively push that effort forward.                                                                                            
REPRESENTATIVE  TUCK asked  Mr. Ashlock  whether he  supports HJR
MR. ASHLOCK replied that he does.                                                                                               
4:03:53 PM                                                                                                                    
TOM  MEACHAM testified  that he  has practiced  natural resources                                                               
law for  47 years.  He  referred to paragraph 1  of the statement                                                               
of  opposition  submitted  by ARRC,  included  in  the  committee                                                               
packet, which  read in part,  "In addition, settled  law relating                                                               
to  railroad  rights-of-way states  that  even  where a  railroad                                                               
lacks  full fee  simple  title  in its  ROW,  it  still has  full                                                               
exclusive  rights to  use  the  surface of  the  ROW  due to  the                                                               
inherently  hazardous   nature  of  railroad  operations."     He                                                               
recommended  that  committee  members specifically  request  that                                                               
ARRC  produce  the  citations  to civil  law  that  support  that                                                               
MR. MEACHAM relayed that his  testimony is that the exclusive-use                                                               
easement under ARTA  applies in two specific situations:   1) the                                                               
ARR ROW through Denali National  Park and Preserve (DNPP), and 2)                                                               
village claims under Alaska Native  Claims Settlement Act (ANCSA)                                                               
that  were not  resolved  by the  time  ARTA was  made  law.   He                                                               
maintained that these  are the only two instances  for which ARRC                                                               
has  legal  authority  under  ARTA  to  impose  an  exclusive-use                                                               
easement; the  remainder of its  ROW is  subject to the  1914 Act                                                               
easement, the  subsequent U.S. Supreme  Court decisions,  and the                                                               
land appeal decision  that interpreted the ARR easement  to be an                                                               
easement for railroad purposes only and not for exclusive use.                                                                  
MR.  MEACHAM  referred to  paragraph  5  of ARRC's  statement  of                                                               
opposition,  which  read  in   part,  "the  federal  government's                                                               
guarantee  that  it will  defend  ARRC's  title  of at  least  an                                                               
exclusive use easement  shows that the State and  ARRC would have                                                               
recourse to enforce ARTA's guarantee  of exclusive control of the                                                               
ROW  should a  neighboring landowner  assert ownership  rights in                                                               
the  ROW."   He  maintained that  the  proposed resolution  would                                                               
encourage Alaska's  congressional delegation to demand  an answer                                                               
from USDOI  as to whether it  would support the position  of ARRC                                                               
and defend it  if sued or leave  it to ARRC to make  its own case                                                               
for its interpretation of ARTA.                                                                                                 
4:07:54 PM                                                                                                                    
REPRESENTATIVE KNOPP referred to the  two situations in which the                                                               
exclusive-use easement applies - DNPP  and ANCSA - and asked when                                                               
ARTA  was  modified  to  address  exclusive  use  for  these  two                                                               
MR. MEACHAM  replied that DNPP  was created decades  before ARTA;                                                               
and  the   unresolved  claims  of  Native   village  corporations                                                               
occurred at least a decade before  ARTA.  He maintained that ARTA                                                               
tried to deal with the kind  of rights that would be reserved for                                                               
those two specific properties, but  it did not proport to attempt                                                               
changing any existing easement or ROW provisions.                                                                               
REPRESENTATIVE BIRCH asked if ARRC  ever asserted a claim that it                                                               
owned an exclusive-use  easement for its ROW prior  to the [1982]                                                               
MR. MEACHAM responded that he is  not aware of any instance prior                                                               
to  ARTA in  which ARRC  or  the federal  government asserted  an                                                               
exclusive-use  easement,   which  is  why  the   landowners  were                                                               
surprised to learn that interim  conveyances had been drafted and                                                               
issued asserting  exclusive-use easements;  that issue  had never                                                               
come up under the 1914 Act.                                                                                                     
4:11:24 PM                                                                                                                    
REPRESENTATIVE TUCK  referred to  ARRC's statement  of opposition                                                               
to  HJR  38,  paragraph  3,  which  read  in  part,  "45  U.S.C.                                                                
1205(b)(2) required  the U.S. Department  of Interior  to resolve                                                               
any remaining  claims of valid  existing rights by  January 1986.                                                               
Those  provisions were  followed,  and  claims were  adjudicated.                                                               
This  mechanism provided  any  adjacent  landowners who  asserted                                                               
claims  to ownership  rights in  the ROW  a final  opportunity to                                                               
have  those  claims adjudicated."    He  asked,  "If there  is  a                                                               
dispute ... on those claims  being adjudicated and an opportunity                                                               
wasn't afforded, is there any  type of constitutional due process                                                               
... that refuses that 'disavowment'?"                                                                                           
MR. MEACHAM replied that the  statement by ARRC is incorrect; the                                                               
citation,  45  U.S.C.  1205(b)(2),  refers  to  the Secretary  of                                                               
USDOI  resolving unresolved  pending  Native  village claims;  it                                                               
does  not pertain  to  patent  holders along  the  ARR  ROW.   He                                                               
maintained that the procedures were  not followed regarding those                                                               
patent   holders,  because   the  Secretary   of  USDOI   has  no                                                               
jurisdiction over  their properties.   He said that  the question                                                               
of "due  process" arises  when ARRC  asserts a  new exclusive-use                                                               
claim;  the landowners  had no  prior notice  before the  interim                                                               
conveyance was  instituted.   He mentioned  a U.S.  Supreme Court                                                               
case in the  late '40s, [Mullane v. Central Hanover  Bank & Trust                                                             
Co.]:   the City of  New York decided  it needed a  new reservoir                                                             
for  the  public   water  supply;  it  posted   notices  in  some                                                               
courthouses  identifying all  the properties  it would  take; the                                                               
court  ruled  that  the  City  could  not  enlarge  its  property                                                               
interests at the expense of  private landowners without informing                                                               
each  individual landowner.   He  continued by  saying that  ARRC                                                               
knew who  the landowners were along  the ROW; if it  was going to                                                               
assert  an  exclusive-use  easement,   it  had  a  constitutional                                                               
obligation to inform all the landowners before it took effect.                                                                  
REPRESENTATIVE TUCK  asked, "If  the railroad refused  to disavow                                                               
its present  claim on owning  an extension control of  the entire                                                               
ROW, ... is there anything a landowner can do?"                                                                                 
MR.  MEACHAM suggested  two  options:   1)  to  pass  HJR 38  and                                                               
deliver  it to  Alaska's  congressional delegation  to demand  an                                                               
answer from  USDOI whether it  supports ARRC's  interpretation of                                                               
exclusive-use easement overall  and not just for  DNPP and Native                                                               
claim lands, and 2) to litigate  against ARRC and USDOI, since it                                                               
involves  federal law  and it  is the  obligation of  the federal                                                               
courts to interpret it.                                                                                                         
4:16:22 PM                                                                                                                    
BILL O'LEARY, Chief Executive Officer, Alaska Railroad                                                                          
Corporation (ARRC), paraphrased from his written testimony,                                                                     
which read as follows [original punctuation provided]:                                                                          
     Thank you madam chair, members of the committee. For                                                                       
     the record my name is Bill O'Leary. I am the President                                                                     
     and CEO of the Alaska Railroad and I'm here                                                                                
     representing our 600 employees, numerous customers,                                                                        
     and the half a million passengers that we carry every                                                                      
     year. On their behalf I am here in opposition to House                                                                     
     Joint Resolution 38.                                                                                                       
     I am going to talk about three issues today: the                                                                           
     history of the ownership of the Alaska Railroad right-                                                                     
     of-way, why we need exclusivity in the right-of-way,                                                                       
     and the impacts to the Alaska Railroad and our                                                                             
     customers should we not have exclusive control of the                                                                      
     I appreciate the opportunity to clear up some of the                                                                       
     issues that were brought up Tuesday and some of the                                                                        
     other testimony that you will most certainly hear here                                                                     
     today. But I would like to start by saying that                                                                            
     Representative LeDoux was absolutely correct in her                                                                        
     assertion Tuesday that this is an issue that belongs                                                                       
     in court. When it comes to a situation where                                                                               
     reasonable people disagree about the nuances of a                                                                          
     point of law, a court of law is where the decisions on                                                                     
     that point of law should be made.                                                                                          
     Related to that, I also want to let you know that I                                                                        
     will do my best to answer questions after my                                                                               
     testimony, but since I am neither a legal or real                                                                          
     estate expert, I am a CPA by training, I have our                                                                          
     chief counsel Andy Behrend and our Manager of Land                                                                         
     Services, Doug Stephens on line to answer those                                                                            
     questions in depth.                                                                                                        
     The committee heard at length on Tuesday about the                                                                         
     supposed connection between the 1875 Railroad Act and                                                                      
     the 1914 Act, which created the federally-owned Alaska                                                                     
     Railroad. The fact that Congress created a separate                                                                        
     act for the creation of our railroad, one not based on                                                                     
     nor resembling the 1875 Act, points out just how and                                                                       
     why we were and are unique.                                                                                                
     Without going into an exhaustive history lesson,                                                                           
     railroads built in the lower 48 in the 1800s were land                                                                     
     grant railroads. That means that the federal                                                                               
     government gave land to private builders, usually                                                                          
     every other section along the right-of-way of the                                                                          
     tracks, as part of the payment for building the                                                                            
     railroad. When concerns were raised about early grants                                                                     
     of fee simple title in vast amounts of federal land to                                                                     
     private railroads, Congress passed the Act of 1875,                                                                        
     which granted railroad rights-of-way that were not in                                                                      
     fee simple, but which still gave railroads exclusive                                                                       
     use of the land for railroad use.                                                                                          
4:19:56 PM                                                                                                                    
     When it came to building the Alaska Railroad, however,                                                                     
     Congress and the President recognized that the                                                                             
     failures of private interests to build a railroad in                                                                       
     Alaska meant that the federal government would have to                                                                     
     do it. This was an entirely different situation than                                                                       
     the land grant railroads that were the subject of the                                                                      
     1875 Act.  So they wrote entirely new law in the 1914                                                                      
     Act that did not refer to and was not grounded in the                                                                      
     1875 Act. As such, the President had full authority to                                                                     
     purchase the failed railroad out of Seward, a narrow                                                                       
     gauge railroad out of Fairbanks, and reserve a right-                                                                      
     of-way through land that the federal government                                                                            
     already owned. It was only years later that the                                                                            
     federal government would issue patents to                                                                                  
     homesteaders, while reserving the right-of-way for the                                                                     
     Alaska Railroad, which the federal government owned                                                                        
     exclusively and in its entirety.                                                                                           
     This is also shown in discussions that happened at the                                                                     
     time of transfer of the Alaska Railroad to the State                                                                       
     of Alaska. The congressional record is clear on what                                                                       
     the government owned and what it was giving to the                                                                         
     State of Alaska in terms of an Exclusive Use Easement.                                                                     
     And while the term Exclusive Use Easement was new at                                                                       
     the time, what it included was not.                                                                                        
     In the congressional record of June 22, 1982, the                                                                          
     Senate Committee on Commerce, Science and                                                                                  
     Transportation specified, under the proposed Alaska                                                                        
     Railroad Transfer Act, that the United States "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                                                                                                      
     The language of the Alaska Railroad Transfer Act also                                                                      
     plainly notes the historical and intended future                                                                           
     status of the right-of-way in 45 U.S.C. ?                                                                                  
     1205(b)(4)(A)(ii): "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."                                                                                                          
     Alaska's [former] U.S. Senator Ted Stevens also made                                                                       
     it clear in his statements on the floor of the Senate                                                                      
     on December 21, 1982, exactly what the State of Alaska                                                                     
     was receiving from the federal government for the                                                                          
     entirety of the right-of-way when he said, "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 expedited adjudication process?It is                                                                     
     also the interest the State will receive through the                                                                       
     Denali National Park and Preserve. In other areas,                                                                         
     where the right-of-way crosses land owned in fee by                                                                        
     the Federal Government, the full fee title to the                                                                          
     right-of-way will be transferred to the State...                                                                           
     Essentially, it is defined to insure [sic] that the                                                                        
     State-owned railroad will receive exclusive and                                                                            
     complete control over land traversed by the right-of-                                                                      
     You heard on Tuesday about a handful of court cases                                                                        
     that had to do with the ownership and exclusivity of                                                                       
     railroad's rights-of-way in general and specifically                                                                       
     in the Brandt case. The conclusions of the Brandt case                                                                     
     are based on easements derived from the 1875 Railroad                                                                      
     Act and have nothing to do with the rights-of-way                                                                          
     established by the 1914 Alaska Railroad Act.                                                                               
     Additionally, Brandt does not consider the exclusivity                                                                     
     of a railroad's rights-of-way, but instead only                                                                            
     considers the reversion of land when railroads abandon                                                                     
     the right-of-way.                                                                                                          
     You also heard the assertion that if a railroad does                                                                       
     not own its right-of-way in fee, then it holds it only                                                                     
     as a non-exclusive easement that allows adjoining                                                                          
     landowners broad use of the right-of-way.  That                                                                            
     statement, however, does not square with the                                                                               
     traditional interpretation of railroad rights-of-way.                                                                      
     Many other court cases over the years have held that                                                                       
     even when railroads do not own fee title to their                                                                          
     rights-of-way, they nevertheless have exclusive                                                                            
     control over those rights-of-way. As far back as 1904,                                                                     
     the U.S. Supreme Court found that "A railroad right-                                                                       
     of-way is a very substantial thing. It is more than a                                                                      
     mere right [sic] of passage. [A right-of-way] is more                                                                      
     than an easement. . . . [I]f a railroad's right-of-way                                                                     
     was an easement it was 'one having the attributes of                                                                       
     the fee, perpetuity and exclusive use and possession."                                                                     
     In 1928 the Eighth Circuit Court of Appeals found                                                                          
     that, "The decisions of the national courts and of 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."  That rule has been                                                                           
     reaffirmed over the intervening years.                                                                                     
4:24:45 PM                                                                                                                    
     Again, I would like to point out that Representative                                                                       
     LeDoux was correct. It's the discussing of different                                                                       
     court cases and decisions that make this an issue that                                                                     
     absolutely belongs in a court of law, and certainly                                                                        
     not in the court of public opinion.                                                                                        
     On Tuesday, doubts were expressed about the fact that                                                                      
     we, along with every other railroad and mode of                                                                            
     transportation, say that safety is our top priority.                                                                       
     It was stated that our neighbors know what is safe                                                                         
     just as well as those in the railroad industry do.                                                                         
     Anyone who has spent any time at all with our safety                                                                       
     personnel, our federal safety regulators, and railroad                                                                     
     professionals at any level, know that simply isn't                                                                         
     We know that people outside the industry do not take                                                                       
     safety as seriously as they should. The numbers of                                                                         
     fatalities, injuries, and YouTube videos shot on                                                                           
     railroad tracks bear that out. Every year nearly 500                                                                       
     people are killed in this country trespassing on                                                                           
     railroad property. And not just walking on the tracks.                                                                     
     In 2012, two teenage girls in Maryland were killed                                                                         
     when a coal train derailed and flipped over on top of                                                                      
     them. People, time and time again, either do not                                                                           
     consider or vastly underestimate the dangers to                                                                            
     themselves and others when they trespass onto railroad                                                                     
     rights-of-way, when they drive around the gates at                                                                         
     crossings, and when they put structures such as swing                                                                      
     sets and hot tubs in the right-of-way. And the idea                                                                        
     that our neighbors know what is safe and unsafe that                                                                       
     just doesn't ring true. In 2016, one of our neighbors                                                                      
     in Crown Point decided to walk his dog down the middle                                                                     
     of our railroad tracks and was killed when he was                                                                          
     struck by one of our trains. 13 people have been                                                                           
     killed trespassing on the Alaska Railroad since the                                                                        
     transfer in 1985. Every one of those deaths was                                                                            
     And here's where I must say that frankly, the comments                                                                     
     made Tuesday regarding the fence between the Coastal                                                                       
     Trail and the railroad tracks scare the hell out of                                                                        
     me. The comment was made that the fence between the                                                                        
     railroad tracks and the Coastal Trail near Westchester                                                                     
     Lagoon was unnecessary. That couldn't be further from                                                                      
     the truth. A trail, or any public access, near                                                                             
     railroad tracks creates an attractive nuisance. In                                                                         
     1995, a twelve-year-old boy climbed through a hole in                                                                      
     the fence near Westchester Lagoon. When a train came                                                                       
     along, he tried to latch onto it, and ended up losing                                                                      
     both his legs.                                                                                                             
     Loss of exclusive control of the right-of-way would be                                                                     
     detrimental to the operations of the Alaska Railroad,                                                                      
     our customers, our passengers, our business partners                                                                       
     and the people of Alaska, who ultimately own the                                                                           
     Alaska Railroad. As it is now, we can assume control                                                                       
     in all areas of our right-of-way and assume that our                                                                       
     professionally trained security personnel, track                                                                           
     managers, maintenance crews, and on-board personnel,                                                                       
     just to mention a few, are making sure that the tracks                                                                     
     and the right-of-way are clear, safe, and operational.                                                                     
     We have full control and discretion to remove anything                                                                     
     and everything that poses a safety hazard to our                                                                           
     operations. If the right-of-way is turned into a                                                                           
     checkerboard of control from Seward to Denali, then we                                                                     
     cannot make that assumption. We would find it                                                                              
     necessary to reduce track speeds in any area that we                                                                       
     don't have complete control. That would mean if we                                                                         
     have one parcel that is not under our control along a                                                                      
     miles [sic] long stretch of track, it could reduce our                                                                     
     speeds from 49 miles per hour down to 16 miles per                                                                         
     hour for that whole stretch. Because it's a mile long                                                                      
     train and not a Corvette, slowing down and speeding up                                                                     
     takes miles of track. This would make it impossible to                                                                     
     get passengers to Denali or freight to Fairbanks in a                                                                      
     timely and economical fashion and would spell the end                                                                      
     for the Alaska Railroad.                                                                                                   
4:27:55 PM                                                                                                                    
     Additionally, this resolution brings up the issue of                                                                       
     who could control what goes in the right-of-way. Can                                                                       
     our neighbors store junked cars leaking oil (which has                                                                     
     happened) on the right-of-way? Can they plow snow                                                                          
     berms up so that people approaching or stopped at                                                                          
     railroad crossings can't see an oncoming train? Can                                                                        
     they store hazardous materials on the right-of-way?                                                                        
     Can we tell our neighbors to remove a swing set 30                                                                         
     feet from the tracks or remove it ourselves if they                                                                        
     refuse to? Remember that our train cars are 80 feet                                                                        
     long; in case of a derailment, having a 100-foot                                                                           
     right-of-way buffer on each side of the track can be                                                                       
     critical. Or will we have to take our neighbors to                                                                         
     court each and every time they are doing something                                                                         
     And what about what we do allow in the right-of-way?                                                                       
     If our neighbors disagree with a public trail in the                                                                       
     right-of-way, like the Coastal Trail, or the Fish                                                                          
     Creek Trail that we've been working on with the                                                                            
     Turnagain Community Council and the Municipality of                                                                        
     Anchorage, can they stop the community from building a                                                                     
     trail, something allowed for specifically in state                                                                         
     law? Can they stop a gas pipeline, electric line,                                                                          
     highway or street that might use the right-of-way? Can                                                                     
     they demand outrageous payments for crossing their                                                                         
     small section of the right-of-way? This ambiguity                                                                          
     could tie up numerous projects for years, if not                                                                           
     decades, or kill them altogether, because of the                                                                           
     questions of ownership.                                                                                                    
     Madam Chair, members of the committee, thank you for                                                                       
     your time and your patience.  Respectfully, this                                                                           
     resolution incorrectly describes the rights held by                                                                        
     the federal government in the Alaska Railroad right-                                                                       
     of-way, and misinterprets the property rights the                                                                          
     government transferred to the State of Alaska and                                                                          
     court cases regarding railroad rights-of-way. I again                                                                      
     would like to state that Representaive [sic] LeDoux                                                                        
     was correct that this is an issue for the courts and I                                                                     
     encourage you not to support House Joint Resolution                                                                        
4:29:32 PM                                                                                                                    
REPRESENTATIVE   BIRCH  relayed   that  the   committee  received                                                               
testimony stating  that 80 percent  of all railroads in  the U.S.                                                               
function full  well under the  guidelines of the 1875  Act, which                                                               
established  that railroads  could operate  safety with  a simple                                                               
easement over the  property of others.  He asked,  "If 80 percent                                                               
of railroads in the U.S. can  operate with a simple easement, why                                                               
doesn't that work here?"                                                                                                        
MR.  O'LEARY  responded  that  he   is  not  familiar  with  that                                                               
REPRESENTATIVE TUCK  mentioned pedestrians walking next  to roads                                                               
upon  which traffic  is  traveling  at 50  miles  per  hour.   He                                                               
suggested  that  such  a  situation is  hazardous;  he  would  be                                                               
interested in knowing how many  people are killed walking next to                                                               
roads.    He  offered  that  ARR  has  a  good  track  record  in                                                               
comparison to pedestrians and roadways.   He expressed his belief                                                               
that walking along  a railroad track is safer  than walking along                                                               
a highway.  He offered  that the landowner concerns are regarding                                                               
the ARRC imposing new limitations in  the name of safety, when it                                                               
has  been a  "good neighbor"  for such  a long  time; those  same                                                               
safety concerns  do not  seem to  exist for  roadways; and  a car                                                               
could  veer  off the  roadway  much  easier  than a  train  could                                                               
MR.  O'LEARY answered,  "All it  takes is  one and  being in  the                                                               
wrong place at  the wrong time, when a derailment  does happen to                                                               
cause such an issue - a very serious issue."                                                                                    
REPRESENTATIVE  TUCK responded,  "Don't derail  your cars.   Slow                                                               
them down."                                                                                                                     
4:32:01 PM                                                                                                                    
REPRESENTATIVE  KNOPP relayed  that there  was much  testimony on                                                               
the 1875  Act, but  not much on  the 1914 Act.   He  offered that                                                               
Representative Kopp's testimony  was that it was  not the federal                                                               
government's   land  -   free   and  clear   -   to  give   away.                                                               
Representative  Knopp stated  that it  would seem  appropriate to                                                               
ask  for clarification  as to  whether the  land was  the federal                                                               
government's  to   give  as  an   exclusive-use  easement.     He                                                               
maintained that he  appreciates the need for court  action on the                                                               
matter, as well as clarification by Congress of the two Acts.                                                                   
MR. O'LEARY expressed  his belief that the 1914 Act  is clear and                                                               
the controlling Act; ARRC feels  secure in its position; however,                                                               
if there  is a  reasonable difference of  opinion on  that point,                                                               
then the court is the best place to clarify it.                                                                                 
REPRESENTATIVE KNOPP  stated that ARRC maintains  its position is                                                               
correct  and  has  invoked   exclusive-use  easement  to  promote                                                               
safety; yet it allows use of  the easement if someone pays a fee.                                                               
He said that his question is  not about which Act came first, but                                                               
rather why  ARRC is  responding [now]  to infringements,  when it                                                               
always had exclusive-use easements.                                                                                             
MR. O'LEARY  replied that historically  ARRC has not done  a good                                                               
job  of managing  its  ROW and  ensuring  that it  is  safe.   He                                                               
maintained that  ARRC has taken  more of an interest  in response                                                               
to its increased concern for safety.                                                                                            
4:35:06 PM                                                                                                                    
ANDY BEHREND, Chief Counsel,  Alaska Railroad Corporation (ARRC),                                                               
responded  that  the  principal of  exclusive-use  easements  for                                                               
railroads is  the discretion to  exclude all others from  the ROW                                                               
or to  allow use of  the ROW.   He maintained that  this provides                                                               
the railroad with  the ability to control the ROW  and to look at                                                               
each  situation,  each proposed  use,  and  the location  of  the                                                               
proposed  use, and  thereby  decide if  the  use interferes  with                                                               
railroad operation and can be done  safely.  He stated that there                                                               
are  activities  that  can  be   performed  safely  in  the  ROW,                                                               
especially in  the margins  of the  ROW.   He asserted  that ARRC                                                               
serves as a control, and  without that control, activities in the                                                               
ROW could  expose people  to danger.   He added  that if  a train                                                               
makes an  emergency stop,  there is  a potential  for derailment,                                                               
physical  injury  to  train  crew  and people  in  the  ROW,  and                                                               
environmental damage due to spillage.                                                                                           
4:40:00 PM                                                                                                                    
MR.  BEHREND continued  by saying  that  the second  part of  the                                                               
question  can be  answered  by explaining  ARRC's  theory of  its                                                               
rights under ARTA,  which repealed the 1914 Act:   the history of                                                               
those rights,  what they  are, and how  they have  been exercised                                                               
over time.  He  maintained that the 1914 Act does  not use any of                                                               
the language of  the 1875 Act; it  does not refer to  or take its                                                               
authority from  the 1875 Act; in  fact, the reasons for  the 1914                                                               
Act were  completely different  from those  for the  earlier land                                                               
grant Act.   He  said that  the 1914  Act basically  directed and                                                               
authorized the President  of the U.S. and the  Secretary of USDOI                                                               
to use materials  and equipment from the Panama  Canal project to                                                               
build the  ARR; then directed  the federal government  to operate                                                               
the ARR.   He maintained that the 1914 Act  granted federal lands                                                               
for ROWs  and other  lands necessary for  a railroad  to operate.                                                               
These were  designations of existing  federal land; that  is, the                                                               
federal ROW established on federal land.                                                                                        
REPRESENTATIVE KNOPP asked Mr. Behrend  to explain "federal lands                                                               
and other lands."   He asked if he is  referring to federal lands                                                               
and the  authority to acquire  whatever other lands  the railroad                                                               
deemed necessary.                                                                                                               
MR. BEHREND explained that the  [land] grant language referred to                                                               
the granting of federal lands  for ROWs and other ARR properties.                                                               
There was also a provision for acquiring rights.                                                                                
MR. BEHREND  continued by saying  that it was a  federal railroad                                                               
operating  across   a  federal  ROW,  which   was  under  federal                                                               
ownership  and  remained  under  the use  and  ownership  of  the                                                               
federal  government for  the next  60  years.   He conceded  that                                                               
during that period, some homestead  patents were issued along the                                                               
ROW.    He  said that  at  the  time  of  ARTA in  1982,  it  was                                                               
abundantly clear  from the congressional record  and the language                                                               
of ARTA,  that the U.S.  Congress had investigated the  status of                                                               
the ARR ROW  and concluded that the ROW was  owned in fee simple;                                                               
that  was true  regardless of  other types  of interest  that lay                                                               
along the  ARR.  He  maintained that the determination  [in ARTA]                                                               
was  that the  ARR  ROW  was owned  in  fee  simple; however,  it                                                               
recognized other  potential claims, including both  Native claims                                                               
and what ARTA called "other  third-party claims."  He stated that                                                               
ARTA put  in place a  two- to three-year process  for determining                                                               
those claims; the Secretary of  USDOI was charged with that duty;                                                               
and ARTA  authorized and  directed a conveyance  to the  state of                                                               
the ROW and other lands.                                                                                                        
4:45:13 PM                                                                                                                    
REPRESENTATIVE  BIRCH asked  for Mr.  Behrend's understanding  of                                                               
Section 1205 of ARTA, which  recognized that unresolved claims of                                                               
valid existing  rights were  to be resolved  by the  Secretary of                                                               
USDOI  after  the transfer  of  the  railroad.   He  stated  that                                                               
everyone  lived peaceably  for  some  time, and  now  there is  a                                                               
dispute.    He  mentioned  that the  legislature  represents  the                                                               
"public"  owners of  the railroad  and those  who live  along the                                                               
railroad.  He  asked, "What resolution do we  have for addressing                                                               
unresolved  claims  on valid  and  existing  rights?"   He  asked                                                               
whether  those claims  are to  be  referred to  the Secretary  of                                                               
MR. BEHREND  responded that the  process that  was set up  was to                                                               
run to  1986 and  be completed  in that time.   The  Secretary of                                                               
USDOI entertained  the claims,  investigated the  claims, engaged                                                               
in negotiation,  and determined that  all outstanding  claims had                                                               
been addressed.  He added that the provision sunsetted in 1986.                                                                 
REPRESENTATIVE BIRCH asked whether  it is Mr. Behrend's viewpoint                                                               
that the  Secretary of USDOI  and the federal government  no long                                                               
have a role  in adjudicating or resolving  disputes on unresolved                                                               
claims on  valid and  existing rights.   He  offered that  HJR 38                                                               
would ask  the Alaska  congressional delegation  for its  help in                                                               
clarifying  the issue  regarding  Alaska's  acquisition from  the                                                               
federal government.                                                                                                             
MR. BEHRENS expressed  his understanding that the  claims and the                                                               
adjudication  process were  completed  and sunsetted,  therefore,                                                               
would no longer be available.                                                                                                   
4:48:16 PM                                                                                                                    
REPRESENTATIVE  WOOL referred  to  the  statistics regarding  the                                                               
number of people  killed by trains -  500 per year in  the U.S. -                                                               
and asked for the Alaska statistics.                                                                                            
MR.  O'LEARY answered  that there  were  13 deaths  on ARR  since                                                               
transfer in 1985.                                                                                                               
REPRESENTATIVE WOOL  offered that it  was a low number  of deaths                                                               
for 33  years.   He stated  that he  grew up  on the  East coast;                                                               
there were many  trains and train tracks; there was  a great deal                                                               
of  access  to the  tracks.    He  asked whether  ARRC  advocates                                                               
fencing off  the entire railroad in  the name of safety  if given                                                               
the opportunity.                                                                                                                
MR. O'LEARY  answered no.   He  relayed that  ARR bisects  a very                                                               
large portion  of the state;  the state  has grown up  around ARR                                                               
and as a result,  that is where the residents are.   He said that                                                               
ARRC recognized  that there  are times when  people will  need to                                                               
cross; ARRC asks that they do  it safely and quickly and not walk                                                               
along the tracks.  He maintained  that fencing the ROW is neither                                                               
an  option nor  ARRC's  goal;  in certain  cases,  ARRC has  used                                                               
fencing  because of  high  density trespass  areas  that are  not                                                               
safe, especially in the Turnagain Arm area.                                                                                     
REPRESENTATIVE WOOL mentioned the  100-foot easement on each side                                                               
of  the track  and  suggested  that ARRC  want  to exercise  full                                                               
control  over  that easement.    If  someone  wanted to  move  an                                                               
airplane or set up a swing set  within 100 feet of a train track,                                                               
ARRC  would like  it moved.   He  asked whether  the practice  of                                                               
charging rent has been disbanded [by ARRC].                                                                                     
MR. O'LEARY  replied that the  ARRC board [of directors]  rule to                                                               
institute  the Residential  Right-Of-Way Use  Permit Program  was                                                               
removed last November.                                                                                                          
REPRESENTATIVE WOOL asked  if his understanding is  correct:  the                                                               
easement  encompasses 100  feet on  either side  of the  railroad                                                               
tracks;  this is  the area  in which  issues have  surfaced; ARRC                                                               
would like  to remove  anything in this  area; and  some property                                                               
owners feel that they can safety put things in that space.                                                                      
MR. O'LEARY  responded that  it is  difficult to  understand what                                                               
problem is trying  to be solved with the  proposed resolution; it                                                               
appears to be a disagreement over  the ownership of the land upon                                                               
which the railroad operates.                                                                                                    
4:52:33 PM                                                                                                                    
REPRESENTATIVE TUCK referred to  the statement of opposition from                                                               
ARRC, paragraph  3, which read in  part:  "45 U.S.C    1205(b)(2)                                                               
required  the   U.S.  Department  of  Interior   to  resolve  any                                                               
remaining claims of valid existing  rights by January 1986. Those                                                               
provisions  were  followed, and  claims  were  adjudicated."   He                                                               
asked whether  USDOI's involvement  included only state  land, or                                                               
if it included all third-party  lands, including those of private                                                               
MR.  BEHREND  answered that  the  provision  for adjudication  of                                                               
third-party claims was  being handled by the  Secretary of USDOI,                                                               
because  the federal  government was  transferring the  railroad.                                                               
Any  claims at  that point  would have  been against  the federal                                                               
government, and  the claims would  have included  any third-party                                                               
claims, including from  those from the state or  any other public                                                               
or private entity.                                                                                                              
REPRESENTATIVE TUCK asked whether for  someone not filing a claim                                                               
prior  to  1986, there  would  no  longer  be an  opportunity  to                                                               
resolve the claim.                                                                                                              
MR.  BEHREND opined  that for  someone  filing a  claim in  which                                                               
his/her  property interest  was  different  from ARRC's  property                                                               
interest, the proper approach would  be a "quiet title" action in                                                               
court.   He  maintained  that there  is nothing  in  ARTA or  the                                                               
Alaska Railroad Corporation Act (ARCA)  of 1984 that provides for                                                               
a different process.                                                                                                            
4:56:23 PM                                                                                                                    
REPRESENTATIVE  JOHNSON   asked  Mr.  O'Leary  to   describe  the                                                               
difference  between  an easement  and  a  ROW.   She  also  asked                                                               
whether anyone  was paying taxes  on any portion of  the railroad                                                               
MR. O'LEARY  answered no.   He said  the landowners  abutting the                                                               
ROW pay  taxes on their  property, which  ends 100 feet  from the                                                               
center line of the railroad.                                                                                                    
REPRESENTATIVE JOHNSON asked whether it  is the clear position of                                                               
ARRC that the 1914  Act is not subject to any  of the court cases                                                               
from the 1875 Act.                                                                                                              
MR. BEHREND responded  that ARRC's position is that  the 1875 Act                                                               
and the  1914 Act have  nothing to do  with one another  and were                                                               
enacted for different purposes.  The  1875 Act was a private land                                                               
grant Act;  the 1914  Act directed the  creation of  the railroad                                                               
and its ROW by the federal  government - to be owned and operated                                                               
by the federal  government.  He added that there  have been court                                                               
cases  examining   the  1875  Act;  these   cases  have  occurred                                                               
throughout the  20th century  and into the  current century.   He                                                               
referred to  a 2014 California  case, [Union Pacific  Railroad v.                                                             
Santa Fe  Pacific Pipelines, 2014],  involving the  Union Pacific                                                             
Railroad (UPRR)  and its ROW.   The ruling read:   "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.'"  He  relayed that ARRC believes that  the 1914 Act                                                               
provided  it  with  not  only   an  exclusive-use  easement,  but                                                               
ultimately with fee simple ownership of much of the ROW.                                                                        
MR. BEHREND  continued by saying  that even  if ARRC was  wrong -                                                               
something which  the court would  have to decide  -  the  way the                                                               
ROW has been interpreted by the  1875 Act to give exclusive usage                                                               
to  the  railroad, ARRC  would  still  believe that  the  federal                                                               
government had at a minimum  an exclusive-use easement in the ROW                                                               
when  it   was  transferred  to  ARRC;   therefore,  the  interim                                                               
conveyances and the patents that  have been issued giving ARRC an                                                               
exclusive-use easement were correct and proper.                                                                                 
5:01:16 PM                                                                                                                    
REPRESENTATIVE  JOHNSON asked  Mr.  Behrend if  his testimony  is                                                               
that the  1875 Act is  not applicable to ARR,  therefore, neither                                                               
is the proposed resolution.                                                                                                     
MR. BEHREND stated  that it is ARRC's position that  the 1875 Act                                                               
neither applies to the ROW now  nor originally, since the ROW was                                                               
created through the 1914 Act,  which was not connected or related                                                               
to the 1875 Act.  He  added that under ARTA, Congress transferred                                                               
the  ROW to  the state,  and the  state received  patents through                                                               
that process.  He reiterated that  ARRC does not believe the 1875                                                               
Act plays any role in establishing its property interests.                                                                      
REPRESENTATIVE JOHNSON asked whether  his testimony is that there                                                               
are some parts of the ARR ROW that ARRC does not own.                                                                           
MR. BEHREND replied that  it is not.  It is  the position of ARRC                                                               
that it  owns the  entire ROW;  his testimony  is that  under the                                                               
1914 Act,  most of the ROW  was established by reserving  ROWs on                                                               
federal land, and there may have  been some authority in the 1914                                                               
Act to acquire other areas for  the ROWs as necessary to create a                                                               
full rail line.                                                                                                                 
5:04:02 PM                                                                                                                    
REPRESENTATIVE WOOL mentioned that  Mr. O'Leary commented that he                                                               
did  not  understand what  problem  the  proposed resolution  was                                                               
attempting to solve.   Representative Wool offered  that there is                                                               
no shortage of  Alaska residents who have had issue  with the ARR                                                               
ROW, which  presents a problem  to be  solved.  He  asked whether                                                               
ARRC has instituted a program to  build fences in the interest of                                                               
safety where the  ROW abuts private land; and if  so, has it been                                                               
discontinued like the program that charged rents.                                                                               
MR.  O'LEARY replied  that every  year,  ARRC looks  for ways  to                                                               
address  trespassing and  improve  safety.   He  stated that  the                                                               
fencing in the Turnagain Arm area  is an example of that; fencing                                                               
is the  most efficient way  to try to  funnel people away  from a                                                               
very dangerous area,  in which they are trespassing.   He relayed                                                               
that ARRC  does not have a  program to fence off  portions of the                                                               
ARR  ROW;   it  has  trespass  mitigation   programs  and  safety                                                               
programs;  and he  added  that fencing  can be  a  part of  those                                                               
REPRESENTATIVE WOOL  referred to  testifiers relating  that their                                                               
property  has been  bisected or  obscured by  fencing -  property                                                               
that they  have lived  on for  decades and  believed to  be safe.                                                               
Anyone growing up near train  tracks with active trains knows not                                                               
to  stand on  the tracks.   He  conceded that  13 deaths  over 33                                                               
years  is  not  a  good  thing but  is  far  less  alarming  than                                                               
automobile death statistics.   He mentioned that  if someone were                                                               
to put up a  fence by a road easement and  make everyone drive 25                                                               
miles per hour  in the interest of safety,  people would complain                                                               
to  the state.   He  suggested that  there should  be discussions                                                               
with landowners before putting up a fence.                                                                                      
MR.  O'LEARY  responded,   "We  screwed  up  at   the  Red  Robin                                                               
Restaurant."   He  maintained that  ARRC personnel  talked to  an                                                               
individual that  they believed had  the authority to  approve the                                                               
fence; it turned out that person  did not have the authority; and                                                               
ARRC compounded the error by  erecting the fence six inches [over                                                               
the property line.]  He stated  that ARRC took trees down and put                                                               
a fence up; it fixed the fence  and will "make it right" with the                                                               
REPRESENTATIVE WOOL stated that his  question goes to the broader                                                               
issue:   people have private  property that is being  bisected by                                                               
the  ARR in  the name  of  safety, and  maybe that  isn't in  the                                                               
overall best interest.                                                                                                          
5:08:18 PM                                                                                                                    
MR. O'LEARY maintained that he  is not aware of these situations;                                                               
he is  not denying  that they  exist; and he  needs to  become of                                                               
aware of them.                                                                                                                  
REPRESENTATIVE  TUCK  asked  for  an  explanation  of  the  terms                                                               
"exclusive rights to the surface" and "exclusive use."                                                                          
MR.  BEHREND  replied that  the  terms  are used  differently  in                                                               
different  situations.   He relayed  that the  1914 Act  did more                                                               
than direct the  creation of the railroad  for railroad purposes.                                                               
He cited the 1914 Act, Chapter  37, to describe the other reasons                                                               
for the  creation of  the railroad,  which read  in part,  "so as                                                               
best to  aid in the  development of the agricultural  and mineral                                                               
or other  resources of Alaska,  and the settlement of  the public                                                               
lands therein,  and so as  to provide transportation of  coal for                                                               
the Army and  Navy, transportation of troops,  arms, munitions of                                                               
war, the mails, and for other  governmental and public uses".  He                                                               
maintained  that ARRC  believes that  there was  a broad  purpose                                                               
behind the 1914 Act in creating the railroad and its ROW.                                                                       
MR. BEHREND continued  by saying that in ARTA and  in ARCA, there                                                               
was a requirement  in the exclusive-use easement that  the ROW be                                                               
used for transportation -  including railroad, communication, and                                                               
transmission purposes.   The ARCA requires that  ARRC manages the                                                               
ROW  as a  utility corridor  for all  those purposes  - including                                                               
roads, transmission lines, pipelines,  and communication lines of                                                               
various  kinds.    He  said that  an  exclusive-use  easement  as                                                               
conveyed  to the  state in  the general  conveyances and  patents                                                               
under ARTA  is more than the  exclusive use of the  surface; ARRC                                                               
can also  use as much of  the subsurface as necessary  to support                                                               
those transportation, communication, and transmission functions.                                                                
REPRESENTATIVE TUCK  expressed his  understanding that  100 years                                                               
ago,  there were  no buried  communication lines  or transmission                                                               
lines; because  utilities are now  buried, it is  ARRC's position                                                               
that  it  should  be  allowed  to  use  the  subsurface  [of  the                                                               
easement] as well as the surface.                                                                                               
5:12:10 PM                                                                                                                    
MR.  BEHREND responded  that is  correct.   If the  utilities are                                                               
related to  transportation, transmission, or  communication, ARRC                                                               
is allowed  under its exclusive  rights - whether it  be easement                                                               
or simple  ownership -  to use  as much of  the subsurface  as is                                                               
necessary to support those uses.                                                                                                
REPRESENTATIVE WOOL asked for the  number of derailments ARRC has                                                               
had since the transfer [in 1982].                                                                                               
MR. O'LEARY answered that he did  not know the number; there have                                                               
been major and  minor derailments; there have not  been any since                                                               
his association with ARRC.  He mentioned one major derailment:                                                                  
the   1999  derailment   at  Gold   Creek,  spilling   tremendous                                                               
quantities of  jet fuel.  He  conceded that the ARR  has had some                                                               
large derailments over the years.                                                                                               
REPRESENTATIVE TUCK  suggested that there was  a derailment along                                                               
the Seward Highway with a formaldehyde spill.                                                                                   
MR. O'LEARY replied that he did  not recall such a derailment; he                                                               
reiterated that there have been  significant derailments over the                                                               
years.  He maintained that this  point "gets to the heart of this                                                               
whole thing" from  ARRC's perspective:  the easement  is 100 feet                                                               
on each  side of  the center  line; a railcar  can be  80-90 feet                                                               
long and can turn sideways; and it  can take up to a mile to stop                                                               
a fully  loaded freight  train even  after derailment,  causing a                                                               
swath of  destruction.   He stated  that safety  is real  and not                                                               
something ARRC is trying to "hide behind" in the discussion.                                                                    
5:15:20 PM                                                                                                                    
REPRESENTATIVE BIRCH  expressed that he  would like to  hear from                                                               
the sponsor on several issues that came up during testimony.                                                                    
REPRESENTATIVE  LEDOUX  closed public  testimony  on  HJR 38  and                                                               
announced that HJR 38 would be held over.                                                                                       

Document Name Date/Time Subjects
HB400 Sponsor Statement 2.28.18.pdf HSTA 3/1/2018 3:15:00 PM
HB 400
HB400 Sectional Analysis 2.28.18.pdf HSTA 3/1/2018 3:15:00 PM
HB 400
HB400 ver A 2.28.18.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HSTA 3/13/2018 3:15:00 PM
HSTA 3/15/2018 3:15:00 PM
HB 400
HB400 Fiscal Note DPS 3.1.18.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HSTA 3/13/2018 3:15:00 PM
HSTA 3/15/2018 3:15:00 PM
HB 400
HCR22 Sponsor Statement 2.19.18.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HCR 22
HCR22 Version A.PDF HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HCR 22
HCR22 Fiscal Note LEG 2.26.18.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HCR 22
HCR22 Additional Documents - ANDVSA Key Results from the 2015 Alaska Victimization Survey 2.19.18.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HCR 22
HCR22 Additional Documents - CDC National Intimate Partner and Sexual Violence Survey 2.19.18.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HCR 22
HCR22 Supporting Document ANDVSA Letter of Support 2.27.18.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HCR 22
HJR38 Sponsor Statement 2.26.2018.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR038 ver A 2.22.18.PDF HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Fiscal Note LEG 2.26.18.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Index of Support Documents 2.26.2018.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Supporting Document- Letters of Support 2.26.18.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Index of Reference Documents 2.26.2018b.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Additional Documents- Reference 2.26.18.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Supporting Document- Powerpoint Presentation 2.27.2018.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Support Letter from Dick Welsh 2.27.2018.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Support Letter from Ocean View Community Council 2.27.2018.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Support Letter from Beth Fread 2.27.2018.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Support Letter Anchorage Board of Realtors 2.28.2018.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Support Letter from Ocean View Community Council 2.28.2018.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Support Document Written Testimony from Bob Gastrock 2.28.2018.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Support Letter from Alaska Association of Realtors 2.28.18.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Support Letter from Dimond Shopping Center 2.28.2018.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Supporting Document- Public Letters of Support 2.28.18.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Support Document Written Testimony from John Pletcher 2.28.18.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Supporting Document Testifier Resume 3.1.18.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Supporting Documnet- Letter Robert Gastrock 3.1.18.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Supporting Document- Pictures from John Pletcher 3.1.2018.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR 38 Supporting Letter from Bonne' Woldstad 3.1.2018.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Support Letter from James Armstrong 3.1.2018.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR 38 Supporting Document- Jack Brown Wirtten Testimony 3.1.18.pdf HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38
HJR38 Opposing Document- Alaska Railroad Letter of Opposition 2.27.18.pdf HSTA 2/27/2018 3:15:00 PM
HSTA 3/1/2018 3:15:00 PM
HSTA 3/8/2018 3:15:00 PM
HJR 38