Legislature(2003 - 2004)

05/06/2003 08:06 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SB  93-ADVERSE POSSESSION                                                                                
CHAIR SEEKINS announced SB 93 to be up for consideration.                                                                       
SENATOR  WAGONER,  sponsor of  SB  93,  explained that  version  X                                                              
creates  two subsections  -  one  for utilities  and  one for  the                                                              
state. Subsection  (c), line  14, will  allow public utilities  to                                                              
get rights  to an easement  for utility  purposes after  10 years.                                                              
Subsection  (d)   was  made  for   DOT  with  slightly   different                                                              
language, but accomplishes the same goal.                                                                                       
SENATOR  FRENCH said  the coastal  trail runs  along the coast  in                                                              
his  district and  about  100 yards  behind  it,  homes have  been                                                              
developed for 40  years. There are lots between the  trail and the                                                              
homes that  will go up for  sale pending soil testing.  Folks have                                                              
been accessing  the  coastal trail  with a little  by way  through                                                              
the  woods since  the trail  was built  (20 years  ago). It  looks                                                              
like there's  going to be a  fight now between the  developers and                                                              
the  homeowners over  access to  the coastal  trail. They  haven't                                                              
recorded  title  of  any  kind or  easement  or  taken  any  legal                                                              
action. He  wanted to know  if this bill  would alter  their right                                                              
to litigate access they have been using.                                                                                        
SENATOR  WAGONER   replied  he  couldn't  answer   that,  but  Mr.                                                              
Tillinghast could.                                                                                                              
MR.  TILLINGHAST, Sealaska  Corporation,  said the  answer is  no.                                                              
"Whatever  rights  the public  acquired  by  virtue of  that  past                                                              
usage wouldn't be affected by this bill."                                                                                       
SENATOR FRENCH asked if it would from this time forward.                                                                        
SENATOR  THERRIAULT interrupted  to  move to  adopt CSSB  93(JUD),                                                              
version \X. There was no objection and it was so ordered.                                                                       
MR.  TILLINGHAST replied  page  2, line  19  says, "the  continued                                                              
ability  to  perfect  access  to   public  trails"  so  access  is                                                              
preserved in the  bill to the extent of DOT's  ability to preserve                                                              
access for a paved road.                                                                                                        
SENATOR OGAN  asked if anyone  remembers the Hillside  park access                                                              
SENATOR  FRENCH said  that he  remembers  it was  about access  to                                                              
Rabbit Lake - from  a trailhead across private land  to state park                                                              
land. The  trail had  been used  for perhaps  30 years.  Through a                                                              
series of  state bungles, that access  was lost and  the litigants                                                              
ended up buying access from the owner.                                                                                          
CHAIR  SEEKINS asked  what  caused Sealaska  to  bring this  issue                                                              
before the Legislature and how this might address it.                                                                           
MR.  TILLINGHAST   replied  that   Sealaska  has  had   to  expend                                                              
significant  attorney's  fees  and time  evicting  squatters  from                                                              
their  property,  who squatted  in  reliance  on  the law,  as  it                                                              
exists today. The  fact that they were successful  in getting them                                                              
off is almost  beside the point,  because they had to  spend a lot                                                              
of  money to  do that  and they  continue  to have  to patrol  the                                                              
property.  The philosophical  reason is that  as private  property                                                              
owners, they  do not feel they  should have obligations  placed on                                                              
them  to   consistently  patrol   their  property  to   chase  off                                                              
"thieves"  any   more  than  the   government  should   have  that                                                              
obligation.  It may  have had  social value  in the  past when  we                                                              
didn't want  to take land from  the railroads, but those  days are                                                              
CHAIR SEEKINS asked  if there are regulations that  protect Native                                                              
lands from notorious adverse possession.                                                                                        
MR.  TILLINGHAST  replied  there  are.  The  doctrine  of  adverse                                                              
possession protects  any land a  corporation received  under ANGSA                                                              
until  that land  is  developed.  Unfortunately,  the courts  have                                                              
developed  a  very low  threshold  for  the meaning  of  developed                                                              
saying that  lands are developed  as soon as they  are subdivided.                                                              
There   is  no   question  that   logging   would  be   considered                                                              
CHAIR  SEEKINS asked  why  some of  the  other large  corporations                                                              
weren't sitting  here with  him because they  surely had  the same                                                              
MR.  TILLINGHAST  responded  that  he assumed  they  did,  but  he                                                              
couldn't speak for them.                                                                                                        
SENATOR  OGAN   asked  why   section  1   was  divided   into  two                                                              
SENATOR WAGONER  explained the  original bill  had a section  that                                                              
pertained to  DOT. Chugach Electric  and Homer Electric  expressed                                                              
concern and they  tried to combine them with the  DOT section, but                                                              
it didn't work out. So, they were separated.                                                                                    
CHAIR  SEEKINS said  this  bill  in effect  eliminates  squatters'                                                              
rights  and  if  there's  a good  faith  mistake  about  someone's                                                              
property line, that's not affected by this.                                                                                     
SENATOR WAGONER concurred.                                                                                                      
SENATOR  THERRIAULT  moved to  pass  CSSB 93(JUD)  from  committee                                                              
with zero  fiscal note and  individual recommendations.  There was                                                              
no objection and it was so ordered.                                                                                             

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