Legislature(2003 - 2004)
05/06/2003 08:06 AM Senate JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 case. 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 over. 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 developing. CHAIR SEEKINS asked why some of the other large corporations weren't sitting here with him because they surely had the same problem. 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 paragraphs. 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.