Public Easements: Update on New Regulations

As of May 3, 2001, the Department of Natural Resources' new public easement regulations have been approved by the Department of Law, filed by the Lieutenant Governor, and are in effect. The new regulations are scheduled to be printed in the July Register of the Alaska Administrative Code. After that publication, the new regulations will be added to the Legislature's online data base of regulations.

Thanks to everyone who commented on DNR's original regulation proposal during its public review period from November 1999 to March 2000. Your comments helped the department improve the proposal and decide which parts should become DNR's official policy immediately. An overview of public comments on the proposal, along with more detailed versions, is still available.

As a result of these public comments, DNR divided the regulations into two parts. Phase 1 is the part that has now gone into effect. But the rest have been set aside for a new round of agency and public review (Phase 2) that will begin soon.


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What do the Phase 1 regulations do?

This new set of regulations:

  • explains what public easements are (see 11 AAC 51.010);
  • lists the types and widths of easement DNR deals with, including section-line easements (11 AAC 51.015-025);
  • ensures that state land sales will automatically include access easements to streams and lakes above a minimum size, with smaller water bodies considered for easements case by case (11 AAC 51.035-045);
  • sets out DNR's process for identifying RS 2477 rights-of-way (11 AAC 51.055);
  • repeals the RS 2477 "certification" process and associated fees (11 AAC 51.020, etc.);
  • provides standards for vacating easements (11 AAC 51.065);
  • ensures that easements will be surveyed and the landowner will be notified before DNR authorizes road construction (11 AAC 51.100);
  • ensures that landowners as well as easement users will have the right to appeal an easement decision that affects them (11 AAC 51.910);
  • defines terms (11 AAC 51.990).

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What changes did the Department of Law make?

The Department of Law made many revisions before approving the new chapter. Mostly these revisions were to move or reorganize clauses, but one major change was necessary. DNR had proposed two sections to provide "immunity" (legal protection against liability for accidents and injuries) for the state, for property owners whose land is crossed by an easement, and for volunteers who build or maintain a road or trail on an easement. Landowners and resource developers had told DNR they were worried about unfair liability lawsuits. That concern could harm public access if it causes landowners to seek easement vacations, or prevents volunteers from building and maintaining trails. Unfortunately, the Department of Law concluded that only the Alaska Legislature can provide legal immunity, even though DNR previously had regulations on this topic (11 AAC 53.360-370).

Existing state laws offer some liability protection. AS 19.30.420 protects the state and municipalities on RS 2477 rights-of-way that are not part of the state highway system, but does not apply to other landowners or trail builders. AS 09.65.200 protects the landowner if an easement has no improvements other than a trail, an abandoned airstrip, or an unused road originally built for natural resource extraction. A bill passed in May 2001 by the Legislature, HB 127, protects volunteers who maintain an airstrip. However, these statutes have gaps. DNR will recommend passage of comprehensive legislation to fill in those gaps.

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What's next for Phase 2?

The Phase 2 regulations will tackle the following questions:

  • Which agency should manage use of section-line easements? What about use of section-line easements to install utilities such as telephone and power lines?
  • Who manages access and utility easements within land DNR has subdivided in the past?
  • How should DNR transfer easement management to other agencies or to a city or borough?
  • For easements managed by DNR, what are the management details?
  • Can people voluntarily maintain trails on public easements without needing a DNR permit?

DNR expects to begin public review of the Phase 2 regulations in the summer of 2001. Further information on that proposal will be available on this web site.

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Major Issues Raised in Public Comments / DNR Responses

 

COMMENTS FROM PRIVATE LANDOWNERS / DNR RESPONSES

Public access easements should be limited to future highway construction.

Response: It's true that section-line easements and RS 2477 rights-of-way are highway easements. But Alaska law defines highway uses very broadly, all the way down to a "trail" or "walk" (AS 19.45.001(9)), and says such easements can also be used for utilities. So DNR's regulations couldn't limit their use to future road construction. Other easements DNR reserves are for general public access rather than specifically for highways.

Public access easements should be limited to current uses only. If there's only a footpath now, the state shouldn't be able to build a road there without notifying and compensating the landowner.

Response: Section-line easements and RS 2477 rights-of-way are highway easements, meaning the state has a right to use them for roads and utilities. This is a public property right that the state reserved before the land passed into private ownership. DNR's regulations could not provide for compensating the landowner for a right the state already owns. However, DNR agrees landowners should be notified before road construction begins. 11 AAC 51.100(e) will ensure notification in many cases, but this topic needs further work in Phase 2.

My farm has a section-line easement. Why does DNR claim the state or the public "owns" that public easement? I'm the landowner!

Response: Land title is traditionally described as a bundle of rights with many separate "sticks" that may be owned by different people. A public access easement is one stick in the bundle of rights. The state reserves that access right in public ownership (along with the mineral rights), even if the remaining rights pass into private ownership. See 11 AAC 51.010, revised to explain this more fully.

No way will farmers apply for a DNR permit to use tractors and other farm equipment on their own land!

Response: DNR's regulations don't apply to the landowner's use of his land (including the land subject to the easement), but only to public use of public easements. 11 AAC 51.100(e) has been rewritten to clarify this. Landowners are free to use their property in any lawful way that doesn't block use of the easement. A landowner can log all the timber within the easement, graze his cattle there, use it for his leach field, cut hay off it, pick berries on it, place his own driveway and utility lines on it, or landscape it, for example.

Easements mean I can't post my land against trespassers or keep hunters off it. What if I need to fence my land to keep my livestock safe?

Response: The landowner and the public both have rights that must be respected. Phase 2 will look for ways to resolve conflicts between those rights. In the meantime, landowners are free to post "No Trespassing" signs next to the access easement (but not within it). The existence of a public access easement does not give anyone the right to set foot outside that easement without the landowner's permission. And DNR agrees that a public easement does not include the right to hunt without the landowner's permission. Finally, if it is only a utility easement, it does not include any right of access by the general public. The definition of "utility easement" in 11 AAC 51.990 has been revised to make this clear.

It's not fair that the state protects itself from liability if an easement user is injured, yet doesn't protect the landowner! What if someone sues me?

Response: State law (AS 09.65.200) gives landowners some protection if an injury is caused by a "natural condition" on "unimproved land," including on a trail. Also, AS 19.30.420 says that people use RS 2477 rights-of-way (which includes some section-line easements) at their own risk. Those laws do not cover all situations, so DNR's regulations attempted to fill in the gaps. Unfortunately, the Department of Law decided that DNR did not have the authority to do this. DNR agrees that a comprehensive statute is the best solution.

Why does DNR keep trying to select or create RS 2477 rights-of-way? I question the validity of pursuing rights-of-way under a federal law that has been repealed.

Response: It is true that the U.S. Congress repealed RS 2477 in 1976. However, repealing a law does not take away property rights granted or vested while it was in effect. For example, that same 1976 Act of Congress repealed the federal homestead laws, yet that did not take away or erase private land that had been obtained by homesteading. Unlike state land acquired under the Statehood Act, DNR does not "select" RS 2477 rights-of-way from the BLM. Instead, it researches historic land title and historic public use to bring existing RS 2477 rights-of-way to light. DNR understands that private landowners may object to this process--especially if they were not aware, when they acquired the land, that the state already had a public easement across it. But a private landowner does not have to take DNR's word that an RS 2477 right-of-way exists. An affected person can bring a court challenge to make DNR produce its evidence of historic land status and use.

An RS 2477 right-of-way across private land is a taking without compensation, forbidden by the U.S. Constitution.

Response: There is a misconception here. To be valid, an RS 2477 right-of-way had to be created while the land was still in federal ownership and before any private entry occurred under the public land laws and mining laws. Subsequent private landowners took their land subject to all "valid existing rights" (property rights granted to others before they came into the chain of title). It is not a "taking" of private land when the public uses a right it owned all along.

The state has no right to seize private property as historic trails. If the trails were in use, they should have been recorded as public rights-of-way before the land passed into private ownership. It isn't right for the state to come back 50 years later and say "There used to be a trail someplace; we're putting it in your yard." If property is sold without restrictions, you can't come back later and change the deal.

Response: If the historic trail is on a valid RS 2477 right-of-way, it was reserved before the land passed from federal to private ownership. Recordation of the right-of-way would have been useful, but was not required, and still isn't: Alaska law does not mandate the recording of property transactions. A public easement is a property right that continues to exist unless and until it is abandoned. Although later private landowners might not know the easement exists, which is unfortunate, that does not change its status as a "valid existing right" to which the private land is subject.

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COMMENTS FROM ALASKA OUTDOOR COUNCIL & OTHER PUBLIC ACCESS USERS / DNR RESPONSES

The RS 2477 certification process should be repealed, but the public and state agencies should still be able to nominate routes.

Response: Although formal "nominations" are being repealed, DNR has broadened public notice under 11 AAC 51.055 to encourage people to come forward with information about potential RS 2477's. DNR believes they will be more likely to do so if they are not required to pay a $100 nomination fee to supply this information. The regulation provides for additional public notice, including to ADF&G. Repealing the nomination requirements eliminates a procedural hurdle that could hamper an RS 2477 assertion (this has already happened in one court case).

Management of section-line easements should be clarified, including DOTPF's role. Some municipalities think they're the manager. The process of transferring easement management should be formalized. Until that is done, the public's access rights may not be protected.

Response: DNR agrees. This is a key problem that will be addressed in Phase 2; see more detail under Utilities.

DNR says an easement does not represent full ownership, but it also says public easements remain in public ownership. Isn't that a contradiction?

Response: Land ownership can be divided into many separate parts or "interests" that may be owned by several different parties. An easement is a single interest in land, so there may be an easement owned by the public across privately owned land. See the expanded 11 AAC 51.010(d) explaining this point.

Our understanding was that RS 2477's could be asserted anywhere on unreserved federal land, yet the chart in 11 AAC 51.025 refers only to surveyed land. Why is that?

Response: RS 2477 rights-of-way could indeed be accepted by actual construction and use (historic trails) without any survey, but 11 AAC 51.025 does not deal with such easements. Instead, it deals with section-line easements created under AS 19.10.010. The state's position is that even without actual construction and use, AS 19.10.010 was a valid acceptance of RS 2477 rights-of-way on surveyed federal land.

Private parties, not just public authorities, established many if not most RS 2477's. So why does 11 AAC 51.055 refer to "a positive act on the part of a public authority"? Define public authority to include private parties.

Response: DNR agrees that private parties established many RS 2477 rights-of-way, but private parties did not constitute a "public authority" and couldn't be included in such a definition. Instead, their actions constituted "public use" or "public user." In Alaska, public use is an equally valid way to accept an RS 2477 right-of-way (Hamerly v. Denton) and is listed first in 11 AAC 51.055(b)(3)(A) (ahead of (b)(3)(B)).

It's not fair that only commenters can appeal an easement decision that affects them.

Response: This requirement has been dropped from the easement regulations.

Why doesn't DNR seek alternatives to mitigate adverse impacts of RS 2477 rights-of-way on landowners?

Response: DNR welcomes any practical suggestions of alternatives. Measures such as requiring a survey before authorizing construction, so that the landowner can be identified and invited to comment, will help (see 11 AAC 51.100). And if the right-of-way is not yet officially platted, new language in 11 AAC 51.065(f) lets a landowner relocate the easement elsewhere on that person's own property. But from the standpoint of many landowners, that is not enough: they are outraged to find that there is an RS 2477 right-of-way on their land and feel the only solution is to vacate it, preferably at public expense. State law does not permit that option unless other access is available or the legislature itself takes the action.

DNR should never allow a vacation unless "equal or better" access is available. It's a double standard to accept something less just because a municipality asks for it.

Response: DNR's regulations would be simpler if DNR could apply the "equal or better" standard to all vacations, but DNR does not have the power to do that where the legislature has set a different standard. Compare AS 19.30.410(1) and (2). The legislature chose to set a lower standard for the latter type of RS 2477 vacation.

In considering "reasonably foreseeable uses" for a proposed RS 2477 vacation, DNR should consider the variety of users who may need access. For example, to a horseback rider, a paved highway would not provide an adequate replacement for a dirt trail.

Response: DNR agrees that one lawful use of an RS 2477 right-of-way should not replace or preempt another. DNR has added wording to 11 AAC 51.065 clarifying that these uses must be considered separately--and the replacement access does not need to keep them packaged together. The replacement could be a trail easement along one route, a road easement along another, and a utility corridor on a third alignment.

We agree with agricultural landowners' concerns about DNR's public access policies relative to the rights of private landowners.

Response: Whenever private land is subject to public easements, there may be tensions between the two sets of rights. Phase 2 will seek to resolve these conflicts so that each of the parties can benefit from the right or rights that it owns. The law is clear, however, that landowners do not have the right to block public access on a public easement across their property. DNR's regulations can't change that legal relationship, nor would DNR want to.

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COMMENTS FROM THE DEPT. OF PUBLIC TRANSPORTATION & PUBLIC FACILITIES (DOTPF) / DNR RESPONSES

DOTPF should have veto rights over RS 2477 vacations, as well as section-line easement vacations.

Response: DNR agrees; this has been added to 11 AAC 51.065.

DNR's regulations should cross-reference the DOTPF regulation 17 AAC 15.031 to loop DOTPF into easement management. Our biggest concern is utility use on section-line easements, because DOTPF must pay to relocate the lines if the easement is later used to construct a highway.

Response: In Phase 2, DNR and DOTPF will need to resolve the apparent conflict between AS 19.30.400 (which says public use of RS 2477 rights-of-way is subject to DNR's regulations unless the right-of-way is transferred to DOTPF) and AS 19.25.010, which says utilities can be installed on state rights-of-way "only... if authorized by a written permit issued by" DOTPF. (Section-line easements are state rights-of-way.) One possibility, to be considered in Phase 2, is splitting easement management into separate parts, utility use and public use, with a different "default setting" for each type of use. DNR's regulations could state that unless otherwise specified, utility use on an RS 2477 right-of-way or section-line easement is managed by DOTPF, and use by the general public, including informal roads and trails, is managed by DNR.

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COMMENTS FROM UTILITY COMPANIES / DNR RESPONSES

AS 19.30.400, the RS 2477 law, doesn't or shouldn't apply to section-line easements. DNR has no authority in section-line easements. We object to getting any authorization from DNR to install utilities there.

Response: Legally, AS 19.30.400 does apply to section-line easements that are 33' or 66' wide, and to the inner part of some wider section-line easements. AS 19.30.400 says DNR manages public use of RS 2477 rights-of-way unless the route is transferred to DOTPF. However, AS 19.25.010 says utility installations on a "state right-of-way" require a permit from DOTPF. RS 2477 rights-of-way and section-line easements surely qualify as "state rights-of-way," so this is an apparent conflict. In Phase 2, DNR and DOTPF need to work together to eliminate this conflict.

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COMMENTS FROM MUNICIPALITIES / DNR RESPONSES

We build and maintain borough roads on these easements. DNR doesn't. The borough needs full control over the easements. When a DNR subdivision dedicates an easement to public use, that means it belongs to the borough.

Response: In the past, the status of DNR-reserved subdivision easements was sometimes left in doubt. In future subdivisions of state land, DNR plans to make its intent clear. There is no reason for DNR to retain any control over the typical subdivision access and utility easement, and DNR will specifically convey such easements to the municipality. But if a section-line easement, RS 2477 right-of-way, or easement for access to public waters happens to cross that subdivision, DNR can't grant it out of state ownership. DNR should be able to transfer management authority to the borough (with borough consent), but not the right to vacate it. Phase 2 will go into this subject in more detail.

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For more information on RS 2477 Rights-of-Way, visit the RS 2477 webpage:

RS 2477 RIGHTS-OF-WAY