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 |
