11 AAC 51.055. Identification of R.S. 2477 rights-of-way

(a) Before reporting to the legislature in accordance with AS 19.30.400 (b), the department will issue a proposal to identify a historic road or trail as an R.S. 2477 right-of-way that has been accepted by the state or territory of Alaska or by public use or construction.

(b) In a proposal under (a) of this section, the department will consider if sufficient evidence

(1) exists to locate the potential R.S. 2477 right-of-way on a United States Geological Survey topographical map at a scale of 1:63,360 (one inch = one mile) or on an equivalent or more detailed map;

(2) shows that the potential R.S. 2477 right-of-way crossed federal land that was unappropriated and not reserved for public use at the time of any acceptance described in (3)(A) or (3)(B) of this subsection; and

(3) exists of historical use; that evidence must include a reliable historical account, or information supplied by a knowledgeable person, to show that

(A) public use or construction constituted acceptance of the right-of-way grant under R.S. 2477 in accordance with applicable law; or

(B) a positive act on the part of a public authority constituted acceptance of the right-of-way grant under R.S. 2477 in accordance with applicable law.

(1) supports or is contrary to evidence considered under (b) of this section; and

(2) is offered during a public comment period of at least 30 days after the department gives public notice

(A) on the Alaska Online Public Notice System developed under AS 44.62.175 , or in a newspaper of statewide circulation;

(B) in a newspaper of general circulation in the vicinity of the route;

(C) by posting at a post office in the vicinity of the route, or by public service announcements in media serving the vicinity of the route;

(D) to a municipality through whose boundaries the route passes;

(E) to a regional corporation established by 43 U.S.C. 1606(a) (sec. 7(a), Alaska Native Claims Settlement Act) through whose region the route passes and

(F) to a village corporation organized under 43 U.S.C. 1607(a) (sec. 8(a), Alaska Native Claims Settlement Act) if the route is within 25 miles of the village for which the corporation was established; and

(G) to the Department of Fish and Game.

(d) After the comment period held under (c) of this section, the department will prepare a written decision whether to identify the route, in whole or in part, as an R.S. 2477 right-of-way. The department will base its decision on evidence considered or received, and will include a response to comments received. The department will give notice of its identification decision to any person who commented during the comment period.

(e) If under (d) of this section the department identifies a historic road or trail as an R.S. 2477 right-of-way, the department will show the approximate location of the right-of-way on a map described in (b) of this section.

(f) The department's identification decision may be appealed under 11 AAC 02 if the appellant demonstrates that questions of fact remain to be resolved on a route's qualification as an R.S. 2477 right-of-way. The possible adverse impacts that public use of a route may cause to private property are not grounds for an appeal of the department's identification of an R.S. 2477 right-of-way. However, the department will consider adverse impacts in the department's management of the right-of-way, and the property owner may raise them if petitioning under 11 AAC 51.065 to vacate or relocate the right-of-way.

(g) After reporting to the legislature under AS 19.30.400 (b), the department will manage use by the general public of an R.S. 2477 right-of-way that is identified under this section unless the

(1) R.S. 2477 right-of-way is part of the state highway system or the department transfers the R.S. 2477 right-of-way to the Department of Transportation and Public Facilities for management; or

(2) department transfers management authority to a municipality, with the municipality's consent; however, management by a municipality does not include the right to vacate the right-of-way.

History: Eff. 5/3/2001, Register 158

Authority: AS 19.30.400

Editor's note: As of Register 177 (April 2006), the regulations attorney made a technical revision under AS 44.62.125 (b)(6), to 11 AAC 51.055(a) .

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