M E M O R A N D U M

TO: Ronald Drathman, KPB Assembly President

Kenai Peninsula Borough Assembly Members

THRU: Mike Navarre, Borough Mayor

FROM: Kenton Bloom, Chairperson

Kenai Peninsula Borough Trails Commission

DATE: May 20, 1999

RE: KPB Resolution 99-051

In examining issues related to trails in the Borough, the KPB Trails Commission identified improved liability protection for private landowners as a priority action for Borough pursuit. While legal actions against landowners for injuries resulting from recreational use of private land are rare, it is a real concern that has been repeatedly expressed by landowners at KPB Trails Commission meetings.

Many miles of trails traverse private land in the Borough. In some cases, public use easements exist across private land. In other instances, a historically used trail, lack of information regarding the ownership of the land, or convenience lead people to traverse private land for recreational purposes. Land status changes have increased the confusion of the public as to the current legal status of commonly used routes. Thousands of acres of previously public land have been transferred to private holding through homesteading, ANSCA land transfers, University and Mental Health Land Trust land selections, and State and local government land sales. In many cases, government agencies failed to reserve adequate or appropriate public easements through these lands to public land holdings.

The population of the borough has increased nearly 500% since formation of the Kenai Peninsula Borough government. Land development and improvements have increased. Yet, of the 1.2 million acres of private land in the Kenai Peninsula Borough, approximately 1.1 million acres remain vacant, undeveloped land. Vacant land is particularly susceptible to uninvited use for access or recreation. An increased resident and visitor population has created a corresponding increase in the use of historic trails and public easements on both private and public lands.

Many landowners do not object to the casual use of their land for recreation or access. However, other landowners who have previously allowed the public to cross their land or use it for hunting, trapping, or recreation, are closing their land to the public in increasing numbers. Development plans are sometimes the reason that landowners curtail public use of their land. Liability concerns are also cited as a reason. The KPB Trails Commission believes that landowners should be protected from liability for any uninvited and uncompensated use of their land whether or not a public easement is in place, and regardless of the status of the land as vacant or improved.

Uninvited use of private land is not unique to the Kenai Peninsula Borough or to the State of Alaska. Landowners are generally protected from liability for unauthorized use of land by State Recreational Use Statutes. Almost all states have recreational use statutes that protect the landowner from legal liability for any accidents that may happen when people use the property recreationally without invitation or compensation. Generally, the only exceptions are for injuries caused by intentional harm and for gross negligence.

Alaska's current Recreational Use Statute reads as follows:

The KPB Trails Commission believes that the Recreational Use Statute in the State of Alaska is weak and vague in comparison to those of other states and offers inadequate protection to Alaska landowners. Inadequacies of the Alaska Statute include its application to "unimproved land" only and a failure to define "unimproved", "recreation", and other terms.

Two Bills have been introduced in the State legislature that address Alaska's Recreational Use Statute � House Bill 88 and Senate Bill 45. House Bill 88, adds coverage of conservation easements that provide public access. The intention is to encourage landowners to place historically used trails into conservation easements for public use. This bill offers a greater measure of protection to property owners willing to place land into conservation easements that allow public access, and may prove a benefit to those seeking conservation easements for access to or across private land. However, it does not address the major issue of uninvited and uncompensated use. The Alaska Municipal League passed a resolution in 1998 supporting the addition of conservation easements to the liability statute.

Senate Bill 45 removes the term "unimproved." While this is a notable improvement, the KPB Trails Commission believes that more specific language is needed to adequately address the concerns of private landowners in the Kenai Peninsula Borough and in the State of Alaska.

While both HB 88 and SB 45 represent improvements to the current Recreational Use Statute, we would like to see a more thorough revision to Alaska's Recreational Use Statute. Elements that might be included in a revised Recreational Use Statute include:

definitions of key terms used in the statute,

clear limits on the liability of landowners, and

protection of existing rights of landowners and the public.

Attached is an example of how these elements have been expressed in the Recreational Use Statutes of other states.

KPB Trails Commission requests that the KPB Assembly adopt Resolution 99-051 to express the Borough's support for improved liability protection for the uninvited and uncompensated use of private land. Thank you for your consideration.