SB 305: "An Act relating to state ownership of submerged land underlying water that was navigable at the time Alaska achieved statehood."
00 SENATE BILL NO. 305 01 "An Act relating to state ownership of submerged land underlying water that was 02 navigable at the time Alaska achieved statehood." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 05 to read: 06 FINDINGS AND INTENT. (a) The legislature finds that 07 (1) at the time Alaska achieved statehood, the state took title to submerged 08 land underlying navigable waterways within its boundaries; 09 (2) the state acquired title to this submerged land under the equal footing 10 doctrine, which arises under the United States Constitution and requires that new states enter 11 the Union with the same powers and attributes of sovereignty as were held by the original 13 12 colonies; 13 (3) sec. 6(m) of the Alaska Statehood Act (P.L. 85-508, 72 Stat. 339) 14 incorporated 43 U.S.C. 1301 - 1315 (Submerged Lands Act of 1953), and application of this
01 law to the state confirmed passage of title under the equal footing doctrine; 02 (4) states have title to submerged land within their borders because each has 03 an obligation to hold navigable waterways open for the public to use for navigation, fishing, 04 and commerce; 05 (5) in conveying federal land in the state before 1989, the United States 06 Department of the Interior, Bureau of Land Management, applied incorrect standards to 07 determine whether rivers and lakes passing through the land were navigable and sometimes 08 purported to convey to private parties submerged land whose title had been transferred to the 09 state at the time the state achieved statehood; 10 (6) in 1989, the United States Court of Appeals for the Ninth Circuit ruled that 11 the Bureau of Land Management had applied incorrect standards in determining navigability 12 for its land conveyances; however, the Bureau of Land Management has not reconsidered 13 most of its pre-1989 determinations; 14 (7) the Bureau of Land Management may have included state-owned 15 navigable water in certain conveyances to Native corporations established under 43 U.S.C. 16 1601 - 1629e (Alaska Native Claims Settlement Act); state-owned navigable water may have 17 been mistakenly counted against the entitlements of the corporations; 18 (8) Native corporations that have received conveyances of federal land may 19 request that the Bureau of Land Management redetermine whether the water crossing their 20 land was navigable at the time the state achieved statehood and, if found navigable, that the 21 submerged land not be counted against the corporations' entitlements; 22 (9) the state does not concede title to the submerged land that the Bureau of 23 Land Management erroneously conveyed under its pre-1989 standards and continues to assert 24 title to any water that was navigable at the time the state achieved statehood; 25 (10) while the state cannot lose its title by failing to file suit to quiet title, the 26 pre-1989 determinations by the Bureau of Land Management create public confusion about 27 ownership of this land; 28 (11) the state cannot definitively establish its title to submerged land easily but 29 generally must obtain a recordable disclaimer of interest issued by the Bureau of Land 30 Management under 43 C.F.R. 1864 or litigate disputed title and obtain a court judgment, 31 which is time-consuming and expensive; and
01 (12) the public would be served by having the state determine the navigability 02 of water at the time the state achieved statehood in order to identify submerged land to which 03 the state asserts title. 04 (b) It is the intent of the legislature that this Act will result in the identification of 05 submerged land underlying navigable water at the time the state achieved statehood and 06 public notice of that submerged land to which the state claims title. 07 * Sec. 2. AS 38.04 is amended by adding a new section to article 3 to read: 08 Sec. 38.04.062. Identification of state submerged land. (a) Except as 09 provided in (e) of this section, the state owns all submerged land underlying navigable 10 water to which title passed to the state at the time the state achieved statehood under 11 the equal footing doctrine or 43 U.S.C. 1301 - 1315 (Submerged Lands Act of 1953). 12 (b) The commissioner shall compile, maintain, and make public a list and map 13 of all water in the state that the commissioner, the United States Department of the 14 Interior, Bureau of Land Management, or a state or federal court determines was 15 navigable water at the time the state achieved statehood. The submerged land 16 underlying that navigable water shall be included in the inventory of state land 17 prepared under AS 38.04.060. 18 (c) The commissioner shall also maintain and make public a list of all water in 19 the state that the commissioner determines, in consulation with the commissioner of 20 fish and game, was nonnavigable at the time the state achieved statehood. 21 (d) Water not included on the lists described in (b) or (c) of this section is not 22 considered either navigable or nonnavigable until the commissioner has made a 23 determination as to its navigability at the time the state achieved statehood. In 24 addition, the commissioner may make corrections and alterations to the lists described 25 in (b) and (c) of this section to maintain the accuracy of each list. 26 (e) Submerged land that the state conveyed under AS 38.05.820 and 38.05.825 27 is not subject to the state's assertion of ownership under (a) of this section. 28 (f) In this section, 29 (1) "navigable water" means water that, at the time the state achieved 30 statehood, was used, or was susceptible of being used, in its ordinary condition as a 31 highway for commerce over which trade and travel were or could have been
01 conducted in the customary modes of trade and travel on water; the use or potential 02 use does not need to have been without difficulty, extensive, or long and continuous; 03 (2) "nonnavigable water" means surface water that was not navigable 04 water at the time the state achieved statehood. 05 * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to 06 read: 07 NOTICE TO NATIVE CORPORATIONS. Within 180 days after the effective date of 08 this Act, the commissioner of natural resources shall send a written notice of the state's claim 09 of ownership of submerged land described in AS 38.04.062(a), as enacted in sec. 2 of this 10 Act, to each regional corporation established under 43 U.S.C. 1606 (sec. 7, Alaska Native 11 Claims Settlement Act) and each village corporation established under 43 U.S.C. 1607 (sec. 8, 12 Alaska Native Claims Settlement Act). The purpose of the notice is to assert the state's 13 ownership interest in submerged land that may have been erroneously included in a 14 conveyance or patent to a regional or village corporation from the federal Bureau of Land 15 Management.