Legislature(2001 - 2002)
04/10/2002 09:44 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 219(RES)
"An Act establishing and relating to the Joint Federal and
State Navigable Waters Commission for Alaska; and providing
for an effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
RON SOMERVILLE, Resource Consultant, House and Senate Majority,
testified to the bill. He referenced the supporting documents
before the members, specifically information from the Department of
Law [copies on file].
Mr. Somerville gave history of the issue beginning at statehood in
1959, when Alaska acquired title to the approximately 60 million
acres of submerged lands in the State. He informed that court
decisions have affirmed this acquisition; however there has been
difficulty in determining what constitutes as navigable waters.
Mr. Somerville listed three issues involved in the determination of
navigable waters, the first being a federal "quiet title Act",
which provides a mechanism by which a state could acquire title to
navigable waters. He stated that the courts have ruled that the
federal defendants in these matters could be involved in
adjudicating a disputed title in which the federal government
claims an interest. However, he qualified that in instances where
the federal government "refuses" to claim an interest, the court
has ruled that the federal government has no jurisdiction in the
matter. He characterized this situation as a "catch-22" because the
State could file a 180-day notice for quiet title to particular
submerged lands and if the federal authorities do no contest the
claim, the courts could refuse to rule on the claim.
Mr. Somerville spoke to the next issue as the navigable criteria.
He explained that in Alaska, as in most states, the courts
primarily determine the navigability on a case-by-case basis
utilizing established criteria. He detailed a case that established
precedent involving an area near Gulkana where the lands in
question are submerged part of the year, but exposed other parts of
the year. He informed that it was determined that the land is
navigable because the waters were used for purposes of commerce at
the time of statehood, whether by raft, canoe or other means.
Mr. Somerville shared that the Alaska Department of Law submitted
to the US Department of the Interior, a list of approximately 200
identified rivers or areas that met the criteria established in the
Gulkana court decision and that should be declared navigable
waters. He stated that it was decided the State would litigate to
obtain the status of navigable waters for three rivers: Black,
Kandig and Nation. After nine years and approximately $1 million in
th
expenses, he stated the federal 9 Circuit Court of Appeals ruled
that two of the rivers are navigable because the federal government
had claimed an interest. However, he pointed out, the court
determined it did not have jurisdiction over making a determination
with regards to the Black River because the federal government had
not claimed an interest in that area.
Mr. Somerville continued with the third issue, which he pointed out
is unique to Alaska, and relates to the obligation of the federal
Bureau of Land Management to "meander" the boundaries of bodies of
water of a certain size and to make navigability determinations. He
stated that prior to 1983, this did not occur and that as a result,
a significant amount of land was conveyed, which the State asserts
are navigable waters and should not have been conveyed. He noted
that a 1983 administrative agreement ordered that a manual survey
by conducted, which was affirmed by the US Congress in 1988.
Mr. Somerville continued that since statehood, 13 rivers have been
affirmed as navigable by federal courts. He noted the approximately
22,000 rivers in the State, which could be disputed for
navigability, and approximately one million lakes and other bodies
of water of a significant size. He calculated the current rate of
determination of navigability is too slow and too expensive.
Mr. Somerville asserted the State must hold title over these
navigable waters in the event the State decides to use, lease or
claim management jurisdiction over the areas.
Mr. Somerville stated the intent of this legislation is to expedite
the identification of navigable and non-navigable water bodies to
allow a certification process by the US Secretary of the Interior
or Congress.
Mr. Somerville addressed the proposed committee substitute, 22-
LS0965\J. He relayed a conversation between Senator Halford and the
US Secretary of the Interior relating to possible administrative
processes that could expedite the identification. As a result of
this information, Mr. Somerville informed that the proposed
committee substitute provides for a joint commission comprised of
State and federal agencies, although it specifies the commission
would exist even if the federal government chose not to
participate. He noted the original version of the bill provides
that the commission would not exist without federal participation.
He surmised the inclusion of federal agencies on the commission
would give the body a higher status and would allow the federal
agencies more input into the determination of navigability.
Senator Austerman asked if a unilateral commission would have the
same authority as a joint commission that included federal agency
participation.
Mr. Somerville replied it would be beneficial to have both federal
and state government involved. He noted this legislation is
patterned after the Federal State Land and Planning Commission that
was created under the Alaska Native Claims Settlement Act (ANCSA).
He stated that even without federal participation, the proposed
commission would compile a list of identified navigable waters for
submission to the US Secretary of the Interior.
Senator Austerman referenced a statement issued by the Alaska
Public Waters Commission on SB 219, Establishing and Relating to
the Navigable Waters Commission for Alaska, [copy on file] and
distributed by Senator Wilken. He noted the statement offers
recommendations and asked the witness to address these.
Mr. Somerville responded that the costs of the Land Use Planning
Commission are considerably higher than the proposed commission, in
part because the mandate of the proposed commission is "much
narrower" than the original commission.
Mr. Somerville spoke to the opportunities to review the proposed
commission's activities and expenses in the future. He surmised
that the cost would be more expensive than the amount proposed in
the accompanying fiscal note. However, he asserted that if the
navigability of only ten rivers were resolved, the financial
benefit would be greater than the current method.
KEITH BAYHA, Alaska Public Waters Commission, testified via
teleconference from Anchorage, to reference the written testimony
he submitted.
Senator Hoffman referenced the first paragraph of the sponsor
statement, which states that the commission would become a reality
only if Congress could provide authorization in federal law. He
asked where this language is contained in the legislation.
Mr. Somerville corrected that the proposed committee substitute
does not contain this language and that such congressional
authorization would not be necessary.
Senator Hoffman next asked if the proposed committee substitute
would only designate those navigable waters that were used for
commercial efforts at the time of statehood.
Mr. Somerville affirmed this is one of the criteria for
establishing navigability.
Senator Hoffman asked where this language is contained in the
committee substitute.
Mr. Somerville replied this criterion is established in federal
law.
Senator Hoffman requested the language of the federal law.
Senator Leman clarified that an act of Congress would not be
required for the commission to take affect, although such and act
would be necessary if the commission were to be jointly comprised
of federal and state agencies.
Mr. Somerville affirmed.
Senator Leman asked if Mr. Bayha had advice as to how the governor
should appoint members to the commission, noting that the Alaska
Public Waters Commission written testimony states that the members
should possess a technical background rather than be appointed only
for political reasons.
Mr. Bayha replied the organization has not identified specific
individuals to nominate for the positions on the proposed
commission. However, he qualified that the commission had
speculated on whom the governor might appoint. He expressed concern
that if all members were "previous political personalities" the
proposed commission might not contain sufficient technical
knowledge necessary to be effective. Therefore, he relayed that the
commission recommends a combination of political and technical
perspectives.
Senator Leman attempted to ascertain whether the legislation should
contain provisions requiring that appointees must possess certain
technical knowledge on the matter.
Mr. Bayha replied that if legislative intent were clarified,
changes to the bill would not be necessary.
Senator Leman expressed his intent that only those with adequate
technical ability served on the commission.
Mr. Somerville reminded that the proposed commission is patterned
after an existing commission, which does follow criteria for
technical expertise of appointees.
Senator Wilken asked the influence Governor Tony Knowles' action of
not appealing Katie John vs. State of Alaska to the US Supreme
Court has had on this legislation.
Mr. Somerville stressed this legislation "does not in any way
overturn, or in any way interfere, with the federal government
claiming its Federal Reserve water rights."
Senator Leman directed attention to page 3, line 11 of the proposed
committee substitute pointing out the requirement that at least one
member of the commission must be an Alaskan Native. He asked if
this legislation applies state statute defining Alaskan Native as a
person with at least one-quarter-blood quantum, or "the looser
definition" utilized for qualification of medical benefits and
other governmental services.
Mr. Somerville was unsure and again noted the bill is patterned
after the Federal State Land Planning Commission, which contains
the requirement that at least one member be an Alaskan Native. He
stated the qualification of Alaskan Native under the provisions in
ANCSA, is one-quarter blood quantum.
Co-Chair Kelly commented it is inappropriate to appoint members to
a panel on the basis of race. He indicated he would offer an
amendment to remove this restriction from the proposed committee
substitute.
Co-Chair Kelly also voiced concern with inclusion of Governor Tony
Knowles in the appointment process. Co-Chair Kelly remarked, "We
have found over a period of time in his actions and him not
pursuing court, Supreme Court cases and other actions that are…"
SFC 02 # 52, Side B 10:37 AM
Co-Chair Kelly continued, "… designed to protect the sovereignty of
Alaska is not there." Co-Chair Kelly expressed he would be
concerned about a commission appointed by the current governor. He
furthered, "We've not seen a lot of results from the task forces
and commissions that he's appointed in the past actually solve
problems, but they're usually used as public relations vehicles and
they become very contentious and they rarely solve anything. They
just create new problems." Co-Chair Kelly indicated he would hold
the bill in Committee to restructure the appointment process and
also to address the effective date.
Senator Hoffman requested a fiscal note from the Department of
Natural Resources, as the Department would be impacted.
Co-Chair Kelly ordered the bill HELD in Committee.
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