Legislature(2001 - 2002)
05/10/2002 02:17 PM House 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(FIN)
"An Act establishing and relating to the Navigable
Waters Commission for Alaska."
RON SOMMERVILLE, CONSULTANT, HOUSE AND SENATE RESOURCE
COMMITTEE, testified in support of the legislation. He
explained that Senator Halford and Representative Porter put
the concept of the joint commission forward. The purpose of
the Alaska Navigable Waters Commission would be to expedite
transfers of title on submerged lands. Under the Submerged
Lands Act, when Alaska became a state in 1959 it received
the ownership of submerged lands that are under navigable
and marine waters up to three miles. Approximately 60
million acres of submerged lands were transferred to the
state (as long as the state can prove that they were
navigable at the time of statehood). In order to claim title
under the act the state has to file under the Act with 180-
day notice stating its intention to claim land under a
specific body of water. The courts and federal agencies have
taken a narrow interpretation of the federal Quite Title
Act. The courts have ruled that the state has no
jurisdiction if the federal government is silent; this
creates a barrier to the state's acquisition of submerged
lands. The definition of "navigable" has also created
problems. In Oregon, the definition centers on the ability
to float a log down a body of water. He noted that in the
Gulkana case of 1987 the Ninth Circuit Court upheld that the
Gulkana River was navigable all the way up to the lake. The
key point was that the river was used for purposes of
commerce or could be used for the purpose of commerce. A
rubber raft or canoe could be floated up the river with
approximately 1,000 pounds. The Court ruled in the state's
favor. The problem was that there were a lot of conveyances
prior to 1987. The Bureau of Land Management (BLM) has
refused to correct errors in these cases. This has clouded
titles. The state has not lost its title to navigable
waters, but the determination of which waters were navigable
was not made.
Mr. Sommerville noted that the BLM was not required to use
its own manual for surveying instructions for conveying
lands in Alaska until after 1988. The BLM, by their own
manual, is required to meander boundaries around lakes
larger than 50 acres or a stream wider than three chains or
198 feet, which would prevent the submerged lands that
belong to the state from transferring to the adjacent
landowner.
Mr. Sommerville explained that since statehood title on
submerged lands has been resolved on 13 rivers. There are
22,000 rivers that could be considered navigable. In 1992
and 1996 the state submitted to the BLM a list of 217 rivers
on which quiet title was requested. The state did not
receive federal cooperation and decided to take three rivers
lying in the northeastern part of Alaska to court: the
Black, Kandik and the Nation Rivers. After nine years the
court ruled in the state's favor on two of the rivers. The
third river was determined not to have jurisdiction. He
concluded that it would take 99,000 years to resolve title
at the current rate. Mr. Sommerville pointed out that it
took approximately $1 million dollars of state and federal
funds to resolve navigability on two rivers. Title is needed
for many reasons: to lease rivers, manage trespass, or
extract gravel. He stressed that it is not a subsistence
issue. Subsistence is a reserve water rights issue, which is
a separate court issue.
Mr. Sommerville observed that SB 219 is a process worked out
with the federal government to create a commission to
identify navigable and non-navigable rivers and develop a
list and where possible work with the Administration to
certify the list. He observed that Congress and the state
legislature might need to be consulted on certification of
some rivers. There is a CIP fiscal note of $200 thousand
dollars, which is exclusively for the conduct of the
commission. The operation of the commission would have to
come from the agencies and federal assistance.
Vice-Chair Bunde referred to the number of members in
section 3. He observed that the membership composition was
different in state and federal legislation. Mr. Sommerville
explained that the membership component was altered in the
Senate Finance Committee. The congressional version was made
prior to the Senate change. He anticipated that the
congressional version would be changed to correspond to the
state version. The sponsor was agreeable to the change in
the Senate Finance Committee and did not think that it would
be difficult to change the federal law to coincide with the
change.
Representative Croft questioned if any part of the Katie
John decision was based on the title of land. Mr.
Sommerville observed that some jurisdictional issues occur
with the exercise of submerged title. In the Katie John case
the state maintained that the area in question was a
navigable stream. The claim revolved around the reserved
water right. The argument did not center on the issue of
navigability.
Representative Croft questioned if the fact that the land
had never been certified under the Quiet Title Act played
into the jurisdictional issues in the Katie John case. Mr.
Sommerville observed that he is not an attorney, but did not
recall it being part of the case.
In response to a question by Representative John Davies, Mr.
Sommerville discussed title meandering. He explained that
the mean high waterline of a river or lake estimated for the
conveyance in order to assure that no submerged lands are
convey. The boundary of the uplands would be conveyed to the
adjacent landowner.
Representative John Davies observed that Mr. Sommerville had
indicated that there were mistakes made in the Gulkana case.
Mr. Sommerville clarified that mistakes were made prior to
issuance of the order. The BLM did not follow its own
surveying instructions until told to by Congress. Some
streams less than 3 meters wide and some lakes less than 50
acres were transmitted as submerged land. Some of these
bodies are clearly navigable and should have been corrected.
Those titles are still clouded.
Representative John Davies asked the interpretation of
navigable land through a national park. Mr. Sommerville
explained that ownership of submerged lands in parks would
belong to the state of Alaska. The question is how much
authority does the adjacent landowner, the federal
government, control. The federal government can exercise
some control if the activity would impact the adjacent
federal land. If the state controls the submerged land in a
national park or refuge area they could exercise control of
access to the navigable water. For instance the state could
limit by permit the number of people or how they access the
water.
Vice-Chair Bunde observed that as long as an individual is
on the water afloat that they are in state territory. If a
foot were stepped on the land than they would be in the
private landowner's water and would be trespassing. Mr.
Sommerville pointed out that the submerged landowner could
exercise some control. If a person floats down a river on
private land the state law, which applies to the use of
state waters, would apply as long as they remain on the
water. If the federal government owned the submerged land
they could exercise "quite a bit" of control on the water.
Representative Bunde pointed out that if the state did not
have control and a dispute occurred over the recreational
use of submerged lands, state residents would be in trespass
on federal land if they put foot on the surrounding land.
The state would not have significant use for recreational
purposes of the land, even though there is access to the
water.
DICK BISHOP, ALASKA OUTDOOR COUNCIL, FAIRBANKS, testified in
support of the legislation. He observed that the Gulkana
case was just the beginning of the story. He noted that he
had been contacted by the BLM regarding the use of rivers in
Alaska, which indicated that the task was difficult and
moving at a glacial pace. There has to be a means to
expedite the process. There are a number of lose ends that
could cause problems in the future. There are millions of
acres of state lands in limbo. The federal government hasn't
asserted interest in the lands. The legislation could
provide the factual background and legwork to allow it to be
settled by the courts.
Representative John Davies asked if the Commission could
identify rivers that are less controversial and could be
presented to Congress and resolved. Mr. Bishop responded
that resolution is contingent on a determination of
navigability and the process by which a decision is made.
There is not a lot of controversy about the basic issue of
the terms of the Submerged Lands Act. He concluded that
bureaucracy is more of an issue than controversy. The
difficulty is in getting a determination.
Vice-Chair Bunde observed that some of the rivers would be
used for travel during frozen periods. He questioned how the
legislation would interplay with the Katie John decision.
Mr. Bishop responded that they are different issues. The
Katie John issue relates to the reach of the federal
authority and Federal Reserve waters. The controversy is
tied to federal authority under the Reserved Waters
Doctrine, not the Submerged Lands Act.
Co-Chair Mulder MOVED to report CSSB 219 (FIN) out of
Committee with the accompanying fiscal note. Representative
Croft OBJECTED for the purpose of a statement. He concluded
that the issue did not interact with the Katie John case and
WITHDREW his OBJECTION. There being NO OBJECTION, it was so
ordered.
CSSB 219(FIN) was REPORTED out of Committee with a "do pass"
recommendation and with a previously published fiscal note:
#1 LAA/DNR.
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