Legislature(2021 - 2022)GRUENBERG 120
04/19/2022 10:00 AM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| HB397 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 397 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 397-STATE OWNERSHIP OF SUBMERGED LAND
10:04:32 AM
CHAIR TARR announced that the only order of business would be
HOUSE BILL NO. 397, "An Act relating to state ownership of
submerged land within and adjacent to federal areas; and
providing for an effective date."
CHAIR TARR noted that the Department of Natural Resources (DNR)
had provided follow up information to the committee pertaining
its questions about HB 397.
10:05:51 AM
CHRISTY COLLES, Division Operations Manager, Division of Mining
Land and Water, Department of Natural Resources, explained that
the use of state-owned lands that exceed the generally allowed
uses as defined in 11 AAC 96.020 are subject to authorization
pursuant to constitutional, statutory, and regulatory mandates.
She noted that the state coordinates permitting authorization
with the federal government for state uplands, tidelands, and
submerged lands for which state ownership is certain. She
stated that the Division of Mining, Land, and Water (DMLW) does
not receive applications for navigable waterways in federal
conservation system units (CSUs). She noted that, should HB 397
pass, the division would receive more applications for permits,
easements, and leases from the federal government and other
entities. She noted that fees are waived for federal agency
applicants in accordance with established regulations.
CO-CHAIR TARR drew attention to a letter [included in the
committee packet,] entitled " HB 397 Research - Submerged Lands
Response from DNR 3.31.22.pdf," and asked what existing
processes would change pertaining to the permittable items
listed in the letter, should HB 397 pass.
MS. COLLES answered that the authorizations listed already have
an existing process for permitting or leasing and that the
anticipated change would be that the federal government would be
required to seek authorization for such items on state-owned
navigable waters. She explained that non-government entities
would apply for permitting via the state, rather than via the
federal government.
10:10:06 AM
CO-CHAIR TARR expressed that there may exist concern with the
nature of proposed submerged land use as being conducted in a
conservation designated unit, and, specifically, concerns
regarding material extraction activities. She asked whether it
could be expected that the use of the submerged lands would
likely significantly change.
MS. COLLES answered that, should the permitting of extraction
activities be sought, the state would coordinate with the
federal upland agencies in a manner similar to what occurs in
current practice, including opportunities for public input
during the permitting process. She noted that material
extraction requires site designation and is subject to a full
agency and public process in accordance with 38.05.945.
10:12:31 AM
JIM WALKER, Section Chief, Public Access Assertion and Defense,
Division of Mining Land and Water, Department of Natural
Resources, referred to the letter that had been provided to the
committee in response to questions brought by the committee. He
offered to provide a general overview of the types of activities
and processes in which the division is involved. He stated that
individual permitting applications would involve different
processes depending on the type of permit being sought. He
added that the passage of HB 397 would not amount to a "green
light" to any type of activity and that permitting processes and
relevant public engagement would still be required.
REPRESENTATIVE ORTIZ asked state's role in permitting the
activities listed in the letter should HB 397 pass, and whether
there existed problems in obtaining permits for such activities
by the federal government and asked whether HB 397 was a
proposed solution to such problems.
MR. WALKER stated that the division receives numerous complaints
from individuals attempting to obtain permits for permissible
activities on state submerged lands when those activities are
within federal CSUs. He stated that the nature of the
complaints received had suggested federal overreach. He added
that there exists a "complete lack" of federal requests for
permitting for activities and infrastructure on state lands. He
stated that HB 397 was proposed to address individual complaints
and the alleged lack of federal cooperation in the state
permitting process by providing clarity on where state and
federal jurisdictions begin and end.
10:17:13 AM
CO-CHAIR TARR asked for a specific example of a complaint
received by the division.
MR. WALKER offered that there had been a situation that had
occurred in Crescent Lake, in Lake Clark National Park and
Preserve. He stated that surrounding areas had never been
explicitly withdrawn at the time of statehood from state title
and were, therefore, state-owned lands. He stated that the
federal government had denied permits to commercial guides and
others to place mooring buoys and guides had been prevented from
storing boats along the high-water mark during the winter
months. He added that guides had been required to fly boats in
and out surrounding the fishing season, which was neither
practical nor, in some instances, safe. He stated that a
request to permit the storage of boats via the state, rather
than via the federal government, would result in safer
operations. He stated that not all requested permits are
granted. He stated that the division had issued permits to
individuals requesting them [in accordance with the permitting
process] for entities who had not been granted permits by the
federal government.
CO-CHAIR TARR asked for an additional example or whether the
example provided was representative of the general nature of the
complaints.
MR. WALKER offered another example that had occurred in
Geographic Bay near Katmai National Park & Preserve and which is
state-owned land. The complaint had alleged that a commercial
fishing vessel had attempted to legally place fishing nets and
had been cautioned that, should the nets be placed, the fisher
would be issued a federal citation. He stated that the fisher
had foregone the fishing opportunity due to the threat of
federal citation and he suggested that the threat was tantamount
to federal interference with one's livelihood. He offered
another example that had occurred in various locations in which
local guides had conducted activities on state submerged land in
which federal law enforcement had advised guides that they were
not permitted to engage in such activities, despite the
operators having been granted state permits for such activities
in accordance with state law.
10:23:17 AM
REPRESENTATIVE STORY asked what the rationale or any known
concerns would have been for the federal government to deny
applications for boat storage.
MR. WALKER allowed hat he did not have specific knowledge of the
rationale for the denial of such permits and postulated that
that wilderness value, aesthetics, and soundscapes likely
comprised the rationale and had been cited as reasons for denial
of other permits.
REPRESENTATIVE STORY speculated that concern regarding
pollutants onboard stored vessels could be a matter of concern.
She stated her understanding that HB 397 was accompanied by a
zero fiscal note and asked whether a predicted increase in
permit requests to the division would require additional staff.
MR. WALKER stated that HB 397 would memorialize rights that had
been in existence since statehood according to the Equal Footing
Doctrine, the Federal Submerged Lands Act, and the Alaska
Statehood Act which rule the submerged lands under every
navigable waterway within its borders unless the submerged were
withdrawn with a valid, pre-statehood withdrawal that explicitly
and expressly includes the submerged land. He stated that HB
397 would not add any [lands] and would confirm and announce
state ownership, management, and control of these areas. He
stated that there would be an increase expected in permitting
applications but cautioned that it would be speculative to
attempt to predict by how much. He suggested that, should HB
397 pass, the division would provide information to the
legislature regarding the number of requests and other future
needs that could result. He referred to the earlier example
given regarding [complaints about] Geographic Bay and suggested
that there exist differences in perception based on federal
employees' experience in the Lower 48 that may have contributed
to the decisions to deny permits. He stated that federal
employees are often not aware of the Alaska National Interest
Lands Conservation Act (ANILCA), and the U. S. Supreme Court
ruling in Sturgeon v. Frost, and that the rules governing Alaska
are unique. He stated that attempted law enforcement activities
may be valid in other areas in the Lower 48 but they may not be
applicable to Alaska. He stated that the passage of HB 397
would be tantamount to a bold statement asserting the state's
ownership, management, and control of submerged lands.
10:29:09 AM
REPRESENTATIVE STORY asked for an estimate of the number of
complaints received by the division and asked whether a
resolution process exists and how difficult it was.
MR. WALKER answered that the division does not maintain
statistics related to such complaints. He offered that
resolution of complaints require escalation to high-level state
and federal government officials and usually contain some threat
of litigation as an incentive towards federal cooperation. He
restated that the passage of HB 397 would clarify precisely the
boundaries of state-owned lands.
REPRESENTATIVE ORTIZ referred to the letter from DNR dated March
30, 2022 and noted the list of additional permitting that would
be performed by DNR should HB 397 pass, and asked whether there
would exist a need for additional staff and resources including
those which may be required in cases that involve litigation.
MR. WALKER stated his belief that no additional cost would
occur, should HB 397 pass. He explained that the state is
currently involved in multiple litigations that he characterized
as being a result of federal intransigence. He suggested that
the passage of HB 397 would establish clear jurisdiction over
the items listed in the letter and would provide clarity to
which lands are state-owned. He suggested that the burden of
litigation would be reduced, and the federal government would no
longer be allowed to withhold or refuse permits and would
instead be obligated to challenge a permit rather than obstruct
the granting of permissible activities. He noted that the
passage of HB 397 would not add to the existing workload since
it would not increase any land holdings of the state. He
offered an example in which [federal] upland owners had been
given an opportunity to comment on proposed permits such as one
for a dock, and the landowners had publicly opposed the granting
of the permit and, since the submerged land was state-owned, the
upland [federal] owners could not [unilaterally] deny the
permit. He reminded the committee of the instance in Geographic
Bay in which the federal government had denied a fisher his
rights to fishing and thereby his rights to earn a living via
the threat of a federal citation for activities permitted under
state law.
10:38:28 AM
JOHN STURGEON, Plaintiff in Supreme Court Case vs. National
Parks Service, stated that he had been a party in a 2019 U. S.
Supreme Court Case involving the State of Alaska's navigable
waters. He offered background information regarding navigable
waters and noted that, in many places throughout rural Alaska,
navigable waterways function as transportation routes for
approximately 80 percent of Alaska's population. He
characterized the Yukon, Kuskokwim, Stikine, and Susitna Rivers
as transportation superhighways since the arrival of the first
indigenous settlers. He stated that the founding fathers had
designated navigable waters as being owned by the states. He
added that, at the time of statehood, under the Fairness
Doctrine, Alaska had been granted the title to all navigable
waters in the state. He explained that, in 2007, he had been
hunting moose on a tributary to the Yukon River, near Eagle,
Alaska, within the Yukon-Charley Rivers National Preserve. He
stated that he had been operating a 10-foot hovercraft and had
been approached by law enforcement officers from the National
Park Service and informed that hovercrafts were not permissible
in national park lands. He informed the officers that he was
operating on state-owned waters and questioned the officers'
jurisdiction, and the officers asserted that the federal
government owned the upland lands and, as a result, had
management jurisdiction rights over the waterway. He stated
that, although he had not received a citation during the
encounter, a 13-year federal court case had ensued with a cost
of $1.6 million, funded by donations. He stated that the case
he was involved in was one of 8,000 related cases submitted in
2019 and was one of only 41 of the cases that were accepted [by
the courts.] He stated that the unanimous ruling in his favor
ruled that all navigable waters and submerged lands in the State
of Alaska were state-owned and of vital importance to Alaska's
citizens and economy. He stated that, since the unanimous U. S.
Supreme Court ruling, no changes to navigable waters had been
granted to the state. He added that only 9 percent of navigable
waters in Alaska had been transferred from the federal
government to the state in the 63 years since statehood. He
offered his opinion that the federal government was
intentionally withholding management rights of navigable waters
from the State of Alaska. He stated that the federal government
manages lands for maximum biodiversity and the state manages
lands for maximum sustained yield and that the state has
management tools in place. He urged the passage of HB 397.
10:44:37 AM
MIKE SEWRIGHT, Assistant Attorney General (Retired), testified
in support of HB 397. He offered details on his background as a
lifelong Alaskan. He stated that he had been a lead attorney at
the Department of Law in cases dealing with navigable waters in
Alaska and had been lead counsel in cases that addressed
navigable waters standards. He emphasized the concept of
certain rivers in Alaska being [equivalent to] superhighways in
Alaska. He stated that the federal government generally did not
challenge the question of navigability of the main rivers in
Alaska but that it questioned the navigability status of smaller
rivers. He noted that there exist a large number of navigable
waters, as listed in the bill. He stated that the U. S. Supreme
Court had endorsed waterways in Alaska as navigable should they
be used for or be susceptible to use for commercial travel
including travel by small watercraft. He offered the headwaters
of the Nation River as an example. He stated his understanding
that the importance of HB 397 would be to state the State of
Alaska's position of ownership of the waterways.
10:48:23 AM
MR. SEWRIGHT stated that the passage HB 397 would be a
legislative statement that the state owns the waterways, and he
characterized it as an important bill. He suggested that HB 397
was not a partisan bill and had been carefully drafted, and he
encouraged the passage of HB 397.
10:50:55 AM
CHAIR TARR announced that HB 397 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 397 Sponsor Statement 3.10.22.pdf |
HFSH 3/22/2022 10:00:00 AM HFSH 4/5/2022 10:00:00 AM HFSH 4/19/2022 10:00:00 AM HFSH 5/5/2022 10:00:00 AM |
HB 397 |
| HB 397 Version A 3.14.22.PDF |
HFSH 3/22/2022 10:00:00 AM HFSH 4/5/2022 10:00:00 AM HFSH 4/19/2022 10:00:00 AM HFSH 5/5/2022 10:00:00 AM |
HB 397 |
| HB 397 Sectional Analysis 3.15.22.pdf |
HFSH 3/22/2022 10:00:00 AM HFSH 4/5/2022 10:00:00 AM HFSH 4/19/2022 10:00:00 AM HFSH 5/5/2022 10:00:00 AM |
HB 397 |
| HB 397 Research - Submerged Lands Presentation 3.22.22.pdf |
HFSH 3/22/2022 10:00:00 AM HFSH 4/5/2022 10:00:00 AM HFSH 4/19/2022 10:00:00 AM HFSH 5/5/2022 10:00:00 AM |
HB 397 |
| HB 397 Fiscal Note One - 3.14.22.PDF |
HFSH 3/22/2022 10:00:00 AM HFSH 4/5/2022 10:00:00 AM HFSH 4/19/2022 10:00:00 AM HFSH 5/5/2022 10:00:00 AM |
HB 397 |
| HB 397 Research - Submerged Lands Response from DNR 3.31.22.pdf |
HFSH 4/5/2022 10:00:00 AM HFSH 4/19/2022 10:00:00 AM HFSH 5/5/2022 10:00:00 AM HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM |
HB 397 |