Legislature(2001 - 2002)

04/01/2002 01:25 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 266-FED/STATE NAVIGABLE WATERS COMMISSION                                                                                  
CO-CHAIR  MASEK announced  that  the committee  would hear  HOUSE                                                               
BILL  NO. 266,  "An Act  establishing and  relating to  the Joint                                                               
Federal  and State  Navigable Waters  Commission for  Alaska; and                                                               
providing for  an effective  date."  [In  packets was  a proposed                                                               
committee substitute (CS), version 22-LS0966\C, Cook, 3/27/02.]                                                                 
Number 0122                                                                                                                     
RON  SOMERVILLE, Consultant  to  the House  and Senate  Majority,                                                               
Alaska  State   Legislature,  presented  HB  266   on  behalf  of                                                               
Representative  Brian  Porter,  the  Speaker  of  the  House  and                                                               
sponsor  of  HB 266.    He  informed  members that  Senator  Rick                                                               
Halford,  the  Senate  President,  had  introduced  an  identical                                                               
Senate  companion bill  at  the end  of the  last  session.   Mr.                                                               
Somerville said  both bills were  held, however,  because Speaker                                                               
Porter and  Senate President Halford  had wanted to speak  to the                                                               
U.S.   Secretary  of   the  Interior   and  the   [congressional]                                                               
delegation about  the process for  determining navigability.   He                                                               
explained that the proposed CS  contains a slight change from the                                                               
original  version  regarding  the verification  process  for  any                                                               
lists developed.   The  packet also contained  a fiscal  note for                                                               
$200,000 for a two-year capital improvement project (CIP).                                                                      
MR.  SOMERVILLE  referred  to a  document  titled  "Alaska  State                                                               
Legislature:   Conflicts Concerning  Title to Submerged  Lands In                                                               
Alaska,  updated 3/04/02"  ("White Paper").   He  noted that  the                                                               
White  Paper,  which   he  and  legal  counsel   Ted  Popely  had                                                               
developed,  was   distributed  to  people  in   Washington,  D.C.                                                               
[including  Alaska's  congressional  delegation] to  outline  the                                                               
problem.   Additional background  information includes a  copy of                                                               
the State of  Alaska v. United States of America  (201 F.3d 1154)                                                             
lawsuit  (referred to  as "Kandik-Black-Nation"),  which he  said                                                               
helps  illustrate  the  problem.    He  called  this  a  Catch-22                                                               
regarding other states' entitlement to submerged lands.                                                                         
Number 0301                                                                                                                     
MR.  SOMERVILLE paraphrased  from  the  sponsor statement,  which                                                               
read:   "At  statehood in  1959,  Alaska, like  all other  states                                                               
under the  Submerged Lands Act,  received title to  all submerged                                                               
lands underlying state navigable waters  and marine waters out to                                                               
three  miles."   Mr. Somerville  remarked, "That  process ...  of                                                               
determining ...  how we get  that navigability has been  the real                                                               
catch."  He explained:                                                                                                          
     The key really  is - as, of course, I've  said - in all                                                                    
     the cases  and all the material  that's been circulated                                                                    
     by the Department  Of Law:  if it was  navigable at the                                                                    
     time of  statehood, it's navigable for  the purposes of                                                                    
     title.     But  determining  whether  or   not  it  was                                                                    
     navigable at  the time  of statehood  has been  kind of                                                                    
     the clinker.                                                                                                               
MR.  SOMERVILLE   said  the  state   essentially  has   title  to                                                               
approximately  60  million  acres of  [tidelands]  and  submerged                                                               
lands if  the state can  determine where the  land is.   About 15                                                               
million  [acres]  is  estimated  by the  [Alaska]  Department  of                                                               
Natural Resources (DNR) to lie  under navigable waters, and 45 or                                                               
46  million acres  is submerged  lands out  to three  miles.   He                                                               
indicated [the  process doesn't involve federal  agencies and the                                                               
state coming  together to determine  navigability], and  that the                                                               
final determination,  in the past,  had been made by  the courts.                                                               
Since statehood,  almost every case determining  whether a stream                                                               
was  navigable had  been  litigated  in court.    Since 1959,  13                                                               
rivers  have  been identified  by  the  federal courts  as  being                                                               
navigable for the purposes of title.                                                                                            
MR. SOMERVILLE estimated that about  22,000 streams and 1 million                                                               
lakes in Alaska  could be declared as navigable.   Mr. Somerville                                                               
indicted that determining navigability  had been a time-consuming                                                               
process.  He said  in 1992 and 1996, the state  had sent the U.S.                                                               
Department of  the Interior,  as required  under the  Quiet Title                                                               
Act, a  list of about 200  streams; the state had  specified, "We                                                               
want to  quiet the title  list as required by  the law.   We must                                                               
give  you  180  days'  notice."    He  said  the  intent  was  to                                                               
eventually quiet title to those 200 streams.                                                                                    
MR. SOMERVILLE  noted that the federal  government hadn't reacted                                                               
"like we  wanted" in order to  provide the needed court  tests to                                                               
get "some good  declaration of navigability and  what criteria we                                                               
might be  using."  The state  then went forward with  the Kandik,                                                               
Black,  and Nation  rivers in  northeastern Alaska.   Nine  years                                                               
later, he said,  the federal courts "were to have  the court case                                                               
in the  Kandik-Black-Nation"; the  court finally  determined that                                                               
the  state does  have title  to two  of those,  but there  was no                                                               
determination on  the third one.   He told members, "So,  two out                                                               
of  three, over  nine years  -  divide that  into 22,000  rivers.                                                               
It's  going to  take  us 99,000  years at  this  rate to  settle,                                                               
eventually,  what   rivers  are  navigable."     He  offered  the                                                               
foregoing as an illustration of "the kind of ... mess we're in."                                                                
Number 0591                                                                                                                     
MR. SOMERVILLE  said it  is important  to have  navigability, and                                                               
whether the  state lost title is  arguable.  He noted  that a few                                                               
years ago, [then] commissioner John  Shively told the legislature                                                               
that the state never loses  title to the submerged lands received                                                               
at statehood,  [but the longer  the issue is not  addressed], the                                                               
weaker the [state's]  case gets.  He read  from the Kandik-Black-                                                               
Nation case [original text provided]:                                                                                           
     There  is also  a serious  policy concern  in favor  of                                                                    
     allowing  resolution of  disputes based  on the  United                                                                    
     States'  inchoate claim  to  everything  in Alaska  but                                                                    
     what it  has disclaimed.  Eventually  all the witnesses                                                                    
     will be  dead, reducing the reliability  of litigation.                                                                    
     Someone who used one of these  rivers in 1950 at age 20                                                                    
     is now 60.                                                                                                                 
MR.  SOMERVILLE said  the process  in  proving that  a river  was                                                               
navigable  at  the  time  of  statehood  is  fairly  complicated.                                                               
Testimony  must be  obtained on  whether the  river was  used for                                                               
commerce, what sort  of purposes the river was used  for, and who                                                               
used it.   He  read from  the Kandik-Black-Nation  case [original                                                               
text provided]:                                                                                                                 
     The  population  in  the  area was  so  sparse  at  all                                                                    
     relevant  times--probably  no  more than  a  couple  of                                                                    
     hundred  people who  might have  used the  three rivers                                                                    
     during  the  relevant  time, most  too  young  to  have                                                                    
     relevant  knowledge or  too old  to  have survived  the                                                                    
     forty years  since statehood--that a few  deaths by old                                                                    
     age   can  remove   most  or   all  the   knowledgeable                                                                    
     witnesses.   Also, a state  entitled as of 1959  to all                                                                    
     the  incidents of  ownership in  its rivers,  yet still                                                                    
     deprived  of   clear  title   forty  years   later,  is                                                                    
     effectively deprived  of what  it is entitled  to under                                                                    
     the equal footing doctrine.                                                                                                
MR. SOMERVILLE  specified that the  statement was from  the Ninth                                                               
Circuit  Court of  Appeals.   There are  three basic  problems in                                                               
determining navigability  and quieting title to  submerged lands.                                                               
He pointed  out that the  Quiet Title  Act requires the  state to                                                               
provide a  180-day notice [of its  intention to file suit  to the                                                               
head of  the federal agency  with jurisdiction over the  lands in                                                               
question].   However, he said,  part of  the problem is  that the                                                               
Quiet  Title  Act also  specifies  that  the federal  agency  can                                                               
become a  party as  a defendant  in adjudicating  and dispatching                                                               
title  in  which  the  United  States claims  an  interest.    He                                                               
referred  to  the  Kandik-Black-Nation  case  and  indicated  the                                                               
[state didn't resolve  ownership with respect to  the Black River                                                               
because  the United  States didn't  claim  interest in  it; as  a                                                               
result, the  district court lacked jurisdiction  over the state's                                                               
claim].  He said, "If they  don't claim an interest, they can, in                                                               
essence, hold us at bay until they decide to claim an interest."                                                                
Number 0860                                                                                                                     
MR.  SOMERVILLE  said  there  is  no way  to  force  the  federal                                                               
[government] to participate  in a quiet-title-action adjudication                                                               
process.   Furthermore,  a narrow  interpretation by  the federal                                                               
agencies  has created  quite a  quandary for  the state,  and has                                                               
caused some  of the problems  the state has  had in the  40 years                                                               
since statehood in  acquiring title to submerged lands.   He said                                                               
the other problem is the  navigability criteria.  He told members                                                               
criteria used  in determining  navigability are  something people                                                               
in the Lower 48 argue  over considerably.  Different criteria are                                                               
used   in   different  parts   of   the   country  to   determine                                                               
navigability.   In Oregon, for example,  if a log can  be floated                                                               
down  a river,  then [the  river is]  navigable.   He noted  that                                                               
basically the criteria are still the same.                                                                                      
MR.  SOMERVILLE paraphrased  from a  portion of  the White  Paper                                                               
that read:   "For  purposes of title  to submerged  lands, waters                                                               
are navigable when they are used  or susceptible of being used in                                                               
their  natural and  ordinary condition  as highways  for commerce                                                               
over which trade  and travel may be conducted."   He then cited a                                                               
U.S. Supreme Court  case, which he called  a "landmark decision,"                                                               
The Daniel  Ball, 77 U.S.  557 (1870),  and read:   "Those rivers                                                             
must  be regarded  as public  navigable rivers  in law  which are                                                               
navigable in fact.  And they  are navigable in fact when they are                                                               
used,  or  are  susceptible  of being  used,  in  their  ordinary                                                               
condition, as highways for commerce,  over which trade and travel                                                               
are  or may  be conducted  in the  customary modes  of trade  and                                                               
travel on water."                                                                                                               
MR. SOMERVILLE paraphrased  from a portion of a  paragraph of the                                                               
White Paper that  read:  "The greatest hurdle to  overcome in the                                                               
State's efforts to identify and  manage navigable waters has been                                                               
the  long-standing differences  of opinion  between the  State of                                                               
Alaska and  the United  States regarding  the application  of the                                                               
test for determining title navigability."   He said the state has                                                               
taken the  position that the water  body, if usable as  a highway                                                               
for  transportation  of  people  and goods,  can  include  almost                                                               
anything.   The goods being transported  can be for a  variety of                                                               
purposes;  for  example,  the  goods  can  be  used  by  resource                                                               
management   agencies  or   for  natural   resource  exploration,                                                               
development, government, land management,  management of fish and                                                               
game  resources,  or  scientific  research.   He  remarked,  "So,                                                               
there's a broad  spectrum of uses that the  state has determined,                                                               
for  their   purposes  -  for   our  purpose  -   of  determining                                                               
navigability,  [for   which]  a   river  might  qualify."     Mr.                                                               
Somerville said  the same  holds for  recreational transportation                                                               
including personal travel and professionally guided trips.                                                                      
Number 1009                                                                                                                     
MR.  SOMERVILLE indicated  the federal  government has  contested                                                               
[the  state's  determination  of  navigability] in  a  number  of                                                               
cases.  He highlighted Alaska v.  Ahtna, [891 F.2d 1401 (9th Cir.                                                             
Alaska 1989)], known as the "Gulkana case."  He said:                                                                           
     The Gulkana  case was the  key one, because it  was one                                                                    
     of  the first  that the  state was  looking for  to get                                                                    
     some sort of active criteria  that we could use for the                                                                    
     purpose of  holding the federal  agencies' feet  to the                                                                    
     fire in  determining navigability.  The  Gulkana [case]                                                                    
     was a very broad, sweeping  case and, in essence, said,                                                                    
     as small  as a river  or as large as  it is -  and some                                                                    
     times  of the  year  the Gulkana  doesn't  run as  much                                                                    
     water as it might at other  times of the year - despite                                                                    
     the  fact,  it  was  still  used  for  the  purpose  of                                                                    
     commerce during  a variety of  times of the year.   And                                                                    
     the  criteria that  came out  of the  Gulkana case  are                                                                    
     ones that  the federal agency finally  agreed should be                                                                    
     used in resolving navigability claims in the future.                                                                       
MR.  SOMERVILLE said  the  question  is about  how  to apply  the                                                               
criteria of  the Gulkana case to  other rivers in the  state.  He                                                               
remarked, "In  other words, rivers  that are  similarly situated,                                                               
[that] clearly fall  under these category and  criteria, they are                                                               
in fact navigable."                                                                                                             
Number 1141                                                                                                                     
CO-CHAIR SCALZI referred to the  definition of "navigable", which                                                               
he  said was  broad.   He  asked if  a  commercial fishery  would                                                               
qualify as commerce in the [state's] definition.                                                                                
MR.  SOMERVILLE  said it  qualifies,  in  the contention  of  the                                                               
state, if  the river was used  for the purposes of  getting to or                                                               
going  to  a  location  for   the  purpose  of  participating  in                                                               
commerce.   He explained  that the  Gulkana River  was used  as a                                                               
waterway for purposes of trapping.   Mr. Somerville remarked, "In                                                               
essence,  the   state  was  saying,   'Look,  it  was   used  for                                                               
commerce.'"    He  indicated  the  [definition  would  include  a                                                               
commercial fishery if it took place in that area].                                                                              
CO-CHAIR SCALZI  said, "That  should qualify  it just  enough, if                                                               
there's  a commercial  fishery; that's  basically on  every river                                                               
where there's salmon in the state, isn't it?"                                                                                   
MR.  SOMERVILLE  answered  in  the  affirmative.    He  said  the                                                               
question  has been  whether  [the state]  can  force the  federal                                                               
government  to  apply  those   criteria  in  making  navigability                                                               
determinations.   Mr. Somerville  said another  problem regarding                                                               
criteria is  that prior  to 1993, the  Bureau of  Land Management                                                               
(BLM) had a very restrictive  application of its determination of                                                               
navigability.   He mentioned that  the Gulkana decision  had been                                                               
reached, but said [BLM] wasn't  using its own manual in surveying                                                               
for the purposes  of conveying lands to  the Native corporations.                                                               
Mr. Somerville  said ANCSA [Alaska Native  Claims Settlement Act]                                                               
passed  in   1993,  and   BLM  was   using  a   very  restrictive                                                               
interpretation of the  term "navigability."  He  explained that a                                                               
lot of  rivers appear  to be  transferred to  corporations, which                                                               
the  state  argued  were   navigable  rather  than  non-navigable                                                               
[rivers].  He said in 1983, and  again in 1988, BLM was forced by                                                               
an Act of  Congress to use its manual  of surveying instructions,                                                               
which  standardized  the process  that  it  used for  determining                                                               
navigability.  Mr. Somerville said:                                                                                             
     What the  manual says is that  if ... a lake  is ... 50                                                                    
     acres or  greater or a  stream is  3 chains wide  - 198                                                                    
     feet or  greater - then  the submerged lands  cannot be                                                                    
     transferred (indisc.) the uplands.   You must what they                                                                    
     call "meander"  the boundaries  of the  submerged lands                                                                    
     and the adjacent  uplands.  And that's what  we use for                                                                    
     the  purpose of  conveyance; in  other words,  only the                                                                    
     uplands are  conveyed.  If  it's smaller than  50 acres                                                                    
     or  less   than  3   chains  wide,   they  must   do  a                                                                    
     determination of  navigability - determine  whether the                                                                    
     stream  is  navigable  or  not   navigable.    If  it's                                                                    
     navigable,  they cannot  transfer the  submerged lands;                                                                    
     they must again meander the  line ... of the boundaries                                                                    
     and transfer only the uplands to the party.                                                                                
MR. SOMERVILLE  indicated the aforementioned  was not  done prior                                                               
to  1983.   As a  result, he  said, the  state has  a significant                                                               
amount of  conveyed lands with  a questionable title -  a "cloud"                                                               
on the  title -  and BLM  is not going  back and  correcting that                                                               
error.   He reiterated that  this a problem in  the determination                                                               
of navigability, "but also is  a key, in essence, of illustrating                                                               
the problem we've had in applying the Gulkana decision."                                                                        
Number 1371                                                                                                                     
MR. SOMERVILLE indicated [the objective  of HB 266 is to simplify                                                               
the process  and come to  a resolution].  He  described resolving                                                               
navigability  on 22,000  rivers and  1 million  lakes as  a "huge                                                               
problem."   Mr.  Somerville  said one  possibility recognized  by                                                               
Congress and  the legislature for [resolving  navigability] would                                                               
be to  establish a cooperative  process with federal  agencies to                                                               
identify  lakes and  streams that  meet the  Gulkana criteria  or                                                               
something similar  for determining navigability.   He pointed out                                                               
that the [cooperative  process] had been tried a  couple of times                                                               
administratively  but had  failed.   He  said the  list would  be                                                               
similar to  the [list]  of 200 [lakes  and streams]  submitted by                                                               
the [Alaska]  Department of Law  to the [U.S. Department  of the]                                                               
Interior to quiet title.                                                                                                        
MR. SOMERVILLE said  once the list is  completed, a certification                                                               
by  Congress  could  be  put  in place  or  a  process  could  be                                                               
established by the  Department of the Interior to  quiet title to                                                               
those appropriate  streams for  the purposes  that the  state was                                                               
entitled  to at  statehood.   He  mentioned  seeing whether  this                                                               
might be  a plausible  way to  go, and referred  to a  meeting in                                                               
Washington,  D.C., with  the Secretary  of the  Interior and  the                                                               
[congressional]  delegation, but  suggested  the  burden of  this                                                               
process  would  fall on  the  legislature  because of  timing  in                                                               
relation to  Congress.  He  emphasized that nothing would  be put                                                               
into place unless Congress passed a similar bill.                                                                               
Number 1491                                                                                                                     
CO-CHAIR SCALZI asked,  "Do we have a tentative  '200 list' right                                                               
now of the categories?"                                                                                                         
MR.  SOMERVILLE referred  to Appendix  A  and Appendix  B of  the                                                               
White Paper.   He said those  had been included for  the purposes                                                               
of  illustrating  "something  that  had  been  submitted."    Mr.                                                               
Somerville said he  thought there were 194  [water bodies] listed                                                               
in Appendix  A and that 9  [water bodies] were submitted  in 1996                                                               
in addition to that list.                                                                                                       
CO-CHAIR SCALZI asked  about the criteria and the  amount of time                                                               
required to put the list together.                                                                                              
MR. SOMERVILLE said  the list was put together  primarily by DNR,                                                               
the Alaska  Department of  Fish and Game  (ADF&G), and  the state                                                               
agencies through the  Department of Law.  He said  there had been                                                               
quite a  bit of information  accumulated on some rivers,  such as                                                               
river  flow,  accessibility,  and background  information.    Mr.                                                               
Somerville  said he  believed those  [water  bodies] listed  were                                                               
"pretty well" documented.                                                                                                       
Number 1664                                                                                                                     
ROD   ARNO,  Alaska   Outdoor   Council   (AOC),  testified   via                                                               
teleconference.   Mr. Arno told the  committee that the AOC  is a                                                               
statewide  coalition  of   sportsmen  with  approximately  10,000                                                               
members,  and  that  AOC  had  participated  in  the  legislative                                                               
process since  before statehood.   Noting that the  membership of                                                               
AOC  is  in support  of  HB  266,  Mr.  Arno said,  "Clearly,  as                                                               
outdoorsmen  and  sportsmen,   highway  corridors  are  extremely                                                               
important as far  as access to public lands in  Alaska."  He said                                                               
AOC  had expressed  concerns over  R.S. 2477  [rights-of-way] and                                                               
over navigable  water issues  in the past.   He  reiterated AOC's                                                               
support of HB 266.                                                                                                              
CO-CHAIR MASEK called  an at-ease from 1:50 p.m.   She called the                                                               
meeting back to order at 1:52 p.m.                                                                                              
CO-CHAIR  MASEK  mentioned that  the  committee  was short  of  a                                                               
quorum and indicated HB 266 would be held over.                                                                                 

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