Legislature(2001 - 2002)
04/08/2002 01:15 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 266-FED/STATE NAVIGABLE WATERS COMMISSION CO-CHAIR MASEK announced the first order of business, 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 0108 RON SOMERVILLE, Consultant to the House and Senate Majority, Alaska State Legislature, speaking on behalf of Representative Porter, sponsor of HB 266, noted that he'd discussed the bill at length at the [April 1] hearing; he highlighted materials addressed during that hearing. He told members that since statehood in 1959, the state has had considerable problems getting title to the approximately 60 million acres of submerged lands it received at statehood under the equal footing doctrine and the Submerged Lands Act. First, he said, the Quiet Title Act is "kind of schizophrenic" in that the state can give a 180- day notice, as required by law, to quiet title, but if the federal government doesn't actively assert its interest, the courts have ruled that the courts no longer have jurisdiction. He added, "You can't sue the federal government unless they agree to it, so you can't quiet title." He offered an example and referred to his testimony at the previous hearing. Noting that the other difficulty is the navigability criteria, he said: Even though there have been several court cases that the state has won, we've essentially outlined what the criteria are for navigability established by the courts. And one case that probably is the paramount one is the Gulkana case, which ... was decided in 1987, appealed, and later affirmed by the 9th Circuit Court [of Appeals] in 1989. So the criteria [themselves have] been very difficult to get a handle on, in order to force some sort of criteria determination by BLM [Bureau of Land Management], in particular, and/or the courts. The other thing is, BLM surveys that have been conducted up 'til 1983 were not consistent with their own manuals, so a lot of land ... was conveyed in title, particularly to corporations, which ... leaves a cloud ... on the title because they didn't use their own manual surveying instructions. In other words, [for] lakes less than 50 acres and streams less than 3 chains - 198 feet - they should have done a navigability determination; they did not. So the implication was, when they conveyed some of the lands to the corporations, that the ... submerged lands belonged to the corporation, when, in fact, the state has claimed that many of them are navigable and thus, if they were navigable at the time of statehood, they, in essence, ... belong to the state. So [for] any land conveyed prior to 1983 that doesn't fit the Gulkana decision and criteria, in essence, there's a cloud on the title. Number 0472 MR. SOMERVILLE continued: To illustrate the problem, the state had submitted about 200 rivers to the federal government, gave 180- day notice that they intend to quiet title under the Quiet Title Act. And then taking three rivers - or the Kandik, the Nation, and the Black [Rivers] - out of ... those 200, they filed a lawsuit and [tried] to force the federal government ... to release the title, in essence, of the three rivers, again, the purpose being to establish some precedent, if you will, in establishing navigability. Nine years later - and a million dollars, federal and state money - two of the rivers, we quieted title to them because the federal government had asserted an interest. And we can prove that in court, so we quieted the title on the Kandik [River] and the Nation [River]. The Black River, the federal government was successful in convincing the court it didn't have jurisdiction, [and so] they couldn't quiet title to it. And so ... for two rivers, it took us nine years and a million dollars. If you consider the fact [that] we have 22,000 rivers and a million lakes, the rivers alone, it'll take us 99,000 years to resolve our navigability and title issues. That may be an overexaggeration, but that's the rate at which we're doing it. Why do we need title? Because if the state wishes to utilize the submerged lands in any way, such as leasing for gravel, oil and gas, or whatever - if you wish to manage it - the jurisdictional aspects that go with managing the water ... column [are] involved when you own title to submerged lands. This particular proposal ... is designed for one purpose, ... to try to create a cooperative federal- state commission to sit down and identify those rivers which are navigable and those which are nonnavigable. And those you don't agree [about], you have to fight out in court - and then with the idea that working with the Secretary of Interior and Congress, and possibly even coming back to the legislature, if it's necessary, to certify which rivers are navigable and which are nonnavigable. And this particular group has no authority, in essence, to declare them; it just has the purpose [of] sitting down and saying, "We agree that these rivers meet the Gulkana criteria for navigability; these clearly are nonnavigable," and develop those two lists. That way, the recommendations will go from the body - the federal and state body - to the Secretary [of the Interior], through Congress, and to the legislature for further action. Number 0699 REPRESENTATIVE STEVENS asked Mr. Somerville whether he was comfortable with the fiscal note, and what the $250,000 covers. MR. SOMERVILLE answered that the fiscal note is a guess. The last time the federal-state land-use planning commission was in existence, in 1979, "it was about ... $670,000 ahead," he said, indicating it costs more today to do things [because of inflation]. He added that the federal-state land use planning commission created in the Alaska Native Claims Settlement Act (ANCSA) had a much broader agenda: it was looking at all land and water uses; at the subsistence issues; and at "a wide variety of things related to the potential withdrawal of 80 million acres, which was in the law, which ended up being a 120- million-acre withdrawal at 1980." He indicated both Representative Porter and Senator Halford had said this is a CIP [capital improvement project], and he remarked that the legislature can add money to it if ... "it's doing a good job and there's need for additional funds." He added: So it certainly will probably get us through the first year. But you don't look at a whole, big staffing, for instance, for a two-year project. You're talking about using DNR [Department of Natural Resources] staff, [Alaska Department of] Fish and Game staff, Department of Transportation [& Public Facilities], [and] DEC [Department of Environmental Conservation] in the state - and ... [U.S. Department of] Agriculture [and U.S. Department of the] Interior, in particular, in the federal agencies - to provide the background information that is already on the records; you can already make that decision. Number 0853 ROD ARNO, Alaska Outdoor Council (AOC), told members he would reiterate from the last hearing on [HB] 266. He said, "Our membership in the [AOC] depends on these waterways for access for hunting, for fishing - for recreation. So we do support passage of this legislation and hope that the state, then, can receive title to as many of the public waterways as possible." CO-CHAIR MASEK asked whether anyone else wished to testify; she then closed public testimony. Number 0945 CO-CHAIR SCALZI moved to report HB 266 [version 22-LS0966\C, Cook, 3/27/02] out of committee with individual recommendations and the accompanying fiscal note. He spoke in favor of resolving the submerged lands issue in an expedited manner in order to avoid becoming further and further detached from the original guidelines for determining "navigable water and the lands beneath it." He also expressed support for the attached fiscal note as described by Mr. Somerville. CO-CHAIR MASEK emphasized the importance of the legislation in order to get this commission up and working, but expressed hope that it wouldn't require more resources [than in the fiscal note]. Number 1034 CO-CHAIR MASEK requested adoption of the proposed CS. REPRESENTATIVE FATE responded, "So moved." Number 1044 CO-CHAIR SCALZI renewed his motion to report [version 22- LS0966\C, Cook, 3/27/02] out of committee with individual recommendations and the attached fiscal note. There being no objection, CSHB 266(RES) was moved out of the House Resources Standing Committee.