Legislature(2001 - 2002)

04/08/2002 01:15 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 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.                                                                                                             
                                                                                                                                

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