Legislature(2015 - 2016)BARNES 124

03/16/2016 01:00 PM RESOURCES

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        HB 216-NAVIGABLE WATER; INTERFERENCE, DEFINITION                                                                    
1:03:58 PM                                                                                                                    
CO-CHAIR NAGEAK  announced that  the first  order of  business is                                                               
HOUSE  BILL  NO.   216,  "An  Act  relating   to  obstruction  or                                                               
interference with a person's free  passage on or use of navigable                                                               
water;  and amending  the definition  of 'navigable  water' under                                                               
the Alaska Land Act."                                                                                                           
1:04:41 PM                                                                                                                    
CO-CHAIR TALERICO,  as the sponsor,  introduced HB 216.   He said                                                               
the  bill  relates to  the  obstruction  or interference  with  a                                                               
person's free passage  on or use of navigable water  and it would                                                               
amend the definition  of "navigable water" under  the Alaska Land                                                               
Act.    He  paraphrased  from  the  following  sponsor  statement                                                               
[original punctuation provided]:                                                                                                
          The "Submerged Lands Act of 1953" recognized each                                                                     
     state  as  holding the  title  for  any submerged  land                                                                    
     under  a navigable  waterway within  the boundaries  of                                                                    
     each state.  Under Alaska  law, this term is defined in                                                                    
     AC 38.05.965(14)  and specifies a number  of activities                                                                    
     that can  be conducted in a  body of water in  order to                                                                    
     deem  the  body  as  navigable.    While  the  list  of                                                                    
     activities  in  statute is  lengthy,  there  are a  few                                                                    
     omissions that House Bill 216 will address.                                                                                
          The first change that HB 216 will make is to                                                                          
     insert  additional  activities  to  the  definition  of                                                                    
     "navigable water" in  order to ensure that  there is no                                                                    
     ambiguity.    The  bill   includes  the  activities  of                                                                    
     harvesting of ice, military  training, and operation of                                                                    
     watercraft,   hovercraft,  snow   machines  and   other                                                                    
     vehicles, and hunting of any  type of game.  The second                                                                    
     change   is  to   allow  all   activities  under   this                                                                    
     definition to  be conducted "in  any season"  to ensure                                                                    
     that  these activities  may  be  conducted whether  the                                                                    
     navigable body of water is thawed or frozen.                                                                               
          The final change in HB 216 is to combine AS                                                                           
     38.05.128(a)(1)  and (2),  to  eliminate redundancy  in                                                                    
     this section  regarding a government  official blocking                                                                    
     access to navigable waters.                                                                                                
1:06:52 PM                                                                                                                    
CO-CHAIR  TALERICO stated  he  would like  to  offer a  committee                                                               
substitute (CS) that would eliminate the  repeal of AS 38.05.  It                                                               
would  instead  combine AS  38.05.128(a)(1)  and  (2) and  delete                                                               
paragraph (2).   This change  would have  the same effect  as the                                                               
repeal of (a)(1) by  eliminating redundancy regarding obstructing                                                               
the  free  passage  on  navigable  waters.   It  would  also  add                                                               
activities that  are allowed to  be conducted on  navigable water                                                               
in  Alaska  and  would  include   the  operation  of  all-terrain                                                               
vehicles, the  storage of vehicles,  and the hunting of  any form                                                               
of game rather than just waterfowl and aquatic animals.                                                                         
CO-CHAIR TALERICO added  that waterways are the  highways for the                                                               
people who  live in his  district, particularly in  the northeast                                                               
part of his district.  He  further noted he is thinking about the                                                               
mining  activities in  Central and  Chicken and  how often  those                                                               
waterways are used  during the winter to transport  goods and get                                                               
materials and  equipment back  and forth to  the communities.   A                                                               
friend   of  his   began   using  the   Porcupine   River  as   a                                                               
transportation corridor  with his great grandfather  and he still                                                               
lives there  today, uses  the river  routinely, and  utilizes the                                                               
river more  in the winter than  in the summer.   It is incredibly                                                               
important  to all  of  the folks  in the  outlying  areas of  his                                                               
district to be  able to utilize those river corridors  all of the                                                               
time.   It is also important  to him that the  federal government                                                               
continue to  uphold those  things that it  passed many  years ago                                                               
that  give   Alaskans  the  right  to   utilize  those  navigable                                                               
waterways on a year round basis.                                                                                                
1:08:55 PM                                                                                                                    
JOSHUA BANKS, Staff, Representative  David Talerico, Alaska State                                                               
Legislature, brought the  sponsor's proposed committee substitute                                                               
to the attention of the committee.                                                                                              
REPRESENTATIVE  JOHNSON moved  to  adopt  the proposed  committee                                                               
substitute  (CS)  for  HB   216,  Version  29-LS0995\E,  Bullard,                                                               
3/14/16, as the working document.                                                                                               
CO-CHAIR NAGEAK objected for discussion purposes.                                                                               
1:10:10 PM                                                                                                                    
REPRESENTATIVE JOSEPHSON asked what  the state's modifying of the                                                               
definition of  "navigability" would mean relative  to the federal                                                               
government's preeminent role on that  question.  He further asked                                                               
whether  he   is  correct  in  understanding   that  the  federal                                                               
government has the final say over the definition.                                                                               
CO-CHAIR TALERICO replied that HB  216 would clarify, expand, and                                                               
define the  definition within  Alaska statute.   It  would assert                                                               
the state's right  under the Submerged Lands Act, as  well as the                                                               
Statehood Compact, to  have the ability to control  and use those                                                               
waterways as navigable for transportation.                                                                                      
1:11:16 PM                                                                                                                    
CO-CHAIR NAGEAK  removed his objection  to adopting  the proposed                                                               
CS.  There  being no further objection, Version E  was before the                                                               
1:11:33 PM                                                                                                                    
MR. BANKS provided  a sectional analysis of the proposed  CS.  He                                                               
explained that  Section 1 of  Version E would  combine paragraphs                                                               
(1) and  (2) in  AS 38.05.128(a).   This  change would  serve the                                                               
purpose of eliminating redundancy in  regard to when a person can                                                               
obstruct the free  passage of another person  on navigable water.                                                               
The definition of  navigable water in regard to Section  1 is the                                                               
definition that  is being changed in  Section 2.  The  offense of                                                               
obstructing  the free  passage of  navigable water  is a  Class B                                                               
misdemeanor under AS  38.05.128(f).  The original  version of the                                                               
bill  repealed (a)(1),  but the  sponsor feels  that this  change                                                               
could  have had  the  potential for  misinterpretation and  taken                                                               
away the state's power.   So instead of repealing (a)(1), Version                                                               
E combines  (a)(1) and (2),  which basically has the  same effect                                                               
of eliminating the  redundancy of this section.   Section 2 would                                                               
clarify the definition  of navigable waters in two  ways.  First,                                                               
Section 2 would  make it so that any activity  that is allowed on                                                               
navigable waters can  be done in any season.   The changes in are                                                               
to make  clear what can be  done on navigable waters.   In regard                                                               
to the language,  "useful public purpose", on page 2,  line 8, of                                                               
Version E, the  sponsor believes that all  these activities would                                                               
be allowed  even if they were  not listed, but the  sponsor wants                                                               
to make  the law  very clear with  very specific  activities that                                                               
are  allowed  as a  way  to  reduce  the  ambiguity of  the  law.                                                               
Second, Section 2 would add  new activities that can be conducted                                                               
on navigable waters  and those activities are  harvesting of ice,                                                               
state or federal  military training, operation of  boats or other                                                               
watercraft,  hovercraft,  snow  machines,  all-terrain  vehicles,                                                               
other motorized  or nonmotorized  vehicles, storage  of vehicles,                                                               
and the  hunting of any  type of wild  game.  Currently,  the law                                                               
only specifies that a person  may hunt for "waterfowl and aquatic                                                               
animals"; this  language would be  deleted to allow for  any type                                                               
of hunting.                                                                                                                     
1:14:45 PM                                                                                                                    
REPRESENTATIVE  HERRON  drew attention  to  the  analysis by  the                                                               
Department of Natural  Resources (DNR) for the  fiscal note dated                                                               
3/14/16  [page  2, fourth  and  fifth  sentences], which  states,                                                               
"Removing  the   open  ended   language  and   instead  providing                                                               
additional  definitions  of  useful public  purposes  may  create                                                               
ambiguity  about navigability  ...."   He  noted  the sponsor  is                                                               
saying  there will  not  be  ambiguity, but  the  fiscal note  is                                                               
saying there will.  He requested an explanation.                                                                                
MR. BANKS replied  he is aware of this and  has clarified it with                                                               
Legislative Legal  and Research Services.   He said  the deletion                                                               
of the  language "but  not limited to"  is a  drafting preference                                                               
that Legislative  Legal and Research  Services is trying  to move                                                               
to.   The language "including  but not  limited to" has  the same                                                               
effect as  the language "including"  and use of  "including" does                                                               
not limit  the number of  activities to just the  activities that                                                               
are stated in statute.  It is just a drafting preference.                                                                       
REPRESENTATIVE HERRON noted  there is a very  high profile Alaska                                                               
case  "in front  of  the supremes"  and said  they  are going  to                                                               
decide  on it.   For  purposes  of this  bill, he  asked what  is                                                               
navigable and who owns the land under the navigable waters.                                                                     
CO-CHAIR TALERICO  responded the State  of Alaska recently  won a                                                               
case for  navigability and the  ownership of the  land underneath                                                               
Moose  Creek  in the  Fortymile  Mining  District on  the  Taylor                                                               
Highway.    That case  was  high  profile  although not  as  high                                                               
profile  as the  case  mentioned by  Representative  Herron.   He                                                               
offered  his belief  that it  was the  Bureau of  Land Management                                                               
that determined  the state does  not own the land  underneath the                                                               
waterways, but  the courts  decided the state  does own  the land                                                               
underneath the  waterways.  That  was a significant  decision for                                                               
the State of Alaska and was an inspiration behind HB 216.                                                                       
1:18:09 PM                                                                                                                    
REPRESENTATIVE  SEATON asked  whether the  language in  Section 2                                                               
regarding any  season and  useful purpose  year round  means that                                                               
the waterways,  spawning beds,  and so forth  would no  longer be                                                               
protected.   Many waterways are  only used during one  season, he                                                               
pointed out, such as when the waterway is frozen.                                                                               
CO-CHAIR TALERICO answered,  "The intention of the bill  is to be                                                               
able  to use  those vehicles  that you  cannot traditionally  use                                                               
when the  water is thawed when  it's frozen."  So,  the intention                                                               
was to  be able to use  other vehicles once the  water is frozen.                                                               
A  prime  example  is  trips  between  Fort  Yukon  and  Central.                                                               
Normally  trips are  done with  snow machine  and they  have been                                                               
done with  highway vehicles when  the river  is frozen.   That is                                                               
the closest  connection to  a road  for those  folks and  so they                                                               
utilize that  on a regular  basis.  Also,  there is the  new road                                                               
going to Tanana  and those folks are thinking they  will have the                                                               
potential for  rubber tired vehicular  access in winter  when the                                                               
river is frozen.   The idea was to be able  to use those vehicles                                                               
when the  season changes.  Obviously,  it is easy to  use a motor                                                               
boat on the  upper Yukon and in the Porcupine  usually from about                                                               
the last  week in May  until the second  week in September.   The                                                               
rest  of  the time  requires  a  change  in  vehicles.   So,  the                                                               
intention  is to  be  able  to utilize  those  vehicles that  are                                                               
available to those folks for  transportation.  Just because these                                                               
are  listed does  not mean  that dog  sleds, skijoring,  or other                                                               
traditional uses are eliminated.                                                                                                
REPRESENTATIVE SEATON  urged the sponsor to  investigate refining                                                               
the  bill to  ensure  it would  not unintentionally  specifically                                                               
allow all-terrain  vehicles to  be used in  these areas  at times                                                               
when it  would not  be appropriate,  when it  is not  frozen, and                                                               
therefore causing impact to other resources.                                                                                    
CO-CHAIR TALERICO  agreed to do so.   He believed there  are some                                                               
areas in  the state where  the Alaska  Department of Fish  & Game                                                               
(ADF&G) has the authority and ability  to ban the use of any type                                                               
of vehicle on a stream.   Some areas have horsepower restrictions                                                               
on  boats  and  some  areas  prevent  people  from  entering  the                                                               
streambed even  on foot.  He  offered his belief that  ADF&G will                                                               
continue to monitor that very closely.                                                                                          
1:22:01 PM                                                                                                                    
REPRESENTATIVE  JOSEPHSON  said  the  bill seems  to  expand  the                                                               
state's  definition of  navigable water.   He  asked whether  the                                                               
federal government  might use  this to its  benefit and  say that                                                               
the state has a more expanded  definition and use the doctrine of                                                               
Choice of  Law to  piggyback on that  definition in  this statute                                                               
and as a consequence have a broader definition of navigability.                                                                 
CO-CHAIR  TALERICO  replied  he  cannot  speak  for  the  federal                                                               
government,  but   allowed  it  is   a  possibility.     He  said                                                               
navigability is  not an issue to  him at all, rather  the lack of                                                               
the ability  to be  able to  navigate on  these waterways  is his                                                               
biggest fear.  Whether the  federal government would choose to do                                                               
that  he does  not know,  but  by the  federal government's  most                                                               
recent actions  and attitude  he would  seriously doubt  that the                                                               
federal government would expand any definition of navigability.                                                                 
1:23:22 PM                                                                                                                    
CO-CHAIR NAGEAK opened public testimony on HB 216.                                                                              
MELVIN  GROVE,  Alaska  Outdoor  Access  Alliance,  testified  in                                                               
support of  HB 216, saying it  is critical that the  state define                                                               
what is  navigable and  expand the  definition.   Alaska's rivers                                                               
and  lakes are  much easier  to  use in  the winter  than in  the                                                               
summer, he  said, especially  by snow  machine or  track vehicle.                                                               
Anything that  can be done to  protect the access of  Alaskans to                                                               
their  resources is  critical because  the federal  government is                                                               
more and  more trying to limit  that access or taking  it away or                                                               
making it more difficult.                                                                                                       
1:26:13 PM                                                                                                                    
SCOTT OGAN stated  he is a former legislator  and formerly worked                                                               
for   the  Department   of  Natural   Resources  where   he  made                                                               
determinations  of navigability  on  state waters.    He said  he                                                               
supports HB 216 and what the sponsor  is trying to do, but has an                                                               
issue  with eliminating  the  words  "but not  limited  to".   He                                                               
suggested an attorney's opinion be  sought.  He recounted that he                                                               
was asked  all the time  whether a water  was navigable.   He had                                                               
the  delegated  authority  to make  that  determination  and  the                                                               
determination  for  navigability  that  he  made  was  for  state                                                               
ownership.  Under  the Submerged Lands Act and  the Equal Footing                                                               
Doctrine the state received the  title to all the submerged lands                                                               
at  statehood.   However, government  did not  define which  ones                                                               
were  which, so  the state  has been  in a  50-year battle  since                                                               
then,  and, he  added, his  team  successfully led  an action  to                                                               
quiet title on  the Mosquito Fork of the Fortymile.   He said the                                                               
other portion  is navigability for Public  Trust Doctrine access,                                                               
and  the changes  in  HB 216  address  specifically Public  Trust                                                               
Doctrine navigability.  Access to  navigable waters is a State of                                                               
Alaska constitutional  right.  Alaska's constitution  is the only                                                               
one in the  U.S. with that protection; the  founding fathers knew                                                               
that these waters are the highways in undeveloped areas.                                                                        
MR. OGAN  posited that it  is important  to state for  the record                                                               
that  these proposed  changes  will not  change  what rivers  and                                                               
waterways are  owned by the  State of Alaska; that  is determined                                                               
by federal case  law.  The most recent case,  PPL Montana, LLC v.                                                             
Montana,  132 S.Ct.  1215  (2012),  goes back  to  a case  called                                                             
"Daniel  Ball,"  which  is  a  Civil War  era  case  where  if  a                                                             
watercraft  is used  for commercial  activities on  a river  that                                                               
determines that it is navigable; it  does not actually have to be                                                               
tied  to  actual  use,  it   could  be  susceptible  to  use  for                                                               
navigability.  He recounted that his  team tried to lower the bar                                                               
- what  is the  smallest river  in the state  that was  proved in                                                               
court as being  navigable.  That was the Nation  River, the river                                                               
on which  Mr. [John] Sturgeon  was threatened with  citations for                                                               
using his  watercraft, a  craft that was  banned by  the National                                                               
Park Service Code  of Federal Regulations (CFRs).   That issue is                                                               
more of  an issue  of whether lands  designated under  the Alaska                                                               
National Interest  Lands Conservation  Act (ANILCA)  are affected                                                               
by state  sovereign waters.  Mr.  Ogan held that those  are state                                                               
sovereign  because   the  state  owned  them   before  they  were                                                               
transferred to the National Park  Service under ANILCA.  He added                                                               
that the  National Park  Service owns  the uplands  and clarified                                                               
that that is the dispute, not whether the river is navigable.                                                                   
MR. OGAN suggested  that the bill make it a  Class A misdemeanor,                                                               
rather  than Class  B, to  block  access to  somebody's right  to                                                               
access a  navigable water,  because troopers  are not  as excited                                                               
about prosecuting  a Class B misdemeanor  as they are a  Class A,                                                               
and he thinks  it is a pretty serious violation.   Also, he said,                                                               
private landowners do not have the  right to block someone who is                                                               
using the  waterbody on their  land.   He recounted that  many of                                                               
the  disputes he  got involved  in were  when the  water was  not                                                               
navigable for title  purposes but was navigable  for public trust                                                               
purposes under  the statute, and  the private property  owner was                                                               
saying  the public  could  not go  on the  river  and fish  there                                                               
because the  property owner  owned the submerged  land.   He said                                                               
[DNR] concurred  the private property  owner owned  the submerged                                                               
land, but  could not prevent the  public from going on  the river                                                               
because under the delegated authority  in the constitution to the                                                               
legislature,  the legislature  has  determined that  water to  be                                                               
navigable in  this definition  of the  statute and  therefore the                                                               
public has  a right to  access it.  That  is what is  being dealt                                                               
with under HB 246.                                                                                                              
1:32:05 PM                                                                                                                    
REPRESENTATIVE JOSEPHSON  drew attention to the  language "in any                                                               
season" on  page 2, line  7, of Version E.   He noted  there have                                                               
been  two main  federal decisions  in the  last decade  that have                                                               
looked  at  navigability, Solid  Waste  Agency  of Northern  Cook                                                             
County v.  United States  Army Corps of  Engineers, 531  U.S. 159                                                           
(2001), and Rapanos  v. United States, 547 U.S. 715  (2006).  The                                                             
state's  rights argument  was that  [the federal  government] was                                                               
classifying too many  things as navigable so the  pushback on the                                                               
federal government was  that that is not navigable  here, it does                                                               
not have a  physical nexus or attachment to  some truly navigable                                                               
water body.  Here, at least as  to seasons, it is being said that                                                               
the state  wants to grow  the definition of navigability  and, as                                                               
far as he can  tell, that does not line up  with the arguments of                                                               
the  states  in  those  two  cases.    He  requested  Mr.  Ogan's                                                               
MR. OGAN replied  that in his opinion and  direct experience, the                                                               
bill will not expand the  ability to assert title navigability in                                                               
federal court.   Statute may say a water is  navigable, but it is                                                               
driven by  federal case  law because  the federal  government did                                                               
convey  the  waters that  were  navigable  and  the test  is  the                                                               
federal case  law.  The  most recent case  law that DNR  hung its                                                               
hat on when he was there was the  PPL Montana, LLC.  In that case                                                             
the river was broken up into  segments, with some segments of the                                                               
river that were  not navigable and some that were.   It was ruled                                                               
that  the non-navigable  segments  do not  belong  to the  state.                                                               
That dispute was over a dam  for generating power that was put in                                                               
the river and the  state argued that it was a  state river so the                                                               
company owed the  state back rent for  use of that dam.   He said                                                               
he does  not know how that  case worked out because  his interest                                                               
was  in what  sections  were navigable  and what  were  not.   He                                                               
related  that on  the morning  of a  summary judgement  motion on                                                               
DNR's  Mosquito Fork  case, the  federal government  came in  and                                                               
disclaimed 100 percent of the river that DNR was litigating.                                                                    
1:35:14 PM                                                                                                                    
WARREN  OLSON said  he has  lived in  Alaska for  55 years,  is a                                                               
member  of the  Citizens'  Advisory Commission  on Federal  Areas                                                               
(CACFA), and has been involved in  water issues for 35 years.  He                                                               
cut his teeth on the  "Gulkana case" that was extremely important                                                               
to  Alaska in  regard  to  navigable waters  in  the  state.   He                                                               
advised that the  term "navigable waters" is a legal  term.  Each                                                               
individual state  determines its  navigable waters  standards and                                                               
how  wide  the  law is  going  to  be  in  each state,  how  much                                                               
influence it  causes.  So it  is a total sovereign  issue of each                                                               
state to  determine navigable waters  within the state,  so there                                                               
are  50 different  navigable water  laws across  the nation.   In                                                               
regard  to  Representative  Josephson's   remarks,  he  said  the                                                               
federal government really  revolves around navigational servitude                                                               
and reserve water rights.   Navigational servitude has to do with                                                               
someone  putting a  cable or  some other  obstruction across  the                                                               
waterway within the state.  No  matter how large or how small the                                                               
obstruction,  that  will  result  in  talking  with  the  federal                                                               
government  because  it  will   be  restricting  commerce  and/or                                                               
personal use of  the waterway.  Reserved water rights  have to do                                                               
with  establishing  refuges  and/or  inholdings  of  the  federal                                                               
government and those  are determined at the  time of establishing                                                               
the inholdings or reserves.                                                                                                     
MR.  OLSON addressed  HB 216.    He related  that when  attending                                                               
CACFA  meetings  the departments  would  describe  their work  in                                                               
regard  to  navigable  water  in  Alaska  and  the  presentations                                                               
usually would be  involved with summertime use.   This particular                                                               
case brought a question to his  mind about the five or six months                                                               
a year of  wintertime use.  Alaskans travel tens  of thousands of                                                               
miles  on all  waterways  during the  winter  with all  different                                                               
types of modes of transportation.   Additionally, personal use of                                                               
those waterways in the wintertime  is necessary to move equipment                                                               
and  so   forth  to  lodges   and/or  mineral   developments  for                                                               
springtime work.   The  purpose of  [HB 216]  is to  elevate that                                                               
particular portion of  the year, when it is frozen,  that has not                                                               
been shown as an example of use of water for users in Alaska.                                                                   
1:38:46 PM                                                                                                                    
MR.  OLSON offered  several  suggestions.   He  said  there is  a                                                               
question of whether float planes  are considered a navigable use.                                                               
Regarding  the   language  "landing  and  takeoff   of  aircraft"                                                               
[original bill version, page 1, line  12, he urged it be specific                                                               
and include "wheels, floats, and  skis".  He suggested that "four                                                               
wheelers" be  added [to page 1,  line 13, in the  original bill],                                                               
because  throughout the  Interior and  the highway  system it  is                                                               
common in  wintertime to see  the utility work of  four wheelers.                                                               
He also urged  that the words "but not limited  to" remain in the                                                               
bill to  prevent the exclusion  of any  particular use.   He said                                                               
the  strength  of  HB  216  is  that  each  navigable  water  law                                                               
throughout the country  is unique to each state and  he is a firm                                                               
believer in naming specific uses  so that when these convocations                                                               
go between  the federal government  and the State of  Alaska that                                                               
Alaska's law stands right up and  Alaska as a sovereign state has                                                               
declared that these particular uses  are a priority; there may be                                                               
others that are practical as well.                                                                                              
MR. OLSON said  there are other areas that the  state should take                                                               
advantage  of,  such  as basin-wide  adjudication.    This  would                                                               
assist the state in determining  navigable water status, possibly                                                               
in more  urgent and  quicker methods than  are being  used today.                                                               
When referring to  navigable water laws, a look must  be taken at                                                               
each state supreme  court in respect to the  state that decisions                                                               
have  come  from.    The  state supreme  court  is  the  ultimate                                                               
authority  on  navigable water  across  the  United States.    He                                                               
thanked the sponsor for introducing the bill.                                                                                   
1:41:32 PM                                                                                                                    
REPRESENTATIVE  SEATON pointed  out  that Version  E, Section  2,                                                               
page 2, line 11, specifies  all-terrain vehicles and this section                                                               
also specifies in any season for  any public purpose.  He further                                                               
noted that Section 2 applies to  ponds and estuaries and he knows                                                               
of people  who have  very large  tired all-terrain  vehicles that                                                               
are  great going  through the  mud  and those  people enjoy  that                                                               
recreation.    He asked  whether  having  this in  statute  would                                                               
override regulations that  are effect by ADF&G  and whether there                                                               
needs to be clarification in this regard.                                                                                       
MR. OLSON  answered that in  the areas of conservation  safety it                                                               
would  seem to  him that  the  department that  has authority  in                                                               
control and can establish  restrictions against particular users.                                                               
Today there are four wheel drives  and street vehicles out on the                                                               
ice,  for example  they  are  crossing the  ice  on  Big Lake  in                                                               
Southcentral Alaska.                                                                                                            
1:43:42 PM                                                                                                                    
GARY STEVENS offered  his strong support for HB 216.   He said he                                                               
is a  member of the  Alaska Outdoor  Council, but is  speaking on                                                               
behalf of himself.  The biggest  issue for him is specifying that                                                               
snow machines  can be  ridden in  wintertime on  frozen navigable                                                               
waterways.   He said he  does not  think the committee  should be                                                               
too concerned about  federal law and what  the federal government                                                               
is going  to decide as  far as what is  navigable.  This  is more                                                               
about the allowed uses - what  is being used on that waterway and                                                               
when  it  is  being  used  on   that  waterway.    In  regard  to                                                               
Representative Seaton's  concerns, he said  he is sure  that laws                                                               
currently on the books will cover anadromous species.                                                                           
1:45:01 PM                                                                                                                    
STEVE  STRAIGHT urged  the  passage of  HB 216.    As a  longtime                                                               
Alaskan  he  said he  finds  it  crazy  that  there needs  to  be                                                               
discussion  about the  idea that  there is  a difference  between                                                               
summer use  of rivers and winter  use of rivers because  it seems                                                               
so logical.   He  said the  reason he urges  the bill  be passed,                                                               
whether in its  original form or the  CS, is that if  the bill is                                                               
not passed the legislature is leaving  it to a judge to make this                                                               
decision,  which is  not always  the wisest  place to  develop or                                                               
make law.   He requested the committee put it  in writing and get                                                               
it right,  because if the bill  is not passed a  judge could then                                                               
rule that the  legislature did not intend for there  to be winter                                                               
access on navigable waters.                                                                                                     
1:47:24 PM                                                                                                                    
CEEZAR MARTINSON testified  in support of HB 216, saying  it is a                                                               
critical  bill  to pass  for  several  reasons.   First  are  the                                                               
reasons  stated by  Mr.  Straight and  the other  is  that it  is                                                               
important for  the State  of Alaska to  expand the  definition of                                                               
what  is navigable  waters  and  what can  be  used on  navigable                                                               
waters.  In particular, the  federal overreach that has been seen                                                               
in Alaska with regard to the  Sturgeon case and other cases where                                                               
the National Park Service has  denied Alaskans the ability to use                                                               
equipment that is  necessary to them to harvest  resources.  This                                                               
bill  is  a  first  step  for the  legislature  to  assert  state                                                               
sovereignty and say navigable waters are  a state issue and it is                                                               
not the  place of the  federal government  to come in  and attack                                                               
Alaska citizens with unnecessary  and burdensome regulations that                                                               
impact their ability to feed themselves and their families.                                                                     
1:49:29 PM                                                                                                                    
CHARLES LEAN stated he is speaking for  himself.  He said he is a                                                               
member of  CACFA and was a  fisheries biologist for 40  years, so                                                               
he has  a great deal of  experience in both winter  and summer in                                                               
Northwest Alaska.  He  said he is in favor of  the bill and likes                                                               
many facets  of it.   The uses  that transferred  navigability to                                                               
the state,  although they  have changed  somewhat, show  that the                                                               
rivers and navigable waters have  not really changed much in that                                                               
timespan and  they still represent  oftentimes the best  route or                                                               
the  best means  of transportation.   Saying  he is  particularly                                                               
interested in  winter transportation,  he pointed out  that large                                                               
rivers like  the Yukon  are highways  in the winter.   It  is the                                                               
side sloughs,  straight shots, and  what is shallow water  in the                                                               
summer that  is frozen to the  bottom in winter and  that is what                                                               
provides the  most stable roadbed.   Nome is  in the thick  of it                                                               
with  the Iditarod,  Iron Dog,  and other  races.   All of  these                                                               
things  occur on  the historic  Iditarod Trail  and the  Iditarod                                                               
Trail is a  network of trails, not  a single line, and  it is the                                                               
historic  transportation  route that  the  mail  traveled in  the                                                               
winter.   It goes all  the way to Eagle  and Bethel and  north to                                                               
Kotzebue; all those trails exist as  a network and they are still                                                               
in use.   [Another example is that] many of  the visitors in Nome                                                               
for  today's  basketball game  came  via  snow machine  on  those                                                               
trails.   Those  trails  transit park  lands,  fish and  wildlife                                                               
lands,  and state  lands and  they make  use of  tidewater.   The                                                               
state owns out  to three miles and it also  owns internal waters;                                                               
those are all  part of the Navigable Waters Act  and those trails                                                               
make high use of the coastal  waters of Alaska in the winter when                                                               
they are  frozen.  He said  he could speak in  great detail about                                                               
fisheries  management  and  how  to remediate  any  impacts  that                                                               
members are concerned  about.  There are villages  in his region,                                                               
such as  Shishmaref, that still  get their water from  rivers and                                                               
families travel on a weekly basis  ten miles from town upriver to                                                               
find good clean water in the form  of ice that they bring back to                                                               
subsist on  for the rest  of the  week.  Reiterating  his support                                                               
for the bill,  he said it has  a number of things  he is grateful                                                               
to see acknowledged.                                                                                                            
1:54:19 PM                                                                                                                    
THOMAS VADEN testified  he is a lifelong Alaskan  and is speaking                                                               
to the  trail system and roads  in Eastern Alaska where  he has a                                                               
guiding  operation.   Right  now between  Nabesna  and the  White                                                               
River he  is freighting  about 60,000  pounds with  snow machines                                                               
using several  rivers and over  very small navigable  rivers that                                                               
are frozen  solid in  the winter.   That is the  only way  to get                                                               
around, he said.   It is a  big help to his  operation hauling in                                                               
horse  feed and  the like.   The  village of  Shushanna uses  the                                                               
Sushana River  coming upstream from  Northway or  Tetlin Junction                                                               
to supply  people with fuel.   The bill  is very critical  to any                                                               
kind of operations  in rural Alaska.  Some of  the trails go over                                                               
glaciers and they  are historic trails from the gold  rush in the                                                               
1920s and  1930s, but most  of those  are harder now  to navigate                                                               
because the  glaciers are receding.   He  said he still  gets ice                                                               
from rivers  to support  his operations, as  do the  residents of                                                               
Shushanna, because there  are no wells.  He  closed his testimony                                                               
by stating his support for the bill.                                                                                            
1:56:23 PM                                                                                                                    
STEVEN FLORY  spoke in favor  of the bill.   He pointed  out that                                                               
many  cabins  and  homes  are  located  on  tributaries.    These                                                               
waterways  have  been  historical  highways  for  generations  of                                                               
Alaskans,  he said,  long before  all-terrain  vehicles and  snow                                                               
machines.  It  is not a new  issue, it is just the  first time it                                                               
is  being addressed  in state  law.   The  bill is  a simple  and                                                               
overdue  solution to  an  oversight.   He  said  he cannot  speak                                                               
enough in favor of HB 216.                                                                                                      
REPRESENTATIVE  TARR  inquired  whether  Mr. Flory  has  had  any                                                               
circumstances  where   he  was  prevented  from   travel  on  any                                                               
navigable waters.                                                                                                               
MR.  FLORY replied  that the  Knik Public  Use Area  was recently                                                               
established by  the legislature and  there is  a push by  a small                                                               
segment of  people to limit the  use in the wintertime.   He came                                                               
to Alaska 26  years ago and trapped in that  area, getting around                                                               
on the ice.  Ice fishing and  other activities go on in that area                                                               
and  certain groups  have tried  to limit  that access.   Another                                                               
example has to do with a lake  that he was trapping nearby and on                                                               
which he  was using  permission from one  of the  property owners                                                               
that abutted the  lake.  The submerged lands  underneath the lake                                                               
and  to the  high  water mark  belong  to the  state  and he  was                                                               
trapping those  areas.  A  person who  did not want  any trappers                                                               
out there literally  interfered and took his traps  and the state                                                               
prosecuted her for that.                                                                                                        
1:59:16 PM                                                                                                                    
CRAIG COMPEAU said  he is a 55 year resident  of Fairbanks and is                                                               
testifying  on behalf  of himself  and his  family business.   He                                                               
held  that  the  definition  of navigable  waters  is  that  they                                                               
provide a channel  for commerce and transportation  of people and                                                               
goods.   The  definition does  not say  anything about  the water                                                               
condition, whether  it is  frozen, thawed, or  muddy.   Since the                                                               
late 1950s his family has  sold almost 20,000 snow machines, most                                                               
of them  to rural villages where  they are used for  hauling wood                                                               
and  water  and  dragging  trees  along  the  water.    If  those                                                               
definitions are  not commerce and  transportation for  the people                                                               
of Alaska, then he does not know  what is.  He offered his strong                                                               
support for the bill, saying  these definitions need to be firmed                                                               
up so  people can use  these waters  as was intended,  whether or                                                               
not they are frozen.                                                                                                            
2:01:01 PM                                                                                                                    
KAREN  GORDON  thanked  Representative  Talerico  for  closing  a                                                               
loophole in this  language by including winter use as  well.  She                                                               
said  there are  those who  would  suggest that  because it  says                                                               
water that it  would not include winter use, but  in Alaska there                                                               
is  significant  wintertime  use  of navigable  waters  that  are                                                               
solid.  She urged the bill be passed.                                                                                           
2:02:04 PM                                                                                                                    
RICHARD  BISHOP noted  he  lives in  the  Goldstream Valley  area                                                               
where trails and  other access are an important  part of people's                                                               
daily lives.   He said  he supports HB 216  and while he  has not                                                               
seen the  proposed committee  substitute he thinks  it is  on the                                                               
right  track.   Alaska's waterways  are essential  for access  by                                                               
Alaskans to the  vast areas of the state -  hiking trails, roads,                                                               
or air fields -  whether they are open water or  frozen.  He said                                                               
he had mistakenly assumed that  Alaskan waterways were considered                                                               
navigable  or  legal  public  access   when  frozen,  so  he  was                                                               
surprised  to learn  otherwise.   He also  recently learned  that                                                               
federal  agencies do  not  consider  frozen waterways  navigable,                                                               
making the  assurances that  state waters  are navigable  all the                                                               
more important.   He said  he supports the  bill as the  means to                                                               
ensure that  Alaska's waters are  considered navigable  and legal                                                               
public access year around.                                                                                                      
MR. BISHOP  recommended several  amendments to  clear up  some of                                                               
the  text.   Referring to  the  original version  before him,  he                                                               
suggested  that "or  ice"  be added  on page  1,  line 10,  after                                                               
"water"  to make  the intent  more clear.   On  page 1,  line 13,                                                               
after the  word ["vehicles"], he  recommended adding  "dog teams,                                                               
pedestrian  uses".    He  proposed  that  page  1,  line  14,  be                                                               
rephrased to  state "trapping, hunting, fishing,  or other lawful                                                               
public purposes and activities".   Regarding the words "trapping"                                                               
and  "hunting", he  held that  those adequately  cover the  terms                                                               
"waterfowl and aquatic animals" as  well as other practices, such                                                               
as  moose hunting,  for  example,  which is  very  common on  the                                                               
waterways.   He  urged the  bill be  passed to  make it  clear in                                                               
statute that Alaska's frozen waters  are considered navigable for                                                               
public access.  As to  potential impacts to salmon spawning areas                                                               
or other anadromous fish, he pointed  out that there is already a                                                               
statute regarding  the protection  of anadromous streams  that is                                                               
rigorously enforced.                                                                                                            
2:05:41 PM                                                                                                                    
JOHN STURGEON  testified in support  of HB 216, saying  it should                                                               
have  been done  long ago.   He  noted that  in 2011  he filed  a                                                               
lawsuit  against the  federal government  on navigability  and on                                                               
1/20/16  it was  heard by  the U.S.  Supreme Court.   During  the                                                               
lawsuit the  issue of uses  of navigable water  has come up  in a                                                               
form of  whether dog  sleds are  allowed.   Another issue  was in                                                               
regard  to places  like  the  Yukon River  that  have very  large                                                               
gravel  bars that  run for  miles.   The definition  of navigable                                                               
waters is ordinary high water to  ordinary high water, so it does                                                               
include  the gravel  bars in  places like  the Yukon  and Susitna                                                               
rivers.   Four wheelers and  other things used for  moose hunting                                                               
are allowed.  The National  Park Service has chased four wheelers                                                               
off  those  gravel bars  on  the  Yukon,  so  if his  lawsuit  is                                                               
successful  and  the state  retains  its  rightful title  to  the                                                               
navigable waters,  he wants  to ensure that  those uses  are very                                                               
clearly defined.                                                                                                                
2:07:23 PM                                                                                                                    
KENNY  BARBER  stated   his  100  percent  support   of  HB  216,                                                               
explaining he is a trapper who  uses these waterways.  For almost                                                               
30  years  he trapped  using  an  M37,  a rubber  tired  military                                                               
vehicle.   He added that he  has never had a  problem trapping on                                                               
rivers.   Another reason he supports  the bill is that  he thinks                                                               
there is  a lot of  overreach by  the federal government  that is                                                               
trying to  stop people  from using these  waterways and  he would                                                               
like to see the state get the jump on the federal government.                                                                   
2:08:37 PM                                                                                                                    
CO-CHAIR TALERICO  closed public testimony  on HB 216  and opened                                                               
committee discussion on the bill.                                                                                               
REPRESENTATIVE  HERRON suggested  careful consideration  be given                                                               
to Representative Seaton's concern  about having certain vehicles                                                               
in  salmon streams.   For  example, a  vehicle being  able to  go                                                               
through some streams at any time  could cause damage.  He said he                                                               
would appreciate it  if the committee could figure  out some sort                                                               
of an accommodation to the concern.                                                                                             
REPRESENTATIVE SEATON  said his  reason for  bringing this  up is                                                               
that subsequent law can override  previous law, so there needs to                                                               
be some  recognition of  that interplay.   He  stated he  has not                                                               
heard from the  department as to how that interplay  would go and                                                               
whether  the  specification of  all-terrain  vehicles  in HB  216                                                               
would  have priority  over previous  law.   He drew  attention to                                                               
[page 1,  line 6, of Version  E] which states that  a person many                                                               
not   obstruct   or   interfere  unless   that   obstruction   or                                                               
interference  falls under  the [four]  conditions  listed in  the                                                               
bill, the  last condition being  "authorized by  the commissioner                                                               
after reasonable public notice."  He  asked whether that is for a                                                               
specific waterway  or in  general; for  example whether  it would                                                               
cover estuaries in general or each specific [estuary].                                                                          
2:10:52 PM                                                                                                                    
REPRESENTATIVE JOSEPHSON suggested the  topic is more complicated                                                               
than may  be thought.   For example,  one witness, a  CACFA board                                                               
member,  said   that  the  only   time  the   federal  government                                                               
intervenes  is  when  there is  some  physical  obstruction  that                                                               
interferes with  interstate commerce or  that sort of thing.   He                                                               
recounted  an  [1824]  decision  that he  used  to  teach  called                                                               
Gibbons  v. Ogden,  22  U.S.  1 (1824),  where  the U.S.  Supreme                                                             
Court, John Marshall,  first said navigability is  a federal area                                                               
and there was not really  any discussion of obstruction, although                                                               
it did  involve a dispute  between New  Jersey and New  York over                                                               
who  controlled New  York Harbor.    So, there  was not  anything                                                               
interfering with  traffic other than  some sort of fee,  which he                                                               
supposed could be the obstruction.                                                                                              
REPRESENTATIVE   JOSEPHSON,  regarding   Representative  Seaton's                                                               
concern, said the  definition as he reads it  seems to liberalize                                                               
hunting.  There are prohibitions  on hunting when game is present                                                               
in the water, he noted, but  because there are exceptions to that                                                               
he  does  not  know  whether  the  bill  would  impede  on  that.                                                               
Regarding the  access issue,  he recalled that  when he  lived in                                                               
the  Bush the  sloughs  and rivers  were  unimpeded highways  for                                                               
vehicles of  all sorts.   He presumed  that would not  be changed                                                               
and would be left alone; for  example, no one was obstructing any                                                               
through  traffic  between Aniak  and  Bethel  that  he saw.    He                                                               
remarked he has a lot more to learn.                                                                                            
2:13:23 PM                                                                                                                    
CO-CHAIR TALERICO said HB 216 will  be held over while his office                                                               
obtains answers to the questions raised by the committee.                                                                       

Document Name Date/Time Subjects
HB 216 FiscalNote.php.pdf HRES 3/16/2016 1:00:00 PM
HB 216
CSHB 216( ) - Legislation Ver. E.pdf HRES 3/16/2016 1:00:00 PM
HB 216
CSHB 216( ) - Sectional Analysis.pdf HRES 3/16/2016 1:00:00 PM
HB 216
CSHB 216( ) - Sponsor Statement.pdf HRES 3/16/2016 1:00:00 PM
HB 216
CSHB 216( ) - Summary of Changes (Ver. W to E).pdf HRES 3/16/2016 1:00:00 PM
HB 216
HB246 Ver A.pdf HRES 3/16/2016 1:00:00 PM
HRES 5/30/2016 11:00:00 AM
HRES 5/31/2016 11:00:00 AM
HRES 6/1/2016 11:00:00 AM
HB 246
HB246 Sectional Analysis.pdf HRES 3/16/2016 1:00:00 PM
HRES 5/30/2016 11:00:00 AM
HRES 5/31/2016 11:00:00 AM
HRES 6/1/2016 11:00:00 AM
HB 246
HB246 Fiscal Note-DCCED-AIDEA-01-14-16.pdf HRES 3/16/2016 1:00:00 PM
HRES 5/30/2016 11:00:00 AM
HRES 5/31/2016 11:00:00 AM
HRES 6/1/2016 11:00:00 AM
HB 246
HSE RES HB 246 - AIDEA Oil and Gas Infrastructure Development Fund presentation.pdf HRES 3/16/2016 1:00:00 PM
HB 246
HB 216 Supporting documentation.pdf HRES 3/16/2016 1:00:00 PM
HB 216