Legislature(2001 - 2002)

04/10/2002 09:44 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
     CS FOR SENATE BILL NO. 219(RES)                                                                                            
     "An Act establishing and relating to the Joint Federal and                                                                 
     State Navigable Waters Commission for Alaska; and providing                                                                
     for an effective date."                                                                                                    
                                                                                                                                
                                                                                                                                
This  was the first  hearing  for this  bill in  the Senate  Finance                                                            
Committee.                                                                                                                      
                                                                                                                                
RON SOMERVILLE,  Resource  Consultant,  House and  Senate  Majority,                                                            
testified  to  the bill.  He  referenced  the  supporting  documents                                                            
before the members, specifically  information from the Department of                                                            
Law [copies on file].                                                                                                           
                                                                                                                                
Mr. Somerville  gave history of the issue beginning  at statehood in                                                            
1959, when  Alaska acquired  title to the  approximately 60  million                                                            
acres  of submerged  lands  in the  State.  He informed  that  court                                                            
decisions  have affirmed  this acquisition;  however there  has been                                                            
difficulty in determining what constitutes as navigable waters.                                                                 
                                                                                                                                
Mr. Somerville listed three  issues involved in the determination of                                                            
navigable  waters,  the first  being a  federal "quiet  title  Act",                                                            
which provides  a mechanism by which a state could  acquire title to                                                            
navigable  waters. He  stated that  the courts have  ruled that  the                                                            
federal   defendants  in   these  matters   could  be  involved   in                                                            
adjudicating  a  disputed  title in  which  the  federal  government                                                            
claims an interest.  However, he qualified  that in instances  where                                                            
the federal  government "refuses"  to claim  an interest, the  court                                                            
has ruled  that the federal  government has  no jurisdiction  in the                                                            
matter. He characterized  this situation as a "catch-22" because the                                                            
State could  file a  180-day notice  for quiet  title to  particular                                                            
submerged  lands and if the  federal authorities  do no contest  the                                                            
claim, the courts could refuse to rule on the claim.                                                                            
                                                                                                                                
Mr. Somerville  spoke to the next  issue as the navigable  criteria.                                                            
He  explained  that  in  Alaska,  as  in  most  states,  the  courts                                                            
primarily  determine  the  navigability   on  a case-by-case   basis                                                            
utilizing established criteria.  He detailed a case that established                                                            
precedent  involving  an  area  near  Gulkana  where  the  lands  in                                                            
question are submerged  part of the year, but exposed other parts of                                                            
the  year. He  informed  that it  was determined  that  the land  is                                                            
navigable because  the waters were used for purposes  of commerce at                                                            
the time of statehood, whether by raft, canoe or other means.                                                                   
                                                                                                                                
Mr. Somerville  shared that the Alaska  Department of Law  submitted                                                            
to the US Department  of the Interior,  a list of approximately  200                                                            
identified rivers or areas  that met the criteria established in the                                                            
Gulkana  court  decision  and  that  should  be  declared  navigable                                                            
waters. He  stated that it was decided  the State would litigate  to                                                            
obtain  the status  of navigable  waters  for three  rivers:  Black,                                                            
Kandig and Nation. After  nine years and approximately $1 million in                                                            
                                   th                                                                                           
expenses, he  stated the federal 9   Circuit Court  of Appeals ruled                                                            
that two of the rivers  are navigable because the federal government                                                            
had  claimed  an  interest.  However,  he  pointed  out,  the  court                                                            
determined it did not have  jurisdiction over making a determination                                                            
with regards to  the Black River because the federal  government had                                                            
not claimed an interest in that area.                                                                                           
                                                                                                                                
Mr. Somerville continued  with the third issue, which he pointed out                                                            
is unique to  Alaska, and relates  to the obligation of the  federal                                                            
Bureau of Land  Management to "meander" the boundaries  of bodies of                                                            
water of a certain size  and to make navigability determinations. He                                                            
stated that prior to 1983,  this did not occur and that as a result,                                                            
a significant  amount of land was conveyed, which  the State asserts                                                            
are navigable  waters and  should not have  been conveyed.  He noted                                                            
that a 1983  administrative agreement  ordered that a manual  survey                                                            
by conducted, which was affirmed by the US Congress in 1988.                                                                    
                                                                                                                                
Mr. Somerville  continued that since statehood, 13  rivers have been                                                            
affirmed as navigable by  federal courts. He noted the approximately                                                            
22,000  rivers   in  the   State,  which   could  be  disputed   for                                                            
navigability,  and approximately one million lakes  and other bodies                                                            
of water of  a significant size. He  calculated the current  rate of                                                            
determination of navigability is too slow and too expensive.                                                                    
                                                                                                                                
Mr.  Somerville  asserted  the  State must  hold  title  over  these                                                            
navigable  waters in the  event the State  decides to use,  lease or                                                            
claim management jurisdiction over the areas.                                                                                   
                                                                                                                                
Mr. Somerville stated the  intent of this legislation is to expedite                                                            
the identification  of navigable and  non-navigable water  bodies to                                                            
allow a certification  process by  the US Secretary of the  Interior                                                            
or Congress.                                                                                                                    
                                                                                                                                
Mr. Somerville  addressed  the  proposed committee  substitute,  22-                                                            
LS0965\J. He relayed a  conversation between Senator Halford and the                                                            
US Secretary  of the Interior  relating  to possible administrative                                                             
processes  that could expedite  the identification.  As a result  of                                                            
this  information,   Mr.  Somerville  informed  that   the  proposed                                                            
committee substitute  provides for  a joint commission comprised  of                                                            
State and  federal agencies,  although it  specifies the  commission                                                            
would  exist   even  if   the  federal  government   chose   not  to                                                            
participate.  He noted  the original  version of  the bill  provides                                                            
that the commission  would not exist without federal  participation.                                                            
He surmised  the inclusion  of  federal agencies  on the  commission                                                            
would give  the body  a higher status  and would  allow the  federal                                                            
agencies more input into the determination of navigability.                                                                     
                                                                                                                                
Senator Austerman  asked if a unilateral  commission would  have the                                                            
same authority  as a joint commission  that included federal  agency                                                            
participation.                                                                                                                  
                                                                                                                                
Mr. Somerville  replied it would be beneficial to  have both federal                                                            
and  state  government  involved.   He noted   this  legislation  is                                                            
patterned after the Federal  State Land and Planning Commission that                                                            
was created under  the Alaska Native Claims Settlement  Act (ANCSA).                                                            
He stated  that even  without  federal participation,  the  proposed                                                            
commission would  compile a list of identified navigable  waters for                                                            
submission to the US Secretary of the Interior.                                                                                 
                                                                                                                                
Senator  Austerman  referenced  a  statement  issued by  the  Alaska                                                            
Public Waters  Commission  on SB 219, Establishing  and Relating  to                                                            
the  Navigable Waters  Commission  for Alaska,  [copy  on file]  and                                                            
distributed  by  Senator  Wilken.  He  noted  the  statement  offers                                                            
recommendations and asked the witness to address these.                                                                         
                                                                                                                                
Mr. Somerville  responded that  the costs of  the Land Use  Planning                                                            
Commission are considerably  higher than the proposed commission, in                                                            
part  because  the  mandate  of the  proposed  commission  is  "much                                                            
narrower" than the original commission.                                                                                         
                                                                                                                                
Mr. Somerville  spoke to  the opportunities  to review the  proposed                                                            
commission's  activities  and expenses  in the  future. He  surmised                                                            
that the cost  would be more expensive  than the amount proposed  in                                                            
the  accompanying fiscal  note.  However,  he asserted  that if  the                                                            
navigability  of  only  ten  rivers  were  resolved,  the  financial                                                            
benefit would be greater than the current method.                                                                               
                                                                                                                                
KEITH  BAYHA,  Alaska   Public  Waters  Commission,   testified  via                                                            
teleconference  from Anchorage, to  reference the written  testimony                                                            
he submitted.                                                                                                                   
                                                                                                                                
Senator  Hoffman  referenced  the  first paragraph  of  the  sponsor                                                            
statement, which  states that the commission would  become a reality                                                            
only if  Congress  could provide  authorization in  federal law.  He                                                            
asked where this language is contained in the legislation.                                                                      
                                                                                                                                
Mr. Somerville  corrected  that  the proposed  committee  substitute                                                            
does  not  contain   this  language  and  that  such  congressional                                                             
authorization would not be necessary.                                                                                           
                                                                                                                                
Senator  Hoffman next  asked if  the proposed  committee  substitute                                                            
would  only designate  those  navigable waters  that  were used  for                                                            
commercial efforts at the time of statehood.                                                                                    
                                                                                                                                
Mr.  Somerville   affirmed   this  is  one   of  the  criteria   for                                                            
establishing navigability.                                                                                                      
                                                                                                                                
Senator  Hoffman  asked where  this  language  is contained  in  the                                                            
committee substitute.                                                                                                           
                                                                                                                                
Mr. Somerville  replied  this criterion  is established  in  federal                                                            
law.                                                                                                                            
                                                                                                                                
Senator Hoffman requested the language of the federal law.                                                                      
                                                                                                                                
Senator  Leman  clarified  that an  act  of Congress  would  not  be                                                            
required for  the commission to take  affect, although such  and act                                                            
would be necessary  if the commission  were to be jointly  comprised                                                            
of federal and state agencies.                                                                                                  
                                                                                                                                
Mr. Somerville affirmed.                                                                                                        
                                                                                                                                
Senator Leman  asked if Mr. Bayha had advice as to  how the governor                                                            
should appoint  members to  the commission,  noting that the  Alaska                                                            
Public Waters  Commission written testimony states  that the members                                                            
should possess a technical  background rather than be appointed only                                                            
for political reasons.                                                                                                          
                                                                                                                                
Mr.  Bayha replied  the  organization  has not  identified  specific                                                            
individuals   to  nominate  for  the   positions  on  the   proposed                                                            
commission.   However,  he   qualified  that   the  commission   had                                                            
speculated on whom the  governor might appoint. He expressed concern                                                            
that if  all members  were "previous  political  personalities"  the                                                            
proposed   commission  might   not  contain   sufficient   technical                                                            
knowledge necessary to  be effective. Therefore, he relayed that the                                                            
commission  recommends  a combination  of  political  and  technical                                                            
perspectives.                                                                                                                   
                                                                                                                                
Senator Leman attempted  to ascertain whether the legislation should                                                            
contain provisions  requiring that  appointees must possess  certain                                                            
technical knowledge on the matter.                                                                                              
                                                                                                                                
Mr.  Bayha  replied  that  if legislative   intent  were  clarified,                                                            
changes to the bill would not be necessary.                                                                                     
                                                                                                                                
Senator Leman  expressed his  intent that  only those with  adequate                                                            
technical ability served on the commission.                                                                                     
                                                                                                                                
Mr. Somerville  reminded that the  proposed commission is  patterned                                                            
after  an  existing  commission,  which  does  follow  criteria  for                                                            
technical expertise of appointees.                                                                                              
                                                                                                                                
Senator Wilken asked the  influence Governor Tony Knowles' action of                                                            
not appealing  Katie  John vs.  State of  Alaska to  the US  Supreme                                                          
Court has had on this legislation.                                                                                              
                                                                                                                                
Mr.  Somerville  stressed  this legislation  "does  not  in any  way                                                            
overturn,  or in  any way  interfere,  with the  federal  government                                                            
claiming its Federal Reserve water rights."                                                                                     
                                                                                                                                
Senator Leman directed  attention to page 3, line 11 of the proposed                                                            
committee substitute pointing  out the requirement that at least one                                                            
member  of the commission  must be  an Alaskan  Native. He asked  if                                                            
this legislation applies  state statute defining Alaskan Native as a                                                            
person  with at  least  one-quarter-blood  quantum,  or "the  looser                                                            
definition"  utilized  for  qualification  of medical  benefits  and                                                            
other governmental services.                                                                                                    
                                                                                                                                
Mr. Somerville  was  unsure and again  noted the  bill is  patterned                                                            
after the  Federal State  Land Planning  Commission, which  contains                                                            
the requirement  that at least one  member be an Alaskan  Native. He                                                            
stated the qualification  of Alaskan Native under  the provisions in                                                            
ANCSA, is one-quarter blood quantum.                                                                                            
                                                                                                                                
Co-Chair Kelly  commented it is inappropriate to appoint  members to                                                            
a  panel on  the basis  of  race. He  indicated  he would  offer  an                                                            
amendment  to remove this  restriction from  the proposed  committee                                                            
substitute.                                                                                                                     
                                                                                                                                
Co-Chair Kelly  also voiced concern with inclusion  of Governor Tony                                                            
Knowles  in the appointment  process. Co-Chair  Kelly remarked,  "We                                                            
have  found  over a  period  of time  in  his  actions and  him  not                                                            
pursuing court, Supreme Court cases and other actions that are…"                                                                
                                                                                                                                
                                                                                                                                
SFC 02 # 52, Side B 10:37 AM                                                                                                    
                                                                                                                                
                                                                                                                                
Co-Chair Kelly continued,  "… designed to protect the sovereignty of                                                            
Alaska  is  not  there."  Co-Chair   Kelly  expressed  he  would  be                                                            
concerned about  a commission appointed by the current  governor. He                                                            
furthered,  "We've not seen  a lot of results  from the task  forces                                                            
and  commissions that  he's  appointed in  the past  actually  solve                                                            
problems, but they're usually  used as public relations vehicles and                                                            
they become  very contentious and  they rarely solve anything.  They                                                            
just create  new problems." Co-Chair  Kelly indicated he  would hold                                                            
the bill  in Committee  to restructure the  appointment process  and                                                            
also to address the effective date.                                                                                             
                                                                                                                                
Senator  Hoffman requested  a  fiscal note  from  the Department  of                                                            
Natural Resources, as the Department would be impacted.                                                                         
                                                                                                                                
Co-Chair Kelly ordered the bill HELD in Committee.                                                                              
                                                                                                                                

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