Legislature(2001 - 2002)
04/03/2002 03:40 PM Senate RES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 219-NAVIGABLE WATERS COMMISSION
CHAIRMAN JOHN TORGERSON called the Senate Resources Committee
meeting to order at 3:40 p.m. Present were Senators Wilken,
Halford, Stevens and Chairman Torgerson. He said he would
probably not have a quorum to take action on bills today, but
would at least take testimony on the bills. He announced SB 219
to be up for consideration.
MR. RON SOMMERVILLE, consultant to the House and Senate Majority,
said that SB 219 is designed for one purpose - to expedite the
process for determination of navigability in Alaska. He explained
some background history as follows:
In a nutshell when we got statehood in 1959 and the
state inherited title to about 60 million acres of tide
and submerged lands, about 15 million of that is
navigable waters under our streams and, according to
DNR, about 30 some million acres lies within our marine
submerged lands out to three miles. The key on
navigability is if it was navigable at statehood, it's
navigable today. The problem has been - now I'll go
through two or three items which will illustrate why in
fact we should pursue a more expeditious process. The
final determination, unfortunately, has fallen in
almost every case to the federal courts, which is not
unusual. That's the way almost every state has done,
except Alaska has a considerable amount of water -
about 22,000 thousand streams which could probably be
litigated as being navigable or nonnavigable and
upwards of one million or more of water bodies, lakes
in particular, that could be litigated as well.
The problem basically is, as the state has found in the
Quiet Title Act itself, in summarizing it, the feds in
essence, the Court under the Quiet Title Act, can be
defendants in adjudicating a disputed title in which
the U.S. claims an interest. The feds have taken a
narrow view of that and it has been upheld to some
extent in the courts. If the feds don't take an active
interest or assert an active interest in a particular
water body, then the state is powerless to force some
sort of quiet title act. I'll give you an example of
that in just a second.
The second basic problem is the navigability criteria
itself. Although the Utah Lake decision in 1987 said if
Congress didn't explicitly take away the tide and
submerged land estate under the Equal Footing Clause,
in essence when we became a state, we inherited that
title.
The Gulkana Case in 1987 was probably the key case in
Alaska, which I might add that most of the attorneys
have told me that navigability is kind of on a state-
by-state, case-by-case basis - particular water body or
stream or whatever. The Gulkana was specific to Alaska.
In your packets there's kind of a summary of the
Gulkana thing. I could read that if you desire, but in
essence it affirmed what the state had been contending
for a long time - that is a very broad definition as to
the navigability use or use as a water body for
commerce. The Gulkana criteria has been applied since
1983 to almost every decision, although be it very few
of them relating to navigability. But it is a standard
by which navigability will be determined in the future.
There have been other cases that the Department of Law
has pursued in order to try to get some clear
definition from the courts as to what water bodies
would qualify.
The third item, which is a difficulty, is the BLM
surveys themselves, one of the reasons why the state is
now looking at some expeditious process for determining
that [indisc.]. It wasn't until 1983 when
administratively BLM decided to utilize its own BLM
manual of surveying instructions, and later ratified,
by the way, in 1988 by Congress instructing them to do
that. But prior to 1983 a lot of conveyances were made
to corporations in the state, Native Corporations under
the Alaska Native Claims Settlement Act, where in fact
the BLM did not determine navigability. As such, a lot
of streams and water bodies were transferred and
submerged lands with them to the corporations whereby
the state said we think a lot of these water bodies
were in fact navigable and thus sets up a case where
you have plotted title and the potential for numerous
litigation. So, there's never been an attempt to go
back prior to 1983 and correct the errors that were
made in the conveyances.
Since statehood there have been 13 rivers determined by
the federal courts to be navigable in 40-some years. We
estimate 22,000 rivers and the cost of about $1 million
went into a court case called the Kandig, Nation and
the Black Rivers [in northeast Alaska]. That was three
rivers out of two hundred that the Department of Law
had submitted in 1992 and 1996 to Department of
Interior with indication on the Quiet Title Act - 180
day notice, we intend to quiet title to these two
hundred water bodies.
Nine years later and $1 million later we resolved two
of them. The third one is the one I was mentioning a
while ago - is this issue of the feds convinced the
courts that they had not asserted title to one of the
rivers. So, two of them were resolved and one was left,
in essence, in abeyance. There was no decision. At this
rate, you can calculate it will take us 99,000 years to
resolve our title to our navigable waters and an excess
of $11 billion if the same criteria were applied.
Why do we need title? If the state is going to manage
its water bodies, which it more and more needs to do,
that if you want to issue leases, you want to exercise
jurisdiction, title becomes important, because along
with title comes the ability to regulate what happens
in the water column. SB 219 is designed specifically
for that purpose. The body itself that is being created
does not have any authority, it won't go into affect
until a similar law is passed in Congress setting it
up. The individuals appointed would make
recommendations as to which water bodies qualify under
the Gulkana decision or other criteria established by
the courts. It would provide a list of navigable or
nonnavigable waters, which could then be verified by
Congress, the administration, the courts or whatever. I
think Senator Halford could elaborate more on a recent
meeting that he participated in with the Secretary and
the delegation. The response was positive to the
concept and that's why Senator Halford asked that this
bill is before you.
SENATOR HALFORD said:
We met with the Secretary of Interior and suggested
what we were looking at, as the first draft, to create
an entity that would make recommendations for being
passed by state law and federal law and she said,
'Well, we have a proposal that we're considering for RS
2477s in Utah where basically the federal government
files a recordable, basically, a notice of
nonobjection, which essentially closes the case or as
close as you can get to a quit claim on an easement.'
That was more than we had hoped to think about even
asking for. The draft you have takes out a lot of the
formality in the original version, but it still takes a
working group to come up with those that aren't
controversial to be recommended for solution. That was
the conversation. We were very pleased with the
conversation.
MS. CAROL CARROLL, Director, Administrative Services, DNR,
offered:
The department has a navigability person and the only
thing that we are really able to do is to look at the
conveyances that the federal government does give us
and analyze those to make sure that they have conveyed
the land that they are supposed to and that they
haven't counted the riverbeds within that conveyance.
We also, with the one person that we have there, we
make sure that we take navigability into consideration
when we do land sales by making sure that we get an
easement so we have public access. For the committee's
information, on the House side that person has been cut
out of the budget. I just wanted you to know that. The
department on this bill feels it would be a good idea.
CHAIRMAN TORGERSON asked, "Do you like the bill?"
MS. CARROLL replied, "We feel it would be that something really
does need to be done and this bill is certainly one way you could
do that."
CHAIRMAN TORGERSON said, "It's the only way I've seen so far.
It's a very important bill."
CHAIRMAN TORGERSON said they would hold the bill until Senator
Wilken could join them.
SB 219-NAVIGABLE WATERS COMMISSION
CHAIRMAN TORGERSON announced SB 219 to be back up for
consideration.
SENATOR WILKEN moved to report SB 219 from committee with
individual recommendations and the attached fiscal note. Someone
noted that the committee had not adopted the committee
substitute.
SENATOR WILKEN moved and asked unanimous consent to rescind their
actions in reporting SB 219 from committee. There were no
objections.
SENATOR WILKEN moved to adopt the CS to SB 219, version C, Cooke,
3/27/02. There were no objections and it was so ordered.
SENATOR WILKEN moved to report CSSB 219(RES) from committee with
individual recommendations and the attached fiscal note. There
were no objections and it was so ordered.
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