Legislature(2001 - 2002)
04/01/2002 01:25 PM House RES
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* first hearing in first committee of referral
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+ teleconferenced
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ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
April 1, 2002
1:25 p.m.
MEMBERS PRESENT
Representative Beverly Masek, Co-Chair
Representative Drew Scalzi, Co-Chair
Representative Lesil McGuire
Representative Gary Stevens
MEMBERS ABSENT
Representative Hugh Fate, Vice Chair
Representative Joe Green
Representative Mike Chenault
Representative Mary Kapsner
Representative Beth Kerttula
COMMITTEE CALENDAR
HOUSE BILL NO. 266
"An Act establishing and relating to the Joint Federal and State
Navigable Waters Commission for Alaska; and providing for an
effective date."
- HEARD AND HELD
3d SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 178
"An Act relating to the powers and duties of the commissioner of
fish and game, the Department of Fish and Game, and the Board of
Game, to taking and use of certain game animals, and to
consideration of the budget of the Department of Fish and Game
by the legislature; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 266
SHORT TITLE:FED/STATE NAVIGABLE WATERS COMMISSION
SPONSOR(S): REPRESENTATIVE(S)PORTER
Jrn-Date Jrn-Page Action
05/02/01 1481 (H) READ THE FIRST TIME -
REFERRALS
05/02/01 1481 (H) RES, FIN
05/03/01 (H) RES AT 1:00 PM CAPITOL 124
05/03/01 (H) -- Meeting Canceled --
03/29/02 (H) RES AT 1:00 PM CAPITOL 124
03/29/02 (H) -- Meeting Canceled --
04/01/02 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
RON SOMERVILLE, Consultant
to the House and Senate Majority
Alaska State Legislature
Capitol Building
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified on HB 266; provided an overview
of the bill's intent and a history of navigability issues in
Alaska.
ROD ARNO
Alaska Outdoor Council (AOC)
P.O. Box 1410
Wasilla, Alaska 99687
POSITION STATEMENT: Testified in support of HB 266.
ACTION NARRATIVE
TAPE 02-21, SIDE A
Number 0001
CO-CHAIR BEVERLY MASEK called the House Resources Standing
Committee meeting to order at 1:25 p.m. Representatives Masek,
Scalzi, Stevens, and McGuire were present at the call to order.
HB 266-FED/STATE NAVIGABLE WATERS COMMISSION
CO-CHAIR MASEK announced that the committee would hear HOUSE
BILL NO. 266, "An Act establishing and relating to the Joint
Federal and State Navigable Waters Commission for Alaska; and
providing for an effective date." [In packets was a proposed
committee substitute (CS), version 22-LS0966\C, Cook, 3/27/02.]
Number 0122
RON SOMERVILLE, Consultant to the House and Senate Majority,
Alaska State Legislature, presented HB 266 on behalf of
Representative Brian Porter, the Speaker of the House and
sponsor of HB 266. He informed members that Senator Rick
Halford, the Senate President, had introduced an identical
Senate companion bill at the end of the last session. Mr.
Somerville said both bills were held, however, because Speaker
Porter and Senate President Halford had wanted to speak to the
U.S. Secretary of the Interior and the [congressional]
delegation about the process for determining navigability. He
explained that the proposed CS contains a slight change from the
original version regarding the verification process for any
lists developed. The packet also contained a fiscal note for
$200,000 for a two-year capital improvement project (CIP).
MR. SOMERVILLE referred to a document titled "Alaska State
Legislature: Conflicts Concerning Title to Submerged Lands In
Alaska, updated 3/04/02" ("White Paper"). He noted that the
White Paper, which he and legal counsel Ted Popely had
developed, was distributed to people in Washington, D.C.
[including Alaska's congressional delegation] to outline the
problem. Additional background information includes a copy of
the State of Alaska v. United States of America (201 F.3d 1154)
lawsuit (referred to as "Kandik-Black-Nation"), which he said
helps illustrate the problem. He called this a Catch-22
regarding other states' entitlement to submerged lands.
Number 0301
MR. SOMERVILLE paraphrased from the sponsor statement, which
read: "At statehood in 1959, Alaska, like all other states
under the Submerged Lands Act, received title to all submerged
lands underlying state navigable waters and marine waters out to
three miles." Mr. Somerville remarked, "That process ... of
determining ... how we get that navigability has been the real
catch." He explained:
The key really is - as, of course, I've said - in all
the cases and all the material that's been circulated
by the Department Of Law: if it was navigable at the
time of statehood, it's navigable for the purposes of
title. But determining whether or not it was
navigable at the time of statehood has been kind of
the clinker.
MR. SOMERVILLE said the state essentially has title to
approximately 60 million acres of [tidelands] and submerged
lands if the state can determine where the land is. About 15
million [acres] is estimated by the [Alaska] Department of
Natural Resources (DNR) to lie under navigable waters, and 45 or
46 million acres is submerged lands out to three miles. He
indicated [the process doesn't involve federal agencies and the
state coming together to determine navigability], and that the
final determination, in the past, had been made by the courts.
Since statehood, almost every case determining whether a stream
was navigable had been litigated in court. Since 1959, 13
rivers have been identified by the federal courts as being
navigable for the purposes of title.
MR. SOMERVILLE estimated that about 22,000 streams and 1 million
lakes in Alaska could be declared as navigable. Mr. Somerville
indicted that determining navigability had been a time-consuming
process. He said in 1992 and 1996, the state had sent the U.S.
Department of the Interior, as required under the Quiet Title
Act, a list of about 200 streams; the state had specified, "We
want to quiet the title list as required by the law. We must
give you 180 days' notice." He said the intent was to
eventually quiet title to those 200 streams.
MR. SOMERVILLE noted that the federal government hadn't reacted
"like we wanted" in order to provide the needed court tests to
get "some good declaration of navigability and what criteria we
might be using." The state then went forward with the Kandik,
Black, and Nation rivers in northeastern Alaska. Nine years
later, he said, the federal courts "were to have the court case
in the Kandik-Black-Nation"; the court finally determined that
the state does have title to two of those, but there was no
determination on the third one. He told members, "So, two out
of three, over nine years - divide that into 22,000 rivers.
It's going to take us 99,000 years at this rate to settle,
eventually, what rivers are navigable." He offered the
foregoing as an illustration of "the kind of ... mess we're in."
Number 0591
MR. SOMERVILLE said it is important to have navigability, and
whether the state lost title is arguable. He noted that a few
years ago, [then] commissioner John Shively told the legislature
that the state never loses title to the submerged lands received
at statehood, [but the longer the issue is not addressed], the
weaker the [state's] case gets. He read from the Kandik-Black-
Nation case [original text provided]:
There is also a serious policy concern in favor of
allowing resolution of disputes based on the United
States' inchoate claim to everything in Alaska but
what it has disclaimed. Eventually all the witnesses
will be dead, reducing the reliability of litigation.
Someone who used one of these rivers in 1950 at age 20
is now 60.
MR. SOMERVILLE said the process in proving that a river was
navigable at the time of statehood is fairly complicated.
Testimony must be obtained on whether the river was used for
commerce, what sort of purposes the river was used for, and who
used it. He read from the Kandik-Black-Nation case [original
text provided]:
The population in the area was so sparse at all
relevant times--probably no more than a couple of
hundred people who might have used the three rivers
during the relevant time, most too young to have
relevant knowledge or too old to have survived the
forty years since statehood--that a few deaths by old
age can remove most or all the knowledgeable
witnesses. Also, a state entitled as of 1959 to all
the incidents of ownership in its rivers, yet still
deprived of clear title forty years later, is
effectively deprived of what it is entitled to under
the equal footing doctrine.
MR. SOMERVILLE specified that the statement was from the Ninth
Circuit Court of Appeals. There are three basic problems in
determining navigability and quieting title to submerged lands.
He pointed out that the Quiet Title Act requires the state to
provide a 180-day notice [of its intention to file suit to the
head of the federal agency with jurisdiction over the lands in
question]. However, he said, part of the problem is that the
Quiet Title Act also specifies that the federal agency can
become a party as a defendant in adjudicating and dispatching
title in which the United States claims an interest. He
referred to the Kandik-Black-Nation case and indicated the
[state didn't resolve ownership with respect to the Black River
because the United States didn't claim interest in it; as a
result, the district court lacked jurisdiction over the state's
claim]. He said, "If they don't claim an interest, they can, in
essence, hold us at bay until they decide to claim an interest."
Number 0860
MR. SOMERVILLE said there is no way to force the federal
[government] to participate in a quiet-title-action adjudication
process. Furthermore, a narrow interpretation by the federal
agencies has created quite a quandary for the state, and has
caused some of the problems the state has had in the 40 years
since statehood in acquiring title to submerged lands. He said
the other problem is the navigability criteria. He told members
criteria used in determining navigability are something people
in the Lower 48 argue over considerably. Different criteria are
used in different parts of the country to determine
navigability. In Oregon, for example, if a log can be floated
down a river, then [the river is] navigable. He noted that
basically the criteria are still the same.
MR. SOMERVILLE paraphrased from a portion of the White Paper
that read: "For purposes of title to submerged lands, waters
are navigable when they are used or susceptible of being used in
their natural and ordinary condition as highways for commerce
over which trade and travel may be conducted." He then cited a
U.S. Supreme Court case, which he called a "landmark decision,"
The Daniel Ball, 77 U.S. 557 (1870), and read: "Those rivers
must be regarded as public navigable rivers in law which are
navigable in fact. And they are navigable in fact when they are
used, or are susceptible of being used, in their ordinary
condition, as highways for commerce, over which trade and travel
are or may be conducted in the customary modes of trade and
travel on water."
MR. SOMERVILLE paraphrased from a portion of a paragraph of the
White Paper that read: "The greatest hurdle to overcome in the
State's efforts to identify and manage navigable waters has been
the long-standing differences of opinion between the State of
Alaska and the United States regarding the application of the
test for determining title navigability." He said the state has
taken the position that the water body, if usable as a highway
for transportation of people and goods, can include almost
anything. The goods being transported can be for a variety of
purposes; for example, the goods can be used by resource
management agencies or for natural resource exploration,
development, government, land management, management of fish and
game resources, or scientific research. He remarked, "So,
there's a broad spectrum of uses that the state has determined,
for their purposes - for our purpose - of determining
navigability, [for which] a river might qualify." Mr.
Somerville said the same holds for recreational transportation
including personal travel and professionally guided trips.
Number 1009
MR. SOMERVILLE indicated the federal government has contested
[the state's determination of navigability] in a number of
cases. He highlighted Alaska v. Ahtna, [891 F.2d 1401 (9th Cir.
Alaska 1989)], known as the "Gulkana case." He said:
The Gulkana case was the key one, because it was one
of the first that the state was looking for to get
some sort of active criteria that we could use for the
purpose of holding the federal agencies' feet to the
fire in determining navigability. The Gulkana [case]
was a very broad, sweeping case and, in essence, said,
as small as a river or as large as it is - and some
times of the year the Gulkana doesn't run as much
water as it might at other times of the year - despite
the fact, it was still used for the purpose of
commerce during a variety of times of the year. And
the criteria that came out of the Gulkana case are
ones that the federal agency finally agreed should be
used in resolving navigability claims in the future.
MR. SOMERVILLE said the question is about how to apply the
criteria of the Gulkana case to other rivers in the state. He
remarked, "In other words, rivers that are similarly situated,
[that] clearly fall under these category and criteria, they are
in fact navigable."
Number 1141
CO-CHAIR SCALZI referred to the definition of "navigable", which
he said was broad. He asked if a commercial fishery would
qualify as commerce in the [state's] definition.
MR. SOMERVILLE said it qualifies, in the contention of the
state, if the river was used for the purposes of getting to or
going to a location for the purpose of participating in
commerce. He explained that the Gulkana River was used as a
waterway for purposes of trapping. Mr. Somerville remarked, "In
essence, the state was saying, 'Look, it was used for
commerce.'" He indicated the [definition would include a
commercial fishery if it took place in that area].
CO-CHAIR SCALZI said, "That should qualify it just enough, if
there's a commercial fishery; that's basically on every river
where there's salmon in the state, isn't it?"
MR. SOMERVILLE answered in the affirmative. He said the
question has been whether [the state] can force the federal
government to apply those criteria in making navigability
determinations. Mr. Somerville said another problem regarding
criteria is that prior to 1993, the Bureau of Land Management
(BLM) had a very restrictive application of its determination of
navigability. He mentioned that the Gulkana decision had been
reached, but said [BLM] wasn't using its own manual in surveying
for the purposes of conveying lands to the Native corporations.
Mr. Somerville said ANCSA [Alaska Native Claims Settlement Act]
passed in 1993, and BLM was using a very restrictive
interpretation of the term "navigability." He explained that a
lot of rivers appear to be transferred to corporations, which
the state argued were navigable rather than non-navigable
[rivers]. He said in 1983, and again in 1988, BLM was forced by
an Act of Congress to use its manual of surveying instructions,
which standardized the process that it used for determining
navigability. Mr. Somerville said:
What the manual says is that if ... a lake is ... 50
acres or greater or a stream is 3 chains wide - 198
feet or greater - then the submerged lands cannot be
transferred (indisc.) the uplands. You must what they
call "meander" the boundaries of the submerged lands
and the adjacent uplands. And that's what we use for
the purpose of conveyance; in other words, only the
uplands are conveyed. If it's smaller than 50 acres
or less than 3 chains wide, they must do a
determination of navigability - determine whether the
stream is navigable or not navigable. If it's
navigable, they cannot transfer the submerged lands;
they must again meander the line ... of the boundaries
and transfer only the uplands to the party.
MR. SOMERVILLE indicated the aforementioned was not done prior
to 1983. As a result, he said, the state has a significant
amount of conveyed lands with a questionable title - a "cloud"
on the title - and BLM is not going back and correcting that
error. He reiterated that this a problem in the determination
of navigability, "but also is a key, in essence, of illustrating
the problem we've had in applying the Gulkana decision."
Number 1371
MR. SOMERVILLE indicated [the objective of HB 266 is to simplify
the process and come to a resolution]. He described resolving
navigability on 22,000 rivers and 1 million lakes as a "huge
problem." Mr. Somerville said one possibility recognized by
Congress and the legislature for [resolving navigability] would
be to establish a cooperative process with federal agencies to
identify lakes and streams that meet the Gulkana criteria or
something similar for determining navigability. He pointed out
that the [cooperative process] had been tried a couple of times
administratively but had failed. He said the list would be
similar to the [list] of 200 [lakes and streams] submitted by
the [Alaska] Department of Law to the [U.S. Department of the]
Interior to quiet title.
MR. SOMERVILLE said once the list is completed, a certification
by Congress could be put in place or a process could be
established by the Department of the Interior to quiet title to
those appropriate streams for the purposes that the state was
entitled to at statehood. He mentioned seeing whether this
might be a plausible way to go, and referred to a meeting in
Washington, D.C., with the Secretary of the Interior and the
[congressional] delegation, but suggested the burden of this
process would fall on the legislature because of timing in
relation to Congress. He emphasized that nothing would be put
into place unless Congress passed a similar bill.
Number 1491
CO-CHAIR SCALZI asked, "Do we have a tentative '200 list' right
now of the categories?"
MR. SOMERVILLE referred to Appendix A and Appendix B of the
White Paper. He said those had been included for the purposes
of illustrating "something that had been submitted." Mr.
Somerville said he thought there were 194 [water bodies] listed
in Appendix A and that 9 [water bodies] were submitted in 1996
in addition to that list.
CO-CHAIR SCALZI asked about the criteria and the amount of time
required to put the list together.
MR. SOMERVILLE said the list was put together primarily by DNR,
the Alaska Department of Fish and Game (ADF&G), and the state
agencies through the Department of Law. He said there had been
quite a bit of information accumulated on some rivers, such as
river flow, accessibility, and background information. Mr.
Somerville said he believed those [water bodies] listed were
"pretty well" documented.
Number 1664
ROD ARNO, Alaska Outdoor Council (AOC), testified via
teleconference. Mr. Arno told the committee that the AOC is a
statewide coalition of sportsmen with approximately 10,000
members, and that AOC had participated in the legislative
process since before statehood. Noting that the membership of
AOC is in support of HB 266, Mr. Arno said, "Clearly, as
outdoorsmen and sportsmen, highway corridors are extremely
important as far as access to public lands in Alaska." He said
AOC had expressed concerns over R.S. 2477 [rights-of-way] and
over navigable water issues in the past. He reiterated AOC's
support of HB 266.
CO-CHAIR MASEK called an at-ease from 1:50 p.m. She called the
meeting back to order at 1:52 p.m.
CO-CHAIR MASEK mentioned that the committee was short of a
quorum and indicated HB 266 would be held over.
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 2:00 p.m.
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