Legislature(1995 - 1996)
02/28/1996 03:37 PM Senate RES
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* first hearing in first committee of referral
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SENATE RESOURCES COMMITTEE
February 28, 1996
3:37 P.M.
MEMBERS PRESENT
Senator Loren Leman, Chairman
Senator Drue Pearce, Vice Chairman
Senator Steve Frank
Senator Rick Halford
Senator Robin Taylor
Senator Georgianna Lincoln
Senator Lyman Hoffman
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
Oversight Hearing on Navigable Waters
WITNESS REGISTER
John Shively, Commissioner
Department of Natural Resources
400 Willoughby Ave.
Juneau, AK 99801-1724
POSITION STATEMENT: Reviewed navigable water issues.
Bruce Botelho, Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Reviewed navigable water issues.
Joanne Grace, Assistant Attorney General
Department of Law
1031 W 4th Ave., Suite 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Commented on navigable water issues.
John Baker, Assistant Attorney General
Department of Law
1031 W 4th Ave., Suite 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Commented on navigable water issues.
Frank Rue, Commissioner
Department of Fish and Game
P.O. Box 25526
Juneau, AK 99811-5526
POSITION STATEMENT: Commented on navigable water issues.
Clyde Stoltzfus, Special Assistant
Department of Transportation
3132 Channel Dr.
Juneau, AK 99801-7898
POSITION STATEMENT: Commented on navigability issues.
Jane Angvik, Director
Division of Land
Department of Natural Resources
3601 C St., Ste 112
Anchorage, AK 99503-5947
POSITION STATEMENT: Commented on navigability issues.
Jules Tileston, Director
Division of Mining and Water Management
Department of Natural Resources
3601 C St., Ste. 1130
Anchorage, AK 99503-5947
POSITION STATEMENT: Commented on navigability issues.
ACTION NARRATIVE
TAPE 96-21, SIDE A
Number 001
CHAIRMAN LEMAN called the Senate Resources Committee meeting to
order at 3:37 p.m. and announced an oversight hearing on Navigable
Water issues. He said that Alaska has received about 60 - 65
million acres of submerged and tidal lands since statehood. These
titles depend on the BLM and the State determining if waterways are
navigable or non-navigable. Access to these lands is an issue as
well.
On July 26, 1995 Commissioner Shively distributed a memo saying the
navigability section was essentially shut down, and many people
believe that places Alaskan resources in jeopardy. The Senate
Finance Committee had an overview of the Department's budget and
recently the House had an oversight hearing in which major areas of
uncertainty were identified between the administration and the
legislature. The purpose of this meeting is to help identify those
areas, to let the public know that the legislature is concerned,
and to find ways to work with the administration to determine
priority of public trust responsibilities, and to determine if
statutory and budgetary changes are needed to protect the State's
interest.
Number 65
COMMISSIONER JOHN SHIVELY, Department of Natural Resources, said it
was his personal opinion that there were a lot of State resources
at risk, particularly in terms of navigability determinations.
However, neither the Department of Interior or the State of Alaska
can determine navigability. The only people who can actually
determine navigability are the federal courts.
For the most part, of the tens of thousands of bodies of water in
the State, there probably isn't going to be a lot of controversy.
Either they are going to be large enough like the Yukon River or
they will be so small that people will agree that they are not
navigable. In some cases there will be a conflict, like the
Gulkana case, which is creating some guidelines about what may or
may not be navigable.
He said that the navigability issues are relatively simple. His
approach is to provide resources when difficult situations arise.
Last year there was a problem with the Russian River. ADF&G
identified it and DNR went down and determined that it was
navigable. If that needs to be litigated because of a third party
claim, they are prepared to support the litigation.
There are three rivers in the interior - the Kandik, Black, and
Nation which have been under discussion since the mid-70's. They
appear to be ripe for litigation and they are prepared to provide
the field support the Attorney General needs to continue with those
suits. He said there might come a time when that can't be done
within the existing budget and then they would have to come to the
legislature for specific appropriations.
SENATOR LEMAN asked if the determination on the Russian River
resulted in any more conflict. MR. SHIVELY said he thought the
parties were not in agreement and there may be litigation.
Number 139
ATTORNEY GENERAL BRUCE BOTELHO explained that there are two
fundamental rights the State has to navigable waters. One is under
the equal footing doctrine which says that the State of Alaska, at
Statehood, took title to all the inland waters and lands of the
State. The second is the Submerged Lands Act in which the State
also acquired all submerged lands in the territorial waters of the
State. One of the major questions that remains unresolved regards
lands that the federal government reserved in some way before
statehood. The State is currently involved in litigation in the
Public Land Order 82 matter. The federal government took the
position that the lands were withdrawn in 1943 and, hence, at
statehood there could be no effective transfer. The question, in
part, has been resolved by the Supreme Court (although the federal
government has taken a different position). In the Utah Lake
decision the U.S. Supreme Court said there has to be an affirmative
act of Congress that they intended to have the lands underlying
this water body withdrawn. They also expressed intention to defeat
the future State's acquisition of title. In that case the
government was unable to establish those points. He believes that
is what they are faced with in the current case.
One of the major areas being litigated today is what constitutes
navigable waters. Generally, the standard is use or susceptible of
being used for commerce. The Gulkana case was decided in the
State's favor in District Court and affirmed by the Ninth Circuit.
ATTORNEY GENERAL BOTELHO said that they are involved in other
federal litigation, most actively in three cases together dealing
with the title to Kandik, Black, and Nation Rivers. That matter
has been on-going for the last four years. It has been to the
Ninth Circuit once where the federal government tried to dismiss
the case. They were denied. They appealed that decision and the
Ninth Circuit affirmed. It is back in front of U.S. District Court
and an answer is due in April. They have just received an informal
request for them to submit a proposal to settle the matter. He
hasn't seen it, yet, but sees it as a very positive move. It may
also reflect the federal government's view that the State will
ultimately prevail.
Other cases either directly involve navigability or implied
navigability. The most notorious is the case that deals with
primarily the Beaufort Sea and the extent of territorial waters and
the mineral revenues that derive from that. They have been waiting
several years for the special master's report to the Supreme Court.
The Supreme Court has been pressuring the master to act and he has
assured them he will issue the report before the conclusion of this
term. He gave that assurance last year, as well.
Number 263
COMMISSIONER FRANK RUE, Department of Fish and Game, said that
their role is one of support for the Department of Law. Their
concern is that access be maintained for use of fish and wildlife.
People do not lose access to fish and wildlife. They supply
background information the Department of Law may need to
demonstrate use of waters and when it was used.
SENATOR LEMAN asked if he knew of any instances where our resources
are in jeopardy. COMMISSIONER RUE replied the Russian River case
and there some nuisance issues going on with federal agencies, but
he didn't think we would lose our rights. We just don't want the
federal agencies to encroach, such as requiring permits for
camping, etc.
SENATOR LEMAN asked if the occurrences were being flagged to the
agencies and being documented. COMMISSIONER RUE replied that was
correct and that they would pursue whatever avenue seems most
productive to get it fixed.
Number 335
SENATOR HALFORD asked if he had seen any difference in the way the
Department of Law supports the actions to assert navigability,
state ownership of submerged lands, or any of the other easement
and access provisions between the last administration and this
administration. COMMISSIONER RUE replied that he hadn't noticed a
significant difference in the Department of Law's support. With
the loss of the navigability in DNR, they have had to do more of
the work.
Number 351
SENATOR HALFORD asked if the navigability determination on a lake
triggers 17(b) determination on access to the lake from other
public lands.
JOHN BAKER, Assistant Attorney General, answered "yes" that can be
a factor in preserving access across federal public lands to
submerged land or navigable waters.
SENATOR HALFORD asked if a 17(b) easement isn't asserted at the
time of transfer and title, can it be asserted later. MR. BAKER
replied that generally it comes up when BLM makes a decision to
make the final interim conveyance to the Native corporation and
either in the decision or attendant to the final easement there
would be a decision on whether or not to reserve certain easements.
The State would be taking a risk if we didn't appeal those
decisions if we learned the title determinations weren't being
reserved.
COMMISSIONER SHIVELY commented that the State doesn't lose total
right to access. It still has the right of condemnation over
native lands. They just lose the right to free access over private
lands if they don't get the 17(b) easement.
MR. BAKER said that condemnation would be a different issue and it
isn't necessarily an option with native corporation land. The 17
(b) easement is designed to provide access without resorting to
condemnation.
SENATOR HALFORD asked how does the State get back what it lost by
the timing of the court cases which finally determine the existence
and the preservation of the navigable waters and the submerged
lands under it within a unit being transferred. MR. BAKER replied
that the issue in the Gulkana case was not so much access to the
water body across uplands, as the title to the bed of the river
itself, because the conveyance to Ahtna Corporation did not purport
to exclude the bed of the river.
SENATOR HALFORD said his concern is because the later cases
determine the rules for the preservation of the submerged lands or
the navigability, but the earlier action transfers the land without
the protection of the 17(b) easements, they cannot ever be
recovered except through public access purchased on very limited
terms and with very limited ability for condemnation for public
access ever.
MR. BAKER asked if the question meant if we don't determine
navigability beforehand and because of that we don't aggressively
assert the need for a 17(b) easement, are we prejudiced. SENATOR
HALFORD said yes.
MR. BAKER replied that they generally don't wait for a title
determination from the federal court before they decide that it's
necessary to preserve overland access to a water body.
SENATOR HALFORD said he was trying to figure out what happens when
you change the rules after the process starts with a case like
Gulkana and essentially BLM has issued conveyances before then
without recognizing conditions the Court ratified and said were the
rules in the Gulkana case.
MR. BAKER replied that they have lost the right for a basis on
which to preserve access to a water body because of changes in the
federal navigability standard under the Gulkana River case. He is
not aware of any place where that has happened.
Number 450
CLYDE STOLTZFUS, Special Assistant, Department of Transportation,
said their concern with this issue is in regard to materials they
are sometimes able to get out of navigable waters and sometimes the
right of ways crossing over navigable waters.
He explained that their first concerns with materials has been
greatly diminished over time because of conflicts with other uses.
It could in the future add incremental costs to some of their
facilities or projects, none of which would have major impact.
SENATOR LEMAN asked what they would do to determine who owns the
land they are crossing in a bridge project across a navigable body
of water that hadn't been determined in court. MR. STOLTZFUS
answered they would first assume that it belonged to the State and
they would begin the process for assertion.
SENATOR PEARCE commented to Commissioner Rue that some people in
her Fairbanks office yesterday were praising the Habitat Division.
They called the staff intelligent, constructive, and supportive.
COMMISSIONER RUE acknowledged the compliment.
SENATOR LEMAN asked if the State doesn't assert navigability on
various water bodies, would that hurt the State's case regarding
management of the fishery resource. COMMISSIONER RUE replied that
the case now is hinging on reserve water rights which may or may
not be attached to navigability.
Number 495
SENATOR LEMAN asked about a task force to help get these things
resolved. COMMISSIONER SHIVELY replied that one of the reasons it
fell apart was because of the lack of man power. They also think
that BLM is, for the most part, following the law on native
conveyances which is where the big risk is and native conveyances
have slowed dramatically. Also, he said, no matter how much they
agree with BLM on the subject, he does not have the authority to
make that decision. He didn't think it could be dealt with
administratively. He added that we haven't had a lot of
disagreement with BLM about what is or isn't navigable. He thought
the future issue would be how the federal government treats our
waters when it runs through their conservation system units.
That's a management issue, not an ownership issue. He thought we
would have to work with the federal government to come to an
understanding about how they should treat people who are on our
water ways.
SENATOR HALFORD asked what an Alaskan should do when a federal
bureaucrat requires a permit for that Alaskan citizen to use the
property of the State of Alaska that is obviously navigable, but it
goes through some federal unit that was created long after
statehood. He asked if the State would defend its citizens against
the federal government when they require a permit. COMMISSIONER
SHIVELY responded that the federal government does have some rights
when they are the upland owner for management if its in keeping
with protecting the purpose of the unit. Just charging someone for
floating down a river may not be, but charging a commercial person
may be. He thought we would be having some test cases in this
instance.
SENATOR HALFORD said that basically the casual user gets away with
it, but the person who has to have any other dealing with the
federal agency is told they can't use the State land either unless
they pay the "bounty." It was stated all through the 1980 bill,
unless there is a specific provision, all the traditional uses were
supposed to be protected. COMMISSIONER SHIVELY concurred with that.
SENATOR HALFORD continued that he thought the uses were being
attacked in every category and he wanted to know who needed the
money, the effort, and the help to do something about it.
COMMISSIONER SHIVELY agreed and said he thought it could be
resolved through negotiation as opposed to litigation.
COMMISSIONER RUE said they are putting significant effort into
identifying and trying to resist those efforts in their review of
federal management plans.
SENATOR LEMAN mentioned Commissioner Shively's memo of last summer
that identified a supplement to Department Order 125 and asked if
that had been developed. COMMISSIONER SHIVELY answered they hadn't
developed the supplement and they haven't changed the policy other
than not to have as much man power. He has spent some time
negotiating with Jules Tileston on how they would get the work done
with the existing budget. He thought the manpower needed to be
readily available when these things come up.
SENATOR LEMAN asked about transferring manpower from the
navigability section. He thought there was an agreement that the
function would remain, but it wouldn't be the navigability section.
COMMISSIONER SHIVELY said he thought there was some interest by the
legislature in transferring the responsibility to the Division of
Land, but the money was not transferred with it. He said they may
use Division of Land personnel at some point and they do keep track
of things, but not as aggressively as before. The main push for
looking at navigability issues, the transfer to native
corporations, is mostly done.
COMMISSIONER SHIVELY said he knew the intent was for the Division
of Land to do it, but the positions were not put there to do it.
He would try to get the work done, but it won't get done in the
same way it was done before.
SENATOR FRANK asked what was different. COMMISSIONER SHIVELY
explained that they aren't as aggressively reviewing the documents
that come from BLM.
TAPE 96-21, SIDE B
Number 580
SENATOR FRANK asked him to explain the review. COMMISSIONER
SHIVELY explained that they probably take a cursory look at the
issue rather than spending a lot of time going section by section
on a map. He said they attempt to identify navigable waters
because it is an acreage issue for the Native corporation, because
navigable water is not chargeable. Also, it's the primary driving
force for 17(b) easements to water.
SENATOR FRANK asked how many transfers come through typically.
JANE ANGVIK, Director, Division of Land, replied that at this point
it has closed down considerably. She would get the information for
him.
Number 560
SENATOR LINCOLN asked how all the navigability issues were being
compiled so that they know nothing is slipping between the cracks.
COMMISSIONER SHIVELY answered that DNR has and continues to be the
lead in terms of conveyance documents for Native corporations.
It's not a legal issue at that point. It's a policy issue.
SENATOR LINCOLN asked if he had a time frame for when the
Department's Order 125 would take place. COMMISSIONER SHIVELY
answered no. SENATOR LINCOLN said she would like to see a response
to the questions in their packet dated 2/6/96.
Number 507
COMMISSIONER RUE said they rely on DNR to keep the record on
navigability. With DNR's budget being cut, they may have to go
there to look at files if someone has a complaint about a federal
agency. It's harder for DNR to provide that service.
SENATOR LEMAN asked Commissioner Shively if he had actually lost
people from the last fiscal year to this year who were working on
these issues. JULES TILESTON, Director, Division of Mining and
Water Management, answered saying that they had two people working
on navigability who were reassigned to mining positions where they
are working on totally unrelated issues. But when it came to the
Russian River, he pulled that individual from his staff. He and a
hydrologist, who wasn't part of a navigability group, prepared the
report for the Russian River. The technical capability is still
there, but they are not working under navigability. They are
actually working for and being paid from receipts from mining.
SENATOR HALFORD asked why the Nation, the Kandik, and the Black
Rivers were asserted out of a list of about 200 rivers and what was
the plan for the other 197 rivers. ATTORNEY GENERAL BOTELHO
replied the strategy was to identify collectively, with primarily
DNR in the lead, certain principles that could be established by
groups of rivers. After those principles are established
presumably in the State's favor, another class of rivers could be
identified to push the principle further.
COMMISSIONER RUE said they have information on rivers they think
might be good test cases.
SENATOR HALFORD asked if there were no financial considerations,
what would the Department of Law's limit be in terms of asserting
navigability. ATTORNEY GENERAL BOTELHO answered that dealing with
three rivers right now is a strategic decision.
SENATOR HALFORD said he would like something out of the Department
of Law on the assertion of RS2477's and the navigability
assertions. He wanted to know what we could get for how many
dollars. He also asked from DNR what it would take to reassert an
aggressive navigability section in DNR that's based on the last
administration's interpretation of "if it was on a map and if it
was wet, it was navigable" so that we're not losing things we can
never get back.
SENATOR LEMAN noted for the record that the people testifying were
nodding in agreement. ATTORNEY GENERAL BOTELHO said he was nodding
in understanding of the assignment.
COMMISSIONER SHIVELY asked if he was concerned mostly at this point
about how the federal government is treating management of waters
within these units. He said the ownership issue is not time
sensitive, but management issues are. SENATOR HALFORD said he
thought ownership issues were indirectly involved in the management
issues.
Number 403
COMMISSIONER RUE said he thought they were doing a pretty good job
of watching for abuse by the federal government to try to stop
people from doing what was not intended under ANILCA. He has tried
to maintain a good program despite the budget cuts.
SENATOR LEMAN asked if it would be possible within the next several
days for each of them to identify those elements in their budgets
that are related to navigability and let the Committee know.
SENATOR LEMAN took a short break to acknowledge the presence of
members of the Soil and Water Conservation Board.
SENATOR LEMAN asked if it was possible to put together an atlas of
navigable waters. MS. ANGVIK noted that there already existed a
number of atlases in the Division of Land and they were working on
doing the remaining areas. She said she would get this atlas to
the Committee.
Number 359
SENATOR LEMAN adjourned the meeting at 4:50 p.m.
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