Legislature(1997 - 1998)

01/30/1998 03:35 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              SENATE RESOURCES COMMITTEE                                       
                   January 30, 1998                                            
                      3:35 P.M.                                                
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Senator Rick Halford, Chairman                                                 
Senator Lyda Green, Vice Chairman                                              
Senator Bert Sharp                                                             
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
Senator Loren Leman                                                            
Senator Robin Taylor                                                           
Senator John Torgerson                                                         
Senator Georgianna Lincoln                                                     
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
Waterway Management Issues                                                     
                                                                               
WITNESS REGISTER                                                               
                                                                               
THE FOLLOWING PEOPLE TESTIFIED ON WATERWAY MANAGEMENT ISSUES:                  
                                                                               
Mr. Dane Larsen, Staff Auditor                                                 
Legislative Audit Division                                                     
P.O. Box 113200                                                                
Juneau, AK 99811-3200                                                          
                                                                               
Mr. Mike Marsh, Staff Auditor                                                  
Legislative Audit Division                                                     
P.O. Box 113200                                                                
Juneau, AK 99811-3200                                                          
                                                                               
Commissioner John Shively                                                      
Department of Natural Resources                                                
400 Willoughby Ave.                                                            
Juneau, AK 99801-1724                                                          
                                                                               
Ms. Jane Angvik, Director                                                      
Division of Lands                                                              
3601 C St., Suite 1122                                                         
Anchorage, AK 99503-5947                                                       
                                                                               
Ms. Tina Cunning, ANILCA Program Manager                                       
Department of Fish and Game                                                    
P.O. Box 25526                                                                 
Juneau, AK 99802-5526                                                          
                                                                               
Mr. Rob Bosworth, Deputy Commissioner                                          
Department of Fish and Game                                                    
P.O. Box 25526                                                                 
Juneau, AK 99802-5526                                                          
                                                                               
Mr. Dick Mylius                                                                
Resource Assessment & Development                                              
Department of Natural Resources                                                
3601 C Street, Ste 1110                                                        
Anchorage, AK 99503-5947                                                       
                                                                               
Ms. Joanne Grace, Assistant Attorney General                                   
Department of Law                                                              
1031 W 4th Ave., Suite 200                                                     
Anchorage, AK 99501-1994                                                       
                                                                               
Ms. Robin Willis                                                               
Access Defense Manager                                                         
Department of Fish and Game                                                    
333 Raspberry Rd.                                                              
Anchorage, AK 99518-1599                                                       
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-3, SIDE A                                                              
Number 001                                                                     
                                                                               
CHAIRMAN HALFORD called the Senate Resources Committee meeting to              
order at 3:35 p.m. and announced a briefing on waterway management             
issues. He said they would start with the Department of Legislative            
Audit.                                                                         
                                                                               
MR. DANE LARSEN, Staff Auditor, said that after several decades of             
statehood the legislature is understandably concerned about whether            
any real progress has been made in settling the public's rights                
concerning Alaska's waterways; and the short answer is that it's a             
very slow journey and we've barely just begun.  Alaska has 17,000              
identified rivers and streams and an estimated 2 million lakes                 
larger than 50 acres.  Only a handful of these bodies have been                
addressed so far.  They completed a review of various waterway                 
management issues last March for fiscal years  96 and  97,                     
including the Departments of Law, Natural Resources, and Fish and              
Game.  The objective of the audit was to evaluate the effectiveness            
of the State's programs for resolving issues of ownership access               
and  resource allocations concerning public waterways.  That audit             
identified a number of areas where improvements could be made.                 
Some of the problems have been addressed, but they still have                  
concerns in four major areas.  Those areas are first: public access            
easements under ANCSA, 17 (b) which are public routes across                   
private land; second, the allocation of the State's water supply               
among competing users (traditional water rights), third, federal               
reserved water rights (the Babbit Case raised this issue), and                 
fourth, the ownership of submerged land, which involves a legal                
determination as to which land beneath a particular waterway is                
owned by the State.                                                            
                                                                               
MR. MIKE MARSH, Staff Auditor, said his first area of concern is               
the public access easements under section 17 (b) of ANCSA.  They               
provide legal access between waterways, public land, and other                 
parts of the State's transportation network, such as rural airports            
maintained by DOT.  These easements arise during a BLM process for             
conveying ANCSA land selections, he explained.  BLM writes the                 
State a letter concerning each proposed conveyance and gives the               
State, specifically DNR and Fish and Game, the opportunity to                  
request any easements they feel are necessary for public access.               
Though these easements are meant to assure public access to public             
lands, BLM's process is largely insulated from the public.  There              
is little input other than from government agencies and the                    
affected land owner.  The report recommends ways to facilitate                 
input from citizen groups and people who live and work in the area             
involving the easement.  BLM estimates there 3,500 of these                    
easements in Alaska and less than 5 percent are marked on the                  
ground with any sort of signs.                                                 
                                                                               
Federal regulations establish the easements at only 25 - 60 ft. in             
width depending on the type of transportation involved.  Even using            
the global positioning satellite system (G.P.S.), it would be                  
difficult for the average user to accurately determine an unmarked,            
abstractly determined line on the ground when it's only 60 ft. wide            
at most.  G.P.S. accuracy on a predictable, consistent basis is                
plus or minus 300 ft.  Information containing the location of 17               
(b) easements cannot be  obtained from commercially available                  
publications.  The average recreational user would need to research            
obscure legal materials kept at government offices.  So, the public            
would be unlikely to use them at all.  An unpublicized, unmarked               
easement is in effect no easement at all.  Some 17 (b) easements               
are subject to termination by BLM if there is no evidence of public            
use by 2001.                                                                   
Number 150                                                                     
                                                                               
CHAIRMAN HALFORD asked if termination provisions came out of                   
federal law or negotiations with BLM in the recording of the                   
easements at the time of conveyance.                                           
                                                                               
MR. MARSH replied that they come out of the federal regulation that            
was enacted by the federal government pursuant to ANCSA.                       
                                                                               
CHAIRMAN HALFORD asked if ANCSA provided for limitations like that.            
                                                                               
MR. MARSH replied that it didn't specifically, but when the federal            
government enacted the regulations, they put that detail in.                   
                                                                               
CHAIRMAN HALFORD commented that maybe the State should be                      
challenging that very regulation.                                              
                                                                               
MR. MARSH said that was a good question.  They recommend that                  
various forms of State financial assistance be conditioned upon the            
marking and maintenance of easements across land under the                     
recipient's control, like the dedication of land necessary for                 
schools, parks, streets, and drainage.  An analogy would be the                
requirement that businesses dedicate some of their parking lot                 
spaces to handicapped parking.  Additionally, for State grants                 
related to land use, they suggest that compliance with easement                
marking and maintenance be added to the list of items which private            
CPA firms are required to verify under the State's single audit                
act.                                                                           
                                                                               
Another problem with the 17 (b) easements is prior to 1977, BLM                
reserved easements that ran continuously along waterway shorelines.            
Parties selecting affected tracts filed litigation challenging                 
those easements.  However, these parties did not wish their ANCSA              
conveyances delayed while awaiting the outcome.  So most of them               
entered into written agreements with BLM that had the special                  
condition that the conveyance would proceed on schedule as though              
there were no disputes at all.  Any easement found invalid by the              
court would be vacated.  In the event that a reserved easement was             
found invalid, the land owner committed himself, in advance, to                
substitute a replacement easement.  In 1977, the federal court                 
found the easements in dispute to be invalid and in the 20 years               
since that decision, some of the prevailing land owners have kept              
their word, but a large number have not.                                       
                                                                               
CHAIRMAN HALFORD asked what would replace an easement that was                 
found invalid along the shoreline of a river.                                  
                                                                               
MR. MARSH replied that pursuant to the agreement, the landowners               
agreed in advance that instead of waiting until the federal court              
resolved this, they would agree to receive the land without cloud              
on the title; and if the easements were found invalid, they would              
automatically agree to an easement that was lesser in scope to be              
a legal substitute.                                                            
                                                                               
CHAIRMAN HALFORD asked if the federal challenge was the degree of              
easement, but it was still the same place.                                     
                                                                               
MR. MARSH replied that the ones that were found to be forbidden                
were continuous along the shore, but ones that were periodic along             
the shore were still permissible.  The essence of the federal case             
was that BLM had impermissibly set aside too big an easement.  It              
was not consistent with ANCSA or ANILCA.  Smaller, periodic                    
easements along a waterway were considered permissible.                        
                                                                               
CHAIRMAN HALFORD commented that an easement around a rapids for a              
portage was fine, but a continuous easement down the whole river               
was not.                                                                       
                                                                               
MR. MARSH said that unfortunately neither BLM nor the State kept               
track of the number of promised easements that were never provided             
and this needs to be done without delay, because 17 (b) easement               
issues will be finalized by 2001.  The State needs to make a                   
conscious choice whether to hold land owners to their contracts or             
let them slide.                                                                
                                                                               
Number 247                                                                     
                                                                               
CHAIRMAN HALFORD asked if the contracts were a matter of public                
record.                                                                        
                                                                               
MR. LARSEN responded that they are public record.  There are                   
contracts between villages and corporations which could be enforced            
by the State as a third party.                                                 
                                                                               
CHAIRMAN HALFORD asked for an index of them.                                   
                                                                               
Number 266                                                                     
                                                                               
MR. MARSH said if the State decides to enforce its rights to these             
promised easements, their report details a variety of legal                    
remedies the State can pursue.                                                 
                                                                               
On the topic of water allocation, Alaska has a small population and            
a  third of the nation's fresh water.  Our current approach simply             
assumes that we have an unlimited supply of water.  However, the               
availability of water controls the development of other resources              
and this assumption will not be valid throughout the next century.             
                                                                               
Our water statutes already recognize the need for the State to                 
regulate the export of Alaska's fresh water.  The interest for                 
exporting water from Alaska to other states and countries appears              
to be increasing.  We have put very little effort to even determine            
the amount of fresh water that is still available in our waterways.            
The technical way for monitoring this is known as gauging stations;            
but less than one percent of the State's waterways have this                   
equipment.  He thought the State could condition the water rights              
of large users upon the installation of gauging stations at their              
own expense.                                                                   
                                                                               
The U.S. Geological has divided our State into six hydrological                
subregions, each of which focuses on the area's main river systems.            
The legislature enacted a procedure which would allow the court                
system to simultaneously determine everybody's water rights for an             
entire subregion in a single case.  This procedure is called a                 
basin wide water rights adjudication.  Although the preceding is               
conducted in the State court system, the rights subject to                     
adjudication explicitly include federal reserve water rights.  This            
is also called a general water adjudication and has had                        
considerable use in state courts of drier areas in the lower 48.               
Its value was greatly promoted when Congress passed a statute in               
1952 giving its consent to have its water rights decided in such               
state court proceedings.  Alaska has never used the basin wide                 
adjudication procedure because the Department of Law has                       
traditionally assumed it narrowly applies to only one specific                 
water related issue - the quantities available for consumption by              
competing users.  There has been little actual conflict to justify             
such  a proceeding.  Additionally, federal reserve water rights                
only recently acquired their unexpected importance to the                      
management of fisheries.                                                       
                                                                               
They feel the Department of Law is underestimating the                         
possibilities for basin wide adjudications. The existence of                   
federal reserve water rights now determines how responsibilities               
will be divided up between the state and federal governments when              
managing important fisheries.  Until the Babbit Case in 1995, the              
federal reserve water rights were used to allocate physical                    
quantities of water between the federal government and users                   
competing with the federal government.  The Babbit decision is                 
unique in that it is used to define the geographical scope of                  
federal management authority.  DNR estimates that just under half              
of the State consists of federal land that may have those rights.              
The State's current approach is to wait for the federal subsistence            
board to announce where it claims such rights exist, but there is              
another possibility, the basin wide adjudication.                              
                                                                               
CHAIRMAN HALFORD asked if the feds have just ten percent of a water            
right and the State has all the rest, does that give the federal               
government the federal reserve water right in a management sense.              
                                                                               
MR. MARSH answered that is an undecided question, because we have              
never before seen a concept that has used water quantity being                 
spread geographically to define a territory that is used for                   
administering rights.  This is an opportunity for us, he                       
emphasized.                                                                    
                                                                               
Navigability or fighting over the title of submerged land is                   
another topic.  As a general rule land underlying a waterway is                
owned by the State, if the waterway was navigable at the time of               
Statehood.  Federal case law considers a waterway to have been                 
navigable at statehood if it was or could have been used for                   
commerce.  The current State's approach is to file an action to                
quiet title in the federal court.  However, each of these suites               
involves only a few water bodies out of the thousands that could               
probably meet the criteria for navigability.  The State selects                
these water bodies for test cases with the hope that a victory will            
serve as a valuable precedent in eventual negotiations with the                
federal government over other waterways.  Unfortunately, the                   
federal government has taken a never surrender approach even in                
instances where BLM has already conceded navigability on an                    
administrative level.  Only about a dozen water bodies are the                 
subject of quiet title actions.  Water adjudications whether for               
one river or an entire hydrologic basin span 10 - 20 years, entire             
administrations at both the state and federal levels.  He used the             
Dinkum Sands Case that was decided less than a year ago by the U.S.            
Supreme Court as an example.  We fought the federal government for             
18 years and walked away empty handed.                                         
                                                                               
The factual issue of waterway navigability should be subject to                
determination in the State courts as part of an adjudication of                
water related issues for an entire system of rivers.  Once the                 
factual issue of navigability has been decided in a state's favor,             
you can treat the underlying land as state owned.  Anybody can test            
the State's ownership and the state court's factual determination              
should have binding effect in later proceedings to directly quiet              
title in the federal court.                                                    
                                                                               
The affected state departments have expressed doubts that the                  
courts would allow this suggested approach.  But the bottom line is            
that it simply remains an untried matter of first impression.  No              
one seems to dispute the basic underpinnings of such an approach.              
Both a State statute and the U.S. Supreme Court provide clear legal            
authority for Alaska to use the basin wide adjudication process, if            
it wants to do it.  Both provide clear legal authority for Alaska              
to join the federal government as a party to a basin wide                      
adjudication.  Both provide clear legal authority for Alaska to                
determine federal reserve water rights in the context of a basin               
wide adjudication.  Except in the context of an action to directly             
quiet title against the federal government, state courts have the              
authority to routinely make factual findings of navigability to                
resolve property disputes.  State statutes and regulations make                
factual findings of navigability pertinent to some of the water                
rights issues subject to basin wide adjudications.  These findings             
may have binding affect against the federal government and any                 
later litigation to directly quiet title in a federal court.                   
                                                                               
They see resolution of the State's waterway issues as a very long-term project 
for finalizing the allocation for three of its most important                  
natural resources - water, fish, and submerged land minerals.                  
                                                                               
Number 483                                                                     
                                                                               
SENATOR LINCOLN asked what is long-term in his view.                           
                                                                               
MR. MARSH replied with basin wide adjudications they are talking               
about litigation that traditionally in the lower 48 has taken                  
decades.  It may take 50 years before all water rights of all                  
rivers in the State are decided.                                               
                                                                               
SENATOR LINCOLN asked if he meant litigation using the three                   
categories of water, fish, and submerged minerals.                             
                                                                               
MR. MARSH answered specifically the water related issues.  It's                
hard to predict when the State will decide the submerged land                  
issues and fishery issues are extremely controversial.                         
                                                                               
Although the Alaska Supreme Court has adopted the Public Trust                 
Doctrine for Alaska, Mr. Marsh said, debate continues as to whether            
it imposes an affirmative duty to initiate legal action on waterway            
issues or simply restricts the State's ability to convey property              
out of the public domain.  One position asserts that the State                 
incurs liability for violating the public trust if it fails to                 
aggressively pursue suits involving navigability and 17 (b)                    
easements.  An opposing position asserts that State managers must              
allocate their use of limited legal resources among a wide variety             
of projects and the choice to pursue potential claims lie within               
their executive discretion.  After examining the interpretations of            
the Alaska Supreme Court, they concluded that the Public Trust                 
Doctrine does not place the State under a duty to pursue every                 
potential claim for assertion of navigability or for a 17 (b)                  
easement.  The number of possible claims is staggering.  He noted              
the provision in Title 38 which says, "an individual may institute             
a civil action to recover damages for the failure of the State to              
enforce its trust responsibilities to the people of the State."                
Though the decision to pursue an individual case lies within                   
executive discretion, this statutory section may impose a duty on              
the State to adopt some form of binding program to pursue issues               
such as public access.  This remains an untested question in Alaska            
law.                                                                           
                                                                               
Number 524                                                                     
                                                                               
COMMISSIONER JOHN SHIVELY, Department of Natural Resources, said               
they did respond in writing to some of the Legislative Auditor's               
suggestions.                                                                   
                                                                               
He agreed with the first conclusion that navigability decisions                
were virtually ignored in FY  95 -  96.  The legislature took the              
money specifically out of his budget the first year he was                     
commissioner.  At the time they indicated to the legislature what              
the effect would be.  There was then a specific appropriation for              
navigability and they reorganized with Mr. Jim Culverson heading               
this effort.                                                                   
                                                                               
CHAIRMAN HALFORD said he wanted to come back to how they are doing             
with all the money that has been appropriated.                                 
                                                                               
COMMISSIONER SHIVELY said there is no question that not marking                
easements causes problems and they have tried to develop easement              
atlases and some of that information has been available to the                 
public.  These were done with Exxon-Valdez Trust money; however,               
they are expensive.                                                            
                                                                               
CHAIRMAN HALFORD asked if they have copies of the old ones.                    
                                                                               
COMMISSIONER SHIVELY said he didn't have any with him, but would               
get them to him.                                                               
                                                                               
CHAIRMAN HALFORD asked if they are available to the public.                    
                                                                               
An unidentified speaker responded that they are available except               
for Copper River which is out of print.                                        
                                                                               
CHAIRMAN HALFORD noted that it was hard to look up the information             
without an atlas.                                                              
                                                                               
COMMISSIONER SHIVELY said that is a problem, because the easements             
themselves are actually reserved not to us, but to the federal                 
government.  It's their management responsibility, but the federal             
government has never seen fit to appropriate the money for it,                 
because it is a very expensive process.                                        
                                                                               
TAPE 98-3, SIDE B                                                              
Number 001                                                                     
                                                                               
MS. JANE ANGVIK, Director, Division of Lands, said that the atlases            
are available in every library in the State and at all the public              
information centers wherever the State has them.                               
                                                                               
COMMISSIONER SHIVELY added that one of the reasons they are out of             
print is that they made a major distribution of them to public                 
places where the public could at least get at them.  They gave them            
to individuals until they were out of print, but they are still                
available to look at.                                                          
                                                                               
He agreed with the conclusion that there's minimal long-term impact            
to the State's piece meal approach to waterway litigation.  They               
are concerned about the fact that the federal government has not               
been more cooperative in any of these things as he thought it would            
be as much in their interest to resolve these issues as ours.  But             
he wouldn't play down the impact of what the State has done as in              
the Gulkana decision which had a major impact on native land                   
conveyances.  It completely changed how BLM handles those.  It made            
the State's ability to have the federal government declare certain             
waterways navigable much more specific and much more generous                  
towards us than BLM's original approach.                                       
                                                                               
Ultimately each river, if it's ever to be contested, will have to              
be decided in a court, but for most part they haven't seen native              
corporations litigating the navigability issues that have been made            
by the federal government as a result of the Gulkana.                          
                                                                               
CHAIRMAN HALFORD asked if the State was now reviewing the                      
conveyances for navigability determinations.                                   
                                                                               
MS. CUNNING, ANILCA Program Manager, answered that they and ADF&G              
have reviewed all federal conveyances  for navigability.                       
                                                                               
CHAIRMAN HALFORD asked if they had made any comments to BLM                    
requesting navigability where they were not showing it.                        
                                                                               
MS. CUNNING replied yes, it is jointly done as part of the                     
Interagency Map Team.  They work together on the review of the                 
conveyances and then where they have sound data to support a                   
determination.  It is signed off by Jane Angvik.                               
                                                                               
MR. ROB BOSWORTH, Deputy Commissioner, Department of Fish and Game,            
said he would answer questions about how the two agencies work                 
together.                                                                      
                                                                               
CHAIRMAN HALFORD said to assume the question is asked.                         
                                                                               
MS. ANGVIK inserted that the Navigability Team is composed of                  
members of ADF&G, Department of Law, and DNR.  She chairs the group            
which coordinates the annual work program for all three agencies               
with respect to navigability and coordinates the funding of                    
projects which are funded discreetly into each of the three                    
agencies.  They work as a unit on all navigability issues related              
to review of conveyances, documents from the BLM, as well as                   
designing a strategy for the litigation issues that come up with               
navigability and issues that occur where ADF&G has a more active               
presence than DNR.  They attempt to resolve management conflicts as            
well as pursue litigation against the federal government.                      
                                                                               
CHAIRMAN HALFORD said one of the areas the audit talked about was              
the lack of top level direction with regard to program                         
implementation and asked if Commissioner Shively agreed that it was            
no longer a valid criticism.                                                   
                                                                               
COMMISSIONER SHIVELY answered that they disagreed with that,                   
referring to page 39.  He didn't think they would expect                       
commissioners or deputy commissioners to be working on a river by              
river, conveyance by conveyance review.  Other very well qualified             
people are doing that.  The three commissioners have given                     
direction to the Navigability Team.  He is perplexed by what the               
auditors meant.                                                                
                                                                               
CHAIRMAN HALFORD said they would go back and ask them at another               
time and asked what they could do to make the whole public process             
with regard to easement identification better.                                 
                                                                               
COMMISSIONER SHIVELY answered that it's his understanding that BLM             
used to do an extensive notification of people and they got                    
virtually no response.  They have changed as a matter of economy               
the number of people they actually notify.  He also understands                
when they see an area of interest to a group or an individual, the             
Team notifies them and works with them.  He reiterated that the                
process of review of these issues is a federal process.                        
                                                                               
CHAIRMAN HALFORD asked if the State could provide a public process.            
                                                                               
COMMISSIONER SHIVELY replied that the State could provide a public             
process, but he didn't know if it would have any effect.  It would             
have to take place within the federal time limits and public                   
processes come at some cost.  They could hold public hearings, but             
he wasn't sure that was the most productive use of people's time.              
He thought getting knowledgeable people, particularly in ADF&G and             
DNR, who have been out on the ground and seeing if they know of                
anyone who might be interested is a more effective use of our                  
resources.                                                                     
                                                                               
CHAIRMAN HALFORD asked if there are shore line easement agreements             
that were negated by federal action being replaced by discontinuous            
easements.  He asked what process it would take for the State to               
bring those agreements to something that was on the ground and into            
an easement atlas.                                                             
                                                                               
COMMISSIONER SHIVELY described a process where they review the                 
files on a case by case basis to see who had the agreements, which             
identifies which easements were invalidated by the court system,               
and then look at who has given replacement easements, and suggest              
to the BLM and other land owners that they do the rest.  The                   
alternative would be to go to court and attempt to force an                    
agreement that he didn't think the State was a party to.                       
                                                                               
CHAIRMAN HALFORD asked if they could get an index of those in                  
question.                                                                      
                                                                               
MR. CULBERSON, Navigability Team Member, replied that they have a              
good understanding of where the villages with agreements are,                  
because they were conveyances that occurred in a specific period of            
time while the litigation was pending.  He said they would put                 
together an index for the Committee.                                           
                                                                               
CHAIRMAN HALFORD asked him to explain how Gulkana was a victory.               
Some of his constituents say the feds are trying to take over the              
Gulkana River.  It's a wild and scenic river, it's a State                     
navigable waterway; they look at regulations that they don't think             
the feds should be able to put on their activity; and blame the                
legislature for not doing anything about it.                                   
                                                                               
COMMISSIONER SHIVELY responded that there are two different issues             
here. The reason Gulkana was a victory is that we won submerged                
lands which has an impact on native conveyances.  The wild and                 
scenic issue is not unique to that area.  Once navigability is                 
determined and the federal government is an adjacent land owner,               
and more specifically when they have made some kind of restrictive             
designation, we are going to continue to have difficulties.  The               
40-Mile is another example of that.  Ultimately, some of those                 
issues may have to be litigated.                                               
                                                                               
Number 532                                                                     
                                                                               
MR. DICK MYLIUS, Division of Lands, said because of the Gulkana                
court decision, there is no question or disagreement between BLM               
and the State over the ownership of the bed of the river.  They try            
to work cooperatively with the State and have the ability to                   
influence things.  In Gulkana's instance, they control all access              
to the river.  He said an issue with the Fish and Wildlife Service             
is that there are assertions that they have certain authority to               
manage things that happen on State lands, if they have an impact on            
the resources that are on the federal uplands.  There may be                   
litigation over this in the future.                                            
                                                                               
CHAIRMAN HALFORD asked how long it took Gulkana to get through the             
court system and what happened to the conveyance while it was in               
court.  Have we gone back to any of those conveyances to apply the             
standard that was mandated by the court to the prior conveyances?              
                                                                               
MR. CULVERSON answered that BLM had to get the native corporations             
to voluntarily concur with making redeterminations of navigability.            
Some of them have agreed to do that, but for the most part native              
corporations don't find it in their best interests to authorize BLM            
to go back and make new determinations.                                        
                                                                               
CHAIRMAN HALFORD asked what are the advantages and disadvantages of            
a native corporation to have it or not and how can the State carry             
forward the enforcement of what we won in the Gulkana case as it               
applies to the other rivers.                                                   
                                                                               
COMMISSIONER SHIVELY answered he thought the main reason the native            
corporations would not want to reconvey land that has been conveyed            
to them is control of the land.                                                
                                                                               
CHAIRMAN HALFORD asked if they got credit for that.                            
                                                                               
COMMISSIONER SHIVELY replied that a navigable water involves                   
certain public access rights that they may not always be supportive            
of.                                                                            
                                                                               
CHAIRMAN HALFORD asked if they didn't expect to lose it in court               
eventually anyway.                                                             
                                                                               
COMMISSIONER SHIVELY answered that they may or may not; it would               
take an individual court decision for each case.                               
                                                                               
CHAIRMAN HALFORD asked if the State should be cleaning those up.               
                                                                               
COMMISSIONER SHIVELY answered that he didn't think there were more             
than one or two that were causing us serious concerns right now.               
                                                                               
MR.CULVERSON added that they have had concerns in western Alaska,              
particularly Quinhagak, where certain rivers were conveyed to the              
corporation which is charging the public fees they feel they                   
shouldn't have to pay to use the rivers.  They have a conveyance               
that was made by the federal government and without a lawsuit there            
is no way to recover title.                                                    
                                                                               
Another hot spot is the Karluk River on Kodiak Island that has fees            
being charged, also.  It's more complicated because it's in a                  
wildlife refuge and the impacts of a recent Supreme Court case on              
the North Slope, the Dinkum Sands case. The court's decision was               
that the State did not own the submerged lands within the refuge               
because, under the statehood compact, we did not acquire rights to             
the submerged lands even if they are navigable.                                
                                                                               
CHAIRMAN HALFORD said he is concerned that a group of people from              
a community feels they have a legal right to tell someone to do                
something and a group of people from somewhere else who feel they              
don't have the legal right might use force and create long term                
animosities.                                                                   
                                                                               
COMMISSIONER SHIVELY said he knew that the main area of concern in             
Kanaktuk was the lands have not been conveyed to the village and               
the river is considered by them to be navigable.  They realize the             
State has the right to manage the gravel bars and allow camping on             
them.  The State's concern is how to manage that.  The Karluk                  
situation  came out of a refuge, but that in itself doesn't prevent            
people from using the water.  The undetermined issue is what                   
happens if they stop in the middle of the river or turn their canoe            
over.  Can someone step on the river bottom to save themselves or              
to fish.                                                                       
                                                                               
MR. MYLIUS added that Quinhagak is on the Arolik River and they                
have found the best short term solution is education where they                
work with both the native corporation and the public to understand             
what clearly are their separate rights.  They have published a                 
brochure stating clearly what the rights are.                                  
                                                                               
Number 300                                                                     
                                                                               
CHAIRMAN HALFORD said he thought it was their obligation to bring              
some sort of closure to those kinds of questions.  The State should            
be dealing with the Gulkana precedent with regard to the previous              
cases and actively applying it to future conveyance.                           
                                                                               
COMMISSIONER SHIVELY responded that he disagreed and said the State            
has actively pushed the Gulkana decision for every conveyance that             
has taken place since it was made.  In terms of the  ones that were            
done previously, he agreed that they have not been aggressive.                 
That's a more difficult situation because each one of                          
those that isn't handled voluntarily can only be handled by                    
litigation.                                                                    
                                                                               
CHAIRMAN HALFORD said he thought that was a very dangerous way to              
establish precedence.  If people believe they have a right to                  
protect something, they may use a degree of force beyond what they             
would use if they didn't believe the law was behind them.  He                  
thought they should be fixing problems in the order they are coming            
up.                                                                            
                                                                               
SENATOR GREEN said she thought part of the concern is that the                 
priority has not been established of addressing the cases Senator              
Halford was talking about.                                                     
                                                                               
COMMISSIONER SHIVELY replied that he had been through several of               
these situations and the Task Force has worked well in terms of                
their recommendations.  They have a lot of on ground knowledge.                
                                                                               
COMMISSIONER SHIVELY announced the Superior Court decided today                
lease sale 85 A was valid and the State had met all the                        
requirements, although he thought it would be appealed by the                  
Trustees for Alaska.                                                           
                                                                               
CHAIRMAN HALFORD asked if the State should be taking some kind of              
action in court regarding the cancelable 17 (b) easements before               
their 2001 deadline.                                                           
                                                                               
COMMISSIONER SHIVELY answered that he would have to go back and                
read the regulation.  He did not believe it called for automatic               
cancellation of the easements.  It is a regulatory provision that              
was not in law that allows the BLM to vacate the easement if it                
wasn't used.  He thought the land owners themselves would have to              
ask for that.  He guessed they would be better looking at the                  
individual vacations which BLM has the ability to do whether they              
have a 20 year period or not.  If we don't agree these should be               
vacated, we would litigate that.  To his knowledge, we would not               
see a wholesale vacation of easements in 2001.                                 
                                                                               
CHAIRMAN HALFORD asked for a list of easements that would be                   
vacated on those grounds.                                                      
                                                                               
COMMISSIONER SHIVELY said he didn't think they could get a list                
because the first thing they would have to say is that this                    
easement has not been used and, therefore, we ask BLM to vacate it.            
                                                                               
CHAIRMAN HALFORD noted that not all of their easements have that               
provision on it.  Other easements do.                                          
                                                                               
MR. CULVERSON responded said he thought it was being made into a               
bigger issue than it really is.  BLM has to individually vacate                
these easements one at a time and they have to go through a public             
process to do it.  There's a much bigger savior out there and                  
that's the fact they can't terminate an easement that hasn't been              
used if it provides the only access to public land.  By definition,            
in order to get reserved as a 17 (b) easement in the first place,              
it would have to provide the only access to public land.  The only             
way they could use that provision is if some other easement, such              
as a new public highway was built, and the 17 (b) easement was                 
there and wasn't being used.                                                   
                                                                               
MS. ROBIN WILLIS, Access Defense Manager, said they have started to            
have a couple of terminations at this point.  They have one in                 
Unalaska which accesses State waters.  The corporation has asked               
for a termination.  It's at the end of a road and heavily used.                
They have problems, because the corporation believes that access by            
way of water from the city is sufficient and not too many people in            
the community have a boat to access it.                                        
                                                                               
Both she and Mr. Bill Hobbes who work on 17 (b) easements are a bit            
concerned about 2001 in a sense that all the corporations have that            
as a deadline and different federal agencies are managing them                 
depending on whether they are within refuges, parks, or forests.               
They can within their own ranks try and do the termination process.            
It may inundate those who are working on them.                                 
                                                                               
CHAIRMAN HALFORD asked for a copy of the application and a brief               
statement about how the process works.  He asked if the State is               
still vacating section line easements when transferring land to                
municipalities.                                                                
                                                                               
COMMISSIONER SHIVELY said they vacate, but only if there's                     
alternative access.  Mr. Culverson concurred.                                  
                                                                               
CHAIRMAN HALFORD asked if ADF&G is involved in that process.                   
                                                                               
MR. CULVERSON replied yes, and said that they review all the                   
municipal entitlement conveyances.                                             
                                                                               
CHAIRMAN HALFORD asked if there's a recreational access question.              
Do they have an opportunity to say they would not like to have that            
section line easement vacated?                                                 
                                                                               
MS. WILLIS said she wasn't aware of that happening in the                      
entitlements she has seen, but some may go through different people            
in the Division of Habitat.                                                    
                                                                               
MR. CULVERSON added that it usually doesn't come up, because they              
usually don't vacate those.                                                    
                                                                               
CHAIRMAN HALFORD asked what was happening with the whole Title                 
Section of DNR.                                                                
                                                                               
MS. ANGVIK replied that section is alive and well.  They are                   
vigorously securing an additional 200 - 300 thousand acres of land             
a year from the federal government.  They review all the native                
allotment conveyances, and are in the process of doing title                   
researches for things like oil and gas lease sales, timber sales               
and mining issues.  She said they are a little slower in responding            
to requests from agencies than in the past because of staff                    
reductions.                                                                    
                                                                               
SENATOR LINCOLN noted that the atlases they were referring to                  
earlier cost $17.24 and she hoped the Committee wasn't suggesting              
having thousands of them produced just in case someone would come              
in and ask for them.  She thought printing just sections of the                
atlas was more economical, especially since the atlases were in the            
libraries and other public places.                                             
                                                                               
CHAIRMAN HALFORD responded that he didn't think they should be                 
given out for free, but he didn't think they should be out of print            
either.                                                                        
                                                                               
MS. ANGVIK explained that Prince William Sound and Kodiak had been             
digitized and were available on the web so people can look up the              
very section they are interested in to see what the public                     
easements are.                                                                 
                                                                               
MR. CULVERSON added that they do charge $10 per copy, because                  
people who want them are willing to pay and they go too fast if                
they are free.                                                                 
                                                                               
COMMISSIONER SHIVELY said the ultimate goal is to have the State               
digitized so people can access information easier.                             
                                                                               
CHAIRMAN HALFORD said another way to do it would be to privatize it            
and let someone make some money publishing and selling them.                   
                                                                               
COMMISSIONER SHIVELY said the information is public and there is               
nothing the government is doing to prevent doing that.                         
                                                                               
SENATOR LINCOLN said she wanted a copy of Mr. Marsh's testimony.               
She hoped, if the Commissioner was going to respond, that they                 
could have it before Wednesday's meeting.                                      
                                                                               
COMMISSIONER SHIVELY said they had partially responded already.                
                                                                               
CHAIRMAN HALFORD said there are two areas that permeate land access            
and use.  One of them is navigability water and the other is RS                
2477.  He said the Committee would be spending a lot of time on                
these issues this year.                                                        
                                                                               
TAPE 98-4, SIDE A                                                              
Number 001                                                                     
                                                                               
CHAIRMAN HALFORD said they would continue this hearing next                    
Wednesday and adjourned the meeting at 5:15 p.m.                               

Document Name Date/Time Subjects