Legislature(1997 - 1998)
02/04/1998 03:42 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE RESOURCES COMMITTEE
February 4, 1998
3:42 P.M.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Lyda Green, Vice Chairman
Senator Loren Leman
Senator Bert Sharp
Senator Robin Taylor
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator John Torgerson
COMMITTEE CALENDAR
WATERWAY MANAGEMENT ISSUES
WITNESS REGISTER
Mr. Mike Marsh, Staff Auditor
Legislative Audit Division
P.O. Box 113300
Juneau, AK 99811-3300
Mr. Paul Bowers, Director
Statewide Aviation
Department of Transportation and Public Facilities
P.O. Box 196900
Anchorage, AK 99519-6900
Mr. Bruce Botelho, Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Ms. Joanne Grace, Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Ms. Jane Angvik, Director
Division of Lands
Department of Natural Resources
3601 C Street, Ste 1122
Anchorage, AK 99503-5947
Mr. Jim Culberson, Navigability Team
Division of Lands
Department of Natural Resources
3601 C. St., Ste 1122
Anchorage, AK 99503-5947
Ms. Robin Willis, Biologist
Division of Habitat and Restoration
333 Raspberry Rd.
Anchorage, AK 99518-1599
Ms. Carol Shobe, Realty Services Section
Division of Lands
Department of Natural Resources
3601 C St. Ste. 960
Anchorage, AK 99503-5947
ACTION NARRATIVE
TAPE 98-5, SIDE A
Number 001
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:42 p.m. and announced the Committee would continue
discussion on Waterway Management Issues. In the last meeting one
question asked was which corporations had agreed to stipulations
regarding replacement easements if the continuous easements in the
court case were not upheld, which they were not. He referenced a
list of corporations before the committee that could go back and
negotiate for discontinuous easements as were envisioned in 17 (b)
according to court interpretation.
Another thing the committee asked for were copies of the public
easement atlases which they also had before them along with a copy
of the Unalaska easement vacation. He said they didn't have
anything back yet on funding allocations and were going to get an
updated response to the audit report from Department of Law,
Department of Fish and Game, and Department of Natural Resources.
MR. MARSH, Legislative Auditor, said quite a few of the
recommendations had already been successfully resolved.
Recommendation #1 for DNR personnel who review the easement notices
and navigability reports to document the rationale for their
decisions is now being done according to Mr. Dick Mylius, Division
of Lands.
Recommendation #2 that DNR and ADF&G should facilitate BLM's
inclusion of citizen groups in the process for reserving public
easements was perhaps misunderstood. He had in mind that they
simply have three meetings - one with each of the BLM districts in
the different areas of Alaska - where the citizen groups could be
invited and be put on a mailing list.
Recommendation #3 had to do with one particular BLM district that
has some boiler plate provisions which he understood from Ms.
Shobe, Realty Services, had been successfully negotiated and was no
longer an issue.
Recommendation #4 has two parts to it recommending that DNR and
ADF&G personnel who review the easement notices should consult the
extensive BLM case files as part of their process and he has found
that this is occurring when necessary. He has not heard a
consensus on spending a little time on each easement consulting the
people who live and work in the affected areas. He thought half
hour phone calls to the individuals should do for that.
SENATOR LINCOLN asked why they didn't add village councils to
exhibit two.
MR. MARSH said if they aren't getting an individual notice, they
should, because people who live in an area have the best idea about
where an easement should or should not go.
SENATOR LINCOLN said she hoped the councils were added, if they are
not already.
MR. MARSH agreed 100 percent. He said recommendation #5 has to do
with airport operating agreements and looking at easements as part
of a total transportation system involving public airports,
waterways, as well as access to tracts of public land, some of
which are very isolated, and trying to come up with ways to mark
them. Unless they are marked, it's very difficult to use them and
there will be disputes with people using them as to whether they
are trespassing or within the boundaries of the easement. The
report recommends that it just be part of the contract for
maintaining the local airport.
CHAIRMAN HALFORD asked if there are cases where the easement to the
airports themselves aren't finalized.
MR. PAUL BOWERS, Director, Statewide Aviation, responded that the
State has had leases at various airports around the State and some
of them have expired and the airport is still being operated by the
State, but clear title is still not resolved.
CHAIRMAN HALFORD asked if there were leases because he thought
ANSCA required that the airports be transferred to the State in
fee.
Number 200
MR. BOWERS replied that some are transferred and some are not,
although ANCSA required it. Many of the communities have
inadequate, substandard airports and they are trying to build new
airports. The issue is getting an improved airport that goes
beyond the existing airport property line.
CHAIRMAN HALFORD asked him to provide the operative section of the
Claims Act and a list of the airports that the State doesn't own.
MR. MARSH said recommendation #6 required more study, but was
regarding getting easements marked in local areas by conditioning
grants involving land use to unincorporated communities or unnamed
recipients. He said it was not unusual in traditional subdivision
platting that there be requirements like dedicating land for
drainage, streets, schools, etc.
Recommendation #7 has to do with easement atlases, MR. MARSH said.
CHAIRMAN HALFORD said as he reads 17 (b) there is no requirement
for any time frame with regard to their use. He doesn't see
easements disappearing in 2001 or that they must be used. In fact,
some of the transfers to the State and the corporations won't even
have occurred by then. "Should we be challenging that federal
regulation as a matter of policy," he asked.
ATTORNEY GENERAL BRUCE BOTELHO responded that the Unalaska matter
is an example where the State has filed an appeal and that action
was pending in front of the Department of Interior, Land Appeals
Board. The question deals with the broader issue.
MS. JOANNE GRACE, Assistant Attorney General, said she thought the
proper approach was to appeal any termination of an easement that
BLM does to the extent we aren't able to convince the Department of
Interior to vacate that termination. In a particular case they
would challenge the regulations in court and maybe make an argument
that the agency exceeded its authority in providing for termination
of those easements where the statute didn't provide it. But they
wouldn't do it just on the face of the regulations. As far as she
knows, the Unalaska case is the only termination that's occurred to
date.
SENATOR HALFORD wondered when the feds adopt a regulation that is
so blatantly different than the statute, wasn't there a better way
than waiting until it bites us before we swat it?
MS. GRACE replied in certain cases they need particular facts to
bring a challenge. In this case, it may be invalid on its face and
we could just bring a facial challenge to the regulation as being
beyond the authority of the agency. As far as she knows, this has
only happened once. So she didn't know how big a problem this
would ultimately be, but it is something they could look into.
CHAIRMAN HALFORD said he would like something back on whether there
is some way we can do a more generic approach to that than waiting
for them to act and then going to court. He was afraid with a
short deadline, everything would happen at once. He asked if the
State has cases prior to Gulkana River where the title to the
stream bed of a navigable river has been transferred to a third
party and we don't do anything about it for 20 or 30 years, and
then somebody decides they are going to do something with that
resource. Are we going to have a very good case, if we say that
was a fraudulent transfer, the land had already been transferred to
the State of Alaska?
MS. GRACE answered that theoretically we would not lose our title
through the passage of time and theoretically a court would simply
look at the issue of whether the waterway is navigable under
applicable federal standards. It shouldn't make a difference that
30 years has passed. After a long passage of time, maybe 50 - 75
years from now, a court might sympathize more with a private land
owner who said to the court that the United State conveyed this
property to them and that they have used it and the State has never
asserted an interest in this property. The court might apply a
rule of property which says this is the person who has acted like
he's an owner, and therefore, the court sympathies would be more
with that person than they may be with the State who never asserted
title to those navigable waters. So a private land owner wouldn't
be able to make that kind of argument if the State is on record as
determining that waterway to be navigable.
CHAIRMAN HALFORD asked what constitutes a State navigability
determination.
MS. GRACE said that there is a formal process the State goes
through. The Director of the Division of Lands signs what is
called a State navigability determination. Her understanding is
that when the public calls the Department of Natural Resources and
asks if the waterway is navigable, if the State's response is yes,
then there's a formal written navigability determination that the
DNR has conducted.
Number 390
MS. JANE ANGVIK, Director, Division of Lands, said she had members
of the Navigability Team with her, and directed the committee to
the Navigability Criteria Evaluation Form, which Ms. Carol Caroll
should have a copy of. One of the processes they go through in
making a navigability determination is to review the factual case
with respect to a particular water body by the utilization of this
criteria. This criteria evaluation is one of the products of the
Navigability Team since its inception nearly a year and a half ago.
It is not only used to evaluate the physical data we have in all of
our files, that is DNR, ADF&G, and DOL, but also used to see if
it's a good candidate as a possible water body to litigate.
CHAIRMAN HALFORD said they have copies of the form. He asked if
they do this to a water body that is already transferred and, if
not, what do they do with a water body that has already been
transferred to a third party corporation that is obviously
navigable.
MS. ANGVIK answered they have not gone back on the pre-Gulkana
cases, because they are working forward. They are evaluating
conveyances that are still being made. They have also made
navigability determinations on waterways and water bodies either
where there is existing management conflict or where there have
been questions raised either by members of the public, by the
mining community, by sportfishing interests or by someone in the
public. Much or their methodology is predicated on where the demand
for a navigability determination is requested.
CHAIRMAN HALFORD asked what they tell the public when there's a
river that has been transferred to a third party that is obviously
navigable above and below and they ask if they can be there or not.
MS. ANGVIK replied that it depends on where it is and what the
situation is.
MR. JIM CULBERSON, Navigability Team, said that he tries to
determine whether or not a river has been conveyed. If it hasn't
been conveyed, they make an assertion of ownership. If it has been
conveyed, he first informs the person that it has been conveyed and
at the time of conveyance the federal government thought it was
non-navigable, that the State feels it's navigable, and that it's
a disputed issue. It's a possibility that trespass action could be
brought against them for using the land. The navigability is a
defense of the trespass. There is no real clear answer for pre-
Gulkana decisions.
CHAIRMAN HALFORD asked for the two or three most potentially
contentious of those that were transferred pre-Gulkana.
MR. CULBERSON said that the State feels the Arolik River is
navigable and that we own it. That's probably the hottest issue.
Another one involves the Chuitna River in which case the BLM
conveyed half of the river to the Tyonek Native Corporation and
determined that the other half was navigable. That created a tense
situation trying to determine where the middle of the river was and
who owned what. The other issue was the Karluk River which has a
brochure outlining disagreements and public rights.
CHAIRMAN HALFORD asked how many pre-Gulkana transfers he thought
would end up with that kind of conflict when use is increased.
MR. CULBERSON said he thought there are about 100 water bodies in
the State that continually come up where there are conflicts
between the owner and the user.
MS. ANGVIK asked how many of those were pre-Gulkana conveyed.
MR. CULBERSON said he thought almost all of them were pre-Gulkana
and that's almost always the issue.
Number 466
CHAIRMAN HALFORD said he thought it was a dangerous position to be
in where both sides thought the law was on their side.
MS. ANGVIK said that where there have been flagrant assertions of
ownership by upland owners. Troopers have been called in and have
been able to maintain the peace and the law.
MS. GRACE added that it depends on how the conflict arises. If
there's a private civil trespass action between two individuals,
the State may never know about it.
CHAIRMAN HALFORD asked if he understood correctly that the State
would not defend the title of the State to the navigable waters on
behalf of the public citizen that's using it. He asked what the
State would do.
MS. GRACE said she wasn't suggesting the State wouldn't take a
side. She was suggesting that the State might never know about it.
There are a couple of issues here; one is title to the submerged
lands and the rights it gives the public and the second is the
right the public has to use waterways regardless of who owns the
submerged lands. In this State, the public has the right to use
any waterway that's navigable under State statute which is very
broadly defined - essentially anything that's navigable in fact.
This is a different standard than navigability for title purposes.
So the State takes the position that the public has the right to
use the water of any river that's navigable, in fact. Someone
mentioned on Friday that it's not particularly clear what rights go
along with that. It's perfectly clear that the public can use the
waterway, but it's not clear how much of the bed they can use, if
any or what portage rights they might have. Things like that.
This is something the State would probably welcome litigation on,
because it's something they want clarified. The public has the
right to use any waterway that's navigable in fact and in the right
case she thought the State would like to get some of the peripheral
issues of exactly what that means resolved. If it were a case
where we felt we owned the submerged lands, and therefore felt the
public has the right to use the submerged lands, as they have the
right to use any State lands, then she presumed the State would
step in and defend the public's right. She couldn't promise they
would, because that is a policy decision, but generally their
position is yes, they are here to protect the public's rights.
CHAIRMAN HALFORD asked if there was anything in between going to
court and litigating a hundred different conveyances at the rate of
two a year for the next fifty years or whatever. What if by
statute the State asserted title as navigable to all submerged
lands under any lake larger than X and any river with a flow more
than X, unless someone can prove otherwise. He asked if there was
some way the State can reverse some of the burdens that take
forever.
MS. GRACE responded that we certainly could do that and she thought
it would clearly put the public and private upland owners on notice
as to what the State believes it owns. It wouldn't determine
title. It would still be open to challenge by private upland
owners.
CHAIRMAN HALFORD said if we do that now and they don't do anything
for another 50 years, doesn't that put the court and history on our
side? It would be the opposite if we do nothing.
MS. GRACE answered that she thought it would. She also thought it
would be a strong position for the State to say they put the public
on notice in whatever way 50 years ago. It might be more flexible
to have a statute that provides the agencies with some way to
declare things rather than have a law that you would have to amend
every year, because the State would continually be doing
navigability determinations.
CHAIRMAN HALFORD said we're behind by 500. So we could take the
first 500 and then the agencies.
MS. GRACE responded that as long as the law made it perfectly clear
that it wasn't an exclusive list.
SENATOR TAYLOR said he thought it would work.
MS. GRACE said she thought they would want to make it clear that we
weren't taking title, but asserting what's there.
CHAIRMAN HALFORD said they weren't done with this question because
it weaves itself all the way along. He asked if there were any
other questions on recommendations five, six, and seven.
MR. MARSH responded that he thought seven was misunderstood. They
were simply indicating that the atlases have real limited
potential, given the limited State resources and constantly
changing easements and to consider putting them on USES maps and a
host of other publications. His understanding from talking to Ms.
Shobe is that she's in the process of trying to implement this.
Number 566
SENATOR LEMAN asked if the Department could make information
available electronically, because even commercially available maps
were changing too fast.
MS. MARSH said to the extent that people have access to Internet or
can physically come into navigability central in Anchorage at DNR
that's very viable and is probably the way to get the very most up-
to-date information. It depends on people throughout the State
having access to the Internet and being friendly with using it. It
also depends on some government agency having the resources to
continually update the information that's kept on the Internet.
MS. ANGVIK added that there are three easement atlases that are
digitized - Kodiak, Prince William Sound, and Kenai as well as the
navigability map which is in digitized format. All of this
material will eventually be available on our website. The
intention is that anything we have in electronic form will be
available to the public as widely as the State can disseminate it
as quickly as they can.
SENATOR LEMAN asked if it made sense to make it available as soon
as possible and to quit printing the documents that soon go out of
date.
MS. ANGVIK replied that they are all in favor of making it
electronically available as soon as possible, but there are still
parts of the State that are not digitized. She agreed that it is
a lot easier to update the digitized record than the written
record.
TAPE 98-5, SIDE B
CHAIRMAN HALFORD said it looks like BLM requires an invitation from
the affected corporation prior to marking the easements on that
corporation land. Why would a corporation want to mark easements,
like Chugach did, unless they were obvious and in use. He asked
for someone to describe how the feds do it now and show the
committee an example of a vacation application in Unalaska.
MS. ROBIN WILLIS, Access Defense Manager, explained that they have
been requesting marking of easements in a variety of areas. When
they wrote a letter to BLM requesting that they mark easements, in
this instance, along the Karluk River, the response they got was
that the corporations were required to make an invitation for them
to be a party to the actual location of the easement and that one
of the upland owners in that particular area was not particularly
interested in getting the easements marked and the State didn't
have any recourse in that particular location. The attempts they
have made at requesting marking have occurred.
CHAIRMAN HALFORD said if there is a requirement that they be used
and documented somewhere prior to 2001, and if the person who owns
the underlying title can not tell you where it is so that you can't
use it or document it, it seems like all the cards are on one side
of the table.
MS. WILLIS said that was their impression, too, and they haven't
found a way around it.
SENATOR TAYLOR asked if the Public Trust Doctrine meant nothing.
MS. GRACE answered that there is a jurisdictional problem, if he is
suggesting the State file suit against the federal government to
force marking of 17 (b) easements. When the State files suit on
behalf of the public, the Ninth Circuit holds that it can't file
suit against the United States, because the United States
ultimately has the public's interest at heart. The State,
therefore, doesn't have standing to file suit against the United
States.
CHAIRMAN HALFORD asked if that was common to all circuits.
MS. GRACE answered that it is black letter law.
SENATOR TAYLOR said they were not talking about the federal
government, but the upland owner, especially along the Karluk
River.
MS. GRACE said she didn't know the answer, because she hadn't
looked into the issue. There would be a question of whether the
upland owner has a duty to mark 17 (b) easements.
CHAIRMAN HALFORD said that section 17 (b) is pretty short and a lot
is hanging on that. It seems like it would be worth seriously
researching, at least, action against the apparent statute of
limitations that they're tying into these easements that they don't
want us to know about, mark, or use and which will thereby
disappear under their regulations.
SENATOR TAYLOR said he is informed that along the Karluk River
there is a trail that goes from Larson Bay over the ridge and all
the way down the Karluk River and that trail has been used
historically probably for millennia. He has walked part of it
himself and didn't have any difficulty in determining where it was.
It would seem if our personnel wanted to mark that, they couldn't
be excluded by the upland property owner. Are we just asking
people if they would like us to come on the land and if they say
no, we don't do anything or are we attempting to assert these
rights and failing to take to court or to use such other action as
may be necessary to assert these rights, he asked.
MS. WILLIS pointed out that in the area of Soldovia, BLM went out
to mark easements and had a community meeting and before they
could mark them, they were informed they would be cited for
trespass and put into jail if they tried to mark the easements,
because they would have to go across private property to get there.
As a result, BLM decided to go home without marking the easements.
They are the managing agency for the 17(b) easements as they exist.
The State doesn't even have ownership management authority on
those easements at all. So marking them is even more difficult for
us than it would be for the federal agencies.
CHAIRMAN HALFORD asked if they were told they would be put in jail
for trespass on private land not subject to the easement to get
across to the easement or was it on the private land that was
subject to the easement itself.
MS. WILLIS answered that it was private property that needed to be
walked across in order to get to where the 17 (b) easement was to
be marked.
CHAIRMAN HALFORD said the 17 (b) has to be by definition connected
to pubic property from some direction or other - either by a public
waterway or property. It seems the BLM people should have just
used the other way.
MS. WILLIS explained that they were approached and decided against
proceeding. She knew that BLM had tried to mark easements where
there was confusion and have been deterred by a variety of methods
and that was one of them.
CHAIRMAN HALFORD asked her to send him documentation of them being
deterred.
SENATOR SHARP asked if a public easement can only be marked by a
government agency or can it be marked by anyone considered public.
MS. WILLIS explained that the federal agencies are the managers of
the 17 (b) easements, so BLM, Fish and Wildlife Service, Park
Service, or Forest Service are traditionally the agencies
responsible for marking and managing the easements. They
traditionally request that the private upland owner accompany them
in the process and on occasion the State is invited to assist.
SENATOR LEMAN asked if it was correct that they either mark it
themselves or do they have someone under contract who marks it.
MS. WILLIS said that was correct.
CHAIRMAN HALFORD asked Ms. Willis to go over the specifics of the
Unalaska case.
MS. WILLIS explained that the road system in Unalaska was created
in the 1940's by the military and the Corporation received title to
the land prior to the Andress litigation which had to do with
whether continuous shore line and stream side easements were
reserved or not. That decision was made in 1978 and was in a
transitional phase until 1979 at which point they came up with the
current regulations which include periodic site easements rather
than continuous shore line easements. She said the overview before
the Committee is intended to show them there is no access between
downtown and Humpy Cove. The only access the public has to public
lands are the simple easements they see on the map. The portion of
the road that's between Summer Bay and Humpy Cove was conveyed
during the transition between the discussions for Andress on
continuous versus periodic points. It was not part of the groups
of conveyances for which there was a conformance where you replaced
continuous shore line easements with periodic site easements.
Consequently, the road going to Humpy Cove didn't have a site
easement and the Fish and Wildlife Service has that as one of their
justifications for terminating this easement, because they say it
does not access public waters. In fact, the patent says it goes to
the public waters of Humpy Cove.
MS. WILLIS said they have done a lot of work with the community and
they are very concerned about not being able to get to their
favorite recreational areas. There are only five salmon streams in
the location where they can fish and get subsistence fish. They
requested that the State protect their interests and they are
attempting to do so. This is in the middle of litigation. This is
a termination requested by Fish and Wildlife Service of an
easement, because it doesn't have a site easement associated with
it. It is clearly something that has been used for a very long
time by the community and is still very important to the locals.
MS. ANGVIK added that they have officially appealed this action and
the BLM has also disagreed with the Fish and Wildlife Service.
CHAIRMAN HALFORD asked if the State owned all the tide and
submerged land on the shore line in that area.
MS. WILLIS answered no, the tidelands were conveyed to the town of
Unalaska, although a 50 ft. wide public easement was reserved along
the coast for purposes of public access, similar to a public trust.
CHAIRMAN HALFORD asked if the land was conveyed to the State at
statehood and the State conveyed it further to the local
government.
MS. WILLIS said that was correct.
CHAIRMAN HALFORD said it was obvious that it was public land and
public access. He asked if the allotment at Morris Cove cut off
the road that goes over to Alangik Bay.
MS. WILLIS said it does, except within the allotment they reserved
a 25 ft. trail easement so people can legitimately walk along that
trail to Alangik Bay.
CHAIRMAN HALFORD asked if that was a trail or a road now.
MS. WILLIS said that it's a road up to the allotment, a trail
through the allotment, and it's not really even a marked trail to
Alangik Bay.
CHAIRMAN HALFORD asked if the allotment preceded the trail, then.
MS. WILLIS answered that it did.
CHAIRMAN HALFORD asked if there were any other cases where they
were notifying her of action on potentially vacating a 17 (b)
easement.
MS. WILLIS answered there were a number of places where they have
litigation outstanding like Afognak Island where the State believes
there are two large lakes that are navigable. The only easements
that were reserved were two site easements and they want to
terminate those, because of their feeling that they are non-
navigable water bodies.
CHAIRMAN HALFORD asked how large the lakes were.
MS. WILLIS answered that they were 400 - 500 acres.
CHAIRMAN HALFORD asked if the federal government transferred the
submerged lands under those lakes.
MS. WILLIS answered they were meandered out under survey rules, so
they didn't convey them, but they have riparian rights associated
with them as the upland owner.
CHAIRMAN HALFORD asked if there was any federal withdrawal that
preceded statehood in those cases.
MS. WILLIS answered that she didn't believe so.
MR. CULBERSON added that there was a withdrawal for a fish culture
preserve that predated the forest and then there was a forest
withdrawal. Both of those were prestatehood and that was their
justification for not recognizing the State's ownership in the
submerged lands.
CHAIRMAN HALFORD asked if that was what was necessary to beat us on
those.
MR. CULBERTSON answered there was first a fish culture preserve on
Afognak Lake, which probably related to the Lake. That was later
revoked and replaced by a forest reserve that didn't have the
withdrawal attribute of the other court cases. This particular
case has both scenarios.
Number 380
SENATOR TAYLOR asked what is motivating the Fish and Wildlife
Service.
MS. WILLIS answered that they have difficulty managing easements
that are not close to where their units are located. This one is
managed out of Palmer, the Corporation is probably frustrated that
they can't have more management taking place on the easement. Fish
and Wildlife Service doesn't have anyone locally to do it.
SENATOR TAYLOR said the information he had was that the community
was maintaining the road.
MS. WILLIS replied that the community maintains the road at least
out to Summer Bay itself, but it doesn't maintain it to Humpy Cove.
MS. ANGVIK explained that the issue for the private upland owners
is that the public is trespassing on their uplands by way of that
road. They are the ones who have persuaded Fish and Wildlife
Service that the easement is causing the public to trespass on
their private lands.
SENATOR TAYLOR asked who was the upland owner.
MS. WILLIS answered Unalaska Corporation.
MS. ANGVIK said while this has all been under discussion of the
navigability program, it's within the Realty Service Section and is
funded out of the general fund and isn't funded by the Navigability
Program. It isn't included in the scope of waterway issues.
CHAIRMAN HALFORD thanked her for that clarification. He asked the
Department of Law if there was anything, including money, stopping
the State from marking 17 (b) easements should we choose to do so.
MS. SHOBE answered that at any time any of the federal agencies
involved could transfer management of the easement to the State.
Easement management regulations were never completed back in 1983
and are part of a holding draft pattern. Because of the cost this
would be a horrendous task, but it could be done if we want to do
it. All we have to do is ask the federal agencies involved.
MR. MARSH added that this is one of the major issues of the audit
that the easements are unmarked in many cases and it's hard for the
public to locate them and hard to use them. He understands from
talking to BLM that any time the State would like to take over
easement marking, they can do so both legally and with BLM's
blessing. However, that is an expensive cross to bear. From a
practical perspective, it's hard to mark things against people's
will and maintain that marking. The practical solution from the
auditor's perspective is to get the land owners to contract with
the State as a condition of various services to just mark the
easements and maintain the marking in a routine manner as a
condition of getting things they want in return from the State.
CHAIRMAN HALFORD said particularly for easements between the
airport and the river, DOT ought to be able to maintain the 600
yds. down to the river.
SENATOR LINCOLN noted there were two corporations which were not
listed with the native corporations that have a 17 (b) agreement
with the Department of Interior. She asked Mr. Marsh why and asked
for an explanation of those which had received patent and owe the
17 (b).
MR. MARSH said he didn't produce the list.
CHAIRMAN HALFORD said that was from Division of Water and the
discussion was in the context of if the State lost the court case
on continuous shore line easements, and he could see why they did,
then the corporations had agreed to come back and grant
discontinuous easements for the same purposes.
MR. CULBERSON said he pulled this list from a case file that was
submitted to them by BLM in 1983 as part of a proposal for their
two phase process. The first phase of the process was to terminate
the [indisc] easements and the second phase was to acquire the
donations. It may be that this list only contains conveyances that
had illegal easements that were being terminated as opposed to all
conveyances that may have been subject to the agreement. It's
possible that BLM made an error in preparing the list.
MS. ANGVIK said that probably the critical issue is the second
list where the final patent has been conveyed to the corporations.
Now it's between them and BLM with respect to where the 17 (b)
easements are.
CHAIRMAN HALFORD questioned the resource agencies of the State, if
there was a record of correspondence and have we asked BLM to
follow up on those conveyances and get those easements.
MR. CULBERSON answered that yes they have and BLM gave priority to
some of the conveyances until they initiated the "patent plan
process." At the time they decided they were only going to deal
with conveyances in areas where they were doing surveys which is
the way they have focused their budget. They only address easement
issues in areas where they intend to go in the next field season
and do on the ground surveys.
CHAIRMAN HALFORD asked if they do allotments and easements at the
same time.
MR. CULBERSON said that is correct.
CHAIRMAN HALFORD asked if they mark the easements when they do
them.
MR. CULBERSON said no. The mission of the BLM is to convey land
and in order to do that, they have to survey it. Marking 17 (b)
easements is not part of the process.
CHAIRMAN HALFORD responded that the federal law the land is
conveyed under says the easements shall be reserved and if they are
conveying the land without the easements, they are violating the
federal law; and if the easements aren't there in the initial
conveyance, they can never be added. He asked if anything he said
was wrong.
MR. CULBERSON replied that the initial conveyance has a paragraph
in it that says they have right under the easement agreement to
come back in and reserve the easement at a later date.
CHAIRMAN HALFORD said that may be better than having easements that
are going to be canceled in 2001.
MS. SHOBE added there was an agreement with almost all the
corporations with the Secretary of Interior during the period of
time of the litigation that finally resulted in saying that coast
line easements were invalid. Each one of the interim conveyances
(i.c.) had the language in it that says they can come back and
"donate" the site easements. She asked BLM today about why they
aren't doing this as a special project and they said it is under
their patent plan process of trying to focus their staff in one
general area and to move forward on their main goal. They are
reserving the easements, but they just aren't marked.
SENATOR TAYLOR asked if they were marked on some kind of plat or
graph or are they just including some generic paragraph that at
some date in the future they may come back to ask for this
easement.
MS. SHOBE said on the situations that Mr. Marsh has brought up
where they have to conform under the Andress agreement, there is a
paragraph in the specific i.c. that says they can come back and do
it, but on every single i.c. and patent there is a topographical
map that BLM puts together on a 1 to 6,300 scale with a line drawn
to indicate a site or trail easement. That is not on the official
record; it is with the file and with the documents conveyed to the
native corporation. The State gets a copy of it, and that's the
basis for the easement atlases. If the corporation chooses to
record their conveyance document and attaches the maps, it is in
the recorder's office. That is the only public notice that BLM
has.
CHAIRMAN HALFORD asked if that would constitute notice to a third
party that 15 years later contests the existence of an easement on
land that they bought from one of the native corporations.
Number 140
MS. GRACE said she wasn't familiar with the i.c. paragraph and
asked if they have the option of recording with the map.
MS. SHOBE answered that Alaska is a nonmandatory recordation state,
so if they want to pull those maps off of their conveyance
documents, they do not need to record them. Because sometimes they
are unwieldy and it costs per page to record them and they need to
be broken down, a lot of the maps were not recorded, but she has
copies of them.
CHAIRMAN HALFORD asked if 15 years down the road a corporation
sells a 20 acre parcel to a third party, who then after a period of
10 years develops and utilizes this parcel of ground fully and goes
to get title insurance, does the title insurance company insure
title to that parcel with no easements shown.
MS. SHOBE answered that she hoped the title companies would have
had this information and would not give a title policy out that
would include such an easement.
CHAIRMAN HALFORD asked where they would get the information.
MS. SHOBE answered they can get it many ways. Most title companies
have copies of the 163 maps.
MR. CULBERSON explained that normally the process a title company
would use in doing a title search is that it is subject to all the
reservations in the federal patent which contain 17 (b) easements.
It would be the responsibility of the person receiving the title
report to go to BLM and look at the reservations in the patent.
SENATOR TAYLOR said he was fascinated by the name of "Statehood
Defense Unit." He asked how many were in the unit.
MS. GRACE explained that their funding was not broken down person
by person. When the attorneys work on a statehood defense matter,
they charge that to statehood defense money.
ATTORNEY GENERAL BOTELHO explained that a study Senator Taylor was
referring to was a study done in the first year of this
administration. Essentially, 27 attorneys were to participate on
various committees and look at the consequences of various issues
involving native governments in the State. They are now in front
of the Supreme Court and will have a decision in the next several
weeks to three months.
SENATOR TAYLOR asked if there was any involvement in RS 2477's or
17 (b).
ATTORNEY GENERAL BOTELHO said not in that exercise. RS 2477 is an
ongoing issue and is billed against statehood defense.
SENATOR SHARP asked how many right of ways were transferred and
sold for the Exxon Valdez back to a government agency.
CHAIRMAN HALFORD said some of those became State lands.
MR. MARSH said it was their suggestion that the legislature study
basin wide adjudication further, because it is already in statute
and has the potential to resolve some long term water related
issues. This is a study type issue and was meant to be an
alternative to the federal government having a rather bad attitude
about attempting to settle these things without long term
litigation.
The potential for basin wide adjudications is that it settles
various rights over an entire river system or hydrologic unit of
which there are six in the State.
MR. MARSH said the remaining recommendations were narrow in scope.
Number 9 was advice for the record for people who put obstructions
across navigable waterways and what ought to be done about this
problem. Some people suggested criminal prosecution.
TAPE 98-6, SIDE A
Number 001
They further recommend in #10 that peace officers have the
authority to enforce injunctive orders that are obtained. The
final recommendation was where some State employees were doing
water management duties and were interfered with in their access to
navigable waterways and the adjacent land. The statutes provide
for a land surveyor and private employment to have the ability to
go on to land to execute their function. They saw no reason to not
have the same rights for waterway management employees of the
State.
ATTORNEY GENERAL BOTELHO said they concurred with recommendations
well, like in consumer protection.
MR. MARSH said his remarks were well taken in the enforcement of
municipal zoning ordinances at the local level. Frequently private
citizens will have the right to pursue what they think is a zoning
violation in their neighborhood.
CHAIRMAN HALFORD said he would like to come to some conclusions
that produce a product. The expertise and interest are in the
state departments, the native corporations, and the general
population. The other thing to do would be to pay native
corporations to mark the easements, if they are already delineated.
He said there are two issues he is going to work on this session -
RS 2477's and navigability and the pieces of public access around
them that give us a chance to enjoy the resources of the State. He
said he would like any suggestions possible. He thought there had
to be some middle ground and that we couldn't afford to wait
forever.
CHAIRMAN HALFORD adjourned the meeting at 5:25 p.m.
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