Legislature(2023 - 2024)BUTROVICH 205
03/29/2023 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB87 | |
| SB92 | |
| SB67 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HJR 11 | TELECONFERENCED | |
| *+ | SB 92 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 67 | TELECONFERENCED | |
| += | SB 87 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
March 29, 2023
3:31 p.m.
MEMBERS PRESENT
Senator Click Bishop, Co-Chair
Senator Cathy Giessel, Co-Chair
Senator Bill Wielechowski, Vice Chair
Senator Scott Kawasaki
Senator James Kaufman
Senator Forrest Dunbar
Senator Matt Claman
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 87
"An Act relating to a lumber grading training program and lumber
grading certificates; relating to use of lumber graded and
certified by a person holding a lumber grading training program
certificate; and providing for an effective date."
- MOVED SB 87 OUT OF COMMITTEE
SENATE BILL NO. 92
"An Act relating to state ownership of submerged land underlying
navigable water within the boundaries of and adjacent to federal
areas; and providing for an effective date."
- HEARD & HELD
SENATE BILL NO. 67
"An Act relating to firefighting substances; and providing for
an effective date."
- MOVED CSSB 67(RES) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 11
Urging the United States Environmental Protection Agency to
develop a woodstove certification program that addresses the
threat to clean and healthy winter air in Fairbanks; and urging
the state Department of Environmental Conservation to develop an
economically and legally defensible state implementation plan
for the Fairbanks North Star Borough nonattainment area.
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: SB 87
SHORT TITLE: LUMBER GRADING PROGRAM
SPONSOR(s): SENATOR(s) BJORKMAN
03/01/23 (S) READ THE FIRST TIME - REFERRALS
03/01/23 (S) RES, FIN
03/15/23 (S) RES AT 3:30 PM BUTROVICH 205
03/15/23 (S) Heard & Held
03/15/23 (S) MINUTE(RES)
03/24/23 (S) RES AT 3:30 PM BUTROVICH 205
03/24/23 (S) Heard & Held
03/24/23 (S) MINUTE(RES)
03/29/23 (S) RES AT 3:30 PM BUTROVICH 205
BILL: SB 92
SHORT TITLE: STATE OWNERSHIP OF SUBMERGED LAND
SPONSOR(s): SENATOR(s) GIESSEL BY REQUEST
03/08/23 (S) READ THE FIRST TIME - REFERRALS
03/08/23 (S) RES
03/29/23 (S) RES AT 3:30 PM BUTROVICH 205
BILL: SB 67
SHORT TITLE: PFAS USE FIREFIGHTING
SPONSOR(s): SENATOR(s) KIEHL
02/10/23 (S) READ THE FIRST TIME - REFERRALS
02/10/23 (S) RES, FIN
03/01/23 (S) RES AT 3:30 PM BUTROVICH 205
03/01/23 (S) Heard & Held
03/01/23 (S) MINUTE(RES)
03/13/23 (S) RES AT 3:30 PM BUTROVICH 205
03/13/23 (S) Heard & Held
03/13/23 (S) MINUTE(RES)
03/29/23 (S) RES AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
JOHN HOUGH, Intern
Senator Cathy Giessel
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented the explanation of changes for SB
92 from version A to version B.
JIM WALKER, Section Chief
Public Access Assertion and Defense
Division of Mining, Land, and Water
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Co-delivered a presentation titled "State
ownership of Submerged Lands - SB 92."
DANIEL HOVANCSEK, Natural Resources Specialist
Division of Mining Land and Water
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Co-delivered a presentation titled "State
ownership of Submerged Lands - SB 92."
RON OPSAHL, Senior Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on SB
92.
JOHN STURGEON, President
Safari Club International - Alaska Chapter
Anchorage, Alaska
POSITION STATEMENT: Provided invited testimony in support of SB
92.
MIKE SEWRIGHT, retired Assistant Attorney General
Anchorage, Alaska
POSITION STATEMENT: Provided invited testimony in support of SB
92.
SENATOR JESSE KIEHL
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 67.
ACTION NARRATIVE
3:31:16 PM
CO-CHAIR CLICK BISHOP called the Senate Resources Standing
Committee meeting to order at 3:31 p.m. Present at the call to
order were Senators Dunbar, Kawasaki, Claman, Kaufman, Co-chair
Giessel, and Co-Chair Bishop. Senator Wielechowski arrived
during the course of the meeting.
SB 87-LUMBER GRADING PROGRAM
3:32:12 PM
CO-CHAIR BISHOP announced the consideration of SENATE BILL NO.
87, "An Act relating to a lumber grading training program and
lumber grading certificates; relating to use of lumber graded
and certified by a person holding a lumber grading training
program certificate; and providing for an effective date."
CO-CHAIR BISHOP found no questions or comments and solicited a
motion.
3:32:35 PM
CO-CHAIR GIESSEL moved to report SB 87, work order 33-LS0380\S,
from committee with individual recommendations and attached
fiscal note(s).
3:32:48 PM
CO-CHAIR BISHOP found no objection and SB 87 was reported from
the Senate Resources Standing Committee.
SB 92-STATE OWNERSHIP OF SUBMERGED LAND
3:33:00 PM
CO-CHAIR BISHOP announced the consideration of SENATE BILL NO.
92 "An Act relating to state ownership of submerged land
underlying navigable water within the boundaries of and adjacent
to federal areas; and providing for an effective date."
He noted there was a committee substitute (CS) for the committee
to consider.
3:33:18 PM
CO-CHAIR GIESSEL moved to adopt the committee substitute (CS)
for SB 92, work order 33-LS0536\B, as the working document.
3:33:34 PM
CO-CHAIR BISHOP objected for an explanation of the changes.
3:34:26 PM
JOHN HOUGH, Intern, Senator Cathy Giessel, Alaska State
Legislature, Juneau, Alaska, presented the explanation of
changes for SB 92 from version A to version B.
1. In Section 10 (AS 38.04.910), page 87, lines 25-30,
page 88, lines 1-2:
a. Deleted ""federal area" means land within state
borders that is managed by a federal agency,
including the United States National Park
Service, the United States Fish and Wildlife
Service, the United States Forest Service, or the
United States Department of the Interior Bureau
of Land Management, but does not include
federally managed land that is subject to a pre-
statehood federal withdrawal that clearly and
explicitly evinces the intent to defeat state
acquisition of title; ".
b. Added ""federal area" means federally owned land
within state borders that is managed by a federal
agency, including the United States National Park
Service, the United States Fish and Wildlife
Service, the United States Forest Service, and
the United States Department of the Interior,
Bureau of Land Management; "federal area" does
not include
(A) federally managed land that is subject to a
pre-statehood federal withdrawal that clearly
and explicitly evinces the intent to defeat
state acquisition of title; and
(B) land that is privately owned;.
This change clarifies that it is not the intent of
the state to claim privately owned lands, including
those of regional and village Native corporations.
2. In Section 8, page 3, line 19:
a. Corrected an incorrect cross-reference to a
definition of "navigable water.
3. In Section 9, page 63, line 16:
a. Removed typographical error.
3:36:28 PM
CO-CHAIR BISHOP removed his objection and version B was adopted.
3:36:41 PM
SENATOR CATHY GIESSEL, District E, sponsor of SB 92, explained
that the bill reasserts the state's claim to its submerged
lands. This will allow the state to better define, recognize,
and catalog navigable waters and submerged lands in the state.
She noted that SB 92 builds on the historic John Sturgeon
litigation and the Gulkana River case.
SB 92 allows active management of state-owned navigable waters,
asserts state sovereignty in state and federal land planning
initiatives, and specifically identifies these areas. It does
this by codifying state ownership, management, and control. SB
92 requires an annual legislative report and criteria for DNR's
navigability determinations. SB 92 has a zero fiscal note.
She identified Section 8 and Sections 10-13 as the substantive
sections. The rest of the bill names the waters being
referenced, many of which are unnamed. She reviewed and defined
the terms mean high water, mean high water line, and ordinary
high water mark, all of which are used in the bill.
3:39:08 PM
MR. HOUGH presented the sectional analysis for SB 92, version B.
Section 1 Amends law by adding a new section to
state the purpose of the act.
The purpose is to assert the state's
ownership interest in all submerged land
underlying navigable water since the date
of statehood. The statement of purpose
specifically calls out state-owned
submerged land within the boundaries of
and adjacent to federal areas.
Section 2 Amends AS 38.04.062(a)
Clarifies that the state owns all
submerged lands underlying navigable water
from the date of statehood through the
equal footing doctrine, including those
within the boundaries and adjacent to
federal lands.
Section 3 Amends AS 38.04.062(b)
Adds the additional obligation for the
Department of Natural Resources
commissioner to conduct ongoing research
to identify submerged lands within and
adjacent to federal areas to make state
title determinations.
Section 4 Amends AS 38.04.062(c) to change a
reference from the time of statehood to
the date of statehood.
Creates the obligation for the
commissioner to maintain a list of all
water in the state for which the
commissioner determines are non-navigable.
Section 5 Amends AS 38.04.062(d) to insert a
citation to proposed new section of statue
under this bill.
Clarifies that water not included on lists
of navigable or non-navigable, is not
considered either until the commissioner
has made a determination of navigability.
Added citation to refer to lists and
determinations under AS 38.04.063 as well
as existing those in (b) and (c).
Section 6 Amends AS 38.04.062(e)
Amended section serves as a disclaimer for
commissioner determinations made under (b)
or (c) in that they may not be
representative of final action, may not be
recorded and does not create new property.
Section 7 Amends AS 38.04.062(g)(2)
This section clarifies the language
defining the date of statehood in regard
to the definition of "non-navigable
water".
Section 8 Amends and adds new subsections under AS
38.04.062, (h)-(j), that create new
obligations for the commissioner.
Subsection (h) creates an added obligation
for the commissioner, requiring him to
submit an annual report to the
legislature. The report shall identify
navigable waters within or adjacent to
federal areas not listed in AS
38.04.063(b), as well as changes to
previously identified navigable water.
Subsection
(i) clarifies that failure to include or
identify navigable waters does not
relinquish the states' rights regarding
those submerged lands. Subsection
(j) clarifies that determinations of
navigability will be consistent with the
definition of navigability and be based on
corroborating evidence. Subsection (j)
also outlines criteria for navigability.
3:42:17 PM
Section 9 Amends AS 38.04 and adds a new section AS
38.04.063 concerning state ownership of
submerged lands within federal areas.
This section makes clear that since
statehood Alaska owns, claims, occupies,
possesses, manages, and controls all
submerged lands underlying navigable
waters. In subsection (b) it creates a
list of navigable waters within and
adjacent to federal areas.
Section 10 Amends AS 38.04.910 by adding a
definition section.
The following terms are defined in section
10: federal area, mean high water line,
navigable water, ordinary high-water mark,
and submerged land.
Section 11 Repeals AS 38.04.062(g)(1), the previous
definition of "navigable water".
Section 12 Amends the law to make it retroactive to
January 3, 1959, the date of statehood. T
This bill will require a special vote of
two-thirds of the members of each house
because the proposed retroactive effective
date for this section varies from the
standard language providing for an
effective date 90 days after enactment.
Section 13 This section provides for an immediate
effective date under AS 01.10.070(c).
3:43:19 PM
CO-CHAIR BISHOP found no questions and turned to invited
testimony.
3:44:05 PM
JIM WALKER, Section Chief, Public Access Assertion and Defense,
Division of Mining, Land, and Water, Department of Natural
Resources, Anchorage, Alaska, co-delivered a presentation titled
"State ownership of Submerged Lands - SB 92." He began on slide
2, "The Navigable Waters Issue."
• Alaska holds an estimated 800,000 miles of navigable
rivers
• Alaska holds an estimated 30 million acres of
navigable lakes
• Alaska owns the submerged lands beneath every
navigable-in fact river and lake, and beneath
tidally influenced waters in the state, unless a
valid pre-statehood withdrawal EXPLICITLY defeats
state title
• In Federal Conservation System Unit areas created in
Alaska post-statehood, the submerged lands beneath
navigable-in-fact and tidally influenced waters are
State-owned lands
3:45:59 PM
MR. WALKER spoke to slide 3, "Federal Areas Where the State of
Alaska Owns Submerged Lands."
• National Park Service: Noatak National Preserve
(NPr), Kobuk Valley National Park (NP), Bering Land
Bridge NPr, Denali National Park and Preserve (NPP)
(ANILCA additions), Wrangell-St. Elias NPP, Glacier
Bay NPP, Katmai NPP, Kenai Fjords NP, Gates of the
Arctic NPP, Lake Clark NPP, Yukon-Charley Rivers
NPr, etc.
• U.S. Fish and Wildlife Service: Becharof National
Wildlife Refuge (NWR), Innoko NWR, Izembek NWR,
Kanuti NWR, Kenai NWR, Kodiak NWR, Koyukuk NWR,
Nowitna NWR, Selawik NWR, Tetlin NWR, Togiak NWR,
Yukon Delta NWR, Yukon Flats NWR, etc.
• U.S. Forest Service: Tongass National Forest,
Chugach National Forest
• Bureau of Land Management: Beaver Creek Wild and
Scenic River (WSR), Birch Creek WSR, Fortymile River
WSR, Gulkana River WSR, Unalakleet River WSR, Delta
River WSR, etc.
3:50:59 PM
MR. WALKER turned to slide 4, "Status of Efforts to Clear Title
1959 to Present" to discuss why this issue is so timely.
The federal government acknowledges Alaska's clear
title to its submerged lands beneath navigable-in-fact
and tidally influenced rivers and lakes in only:
• 9 percent of 800,000 river miles of submerged lands
under state-owned rivers
• 16 percent of 30,000,000 acres of submerged lands
under state-owned lakes
He stressed that without bold action to force resolution,
fulfilling the fundamental promise of Alaska statehood will take
hundreds of years. SB 92 calls the question; it tells the
federal government to either acknowledge and acquiesce to the
state's ownership or object. Objecting would give the state the
necessary standing to begin litigation pursuant to the federal
Quiet Title Act.
3:52:42 PM
MR. WALKER turned to slide 5, "Sturgeon vs. Frost, 136 S. Ct.
1061 (2016 & 139 1066 (2019)." He said this case provides much
of the impetus for the statewide defense initiatives. In this
case the US Supreme Court ruled unanimously that federal
regulations do not supersede State of Alaska ownership and
management of navigable waters within ANILCA Conservation System
Units (CSU). He deferred to Mr. Hovancsek to continue the
presentation.
3:54:20 PM
DANIEL HOVANCSEK, Natural Resources Specialist, Division of
Mining Land and Water, Department of Natural Resources,
Anchorage, Alaska, continued to slide 6 that shows the nine
actions that assert state ownership and authority relating to
statehood defense and navigability. It read:
Statehood Defense: Navigability
• Intensify quiet title litigation against the Federal
Government
• Partner with users to document navigable waters
usage for strategic purposes
• Negotiate in good faith with federal authorities
• Educate, energize public on State efforts and
federal
• Heighten failures number of RDI applications filed
to highlight BLM backlog
• Assert State management of submerged lands in
federal areas
• Aggressive approach in State and Federal land
planning initiatives
• Release map of State-owned navigable waters in
federal areas
• Legislatively codify State-owned navigable waters in
federal areas
MR. HOVANCSEK explained that every river within a federal
Conservation System Unit is either navigable or non-navigable.
If the state disagrees with a non-navigable determination, the
remedy is to file a quiet title action in court. If navigability
is ambiguous, the state can file a recordable disclaimer of
interest. In that filing the state provides facts including the
state's own navigability determination. This is a relatively
simple process that was intended to expedite navigability
determinations. Unfortunately, it hasn't worked as intended and
there is a large backlog.
SB 92 offers an alternative option for DNR. He noted that all
nine actions listed on the slide work together to strengthen the
state's hand.
3:56:41 PM
SENATOR DUNBAR referenced the last bullet and asked whether the
state was following federal law or a state agency had indicated
that this type of legislation would strengthen the state's hand.
MR. WALKER answered no, but the department hopes that passing SB
92 will facilitate federal legislation.
3:57:47 PM
SENATOR KAWASAKI asked if the idea was that putting it in state
law makes it true.
MR. WALKER responded that DNR is saying that this is an
important issue that requires a statement from the legislature
that the state is claiming the lands it was promised at
statehood. A statement from the legislature is more significant
than if it were to come from the department, because the
legislature represents the voice of Alaska.
He added that the state's navigability determinations include
the robust body of federal case law on navigability. That law
says that navigability determinations are based on what was
navigable at statehood using watercraft that were traditional at
the time. The watercraft used in 1959 are much the same as the
watercraft used today.
SENATOR KAWASAKI asked what other states have done to assert
ownership of state lands.
MR. WALKER said the cases are similar in that they all involve
proving the navigability of the river. This is done by showing
through either historical proof that it was used as a route for
trade, travel, or commerce or by showing that the river is in
its natural condition and can be floated in a boat that is
meaningfully similar to a watercraft used at statehood for
trade, travel, or commerce.
He acknowledged that most states decided these issues much
earlier because they became states long before Alaska achieved
statehood. The State of Tennessee, for example, decided these
issues in the 19th century based on settled case law at the
time.
4:02:08 PM
SENATOR WIELECHOWSKI joined the committee.
4:02:16 PM
CO-CHAIR BISHOP noted the earlier statement that the state owns
these submerged lands. He asked Mr. Walker if he agreed that the
state was trying to get title to these submerged lands so it
would own them.
MR. WALKER submitted that title was vested immediately on
January 3, 1959 when Alaska became a state. SB 92 clarifies what
the state has title to and settles the lingering questions about
how far upstream a river is navigable. He reminded the committee
that Alaska received lands in two ways: 1) through statehood
selections and 2) separately under the equal footings doctrine
that gives a state entering the Union title to the beds of
waters then navigable or tidally influenced. Title to these
lands were vested immediately at statehood.
4:03:50 PM
SENATOR KAUFMAN offered his understanding of the explanation,
which was that the state has title but it's clouded, and SB 92
provides the opportunity to remove the cloud.
MR. WALKER responded that a cloud on a title describes the legal
state when two parties claim ownership to the same property.
This is different because the federal government has been
ambiguous, but is treating the waters as non-navigable. He said
SB 92 removes the ambiguities from the clean title that the
State of Alaska owns.
4:05:23 PM
SENATOR CLAMAN offered his understanding that the questions
about ownership of submerged lands were getting litigated slowly
in federal court.
MR. WALKER agreed.
SENATOR CLAMAN summarized that SB 92 asserts a claim to
submerged lands, and it's not clear how the federal government
will respond.
MR. WALKER opined that the federal government could do one of
two things. One, it could disagree and assert ownership and thus
the standing to begin proceedings pursuant to the Quiet Title
Act. Second, the federal government could assert ownership when
the state makes a navigability determination. He described the
sequence of events after the state made a navigability
determination at Crescent Lake that's located within the Lake
Clark National Park and Preserve. Importantly, the National Park
Service treated Alaska as a sovereign. He opined that this was
the foundation for a partnership that the state and federal
government would enjoy moving forward.
MR. WALKER maintained that throughout the state there has been a
general acquiescence to state ownership of submerged lands and
navigable waters when the federal government feels the state has
done the necessary analysis and made a decision based on the
application of sound federal law.
4:08:53 PM
SENATOR CLAMAN pointed out that this was supposition; he wasn't
representing the federal government and he didn't know what the
federal government would do.
MR. WALKER agreed.
SENATOR CLAMAN commented that he wasn't sure that SB 92 would
produce the result he was describing.
4:10:13 PM
SENATOR DUNBAR said the federal government could also choose to
ignore SB 92 and continue to settle the question on a case-by-
case basis. He said he agrees with the legal underpinning of the
bill and probably agrees with the list of lands and waters, but
he doesn't agree that SB 92 calls the question in a meaningful
way. The state can make the assertion but inaction by the
federal government does not mean it acquiesced. The federal
government can always come back and assert ownership, and the
matter will have to be settled in federal court.
4:12:17 PM
CO-CHAIR GIESSEL responded that the purpose of the bill is to
help the state move forward. Section (6)(m) of the Statehood Act
regarding submerged lands says, "...said State shall have the
same rights as do existing States thereunder." The Alaska
National Interest Lands Conservation Act (ANILCA) repealed that
section and replaced it with Public Law 100-395. Title I
addresses submerged lands and the state possession thereof. She
acknowledged the possibility of lawsuits, mentioned the John
Sturgeon case, and posited that it was time for the legislature
to take a stand.
4:14:06 PM
MR. HOVANCSEK continued to slide 7, "Proposed Codification
Legislation Overview." He described the four things that the
bill does that will help DNR achieve its goals.
1. Codifies State of Alaska (SOA) ownership,
management and control of navigable waters and
submerged lands within federal areas not covered
by a valid pre-statehood withdrawal explicitly
defeating state title
2. Lists specific navigable waters and submerged
lands in federal areas statewide belonging to SOA
3. Enshrines foundational elements of relevant
caselaw to guide in navigability determinations
4. Establishes annual reporting requirement to
legislature
4:16:19 PM
MR. HOVANCSEK advanced to slides 8-9, "Proposed Codification
Legislation," and spoke to the following:
1. Codifies SOA ownership, management and control of
navigable waters and submerged lands within federal
areas not covered by a valid prestatehood withdrawal
explicitly defeating state title
• Underscore state ownership, management and control
of lands owned by the state since statehood
• Clarify and educate: Clearly enumerates the extent
of state management authority within federal
boundaries
• Increases public understanding and aids in
management
• Correlates with publicly maintained records and maps
• Reflect reality: Accurately depicts land ownership
and state boundaries with ongoing quality control
2. Lists specific navigable waters and submerged lands
in federal areas statewide belonging to SOA
• First phase: All NPS and USFS areas statewide plus
Tetlin National Wildlife Refuge
• Second phase: Remaining USFWS refuges
• Third phase: All BLM lands
• Fourth phase: Ongoing process of clarification,
modification and amendment
Framework for proposed statute is based upon RS 2477
Right-of-Way codification project in 1990s [AS
19.30.400].
4:19:33 PM
CO-CHAIR BISHOP asked him to go over the four tests to be on the
list of navigable waters.
MR. HOVANCSEK responded that to create the list DNR looked at
historical images from the '50s, modern-day images, archival use
accounts from miners, anecdotal accounts or historical records
showing the ways that people traveled, and modern-day use
accounts such as a whitewater guide book.
CO-CHAIR BISHOP asked if they used any historical accounts from
indigenous people about their trade routes.
MR. HOVANCSEK said yes; he cited an example where DNR was able
to determine navigability on two creeks in the southern Brooks
Range based on the evidence of significant Native use.
4:21:25 PM
SENATOR DUNBAR asked whether DNR had published this list and the
maps administratively for public use.
MR. HOVANCSEK answered yes; it's published on Alaska Mapper. He
noted that each navigable water that's listed has a state water
federal area (SWFA) number that ties to a corresponding file.
4:22:20 PM
MR. HOVANCSEK advanced to the map on slide 10 that shows the
navigable waters that the federal government has acknowledged
are state-owned. The rivers that the federal government deems
navigable are the blue lines and the rivers that are federally
undetermined as to navigability are the pink lines. The tan
areas are federal Conservation Service Areas. He noted that the
valid pre-statehood withdrawals have been removed from the map.
These are Glacier Bay, Katmai, Denali, and the North Slope.
He directed attention to the map on slide 11 that shows the
state-owned navigable waters if the bill were to pass. All the
pink lines on the previous slide are blue. He cautioned that
this was a course view of an intricate and dynamic system.
SENATOR DUNBAR pointed out that even if the bill didn't pass,
slide 11 still would be an accurate depiction of the rivers the
state owns.
MR. HOVANCSEK said that's correct, but it would be a more
significant statement for the users if it were Alaska law as
opposed to an administrative determination.
4:24:35 PM
CO-CHAIR BISHOP turned back to slide 10 and asked if the federal
government might cite him if he took his boat on one of the
rivers depicted with a pink line.
MR. HOVANCSEK said it's a possibility.
MR. WALKER added that one reason that John Sturgeon succeeded in
his case against the USNPS was that the Nation River had been
determined navigable. This gave the state the authority to
regulate the types of usage on the floating waters above the
state-owned land. The map on slide 10 reflects the federal
perspective, which is that ownership is uncertain so the federal
government will act as the owner until a navigability
determination is made. Adopting the new map on slide 11 shows
areas that DNR knows are fully navigable. The department is
highly confident that it will win if the federal government
litigates on these rivers.
CO-CHAIR BISHOP asked whether the state would come to his
defense if he took his boat on any of the rivers on the blue map
because navigability would still be in question even if the bill
were to pass.
MR. WALKER said a primary reason for this map is so the state
can assert the rights of all Alaskans. It represents the
department's best understanding of what is and is not navigable.
He opined that DNR would welcome litigation on any of the areas
depicted in blue because it is highly confident it will win.
4:28:01 PM
SENATOR DUNBAR asked if he agreed that a person could get cited
regardless of whether the bill passes and the state could defend
that person regardless of whether the bill passes.
MR. WALKER opined that the person was likely to find they are on
their own if there isn't something that affirmatively states
what is state-owned property. He deferred further response to
Ron Opsahl.
CO-CHAIR BISHOP asked Mr. Opsahl if he heard the question.
4:29:09 PM
RON OPSAHL, Senior Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, Anchorage, Alaska,
asked him to repeat the question.
SENATOR DUNBAR asked whether the state had the ability to
intervene on behalf of a citizen who was cited, based solely on
the list and map that the state issued administratively. He also
asked if that would change if this law were to pass.
MR. OPSAHL answered that he doesn't believe the state would file
a motion to intervene in a lawsuit. It was more likely that the
state would file a quiet title action based on the federal
government's assertion of ownership as indicated by the
citation. The person who was cited could use the state's
litigation to either dismiss or stay the proceedings on their
citation.
SENATOR DUNBAR asked if that could be done now.
MR. OPSAHL said yes; the difference is that once the list is
codified, the public will be more aware of the rivers the state
has title to.
4:31:51 PM
SENATOR WIELECHOWSKI said he believes that many Alaskans
appreciate the aggressive stance the department has taken with
the federal government to protect the waterways. He asked
whether the department takes the same aggressive position when
landowners block access to state recreational areas such as
Chugach State Park and Campbell Lake. He asked, if not, why not?
MR. WALKER said the answer is generally yes; the department has
advocated for the public's right to enjoy the waters of Campbell
Lake and numerous other rivers statewide where individuals have
tried to block access. He described Campbell Lake as a confused
situation; DNR believes Campbell Creek was navigable at
statehood so it owns some of the submerged lands. However, most
of the usage is on the surface waters of the lake. The
department has worked with the municipality to clarify that the
public has a right to use those surface waters and has
identified the section line and public access easements that
provide access to the water. He understands that House Finance
appropriated $10,000 for DNR to sign those access points to
inform the public of how to get to the waters of Campbell Lake.
4:35:40 PM
SENATOR CLAMAN agreed with Mr. Opsahl that if a person were to
be cited for using their boat on a river that's shown as a pink
line, the state would not represent that citizen. The state
might file a quiet title action, but the individual would be on
their own to deal with their citation.
4:37:06 PM
MR. WALKER maintained that if the boat owner could point to an
Alaska statute that says the state owns that river, it would
create reasonable doubt.
SENATOR CLAMAN conveyed that Sturgeon was a civil case.
CO-CHAIR BISHOP asked whether this type of citation would be
handled in state or federal court.
MR. WALKER answered that a person cited by federal authorities
would go before a federal magistrate. He relayed an example of
a case a federal magistrate dismissed relating to a waterway for
which the state had affirmatively asserted quiet title.
4:39:22 PM
At ease
4:39:55 PM
CO-CHAIR BISHOP reconvened the meeting and asked Mr. Hovancser
to continue.
4:40:04 PM
MR. HOVANCSEK continued the presentation on slide 12, "Noatak
and Kobuk Valley National Parks Federally-Acknowledged Navigable
Waters." He said the federal perspective is that the main river
in the Noatak is navigable up to the confluence with the Aniuk
River. The map shows the blue line turns to a blue and red
hatched line at the confluence. He relayed that he floated the
river this last summer and took a hydrological measurement at
the confluence. It indicated that the flow rate was 3,088 cubic
feet per second (CFS). The river was 320 feet wide at that
point. He said it would not be a hardship to navigate a canoe or
raft on that portion, but the Bureau of Land Management
determined navigability stopped at the confluence. He continued
to say that many of the waters addressed in the bill are
"hallowed, large, significant Alaskan rivers."
MR. HOVANCSEK advanced to slide 13, "Noatak and Kobuk Valley
National Parks Navigable Waters After Codification." It shows
considerable growth in state ownership, management, and control,
but there are still pink lines where ownership has not been
determined. He described DNR's calls and the map as
conservative. He conveyed the department's belief that as a
matter of law, Alaskans are due navigability determinations. If
the state disagreed with the determination, it would have an
administrative remedy to move forward.
4:42:49 PM
MR. WALKER advanced to slides 14-16, "Proposed Codification
Legislation," and spoke to the following:
3. Enshrines foundational elements of relevant caselaw
to guide in navigability determinations
• Susceptibility criteria to guide DNR in making
navigability determinations including, but not
limited to:
o Watercraft Type: Round raft, Canoe, Jon boat,
Jet boat
Alaska v. Ahtna, Inc., 891 F. 2d 1401 (9th
Cir. 1989) (Gulkana River).
o Susceptibility: Documented modern day use is
sufficient
Alaska v. United States, Case No. 3:12-cv-
00114-SLG (D. Alaska 2016) (Mosquito Fork
(Fortymile) River).
o Navigability doesn't require a clear channel,
two-way traffic, or historical evidence if the
river is susceptible to navigation.
• PPL Montana, LLC v. Montana, 132 S. Ct. 1215
(2012); Utah v. United States, 403 U.S. 9
(1971); United States v. Utah, 283 U.S. 64
(1931).
4:43:34 PM
• Section Ten:
o Define geographical scope of legislation
Post-statehood federally owned lands
o Define key navigability terms for purposes of
legislation including
Ordinary high-water mark
Navigability ?
Submerged land
Federal area
4:43:54 PM
4. Establishes annual reporting requirement to
legislature
Charges DNR with responsibility to conduct ongoing
navigability research to determine state title to submerged
lands within relevant federal areas
• Ensures non-exhaustive codified list best reflects
reality
o Ensures public facing document is accurate
• Further refinement and fine tuning as our quiet title
litigation continues
• Provides leadership to federal authorities and a path
forward to settle ambiguity so that land management
benefiting the public will follow
4:44:00 PM
MR. WALKER advanced to slide 17, "Proposed Legislation," and
paraphrased the following:
Alaska's ownership of Submerged Lands beneath
navigable -in -fact and tidally influenced rivers and
lakes is one of the fundamental promises of Statehood.
It's been 64 years. It is time for the Federal
Government to keep its promise to the State of Alaska.
SB 92 is a bold step in that direction.
CO-CHAIR BISHOP invited Mr. Sturgeon to provide his testimony.
4:45:07 PM
JOHN STURGEON, President, Safari Club International Alaska
Chapter, Anchorage, Alaska, provided invited testimony in
support of SB 92. He paraphrased the following prepared
testimony:
The State of Alaska is incrementally being cheated out
of one of its most cherished and valuable sovereign
rights, the right to manage its navigable waters, like
every other State!!! Management of many of its
navigable lakes and rivers, are being withheld by the
Federal Government. The State of Alaska must take
strong and decisive action immediately or watch while
it loses management over thousands of miles of rivers
and thousands of lakes. Remember, approximately 80% of
Alaska's towns and villages don't have road access.
Their roads are Alaska's rivers.
Under the Equal Footing Doctrine, the Statehood Act,
and the Submerged Lands Act, the State was granted
ownership at Statehood of the submerged lands of all
navigable waterways between the ordinary high water
marks. The State's Constitution, statutes and
regulations clearly say the State owns and manages
these submerged lands and navigable waters and that
its citizens have free and unrestricted access unless
restricted under regulations authorized by the State
legislature not the federal government. There are
exception such as US Coast Guard boating regulations.
Alaska law could not be clearer on this issue.
Thanks to two US Supreme Court decisions, Sturgeon v
Frost, I and II, the Court unanimously ruled that the
State of Alaska has the legal right to manage all
navigable rivers and lakes and the submerged lands
beneath them regardless of the upland ownership. That
took 12 years and $13 million contributed by thousands
of fellow Alaskans. Unfortunately, the Federal
government has been extremely slow in conveying title
to these navigable waters and submerged lands. Only 9%
of the States titles to navigable waters have been
adjudicated by the Federal government. This is spite
of numerous lawsuits by the State of Alaska on
navigable water. The State has not lost even one of
these lawsuits. It is clear after these numerous
lawsuits there has immerged a definition of what
constitutes a navigable waterway in Alaska. However,
even with these court losses the feds continue to try
redefine what constitutes a navigable waterway. Either
the Federal government is intentionally dragging the
process out or they are totally inept or both.
SB-92 provides a declaration by the State of Alaska
which navigable waters it considers to be owned by the
State. It plants the Alaskan flag on all these waters
for all to know who owns and manages them.
CO-CHAIR BISHOP asked Mr. Sturgeon to send his comments to his
office.
4:48:45 PM
MIKE SEWRIGHT, retired Assistant Attorney General, Anchorage,
Alaska, provided invited testimony in support of SB 92. He
stated that this bill is helpful and educational and could lead
to less litigation because it would reduce uncertainty. Federal
agencies would know where the state stands. With the voice of
the legislature, the bill has added importance. It identifies
the waterways in question. He likened the bill to the RS2477
legislation in which the legislature recognized more than 600
federal trails in Alaska. DNR could then publish the list of
navigable rivers and waterways that the legislature recognized.
The identification of these waters is the heart of this
legislation.
MR. SEWRIGHT explained that as part of statehood and the Alaska
National Interest Lands Conservation Act (ANILCA), both the
state and the Alaska Native corporations had the right to select
federal lands. Centuries of established law in the Lower 48 said
a state's right to submerged lands and control over the waters
above was established by evidence of the susceptibility of a
waterway to use by fur traders. Contrary to this, the federal
government took the position that in Alaska, only waterways like
the Yukon, Kuskokwim, and Susitna were navigable because they
could handle large volumes of traffic in very large boats.
MR. SEWRIGHT related his experience litigating the test cases in
the late 1970s and 1980s. Chief among these was the Gulkana
River case; it became precedent because the federal government
was trying to transfer much of the bed of that river to a
regional Native corporation. The state's position was that this
was state land. The case was decided in the state's favor and
both the state and Native corporations benefited. This continues
to be the law for Alaska.
He said the second dynamic, that gets to the current situation
and why SB 92 is important, is that the National Park Service
resisted. This culminated when the NPS kicked John Sturgeon off
the Nation River. The case went to the US Supreme Court and the
decision was in Alaska's favor. Alaska's waterways and various
private, state, and Native inholdings would not be subject to
NPS regulations.
4:59:21 PM
CO-CHAIR BISHOP asked him wrap up and send the remainder of his
comments to the committee so the members could read it.
MR. SEWRIGHT concluded that SB 92 is important legislation and
if he were a park manager, he would tell his staff to avoid
confrontation on the waterways that the legislature has
identified as navigable and the state claims. He restated that
this legislation is educational and can be very positive in
avoiding litigation by getting people to work together.
5:00:49 PM
CO-CHAIR BISHOP held SB 92 in committee.
SB 67-PFAS USE FIREFIGHTING
5:00:55 PM
CO-CHAIR BISHOP announced the consideration of SENATE BILL NO.
67, "An Act relating to firefighting substances; and providing
for an effective date."
He noted that there was a committee substitute for the committee
to consider.
5:01:04 PM
CO-CHAIR GIESSEL moved to adopt the committee substitute (CS)
for SB 67, work order 33-LS0148\S, as the working document.
CO-CHAIR BISHOP objected for an explanation of the changes.
5:01:25 PM
SENATOR JESSE KIEHL, Alaska State Legislature, Juneau, Alaska,
sponsor of SB 67, spoke to the following explanation of changes
from version B to version S for SB 67:
1. In Section 1 (AS 46.03.340), page 1, lines 9-12:
a. Deleted "engaged in the business of oil of gas
production, transmission, transportation, or
refining"
b. Added "to respond to a fire that originates in
relation to oil or gas production, transmission,
transportation, or refining"
This change allows for any respondent to a fire
relating to oil or gas production, transmission,
transportation, or refining to use PFAS or PFAS
containing substances to fight the fire.
2. In Section 1 (AS 46.03.340), page 2, line 6:
a. Deleted "25"
b. Added "40"
This change allows the state to accept for disposal a
quantity not to exceed 40 gallons per year, up from 25
gallons in the previous version; 40 gallons covers the
estimated 35 gallons of substance anticipated to be
accepted from impacted Project Code Red communities.
CO-CHAIR BISHOP removed his objection and version S was adopted.
5:02:41 PM
At ease
5:03:25 PM
CO-CHAIR BISHOP reconvened the meeting and invited Andy Mills to
explain the new fiscal note.
5:03:37 PM
ANDY MILLS, Legislative Liaison, Office of the Commissioner,
Department of Transportation and Public Facilities (DOTPF),
Juneau, Alaska, reported that DOTPF did an extensive analysis
because it is the state agency that will operate the program to
ensure that PFAS containing substances are collected and
disposed of properly. Prior to this legislation, the department
was not associated with Project Code Red. This is the program
that gave 132 Alaska villages the equipment to use PFAS-
containing aqueous film forming foam (AFFF) for firefighting
purposes as federally required. DOTPF anticipates the need to
collect and dispose of PFAS from these sites. This will be done
in cooperation with the Department of Environmental Conservation
(DEC) and private contractors.
DOTPF has a manifest list of the Project Code Red equipment
provided to these villages, but there is no current inventory to
show how much PFAS each village may have used or what it may
have received afterward. The fiscal note has assumptions and
that is what was quantified as the capital appropriation and one
personnel to handle the contracting effort. However, additional
entities may seek to utilize this program and there was no way
for the department to quantify what that amount would be. The
fiscal note addresses that by clarifying that it would be a
situation of first-come-first-served to dispose of up to 40
gallons of PFAS-containing aqueous film forming foam per year.
5:07:17 PM
CO-CHAIR BISHOP found no questions and solicited a motion.
.
5:07:23 PM
CO-CHAIR GIESSEL moved to report CSSB 67, work order 33-
LS0148\S, from committee with individual recommendations and the
attached fiscal note(s).
CO-CHAIR BISHOP found no objection and CSSB 67(RES) was reported
from the Senate Resources Standing Committee.
5:07:55 PM
There being no further business to come before the committee,
Co-Chair Bishop adjourned the Senate Resources Standing
Committee meeting at 5:07 p.m.