Legislature(2005 - 2006)BUTROVICH 205

02/16/2005 03:30 PM RESOURCES


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03:40:26 PM Start
03:42:38 PM Overview: Alaska Department of Fish and Game (adf&g) - Land and Water Access Rights and Wrongs by Tina Cunning, Special Assistant
05:05:45 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Overview of Land and Water Access Rights TELECONFERENCED
and Wrongs
By Tina Cunning, Special Assistant
Dept. Fish & Game
-- Testimony <Invitation Only> --
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE RESOURCES STANDING COMMITTEE                                                                             
                       February 16, 2005                                                                                        
                           3:38 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Thomas Wagoner, Chair                                                                                                   
Senator Ralph Seekins, Vice Chair                                                                                               
Senator Fred Dyson                                                                                                              
Senator Bert Stedman                                                                                                            
Senator Kim Elton                                                                                                               
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Ben Stevens                                                                                                             
Senator Gretchen Guess                                                                                                          
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
OVERVIEW: Alaska Department of Fish and Game (ADF&G) - Land and                                                                 
Water Access Rights and Wrongs by Tina Cunning, Special                                                                         
Assistant                                                                                                                       
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Tina Cunning, Special Assistant                                                                                                 
Department of Fish & Game                                                                                                       
PO Box 25526                                                                                                                    
Juneau, AK  99802-5226                                                                                                          
                                                                                                                                
Mr. Dick Mylius, Director                                                                                                       
Division of Lands                                                                                                               
Department of Natural Resources                                                                                                 
400 Willoughby Ave.                                                                                                             
Juneau, AK  99801-1724                                                                                                          
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR THOMAS WAGONER called the Senate Resources Standing                                                                     
Committee meeting to order at 3:40:26 PM. Senators Dyson,                                                                     
Stedman, Elton and Chair Wagoner were present.                                                                                  
                                                                                                                                
^OVERVIEW: Alaska Department of Fish and Game (ADF&G) - Land and                                                              
Water Access Rights and Wrongs by Tina Cunning, Special                                                                       
Assistant                                                                                                                     
                                                                                                                                
                                                                                                                                
3:42:38 PM                                                                                                                    
CHAIR WAGONER announced  the overview of water  access rights and                                                               
wrongs.                                                                                                                         
                                                                                                                                
3:43:09 PM                                                                                                                    
TINA CUNNING,  Special Assistant,  Alaska Department of  Fish and                                                               
Game  (ADF&G),  said  her agency  is  primarily  responsible  for                                                               
access issues  and because  it manages fish  and wildlife  on all                                                               
lands in  the state, it  has a  primary interest in  what happens                                                               
related to access on all the  lands, along with the Department of                                                               
Transportation and  Public Facilities  (DOTPF) and  Department of                                                               
Law (DOL).                                                                                                                      
                                                                                                                                
3:43:24 PM                                                                                                                    
She related a brief history  of current land status that included                                                               
the  Alaska   Statehood  Act  of   1959,  Alaska   Native  Claims                                                               
Settlement   Act   (ANCSA),   Alaska   National   Interest   Land                                                               
Conservation  Act (ANILCA)  and the  Alaska Submerged  Lands Act,                                                               
which clarified the land conveyance process related to waters.                                                                  
                                                                                                                                
MS. CUNNING  said that Congress  intended to protect  the Alaskan                                                               
life  style in  its land  issues and  under ANILCA  it created  a                                                               
number of  provisions to  protect access  for its  residents that                                                               
don't exist on conservation units in other states.                                                                              
                                                                                                                                
3:46:37 PM                                                                                                                    
SENATOR SEEKINS joined the committee.                                                                                           
                                                                                                                                
MS.  CUNNING  pointed  out  key  access  provisions  -  navigable                                                               
waters,  Public Trust  Doctrine,  easements  and revised  statute                                                               
(RS)  2477. In  1995 the  Legislature became  concerned that  the                                                               
state  was   not  asserting  ownership  and   management  of  its                                                               
waterways and  requested an audit  of DNR, ADF&G, DOTPF  and DOL.                                                               
In 1996, the  Division of Legislative Audit  recommended that the                                                               
government  establish  a  policy  oversight  group  charged  with                                                               
asserting   ownership   and   management  of   navigable   waters                                                               
protecting  the public's  access to  and use  of those  lands and                                                               
waters.                                                                                                                         
                                                                                                                                
3:49:08 PM                                                                                                                    
The   navigability   team    identified   two   definitions   for                                                               
navigability for  state government purposes -  for title purposes                                                               
and for  public use, although  there are many  other definitions.                                                               
Navigability  for  title  addresses  the  ownership  of  Alaska's                                                               
waterways and  includes tidelands, submerged lands  extending out                                                               
to  the three-mile  limit and  the shore  lands (land  underlying                                                               
inland  waterways).  While Alaska  entered  the  union under  the                                                               
Equal Footing Doctrine the same  as other states, a problem arose                                                               
about how to  calculate waterway acreage under  the Statehood Act                                                               
and ANCSA. So, Congress passed  the Alaska Submerged Lands Act of                                                               
1988 to clarify that those major  waterways that are likely to be                                                               
navigable would not be counted  against the acreage of the Native                                                               
corporations  or  the state  (because  it  technically got  those                                                               
waterways at statehood).                                                                                                        
                                                                                                                                
3:50:57 PM                                                                                                                    
Each state  has a  different navigability  definition based  on a                                                               
federal test  that was  in effect  at the  time of  statehood and                                                               
subsequent court  cases. In Alaska,  one of the  most significant                                                               
court  cases  was  the  Gulkana   decision,  which  said  that  a                                                               
recreational  craft  could  qualify  a waterway  as  a  navigable                                                               
waterway if the  total gross weight of the craft,  plus its load,                                                               
was  1,000 lbs.  It  also  directed, because  Alaska  has such  a                                                               
poorly  developed community  system,  that  a navigable  waterway                                                               
could be considered  navigable if it was susceptible  to that use                                                               
even though documentation couldn't be  found to show that kind of                                                               
use was occurring at the time of statehood.                                                                                     
                                                                                                                                
3:52:10 PM                                                                                                                    
SENATOR ELTON asked how that applies  to a stream that freezes in                                                               
the winter and is used as a dogsled pathway.                                                                                    
                                                                                                                                
MS. CUNNING replied  this test in Alaska applies to  title of the                                                               
underlying land  based on  its abilities  to hold  a craft  up to                                                               
1,000 lbs. Senator  Elton was thinking about  the other navigable                                                               
waters issue, which she would discuss later.                                                                                    
                                                                                                                                
3:54:36 PM                                                                                                                    
SENATOR DYSON asked what quiet title means.                                                                                     
                                                                                                                                
MS.  CUNNING replied  that it  means to  take the  cloud off  the                                                               
title. A quiet title has no recorded disputes.                                                                                  
                                                                                                                                
3:54:58 PM                                                                                                                    
SENATOR SEEKINS  stated that the  state can't assert for  a quiet                                                               
title until the federal government has made claim for ownership.                                                                
                                                                                                                                
MS.  CUNNING  replied  that  is  correct  and  then  the  federal                                                               
government also  has to claim  it has an  interest in it.  In the                                                               
Kandik, Nation and Black Rivers  case the feds didn't dispute the                                                               
state's  ownership.  That is  why  the  judge couldn't  render  a                                                               
decision  in  the Black  even  though  the waterway  was  clearly                                                               
navigable.                                                                                                                      
                                                                                                                                
3:56:23 PM                                                                                                                    
She  said that  13 water  bodies  have been  through quiet  title                                                               
action since statehood and the last  one cost close to $1 million                                                               
- not a good system when the  state has close to 60 million acres                                                               
in navigable  waterways. The Federal  Land Policy  and Management                                                               
Act (FLPMA)  of 1976 provided that  an applicant could go  to the                                                               
Bureau of Land Management (BLM)  and request that it disclaim any                                                               
interest in  the land and the  title could be cleared.  Two years                                                               
ago, BLM modified that regulation to  allow the states to file to                                                               
clear title for navigable waters  and RS (reserve statute) 2477s.                                                               
An administrative process was established  for states to file for                                                               
a  recordable disclaimer  of  interest. This  only  works in  the                                                               
cases of  navigability where the  federal government  agrees with                                                               
the state that a water body  is navigable. To date, the state has                                                               
only filed  an application for recordable  disclaimer of interest                                                               
on   waters  and   not   RS  2477s,   because   they  are   still                                                               
controversial.                                                                                                                  
                                                                                                                                
The initial disclaimer  of interest was for the  Black River. The                                                               
state has filed on 21 rivers  and 10 lakes. It has received title                                                               
to eight  rivers and  two lakes.  A number  are pending  and five                                                               
more will  be filed in  the following weeks. She  summarized that                                                               
was  navigability   for  title  purposes.  The   other  issue  on                                                               
navigability is public use.                                                                                                     
                                                                                                                                
4:01:44 PM                                                                                                                    
MS. CUNNING said under the  Public Trust Doctrine, the public has                                                               
a right  to enjoy waterways and  the resources in them  for those                                                               
purposes that  are managed  under the state.  This is  common law                                                               
and  each   state  manages  its   Public  Trust   Doctrine  lands                                                               
differently because  policy is evolved through  the court system.                                                               
In  Alaska,  Public  Trust  Doctrine   lands  are  those  between                                                               
ordinary high water  marks or below mean high  tide. The Doctrine                                                               
grants  the public  a right  of access  over navigable  waters or                                                               
public waters  that the ownership  of the underlying  or adjacent                                                               
land does not  affect the public's rights of access  on water. No                                                               
one may  obstruct peoples' conduct  of boating,  fishing, hunting                                                               
activities on those waterways and  if state land is involved, the                                                               
state  reserves "to  and along"  easements along  those waterways                                                               
for the  public's uses. In  Alaska, if a  boat floats on  it, you                                                               
are allowed  to float  a boat  on it.  "If you  can walk  up that                                                               
creek to fish, you  may walk up that creek to  fish no matter who                                                               
owns  the  underlying  submerged   land."  This  includes  frozen                                                               
waterways for purposes of trapping and transportation.                                                                          
                                                                                                                                
4:04:38 PM                                                                                                                    
MS. CUNNING  explained the reason  the state gets so  involved in                                                               
navigable  waters and  Public Trust  Doctrine  issues is  because                                                               
ownership  affects  what  kinds  of regulations  that  people  or                                                               
agencies may  try to put  on the waterways. Federal  agencies try                                                               
to assert  their authorities  over waterways.  If the  state owns                                                               
the underlying land, it's just the same  as if it were dry and it                                                               
belongs to  the state. Private  land owners sometimes  attempt to                                                               
interfere with  the public's right  of access on  waterways. Grey                                                               
areas  that are  contested are  where land  has changed  for some                                                               
reason like after an earthquake.                                                                                                
                                                                                                                                
4:11:00 PM                                                                                                                    
MS. CUNNING quoted  an 1866 statute on RS 2477s  - "The right-of-                                                               
way  for  the construction  of  highways  over public  lands  not                                                               
reserved for  public uses  is hereby  granted." She  reminded the                                                               
committee that in  1866, there were no automobiles,  so there are                                                               
questions about  what is  meant by highway.  The State  of Alaska                                                               
has asserted that  the highways that were public use  in 1866, in                                                               
effect, establish the public's use as a highway.                                                                                
                                                                                                                                
4:12:49 PM                                                                                                                    
MS. CUNNING said  that even though Congress repealed  the RS 2477                                                               
in  1976, the  grant of  the right-of-way  that existed  is still                                                               
valid, but new rights'-of-way couldn't  be established after 1976                                                               
and have to  be determined on a case-by-case basis.  In 1998, 602                                                               
trails qualified after the state researched the issue.                                                                          
                                                                                                                                
However, statute  says that the  state agencies may not  vacate a                                                               
right-of-way unless there is an established alternate right-of-                                                                 
way  or means  of access  that satisfies  for now  and until  the                                                               
reasonably  foreseeable   uses  of   the  future.   DNR  easement                                                               
regulations have been developed,  but they haven't been published                                                               
yet.                                                                                                                            
                                                                                                                                
4:16:34 PM                                                                                                                    
Another  section  of  her presentation  concerned  easements  and                                                               
access  that  the federal  government  manages,  which the  state                                                               
agencies are monitoring.                                                                                                        
                                                                                                                                
4:17:19 PM                                                                                                                    
Public  easement  provisions under  ANSCA  allow  there to  be  a                                                               
reservation  of an  easement across  corporation land  for public                                                               
access, so  as corporations acquired  their lands,  they wouldn't                                                               
effectively block access to state  or federal lands that might be                                                               
on the  other side of  the selection.  She described some  of the                                                               
conveyance  issues  that  are  ongoing, but  noted  that  BLM  is                                                               
putting money into getting the  Native corporation and state land                                                               
conveyances done.                                                                                                               
                                                                                                                                
4:20:56 PM                                                                                                                    
MS. CUNNING moved on to discuss  Title 1 of ANILCA. She said that                                                               
under  this title,  there is  a real  clear distinction  that the                                                               
boundaries of  the federal  lands do not  extend seaward  and the                                                               
federal  lands regulations  only apply  to federal  public lands.                                                               
They  don't apply  to owners  of property  within a  conservation                                                               
system unit.                                                                                                                    
                                                                                                                                
The  State of  Alaska is  an in-holder  of millions  of acres  of                                                               
navigable  waterways  within  these federal  conservation  system                                                               
units. The division  has to monitor the  regulations very closely                                                               
so  they  don't intrude  on  the  state's jurisdiction  on  state                                                               
waterways.  Titles  1 through  7  address  specific federal  land                                                               
management systems. The rest of ANILCA covers public uses.                                                                      
                                                                                                                                
4:23:46 PM                                                                                                                    
MS.  CUNNING  explained that  Title  8,  Section 811,  guarantees                                                               
traditional  methods of  access for  subsistence purposes,  which                                                               
includes motorized access that applies to wilderness areas.                                                                     
                                                                                                                                
4:24:57 PM                                                                                                                    
Title  11  recognizes that  the  State  of  Alaska has  a  poorly                                                               
developed    transportation   infrastructure    and   that    the                                                               
conservation systems would lock the  state up. So, Congress tried                                                               
to establish  a unique process  for the state  to be able  to get                                                               
access across  those conservation  system units  by setting  up a                                                               
process in 43 CFR 36.                                                                                                           
                                                                                                                                
ANILCA has  other access right  provisions, but the one  with the                                                               
most  impact  for  Alaska  is  11.10(A),  which  addresses  basic                                                               
hunting,  fishing, recreation  and access  to in-holdings,  which                                                               
includes motorized  access unless the  units are closed due  to a                                                               
finding  of  resource  damage,  with  a  mandatory  local  public                                                               
hearing process.                                                                                                                
                                                                                                                                
4:27:45 PM                                                                                                                    
At one time,  the National Park Service  restricted public access                                                               
on the  parks and  two years  ago its  director had  hearings and                                                               
adopted  regulations that  allowed for  the provisions  of ANILCA                                                               
that only restricted access for damage correcting the situation.                                                                
                                                                                                                                
4:29:39 PM                                                                                                                    
MS.  CUNNING   said  the  Park   Service  is  still   working  on                                                               
considerations of some definitions  like "traditional" and how to                                                               
measure "detriment to resource value."                                                                                          
                                                                                                                                
4:30:57 PM                                                                                                                    
She  said the  other access  section of  ANILCA that  affects the                                                               
division is 11.10(B) that contains  the access provisions for in-                                                               
holdings  and definition  section for  things like  "for economic                                                               
and other  purposes" and "adequate  and feasible."  She concluded                                                               
her discussion saying that it's  the division's responsibility to                                                               
monitor these issues for all the citizens of Alaska.                                                                            
                                                                                                                                
4:32:54 PM                                                                                                                    
SENATOR  STEDMAN  asked if  the  easement  the state  applies  to                                                               
properties when  it conveys  them can be  either above  mean high                                                               
tide or below or both.                                                                                                          
                                                                                                                                
DICK  MYLIUS, Director,  Department of  Natural Resources  (DNR),                                                               
replied that any of those is  correct. The state applies a 50 ft.                                                               
easement "to  and along" on  upland parcels unless there  is some                                                               
physical reason  why that can't be  done or if there  is a public                                                               
safety  issue. That  is done  on tideland  conveyances, as  well,                                                               
unless  the  parcel  is  already leased  and  the  lease  doesn't                                                               
provide for  that easement.  An easement  can't be  imposed after                                                               
the  fact.  He  summarized  that a  lot  of  Southeast  tidelands                                                               
conveyances do not have the "to  and along" easement on the water                                                               
side, because  leases had  already been  issued that  didn't have                                                               
those kind of easements.                                                                                                        
                                                                                                                                
4:35:00 PM                                                                                                                    
SENATOR  STEDMAN  noted  that  "easement"  and  its  use  is  not                                                               
defined. He also noted that  while Mr. Mylius mentioned the state                                                               
is flexible on easements, he hadn't seen evidence of that.                                                                      
                                                                                                                                
MR. MYLIUS responded that the statute  says that the state has to                                                               
reserve  an access  easement unless  the commissioner  determines                                                               
there is  some public  interest in not  keeping it.  It's usually                                                               
not a  reason related  to topography,  but more  of it's  a place                                                               
where  you  wouldn't  want  to  have  public  access.  Often  the                                                               
division's topography charts are  not accurate enough to indicate                                                               
where the shore can be accessed.                                                                                                
                                                                                                                                
4:37:02 PM                                                                                                                    
SENATOR STEDMAN asked  if the intent of an easement  is to insure                                                               
that the public has access to the navigable waters.                                                                             
                                                                                                                                
MR.  MYLIUS replied  that is  correct. The  "to and  along" means                                                               
providing access to the waters and  the ability to move along the                                                               
shoreline. One of the reasons for  the upland easement is so that                                                               
at high tide people can still walk along the shore.                                                                             
                                                                                                                                
SENATOR  STEDMAN  asked  if  a  structure  can  be  built  in  an                                                               
easement.                                                                                                                       
                                                                                                                                
MR. MYLIUS  replied no, with  the exception of things  like docks                                                               
and boardwalks. You  can build a structure if  it doesn't prevent                                                               
the use of the easement.                                                                                                        
                                                                                                                                
SENATOR  STEDMAN  asked if  the  50  ft.  is in  regulation,  not                                                               
statute.                                                                                                                        
                                                                                                                                
MR. MYLIUS replied that is correct.                                                                                             
                                                                                                                                
SENATOR STEDMAN  asked what the  purpose is  of putting a  50 ft.                                                               
access easement across  a shoreline that can't  be transversed at                                                               
high tide due to terrain.                                                                                                       
                                                                                                                                
MR.  MYLIUS replied  that there  are  probably situations  where,                                                               
because of terrain, the access  is not usable, but the department                                                               
doesn't'  have  the  information  or  resources  to  field  check                                                               
whether the easement can be used or not.                                                                                        
                                                                                                                                
4:40:03 PM                                                                                                                    
SENATOR  STEDMAN  said  he  had a  hard  time  understanding  the                                                               
removal of private  property rights that doesn't  support the end                                                               
means of access to the public waterway.                                                                                         
                                                                                                                                
MR. MYLIUS explained  that when the state sells the  land, if the                                                               
easement is being  reserved, it is not taking  a private property                                                               
right, because that easement is considered in the appraisal.                                                                    
                                                                                                                                
4:41:06 PM                                                                                                                    
SENATOR STEDMAN  disagreed with that statement  especially in how                                                               
it related to  Southeast. He thought that very  few parcels could                                                               
be transversed at mean high tide versus walking down the beach.                                                                 
                                                                                                                                
MR. MYLIUS  replied that might  be true  of Southeast, but  he is                                                               
looking at  it from a  statewide perspective  and a lot  of other                                                               
areas,   especially  on   lakes  and   rivers,  have   accessible                                                               
shorelines - about 90 percent are usable.                                                                                       
                                                                                                                                
SENATOR  STEDMAN explained  that  he thought  that the  Southeast                                                               
Alaska type shoreline  went all the way up the  coast. He thought                                                               
Mr. Mylius'  comments were more  applicable to rivers  and lakes.                                                               
He wanted to know what purpose  having two adjacent 50 ft. access                                                               
easements served - one above and one below mean high tide.                                                                      
                                                                                                                                
4:46:34 PM                                                                                                                    
MR. MYLIUS  replied that  the off  shore easement  doesn't exist,                                                               
because  in most  cases the  shore is  state-owned. The  division                                                               
doesn't get a lot of  requests for building within the easements,                                                               
because a lot of municipal  ordinances don't allow building there                                                               
anyhow.                                                                                                                         
                                                                                                                                
SENATOR  STEDMAN said  he  is  a little  confused  about why  the                                                               
public would need  a 100 ft. pedestrian easement  and why someone                                                               
should be subjected to dealing  with those easements if they have                                                               
property on  which the easement  is not specified. He  asked what                                                               
process someone would  go through in Southeast to be  able to use                                                               
a 50 ft. access easement.                                                                                                       
                                                                                                                                
MR.  MYLIUS replied  that he  would apply  for a  vacation of  an                                                               
easement  to  DNR  and  possibly   through  the  local  municipal                                                               
platting board, as well.                                                                                                        
                                                                                                                                
CHAIR  WAGONER  commented if  this  is  a problem  in  Southeast,                                                               
perhaps the committee should look at changing it.                                                                               
                                                                                                                                
4:49:13 PM                                                                                                                    
SENATOR  STEDMAN commented  that  people don't  apply for  relief                                                               
because they  ignore it and  the state doesn't enforce  it anyhow                                                               
and agreed that maybe that issue should be looked at.                                                                           
                                                                                                                                
4:51:01 PM                                                                                                                    
SENATOR SEEKINS asked  Ms. Cunning to briefly  summarize what the                                                               
Submerged Lands  Act of 1953 did  and how that affects  the state                                                               
in terms of ownership.                                                                                                          
                                                                                                                                
MR. MYLIUS responded  that the purpose of the Act  was to confirm                                                               
that  all states  owned land  out to  the three-mile  limit. When                                                               
Alaska became  a state  in 1959, the  Statehood Act  confirmed it                                                               
specifically.                                                                                                                   
                                                                                                                                
4:54:01 PM                                                                                                                    
SENATOR SEEKINS said he thought  that ownership included not just                                                               
the land underneath  the submerged lands, but  also everything in                                                               
the water column.                                                                                                               
                                                                                                                                
MS. CUNNING  replied that  was correct,  although there  are some                                                               
exceptions. If there were pre-statehood  withdrawals in which the                                                               
intent of the  withdrawal was to defeat the state's  title and to                                                               
include federal management of resources  - that had to be clearly                                                               
laid out - as in the Dinkum Sands case.                                                                                         
                                                                                                                                
MR. MYLIUS  added that the issue  is being dealt with  in Glacier                                                               
Bay and the Southeast tidelands, as well.                                                                                       
                                                                                                                                
SENATOR  SEEKINS  asked if  the  federal  government had  clouded                                                               
title to  navigable waters  by making them  subject to  the Quiet                                                               
Title Act in ANILCA.                                                                                                            
                                                                                                                                
4:54:56 PM                                                                                                                    
MS.  CUNNING replied  that she  has heard  that argument  and the                                                               
Ninth Circuit Court  decision in Katie John was  very specific in                                                               
its wording:                                                                                                                    
                                                                                                                                
     That the  federal priority under ANILCA,  Title 8, only                                                                    
     can  be applied  to those  waters in  which there  is a                                                                    
     federal  reserved  water  right  -  both  those  waters                                                                    
     within the  federal enclave  and those  waters adjacent                                                                    
     to  the  federal unit  where  there  is  a claim  of  a                                                                    
     federal reserved  water right. Navigability -  the term                                                                    
     navigable was used in that  phrase in the Ninth Circuit                                                                    
     Court's  final decision....I  think  you  all know  the                                                                    
     state just  filed suit on  the issue of the  failure of                                                                    
     the federal agencies to actually  apply for the federal                                                                    
     reserve  waters rights,  particularly  in those  waters                                                                    
     outside the units,  which would be an  expansion of the                                                                    
     public lands definition by  the Ninth Circuit Court....                                                                    
     If they  are going  to file  for federal  reserve water                                                                    
     rights, they have  to do that through  a state process.                                                                    
     Since they have not  applied through the state process,                                                                    
     we can't  know where the  beginning and end  points are                                                                    
     in those  waters that are  outside the units  that they                                                                    
     are claiming they have this jurisdiction.                                                                                  
                                                                                                                                
     I would  like to clarify  one other piece,  though, and                                                                    
     that is  we frequently  see kind of  a misnomer  in the                                                                    
     press....  The federal  court and  the federal  law did                                                                    
     not  grant the  federal  agencies management  authority                                                                    
     over fish  and wildlife. That  is a right of  the state                                                                    
     that  was not  affected  by ANILCA.  It's  in 13.14  of                                                                    
     ANILCA....  All  that  the   federal  authority  is  is                                                                    
     related  to   the  allocation  to  provide   a  federal                                                                    
     priority  to the  federally eligible  subsistence user.                                                                    
     Allocation  of  harvest take  is  a  regulatory tool  -                                                                    
     that's just a tool of  management. It is not the actual                                                                    
     management and  responsibility for the  conservation of                                                                    
     species. That is retained by the state.                                                                                    
                                                                                                                                
4:57:39 PM                                                                                                                    
SENATOR SEEKINS asked if the state ever asserted the title and                                                                  
management issue.                                                                                                               
                                                                                                                                
MS. CUNNING replied yes in numerous places.                                                                                     
                                                                                                                                
     Your  question is  very broad.  When we  are reviewing,                                                                    
     for  example,  the  federal  land  management  planning                                                                    
     doctrines,  we  are  very  much   on  guard  that  they                                                                    
     recognize   our   ownership   and   jurisdiction   over                                                                    
     navigable  waters  - both  within  and  without of  the                                                                    
     units  - that  we  manage those  -  boating access  and                                                                    
     other activities on those. So,  we monitor all of those                                                                    
     plans  to  be  sure  that's  appropriately  recognized.                                                                    
     There are some pre-statehood  withdrawals that are very                                                                    
     difficult and in  those cases where they  don't want to                                                                    
     agree with  us on  our management and  ownership, we've                                                                    
     asked  that they  at least  recognize that  there is  a                                                                    
     dispute  in  their  management  plan.  That  helps  the                                                                    
     public know  that the sovereigns are  arguing about it.                                                                    
     It makes  it a little  clearer. But we don't  ever give                                                                    
     up  our ownership  and management  position  in any  of                                                                    
     those.                                                                                                                     
                                                                                                                                
     In the  case of the federal  subsistence program, based                                                                    
     on  the  federal  reserve  water  rights...that  is  an                                                                    
     uncomfortable situation  for everybody.  It's difficult                                                                    
     to work through.  As long as they  are exercising their                                                                    
     responsibility  under  the  federal court  decision  to                                                                    
     assure that federal subsistence  priority - that's what                                                                    
     the court gave them that authority to do.                                                                                  
                                                                                                                                
4:59:33 PM                                                                                                                    
SENATOR SEEKINS said he understands  that as a citizen of Alaska,                                                               
he is a beneficiary of the  public lands and waters trust, but as                                                               
a legislator, he  is also a trustee. He asked  if that confers on                                                               
him responsibilities.                                                                                                           
                                                                                                                                
MS. CUNNING replied that is her interpretation.                                                                                 
                                                                                                                                
5:00:27 PM                                                                                                                    
CHAIR WAGONER asked how many acres of the original 102.5 million                                                                
acre allotment remain to be selected by the state.                                                                              
                                                                                                                                
MS.  CUNNING  responded that  BLM  is  expediting the  conveyance                                                               
process to both the corporations and  to the state so they can be                                                               
done by 2009.  It is actually providing funds to  DNR to react to                                                               
them.                                                                                                                           
                                                                                                                                
MR. MYLIUS added that all  the statehood grants, including Mental                                                               
Health,  come  to about  105  million  acres  and the  state  has                                                               
received  either  a patent  or  tentative  approval to  about  90                                                               
million  acres.  Of  that,  about  46  million  acres  are  in  a                                                               
tentative  approval status,  which  means the  state has  working                                                               
title to  it, but it's  not surveyed  and doesn't have  a patent.                                                               
The  major  cost of  the  accelerated  land transfer  process  is                                                               
associated with  surveying that 44  million acres  plus conveying                                                               
to the state the remaining 15 million acres and surveying that.                                                                 
                                                                                                                                
5:03:40 PM                                                                                                                    
MS.  CUNNING opined  that  both  DNR and  ADF&G  deal with  these                                                               
complex land issues  and it has required  extensive research into                                                               
land records  to figure out  who owns  what. The problem  is that                                                               
Alaska is  a non-recording state,  which means that a  person who                                                               
transfers property  has no requirement for  recording. This makes                                                               
it  very difficult  for people  who are  trying to  research land                                                               
status and  answer questions.  She gave one  example of  a person                                                               
who owned land,  never recorded it, he died, it's  been passed to                                                               
his  wife, his  wife remarried,  the land  was given  away in  an                                                               
inheritance,  the heir  that received  it  lost it  in a  divorce                                                               
battle  and it's  gone through  five different  people and  never                                                               
been recorded.  She said  it would  be helpful  at some  point to                                                               
require people to record their land transactions.                                                                               
                                                                                                                                
CHAIR  WAGONER responded  that he  hadn't  heard that  suggestion                                                               
before and  indicated it  was worth  considering. He  thanked Ms.                                                               
Cunning for her excellent presentation  and adjourned the meeting                                                               
at 5:05:45 PM.                                                                                                                
                                                                                                                                
                                                                                                                                

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