Legislature(1997 - 1998)
01/30/1998 03:35 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE RESOURCES COMMITTEE
January 30, 1998
3:35 P.M.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Lyda Green, Vice Chairman
Senator Bert Sharp
MEMBERS ABSENT
Senator Loren Leman
Senator Robin Taylor
Senator John Torgerson
Senator Georgianna Lincoln
COMMITTEE CALENDAR
Waterway Management Issues
WITNESS REGISTER
THE FOLLOWING PEOPLE TESTIFIED ON WATERWAY MANAGEMENT ISSUES:
Mr. Dane Larsen, Staff Auditor
Legislative Audit Division
P.O. Box 113200
Juneau, AK 99811-3200
Mr. Mike Marsh, Staff Auditor
Legislative Audit Division
P.O. Box 113200
Juneau, AK 99811-3200
Commissioner John Shively
Department of Natural Resources
400 Willoughby Ave.
Juneau, AK 99801-1724
Ms. Jane Angvik, Director
Division of Lands
3601 C St., Suite 1122
Anchorage, AK 99503-5947
Ms. Tina Cunning, ANILCA Program Manager
Department of Fish and Game
P.O. Box 25526
Juneau, AK 99802-5526
Mr. Rob Bosworth, Deputy Commissioner
Department of Fish and Game
P.O. Box 25526
Juneau, AK 99802-5526
Mr. Dick Mylius
Resource Assessment & Development
Department of Natural Resources
3601 C Street, Ste 1110
Anchorage, AK 99503-5947
Ms. Joanne Grace, Assistant Attorney General
Department of Law
1031 W 4th Ave., Suite 200
Anchorage, AK 99501-1994
Ms. Robin Willis
Access Defense Manager
Department of Fish and Game
333 Raspberry Rd.
Anchorage, AK 99518-1599
ACTION NARRATIVE
TAPE 98-3, SIDE A
Number 001
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:35 p.m. and announced a briefing on waterway management
issues. He said they would start with the Department of Legislative
Audit.
MR. DANE LARSEN, Staff Auditor, said that after several decades of
statehood the legislature is understandably concerned about whether
any real progress has been made in settling the public's rights
concerning Alaska's waterways; and the short answer is that it's a
very slow journey and we've barely just begun. Alaska has 17,000
identified rivers and streams and an estimated 2 million lakes
larger than 50 acres. Only a handful of these bodies have been
addressed so far. They completed a review of various waterway
management issues last March for fiscal years 96 and 97,
including the Departments of Law, Natural Resources, and Fish and
Game. The objective of the audit was to evaluate the effectiveness
of the State's programs for resolving issues of ownership access
and resource allocations concerning public waterways. That audit
identified a number of areas where improvements could be made.
Some of the problems have been addressed, but they still have
concerns in four major areas. Those areas are first: public access
easements under ANCSA, 17 (b) which are public routes across
private land; second, the allocation of the State's water supply
among competing users (traditional water rights), third, federal
reserved water rights (the Babbit Case raised this issue), and
fourth, the ownership of submerged land, which involves a legal
determination as to which land beneath a particular waterway is
owned by the State.
MR. MIKE MARSH, Staff Auditor, said his first area of concern is
the public access easements under section 17 (b) of ANCSA. They
provide legal access between waterways, public land, and other
parts of the State's transportation network, such as rural airports
maintained by DOT. These easements arise during a BLM process for
conveying ANCSA land selections, he explained. BLM writes the
State a letter concerning each proposed conveyance and gives the
State, specifically DNR and Fish and Game, the opportunity to
request any easements they feel are necessary for public access.
Though these easements are meant to assure public access to public
lands, BLM's process is largely insulated from the public. There
is little input other than from government agencies and the
affected land owner. The report recommends ways to facilitate
input from citizen groups and people who live and work in the area
involving the easement. BLM estimates there 3,500 of these
easements in Alaska and less than 5 percent are marked on the
ground with any sort of signs.
Federal regulations establish the easements at only 25 - 60 ft. in
width depending on the type of transportation involved. Even using
the global positioning satellite system (G.P.S.), it would be
difficult for the average user to accurately determine an unmarked,
abstractly determined line on the ground when it's only 60 ft. wide
at most. G.P.S. accuracy on a predictable, consistent basis is
plus or minus 300 ft. Information containing the location of 17
(b) easements cannot be obtained from commercially available
publications. The average recreational user would need to research
obscure legal materials kept at government offices. So, the public
would be unlikely to use them at all. An unpublicized, unmarked
easement is in effect no easement at all. Some 17 (b) easements
are subject to termination by BLM if there is no evidence of public
use by 2001.
Number 150
CHAIRMAN HALFORD asked if termination provisions came out of
federal law or negotiations with BLM in the recording of the
easements at the time of conveyance.
MR. MARSH replied that they come out of the federal regulation that
was enacted by the federal government pursuant to ANCSA.
CHAIRMAN HALFORD asked if ANCSA provided for limitations like that.
MR. MARSH replied that it didn't specifically, but when the federal
government enacted the regulations, they put that detail in.
CHAIRMAN HALFORD commented that maybe the State should be
challenging that very regulation.
MR. MARSH said that was a good question. They recommend that
various forms of State financial assistance be conditioned upon the
marking and maintenance of easements across land under the
recipient's control, like the dedication of land necessary for
schools, parks, streets, and drainage. An analogy would be the
requirement that businesses dedicate some of their parking lot
spaces to handicapped parking. Additionally, for State grants
related to land use, they suggest that compliance with easement
marking and maintenance be added to the list of items which private
CPA firms are required to verify under the State's single audit
act.
Another problem with the 17 (b) easements is prior to 1977, BLM
reserved easements that ran continuously along waterway shorelines.
Parties selecting affected tracts filed litigation challenging
those easements. However, these parties did not wish their ANCSA
conveyances delayed while awaiting the outcome. So most of them
entered into written agreements with BLM that had the special
condition that the conveyance would proceed on schedule as though
there were no disputes at all. Any easement found invalid by the
court would be vacated. In the event that a reserved easement was
found invalid, the land owner committed himself, in advance, to
substitute a replacement easement. In 1977, the federal court
found the easements in dispute to be invalid and in the 20 years
since that decision, some of the prevailing land owners have kept
their word, but a large number have not.
CHAIRMAN HALFORD asked what would replace an easement that was
found invalid along the shoreline of a river.
MR. MARSH replied that pursuant to the agreement, the landowners
agreed in advance that instead of waiting until the federal court
resolved this, they would agree to receive the land without cloud
on the title; and if the easements were found invalid, they would
automatically agree to an easement that was lesser in scope to be
a legal substitute.
CHAIRMAN HALFORD asked if the federal challenge was the degree of
easement, but it was still the same place.
MR. MARSH replied that the ones that were found to be forbidden
were continuous along the shore, but ones that were periodic along
the shore were still permissible. The essence of the federal case
was that BLM had impermissibly set aside too big an easement. It
was not consistent with ANCSA or ANILCA. Smaller, periodic
easements along a waterway were considered permissible.
CHAIRMAN HALFORD commented that an easement around a rapids for a
portage was fine, but a continuous easement down the whole river
was not.
MR. MARSH said that unfortunately neither BLM nor the State kept
track of the number of promised easements that were never provided
and this needs to be done without delay, because 17 (b) easement
issues will be finalized by 2001. The State needs to make a
conscious choice whether to hold land owners to their contracts or
let them slide.
Number 247
CHAIRMAN HALFORD asked if the contracts were a matter of public
record.
MR. LARSEN responded that they are public record. There are
contracts between villages and corporations which could be enforced
by the State as a third party.
CHAIRMAN HALFORD asked for an index of them.
Number 266
MR. MARSH said if the State decides to enforce its rights to these
promised easements, their report details a variety of legal
remedies the State can pursue.
On the topic of water allocation, Alaska has a small population and
a third of the nation's fresh water. Our current approach simply
assumes that we have an unlimited supply of water. However, the
availability of water controls the development of other resources
and this assumption will not be valid throughout the next century.
Our water statutes already recognize the need for the State to
regulate the export of Alaska's fresh water. The interest for
exporting water from Alaska to other states and countries appears
to be increasing. We have put very little effort to even determine
the amount of fresh water that is still available in our waterways.
The technical way for monitoring this is known as gauging stations;
but less than one percent of the State's waterways have this
equipment. He thought the State could condition the water rights
of large users upon the installation of gauging stations at their
own expense.
The U.S. Geological has divided our State into six hydrological
subregions, each of which focuses on the area's main river systems.
The legislature enacted a procedure which would allow the court
system to simultaneously determine everybody's water rights for an
entire subregion in a single case. This procedure is called a
basin wide water rights adjudication. Although the preceding is
conducted in the State court system, the rights subject to
adjudication explicitly include federal reserve water rights. This
is also called a general water adjudication and has had
considerable use in state courts of drier areas in the lower 48.
Its value was greatly promoted when Congress passed a statute in
1952 giving its consent to have its water rights decided in such
state court proceedings. Alaska has never used the basin wide
adjudication procedure because the Department of Law has
traditionally assumed it narrowly applies to only one specific
water related issue - the quantities available for consumption by
competing users. There has been little actual conflict to justify
such a proceeding. Additionally, federal reserve water rights
only recently acquired their unexpected importance to the
management of fisheries.
They feel the Department of Law is underestimating the
possibilities for basin wide adjudications. The existence of
federal reserve water rights now determines how responsibilities
will be divided up between the state and federal governments when
managing important fisheries. Until the Babbit Case in 1995, the
federal reserve water rights were used to allocate physical
quantities of water between the federal government and users
competing with the federal government. The Babbit decision is
unique in that it is used to define the geographical scope of
federal management authority. DNR estimates that just under half
of the State consists of federal land that may have those rights.
The State's current approach is to wait for the federal subsistence
board to announce where it claims such rights exist, but there is
another possibility, the basin wide adjudication.
CHAIRMAN HALFORD asked if the feds have just ten percent of a water
right and the State has all the rest, does that give the federal
government the federal reserve water right in a management sense.
MR. MARSH answered that is an undecided question, because we have
never before seen a concept that has used water quantity being
spread geographically to define a territory that is used for
administering rights. This is an opportunity for us, he
emphasized.
Navigability or fighting over the title of submerged land is
another topic. As a general rule land underlying a waterway is
owned by the State, if the waterway was navigable at the time of
Statehood. Federal case law considers a waterway to have been
navigable at statehood if it was or could have been used for
commerce. The current State's approach is to file an action to
quiet title in the federal court. However, each of these suites
involves only a few water bodies out of the thousands that could
probably meet the criteria for navigability. The State selects
these water bodies for test cases with the hope that a victory will
serve as a valuable precedent in eventual negotiations with the
federal government over other waterways. Unfortunately, the
federal government has taken a never surrender approach even in
instances where BLM has already conceded navigability on an
administrative level. Only about a dozen water bodies are the
subject of quiet title actions. Water adjudications whether for
one river or an entire hydrologic basin span 10 - 20 years, entire
administrations at both the state and federal levels. He used the
Dinkum Sands Case that was decided less than a year ago by the U.S.
Supreme Court as an example. We fought the federal government for
18 years and walked away empty handed.
The factual issue of waterway navigability should be subject to
determination in the State courts as part of an adjudication of
water related issues for an entire system of rivers. Once the
factual issue of navigability has been decided in a state's favor,
you can treat the underlying land as state owned. Anybody can test
the State's ownership and the state court's factual determination
should have binding effect in later proceedings to directly quiet
title in the federal court.
The affected state departments have expressed doubts that the
courts would allow this suggested approach. But the bottom line is
that it simply remains an untried matter of first impression. No
one seems to dispute the basic underpinnings of such an approach.
Both a State statute and the U.S. Supreme Court provide clear legal
authority for Alaska to use the basin wide adjudication process, if
it wants to do it. Both provide clear legal authority for Alaska
to join the federal government as a party to a basin wide
adjudication. Both provide clear legal authority for Alaska to
determine federal reserve water rights in the context of a basin
wide adjudication. Except in the context of an action to directly
quiet title against the federal government, state courts have the
authority to routinely make factual findings of navigability to
resolve property disputes. State statutes and regulations make
factual findings of navigability pertinent to some of the water
rights issues subject to basin wide adjudications. These findings
may have binding affect against the federal government and any
later litigation to directly quiet title in a federal court.
They see resolution of the State's waterway issues as a very long-term project
for finalizing the allocation for three of its most important
natural resources - water, fish, and submerged land minerals.
Number 483
SENATOR LINCOLN asked what is long-term in his view.
MR. MARSH replied with basin wide adjudications they are talking
about litigation that traditionally in the lower 48 has taken
decades. It may take 50 years before all water rights of all
rivers in the State are decided.
SENATOR LINCOLN asked if he meant litigation using the three
categories of water, fish, and submerged minerals.
MR. MARSH answered specifically the water related issues. It's
hard to predict when the State will decide the submerged land
issues and fishery issues are extremely controversial.
Although the Alaska Supreme Court has adopted the Public Trust
Doctrine for Alaska, Mr. Marsh said, debate continues as to whether
it imposes an affirmative duty to initiate legal action on waterway
issues or simply restricts the State's ability to convey property
out of the public domain. One position asserts that the State
incurs liability for violating the public trust if it fails to
aggressively pursue suits involving navigability and 17 (b)
easements. An opposing position asserts that State managers must
allocate their use of limited legal resources among a wide variety
of projects and the choice to pursue potential claims lie within
their executive discretion. After examining the interpretations of
the Alaska Supreme Court, they concluded that the Public Trust
Doctrine does not place the State under a duty to pursue every
potential claim for assertion of navigability or for a 17 (b)
easement. The number of possible claims is staggering. He noted
the provision in Title 38 which says, "an individual may institute
a civil action to recover damages for the failure of the State to
enforce its trust responsibilities to the people of the State."
Though the decision to pursue an individual case lies within
executive discretion, this statutory section may impose a duty on
the State to adopt some form of binding program to pursue issues
such as public access. This remains an untested question in Alaska
law.
Number 524
COMMISSIONER JOHN SHIVELY, Department of Natural Resources, said
they did respond in writing to some of the Legislative Auditor's
suggestions.
He agreed with the first conclusion that navigability decisions
were virtually ignored in FY 95 - 96. The legislature took the
money specifically out of his budget the first year he was
commissioner. At the time they indicated to the legislature what
the effect would be. There was then a specific appropriation for
navigability and they reorganized with Mr. Jim Culverson heading
this effort.
CHAIRMAN HALFORD said he wanted to come back to how they are doing
with all the money that has been appropriated.
COMMISSIONER SHIVELY said there is no question that not marking
easements causes problems and they have tried to develop easement
atlases and some of that information has been available to the
public. These were done with Exxon-Valdez Trust money; however,
they are expensive.
CHAIRMAN HALFORD asked if they have copies of the old ones.
COMMISSIONER SHIVELY said he didn't have any with him, but would
get them to him.
CHAIRMAN HALFORD asked if they are available to the public.
An unidentified speaker responded that they are available except
for Copper River which is out of print.
CHAIRMAN HALFORD noted that it was hard to look up the information
without an atlas.
COMMISSIONER SHIVELY said that is a problem, because the easements
themselves are actually reserved not to us, but to the federal
government. It's their management responsibility, but the federal
government has never seen fit to appropriate the money for it,
because it is a very expensive process.
TAPE 98-3, SIDE B
Number 001
MS. JANE ANGVIK, Director, Division of Lands, said that the atlases
are available in every library in the State and at all the public
information centers wherever the State has them.
COMMISSIONER SHIVELY added that one of the reasons they are out of
print is that they made a major distribution of them to public
places where the public could at least get at them. They gave them
to individuals until they were out of print, but they are still
available to look at.
He agreed with the conclusion that there's minimal long-term impact
to the State's piece meal approach to waterway litigation. They
are concerned about the fact that the federal government has not
been more cooperative in any of these things as he thought it would
be as much in their interest to resolve these issues as ours. But
he wouldn't play down the impact of what the State has done as in
the Gulkana decision which had a major impact on native land
conveyances. It completely changed how BLM handles those. It made
the State's ability to have the federal government declare certain
waterways navigable much more specific and much more generous
towards us than BLM's original approach.
Ultimately each river, if it's ever to be contested, will have to
be decided in a court, but for most part they haven't seen native
corporations litigating the navigability issues that have been made
by the federal government as a result of the Gulkana.
CHAIRMAN HALFORD asked if the State was now reviewing the
conveyances for navigability determinations.
MS. CUNNING, ANILCA Program Manager, answered that they and ADF&G
have reviewed all federal conveyances for navigability.
CHAIRMAN HALFORD asked if they had made any comments to BLM
requesting navigability where they were not showing it.
MS. CUNNING replied yes, it is jointly done as part of the
Interagency Map Team. They work together on the review of the
conveyances and then where they have sound data to support a
determination. It is signed off by Jane Angvik.
MR. ROB BOSWORTH, Deputy Commissioner, Department of Fish and Game,
said he would answer questions about how the two agencies work
together.
CHAIRMAN HALFORD said to assume the question is asked.
MS. ANGVIK inserted that the Navigability Team is composed of
members of ADF&G, Department of Law, and DNR. She chairs the group
which coordinates the annual work program for all three agencies
with respect to navigability and coordinates the funding of
projects which are funded discreetly into each of the three
agencies. They work as a unit on all navigability issues related
to review of conveyances, documents from the BLM, as well as
designing a strategy for the litigation issues that come up with
navigability and issues that occur where ADF&G has a more active
presence than DNR. They attempt to resolve management conflicts as
well as pursue litigation against the federal government.
CHAIRMAN HALFORD said one of the areas the audit talked about was
the lack of top level direction with regard to program
implementation and asked if Commissioner Shively agreed that it was
no longer a valid criticism.
COMMISSIONER SHIVELY answered that they disagreed with that,
referring to page 39. He didn't think they would expect
commissioners or deputy commissioners to be working on a river by
river, conveyance by conveyance review. Other very well qualified
people are doing that. The three commissioners have given
direction to the Navigability Team. He is perplexed by what the
auditors meant.
CHAIRMAN HALFORD said they would go back and ask them at another
time and asked what they could do to make the whole public process
with regard to easement identification better.
COMMISSIONER SHIVELY answered that it's his understanding that BLM
used to do an extensive notification of people and they got
virtually no response. They have changed as a matter of economy
the number of people they actually notify. He also understands
when they see an area of interest to a group or an individual, the
Team notifies them and works with them. He reiterated that the
process of review of these issues is a federal process.
CHAIRMAN HALFORD asked if the State could provide a public process.
COMMISSIONER SHIVELY replied that the State could provide a public
process, but he didn't know if it would have any effect. It would
have to take place within the federal time limits and public
processes come at some cost. They could hold public hearings, but
he wasn't sure that was the most productive use of people's time.
He thought getting knowledgeable people, particularly in ADF&G and
DNR, who have been out on the ground and seeing if they know of
anyone who might be interested is a more effective use of our
resources.
CHAIRMAN HALFORD asked if there are shore line easement agreements
that were negated by federal action being replaced by discontinuous
easements. He asked what process it would take for the State to
bring those agreements to something that was on the ground and into
an easement atlas.
COMMISSIONER SHIVELY described a process where they review the
files on a case by case basis to see who had the agreements, which
identifies which easements were invalidated by the court system,
and then look at who has given replacement easements, and suggest
to the BLM and other land owners that they do the rest. The
alternative would be to go to court and attempt to force an
agreement that he didn't think the State was a party to.
CHAIRMAN HALFORD asked if they could get an index of those in
question.
MR. CULBERSON, Navigability Team Member, replied that they have a
good understanding of where the villages with agreements are,
because they were conveyances that occurred in a specific period of
time while the litigation was pending. He said they would put
together an index for the Committee.
CHAIRMAN HALFORD asked him to explain how Gulkana was a victory.
Some of his constituents say the feds are trying to take over the
Gulkana River. It's a wild and scenic river, it's a State
navigable waterway; they look at regulations that they don't think
the feds should be able to put on their activity; and blame the
legislature for not doing anything about it.
COMMISSIONER SHIVELY responded that there are two different issues
here. The reason Gulkana was a victory is that we won submerged
lands which has an impact on native conveyances. The wild and
scenic issue is not unique to that area. Once navigability is
determined and the federal government is an adjacent land owner,
and more specifically when they have made some kind of restrictive
designation, we are going to continue to have difficulties. The
40-Mile is another example of that. Ultimately, some of those
issues may have to be litigated.
Number 532
MR. DICK MYLIUS, Division of Lands, said because of the Gulkana
court decision, there is no question or disagreement between BLM
and the State over the ownership of the bed of the river. They try
to work cooperatively with the State and have the ability to
influence things. In Gulkana's instance, they control all access
to the river. He said an issue with the Fish and Wildlife Service
is that there are assertions that they have certain authority to
manage things that happen on State lands, if they have an impact on
the resources that are on the federal uplands. There may be
litigation over this in the future.
CHAIRMAN HALFORD asked how long it took Gulkana to get through the
court system and what happened to the conveyance while it was in
court. Have we gone back to any of those conveyances to apply the
standard that was mandated by the court to the prior conveyances?
MR. CULVERSON answered that BLM had to get the native corporations
to voluntarily concur with making redeterminations of navigability.
Some of them have agreed to do that, but for the most part native
corporations don't find it in their best interests to authorize BLM
to go back and make new determinations.
CHAIRMAN HALFORD asked what are the advantages and disadvantages of
a native corporation to have it or not and how can the State carry
forward the enforcement of what we won in the Gulkana case as it
applies to the other rivers.
COMMISSIONER SHIVELY answered he thought the main reason the native
corporations would not want to reconvey land that has been conveyed
to them is control of the land.
CHAIRMAN HALFORD asked if they got credit for that.
COMMISSIONER SHIVELY replied that a navigable water involves
certain public access rights that they may not always be supportive
of.
CHAIRMAN HALFORD asked if they didn't expect to lose it in court
eventually anyway.
COMMISSIONER SHIVELY answered that they may or may not; it would
take an individual court decision for each case.
CHAIRMAN HALFORD asked if the State should be cleaning those up.
COMMISSIONER SHIVELY answered that he didn't think there were more
than one or two that were causing us serious concerns right now.
MR.CULVERSON added that they have had concerns in western Alaska,
particularly Quinhagak, where certain rivers were conveyed to the
corporation which is charging the public fees they feel they
shouldn't have to pay to use the rivers. They have a conveyance
that was made by the federal government and without a lawsuit there
is no way to recover title.
Another hot spot is the Karluk River on Kodiak Island that has fees
being charged, also. It's more complicated because it's in a
wildlife refuge and the impacts of a recent Supreme Court case on
the North Slope, the Dinkum Sands case. The court's decision was
that the State did not own the submerged lands within the refuge
because, under the statehood compact, we did not acquire rights to
the submerged lands even if they are navigable.
CHAIRMAN HALFORD said he is concerned that a group of people from
a community feels they have a legal right to tell someone to do
something and a group of people from somewhere else who feel they
don't have the legal right might use force and create long term
animosities.
COMMISSIONER SHIVELY said he knew that the main area of concern in
Kanaktuk was the lands have not been conveyed to the village and
the river is considered by them to be navigable. They realize the
State has the right to manage the gravel bars and allow camping on
them. The State's concern is how to manage that. The Karluk
situation came out of a refuge, but that in itself doesn't prevent
people from using the water. The undetermined issue is what
happens if they stop in the middle of the river or turn their canoe
over. Can someone step on the river bottom to save themselves or
to fish.
MR. MYLIUS added that Quinhagak is on the Arolik River and they
have found the best short term solution is education where they
work with both the native corporation and the public to understand
what clearly are their separate rights. They have published a
brochure stating clearly what the rights are.
Number 300
CHAIRMAN HALFORD said he thought it was their obligation to bring
some sort of closure to those kinds of questions. The State should
be dealing with the Gulkana precedent with regard to the previous
cases and actively applying it to future conveyance.
COMMISSIONER SHIVELY responded that he disagreed and said the State
has actively pushed the Gulkana decision for every conveyance that
has taken place since it was made. In terms of the ones that were
done previously, he agreed that they have not been aggressive.
That's a more difficult situation because each one of
those that isn't handled voluntarily can only be handled by
litigation.
CHAIRMAN HALFORD said he thought that was a very dangerous way to
establish precedence. If people believe they have a right to
protect something, they may use a degree of force beyond what they
would use if they didn't believe the law was behind them. He
thought they should be fixing problems in the order they are coming
up.
SENATOR GREEN said she thought part of the concern is that the
priority has not been established of addressing the cases Senator
Halford was talking about.
COMMISSIONER SHIVELY replied that he had been through several of
these situations and the Task Force has worked well in terms of
their recommendations. They have a lot of on ground knowledge.
COMMISSIONER SHIVELY announced the Superior Court decided today
lease sale 85 A was valid and the State had met all the
requirements, although he thought it would be appealed by the
Trustees for Alaska.
CHAIRMAN HALFORD asked if the State should be taking some kind of
action in court regarding the cancelable 17 (b) easements before
their 2001 deadline.
COMMISSIONER SHIVELY answered that he would have to go back and
read the regulation. He did not believe it called for automatic
cancellation of the easements. It is a regulatory provision that
was not in law that allows the BLM to vacate the easement if it
wasn't used. He thought the land owners themselves would have to
ask for that. He guessed they would be better looking at the
individual vacations which BLM has the ability to do whether they
have a 20 year period or not. If we don't agree these should be
vacated, we would litigate that. To his knowledge, we would not
see a wholesale vacation of easements in 2001.
CHAIRMAN HALFORD asked for a list of easements that would be
vacated on those grounds.
COMMISSIONER SHIVELY said he didn't think they could get a list
because the first thing they would have to say is that this
easement has not been used and, therefore, we ask BLM to vacate it.
CHAIRMAN HALFORD noted that not all of their easements have that
provision on it. Other easements do.
MR. CULVERSON responded said he thought it was being made into a
bigger issue than it really is. BLM has to individually vacate
these easements one at a time and they have to go through a public
process to do it. There's a much bigger savior out there and
that's the fact they can't terminate an easement that hasn't been
used if it provides the only access to public land. By definition,
in order to get reserved as a 17 (b) easement in the first place,
it would have to provide the only access to public land. The only
way they could use that provision is if some other easement, such
as a new public highway was built, and the 17 (b) easement was
there and wasn't being used.
MS. ROBIN WILLIS, Access Defense Manager, said they have started to
have a couple of terminations at this point. They have one in
Unalaska which accesses State waters. The corporation has asked
for a termination. It's at the end of a road and heavily used.
They have problems, because the corporation believes that access by
way of water from the city is sufficient and not too many people in
the community have a boat to access it.
Both she and Mr. Bill Hobbes who work on 17 (b) easements are a bit
concerned about 2001 in a sense that all the corporations have that
as a deadline and different federal agencies are managing them
depending on whether they are within refuges, parks, or forests.
They can within their own ranks try and do the termination process.
It may inundate those who are working on them.
CHAIRMAN HALFORD asked for a copy of the application and a brief
statement about how the process works. He asked if the State is
still vacating section line easements when transferring land to
municipalities.
COMMISSIONER SHIVELY said they vacate, but only if there's
alternative access. Mr. Culverson concurred.
CHAIRMAN HALFORD asked if ADF&G is involved in that process.
MR. CULVERSON replied yes, and said that they review all the
municipal entitlement conveyances.
CHAIRMAN HALFORD asked if there's a recreational access question.
Do they have an opportunity to say they would not like to have that
section line easement vacated?
MS. WILLIS said she wasn't aware of that happening in the
entitlements she has seen, but some may go through different people
in the Division of Habitat.
MR. CULVERSON added that it usually doesn't come up, because they
usually don't vacate those.
CHAIRMAN HALFORD asked what was happening with the whole Title
Section of DNR.
MS. ANGVIK replied that section is alive and well. They are
vigorously securing an additional 200 - 300 thousand acres of land
a year from the federal government. They review all the native
allotment conveyances, and are in the process of doing title
researches for things like oil and gas lease sales, timber sales
and mining issues. She said they are a little slower in responding
to requests from agencies than in the past because of staff
reductions.
SENATOR LINCOLN noted that the atlases they were referring to
earlier cost $17.24 and she hoped the Committee wasn't suggesting
having thousands of them produced just in case someone would come
in and ask for them. She thought printing just sections of the
atlas was more economical, especially since the atlases were in the
libraries and other public places.
CHAIRMAN HALFORD responded that he didn't think they should be
given out for free, but he didn't think they should be out of print
either.
MS. ANGVIK explained that Prince William Sound and Kodiak had been
digitized and were available on the web so people can look up the
very section they are interested in to see what the public
easements are.
MR. CULVERSON added that they do charge $10 per copy, because
people who want them are willing to pay and they go too fast if
they are free.
COMMISSIONER SHIVELY said the ultimate goal is to have the State
digitized so people can access information easier.
CHAIRMAN HALFORD said another way to do it would be to privatize it
and let someone make some money publishing and selling them.
COMMISSIONER SHIVELY said the information is public and there is
nothing the government is doing to prevent doing that.
SENATOR LINCOLN said she wanted a copy of Mr. Marsh's testimony.
She hoped, if the Commissioner was going to respond, that they
could have it before Wednesday's meeting.
COMMISSIONER SHIVELY said they had partially responded already.
CHAIRMAN HALFORD said there are two areas that permeate land access
and use. One of them is navigability water and the other is RS
2477. He said the Committee would be spending a lot of time on
these issues this year.
TAPE 98-4, SIDE A
Number 001
CHAIRMAN HALFORD said they would continue this hearing next
Wednesday and adjourned the meeting at 5:15 p.m.
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