Legislature(2005 - 2006)BUTROVICH 205
02/16/2005 03:30 PM Senate RESOURCES
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| Overview: Alaska Department of Fish and Game (adf&g) - Land and Water Access Rights and Wrongs by Tina Cunning, Special Assistant | |
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+ teleconferenced
= bill was previously heard/scheduled
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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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