HB 216-NAVIGABLE WATER; INTERFERENCE, DEFINITION  1:03:58 PM CO-CHAIR NAGEAK announced that the first order of business is HOUSE BILL NO. 216, "An Act relating to obstruction or interference with a person's free passage on or use of navigable water; and amending the definition of 'navigable water' under the Alaska Land Act." 1:04:41 PM CO-CHAIR TALERICO, as the sponsor, introduced HB 216. He said the bill relates to the obstruction or interference with a person's free passage on or use of navigable water and it would amend the definition of "navigable water" under the Alaska Land Act. He paraphrased from the following sponsor statement [original punctuation provided]: The "Submerged Lands Act of 1953" recognized each state as holding the title for any submerged land under a navigable waterway within the boundaries of each state. Under Alaska law, this term is defined in AC 38.05.965(14) and specifies a number of activities that can be conducted in a body of water in order to deem the body as navigable. While the list of activities in statute is lengthy, there are a few omissions that House Bill 216 will address. The first change that HB 216 will make is to insert additional activities to the definition of "navigable water" in order to ensure that there is no ambiguity. The bill includes the activities of harvesting of ice, military training, and operation of watercraft, hovercraft, snow machines and other vehicles, and hunting of any type of game. The second change is to allow all activities under this definition to be conducted "in any season" to ensure that these activities may be conducted whether the navigable body of water is thawed or frozen. The final change in HB 216 is to combine AS 38.05.128(a)(1) and (2), to eliminate redundancy in this section regarding a government official blocking access to navigable waters. 1:06:52 PM CO-CHAIR TALERICO stated he would like to offer a committee substitute (CS) that would eliminate the repeal of AS 38.05. It would instead combine AS 38.05.128(a)(1) and (2) and delete paragraph (2). This change would have the same effect as the repeal of (a)(1) by eliminating redundancy regarding obstructing the free passage on navigable waters. It would also add activities that are allowed to be conducted on navigable water in Alaska and would include the operation of all-terrain vehicles, the storage of vehicles, and the hunting of any form of game rather than just waterfowl and aquatic animals. CO-CHAIR TALERICO added that waterways are the highways for the people who live in his district, particularly in the northeast part of his district. He further noted he is thinking about the mining activities in Central and Chicken and how often those waterways are used during the winter to transport goods and get materials and equipment back and forth to the communities. A friend of his began using the Porcupine River as a transportation corridor with his great grandfather and he still lives there today, uses the river routinely, and utilizes the river more in the winter than in the summer. It is incredibly important to all of the folks in the outlying areas of his district to be able to utilize those river corridors all of the time. It is also important to him that the federal government continue to uphold those things that it passed many years ago that give Alaskans the right to utilize those navigable waterways on a year round basis. 1:08:55 PM JOSHUA BANKS, Staff, Representative David Talerico, Alaska State Legislature, brought the sponsor's proposed committee substitute to the attention of the committee. REPRESENTATIVE JOHNSON moved to adopt the proposed committee substitute (CS) for HB 216, Version 29-LS0995\E, Bullard, 3/14/16, as the working document. CO-CHAIR NAGEAK objected for discussion purposes. 1:10:10 PM REPRESENTATIVE JOSEPHSON asked what the state's modifying of the definition of "navigability" would mean relative to the federal government's preeminent role on that question. He further asked whether he is correct in understanding that the federal government has the final say over the definition. CO-CHAIR TALERICO replied that HB 216 would clarify, expand, and define the definition within Alaska statute. It would assert the state's right under the Submerged Lands Act, as well as the Statehood Compact, to have the ability to control and use those waterways as navigable for transportation. 1:11:16 PM CO-CHAIR NAGEAK removed his objection to adopting the proposed CS. There being no further objection, Version E was before the committee. 1:11:33 PM MR. BANKS provided a sectional analysis of the proposed CS. He explained that Section 1 of Version E would combine paragraphs (1) and (2) in AS 38.05.128(a). This change would serve the purpose of eliminating redundancy in regard to when a person can obstruct the free passage of another person on navigable water. The definition of navigable water in regard to Section 1 is the definition that is being changed in Section 2. The offense of obstructing the free passage of navigable water is a Class B misdemeanor under AS 38.05.128(f). The original version of the bill repealed (a)(1), but the sponsor feels that this change could have had the potential for misinterpretation and taken away the state's power. So instead of repealing (a)(1), Version E combines (a)(1) and (2), which basically has the same effect of eliminating the redundancy of this section. Section 2 would clarify the definition of navigable waters in two ways. First, Section 2 would make it so that any activity that is allowed on navigable waters can be done in any season. The changes in are to make clear what can be done on navigable waters. In regard to the language, "useful public purpose", on page 2, line 8, of Version E, the sponsor believes that all these activities would be allowed even if they were not listed, but the sponsor wants to make the law very clear with very specific activities that are allowed as a way to reduce the ambiguity of the law. Second, Section 2 would add new activities that can be conducted on navigable waters and those activities are harvesting of ice, state or federal military training, operation of boats or other watercraft, hovercraft, snow machines, all-terrain vehicles, other motorized or nonmotorized vehicles, storage of vehicles, and the hunting of any type of wild game. Currently, the law only specifies that a person may hunt for "waterfowl and aquatic animals"; this language would be deleted to allow for any type of hunting. 1:14:45 PM REPRESENTATIVE HERRON drew attention to the analysis by the Department of Natural Resources (DNR) for the fiscal note dated 3/14/16 [page 2, fourth and fifth sentences], which states, "Removing the open ended language and instead providing additional definitions of useful public purposes may create ambiguity about navigability ...." He noted the sponsor is saying there will not be ambiguity, but the fiscal note is saying there will. He requested an explanation. MR. BANKS replied he is aware of this and has clarified it with Legislative Legal and Research Services. He said the deletion of the language "but not limited to" is a drafting preference that Legislative Legal and Research Services is trying to move to. The language "including but not limited to" has the same effect as the language "including" and use of "including" does not limit the number of activities to just the activities that are stated in statute. It is just a drafting preference. REPRESENTATIVE HERRON noted there is a very high profile Alaska case "in front of the supremes" and said they are going to decide on it. For purposes of this bill, he asked what is navigable and who owns the land under the navigable waters. CO-CHAIR TALERICO responded the State of Alaska recently won a case for navigability and the ownership of the land underneath Moose Creek in the Fortymile Mining District on the Taylor Highway. That case was high profile although not as high profile as the case mentioned by Representative Herron. He offered his belief that it was the Bureau of Land Management that determined the state does not own the land underneath the waterways, but the courts decided the state does own the land underneath the waterways. That was a significant decision for the State of Alaska and was an inspiration behind HB 216. 1:18:09 PM REPRESENTATIVE SEATON asked whether the language in Section 2 regarding any season and useful purpose year round means that the waterways, spawning beds, and so forth would no longer be protected. Many waterways are only used during one season, he pointed out, such as when the waterway is frozen. CO-CHAIR TALERICO answered, "The intention of the bill is to be able to use those vehicles that you cannot traditionally use when the water is thawed when it's frozen." So, the intention was to be able to use other vehicles once the water is frozen. A prime example is trips between Fort Yukon and Central. Normally trips are done with snow machine and they have been done with highway vehicles when the river is frozen. That is the closest connection to a road for those folks and so they utilize that on a regular basis. Also, there is the new road going to Tanana and those folks are thinking they will have the potential for rubber tired vehicular access in winter when the river is frozen. The idea was to be able to use those vehicles when the season changes. Obviously, it is easy to use a motor boat on the upper Yukon and in the Porcupine usually from about the last week in May until the second week in September. The rest of the time requires a change in vehicles. So, the intention is to be able to utilize those vehicles that are available to those folks for transportation. Just because these are listed does not mean that dog sleds, skijoring, or other traditional uses are eliminated. REPRESENTATIVE SEATON urged the sponsor to investigate refining the bill to ensure it would not unintentionally specifically allow all-terrain vehicles to be used in these areas at times when it would not be appropriate, when it is not frozen, and therefore causing impact to other resources. CO-CHAIR TALERICO agreed to do so. He believed there are some areas in the state where the Alaska Department of Fish & Game (ADF&G) has the authority and ability to ban the use of any type of vehicle on a stream. Some areas have horsepower restrictions on boats and some areas prevent people from entering the streambed even on foot. He offered his belief that ADF&G will continue to monitor that very closely. 1:22:01 PM REPRESENTATIVE JOSEPHSON said the bill seems to expand the state's definition of navigable water. He asked whether the federal government might use this to its benefit and say that the state has a more expanded definition and use the doctrine of Choice of Law to piggyback on that definition in this statute and as a consequence have a broader definition of navigability. CO-CHAIR TALERICO replied he cannot speak for the federal government, but allowed it is a possibility. He said navigability is not an issue to him at all, rather the lack of the ability to be able to navigate on these waterways is his biggest fear. Whether the federal government would choose to do that he does not know, but by the federal government's most recent actions and attitude he would seriously doubt that the federal government would expand any definition of navigability. 1:23:22 PM CO-CHAIR NAGEAK opened public testimony on HB 216. MELVIN GROVE, Alaska Outdoor Access Alliance, testified in support of HB 216, saying it is critical that the state define what is navigable and expand the definition. Alaska's rivers and lakes are much easier to use in the winter than in the summer, he said, especially by snow machine or track vehicle. Anything that can be done to protect the access of Alaskans to their resources is critical because the federal government is more and more trying to limit that access or taking it away or making it more difficult. 1:26:13 PM SCOTT OGAN stated he is a former legislator and formerly worked for the Department of Natural Resources where he made determinations of navigability on state waters. He said he supports HB 216 and what the sponsor is trying to do, but has an issue with eliminating the words "but not limited to". He suggested an attorney's opinion be sought. He recounted that he was asked all the time whether a water was navigable. He had the delegated authority to make that determination and the determination for navigability that he made was for state ownership. Under the Submerged Lands Act and the Equal Footing Doctrine the state received the title to all the submerged lands at statehood. However, government did not define which ones were which, so the state has been in a 50-year battle since then, and, he added, his team successfully led an action to quiet title on the Mosquito Fork of the Fortymile. He said the other portion is navigability for Public Trust Doctrine access, and the changes in HB 216 address specifically Public Trust Doctrine navigability. Access to navigable waters is a State of Alaska constitutional right. Alaska's constitution is the only one in the U.S. with that protection; the founding fathers knew that these waters are the highways in undeveloped areas. MR. OGAN posited that it is important to state for the record that these proposed changes will not change what rivers and waterways are owned by the State of Alaska; that is determined by federal case law. The most recent case, PPL Montana, LLC v. Montana, 132 S.Ct. 1215 (2012), goes back to a case called "Daniel Ball," which is a Civil War era case where if a watercraft is used for commercial activities on a river that determines that it is navigable; it does not actually have to be tied to actual use, it could be susceptible to use for navigability. He recounted that his team tried to lower the bar - what is the smallest river in the state that was proved in court as being navigable. That was the Nation River, the river on which Mr. [John] Sturgeon was threatened with citations for using his watercraft, a craft that was banned by the National Park Service Code of Federal Regulations (CFRs). That issue is more of an issue of whether lands designated under the Alaska National Interest Lands Conservation Act (ANILCA) are affected by state sovereign waters. Mr. Ogan held that those are state sovereign because the state owned them before they were transferred to the National Park Service under ANILCA. He added that the National Park Service owns the uplands and clarified that that is the dispute, not whether the river is navigable. MR. OGAN suggested that the bill make it a Class A misdemeanor, rather than Class B, to block access to somebody's right to access a navigable water, because troopers are not as excited about prosecuting a Class B misdemeanor as they are a Class A, and he thinks it is a pretty serious violation. Also, he said, private landowners do not have the right to block someone who is using the waterbody on their land. He recounted that many of the disputes he got involved in were when the water was not navigable for title purposes but was navigable for public trust purposes under the statute, and the private property owner was saying the public could not go on the river and fish there because the property owner owned the submerged land. He said [DNR] concurred the private property owner owned the submerged land, but could not prevent the public from going on the river because under the delegated authority in the constitution to the legislature, the legislature has determined that water to be navigable in this definition of the statute and therefore the public has a right to access it. That is what is being dealt with under HB 246. 1:32:05 PM REPRESENTATIVE JOSEPHSON drew attention to the language "in any season" on page 2, line 7, of Version E. He noted there have been two main federal decisions in the last decade that have looked at navigability, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006). The state's rights argument was that [the federal government] was classifying too many things as navigable so the pushback on the federal government was that that is not navigable here, it does not have a physical nexus or attachment to some truly navigable water body. Here, at least as to seasons, it is being said that the state wants to grow the definition of navigability and, as far as he can tell, that does not line up with the arguments of the states in those two cases. He requested Mr. Ogan's thoughts. MR. OGAN replied that in his opinion and direct experience, the bill will not expand the ability to assert title navigability in federal court. Statute may say a water is navigable, but it is driven by federal case law because the federal government did convey the waters that were navigable and the test is the federal case law. The most recent case law that DNR hung its hat on when he was there was the PPL Montana, LLC. In that case the river was broken up into segments, with some segments of the river that were not navigable and some that were. It was ruled that the non-navigable segments do not belong to the state. That dispute was over a dam for generating power that was put in the river and the state argued that it was a state river so the company owed the state back rent for use of that dam. He said he does not know how that case worked out because his interest was in what sections were navigable and what were not. He related that on the morning of a summary judgement motion on DNR's Mosquito Fork case, the federal government came in and disclaimed 100 percent of the river that DNR was litigating. 1:35:14 PM WARREN OLSON said he has lived in Alaska for 55 years, is a member of the Citizens' Advisory Commission on Federal Areas (CACFA), and has been involved in water issues for 35 years. He cut his teeth on the "Gulkana case" that was extremely important to Alaska in regard to navigable waters in the state. He advised that the term "navigable waters" is a legal term. Each individual state determines its navigable waters standards and how wide the law is going to be in each state, how much influence it causes. So it is a total sovereign issue of each state to determine navigable waters within the state, so there are 50 different navigable water laws across the nation. In regard to Representative Josephson's remarks, he said the federal government really revolves around navigational servitude and reserve water rights. Navigational servitude has to do with someone putting a cable or some other obstruction across the waterway within the state. No matter how large or how small the obstruction, that will result in talking with the federal government because it will be restricting commerce and/or personal use of the waterway. Reserved water rights have to do with establishing refuges and/or inholdings of the federal government and those are determined at the time of establishing the inholdings or reserves. MR. OLSON addressed HB 216. He related that when attending CACFA meetings the departments would describe their work in regard to navigable water in Alaska and the presentations usually would be involved with summertime use. This particular case brought a question to his mind about the five or six months a year of wintertime use. Alaskans travel tens of thousands of miles on all waterways during the winter with all different types of modes of transportation. Additionally, personal use of those waterways in the wintertime is necessary to move equipment and so forth to lodges and/or mineral developments for springtime work. The purpose of [HB 216] is to elevate that particular portion of the year, when it is frozen, that has not been shown as an example of use of water for users in Alaska. 1:38:46 PM MR. OLSON offered several suggestions. He said there is a question of whether float planes are considered a navigable use. Regarding the language "landing and takeoff of aircraft" [original bill version, page 1, line 12, he urged it be specific and include "wheels, floats, and skis". He suggested that "four wheelers" be added [to page 1, line 13, in the original bill], because throughout the Interior and the highway system it is common in wintertime to see the utility work of four wheelers. He also urged that the words "but not limited to" remain in the bill to prevent the exclusion of any particular use. He said the strength of HB 216 is that each navigable water law throughout the country is unique to each state and he is a firm believer in naming specific uses so that when these convocations go between the federal government and the State of Alaska that Alaska's law stands right up and Alaska as a sovereign state has declared that these particular uses are a priority; there may be others that are practical as well. MR. OLSON said there are other areas that the state should take advantage of, such as basin-wide adjudication. This would assist the state in determining navigable water status, possibly in more urgent and quicker methods than are being used today. When referring to navigable water laws, a look must be taken at each state supreme court in respect to the state that decisions have come from. The state supreme court is the ultimate authority on navigable water across the United States. He thanked the sponsor for introducing the bill. 1:41:32 PM REPRESENTATIVE SEATON pointed out that Version E, Section 2, page 2, line 11, specifies all-terrain vehicles and this section also specifies in any season for any public purpose. He further noted that Section 2 applies to ponds and estuaries and he knows of people who have very large tired all-terrain vehicles that are great going through the mud and those people enjoy that recreation. He asked whether having this in statute would override regulations that are effect by ADF&G and whether there needs to be clarification in this regard. MR. OLSON answered that in the areas of conservation safety it would seem to him that the department that has authority in control and can establish restrictions against particular users. Today there are four wheel drives and street vehicles out on the ice, for example they are crossing the ice on Big Lake in Southcentral Alaska. 1:43:42 PM GARY STEVENS offered his strong support for HB 216. He said he is a member of the Alaska Outdoor Council, but is speaking on behalf of himself. The biggest issue for him is specifying that snow machines can be ridden in wintertime on frozen navigable waterways. He said he does not think the committee should be too concerned about federal law and what the federal government is going to decide as far as what is navigable. This is more about the allowed uses - what is being used on that waterway and when it is being used on that waterway. In regard to Representative Seaton's concerns, he said he is sure that laws currently on the books will cover anadromous species. 1:45:01 PM STEVE STRAIGHT urged the passage of HB 216. As a longtime Alaskan he said he finds it crazy that there needs to be discussion about the idea that there is a difference between summer use of rivers and winter use of rivers because it seems so logical. He said the reason he urges the bill be passed, whether in its original form or the CS, is that if the bill is not passed the legislature is leaving it to a judge to make this decision, which is not always the wisest place to develop or make law. He requested the committee put it in writing and get it right, because if the bill is not passed a judge could then rule that the legislature did not intend for there to be winter access on navigable waters. 1:47:24 PM CEEZAR MARTINSON testified in support of HB 216, saying it is a critical bill to pass for several reasons. First are the reasons stated by Mr. Straight and the other is that it is important for the State of Alaska to expand the definition of what is navigable waters and what can be used on navigable waters. In particular, the federal overreach that has been seen in Alaska with regard to the Sturgeon case and other cases where the National Park Service has denied Alaskans the ability to use equipment that is necessary to them to harvest resources. This bill is a first step for the legislature to assert state sovereignty and say navigable waters are a state issue and it is not the place of the federal government to come in and attack Alaska citizens with unnecessary and burdensome regulations that impact their ability to feed themselves and their families. 1:49:29 PM CHARLES LEAN stated he is speaking for himself. He said he is a member of CACFA and was a fisheries biologist for 40 years, so he has a great deal of experience in both winter and summer in Northwest Alaska. He said he is in favor of the bill and likes many facets of it. The uses that transferred navigability to the state, although they have changed somewhat, show that the rivers and navigable waters have not really changed much in that timespan and they still represent oftentimes the best route or the best means of transportation. Saying he is particularly interested in winter transportation, he pointed out that large rivers like the Yukon are highways in the winter. It is the side sloughs, straight shots, and what is shallow water in the summer that is frozen to the bottom in winter and that is what provides the most stable roadbed. Nome is in the thick of it with the Iditarod, Iron Dog, and other races. All of these things occur on the historic Iditarod Trail and the Iditarod Trail is a network of trails, not a single line, and it is the historic transportation route that the mail traveled in the winter. It goes all the way to Eagle and Bethel and north to Kotzebue; all those trails exist as a network and they are still in use. [Another example is that] many of the visitors in Nome for today's basketball game came via snow machine on those trails. Those trails transit park lands, fish and wildlife lands, and state lands and they make use of tidewater. The state owns out to three miles and it also owns internal waters; those are all part of the Navigable Waters Act and those trails make high use of the coastal waters of Alaska in the winter when they are frozen. He said he could speak in great detail about fisheries management and how to remediate any impacts that members are concerned about. There are villages in his region, such as Shishmaref, that still get their water from rivers and families travel on a weekly basis ten miles from town upriver to find good clean water in the form of ice that they bring back to subsist on for the rest of the week. Reiterating his support for the bill, he said it has a number of things he is grateful to see acknowledged. 1:54:19 PM THOMAS VADEN testified he is a lifelong Alaskan and is speaking to the trail system and roads in Eastern Alaska where he has a guiding operation. Right now between Nabesna and the White River he is freighting about 60,000 pounds with snow machines using several rivers and over very small navigable rivers that are frozen solid in the winter. That is the only way to get around, he said. It is a big help to his operation hauling in horse feed and the like. The village of Shushanna uses the Sushana River coming upstream from Northway or Tetlin Junction to supply people with fuel. The bill is very critical to any kind of operations in rural Alaska. Some of the trails go over glaciers and they are historic trails from the gold rush in the 1920s and 1930s, but most of those are harder now to navigate because the glaciers are receding. He said he still gets ice from rivers to support his operations, as do the residents of Shushanna, because there are no wells. He closed his testimony by stating his support for the bill. 1:56:23 PM STEVEN FLORY spoke in favor of the bill. He pointed out that many cabins and homes are located on tributaries. These waterways have been historical highways for generations of Alaskans, he said, long before all-terrain vehicles and snow machines. It is not a new issue, it is just the first time it is being addressed in state law. The bill is a simple and overdue solution to an oversight. He said he cannot speak enough in favor of HB 216. REPRESENTATIVE TARR inquired whether Mr. Flory has had any circumstances where he was prevented from travel on any navigable waters. MR. FLORY replied that the Knik Public Use Area was recently established by the legislature and there is a push by a small segment of people to limit the use in the wintertime. He came to Alaska 26 years ago and trapped in that area, getting around on the ice. Ice fishing and other activities go on in that area and certain groups have tried to limit that access. Another example has to do with a lake that he was trapping nearby and on which he was using permission from one of the property owners that abutted the lake. The submerged lands underneath the lake and to the high water mark belong to the state and he was trapping those areas. A person who did not want any trappers out there literally interfered and took his traps and the state prosecuted her for that. 1:59:16 PM CRAIG COMPEAU said he is a 55 year resident of Fairbanks and is testifying on behalf of himself and his family business. He held that the definition of navigable waters is that they provide a channel for commerce and transportation of people and goods. The definition does not say anything about the water condition, whether it is frozen, thawed, or muddy. Since the late 1950s his family has sold almost 20,000 snow machines, most of them to rural villages where they are used for hauling wood and water and dragging trees along the water. If those definitions are not commerce and transportation for the people of Alaska, then he does not know what is. He offered his strong support for the bill, saying these definitions need to be firmed up so people can use these waters as was intended, whether or not they are frozen. 2:01:01 PM KAREN GORDON thanked Representative Talerico for closing a loophole in this language by including winter use as well. She said there are those who would suggest that because it says water that it would not include winter use, but in Alaska there is significant wintertime use of navigable waters that are solid. She urged the bill be passed. 2:02:04 PM RICHARD BISHOP noted he lives in the Goldstream Valley area where trails and other access are an important part of people's daily lives. He said he supports HB 216 and while he has not seen the proposed committee substitute he thinks it is on the right track. Alaska's waterways are essential for access by Alaskans to the vast areas of the state - hiking trails, roads, or air fields - whether they are open water or frozen. He said he had mistakenly assumed that Alaskan waterways were considered navigable or legal public access when frozen, so he was surprised to learn otherwise. He also recently learned that federal agencies do not consider frozen waterways navigable, making the assurances that state waters are navigable all the more important. He said he supports the bill as the means to ensure that Alaska's waters are considered navigable and legal public access year around. MR. BISHOP recommended several amendments to clear up some of the text. Referring to the original version before him, he suggested that "or ice" be added on page 1, line 10, after "water" to make the intent more clear. On page 1, line 13, after the word ["vehicles"], he recommended adding "dog teams, pedestrian uses". He proposed that page 1, line 14, be rephrased to state "trapping, hunting, fishing, or other lawful public purposes and activities". Regarding the words "trapping" and "hunting", he held that those adequately cover the terms "waterfowl and aquatic animals" as well as other practices, such as moose hunting, for example, which is very common on the waterways. He urged the bill be passed to make it clear in statute that Alaska's frozen waters are considered navigable for public access. As to potential impacts to salmon spawning areas or other anadromous fish, he pointed out that there is already a statute regarding the protection of anadromous streams that is rigorously enforced. 2:05:41 PM JOHN STURGEON testified in support of HB 216, saying it should have been done long ago. He noted that in 2011 he filed a lawsuit against the federal government on navigability and on 1/20/16 it was heard by the U.S. Supreme Court. During the lawsuit the issue of uses of navigable water has come up in a form of whether dog sleds are allowed. Another issue was in regard to places like the Yukon River that have very large gravel bars that run for miles. The definition of navigable waters is ordinary high water to ordinary high water, so it does include the gravel bars in places like the Yukon and Susitna rivers. Four wheelers and other things used for moose hunting are allowed. The National Park Service has chased four wheelers off those gravel bars on the Yukon, so if his lawsuit is successful and the state retains its rightful title to the navigable waters, he wants to ensure that those uses are very clearly defined. 2:07:23 PM KENNY BARBER stated his 100 percent support of HB 216, explaining he is a trapper who uses these waterways. For almost 30 years he trapped using an M37, a rubber tired military vehicle. He added that he has never had a problem trapping on rivers. Another reason he supports the bill is that he thinks there is a lot of overreach by the federal government that is trying to stop people from using these waterways and he would like to see the state get the jump on the federal government. 2:08:37 PM CO-CHAIR TALERICO closed public testimony on HB 216 and opened committee discussion on the bill. REPRESENTATIVE HERRON suggested careful consideration be given to Representative Seaton's concern about having certain vehicles in salmon streams. For example, a vehicle being able to go through some streams at any time could cause damage. He said he would appreciate it if the committee could figure out some sort of an accommodation to the concern. REPRESENTATIVE SEATON said his reason for bringing this up is that subsequent law can override previous law, so there needs to be some recognition of that interplay. He stated he has not heard from the department as to how that interplay would go and whether the specification of all-terrain vehicles in HB 216 would have priority over previous law. He drew attention to [page 1, line 6, of Version E] which states that a person many not obstruct or interfere unless that obstruction or interference falls under the [four] conditions listed in the bill, the last condition being "authorized by the commissioner after reasonable public notice." He asked whether that is for a specific waterway or in general; for example whether it would cover estuaries in general or each specific [estuary]. 2:10:52 PM REPRESENTATIVE JOSEPHSON suggested the topic is more complicated than may be thought. For example, one witness, a CACFA board member, said that the only time the federal government intervenes is when there is some physical obstruction that interferes with interstate commerce or that sort of thing. He recounted an [1824] decision that he used to teach called Gibbons v. Ogden, 22 U.S. 1 (1824), where the U.S. Supreme Court, John Marshall, first said navigability is a federal area and there was not really any discussion of obstruction, although it did involve a dispute between New Jersey and New York over who controlled New York Harbor. So, there was not anything interfering with traffic other than some sort of fee, which he supposed could be the obstruction. REPRESENTATIVE JOSEPHSON, regarding Representative Seaton's concern, said the definition as he reads it seems to liberalize hunting. There are prohibitions on hunting when game is present in the water, he noted, but because there are exceptions to that he does not know whether the bill would impede on that. Regarding the access issue, he recalled that when he lived in the Bush the sloughs and rivers were unimpeded highways for vehicles of all sorts. He presumed that would not be changed and would be left alone; for example, no one was obstructing any through traffic between Aniak and Bethel that he saw. He remarked he has a lot more to learn. 2:13:23 PM CO-CHAIR TALERICO said HB 216 will be held over while his office obtains answers to the questions raised by the committee.