HB 216-NAVIGABLE WATER; INTERFERENCE, DEFINITION  3:41:40 PM CHAIR GIESSEL called the meeting back to order and announced that consideration of HB 216. [CSHB 216(RES), labeled 29- LS0995\N, was before the committee.] REPRESENTATIVE DAVID TALERICO, Alaska State Legislature, sponsor of HB 216, testified that this measure has to do with the state's navigable waters. The Submerged Lands Act of 1953 recognized each state as holding the title for any submerged land under a navigable waterway within its boundaries. This term is defined in AS 38.05.965 (14), which 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 is lengthy, there are a few omissions that HB 216 hopefully will address. He said the Submerged Lands Act, the Statehood Act, and the Alaska National Interest Lands Conservation Act (ANILCA) have provisions about the state's ability to use its waterways. He takes this seriously because our waterways provide commerce for some people and they provide recreation, exploration and subsistence, as well. Waterways in several of his communities are highways. 3:42:44 PM SENATOR WIELECHOWSKI joined the committee. REPRESENTATIVE TALERICO said he had conferred with the Department of Natural Resources (DNR) about an unambiguous definition, one that was a good enough so there would be no ambiguity about where Alaska stands on its waterways He noted that there was an amendment to consider. 3:44:39 PM SENATOR COGHILL moved Amendment 1. 29-LS0995\N.1 Bullard 4/13/16 AMENDMENT 1 OFFERED IN THE SENATE BY SENATOR COGHILL TO: CSHB 216(RES) Page 2, line 7, following "season": Insert ", whether in a frozen or liquid state," Page 2, lines 9 - 13: Delete "harvesting of ice, state or federal  military training, landing and takeoff of aircraft, operation of boats or other watercraft, hovercraft,  snow machines, all-terrain vehicles, and other  motorized or nonmotorized vehicles, storage of  vehicles, and [PUBLIC BOATING,] trapping, hunting [WATERFOWL AND AQUATIC ANIMALS]" Insert "landing and takeoff of aircraft, and public boating, trapping, hunting waterfowl and aquatic animals" SENATOR COGHILL explained that this amendment would "slim down" the definition, because of concerns that this definition would actually make it tougher for land dispositions within Alaska. It deletes the harvesting of ice and the nonmotorized vehicle storage and inserts landing and takeoff of aircraft, public boating, trapping, hunting, water fowl and aquatic animals. It also says water is navigable whether it's in the frozen or liquid state. He didn't want existing verbiage to create a problem for Alaska on land disposals or create places where people could hide things in case law. SENATOR STEDMAN objected for discussion and clarification. He liked the direction the amendment was going, but was concerned about how it would affect the southern coastal regions of the state. Some people who moved up here from the Lower 48 find airplane noise objectionable, and it seems like more restrictions have been put on airplanes for ingress and egress to peoples' properties. One way to restrict them is by using municipal planning ordinances. He wanted the "pecking order" to be clear about how this statute would mesh with municipal and city ordinances. SENATOR COGHILL referenced Alaska's Public Trust Doctrine and enjoyment of public waterways on public trust lands is pretty significant. So, they want to make sure planes have access on water and on frozen land. The language was meant to assure that the Public Trust Doctrine was upheld without creating more difficulties in disposal of public land in Alaska. 3:49:23 PM SENATOR STEDMAN said to put a finer point on it, planning departments or commissions take property rights away and it's a very sensitive subject when municipalities start stripping peoples' access rights. He wanted it clear what authority the state has over municipalities with this statute change. He wants to make it as difficult as possible for folks that showed up fairly recently to get away from where they live to come here and make it just like the place they left. He wanted a conversation on that issue. Then he removed his objection to adopting Amendment 1. 3:50:36 PM CHAD HUTCHINSON, staff to Senator John Coghill, Alaska State Legislature, said he had done research on this issue and there are multiple definitions of navigable waters depending on whether you are dealing with a federal or a state agency. For instance, "navigable waters" has a separate definition as it relates to the EPA and the Clean Water Act as opposed to what HB 216 is trying to do. There is a definition for "navigable servitude" as it relates to the commerce clause when a new channel is built, particularly as it pertains to the Coast Guard and the military. There is a definition of "navigable waters" under the Quiet Title Act, evidenced by the Sturgeon Case, and whether the determination can be made in federal district court, something the state has struggled with for years. Another case in the year 2000 tried to assert jurisdiction under the federal Quiet Title Act, and the federal court system basically said because they hadn't made a determination as to navigability yet, they could move to dismiss and the state would have to wait for some sort of legislative change from Congress, which is what they are attempting to do right now. HB 216 references the state Public Trust Doctrine, which is distinct from those other definitions. Every state's public trust doctrine is different, he explained, but they have three common elements: they handle commerce and focus on navigability and on fisheries. Those are the three things that are held in trust for the beneficiaries. The trustees are the legislative branch and they make a determination as to what they consider to be important to be held in trust for the public. In this case, the existing statute says that float planes and aircraft are important. The Public Trust Doctrine has multiple definitions depending on what the state deems to be important: ie, cutting ice, bathing, and swimming, on an open beach. The determination has been made that there is a public interest in maintaining some sort of access into remote areas of Alaska for float planes and that is why it is included in the current definition. MR. HUTCHINSON said expanding the Public Trust Doctrine too much or adding multiple definitions can adversely affect private property interests in the surrounding adjacent areas. For state land disposals they have to fit into the statutory definition of allowable uses. Depending on what region you are in in Alaska, aircraft have a significant influence for just getting in and out of a community. The amendment is balanced to assure the adjacent private property owners' interest isn't damaged versus the sponsor's intent of having some sort of analysis as it relates to frozen water conditions. SENATOR STEDMAN said his district doesn't have the ice issues that people in the north have. When water freezes over here people don't put skis on planes; they just don't fly. But they do fly into bays to drop off and pick up people from the beach, from their home on the water front, or from a public easement on the beach. That type of ingress/egress is his concern in his district. It is a very sensitive topic, because it infuriates Alaskans when people come up here and want to shut down access because they don't like propeller noise for three minutes. He wants to protect the rights that Alaskans have to access their property as much as absolutely possible and not be interfered with by people paddling around in some "non-motorized gizmo." He wanted a clearer definition of how this language change will interact with that policy. 3:57:49 PM SENATOR COGHILL said he totally agreed with Senator Stedman and that is why the measure talks specifically about landing and take-off of aircraft, public boating, trapping and hunting. CHAIR GIESSEL, finding no further questions, invited the DNR to testify. 3:58:16 PM ED FOGELS, Deputy Commissioner, Department of Natural Resources (DNR), said DNR deals with two navigability issues: one is fighting for state ownership of lands under navigable waters. They challenge the Bureau of Land Management any time a state land parcel is conveyed to make sure that navigable waters are identified, because those lands under navigable waters were already state-owned at statehood. Therefore, they shouldn't be part of Alaska's statehood land entitlement. He said HB 216 doesn't really affect that task, at all, because it focuses on the state's definition of navigability. But in looking at this bill, he saw perhaps some unintended consequences with impacts on private property, but the amendment addresses those concerns. SENATOR STEDMAN said he has had numerous conversations in his office on this subject over the years. A lot of state leases were transferred to most of the major Southeast communities several years ago and the regulatory environment that the state imposed was much more amenable to the public than when these leases were turned over to the municipalities. A lot of people were infuriated because property rights were inadvertently stripped away, and that is where they are stuck today. He wanted to know how this measure interacts on the municipal level with potential removal of property rights folks have under the state guidance. MR. FOGELS answered that this bill with the amendment won't have any impact on the status quo. If there is a body of water the state believes is navigable today under current law this amendment would ensure that definition would hold in all seasons and even if the body of water is frozen. The actual water body itself would still be accessible as it is today. MR. FOGELS explained that the state definition of navigability comes into play when the DNR conveys land to municipalities, because it can't convey ownership of navigable waters. These waters have to be identified and excluded from conveyance to the municipalities. They are retained in state ownership and easements would likely be reserved along those water bodies. This bill won't change that in any way. SENATOR STEDMAN gave him another example: Senator Wielechowski wants to go trout fishing and grabs his fly rod and wants to be picked up in front of his house or from a state easement; his concern is the restriction that may be imposed on him to have a plane come in and pick him up and take him trout fishing for the day or load his family's camping gear in a Beaver and go to some lake. This trend is very slow, but it is definitely in place, and he wants state statute to be as tight as possible to block it. "If they don't want to hear float planes, Southeast is not the place to live," Senator Stedman exclaimed. MR. FOGELS said this bill would not add further restrictions. SENATOR STEDMAN said he recognizes that, but he wanted to know if this bill interacts with any municipal ordinances when some municipalities may not want airplane noise before 9 a.m. in after 5 p.m. 4:05:22 PM MR. FOGELS responded that the intent of the navigability definition is to define where state ownership is among municipal, private, and state lands, and it was beyond his level of expertise to know if the state of Alaska and a municipality disagree on how float planes should be regulated on a typical pond. But typically, the state would defer to the local government to manage that activity if push came to shove. SENATOR STEDMAN removed his objection to adopting the amendment, but he wanted the opportunity for his staff to work on the bill for a day to make sure they leave no stone unturned to keep property rights embedded with Alaskans who own the property. SENATOR COSTELLO said she had identified a drafting error on page 1, line 12, where the number should be 2. After some discussion, it was decided that there was no error. CHAIR GIESSEL opened public comment. 4:08:43 PM RICHARD BISHOP, representing himself, Fairbanks, Alaska, supported HB 216. One thing caught his attention on page 1, line 8: Section 1(a)(1) authorized by law or regulation or by  a permit issued by a federal or [AGENCY AND A] state agency; He said the Sturgeon case has been very prominent in the news. The Supreme Court told the Ninth Circuit Court to go back to the drawing board and get it right. That promises ongoing court deliberation over some period of time. The National Park Service issued a news release saying this hadn't really changed anything and that they would continue business as usual in administering lands. That raises the question of what sort of regulations or permits they may apply during the course of further court deliberations on the question of the extent of their authority over state navigable waters. He said it is a very dangerous precedent to have state statute that says "authorized by...a permit issued by the federal government." It would be appropriate to qualify that as a "valid federal permit" or simply leave reference to "federal permit" out. In political gamesmanship in the legal arena it would be entirely inappropriate for the state to tacitly concede that any federal permit without qualification would be cause for restricting the use of state navigable waters. Wording should be changed to avoid that implication. Otherwise he supports the bill and the amendment. 4:12:20 PM ROD ARNO, Executive Director, Alaska Outdoor Council, Juneau, Alaska, supported HB 216. He also supported Senator Coghill's amendment. He had the same concerns as Mr. Bishop about having some qualifier on the federal permitting. CHAIR GIESSEL, finding no further testimony, closed public comment on HB 216. Finding no further objection, she said Amendment 1 is adopted. SENATOR COGHILL asked the sponsor to respond to "authorized by law or by a permit". REPRESENTATIVE TALERICO said he talked about Alaska's potential to develop hydroelectric projects in the future, and wanted to "massage" a provision giving the state the ability to work with the federal government on permitting those projects. He had discussed inserting "valid" in front of "permit", but he was open to suggestions. He shared Senator Stedman's sentiments and would strengthen that language if possible. 4:15:39 PM MR. HUTCHINSON said he talked with Mr. Bishop earlier today, and the Sturgeon case in some respects is a slightly different issue as it relates to state statute and the state Public Trust Doctrine. The Sturgeon issue is on federal navigability on the Nation River in the Yukon. It has been sent back to the Ninth Circuit with instructions, but the actual specifics of the case have not been determined. He understands the possible confusion, which is worthy of further consideration. CHAIR GIESSEL announced that she would hold HB 216 in committee to allow the opportunity to work on it.