Legislature(2023 - 2024)BARNES 124
04/14/2023 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| HB120 | |
| HB104 | |
| Big Game Commercial Services Board | |
| HB98 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 120 | TELECONFERENCED | |
| += | HB 104 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | HB 98 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 98-STATE OWNERSHIP OF SUBMERGED LAND
2:03:16 PM
CHAIR MCKAY announced that the final order of business would be
HOUSE BILL NO. 98, "An Act relating to state ownership of
submerged land underlying navigable water within the boundaries
of and adjacent to federal areas; and providing for an effective
date."
2:03:54 PM
REPRESENTATIVE SADDLER, as prime sponsor of HB 98, introduced
the bill to the committee. He said HB 98 seeks to end the
federal government's decades-long, unjust denial of a
fundamental right of Alaska's statehood: control of navigable
waters in Alaska and the lands beneath them, regardless of
whether they are in federal conservation units or not. He
continued to paraphrase from the document in the committee
packet, titled "HB 98 Sponsor Statement," which read as follows
[original punctuation provided]:
The 1959 Statehood Act transferred 105 million acres
of federal land to Alaska. In addition, the U.S.
Constitution and federal law also made the state owner
of navigable waters and the lands beneath them at the
instant of statehood.
Navigable waters are the lakes, rivers and streams
that supported, or could have supported, in-state
travel at the time of Statehood. They provide travel
routes, recreational access, hunting opportunities,
aquatic habitat and more, and represent corridors of
commercial travel critical to Alaska's prosperity. All
other states assumed undisputed control of such lands
and waters inside their borders upon joining the
Union.
Despite their obligation to do so, federal authorities
have dragged their heels in granting Alaska clear
title to its submerged lands. Instead, they've forced
the state to prove the navigability of waterways on a
case-by-case basis at a rate that would take hundreds
of years to conclude.
Enough is enough. HB 98 simply but confidently
declares Alaska's title to the beds of navigable
waters, including those within federal parks, wildlife
refuges, forests and other conservation units, unless
specifically withdrawn before Statehood. It identifies
and enumerates water bodies within federal areas in
which the State has a title interest. And it directs
the Department of Natural Resources to make progress
reports to the Legislature on its continuing effort to
delineate navigable waters in federal areas in Alaska.
The need for this bill is dramatized by the case of
Alaska hunter John Sturgeon, who fought and won two
U.S. Supreme Court decisions clarifying that Alaskans
have the right to use navigable waters inside federal
areas, and that federal regulations do not trump state
ownership, even in conservation units created by the
Alaska National Interest Lands Conservation Act in
1980.
REPRESENTATIVE SADDLER noted that the Tongass National Forest is
one of those federal forest units withdrawn before statehood.
2:07:03 PM
MARY JACKSON, Staff, Representative Dan Saddler, Alaska State
Legislature, on behalf of Representative Saddler, prime sponsor
of HB 98, pointed out that Section 9 is the detailed list of
waterways and comprises 83 of the bill's 88 pages. She turned
attention to the sectional analysis, titled "HB 98 Sectional
Analysis" [included in the committee packet], which read as
follows [original punctuation provided]:
Section 1 Amends uncodified law by adding a new
section to describe the purpose of the bill.
Section 2 Amends AS 38.04.062(a) to Page 2, line 1,
revises the phrase "at the time" to become "on the
date", and adds the clause ', including submerged land
underlying navigable water listed in AS in AS
38.04.063 that is within the boundaries of and
adjacent to federal areas.' Provides clarity that the
State owns all submerged lands under navigable from
the date of statehood, including lands within the
boundaries of sand adjacent to federal lands. AS
38.04.062(a) declares that 'the state owns all
submerged land underlying navigable water to which
title passed to the state at the time the state
achieved statehood under the equal footing doctrine or
43 U.S.C. 1301 - 1315 (Submerged Lands Act of 1953).'
Section 3 Amends AS 38.04.062(d) by (Page 2, line
10), revising the phrase "at the time" to become "on
the date", and adds the following sentence: 'The
commissioner shall conduct ongoing research to
identify submerged land underlying navigable water
within the boundaries of and adjacent to federal areas
to determine state title to corresponding submerged
land underlying navigable water.'
Section 4 amends AS 38.04.062(c) by revising the
phrase "at the time" to become "on the date".
Section 5 amends AS 38.04.062(d) by referencing the
list of navigable waters described fully in new AS
38.04.063 and revises the phrase "at the time" to
become "on the date".
Section 6 - Amends AS 38.04.062(e) by inserting the
clause '(b) or (c) of (new section 3 and 4).'
Subsection (e) operates as a disclaimer for
determinations of navigability by the DNR
commissioner, providing that they do not create an
interest in real property, may not be recorded, and do
not constitute final agency action. Because the
proposed edits to AS 38.04.062 create new obligations
for the DNR commissioner concerning navigable waters
in SA HB 98 3/15/23: maj federal areas, which may
include navigability determinations made because of
administrative or judicial proceedings, '(b) or (c)
of' was inserted before 'this section' to distinguish
the commissioner's non-binding determinations from
determinations that have binding effect.
Section 7 amends by revising the phrase "at the
time" to become "on the date".
Section 8 - Adds new subsections (h) - (j) to AS
38.04.062 that creates an obligation on DNR to report
annually to the legislature. Subsection (h) requires
the commissioner to submit an annual report to the
legislature by the first day of each regular session
identifying navigable waters within the boundaries of
and adjacent to federal areas that are not listed in
AS 38.04.063(b) and any modifications or changes to
navigable waters within the boundaries of and adjacent
to federal areas that have been previously identified
and listed in AS 38.04.063(b) Subsection (i) provides
that the commissioner's failure to include or identify
navigable waters in accordance with the requirements
of AS 38.04.062 does not relinquish any state right in
the submerged lands underlying those navigable waters.
Subsection (i) is intended to preserve the state's
rights to submerged lands. Subsection (j) provides
that a navigability determination of the commissioner
is based on evidence consistent with the definition of
'navigable water' at AS 38.04.062(g) and consideration
of the factors listed in AS 38.04.062(j)(1-4).
Section 9 - Amends AS 38.04 by adding a new section AS
38.04.063 concerning state ownership of submerged
within federal areas. This section makes clear that
since statehood, that the State owns, claims,
occupies, possesses, manages, and controls all
submerged lands underlying navigable waters listed in
(b) of this new section of statute, except as provided
under AS 38.04.062(f). It further identifies navigable
waterbodies that are currently known within the
boundaries of and adjacent to federal areas. This
section was drafted to model existing AS 19.30.400
which codifies state claims of rights-of-way granted
under former 43 U.S.C. 932 (Revised Statute 2477).
Page 4 to page 87.
Section 10 - Amends AS 38.04.910 by adding new
paragraphs for definitions, renumbering existing
definitions, and adding proposed definitions for
'federal areas,' 'mean high water,' 'mean high water
line,' 'ordinary high water mark,' and 'submerged
land.'
Section 11 repeals existing 38.04.06(g) which is
current definition.
Section 12 - Amends the uncodified law of the state to
add a new section providing that Section 9 of the bill
is retroactive to January 3, 1959. This bill will
require a special vote of two-thirds of the members of
each house because the proposed retroactive effective
date for this section varies from the standard
language providing for an effective date 90 days after
enactment.
Section 13 - Provides for an immediate effective date
under AS 01.10.070(c).
2:08:38 PM
BRENT GOODRUM, Deputy Commissioner, Office of the Commissioner,
Department of Natural Resources (DNR), testified in favor of HB
98. He explained that oftentimes the federal government does
not take a position on the ownership of submerged lands and does
not say that it explicitly has ownership interest, thereby
denying the State of Alaska the ability to bring a quiet title
action in federal court because such an action requires a case
or controversy. He said HB 98 would flip the script by
codifying the navigable water bodies in federal areas as
navigable-in-fact for title purposes. The federal government,
he continued, would be put on formal notice that the State of
Alaska owns these submerged lands and intends to manage these
water bodies even though they flow through post-statehood
federal conservation system units (CSUs). The burden would then
be on the federal government, he specified, to gather data and
to find resolution if it disagrees with the state's position.
Federal CSU enforcement officers, he added, wouldn't be to carry
out federal action or enforcement by saying that an affirmative
decision or determination hasn't been made. He referenced two
unanimous U.S. Supreme Court decisions on that point in the
matter of Sturgeon v. Frost.
MR. GOODRUM pointed out that the state has waited 64 years for
federal authorities to determine the navigability of the state's
water bodies. He said the current status quo of uncertainty and
ambiguity of ownership, management, and control of the state's
navigable water bodies is not in the state's or anyone's best
interest. The time is now for the State of Alaska to flip the
script, he opined, and to decisively identify and codify the
state's navigable rivers and lakes.
2:12:00 PM
The committee took a brief at-ease to deal with sound system
technicalities.
2:12:49 PM
REPRESENTATIVE PATKOTAK inquired about the administration's
intended end consequence for vessel traffic through navigable
waters and the potential for political subdivisions of the State
of Alaska to take some degree of permitting authority for access
to navigable waters.
MR. GOODRUM related the state's belief that under the equal
footing doctrine, all navigable waters within the state
rightfully vested with the state as of 1959, but to date the
federal government hasn't acknowledged the state's ownership
rights. Ownership rights, he explained, give the state the
ability to manage the resources beneath those submerged lands as
well as the activity above them regarding transportation. He
related that when Mr. Sturgeon was using his hovercraft on the
Nation River, a river that had already been determined navigable
in a federal court, Mr. Sturgeon believed he was on state land
and therefore state regulations applied as opposed to U.S.
National Park Service regulations that prohibited hovercraft
from operating within [national] parks. Mr. Goodrum further
related that the water body Mr. Sturgeon was on was an inholding
within a [national] park.
REPRESENTATIVE PATKOTAK asked whether the intent with passage of
HB 98 is that subdivisions like a municipality or borough can
assume the authority that the state is assuming if it's within
their first-class status or not.
MR. GOODRUM responded that he believes the intent of HB 98 is to
verify that the State of Alaska is the rightful entity, and the
state would be the one determining what types of access would be
appropriate on those water bodies.
2:16:10 PM
REPRESENTATIVE MCCABE requested the definition of "navigable
waters" under the provisions of HB 98.
MR. GOODRUM answered that court rulings have defined navigable
water as those on which customary and ordinary vessels [could
navigate] for travel, trade travel, or commerce within the state
as of statehood. He deferred to Mr. Jim Walker to provide
further definition.
MR. GOODRUM, in further response to Representative McCabe,
confirmed that the crux of HB 98 is to expedite the ability to
declare a body of water navigable so that everyone knows whose
water it is and there isn't another court case like that of Mr.
Sturgeon's.
2:18:53 PM
JIM WALKER, Chief, Public Access Assertion & Defense Section
(PAAD), Division of Mining, Land and Water (DMLW), Department of
Natural Resources (DNR), provided a PowerPoint presentation,
titled "State Ownership of Submerged Lands House Resources HB
98," [hard copy included in the committee packet]. He said he
would like to phrase the issue of why these navigable waters are
so important. He addressed slide 2, "The Navigable Waters
Issue," which read as follows [original punctuation provided]:
• Alaska holds an estimated 800,000 miles of navigable
rivers
• Alaska holds an estimated 30 million acres of
navigable lakes
• Alaska owns the submerged lands beneath every
navigable-in-fact river and lake, and beneath
tidally influenced waters in the state, unless a
valid pre-statehood withdrawal EXPLICITLY defeats
state title
• In Federal Conservation System Unit areas created in
Alaska post-statehood, the submerged lands beneath
navigable-in-fact and tidally influenced waters are
State-owned lands
MR. WALKER maintained that in most federal areas it is the State
of Alaska, not the Federal Government, that owns the submerged
lands under navigable waters and tidally influenced waters. He
spoke to slide 3, "Federal Areas Where the State of Alaska Owns
Submerged Lands," which read as follows [original punctuation
provided]:
• National Park Service: Noatak National Preserve
(NPr), Kobuk Valley National Park (NP), Bering Land
Bridge NPr, Denali National Park and Preserve (NPP)
(ANILCA additions), Wrangell-St. Elias NPP, Glacier
Bay NPP, Katmai NPP, Kenai Fjords NP, Gates of the
Arctic NPP, Lake Clark NPP, Yukon-Charley Rivers
NPr, etc.
• U.S. Fish and Wildlife Service: Becharof National
Wildlife Refuge (NWR), Innoko NWR, Izembek NWR,
Kanuti NWR, Kenai NWR, Kodiak NWR, Koyukuk NWR,
Nowitna NWR, Selawik NWR, Tetlin NWR, Togiak NWR,
Yukon Delta NWR, Yukon Flats NWR, etc.
• U.S. Forest Service: Tongass National Forest,
Chugach National Forest
• Bureau of Land Management: Beaver Creek Wild and
Scenic River (WSR), Birch Creek WSR, Fortymile River
WSR, Gulkana River WSR, Unalakleet River WSR, Delta
River WSR, etc.
2:22:53 PM
MR. WALKER discussed slide 4, "Status of Efforts to Clear Title
1959 to Present," which read as follows [original punctuation
provided]:
The federal government acknowledges Alaska's clear
title to its submerged lands beneath navigable-in-fact
and tidally influenced rivers and lakes in only:
• 9 percent of 800,000 river miles of submerged
lands under state-owned rivers
• 16 percent of 30,000,000 acres of submerged lands
under state-owned lakes
MR. WALKER, in reference to the importance of state ownership,
said it will take hundreds of years at this rate [for the
federal government to acknowledge the State of Alaska's
ownership]. He spoke to slide 5, "Sturgeon vs. Frost 136 S. Ct.
1061 (2016) & 139 S. Ct. 1066 (2019)," which read as follows
[original punctuation provided]:
U.S. Supreme Court rules unanimously: federal
regulations do not supersede SOA ownership and
management of navigable waters in ANILCA CSUs
MR. WALKER addressed the bubble chart on slide 6, "Statehood
Defense of Navigable Waters Involves Many Interrelated
Assertions of State Ownership and Authority." He related that
DNR and the Department of Law (DOL) are working together
attempting to fulfill the promises of statehood, which include
the equal footing doctrine and other federal law that say the
state owns these submerged lands. He specified that the state
has intensified [quiet title] litigation against federal
authorities and has intensified management action and state
mapping of navigable waters. He submitted that legislatively
codifying state ownership of submerged lands in federal lands is
key to expediting state ownership.
2:25:51 PM
REPRESENTATIVE RAUSCHER inquired about who currently owns the
submerged lands under man-made lakes or ponds.
MR. WALKER replied that free-flowing water impounded to create a
pond or lake is never owned privately, the water is owned by the
people of Alaska pursuant to the public trust doctrine.
However, he continued, when impounding water and creating a
larger footprint of submerged land, that submerged land doesn't
necessarily belong to the State of Alaska. The water itself
belongs to the public, he advised, but whether the submerged
land is in public or private ownership is going to depend on
case specific information.
2:27:41 PM
MR. WALKER resumed DNR's presentation for HB 98. He spoke to
slide 7, "Proposed Codification Legislation Overview," which
read as follows [original punctuation provided]:
1. Codifies State of Alaska (SOA) ownership, management
and control of navigable waters and submerged lands
within federal areas not covered by a valid pre-
statehood withdrawal explicitly defeating state
title
2. Lists specific navigable waters and submerged lands
in federal areas statewide belonging to SOA
3. Enshrines foundational elements of relevant caselaw
to guide in navigability determinations
4. Establishes annual reporting requirement to
legislature
MR. WALKER discussed slide 8, "Proposed Codification
Legislation," which read as follows [original punctuation
provided]:
1. Codifies SOA ownership, management and control of
navigable waters and submerged lands within federal
areas not covered by a valid pre-statehood
withdrawal explicitly defeating state title
• Underscore state ownership, management and
control of lands owned by the state since
statehood
• Clarify and educate: Clearly enumerates the
extent of state management authority within
federal boundaries
• Increases public understanding and aids in
management
• Correlates with publicly maintained records and
maps
• Reflect reality: Accurately depicts land
ownership and state boundaries with ongoing
quality control
MR. WALKER expounded that the first phase codifying the
state's ownership clarifies for the public, federal agencies,
and state adjudicators as to exactly what the state owns. This
educational aspect of the legislation, he said, will make the
job easier and more efficient for the state's adjudicators for
permit applications and will clarify in the public's mind
whether a person needs to apply to the state for a permit or
whether it falls within federal jurisdiction. This bill, he
added, will reflect reality on what is navigable within federal
areas and plants the state's flag onto state-owned lands.
2:30:39 PM
MR. WALKER paraphrased from slide 9, "Proposed Codification
Legislation," which read as follows [original punctuation
provided]:
2. Lists specific navigable waters and submerged lands
in federal areas statewide belonging to SOA
• First phase: All NPS and USFS areas statewide
plus Tetlin National Wildlife Refuge
• Second phase: Remaining USFWS refuges
• Third phase: All BLM lands
• Fourth phase: Ongoing process of clarification,
modification and amendment
Framework for proposed statute is based upon RS 2477
Right-of-Way codification project in 1990s [AS
19.30.400].
MR. WALKER elaborated that in the second phase, the list of
specific navigable rivers will become longer if HB 98 is passed.
He related that five members of his team have been studying
aerial imagery, prior navigability reports prepared by federal
authorities, and looking at historical records of usage to
assess where the navigable waters are within federal areas. So
far, he said, the team has completed its studies of National
Park Service (NPS) and U.S. Forest Service (USFS) areas, as well
as one U.S. Fish and Wildlife Service (USFWS) refuge. If the
bill is passed, he continued, [PAAD] hopefully will have
concluded its work on USFWS refuges and will come before the
committee next session to ask for the addition of the navigable
rivers found in those refuges. Mr. Walker stated his hope that
the following year [PAAD] would again come before the committee
to ask for the addition of the navigable waters and tidally
influenced waters within U.S. Bureau of Land Management (BLM)
areas statewide. Afterwards, he specified, DNR would have
ongoing responsibility to come back to the legislature with
corrections and updates to the list within statute. He added
that DNR would maintain an online digital map that uses the
bill's proposed framework which is based upon RS 2477 right-of-
way so the public and agencies would be able to see exactly what
the state owns.
2:34:08 PM
MR. WALKER displayed slide 10, "State-Owned Navigable Waters
Federally-Acknowledged to Date," a map of rivers and federal
areas in Alaska. He explained that the rivers shown in blue
represent places where there is a grievance, and the federal
government has acknowledged state ownership. The rivers
depicted in pink represent the rivers for which the federal
government has yet to decide, he further explained, so until
such time as it appoints a determination, the federal government
is continuing to act like these rivers are not navigable.
2:37:06 PM
MR. WALKER addressed the map on slide 11, "State-owned Navigable
Waters after proposed codification." He explained that the map
depicts [all the navigable waters] currently included within the
[proposed] statute, such that many of the pink areas have become
blue. He said [PAAD] undertook its own navigability assessments
by applying the standards in federal law to determine which
waters are truly navigable-in-fact and tidally influenced.
MR. WALKER proceeded to the map on slide 12, "Noatak and Kobuk
Valley National Parks Federally-Acknowledged Navigable Waters."
The federal government, he noted, has acknowledged state
ownership of the Kobuk River [shown in blue] as it runs through
Kobuk Valley National Park (shown in green). The federal
government, he continued, has also acknowledged partial state
ownership of the Noatak River [shown in blue and purple] as it
runs the Noatak National Preserve (shown in tan). He drew
attention to the confluence of the Noatak and Aniuk Rivers,
shown in [purple], and advised that the federal government says
this area is not navigable despite being approximately 300 feet
wide and flowing at a rate of over 3,000 cubic feet per second.
He said the State of Alaska will file litigation in this regard
later this year or in early 2024.
2:38:52 PM
MR. WALKER specified that HB 98 looks at the waters depicted in
pink on the map and which [PAAD] will assess [for navigability].
He moved to slide 13, "Noatak and Kobuk Valley National Parks
Navigable Waters After Codification," and said that under HB 98
each of the waters depicted in blue would be owned, managed, and
controlled by the State of Alaska.
CHAIR MCKAY remarked that that is a stunning difference.
MR. WALKER reviewed slide 14, "Proposed Codification
Legislation," which read as follows [original punctuation
provided with some formatting changes]:
3. Enshrines foundational elements of relevant caselaw
to guide in navigability determinations
Susceptibility criteria to guide DNR in making
navigability determinations includes, but is not
limited to:
o Watercraft Type: Round raft, Canoe, Jon boat, Jet
1
boat
o Susceptibility: Documented modern day use is
2
sufficient
o Navigability doesn't require a clear channel,
two-way traffic, or historical evidence if the
3
river is susceptible to navigation
1
Alaska v. Ahtna, Inc., 891 F. 2d 1401 (9th Cir. 1989)
(Gulkana River)
2
Alaska v. United States, Case No. 3:12-cv-00114-SLG
(D. Alaska 2016) (Mosquito Fork (Fortymile) River)
3
PPL Montana, LLC v. Montana, 132 S. Ct. 1215 (2012);
Utah v. United States, 403 U.S. 9 (1971); United
States v. Utah, 283 U.S. 64 (1931)
2:40:50 PM
MR. WALKER paraphrased from slide 15, "Proposed Codification
Legislation," which read as follows [original punctuation
provided]:
1. Enshrines foundational elements of relevant caselaw
to guide in navigability determinations
• Section Ten:
o Define geographical scope of legislation
square4 Post-statehood federal area
o Define key navigability terms for purposes of
legislation including
square4 Mean high water
square4 Mean high water line
square4 Navigable water
square4 Ordinary high-water mark
square4 Submerged land
MR. WALKER referenced Representative Patkotak's earlier question
and said HB 98 specifically covers only federally owned lands
managed by federal authorities. The bill, he added, does not
address Native corporation lands or private property in any way.
MR. WALKER addressed slide 16, "Proposed Codification
Legislation," which read as follows [original punctuation
provided]:
4. Establishes annual reporting requirement to
legislature
Charges DNR with responsibility to conduct ongoing
navigability research to determine state title to
submerged lands within relevant federal areas
• Ensures non-exhaustive codified list best reflects
reality
o Ensures public facing document is accurate
• Further refinement and fine tuning as our quiet
title litigation continues
• Provides leadership to federal authorities and a
path forward to settle ambiguity so that land
management benefiting the public will follow
MR. WALKER concluded his PowerPoint presentation with slide 17,
"Proposed Legislation," which read as follows [original
punctuation provided]:
Alaska's ownership of Submerged Lands beneath
navigable-in-fact and tidally influenced rivers and
lakes is one of the fundamental promises of Statehood.
It's been 64 years. It is time for the Federal
Government to keep its promise to the State of Alaska.
HB98 is a bold step in that direction.
CHAIR MCKAY announced that HB 98 was held over.