Legislature(2015 - 2016)BARNES 124
03/16/2016 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| HB216 | |
| HB246 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 247 | TELECONFERENCED | |
| *+ | HB 216 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| *+ | HB 246 | TELECONFERENCED | |
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.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 216 FiscalNote.php.pdf |
HRES 3/16/2016 1:00:00 PM |
HB 216 |
| CSHB 216( ) - Legislation Ver. E.pdf |
HRES 3/16/2016 1:00:00 PM |
HB 216 |
| CSHB 216( ) - Sectional Analysis.pdf |
HRES 3/16/2016 1:00:00 PM |
HB 216 |
| CSHB 216( ) - Sponsor Statement.pdf |
HRES 3/16/2016 1:00:00 PM |
HB 216 |
| CSHB 216( ) - Summary of Changes (Ver. W to E).pdf |
HRES 3/16/2016 1:00:00 PM |
HB 216 |
| HB246 Ver A.pdf |
HRES 3/16/2016 1:00:00 PM HRES 5/30/2016 11:00:00 AM HRES 5/31/2016 11:00:00 AM HRES 6/1/2016 11:00:00 AM |
HB 246 |
| HB246 Sectional Analysis.pdf |
HRES 3/16/2016 1:00:00 PM HRES 5/30/2016 11:00:00 AM HRES 5/31/2016 11:00:00 AM HRES 6/1/2016 11:00:00 AM |
HB 246 |
| HB246 Fiscal Note-DCCED-AIDEA-01-14-16.pdf |
HRES 3/16/2016 1:00:00 PM HRES 5/30/2016 11:00:00 AM HRES 5/31/2016 11:00:00 AM HRES 6/1/2016 11:00:00 AM |
HB 246 |
| HSE RES HB 246 - AIDEA Oil and Gas Infrastructure Development Fund presentation.pdf |
HRES 3/16/2016 1:00:00 PM |
HB 246 |
| HB 216 Supporting documentation.pdf |
HRES 3/16/2016 1:00:00 PM |
HB 216 |