Legislature(2003 - 2004)
03/01/2004 09:05 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 305
"An Act relating to state ownership of submerged land
underlying water that was navigable at the time Alaska
achieved statehood."
This was the first hearing for this bill in the Senate Finance
Committee.
JOE BALASH, Staff to Senator Gene Therriault, the bill's sponsor,
read the Sponsor Statement as follows.
With the exception of withdrawn federal lands, at statehood in
1959, Alaska received title under the equal footing doctrine
to all submerged lands under state navigable waters and marine
waters out to three miles. Unfortunately, the federal
government has been slow to concede any navigability
determinations. Since Alaska entered the Union, the federal
courts have determined fewer than 20 rivers navigable. Unless
the state is pro-active in asserting its claims, it stands to
lose up to 60 million acres of its statehood entitlement.
In some cases, the federal government has used every possible
legal tactic under the Federal Quiet Title Act to impede the
state's assertion of ownership. The Black, Kandig and Nation
Rivers in northeast Alaska are examples. These three Rivers
clearly meet the criteria established by the federal courts
for determining navigability in Alaska
Although no one contested the state's claim that these streams
met the federal criteria, this case took nine years and
millions of state and federal dollars to litigate. Eventually
the state won two of the three cases. The third was resolved
by a Federal Recordable Disclaimer of Interest in 2003.
In addition, prior to 1989 the federal government applied
incorrect standards to determine navigability and may have
mistakenly conveyed state-owned land to Native corporations,
clouding the title to hundreds of thousands, if not millions,
of acres. This is a critical topic as Congress considers a
deadline for completing the land selection and conveyance
processes.
Contributing to the problem is the lack of a reasonable and
efficient way for the state to secure title to its submerged
lands. SB 305 takes three steps to begin the process of
identifying state claims.
First, SB 305 provides to all parties that the state is laying
claim to all submerged lands, except those withdrawn at the
time of statehood, that meet the standards and criteria
established in the Submerged Lands Act and in various federal
court decisions.
Second, it provides authority for state agencies to identify,
in accordance with the appropriate federal and state laws,
which waterbodies the state claims as navigable and non-
navigable. This will help the state clarify criteria for
identifying navigable waters, address conflicts involving
clouded titles due to inaccurate conveyances from the Bureau
of Land Management, and more clearly delineate its title
claims.
Third, the bill directs the Department of Natural Resources to
give notice to all private property owners, including native
corporations created under the Alaska Native Claim Settlement
Act, that may have received title to lands that could have
erroneously included state submerged lands in their
conveyance. This is critical to resolve future problems
regarding mineral development, gravel extraction, access and
other related land uses.
This legislation is only one step for the state to eventually
resolve the title disputes over its submerged lands, and deals
only with the issue of state title to submerged lands. It does
not address conflicts over federal fish and wildlife
management in state navigable waters created by federal
reserved water rights claims.
Mr. Balash concluded that, "this is primarily an issue where
federal agencies have used incorrect definitions and means of
conveying title to primarily the Native corporations." He continued
that, "this is just an assertion of the State's claims and an
effort" to put on record that the State does not "concede any of
our title to anybody."
Co-Chair Green questioned whether conceding title, which has been
incorrectly conveyed, to one group might set a precedent whereby
the State would be required to concede title to other groups.
Mr. Balash responded that "the real question" is establishing that
the water was recognized as being "navigable at the time of
Statehood." He shared that "the knowledge, the files, the criteria
upon which that is all based in order to stake that claim is
getting old." He exampled that "the people who know about
particular bodies of water are soon to be passing," and in that
case, the State "would lose the ability to regain that knowledge
and reclaim that title in a Court or a federal agency." He
furthered that were the State to not pursue the issue now while the
information is still available, the Court might decide that since
the State "didn't care about it for the last 45 years, why do you
care about it now."
Senator Olson asked regarding the State's assertion "that incorrect
standards were being used" by the federal Bureau of Land Management
(BLM), whether there is a definition of what constitutes navigable
waters or whether the contrary opinion is the result of a
difference of opinions as to what navigable waters are.
Mr. Balash reiterated the State's position that the BLM used
incorrect definitions. He informed that "the Courts have delineated
what a navigable waterbody is." Continuing, he pointed out that
some conveyances were granted "prior to 1989, before some of that
case law" was determined, and, he voiced that this "would indicate"
that some of the State's title have been incorrectly conveyed to
Native corporations.
Mr. Balash stated that one component of the Alaska Native Claims
Settlement Act was that each of the Native corporations was awarded
a certain acreage allotment, and he continued, any of the submerged
land acreage that was incorrectly conveyed "counted against that
total acreage." He noted that were the State to reclaim title to
those submerged lands, that acreage would be removed from the
allotment, and the Native corporations would be entitled "to make
additional selections in the uplands or in other parts of the
State."
Senator Olson surmised therefore "that the Native corporations are
not going to be happy with this legislation."
Mr. Balash responded that this might not be the case as a Native
corporation might be able to select more acreage. However, he noted
that conflict might arise were a Native corporation not desire to
relinquish the land. He noted that the Sealaska Native Corporation
has been reviewing this legislation to determine any negative
consequences; however, he noted that no information has, of yet,
been provided.
Senator Hoffman commented on the State's assertion that the federal
government has been "dragging its feet in the conveying of the
State's submerged lands" and that, as a result, the State has had
to resort to taking expensive legal action. He asked whether the
State would be required to continue the litigation process were the
federal government to continue its status quo approach to the
issue.
Mr. Balash replied that there are numerous courses of action. He
noted that the federal Department of the Interior and the BLM are
working with the State to review cases for the Federal Recordable
Disclaimer of Interest process. He stressed that because litigation
is difficult, expensive, and time consuming, other legislation
would be forthcoming to establish a State/federal Navigable Waters
Commission, which would address the issue "in an expedited manner."
He shared that there are options that the State and federal
government could use to try and speed up the process; however, he
reiterated that this legislation is the first step in clarifying
the State's position to future federal Courts and agencies in
regards to the State's claim to submerged lands.
Senator Hoffman noted that the year 2009 has been specified as the
target date to identify all State submerged lands.
Mr. Balash responded that the goal is to identify as much of the
land as possible by that date. He noted, however that the submerged
land issue is not being addressed on the federal Congressional
level at this time. However, he noted that the Navigational Waters
Commission legislation has been previously addressed at the
Congressional level, and he continued, the hope is that that
Commission would be established "sooner rather than later."
DICK MYLIUS, Deputy Director, Division of Mining, Land and Water,
Department of Natural Resources testified via teleconference from
an offnet site and noted that he is available to answer questions.
JOANNE GRACE, Senior Assistant Attorney General, Opinions, Appeals,
& Ethics Section, Office of the Attorney General, Department of
Law, testified via teleconference and clarified, in response to
Senator Hoffman's questions, that while the State was granted the
title to its submerged lands at Statehood, the issue "is to
determine what belongs to the State and what doesn't." She noted
that, before 1989 when the BLM was applying incorrect standards, it
might have conveyed some submerged lands to Native Corporations
"that the United States did not actually have title to convey." She
continued that BLM's position was that the lands being conveyed to
the Native corporations were designated as non-navigable, and that
the Native corporations would be charged acreage for that land. She
clarified, however, that were these lands determined to be
navigable, the Native corporations' concern is that "they were
charged acreage for land that they did not actually receive, and if
the conveyances are all completed by the year 2009, then the Native
corporations would lose the opportunity to go back to BLM and say
you purported to convey this submerged land to us when you were
using incorrect standards, and we would like you to go back and
reconsider using the correct standards so that we can be credited
with the acreage that we should have gotten for those submerged
lands."
Senator Hoffman voiced that numerous Native corporations received
"over-selections" of lands, and therefore, he continued, the
assertion that they would be losing land "may not be exactly true,
as it depends on how large their over-selections are." He shared
that the corporation he is a member of has an over-selection of
approximately ten percent. Therefore, he opined, when the submerged
land identification is completed in 2009, "many of the Corporations
would still get their land."
Co-Chair Green asked whether a wrongful conveyance would place "a
cloud on the title."
Senator Hoffman affirmed that while there would be a cloud on the
title and the land would be withdrawn from the corporation, the
over-selection would compensate for the removed land.
RON SOMERVILLE, Resource Consultant to the House of Representatives
and Senate Majority, testified via teleconference from an offnet
site and noted that during the drafting of SB 305 and SB 295, one
of the issues of discussion was that "only the corporations could
request the clarification from BLM" regarding the navigability
issues. He asserted that the State could not make this request.
Therefore, he continued, the encouragement is to the Native
corporations to get that process going "if the villages want to do
that."
TINA CUNNING, State-Federal Issues Program Manager, Office of the
Commissioner, and Co-Chair, State Navigable Waters Team, Department
of Fish and Game, testified via teleconference from an offnet site
to note that there are some corporations that "are closer to" their
entitlement allotment than others. She shared that one of these
corporations had requested BLM "to review some of the waters"
conveyed to it, and the determination was that the land "was
incorrectly included in the conveyances." She stated, therefore,
that some corporations would benefit from the inclusion of the
upland acreage language.
Co-Chair Green asked whether the time frame of 180 days, as
identified in Sec. 3, line 7, that reads as follows, would be
sufficient.
NOTICE TO NATIVE CORPORATIONS. Within 180 days after the
effective date of this Act, the commissioner of natural
resources shall send a written notice of the state's claim of
ownership of submerged land described in AS 38.04.062(a), as
enacted in sec. 2 of this Act, to each regional corporation
established under 43 U.S.C 1607 (sec. 8, Alaska Native Claims
Settlement Act). The purpose of the notice is to assert the
state's ownership interest in submerged land that may have
been erroneously included in a conveyance or patent to a
regional or village corporation from the federal Bureau of
Land Management.
Mr. Balash stated that, "this is a generic notification to be sent
out to potential landowners who might have been wrongly conveyed
lands." He stated that the "language was developed in consultation
with the State agencies, and therefore, he stated, any concern
about this timeframe would have, at that time, been addressed.
Co-Chair Green asked for confirmation that the notice would be of
generic nature as opposed to being required to delineate each
parcel of land.
Mr. Balash confirmed that is correct. He stated that the 2009 date
is the date targeted by Alaska's Congressional delegation and the
Office of the Governor; however, he noted that the Congressional
legislation regarding this issue has not yet been adopted.
Senator Dyson moved to report the bill from Committee with
individual recommendations and accompanying fiscal note.
There being no objection, SB 305 was REPORTED from Committee with
fiscal note #1 in the amount of $186,500 from the Department of
Natural Resources.
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