Legislature(2003 - 2004)
02/18/2004 03:33 PM Senate RES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SJR 27-SUBMERGED LAND TITLE DISPUTES
CHAIR SCOTT OGAN called the Senate Resources Standing Committee
meeting to order at 3:33 p.m. Present were Senators Wagoner,
Dyson, Seekins, Elton and Chair Ogan. Senator Stevens arrived at
3:35. The first order of business to come before the committee
was SJR 27.
MR. BRIAN HOVE, Staff to Senator Seekins, sponsor, explained
that the state has been waiting for the federal government to
make claims on navigable waterways within the state and the
federal agency has been "doing a little foot dragging." SJR 27
asks it to move the process along.
CHAIR OGAN asked him why the process needs to move faster.
MR. HOVE replied that the state needs to have use of the
waterways that were promised it at statehood.
CHAIR OGAN said that Alaskans already use the waterways - "Just
get a boat and go on 'em. Nobody is stopping us, right?"
MR. HOVE clarified that he meant not only use, but manage.
SENATOR SEEKINS stated that this resolution is very important to
the future of the State of Alaska. The State of Alaska has over
20,000 rivers and over one million lakes - or 60 million acres
of submerged lands (anything from the high water mark,
underneath, to the high water mark on the other side).
Those submerged lands by virtue of the Equal Footing
Doctrine, when we became a state, were transferred to
the State of Alaska - those that were not reserved
prior to statehood. The federal government held them
in trust for the future of the State of Alaska. Once
we were admitted, those lands became sovereign lands
of the State of Alaska. Yet, we've never been able to
get title - and even though the Equal Footing Doctrine
said, and our statehood agreement with the United
States of America says, that the Submerged Lands Act
of 1953 also applies to the State of Alaska. That
Submerged Lands Act says that title to those submerged
lands would be transferred to the state or that the
title belongs to the state. We've not been given clear
title. There is still a clouded title by the federal
government. It lays choate. In other words, if at any
time on a river that has not been determined or the
title has been clearly transferred, the federal
government can come along and say we now believe we
have a claim in the ownership of these submerged lands
and then we have to go to court under the Quiet Title
Act to sue the federal government to get title to
something that was given to us at statehood. That's
wrong. And the federal government has drug their feet.
They've said that Alaska is a huge state and it's just
really tough to get this done, but it's been 45 years,
Mr. Chairman....
SENATOR SEEKINS said that statements from a Ninth Circuit Court
decision, written by Judge Kleinfeld, on a quiet title action
brought by the Doyon Limited against the federal government are
relevant in this instance. He explained that the federal
government tried to include the submerged lands under the
Kandik, Black and the Nations Rivers as part of their allocation
to Doyon Corporation under the Alaska Native Claims Settlement
Act (ANCSA). Doyon maintained that couldn't be done, because the
submerged lands belonged to the state. Title was cleared on two
of the rivers, but since the federal government had not yet made
a claim on the third river, Judge Kleinfeld could not give quiet
title to the state. Senator Seekins quoted Judge Kleinfeld:
It is undisputed that when the Union was created, each
of the 13 original states retained title to the lands
covered by navigable waters and that under the Equal
Footing Doctrine, each new state succeeds upon
statehood to the federal interest in those lands. The
Submerged Lands Act gave Alaska title to the beds of
navigable waters on January 3, 1959. Under the Quiet
Title Act, the federal government takes the position
that its sovereign immunity shields it from the state
government's claim to clear title to those submerged
lands. Mr. Chairman, until the federal government
itself makes a claim, because Alaska is very large -
much of it is wilderness and there are numerable
waters the federal government has not had time [45
years] to determine what claims it wishes to make.
Therefore, the state government must wait until the
federal government makes a claim, if it ever does,
before settling whether it has title. That's not
acceptable, in my opinion, for me as a legislator and
a trustee of our lands that should be commonly owned
by the people of the State of Alaska - to have that
cloud on our title. This resolution asks the federal
government to join with the state to help us clear
that title.
CHAIR OGAN said he met with the Secretary of Interior and the
Senate President last summer and was very encouraged by the
progress that had been made on title transfers of submerged
lands. The process is arduous and lengthy, even if SJR 27 is
followed to the letter.
SENATOR ELTON asked, in reference to the Doyon case, if the
federal government transferred title of submerged lands to other
entities.
SENATOR SEEKINS replied that he wasn't aware of any.
SENATOR ELTON said he would like any history the sponsor might
have that could explain why Congress considered, but failed to
pass, the legislation that provided for federal officials to
participate in the Navigable Waters Commission.
MR. RON SOMERVILLE, Resource Consultant to the Senate and House
Majority, partially answered the question saying the Legislature
was in the process of passing the 2002 State/Federal Navigable
Waters Commission when he and Senator Halford went to
Washington, D.C., to amend the Quiet Title Act to speed up the
process and to push for the Navigable Waters Commission. He
briefed the committee:
That's when she raised this issue of using the
recordable disclaimers of interest as a possible
solution to it. One of the reasons, I think, that this
is included in here, even though the recordable
disclaimer of interest has been effective in one case
- that's the Black River - it hasn't been subjected to
the court challenges that the environmental community
has been threatening over use of recordable
disclaimers of interest on RS 2477 transfers in Utah.
I mean, that's where it's probably going to hit first.
And they've threatened to do the same thing on
recordable disclaimers of interest for navigable
waters in Alaska. It's a painful slow process that
kind of gets you looking at what other options are
there. One is amend the Quiet Title Act, initiate a
Navigable Waters Commission and continue with the
recordable disclaimers of interest as best you can.
It's utilizing all three of the things available to
the state.
CHAIR OGAN supposed that Congress could just grant Alaska title
in one fell swoop, if it decided to and asked how likely that
was to happen.
MR. SOMERVILLE replied that first Congress would have to define
what is really meant by transfer of title and agree with the
state on what water is navigable and what water is not
navigable. He elucidated further:
It's even further complicated by the fact that the
conveyances were made by the Bureau of Land Management
(BLM) prior to the Gulkana case, which placed an
additional clouded title on conveyances to the Native
corporations, because a lot of state navigable waters
were transferred as part of their upland
entitlement.... So, the federal government, in order
to just transfer something, the state would have to
clearly describe what navigable was and what non
navigable was. We're doing it on a case by case basis
and at the rate of 13 cases in 45 years, I calculate
it will take us 76,153 years to get our entitlement.
CHAIR OGAN asked if a certain size boat going down a river was
criteria for navigable water.
MR. SOMERVILLE responded that the Gulkana case changed the
criteria for navigability as did the Black, Kandik and Nations
Rivers cases. "Those cases set the standard by which BLM must
abide in any navigability determinations and that has helped the
state in getting reasonable determination from BLM."
He said that a river had to be navigable at the time of
statehood to qualify. People who were alive at the time of
statehood and can describe the commercial uses of that river to
make it navigable are going to be passing away soon and the
state could lose its entitlement.
SENATOR SEEKINS said it's easy to see a river is navigable by
floating a boat on it, but proving that someone floated a boat
on it at statehood is the threshold that Judge Kleinfeld looked
at; and whether there was trade or fishing or transportation at
the time of statehood.
The federal government has claimed an interest in some of
Alaska's rivers also, to facilitate subsistence management. He
hinted that there is some discussion about whether that could be
a cause to bring an action under the Quiet Title Act. He
digressed a little saying the Submerged Land Act indicates that
state ownership includes everything in and underneath the water
column and is subject to state management. "So, there's a lot at
stake in the determination of whether or not those submerged
lands belong to the State of Alaska."
CHAIR OGAN said that Joann Grace is probably one of the most
knowledgeable people in the state on submerged lands and state
sovereignty and asked if she would answer questions.
SENATOR ELTON asked how the concept of state management of
everything above and underneath submerged lands [and subject to
state management] played into the debate on subsistence.
MS. JOANN GRACE, Department of Law, replied:
If the United States owns the submerged lands, then
the river or lake is public lands under ANILCA and is
subject to a subsistence priority. If the state owns
the submerged lands, then the subsistence priority
depends on whether the United State has an interest in
the water column, not the land, but the water. If the
court found that the United States had reserved water
rights in the water, then the water becomes public
land subject to the subsistence priority. So, the
subsistence priority doesn't particularly depend on
[indisc.] title to the submerged lands. In other
words, any navigable water that flows through federal
lands that is reserved, like any conservation system
unit, is subject to a federal reserve water right and,
therefore, is subject to the subsistence priority
regardless of who owns the submerged lands.
CHAIR OGAN asked, for the record, if a molecule of water crosses
federal land and the quiet title [for that land] hasn't been
transferred to the state, does the federal government reserve
the right to manage the fisheries in that water column based on
the Reserved Water Rights Doctrine.
MS. GRACE replied that it does:
As long as the United States has a water right in a
water column, then it's public land as defined in
ANILCA and, therefore, a subsistence priority applies
to it. That is very well-settled law at this point.
CHAIR OGAN noted that the reason for current land management
policy is because a few years ago, the last governor did not
appeal a decision on the State of Alaska's right to manage
fisheries to the Supreme Court.
MS. GRACE replied that is correct; the governor did not file a
serve petition and a final judgment from the Ninth Circuit and
that is what is being addressed.
CHAIR OGAN asked if another lawsuit would have to be brought
forward if the state chose to litigate the question again.
MS. GRACE replied that is correct.
SENATOR SEEKINS asked if ANILCA applies to lands in which the
United States has just an interest or to which it holds title.
MS. GRACE replied that Title VIII, subsistence, applies to
public lands, which are defined as land, water and interest
therein [indisc.]. So the argument in the Katie John case was if
the United States holds title to any part of the water in a
river or lake, that river or lake is public land and a
subsistence priority applies to it. They have prevailed on that.
CHAIR OGAN asked if managing fish and game was a fundamental
element of state sovereignty.
MS. GRACE replied:
I don't think that the Supreme Court has ever said
that it's a fundamental attribute of state
sovereignty. It certainly is something that every
state does - mostly all the lands in the boundaries of
the state.
CHAIR OGAN asked if police powers weren't a fundamental issue of
state sovereignty.
MS. GRACE replied that traditional state police power is not the
same as an essential attribute.
CHAIR OGAN asked if sovereigns are the only ones to have police
powers.
MS. GRACE replied that the state has police powers and Congress
can preempt those, because it represents a higher sovereign.
CHAIR OGAN noted there were no other questions for Ms. Grace.
SENATOR ELTON asked if the chair was planning on moving all
three pieces of legislation since they were all related to the
same subject.
SENATOR SEEKINS said that he intended for this bill to stand on
its own merit.
SENATOR ELTON said after debating the other bills, there may be
a need to add a whereas or resolve clause to SJR 27.
SENATOR SEEKINS moved to pass SJR 27 from committee with
individual recommendations with the attached fiscal note. There
were no objections and it was so ordered.
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