Legislature(2021 - 2022)GRUENBERG 120
05/12/2022 10:00 AM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| SB227 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | SB 227 | TELECONFERENCED | |
SB 227-STATE OWNERSHIP OF SUBMERGED LAND
3:32:37 PM
CHAIR TARR announced that the only order of business would be CS
FOR SENATE BILL NO. 227(RES), "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."
CHAIR TARR noted for the committee's reference that there exist
additional documents in the committee packet, including a legal
opinion from Legislative Legal & Research Services, a response
from the United States Department of Agriculture National Forest
Service, press articles related to the proposed legislation, and
letters of support and opposition to SB 227. She invited Mr.
Walker from the Department of Natural Resources to explain the
difference between the underlying bill and the committee
substitute before the committee.
3:33:55 PM
JIM WALKER, Section Chief, Public Access Assertion and Defense,
Division of Mining Land and Water, Department of Natural
Resources, answered questions during the hearing on SB 227. He
explained that SB 227 and HB 397 were previously identical to
one another, and that the changes in the committee substitute
before the committee were minor. He stated that the title was
changed to include the words "and adjacent to" following the
words "and within". He noted a similar change was made to
Section 1, to insert "and adjacent to" following the words
"waters in". He stated that Section 2 was changed by inserting
"and adjacent to" following the words "land within". He stated
that in Section 6, the committee substitute changed the
definition of "federal areas" to mean land within state borders
that is managed by a federal agency, including the United States
National Park Service, the United States Fish and Wildlife
Service, the United States Forest Service, or the United States
Department of the Interior Bureau of Land Management, but does
not include federally managed land that is subject to a pre-
statehood federal withdrawal that clearly and explicitly evinces
the intent to defeat state acquisition of title. He noted that
the definitions of "mean high water" had been changed to mean
the tidal datum plane of the average of all high tides, as would
be established by the National Geodetic Survey, at any place of
tidal influence; and "mean high water line" means the
intersection of the datum plane of mean high water with the
shore.
MR. WALKER further noted that the definition of "submerged land"
was updated to mean land underlying navigable water up to the
ordinary high-water mark or, in the case of tideland, up to the
mean high water line. He noted that this change required
additional conforming changes. Finally, he added that there had
existed several typographical errors that had been corrected,
and "one-third of the season" had been removed, and in its place
was "at any time" during the open water season. He noted that
the date of April 20, 2022, had been inserted in one provision
that the department would seek to amend.
3:38:17 PM
REPRESENTATIVE ORTIZ referred to the legal opinion [included in
the committee packet], entitled "HB 397 Research - Legal Opinion
- Bullard 4.28.22.pdf," which read as follows [original
punctuation provided]:
It is not clear what effect a statutory claim that the
state owns submerged land beneath navigable water
within and adjacent to certain federal areas in the
state might have. A claim in state law that a body of
water is navigable will not bind the federal
government.
REPRESENTATIVE ORTIZ asked what the impact of the passage of SB
227 would be in consideration of that opinion.
MR. WALKER offered that during 60 yeas of [Alaska] statehood,
there did not exist significant federal determination of
navigability of waterways statewide, and that most navigable
waters had the status of "undetermined." He stated that clear
definition of ownership should precede an effective land
management system. He stated that the bill would establish the
waterways listed in the bill as navigable waterways which
otherwise would be addressed via a slow federal process, to the
benefit of federal upland owners. He reminded the committee
that the Equal Footing Doctrine granted ownership of those lands
at the time of statehood unless there had been an explicit
withdrawal. He offered that the clarity of title of the
submerged lands would provide the federal government to either
agree with the state's determination, or to disagree. He
offered an anecdote concerning the Tetlin National Wildlife
Refuge in which the refuge manager had contacted the department
and disclosed that there existed docks and other infrastructure
that may have been built on state owned lands, and he was
seeking guidance from the department. He explained that the
department had researched and decided that the activities that
had been engaged had been mostly for allowable uses, and there
were several docks and other infrastructure components that did
require a permit. He noted that the state permitting process
was much simpler than a federal permitting process. He
suggested that the passage of SB 227 would result in increased
cooperation from the federal government to comply with state
land usage laws. He added that, should a dispute arise
regarding land ownership, the state had prevailed in all similar
litigation, and he would expect that the state would prevail in
any such future litigation.
3:44:15 PM
REPRESENTATIVE ORTIZ asked whether the state had a role in the
management of navigable waters adjacent to federal owned or
federally managed lands in the absence of SB 227.
MR. WALKER stated that the state did have a role in working to
clear titles of state-owned lands. He added that recordable
disclaimers of interest (RDIs) had been sought and the state had
participated in litigation to clear titles. He stated that the
RDI program was slow and expensive, with the average time for
resolution of an RDI being that of a decade. He described RDIs
as being equivalent to a Quit Claim Deed and had been developed
under the Federal Land Policy and Management Act of 1976
(FLPMA). He noted that Alaska's congressional delegation had
requested an audit of the RDI system due to its perceived
inefficiencies and expense.
REPRESENTATIVE ORTIZ referred to Ward Lake near Ketchikan and
stated that he had observed effective [federal] management and
public usage of the popular area and asked why there would need
to be a change to that management that would involve the state.
MR. WALKER offered an example in which a resident of Prince of
Whales Island who had been using a small jet boat on the Thorne
River for decades, had contacted the department and disclosed
that the United States Forest Service (USFS) had cautioned him
that he would receive a federal citation, should he continue the
activity. He noted that the Thorne River was contained in SB
227. He offered a hypothetical comparison in which a neighbor
would decide what a landowner could do on his/her own property,
and that such decisions should be made by the landowner. He
suggested that in cases where effective management was in place,
no change of management would be necessary. He added that state
owned lands were promised at statehood and that Alaska has a lot
more submerged lands than in other states. He submitted that,
when adjacent landowners agree, no intervention is necessary and
that, when "things go bad," the landowner should make decisions
regarding land use.
3:50:19 PM
REPRESENTATIVE ORTIZ mentioned his use of Ward Lake and his use
of Wilson Lake and asked whether there existed a potential for
interference with clean water management maintenance.
MR. WALKER answered that the proposed bill would not interfere
with federal monitoring or activities under the Clean Water Act.
He drew the distinction that the bill would rather concern
property ownership and the regulation of the uses of the water
flowing over the submerged lands. He noted that, should any
degrading use that could affect adjoining lands occur, the
adjacent landowner would be able to seek remedies.
CHAIR TARR summarized that there exists dissatisfaction on the
part of the state to conclude RDI processes, and asked whether,
should SB 227 pass, there would exist two scenarios in which
either the federal government would challenge the state, or it
would not. She asked whether the potential for additional
litigation exists, considering the attorneys' opinions that it
would not persuade the federal government to decline litigation.
She expressed her concern that there could be increased costs
due to potential litigation.
3:54:45 PM
MR. WALKER answered that constant litigation is the current
reality. He suggested that the federal government had willfully
withheld findings of navigability that result in the federal
agencies "pulling the rug out from the state in court," pending
the federal determination of navigability. He stated that SB
227 would designate all the obviously navigable waters as such
and designate all the obviously non-navigable waters as such.
He stated that the bill would not designate waterways as
navigable over which reasonable parties may disagree. He stated
that, should the federal government disagree with the state's
designation of a waterway as navigable, it would have the right
to file a lawsuit, as it currently occurs. He recalled the
ruling in Alaska v. United States in which the judge had opined
that the federal government had acted in bad faith regarding the
Mosquito Fork submerged land usage. He stated that the passage
of SB 227 would enable the state to assert a clear claim of
title of submerged lands.
MR. WALKER opined that the passage of SB 227 would not result in
an invitation to additional litigation. He suggested that the
passage of the bill would result in more meaningful discussions
regarding land ownership and that such conversations had been
prompted by the filings of SB 227 and HB 397.
3:58:36 PM
CHAIR TARR noted that state ownership of submerged lands was
based on navigability and stated that there may exist
differences regarding the designation of some lands since
statehood and postulated that those differences may pose
additional challenges to the assertion of ownership of some
submerged lands.
MR. WALKER stated that the law prescribes that, if a river is
currently in its natural and ordinary condition, and that no
manmade changes have been made since statehood, then the
waterway was navigable at statehood and remains navigable now.
He added that any waterway upon which a reasonably defined boat
may operate is navigable and assumed to have been navigable
since statehood. He added that the state is obligated to prove
in court assertions of land ownership, and it has adopted new,
cost-effective technologies such as drones to document the
evidence required to prevail in court.
MR. WALKER referred to the Mendenhall Lake in Juneau and noted
that the Tongass National Forest had been withdrawn at statehood
but that [the claim of ownership of the submerged land] had been
upheld by the court. He provided further examples concerning
the Stikine River and the Taku River that had been involved in
the RDI process for over a decade. He referred to the process
of asserting land ownership in the Chugach National Forest had
been identical to the outcome as the claims within the Tongass
National Forest. He stated that previously discredited
arguments were brought forth by the federal government against
state claims of land ownership and that SB 227 would further the
state's position regarding the waterways listed in the bill. He
stated that the passage of SB 227 and HB 397 would solve the
problems that are reoccurring in the courts.
4:05:03 PM
CHAIR TARR noted that there were hundreds of waterways listed in
the proposed bills and suggested that concerns over increased
litigation would result from the state addressing all the
waterways at once and that the federal government may consider
them on an individual basis.
MR. WALKER stated that he would not predict that as an outcome.
He stated that the only options available to the state would be
to assert ownership, to assert management as though the state
was the owner, or litigation. He stated that the passage of the
bills would not change the state's position in litigation
whatsoever.
4:07:11 PM
CHAIR TARR opened public testimony on SB 227.
4:07:22 PM
CRAIG COMPEAU testified in support of SB 227. He stated that
his family had been engaged in a boating business on Alaska
rivers since the 1940s. He stated that the state had spent
millions of dollars and decades of time debating whether
individual rivers are navigable in cases that he characterized
were, without question, navigable. He claimed that there exist
delay tactics and federal overreach that included interference
from outside interests. He urged the committee to pass SB 227.
4:08:57 PM
MIKE SEWRIGHT, Assistant State Attorney General (retired),
Member, Board of Directors Safari Club International, testified
in support of SB 227. He cited his experience as a former state
attorney involved in the litigation over ownership of submerged
lands and lauded the bill as significant. He requested that the
committee read the letter entitled, "SB 227 Testimony - Support
- SCI AK 5.9.22.pdf," [included in the committee packet] since
its author, John Sturgeon, was unable to personally testify to
the committee due to a scheduling conflict. He stated that SB
227 would establish navigability standards and would include the
types of small watercraft that have been approved by the courts
and the United Stated Department of the Interior. He stated
that the bill would not amount to an attempt to expand the law.
He stated that the passage of SB 227 would provide the public
with clarity regarding which lands are state-owned. He stated
that the proposed legislation has been drafted based on language
taken directly from related court cases. He stated that it had
been established by the courts that the use, or the
susceptibility for use, by small watercraft and river boats
capable of transporting 8001,000 pounds of people and gear for
tourism, guided fishing, and other activities demonstrated a
waterway's navigability.
MR. SEWRIGHT stated that the significance of navigability would
be to establish state ownership of the submerged lands and would
establish paramount state control of the overlying waterways for
management purposes. He suggested that SB 227 was not partisan
in nature. Further, he stated his belief that the passage of SB
227 would not result in any added expense to the state. He
compared the proposed bill as being like prior legislation that
established RS2477 trails as state-owned. He urged the passage
of SB 227.
4:15:01 PM
CHAIR TARR asked for Mr. Sewright's opinion on the reasons for
delays with the federal RDI processes.
MR. SEWRIGHT offered that federal agencies failed to recognize
waterways as navigable due to its intent to continue federal
jurisdiction over the waterways within federally owned lands and
suggested that there may exist bureaucracy and a negative
impetus to address the issues. He suggested that the state
asserting ownership of the lands would prompt federal agencies
to cooperate with the state on the issues of land ownership.
CHAIR TARR stated her belief that there would be increased
management activities, should SB 227 pass, and that there would
exist additional associated costs. She asked for M. Sewright to
offer his opinion based on his experience regarding any
associated costs.
MR. SEWRIGHT stated that, based on his experience, the passage
of the bill identifying the waterways would not result in
additional expense nor in additional litigation and suggested
that the opposite may occur, since the bill would eliminate
uncertainty as to who is claiming ownership of the lands. He
reminded the committee that he had never been involved in
related litigation in which the state had not prevailed in
court.
4:20:08 PM
REPRESENTATIVE VANCE asked whether the long processes associated
with establishing land ownership was common in other states.
MR. SEWRIGHT answered that it was more common in Alaska due to
the large number of waterways in Alaska. He noted that many
other states had more private land ownership. He noted that
Alaska has many times more federal lands than in any other
state, and that the federal government had asserted ownership of
those lands following statehood. He stated that federal
assertion of lands should not affect the question of
navigability of waterways. He stated that there exist many
cooperative management agreements for certain lands.
4:22:57 PM
ALEX JOHNSON, Alaska Senior Program Manager, National Parks
Conservation Association, testified in opposition to SB 227. He
cautioned the committee to "be careful what you wish for" since
the state does not have the budget for management and law
enforcement activities for the management of the lands in the
bill. He suggested that the question of navigability was not as
simple as other testifiers had asserted it to be. He stated
that there had been benefit to the state from federal management
of activities on such lands.
CHAIR TARR recalled Representative Vance's earlier question
regarding related issues in other states, and asked Mr. Johnson
to offer his organization's perspective.
MR. JOHNSON echoed Mr. Sewright's earlier testimony that Alaska
is unique to other states in land and water management. He
stated that he did not have direct experience with such matters
in other states but offered to conduct research and share his
findings with the committee.
4:27:37 PM
CHAIR TARR, after ascertaining there was no one else who wished
to testify, closed public testimony on SB 227.
CHAIR TARR stated that some Alaska Native Claims Settlement Act
(ANCSA) corporations had expressed concerns that the bill was
rushed and that their feedback had not been sought.
MR. WALKER stated that he was previously unaware of such
concerns and reminded the committee that the bill would only
pertain to federally owned areas and would have no applicability
to Native-owned or privately owned lands. He listed the
affected lands as those associated with the National Park
Service, U.S. Fish & Wildlife Service areas, U.S. Forest Service
areas, and the Bureau of Land Management areas. He invited any
party interested in the pending legislation to contact his
office.
CHAIR TARR noted that there had been issues with land selection
based on ANCSA and asked whether the potential for similar
issues existed, should SB 227 pass.
MR. WALKER asserted that it would not. He stated that the bill
does not claim lands to fulfill such land grants and only
pertains to federal CSUs and other federal areas that have been
previously established.
4:31:06 PM
CHAIR TARR asked whether additional financial resources should
be considered since the state's management duties would
increase, should the bill pass.
MR. WALKER stated that the question regarding increased cost had
been asked and that, following additional research by his
office, the pending bill consists of 8,971 river miles and
488,992 lake acres. He stated that DNR manages 100 million
acres of state land. He characterized the lands listed in the
bill were small by way of comparison. He noted that DNR would
add an annual reporting requirement and that there could be
suggested additions to the list. He stated that, in most
instances, there would exist only one permit applicant, and the
applicant would be the United States government. He added that
the adjudication of a permit would be exponentially cheaper than
litigation.
4:35:26 PM
REPRESENTATIVE VANCE asked whether the state would refrain from
evicting users of state-owned lands.
MR. WALKER answered the Representative Vance was correct. He
noted that when the Dunleavey administration issued its
Unlocking Alaska Initiative, state agencies contacted the
federal government to request cooperation regarding its
infrastructures and bringing them into compliance with state
permitting regulations. He added that the state would honor
federal permits for land use. He stated that the intention is
to cooperate as an adjoining landowner with the owner of the
uplands for the public's benefit.
4:37:55 PM
REPRESENTATIVE VANCE rhetorically asked the reason the
legislation had not been introduced sooner and suggested that
the bill would allow Alaska to come into its own existence.
REPRESENTATIVE MCCABE commented that it requires two parties to
negotiate, and the passage of the bill could force the federal
government to the negotiating table.
[SB 227 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 227 Sponsor Statement 3.10.22.pdf |
HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM SRES 4/8/2022 3:30:00 PM |
SB 227 |
| SB 227 Version A 3.11.22.PDF |
HFSH 5/12/2022 10:00:00 AM |
SB 227 |
| SB 227 Sectional Analysis 3.15.22.pdf |
HFSH 5/12/2022 10:00:00 AM SRES 4/8/2022 3:30:00 PM |
SB 227 |
| SB 227 Version I 4.29.22.PDF |
HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM |
SB 227 |
| SB 227 Sectional Analysis - Version I 4.29.22.pdf |
HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM |
SB 227 |
| SB 227 Summary of Changes Version A to I 5.9.22.pdf |
HFSH 5/12/2022 10:00:00 AM |
SB 227 |
| SB 227 Fiscal Note DNR 3.10.2022.pdf |
HFSH 5/12/2022 10:00:00 AM SRES 4/20/2022 3:30:00 PM |
SB 227 |
| SB 227 Presentation Submerged Lands 4.8.22.pdf |
HFSH 5/12/2022 10:00:00 AM SRES 4/8/2022 3:30:00 PM |
SB 227 |
| HB 397 Research - Submerged Lands Response from DNR 3.31.22.pdf |
HFSH 4/5/2022 10:00:00 AM HFSH 4/19/2022 10:00:00 AM HFSH 5/5/2022 10:00:00 AM HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM |
HB 397 |
| HB 397 Research - Legal Opinion - Bullard 4.28.22.pdf |
HFSH 5/5/2022 10:00:00 AM HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM |
HB 397 |
| HB 397 Research - Response to Questions from Forest Service - Cooper 5.2.22.pdf |
HFSH 5/5/2022 10:00:00 AM HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM |
HB 397 |
| HB 397 Research - Article - Ebertz 4.26.22.pdf |
HFSH 5/5/2022 10:00:00 AM HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM |
HB 397 |
| HB 397 Research - Article - DeMarban 4.27.22.pdf |
HFSH 5/5/2022 10:00:00 AM HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM |
HB 397 |
| SB 227 Testimony - Support - SCI AK 5.9.22.pdf |
HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM |
SB 227 |
| SB 227 - HB 397 Testimony - Oppose - Wild Salmon Center 5.11.22.pdf |
HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM |
HB 397 SB 227 |
| SB 227 - HB 397 Research - Bureau of Land Management Response to Questions - Heinlein 5.12.22.pdf |
HFSH 5/12/2022 10:00:00 AM HFSH 5/17/2022 10:00:00 AM |
HB 397 SB 227 |