Legislature(1993 - 1994)
03/07/1994 08:15 AM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 404 - Native Allotments In State Parks ROGER MCKOWAN, AIDE, REPRESENTATIVE LYMAN HOFFMAN, stated HB 404 is a technical correction to a statute under Title 38. He said there is a substantial number of people in Representative Hoffman's district who have Native allotments within what is now a state park, which the state holds title. There are alternative lands outside the state park which the Department of Natural Resources (DNR) agrees the landowners should have. However, the state is not in a position statutorily to relinquish the alternative land to relocate the landholder out of the state park. HB 404 allows the commissioner of DNR to reconvey the land back to the Bureau of Land Management (BLM) which is the entity able to make the exchange. PETE PANARESE, CHIEF, FIELD OPERATIONS, DIVISION OF PARKS AND OUTDOOR RECREATION, DNR, testified via teleconference and expressed support for HB 404. He said the bill will allow the state to reconvey land to the federal government if that land was identified in an amended application for Native allotment under federal law and the original land claimed is within the state park. Allowing the applicants to relocate to state land outside state parks will reduce public impact and speed up finalization of the applications, some of which have been pending for over thirty years. Number 095 REPRESENTATIVE JOHN DAVIES requested a brief overview of what the problem is and how HB 404 solves the problem. MR. PANARESE replied Alaska received title to the land in Wood-Tikchik State Park in 1970. It became a state park in 1978. After the land had received title, allotment applications were filed on the premise that the land was used before it became a state park. The dilemma is the state owns the land and the allottees are claiming that prior use and occupancy. He stressed it will take the federal government many decades to adjudicate all of these lands. The state is attempting to create options for the allottees to relocate outside of the state park and HB 404 provides one of those options. It will provide the DNR commissioner a tool to provide other state land for the allottees. REPRESENTATIVE DAVIES asked what process is involved for the allottees to get the other land. MR. PANARESE responded the allottees need to amend their application from one location to the other. REPRESENTATIVE DAVIES asked if it was then up to the commissioner to make the decision through normal Title 38 processes. MR. PANARESE said that was correct. REPRESENTATIVE HUDSON asked how much land is involved. MR. PANARESE replied there are 159 total allotments throughout the state park system and this is just an option for the allottees. Allottees may wish to stay within the park. He added the acreage involved is approximately 10,000 acres. Number 124 REPRESENTATIVE CON BUNDE asked what limitations are currently in place for owners of the land claimed within the state park other than not being able to sell the land. MR. PANARESE stated for those who own the allotment and received a patent, there are no restrictions on how they use the land. He said the department has numerous applications which HB 404 will provide a tool to finalize. Those applications are affected in that they have to use the land in a very simple manner such as putting up a cabin. Number 140 REPRESENTATIVE BUNDE asked where the additional lands are located which the allottees will receive in exchange for the park land. MR. PANARESE responded the commissioner is going to allow the exchange to take place on all unappropriated lands which the state owns that have no third party interest on them. REPRESENTATIVE ELDON MULDER asked if land received in the exchange will be of similar size and value. MR. PANARESE replied the land will be of like size and value. Number 155 DAN HOURIHAN, AREA RANGER, WOOD-TIKCHIK STATE PARK, testified via teleconference and reiterated Mr. Panarese's remarks. He said the state selected land within Wood- Tikchik State Park in 1961 as part of its statehood entitlement, which at that time was unappropriated federal land. The state then began receiving tentative approval (TA) of patent to that land in 1963. The process was completed by 1964. He stated in 1971, the 1906 Native Allotment Act, which entitled an individual Native allotment to select up to 160 acres of unappropriated federal land based upon certain use and occupancy criteria, was sunsetted with the Alaska Native Claims Settlement Act (ANCSA). Therefore, a number of people with applications who thought they had a valid claim were tendered in 1971 as a part of the sunset. MR. HOURIHAN said in Wood-Tikchik State Park, the applications amounted to 121 parcels of land with an average size of 88 acres. At this date, the vast majority of those applications have not been adjudicated by BLM, which is the agency responsible for adjudicating the validity of those applications based upon use and occupancy criteria. He said the department would like to help expedite the process of transferring lands to Native allotment applicants. That process is complicated for BLM because the land is now owned by the state, and in an attempt to resolve those applications, DNR has worked closely with Native organizations, individual allottees, and state government to identify certain negotiable options which can be made available to allotment applicants. MR. HOURIHAN remarked the idea of relocation is one of the options. In 1992, the U.S. Congress passed a bill, sponsored by Representative Young, which allows an individual allottee to amend his/her original application by identifying different lands in instances where an agreement with the state has been reached on substitute lands. He stressed that bill is in effect and that mechanism is available to allotment applicants. This change in Title 38 will allow those changes to take place and allow the commissioner of DNR to reconvey substitute lands to the federal government. The department feels HB 404 is a valuable option and may be a lucrative option to (indiscernible) allotment applicants. Number 208 REPRESENTATIVE DAVIES asked how many acres there are in the entire Wood-Tikchik State Park and how many acres the 104 applications represent. MR. HOURIHAN replied there are approximately 1.5 million acres in the state park and there are 104 applications for allotment parcels within the park with an average size of 80 acres. He said what is unique about the acreage applied for is that in many cases, the acreage is in areas with a large amount of public use. In many instances, allotment applicants may elect to remain (indiscernible) they have applied to that land and DNR will work closely with those individuals to ensure that in those instances where applications are valid, the allottees receive title to that land as quickly as possible. DNR will work closely with the allottees in order to reach agreement on certain types of land uses which will protect their interests on a long-term basis in terms of subsistence uses and current traditional uses, as well as protect public interest in the park. He added that relocation provides an alternative for those who are interested. Number 232 REPRESENTATIVE DAVIES asked when the original applications were made, were applicants able to apply for more than their allotted share. MR. HOURIHAN responded they were not. REPRESENTATIVE DAVIES asked in the land which the allottees will receive in the exchange, will the state's interest in mineral rights apply. MR. HOURIHAN replied yes. There is no change in the substitute land. (CHAIRMAN WILLIAMS noted for the record that REPRESENTATIVE JAMES joined the committee at 8:30 a.m.) REPRESENTATIVE BUNDE stated it appears that many of the allotments are in access points and asked if applicants could control access points, charge trespass fees, develop the land privately, etc. MR. HOURIHAN stated in the instance of an individual receiving a (indiscernible) allotment to a piece of land, they still maintain a trust relationship with the federal government but on a long-term basis, it is private property and any uses of the land are unrestricted. He cannot speculate on what an individual might do with their private property in the park. REPRESENTATIVE BUNDE clarified there is nothing preventing the proliferation of commercial enterprises in the park if people receiving the property wish to do so. In addition, he said the land was claimed by the state in 1961 and asked if the applications were existing at that time or were they filed after the park was established. MR. HOURIHAN said the state selected the land in 1961 and the majority of the applications for the land were received in 1971. REPRESENTATIVE PAT CARNEY asked when the land is reconveyed to the federal government, is the state compensated in the state's land selection. MR. HOURIHAN replied yes. REPRESENTATIVE JEANNETTE JAMES wondered if there are additional unknown situations of people anxious to take more state land. Number 300 MR. HOURIHAN said there is a mechanism existing in Title 38 which allows the DNR commissioner to reconvey lands to the federal government. (Indiscernible) instances where there may have been an existing valid use at the time of state selection and received a title. He stated that continues to be true in HB 404. Any (indiscernible) of state lands would be predicated upon the state agreeing that an individual had a valid Native allotment application and that although an application had not been filed, the use and occupancy required in the 1906 Native Allotment Act was ongoing. MR. HOURIHAN stressed HB 404 simply follows up on valid applications for allotments. He said HB 404 is not an attempt by individuals to secure state land outside of a program. He felt HB 404 addresses the state's need to recognize that Native allotments did exist at the time the state selected the land and in those instances where people had a valid use, to follow through and ensure those individuals receive the land they are entitled to, while doing their best to protect existing public interests. REPRESENTATIVE JAMES asked if 500,000 acres are going to be taken off the table, will there be enough land in the areas sought by the people affected. MR. HOURIHAN responded he did not believe the people will be deprived. Although the commissioner of DNR has identified all appropriated general state lands for relocation, Mr. Hourihan expects the majority of the allottees interested in relocating, particularly in the Wood-Tikchik area, will relocate to general state lands. Number 369 REPRESENTATIVE CARNEY asked what happens if HB 404 does not pass. How long will it take to get the applications settled. MR. HOURIHAN stated it is difficult to put a time period on the BLM adjudicative process. He said a big delay in the process will be the survey of the lands, which needs to be completed by the federal government. He noted it has been 23 years since the last application came in. REPRESENTATIVE CARNEY asked if surveying will be required for the state land being exchanged. MR. HOURIHAN replied surveying will be required, but because the individual is simply relocating their allotment lands, BLM will follow through with the same process just as they would have in the original application. REPRESENTATIVE CARNEY asked if it is settled and the system is in place, what is the possible outcome. MR. HOURIHAN stated the department has identified other options available to individuals to resolve applications which as of yet have not been adjudicated by the federal government. Not exploring other options will (indiscernible) win/win situations and expedite the adjudication by BLM. He expected individual applications will be handled on a case-by-case basis, as determined by the use and occupancy time period, and the process will probably take about 10-15 years. REPRESENTATIVE CARNEY asked if it is almost certain that the people will eventually get title to the land they have overfiled on. MR. HOURIHAN replied possibly not. It depends on the merits of the particular application and because the BLM adjudicative process is in an early stage, he cannot speculate. Number 418 PERRY AHSOGEAK, REALTY DIRECTOR, TANANA CHIEFS CONFERENCE (TCC), testified via teleconference and stated TCC provides land measurement services under contract to the Bureau of Indian Affairs for Native allotments located within the TCC region. In working on Native allotment applications, he has had the experience of working on land conflicts with the state. Resolving land conflicts requires an extensive amount of time due to the conflicts nature of the lands involved. MR. AHSOGEAK stressed HB 404 will easily resolve the problem by allowing allottees in the state to negotiate on the location of their allotments. With the opportunity to negotiate, the state receives the benefit of spending less staff time in resolving the conflict, and there will be fewer litigation issues. In addition, the allottee receives the benefit of obtaining title within their lapse time to the lands they are entitled to under the Native law. He stated TCC urges the committee to pass HB 404. Number 453 DUGAN NIELSEN, REALTY OFFICER, BRISTOL BAY NATIVE ASSOCIATION, testified via teleconference and stated he has been involved in the Native allotment program for a long time. He said the remaining pending Native allotment applications are in situations where there are conflicts with state land selections. Often times the ability to resolve the problems is limited to going before the Interior Board of Land Appeals. In those cases, there is a winner and a loser but regardless, there is great expense to both parties. Number 475 MR. NIELSEN stated HB 404 provides an opportunity for a win/win solution to land conveyances for both Native allottees and the state of Alaska. He said HB 404 will help avoid years of litigation and tens, if not hundreds of thousands of dollars. He remarked HB 404 is a good bill in that it provides a mechanism for a resolution in those uncertain land ownership situations. Number 486 DONALD TAYLOR, VALDEZ, testified via teleconference and raised questions regarding the reasoning behind HB 404. He wondered whether HB 404 ensures allottees get the same value of land. He felt there will be problems in regard to financial interests, access, etc., if federal, state, and private lands are mixed. He thought it might be better if those three entities are separated, so each agency and private party will benefit in regard to the development of the land. If the land is left to the parks to develop, there may be access problems, water problems, sewer problems, etc. He said the right-of-way access to the private lands may become a real issue and if it gets to the point where the problem cannot be resolved, perhaps the boundaries of the state park can be changed to exclude the allotted lands. Number 540 LAWRENCE MCCUBBINS, HOMER, testified via teleconference and referred the committee to page 2, line 28 of HB 404 which states "management as a unit of the state park system:". He said there is land which the state has not received patent to but has TA. He stated there is an individual he knows who went to a homestead instead of an allotment, got shafted, and the land is now managed by the state park. He asked if a person who has gone through the system of homestead is included in HB 404. MR. PANARESE felt the comparison being made is different than what is being addressed in Wood-Tikchik State Park. The allotment applications are made under federal law and he did not believe homesteading is the same type of issue. MR. MCCUBBINS asked why the language in HB 404 says "managed as a unit" which is land that can be referred to as land which has not been patented. MR. PANARESE explained a TA status of state land gives DNR the management authority over the allotments within the state park unit. He stated he did not understand the question. MR. MCCUBBINS said BLM gave the state the right to manage land which has been selected, whether it be under a TA or not a TA status. When a TA is issued, it cannot be reversed. MR. PANARESE replied the department considers TA to be a working patent; the state is managing the land as if it owns it. HB 404 will provide a tool to change state land locations for the allottees. MR. MCCUBBINS asked once a TA is issued, can it be reversed, eliminated, reassumed by the federal government or issued under any other application. MR. PANARESE said no. MR. MCCUBBINS asked how that can be proved since it has happened. MR. PANARESE replied he did not know. Number 654 REPRESENTATIVE DAVID FINKELSTEIN commented it is possible to reconvey land back to the federal government regardless of what stage it is in. He said he would not be surprised if it had been done in the past, since the state has not filled its allocation. He stated he was not certain how that might relate to HB 404. He thought perhaps Mr. McCubbin's point was if Native allotments are going to be included in HB 404, why not cover homestead act applications as well. MR. MCCUBBINS said that was correct. REPRESENTATIVE FINKELSTEIN felt it is a good question. MR. PANARESE said the question is beyond him. Homesteading has not been considered. REPRESENTATIVE HUDSON asked for an overview of the timetable of the land being discussed. TAPE 94-26, SIDE B Number 000 MR. PANARESE replied the land was selected in 1961. In 1963, TA was received for a working patent to the land and in 1971, most of the applications were filed for land. In 1978, the state land was designated as Wood-Tikchik State Park. REPRESENTATIVE HUDSON asked what the date was for the Alaska Native Claims Settlement Act (ANCSA) which triggered the allotment applications. MR. PANARESE replied it was in 1972. CHAIRMAN WILLIAMS said it was December 18, 1971. REPRESENTATIVE DAVIES asked in the normal process used for the applications, is there a portion of the process which determines whether or not the application is valid. MR. PANARESE said there is a process contained in the 1906 Native Allotment Act which outlines how the project will flow. REPRESENTATIVE DAVIES asked in that process, is there a portion which addresses whether or not an application is valid. MR. PANARESE said yes. REPRESENTATIVE DAVIES wondered if HB 404 is passed, does the state take over that process. MR. PANARESE responded no. The state continues to work with BLM and added this is just an option to try and move the applications in a much more realistic time frame. REPRESENTATIVE DAVIES asked if the state proceeds only after BLM has determined the application is valid. Number 050 MR. PANARESE said the state is negotiating with the allottees while the process is taking place. REPRESENTATIVE DAVIES asked if it is conceivable if HB 404 passes that an applicant with an invalid claim could be granted state land. MR. PANARESE stated it is highly unlikely. REPRESENTATIVE DAVIES expressed concern that if the process is ongoing on in parallel and BLM has not yet determined whether or not an application is valid, the state would not know. MR. PANARESE said the state will make the best interest determination under the guidelines established in Title 38 and move forward on that basis. REPRESENTATIVE BUNDE commented that in the mid-1970s he flew for BLM when they were surveying for Native allotments and stated it was a long, daunting challenge. He added even if HB 404 is passed, the state lands being exchanged will still have to be surveyed by BLM. Therefore, there really is no time advantage. REPRESENTATIVE CARNEY asked if there is any reason not to include individuals who filed under the Federal Homestead Act and were not granted their homestead. MR. PANARESE stated the department's actions are in direct response to amendments to federal legislation under ANCSA. He said he is not prepared to address the homesteading issue. REPRESENTATIVE JAMES thought it would be difficult to put homesteads in the same category with allotments because homesteads by their nature require improvements, while allotments do not. REPRESENTATIVE CARNEY recalled there are situations where people filed for homesteads and lost their filing because of the various acts passed. Number 092 REPRESENTATIVE FINKELSTEIN said he heard someone say that federal law allows movement of a claim. Normally, a claim cannot be moved, either for an allotment or a homestead, because the validity of the claim is based on the particular use and activity in that location. Allotments are required to show history of use at a specific location. He noted the reason HB 404 can apply to allotments is there is a new treatment of allotments in federal law which allows movement. He felt the committee should get a copy of that federal law. MR. PANARESE agreed with Representative Finkelstein. REPRESENTATIVE CARNEY stated he is not satisfied with the answers provided. He felt a determination should be made if there are homestead applicants existing who could be covered by HB 404. CHAIRMAN WILLIAMS asked Mr. Panarese how long it will take him to make that determination. MR. PANARESE said he can look into it. He stated he is not certain there are any homesteads affected, but he will do land status research and get back to the committee within 2- 3 days. REPRESENTATIVE CARNEY noted he is not particularly concerned whether homesteaders are directly affected by HB 404, but rather he is concerned whether or not people who have homestead land from the federal government have in some way lost that homestead right in a federal process. CHAIRMAN WILLIAMS requested Representative Hoffman's office to work with Representative Carney and DNR on the issue. REPRESENTATIVE HUDSON felt it is important that the sponsor of the bill be present at future meetings on HB 404 to answer questions.
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