Legislature(1993 - 1994)

03/07/1994 08:15 AM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
  HB 404 - Native Allotments In State Parks                                    
  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.                                                        
  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                      
  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                    
  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                 
  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                       
  Number 155                                                                   
  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                         
  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                         
  Number 418                                                                   
  (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                      
  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                                                                   
  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                   
  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                        
  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                          
  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                      
  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                    
  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                     
  REPRESENTATIVE DAVIES asked in that process, is there a                      
  portion which addresses whether or not an application is                     
  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                  
  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                       
  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.                                                            

Document Name Date/Time Subjects