Legislature(2003 - 2004)
02/18/2004 03:33 PM Senate RES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 305-ASSERTING STATE TITLE TO SUBMERGED LAND
CHAIR SCOTT OGAN announced SB 305 to be up for consideration.
SENATOR GENE THERRIAULT, sponsor, said one of the issues behind
SB 305 is that people who remember some historic trails and
navigable waters and can help the state assert title will soon
be gone. He explained:
With the withdrawal of federal lands at statehood in
1959, Alaska received title to - under the Equal
Footing Doctrine - to all submerged lands under state
navigable waters and marine waters out to three miles.
Unfortunately, the federal government has been slow in
conceding this navigability. Since Alaska entered the
Union, the federal courts have determined fewer than
20 rivers to be navigable. Unless the state is pro-
active in asserting its claims, it stands to lose up
to 60 million acres of land that were due to it
because of becoming a state. In some cases, the
federal government has used every possible legal
tactic under the federal Quiet Title Act to impede the
state's assertion of ownership. The Black, Kandik and
Nations Rivers in northeast Alaska are examples. These
three rivers clearly meet the criteria established by
the federal courts for determining navigability in
Alaska. Although no one has contested the state's
claim that these streams meet federal criteria, this
case took nine years and millions of state and federal
dollars to litigate. Eventually the state won two of
the three claims and the third was recently resolved
by the federal recordable disclaimer of interest in
2003.
In addition, prior to 1989 the federal government
applied incorrect standards to determine navigability
and may have mistakenly conveyed state-owned lands to
Native corporations, clouding the title to hundreds of
thousands, if not millions, of acres. This is a
critical topic as Congress considers deadlines for
completing the land selection and conveyance
processes. Of course, those deadlines are being
suggested by our own congressional delegation.
Contributing to the problem is the lack of a
reasonable and efficient way for the state to secure
title to its submerged lands. SB 305 takes three steps
to begin the process of identifying these state
claims. First, SB 305 provides notice to all parties
that the state is laying claims to all submerged lands
except those withdrawn at the time of statehood that
meet the standards and criteria established in the
Submerged Lands Act and in various federal court
decisions.
So, we're just making a blanket statement that unless
it was reserved at the time of statehood, the state is
laying claim at this time to all submerged lands that
lie under navigable water ways.
Second, it provides authority for the state's agencies
to identify in accordance with the appropriate federal
and state laws which water bodies the state claims is
navigable and non navigable. This will help the state
clarify criteria for identifying navigable waters,
address conflicts involving clouded titles due to the
inaccurate conveyances by BLM management and more
clearly delineate its title claims. There the bill
directs the Department of Natural Resources (DNR) to
give notice to all private property owners, including
Native corporations created under the Alaska Native
Claims Settlement Act that may have received title to
lands that could have erroneously included state
submerged lands in their conveyance. This is critical
to resolve future problems regarding mineral
development, gravel extraction, access and other
related land uses.
SENATOR THERRIAULT noted that if submerged land comes out of the
Native corporation entitlement, they are due more land. So, he
felt it behooved them to work with the state to resolve this
problem. He concluded:
This legislation is only a step for the state to
eventually resolve the title disputes over its
submerged lands and deals only with the issue of state
title to submerged lands. It does not address
conflicts over federal fish and wildlife management in
state navigable waters created by the Federal Reserve
Water Rights criteria.
SENATOR ELTON said if this bill passes, he assumes that
different entities could challenge it. He asked if Senator
Therriault could quantify how many conveyances to village
corporations have occurred that would need to be reviewed under
this bill.
SENATOR THERRIAULT replied that he didn't know and that folks
from the Department of Natural Resources (DNR) could testify on
that.
SENATOR ELTON asked if it would be reasonable to assume if land
had been conveyed to a village or a regional corporation, that
it was because they wanted those submerged lands and that they
might want to protect the ownership right they thought they had.
SENATOR THERRIAULT said that could be the case for some, but
other corporations may be interested in not having the submerged
land count against their acreage and claim additional uplands
instead.
SENATOR RALPH SEEKINS asked if lands were conveyed erroneously,
wouldn't that be a wrongful conveyance and need to be corrected
sooner or later.
SENATOR THERRIAULT replied certainly, the sooner it's cleared
up, the better. The trigger would be a determination of
navigability on that particular stretch of water. The Gulkana
case has established clear criteria from which the state can
make assertions.
SENATOR SEEKIN asked if the Native corporations should have an
interest in clearing their land titles.
SENATOR THERRIAULT responded that he thought the corporations
would want to know what land was theirs, just like the state
does.
CHAIR OGAN asked what the following language on page 3, line 13,
meant and how he envisioned it working:
(6) in 1989, the United States Court of Appeals for
the Ninth Circuit ruled that the Bureau of Land
Management had applied incorrect standards in
determining navigability for its land conveyances;
however, the Bureau of Land Management has not
reconsidered most of its pre-1989 determinations;
SENATOR THERRIAULT replied that Dick Mylius, DNR, could talk
about the technical details, but the determination would be made
under federal law on court criteria that had been established
through litigation. He felt it is more important that the state
move forward on its assertions than to make a list of rivers for
the public, at this point.
MR. DICK MYLIUS, Deputy Director, Division of Mining, Land and
Water, DNR, said the department is being asked to inventory all
past determinations that had been made, most significantly by
the BLM. It envisioned inventorying those lands, but not making
a decision on every stream.
CHAIR OGAN asked if the department would be looking mostly at
BLM determinations.
MR. MYLIUS replied yes because the BLM has done most of them,
but the court had done a few, also. The DNR has made about 100
navigability determinations (although the bulk of them may have
come through BLM conveyances).
CHAIR OGAN asked how the department had determined navigability
- by floating a boat on it?
MR. MYLIUS replied that is generally correct. The Gulkana case
states a raft that can carry 1,000 pounds is navigable criteria.
SENATOR SEEKINS asked if there was any tension between the
entities that had determined navigable waters.
MR. MYLIUS replied the department would not limit itself to only
BLM conveyances.
SENATOR SEEKINS asked if the state is asserting title on the
lands regardless of who determined it.
MR. MYLIUS replied yes, but if the assertion was challenged, the
courts would resolve the dispute.
SENATOR ELTON asked if a dispute arises between the state and
someone who thought they had been conveyed submerged lands,
would that dispute go to state court or federal court or either
court.
MS. GRACE jumped in and replied that it would depend on whether
the United States was a party. A dispute between a private party
and the state would be resolved in state court.
SENATOR WAGONER said Mt. Redoubt erupted years ago and channeled
the Drift River into Montana Bill Creek. Since then, the Drift
River had switched back to its original channel. Montana Bill
Creek probably would not have been classified as navigable at
the time, but the Drift River would have. He asked what
classification it would have.
TAPE 04-10, SIDE B
MR. MYLIUS replied that is very difficult to determine. If the
river was navigable at statehood and changed because of a
natural occurrence and the change could be seen, it's possible
that state ownership would still be in the old river corridor.
CHAIR OGAN asked him if he has an inventory of potential
navigable waters.
MR. MYLIUS replied that the department doesn't have a
comprehensive list of all state rivers, but it does have a
comprehensive list of over 200 rivers that are clearly
navigable.
CHAIR OGAN asked if this situation was similar to the one a few
years ago when the BLM extensively identified and mapped rights-
of-way for RS2477s.
MR. MYLIUS replied that the RS2477 project tried to dig up
historical information that might not be available in the
future. This is more like a project digging through BLM and
state files to figure out what's there.
CHAIR OGAN said testimony has indicated that it would take many
lifetimes to prove up on the navigable water claims and yet
people who have the histories are passing away. He asked if Mr.
Mylius thought the state was losing something by not doing that
historical research now.
MR. MYLIUS replied that the BLM did historical research and
compiled an extensive navigability portfolio and the state wants
to get a copy of it. Yes, some information will be lost because
people with historical knowledge are dying. He clarified that
the standard the state has to prove is that the river was
acceptable for use at statehood, not that it was actually used,
a somewhat lower standard than for RS2477s.
SENATOR SEEKINS asked if the intent of this effort is to assert
title the state was granted under the Equal Footing Doctrine and
the Submerged Lands Act.
MR. JOE BALASH, Staff to Senator Therriault, said the Senator
had to step out and answered that is correct. One of the
concerns is that another 45 years could pass before someone
tries to get title for the state. The court, at that time, could
look back and say the state never really tried.
SENATOR SEEKINS read the pertinent part of the Submerged Lands
Act into the record:
43 U.S.C. 13.11 Rights of the States [under the
Submerged Lands Act of 1953]
It is hereby determined and declared to be in the
public interest that (1) title to and ownership of the
lands beneath navigable waters within the boundaries
of the respective states, and the natural resources
within such lands and waters, and (2) the right and
power to manage, administer, lease, develop and use
the said lands and natural resources all in accordance
with applicable state law be, and they are hereby
subject to the provisions hereof recognized,
confirmed, established and vested in and assigned to
the respective states....
(b)(1) The United States hereby releases and
relinquishes unto the said states [and persons
aforesaid], except as otherwise reserved herein, all
right, title, and interest of the United States, if
any it has, in and to all said lands, improvements,
and natural resources;....
SENATOR SEEKINS said that is the issue the state is battling. We
have a quitclaim in the 1953 Submerged Lands Act, but yet the
quitclaim has no validity because title hasn't been transferred.
SENATOR ELTON asked if a trapper running his dog team up a
stream in the wintertime makes it a navigable waterway - even
though the water isn't flowing.
MR. MYLIUS replied no and that the traditional definition of
navigable refers to, basically, flowing water.
CHAIR OGAN announced that SB 305 would be set aside.
SB 305-ASSERTING STATE TITLE TO SUBMERGED LAND
CHAIR SCOTT OGAN announced SB 305 to be up for consideration
again.
SENATOR THOMAS WAGONER moved to pass SB 305 from committee with
individual recommendations and attached fiscal note.
SENATOR ELTON objected to make a statement.
I don't have a good enough grasp, yet, to know whether
I should object or not. So, I'm going to sign 'no rec'
on this, but clearly this is a rather broad assertion
and it seems to me that if, in fact, we do, it's going
to be more than just a catalogue exercise on the part
of DNR - that, in fact, we may be setting in motion.
It's like tugging at the shorts on one end of the
clothesline and not watching the pants jump at the
other end. I would anticipate it's the kind of
sweeping assertion of rights that could lead us into
extended litigation with entities who already have
conveyed land. I don't understand all of the
implications of that. I'm not going to vote no; I'm
going to withdraw my objection. Let's just say I have
a lot of questions that surround this, yet.
CHAIR OGAN said he felt very strongly about expanding the
state's efforts with resource development and this issue is
probably one of the most important things the Legislature could
do for the future of the state. He noted that Senator Elton's
objection had been removed and that SB 305 had moved from
committee.
CHAIR OGAN noted that the whole committee was present except
Senator Lincoln.
| Document Name | Date/Time | Subjects |
|---|