Legislature(2021 - 2022)BUTROVICH 205

04/08/2022 03:30 PM Senate RESOURCES

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 227 STATE OWNERSHIP OF SUBMERGED LAND TELECONFERENCED
Heard & Held
-- Invited & Public Testimony --
*+ SB 228 OUTSTANDING NAT'L RESOURCE WATER TELECONFERENCED
Heard & Held
<Bill Held Over from 4/6/22>
-- Invited & Public Testimony --
+ Bills Previously Heard/Scheduled: TELECONFERENCED
+= SB 177 MICROREACTORS TELECONFERENCED
<Bill Hearing Canceled>
**Streamed live on AKL.tv**
            SB 227-STATE OWNERSHIP OF SUBMERGED LAND                                                                        
                                                                                                                                
3:35:38 PM                                                                                                                    
VICE CHAIR  MICCICHE announced the  consideration of  SENATE BILL                                                               
NO. 227  "An Act  relating to state  ownership of  submerged land                                                               
within  and  adjacent to  federal  areas;  and providing  for  an                                                               
effective date."                                                                                                                
                                                                                                                                
VICE  CHAIR  MICCICHE  invited  Mr. Goodrum  and  Mr.  Walker  to                                                               
present the bill.                                                                                                               
                                                                                                                                
3:36:37 PM                                                                                                                    
BRENT  GOODRUM,   Deputy  Commissioner,  Department   of  Natural                                                               
Resources,  Anchorage, Alaska,  stated  that  SB 227  principally                                                               
relates  to  identifying  and  codifying  state  submerged  lands                                                               
within federal areas. The committee's  actions on this bill could                                                               
be the most  impactful regarding how Alaskans  understand and can                                                               
fully realize  their hard-earned  right achieved  at the  time of                                                               
statehood.  When  Alaska  became  a  state  in  1959,  it  became                                                               
entitled to all  incidences of ownership in  its navigable rivers                                                               
and lakes,  yet it is  effectively deprived of clear  title under                                                               
the  equal  footing  doctrine. Nonetheless,  the  state  doggedly                                                               
presses forward  to assert that  these rights are  worth fighting                                                               
for 63 years later.                                                                                                             
                                                                                                                                
MR. GOODRUM  stated that  the current  status quo  of uncertainty                                                               
and  ambiguity  of  ownership, management,  and  control  of  the                                                               
state's navigable water bodies is  not in Alaska's best interest.                                                               
The state  has patiently  waited for  the federal  authorities to                                                               
make  their  declarations  known regarding  the  navigability  of                                                               
Alaska's  water bodies.  He offered  his view  that the  time has                                                               
come  for the  state to  decisively take  action to  identify and                                                               
codify the navigable  rivers and lakes for  future generations of                                                               
Alaskans  and its  visitors,  so they  confidently  know who  has                                                               
ownership, management,  and control. The  state ought to  be able                                                               
to fully identify and manage its property.                                                                                      
                                                                                                                                
3:39:50 PM                                                                                                                    
JIM  WALKER,   Section  Manager,  Public  Access   Assertion  and                                                               
Defense,  Division  of Mining,  Land,  and  Water, Department  of                                                               
Natural Resources  (DNR), Anchorage,  Alaska, began  a PowerPoint                                                               
on SB  227. He stated that  the issue is straightforward  but has                                                               
become needlessly complicated.                                                                                                  
                                                                                                                                
MR.  WALKER  paraphrased  the  bullet  points  on  slide  2,  The                                                               
Navigable Waters Issue.                                                                                                         
                                                                                                                                
[Original punctuation provided.]                                                                                                
                                                                                                                                
                                                                                                                                
   • Alaska holds an estimated 800,000 miles of navigable                                                                       
     rivers.                                                                                                                    
   • Alaska holds an estimated 30 million acres of                                                                              
     navigable lakes.                                                                                                           
   • Alaska owns the submerged lands beneath every                                                                              
     navigable in-fact river and lake, and beneath tidally                                                                      
       influenced waters in the state--unless a valid pre-                                                                      
     statehood withdrawal EXPLICITLY defeats state title.                                                                       
   • In Federal Conservation System Unit areas created in                                                                       
       Alaska post-statehood, the submerged lands beneath                                                                       
      navigable-in-fact and tidally influenced waters are                                                                       
     state-owned lands.                                                                                                         
                                                                                                                                
3:40:49 PM                                                                                                                    
MR.  WALKER  reiterated that  the  equal  footing doctrine,  also                                                               
known  as  equality  of  the  states,  is  the  principle  in  US                                                               
constitutional law  that all states  admitted to the  Union since                                                               
1789  enter  on  equal  footing with  the  original  13  colonies                                                               
already in the Union.                                                                                                           
                                                                                                                                
3:41:50 PM                                                                                                                    
MR. WALKER reviewed slide 3, Federal Areas Where SOA Owns                                                                       
Submerged Lands, which shows a sampling of some post-statehood                                                                  
withdrawals where the state of Alaska owns the submerged lands.                                                                 
                                                                                                                                
     National Park Service:  Noatak National Preserve (NPr),                                                                  
     Kobuk  Valley National  Park (NP),  Bering Land  Bridge                                                                    
     NPr, Denali  National Park  and Preserve  (NPP) (ANILCA                                                                    
     additions),  Wrangell-St. Elias  NPP, Glacier  Bay NPP,                                                                    
     Katmai NPP, Kenai  Fjords NP, Gates of  the Arctic NPP,                                                                    
     Lake Clark NPP, Yukon-Charley Rivers NPr, etc.                                                                             
                                                                                                                                
     U.S.  Fish  and  Wildlife  Service:  Becharof  National                                                                  
     Wildlife Refuge (NWR), Innoko  NWR, Izembek NWR, Kanuti                                                                    
     NWR, Kenai  NWR, Kodiak NWR, Koyukuk  NWR, Nowitna NWR,                                                                    
     Selawik NWR,  Tetlin NWR, Togiak NWR,  Yukon Delta NWR,                                                                    
     Yukon Flats NWR, etc.                                                                                                      
                                                                                                                                
     U.S. Forest  Service: Tongass National  Forest, Chugach                                                                  
     National Forest                                                                                                            
                                                                                                                                
     Bureau  of  Land  Management:  Beaver  Creek  Wild  and                                                                  
     Scenic River  (WSR), Birch  Creek WSR,  Fortymile River                                                                    
     WSR,  Gulkana River  WSR, Unalakleet  River WSR,  Delta                                                                    
     River WSR, etc.                                                                                                            
                                                                                                                                
3:42:05 PM                                                                                                                    
MR. WALKER paraphrased the bullet points on slide 4, Status of                                                                  
Efforts to Clear Title 1959 to Present.                                                                                         
                                                                                                                                
     The  federal  government  acknowledges  Alaska's  clear                                                                    
     title to its  submerged lands beneath navigable-in-fact                                                                    
     and tidally influenced rivers and lakes in only:                                                                           
                                                                                                                                
     • Only 9 percent of 800,000 river miles  of submerged                                                                      
        lands under state-owned rivers.                                                                                         
                                                                                                                                
     • Only 16 percent of  30,000,000  acres of  submerged                                                                      
        lands under state-owned lakes.                                                                                          
                                                                                                                                
MR. WALKER related that clearing the title will take hundreds of                                                                
years and tens of millions of dollars at this rate.                                                                             
                                                                                                                                
3:43:13 PM                                                                                                                    
MR. WALKER reviewed slide 5, Sturgeon v. Frost, 136 S. CT. 1061                                                                 
(2016), 139 S. CT. 1066(2019).                                                                                                  
                                                                                                                                
     US Supreme Court rules unanimously federal regulations                                                                     
        do not supersede SOA ownership and management of                                                                        
     navigable waters in ANILCA CSUs.                                                                                           
                                                                                                                                
MR. WALKER  stated that SB  227 builds  on the Sturgeon  v. Frost                                                               
decision by applying it statewide to other federal CSUs.                                                                        
                                                                                                                                
3:43:48 PM                                                                                                                    
MR.  WALKER  reviewed slide  6,  The  Navigability Phase  of  the                                                               
Initiative,  which  depicted a  series  of  assertions, shown  in                                                               
ovals  or  bubbles  that  fit   in  with  the  "Unlocking  Alaska                                                               
Initiative" that  began a  year ago with  phase one.  He reviewed                                                               
several assertions:                                                                                                             
                                                                                                                                
      Intensify quiet title litigation against the federal                                                                      
     government                                                                                                                 
                                                                                                                                
     Assert state management of submerged lands in federal                                                                      
     areas.                                                                                                                     
                                                                                                                                
      Legislatively codify state-owned navigable waters in                                                                      
     federal areas.                                                                                                             
                                                                                                                                
MR. WALKER stated  that SB 227 builds on work  his section of DNR                                                               
has  undertaken  over the  past  year  to analyze  federal  areas                                                               
throughout  Alaska   to  identify   navigable  tidally-influenced                                                               
waters. SB  227 includes 1,873  rivers and lakes  within National                                                               
Park Service (NPS)  and Tongass National Forest  areas in Alaska.                                                               
He indicated  that if SB 227  were to pass, he  would come before                                                               
the  legislature  for  several  years to  satisfy  the  reporting                                                               
requirement  in  SB 227.  He  noted  that  the next  phase  would                                                               
increase the list to include  navigable waters, rivers, and lakes                                                               
within  the Chugach  National  Forest and  US  Fish and  Wildlife                                                               
Service (USF&WS) areas.                                                                                                         
                                                                                                                                
3:46:20 PM                                                                                                                    
MR.   WALKER  read   slides  7   and  8,   Proposed  Codification                                                               
Legislation.                                                                                                                    
                                                                                                                                
[Original punctuation provided.]                                                                                                
                                                                                                                                
     • Codifies SOA ownership, management and control of                                                                        
        navigable waters and submerged lands within federal                                                                     
        areas not covered by a valid pre-statehood                                                                              
        withdrawal explicitly defeating state title.                                                                            
                                                                                                                                
     • Sets forth specific navigable waters and submerged                                                                       
       lands in federal areas statewide belonging to SOA.                                                                       
                                                                                                                                
    • Sets forth example "susceptibility" criteria derived                                                                      
        from    caselaw    to    guide    in    navigability                                                                    
        determinations.                                                                                                         
                                                                                                                                
3:46:34 PM                                                                                                                    
MR. WALKER stated  that this mirrors the navigable  waters in the                                                               
RS 2477  [Revised Statute 2477  (Section 8  of the Mining  Act of                                                               
1866)] upon which this bill  is based., so the federal government                                                               
and the general  public relying on the map of  navigable water or                                                               
referencing  the statutes  [AS 38.04]  will know  precisely where                                                               
state or  federal property lies.  The bill also sets  forth basic                                                               
susceptibility  criteria  derived  from  the case  law  to  guide                                                               
navigability determinations made by DNR.                                                                                        
                                                                                                                              
       • Proposed statute contains an annual reporting                                                                        
        requirement                                                                                                           
        • FIRST PHASE: All NPS areas statewide and Tongass                                                                      
          National Forest.                                                                                                      
        • SECOND PHASE: USFWS refuges and Chugach National                                                                      
          Forest.                                                                                                               
        • THIRD PHASE: Remaining USFWS refuges and BLM                                                                          
          lands.                                                                                                                
        • FOURTH PHASE: Ongoing process of clarification,                                                                       
          modification and amendment.                                                                                           
                                                                                                                                
    • Framework for proposed statute is based upon RS 2477                                                                      
       ROW codification project of 1990s [AS 19.30.400].                                                                        
                                                                                                                                
3:48:16 PM                                                                                                                    
MR.  WALKER noted  that slides  9    12 relate  to the  sectional                                                               
analysis of the bill, but he would not cover them at this time.                                                                 
                                                                                                                                
3:48:31 PM                                                                                                                    
MR. WALKER  advanced to slides  12 and 13,  State-Owned Navigable                                                               
Waters Federally  Acknowledged to Date and  State-Owned Navigable                                                               
Waters After  Proposed Codification, which consisted  of two maps                                                               
of the State of Alaska.                                                                                                         
                                                                                                                                
MR. WALKER indicated  that the two maps provide  an overall sense                                                               
of the  areas addressed by  the bill. He  said he was  unsure why                                                               
the  federal   government  was  reticent  to   acknowledge  state                                                               
ownership. He surmised  that the federal government  may not want                                                               
in-holdings within  federal land to co-manage  or have concurrent                                                               
land management.                                                                                                                
                                                                                                                                
MR. WALKER  explained that slide  12 is color-coded,  showing the                                                               
navigable and undetermined waters, and  slide 13 shows the state-                                                               
owned navigable waters after the passage of SB 227.                                                                             
                                                                                                                                
3:50:02 PM                                                                                                                    
MR.  WALKER  advanced to  slide  14,  Noatak NP/Kobuk  Valley  NP                                                               
Federally Acknowledged Navigable Waters  to Date, which shows the                                                               
Noatak National  Preserve in  tan and  the Kobuk  Valley National                                                               
Preserve in green.  The navigable rivers and  waterways are shown                                                               
in  blue, the  undetermined ones  in pink,  and the  conflicts in                                                               
blue and pink combined.                                                                                                         
                                                                                                                                
MR. WALKER reported  that the only rivers  the federal government                                                               
has acknowledged as navigable within  the two large preserves are                                                               
a  portion of  the Noatak  River in  the tan  area and  the Kobuk                                                               
River  depicted in  the green  area on  the map.  He noted  every                                                               
river shown in  blue is identified in the 1,873  rivers and lakes                                                               
defined within the statute.                                                                                                     
                                                                                                                                
3:51:13 PM                                                                                                                    
MR.  WALKER  advanced to  slide  15,  Noatak NP/Kobuk  Valley  NP                                                               
Navigable Waters  after Codification,  which shows  the increased                                                               
state-owned navigable  waters were  SB 227  to pass.  He directed                                                               
attention to the  undetermined areas as depicted  in pink, noting                                                               
that DNR took a  conservative approach when making determinations                                                               
because the  public relies  on them  when traveling  on navigable                                                               
waters, whether  motorized or non-motorized vessels  are allowed,                                                               
and whether state or federal  laws apply. However, he stated that                                                               
if DNR litigated the navigable  rivers, it would move those lines                                                               
further into the headwaters.                                                                                                    
                                                                                                                                
3:51:36 PM                                                                                                                    
SENATOR VON IMHOF joined the meeting.                                                                                           
                                                                                                                                
3:53:00 PM                                                                                                                    
VICE  CHAIR  MICCICHE  directed  attention  to  the  undetermined                                                               
waterways shown in  pink on slide 15, Noatak  NP/KOBUK VALLEY NP.                                                               
He  wondered whether  the waterways  listed as  undetermined were                                                               
ones that DNR had deemed as not navigable.                                                                                      
                                                                                                                                
3:53:24 PM                                                                                                                    
MR.  WALKER answered  no.  He said  that in  this  first wave  of                                                               
legislation,  the undetermined  waterways depicted  in pink  were                                                               
waterways  that   the  department  has  not   yet  identified  as                                                               
navigable waters. He  stated that with the initial  bill, DNR has                                                               
substantially  enhanced the  inventory  of state  waters. DNR  is                                                               
reserving judgment on the upper headwaters to a later date.                                                                     
                                                                                                                                
3:53:56 PM                                                                                                                    
SENATOR  KAWASAKI asked  whether DNR  set a  confidence level  or                                                               
used technical information to make the determination.                                                                           
                                                                                                                                
MR. WALKER answered that DNR  applied a strict methodology, using                                                               
a group of  technical experts within his section  in the Division                                                               
of  Mining,  Land,  and  Water,   who  examined  aerial  imagery,                                                               
historical accounts, and other proof  that would be considered in                                                               
quiet title  litigation. He indicated that  the technical experts                                                               
were confident in  their determinations. He said  DNR would stand                                                               
behind their navigable water determinations  and allow the public                                                               
to access the waterways.                                                                                                        
                                                                                                                                
3:55:11 PM                                                                                                                    
MR. WALKER advanced to slide 16, Proposed Legislation.                                                                          
                                                                                                                                
    Alaska's   Ownership   of   Submerged   Lands   beneath                                                                     
     Navigable  in-fact and  Tidally  Influenced Rivers  and                                                                    
     Lakes is One of the Fundamental Promises of Statehood.                                                                     
                                                                                                                                
         It's been 62 years. It is time for the Federal                                                                         
     Government to keep its promise to the State of Alaska.                                                                     
     SB 227 is a BOLD step in that direction.                                                                                   
                                                                                                                                
MR.  WALKER reiterated  that SB  227,  which is  phase one,  more                                                               
accurately  codifies what  the state  truly  owns within  federal                                                               
areas statewide. SB 227 is phase  one of the project. The goal is                                                               
for DNR to  make determinations to identify lands  that belong to                                                               
the  state,  bringing clarity  to  title  to state  lands  within                                                               
federal lands.                                                                                                                  
                                                                                                                                
MR. WALKER urged members to pass SB 227.                                                                                        
                                                                                                                                
3:56:43 PM                                                                                                                    
SENATOR STEVENS  asked how DNR  would enforce the  state's rights                                                               
with the federal government.                                                                                                    
                                                                                                                                
MR. WALKER  answered that the  federal government's  position has                                                               
been vague, that maybe it is  or is not state navigable water, so                                                               
the  federal government  retains  possession.  That position  has                                                               
made  it difficult  for  the  state to  assert  its ownership  in                                                               
federal court.  However, this bill  would assert  state ownership                                                               
and  force the  federal agencies  to acknowledge  or dispute  the                                                               
state's claims,  allowing the state  to litigate. He  provided an                                                               
example to illustrate  his point. The federal  agencies have been                                                               
issuing permits  precluding operators  from doing  certain things                                                               
on state  submerged lands. Several operators  applied for permits                                                               
this past  year for a  mooring buoy  or boat storage  at Crescent                                                               
Lake  on   state  submerged  land.   It  led  to   a  painstaking                                                               
navigability determination  and ultimately  the state  issued the                                                               
permit. The  federal agencies responded that  the state shouldn't                                                               
issue the permits.                                                                                                              
                                                                                                                                
4:02:52 PM                                                                                                                    
VICE CHAIR MICCICHE invited Ms. Alloway to testify.                                                                             
                                                                                                                                
4:02:58 PM                                                                                                                    
JESSIE ALLOWAY, Solicitor  General; Statewide Section Supervisor,                                                               
Opinions,   Appeals,   and   Ethics  Section,   Civil   Division,                                                               
Department of  Law, Anchorage, Alaska, emphasized  that the state                                                               
should  move   away  from  asking  the   federal  government  for                                                               
permission  to  manage  state-owned   lands.  The  equal  footing                                                               
doctrine transferred these  lands as a matter of law  at the time                                                               
of  statehood.  The state  does  not  need  a  quiet title  or  a                                                               
recordable disclaimer of  interest, but in the  past, Alaska took                                                               
the position  that it  was required  to manage  state-owned land.                                                               
She stated that the Sturgeon  decision [Sturgeon v. Frost, 136 S.                                                               
CT. 1061 (2016),  139 S. CT. 1066(2019)] shifted  the dynamic and                                                               
made it clear  that navigable waterways are  not within federally                                                               
managed  CSUs.  This legislation  fills  a  gap that  has  always                                                               
benefitted  the federal  government. She  agreed with  Mr. Walker                                                               
that the federal  land managers would often not  decide whether a                                                               
waterway is navigable.  SB 227 would indicate  that per Sturgeon,                                                               
DNR  has  identified this  as  a  navigable waterway,  and  state                                                               
management and  rules will  apply. If  the federal  land managers                                                               
disagree with  DNR's navigability  determination, the onus  is on                                                               
them  to make  a  determination, which  could  be litigated.  The                                                               
state  would  manage  its  state-owned   lands  if  federal  land                                                               
managers agreed.                                                                                                                
                                                                                                                                
4:05:36 PM                                                                                                                    
SENATOR  KIEHL referred  to Mr.  Walker's  Crescent Lake  mooring                                                               
buoy and boat storage issues in  2021. He asked whether the state                                                               
would be precluded from litigating  if the federal government had                                                               
responded that the state could not issue a permit.                                                                              
                                                                                                                                
MS. ALLOWAY answered that the  state could not have litigated the                                                               
matter  because  there  was  no case  or  controversy  since  the                                                               
federal government  did not take  a solid position  on ownership.                                                               
She explained  that if  the federal  government had  responded by                                                               
saying the state  could not issue permits for  mooring buoys, she                                                               
would interpret that to mean  they were asserting land ownership.                                                               
At that  point, either party could  file a quiet title  action in                                                               
court.                                                                                                                          
                                                                                                                                
4:07:09 PM                                                                                                                    
VICE CHAIR  MICCICHE asked  whether the passage  of SB  227 would                                                               
allow the  state to go  to court  and assert state  ownership. He                                                               
surmised that the federal government  would likely challenge some                                                               
of the navigable waterways.                                                                                                     
                                                                                                                                
4:08:04 PM                                                                                                                    
MS.   ALLOWAY  answered   that  is   correct.  She   related  her                                                               
understanding  that DNR  had identified  the navigable  waterways                                                               
and  is confident  that they  are navigable  in fact.  She opined                                                               
that the  federal government would  not challenge  many navigable                                                               
waterway  determinations   but  reluctantly  accept   them.  Some                                                               
disputes  might need  to be  litigated. She  stated that  DNR was                                                               
currently  litigating  several  cases   hoping  to  answer  those                                                               
questions. As  more claims are  litigated, the state  will better                                                               
understand the ownership of the smaller waterways.                                                                              
                                                                                                                                
4:09:09 PM                                                                                                                    
VICE  CHAIR MICCICHE  referred to  page 5,  line 15,  Plenty Bear                                                               
Creek.  He stated  that DNR  believes that  there is  a point  in                                                               
Plenty  Bear Creek  that  the state  believes  is navigable,  and                                                               
there was  a point where it  becomes headwaters. He asked  if DNR                                                               
had an idea of when the creek becomes non-navigable.                                                                            
                                                                                                                                
MR. WALKER answered  yes. He stated that Plenty Bear  Creek has a                                                               
number  assigned  to  it,  number 10,  which  correlates  to  the                                                               
official state  navigable waters  map. He noted  that this  is on                                                               
the Alaska map  program. The user can drill  down with increasing                                                               
specificity,  focus   on  the  creek,  and   determine  when  the                                                               
navigability changes  from exceptionally high to  something else.                                                               
He did not  recall specifically, but typically  there are natural                                                               
features such as  a landing strip or some  historical account the                                                               
department used to make the determination.                                                                                      
                                                                                                                                
4:11:27 PM                                                                                                                    
SENATOR KIEHL  referred to Sections  6 and  7 of the  bill, which                                                               
define  terms used  in determining  navigability. He  wondered if                                                               
any  of these  were  in  question or  if  these  terms are  well-                                                               
established case law. He asked  how contentious these definitions                                                               
were.                                                                                                                           
                                                                                                                                
4:12:27 PM                                                                                                                    
MS.  ALLOWAY  responded that  the  federal  government may  still                                                               
contest the  definitions, even though  DNR pulled them  from case                                                               
law. For example,  the Gulkana River was litigated  in the 1980s.                                                               
In that case, the Ninth  Circuit Court of Appeals (Ninth Circuit)                                                               
opined that if a person could  float an inflatable raft down that                                                               
waterway to fish,  it was sufficient commercial  use to establish                                                               
that it was a highway of commerce.                                                                                              
                                                                                                                                
MS. ALLOWAY noted that in  current litigation, attorneys continue                                                               
to  argue  whether   an  inflatable  raft  is   a  customary  and                                                               
traditional  watercraft. She  stated  that she  was confident  in                                                               
reviewing this legislation that everything  in it is supported by                                                               
federal case law,  either by the Ninth Circuit or  the US Supreme                                                               
Court.  However,  her  hesitancy  in responding  is  because  the                                                               
federal government could likely contest whether it's true.                                                                      
                                                                                                                                
MR. WALKER added  that all these definitions,  except for federal                                                               
areas,  could be  found elsewhere  in statute.  For example,  the                                                               
Alaska  Department of  Fish and  Game may  use the  term ordinary                                                               
high water  mark or mean  high water  line. He stated  that these                                                               
definitions are similar and primarily mirrored in AS 38.04.                                                                     
                                                                                                                                
4:14:42 PM                                                                                                                    
SENATOR KIEHL  agreed with the  deputy commissioner,  the section                                                               
chief,  and  the  assistant  attorney  general  that  the  second                                                               
Sturgeon case said what it said.  He said he was trying to figure                                                               
out  what SB  227 effectively  does legally.  He referred  to the                                                               
ovals on slide 6.                                                                                                               
                                                                                                                                
      Legislatively codify state owned navigable waters in                                                                      
     federal areas.                                                                                                             
                                                                                                                                
SENATOR  KIEHL  asked  if  the bill  doesn't  pass,  whether  the                                                               
department will continue to move forward with the assertions.                                                                   
                                                                                                                                
MR. WALKER answered  that the department intends  to move forward                                                               
with all the assertions in the  ovals on the slide. He emphasized                                                               
that  SB  227  is  important  because  it  would  clearly  assert                                                               
Alaska's  ownership of  these  lands.  The bill  and  the map  of                                                               
navigable waters  could help clear  up anything murky.  He agreed                                                               
that  DNR's  efforts  wouldn't  come to  a  standstill,  and  the                                                               
department  would continue  to move  forward if  the bill  didn't                                                               
pass.  However, it  would  be easier  if the  bill  were to  pass                                                               
because  it asserts  state ownership.  He referred  to the  Ninth                                                               
Circuit  in  the  Black  River   decision.  The  court  used  the                                                               
expression  "a dog  in the  manger   The  Ninth Circuit  Court of                                                               
Appeals  opined that  the federal  government, in  many respects,                                                               
seemed to behave  like a dog in the manger,  where the dog guards                                                               
the food  trough and won't  let allow other animals  have access.                                                               
The dog  doesn't eat the food,  but it won't allow  other animals                                                               
access.                                                                                                                         
                                                                                                                                
4:17:44 PM                                                                                                                    
MR.  WALKER  offered his  view  that  that  is what  the  federal                                                               
government  does, through  inaction, by  being vague,  that maybe                                                               
it's  navigable water  and maybe  it's not.  This frustrates  the                                                               
state's  ability  to fully  realize  state  ownership granted  at                                                               
statehood. He reiterated that SB  227 would help make the state's                                                               
case of asserting ownership, management, and control.                                                                           
                                                                                                                                
4:18:24 PM                                                                                                                    
SENATOR  KAWASAKI  related  that  he  reviewed  definitions  from                                                               
Washington  State  and  the  US   Army  Corps  of  Engineers  for                                                               
 ordinary high water mark," which  were similar but different. He                                                               
asked whether  that was a term  of art or if  that language could                                                               
be litigated.                                                                                                                   
                                                                                                                                
MR.  WALKER answered  that  navigability  means different  things                                                               
depending on the purpose. For  instance, the US Coast Guard would                                                               
be concerned  with boating safety.  However, for  DNR's purposes,                                                               
the  definitions in  AS 38.04  relate to  navigability for  title                                                               
purposes or  who owns  the land. The  bill uses  definitions from                                                               
case law on navigability for  title but not used by Environmental                                                               
Protection Act, the USCG, or other navigability purposes.                                                                       
                                                                                                                                
4:19:45 PM                                                                                                                    
VICE CHAIR  MICCICHE noted  that he  related to  the "dog  in the                                                               
manger"  expression,  but  the  Alaska  National  Interest  Lands                                                               
Conservation  Act (ANILCA)  defines those  rights. The  state was                                                               
successful  in the  Sturgeon case  for  the Nation  River in  the                                                               
Yukon Charley  Preserve in 2007,  so the  state has case  law. He                                                               
wondered  at what  point DNR  would have  sufficient evidence  or                                                               
cause to  litigate, negating the  necessity for a bill  to assert                                                               
state  ownership for  each navigable  body of  water, stream,  or                                                               
creek. He asked how many  bills or litigation costs are necessary                                                               
before  the state  has  sufficient case  law  that proves  ANILCA                                                               
provides adequate standing for the  state to manage its navigable                                                               
waters.                                                                                                                         
                                                                                                                                
4:20:41 PM                                                                                                                    
MS. ALLOWAY said she could  not answer that question. She offered                                                               
her  view  that  determining  ownership of  navigable  waters  in                                                               
Alaska is  a federal  task, so the  legislature would  not impact                                                               
what  that task  means  in  the federal  court.  However, SB  227                                                               
informs the federal government and  the public that in situations                                                               
where the federal government or  the state has expressly said who                                                               
owns what, the  state owns the navigable waters.  She stated that                                                               
the  Sturgeon  case  found that  the  federal  government  cannot                                                               
subsume  submerged  lands within  its  CSUs.  SB 227  shifts  the                                                               
burden  to  the federal  government  to  decide whether  it  will                                                               
litigate to  defend federal ownership. Otherwise,  the state must                                                               
continue obtaining federal government  permission to manage state                                                               
lands, which gives the federal government substantial power.                                                                    
                                                                                                                                
MS. ALLOWAY stated  that since the federal  government often will                                                               
not  take a  position on  who owns  the land,  the state  has two                                                               
options:  litigate or  go through  the  Recordable Disclaimer  of                                                               
Interest  (RDI) process.  She explained  that the  state needs  a                                                               
case of  controversy in  order to  litigate. The  Ninth Circuit's                                                               
"dog in the mangeranalogy    informed the federal government that                                                               
if it doesn take a position, the state can't litigate.                                                                          
                                                                                                                                
MS.  ALLOWAY reviewed  the  second option,  the  RDI process,  in                                                               
which the  state files  an RDI application  and pays  the federal                                                               
government to investigate whether  the land is state-owned. Often                                                               
the federal  government holds the  application for 5 to  10 years                                                               
on  big rivers,  such as  the Kuskokwim  or the  Stikine, without                                                               
taking action. She  offered her view that SB 227  would place the                                                               
burden  on the  federal government  in disputes  over state-owned                                                               
land to justify its ownership.                                                                                                  
                                                                                                                                
4:23:00 PM                                                                                                                    
VICE  CHAIR MICCICHE  characterized  DNR's  assertive actions  on                                                               
submerged  lands as  "poking  the bear."  He  suggested that  the                                                               
public and  federal government view Alaska  differently than they                                                               
did  in 1959.  He asked  whether  the risk  of Congress  amending                                                               
ANILCA might  make this expensive, annoying,  inefficient problem                                                               
permanent.                                                                                                                      
                                                                                                                                
MS. ALLOWAY answered that while  she cannot predict what Congress                                                               
will do,  she did not  envision any substantial risk  because the                                                               
federal  government cannot  change what  the state  owns. The  US                                                               
Constitution  and the  equal footing  doctrine  in the  Submerged                                                               
Land Act granted the state  ownership of its submerged lands. She                                                               
offered  her  belief that  if  the  federal government  took  the                                                               
state's submerged lands, it would  be taking, which requires just                                                               
compensation. She acknowledged that  the federal government could                                                               
attempt to amend  ANILCA, Section 103(c), to  broaden its powers,                                                               
asserting  that it  can manage  these lands  within the  internal                                                               
boundaries  of its  CSUs.  She envisioned  that  the state  could                                                               
raise  numerous  legal  questions  because  ANILCA  was  a  grand                                                               
compromise.  It  would raise  issues,  including  what the  state                                                               
would need in return for taking some of its rights away.                                                                        
                                                                                                                                
4:25:18 PM                                                                                                                    
SENATOR KIEHL  directed attention to the  retroactivity clause in                                                               
SB 227 that goes back to  January 3, 1959, the date of statehood.                                                               
He  agreed  Alaska owns  its  navigable  waters. He  referred  to                                                               
Dredge  Lakes near  the  Mendenhall Lake  and  US Forest  Service                                                               
(USFS) infrastructure.  He asked whether this  bill would provide                                                               
authority for  the state to assert  that the USFS must  acquire a                                                               
permit going back to the date of construction.                                                                                  
                                                                                                                                
MR. WALKER  answered yes. He  stated that DNR has  requested that                                                               
the  Department  of the  Interior  provide  an inventory  of  all                                                               
federal  infrastructure  constructed  on state  lands  since  the                                                               
federal  government   did  not   comply  with   state  permitting                                                               
requirements. Although  DNR will not assess  permitting fees, DOI                                                               
must go  through the state    permitting process for  any federal                                                               
infrastructure on  state lands. Secondly, the  federal government                                                               
has issued permits for groups  to engage in certain activities on                                                               
state lands for  scientific or other reasons.  The state informed                                                               
the  federal government  that its  permittees  must obtain  state                                                               
permits for  those activities. DNR  has offered to work  with DOI                                                               
to  determine  whether  federal  or  state  regulatory  authority                                                               
applies to  Alaska's federal and  state lands. For  example, this                                                               
might mean a  person needs a permit for  any activities conducted                                                               
above the high water line.  Still, activities conducted below the                                                               
high water  line require compliance  with state law.  He reported                                                               
that  Mr.  Goodrum has  participated  in  biweekly meetings  with                                                               
federal  counterparts to  bring federal  infrastructure on  state                                                               
lands into compliance.                                                                                                          
                                                                                                                                
4:28:40 PM                                                                                                                    
SENATOR KIEHL  offered his view that  contacting those conducting                                                               
new or ongoing  activities makes sense. Still,  he wondered about                                                               
the cost  of reaching back  to statehood versus  looking forward.                                                               
He offered his view that it might  make more sense for DNR to put                                                               
its efforts into navigability  determinations for navigable lakes                                                               
or  streams.  He  expressed  concern  about  the  effective  date                                                               
regarding the state's priorities.                                                                                               
                                                                                                                                
4:30:10 PM                                                                                                                    
VICE CHAIR MICCICHE opened public testimony on SB 227.                                                                          
                                                                                                                                
4:30:45 PM                                                                                                                    
CHRISTINE HUTCHISON,  representing self, Kenai, Alaska,  spoke in                                                               
support of SB  227. She said she had been  a resident since 1972.                                                               
She offered her  belief that this bill is long  overdue. She said                                                               
she listened  to attorneys discussing the  importance of defining                                                               
navigability last week, but the  federal government does not wish                                                               
to  define it.  She offered  her support  for the  state to  move                                                               
forward with  the assertions  in the ovals  [listed on  slide 6].                                                               
She suggested  that the legislature  should introduce a  bill for                                                               
each assertion,  and the legislature  should focus on  this issue                                                               
rather  than  arguing  about  the   permanent  fund  dividend  or                                                               
election integrity. She  stated that this bill is  the first step                                                               
to affirming that Alaska is  a sovereign state. She urged members                                                               
to pass SB 227.                                                                                                                 
                                                                                                                                
4:34:31 PM                                                                                                                    
SENATOR BISHOP joined the meeting.                                                                                              
                                                                                                                                
4:34:49 PM                                                                                                                    
VICE CHAIR MICCICHE closed public testimony on SB 227.                                                                          
                                                                                                                                
VICE CHAIR MICCICHE held SB 227 in committee.                                                                                   

Document Name Date/Time Subjects
SB 228 Fiscal Note DEC 1.25.2022.pdf SRES 4/8/2022 3:30:00 PM
SB 228
SB 228 Letter of Opposition Molly Dischner 4.6.2022.pdf SRES 4/8/2022 3:30:00 PM
SB 228
SB 228 Sectional Analysis 4.6.2022.pdf SRES 4/8/2022 3:30:00 PM
SB 228
SB 228 Tier III Waters Transmittal Letter 3.10.2022.pdf SRES 4/8/2022 3:30:00 PM
SB 228
SB 227 Fiscal Note DNR 3.10.22.pdf SRES 4/8/2022 3:30:00 PM
SB 227
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 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 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