Legislature(2021 - 2022)BUTROVICH 205
04/27/2022 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB227 | |
| SB230 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 230 | TELECONFERENCED | |
| += | SB 227 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 227-STATE OWNERSHIP OF SUBMERGED LAND
3:35:01 PM
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."
[CSSB 227, Version B, was before the committee.]
[The bill was previously heard on 4/8/2022 and 4/20/2022.]
3:35:35 PM
VICE CHAIR MICCICHE moved to adopt the committee substitute (CS)
for SB 227, work order 32-GS2561\I, Version I, as the working
document.
CHAIR REVAK objected for discussion purposes.
3:36:06 PM
INTIMAYO HARBISON, Staff, Senator Josh Revak, Alaska State
Legislature, Juneau, Alaska, offered his view that Version I
would address the concerns raised at the last hearing. He
paraphrased the Explanation of Changes on behalf of the
committee, which read:
[Original punctuation provided.]
SB 227 Explanation of Changes Version \B to Version \I
P.1, line 8-9.
Amended to read "navigable water within the boundaries
of and adjacent to federal areas".
P.2, line 2-3.
Amended to read "navigable water listed in AS
38.04.063 that is within the boundaries of and
adjacent to federal areas".
3:37:09 PM
P.2, line 11-12.
Amended to read "navigable water within the boundaries
of and adjacent to federal areas".
P.3, line 4.
Strike "or"
P.3, line 6.
Add "or" following ";".
P.3, line 7.
Insert "(C) other federal areas".
P4., line 1.
Amended to read "navigable water within the boundaries
of and adjacent to federal areas".
P 4., line 11
Sec. 7. AS 38.04.062 is amended by adding new
subsections to read:
(j) For purposes of (b) and (c) of this section, the
commissioner shall make a determination of
navigability based on evidence consistent with the
meaning given to "navigable water" in (g) of this
section, and after considering factors that include
3:37:53 PM
(1) a showing that a river is boatable at any
time during the open-water season by customary
and traditional watercraft.
P.5, line 1-2.
Amended to read "that is within the boundaries of and
adjacent to federal areas."
3:38:44 PM
SENATOR KAWASAKI referred to page 4, line 11 of the explanation
of changes, related to boatable waters. He stated that sometimes
rivers are boatable right after breakup, but the high-water mark
would be lower the rest of the year. He wondered how that would
affect the determination of boatable.
3:39:20 PM
RON OPSAHL, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, Anchorage, Alaska,
responded that the bill used boatable "at any time" to make it
less restrictive. He explained that the issue with the previous
language, "boatable during the open-water season," could be
interpreted to mean that it must be boatable during the entire
open-water season. The original language was for one-third of
the open water season, but the Alaska Department of Fish and
Game (ADF&G) thought that language was too restrictive.
Currently, case law doesn't define how much of the open-water
season needs to be available for boatability. However, as case
law develops, it will better define the open-water season. He
noted that the department did not want to codify something more
restrictive than necessary.
SENATOR KAWASAKI asked for clarification that this change is
more permissive and less restrictive.
MR. OPSAHL replied that is correct.
3:41:00 PM
SENATOR VON IMHOF asked whether questions were limited to the
committee substitute right now.
CHAIR REVAK answered yes, questions right now were about the
changes incorporated in the committee substitute.
3:41:18 PM
CHAIR REVAK withdrew his objection; he found no further
objection, and Version I was adopted as the working document. He
solicited further questions
3:41:41 PM
SENATOR VON IMHOF referred to page 5, line 5, which indicates
the "SWFA" number, the identification number assigned to the
body of water on April 20, 2022, by DNR [in its Navigable Waters
in Federal Areas Database]. She asked whether the SWFA number
was listed on DNR's website so someone could input the numbers
and pull up the navigable water and that perhaps it would pull
up a map showing the location.
3:42:24 PM
JIM WALKER, Public Access Assertion and Defense Section Chief,
Division of Mining, Land and Water, Department of Natural
Resources, Anchorage, Alaska, answered that it would be
available, but some technical aspects were being worked through
to add the specific numbers. He noted that the files were being
maintained at DNR. The water body is currently listed on DNR's
Navigable Waters Map. The unnamed water bodies listed in the
bill have specific geographic descriptive information that would
allow someone to identify them on the map.
3:43:27 PM
SENATOR VON IMHOF related her understanding that the SWFA would
be available soon. She referred to page 9, line 8, the line item
for Big Lake, SWFA 0100. She asked which Big Lake it refers to
since it is a common name for lakes. She noted that Big Lake is
a popular destination in the Mat-Su Valley, so some people
wondered which lake is SWFA 0100. She asked where the public
could find that information.
MR. WALKER directed attention to the bottom of page 8 and page
9, lines 1-3, which reference water bodies in Denali National
Park and Preserve. He explained that Big Lake in Mat-Su is not
covered in this bill because it does not fall within the federal
area. The SWFA water bodies are only located within federal CSUs
and other statewide areas. The SWFA number will appear on a
specific water body identified on DNR's Navigable Waters Map. He
referred to page 11, various unnamed lakes and rivers listed
have specific descriptions within the statutory language in the
bill, which also appear on DNR's Navigable Waters Map, which
pinpoints the precise location of the unnamed lake or river.
3:46:46 PM
SENATOR VON IMHOF asked for an estimate of when the link would
be available on the website.
MR. WALKER suggested that if someone has a specific question on
the location of a water body, they could call DNR and speak to
him or his staff. He estimated that the website to pinpoint the
SWFA would be available in several weeks.
3:47:42 PM
SENATOR VON IMHOF asked whether boatable or navigable water
definitions align with the federal definition.
MR. WALKER explained that the definitions align with federal
case law, including the US District Court decision in State of
Alaska v. the United States related to the Gulkana River 662 F.
Supp. 455 (1987), and the US Supreme Court ruling in the John
Sturgeon decision. [Sturgeon v. Frost, 139 S. Ct. 1066 (2019)].
3:48:46 PM
SENATOR VON IMHOF referred to page 4, lines 14-15, and read a
portion of AS 38.04.062(j)(1), "...in this paragraph, "customary
and traditional watercraft" includes poling boats, skin boats,
motorized and nonmotorized inflatable rafts, canoes, motorized
riverboats, airboats, jetboats, and other watercraft ...."
MR. WALKER read the definition, as follows:
"customary and traditional watercraft" includes poling
boats, skin boats, motorized and nonmotorized
inflatable rafts, canoes, motorized riverboats,
airboats, jetboats, and other watercraft in use
anywhere in the United States at the time the state
achieved statehood;
SENATOR VON IMHOF asked whether he was referring to the
definition in federal case law.
MR. WALKER answered that the decision for the Gulkana River
[Gulkana River [662 F. Supp.455 (1987)] explicitly states that
language.
3:50:01 PM
SENATOR KAWASAKI asked for the effect if one of the bill's
descriptions or citations for the SWFA navigable waters was
listed wrong
MR. WALKER answered that SB 227 requires DNR to present
suggested waters to include in the listing at the beginning of
each legislative session. He noted that the US Fish and Wildlife
Service continues its work in the Chugach National Forest and on
Bureau of Land Management (BLM) lands. He related that DNR must
amend any descriptions consistent in developing case law or
work. For instance, if the state prevailed in litigation and a
federal court agreed that a waterway was navigable further
upstream than described in statute or further downstream, DNR
would ask the legislature to amend the entry. He predicted that
this work would be ongoing and span several legislative
sessions.
3:52:40 PM
SENATOR KAWASAKI stated that he had introduced a bill to expand
the boundaries of the Creamer's Field Wildlife Refuge. He
highlighted that the boundaries were cited wrong in the bill, so
the governor had to veto the bill. He noted that the legislature
had to go through the process again, so he wondered how a
mistake would affect the navigable waters.
MR. WALKER answered that it would be similar; DNR would bring it
before the legislature if a line item were incorrectly
identified in the bill. He offered his view that a line-item
description mistake would not likely invalidate the bill. He
referred to the Revised Statute (RS) 2477 (Section 8 of the
Mining Act of 1866) upon which this bill is based. The SOA
asserted ownership over certain RS 2477 trails in the 1990s, so
the bill refers to a file number maintained by DNR for a
particular RS 2477 trail. Those files have expanded over time,
and some have been litigated. However, the minor adjustments
have not invalidated the enabling statute.
3:56:07 PM
SENATOR KIEHL asked whether DNR would need specific legislation
to partner in instances where there is a broad, shared
management plan that would enable infrastructure by the federal
government or visitor improvements.
MR. WALKER answered that the department has that power now. It
is good for all Alaskans and adjoining landowners with
management and control authority to work together for the public
good whenever possible. For example, if a federal agency
approached DNR with a plan to enhance the visitor experience on
state-owned uplands by building a dock, boat, or ramp, the
department would work closely to facilitate, enable, and
expedite the permitting process. However, the key is recognition
of state and federal jurisdiction and authority. If the state
wishes to use submerged federal lands, it should go through the
federal authorization process and vice versa. He predicted that
if SB 227 were to pass, it would foster better state and
national partnerships. He said good land management requires a
clear determination of federal and state land boundaries.
3:59:56 PM
SENATOR KIEHL said he appreciated knowing that DNR has that
power. He offered his view that it takes a willingness of state
and federal staff to work together to accomplish the goals.
4:00:54 PM
MR. WALKER related that he received a call from the refuge
manager of the Tetlin National Wildlife Refuge, which is under
U.S. Fish and Wildlife Service (USFWS), asking what he needed to
do to get federal infrastructure that falls within the refuge on
state submerged land into compliance with state law.
4:02:06 PM
SENATOR MICCICHE moved to report the committee substitute (CS)
for SB 227, work order 32-GS2561\I, from committee with
individual recommendations and accompanying fiscal notes.
CHAIR REVAK found no objection, and CSSB 227(RES) was reported
from the Senate Resources Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 230 Department Response to Committee, Chart of DMLW Cabin Programs.pdf |
SRES 4/27/2022 3:30:00 PM |
SB 230 |
| SB 230 Explanation of Changes Version A to Version B.pdf |
SRES 4/27/2022 3:30:00 PM |
SB 230 |
| SB 230 Department Response to Committee, Examples of Permitted Trapping Cabins.pdf |
SRES 4/27/2022 3:30:00 PM |
SB 230 |
| SB 230 B.pdf |
SRES 4/27/2022 3:30:00 PM |
SB 230 |
| SB 227 Explanation of Changes Version B to Version I.pdf |
SRES 4/27/2022 3:30:00 PM |
SB 227 |
| SB 227 I.pdf |
SRES 4/27/2022 3:30:00 PM |
SB 227 |