Legislature(2019 - 2020)BUTROVICH 205
03/27/2019 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB51 | |
| SB42 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 51 | TELECONFERENCED | |
| *+ | SB 42 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 42-QUITCLAIM LAND TO UNITED STATES
4:15:30 PM
CHAIR BIRCH announced the consideration of Senate Bill 42 (SB
42).
4:15:53 PM
SENATOR COGHILL, sponsor of SB 42, provided an overview of the
bill. He opined that Native allotments have been a significant
issue for about 100 years and he considers it unfinished
business. He said unfortunately, the federal government has
conveyed land to Alaska that had a prior claim on it. The intent
of the legislation is to address the prior claim.
He said committee members will probably hear from the Department
of Natural Resources (DNR) that following the reconveyance
requirement exactly is hard. However, the requirement must be
addressed and if following the process cannot be done then what
is the first next step.
He explained that the bill starts with the fact that there was a
prior right supported by court cases. He noted that his staff,
Rynnieva Moss, will provide committee members with additional
details. He said the allotment issue came to him mainly because
he started researching the Homestead Act as a means of getting
more land into private hands. He continued as follows:
Many people got homesteads in Alaska and we tried to
say, "We should also do it as a state," they got 160
acres or whatever it was and at the same time we had
Native allotments; funny thing about that was Native
allotments were based on "already usage" in an area
and the Homestead Act was you've got to go "prove up"
in that area. All the Homestead Acts got approved and
very few of the Native allotments got approved, and it
was a BLM issue but then along comes the state. We get
statehood, we get selected lands, we selected, they
transferred them, and then oops, we've got a Native
allotment of a prior right on it. That's kind of where
we are at, that doesn't describe all the Native
allotments, but this is trying to right that the best
we know how, that's the general reason why.
4:18:11 PM
RYNNIEVA MOSS, Staff, Senator Coghill, Alaska State Legislature,
Juneau, Alaska, provided the sectional analysis for SB 42 as
follows:
• Section 1:
Powers and duties of the director of the Division of Lands
by mandating he or she quitclaim deeds "land or an interest
in land to the federal government after a determination
that the land or the interest in land was wrongfully or
erroneously conveyed by the federal government to the
state." Currently that director has permissive authority to
do so when land was wrongfully or erroneously conveyed to
the state.
• Section 2:
Exempts lands quitclaimed under Section 1 from AS
38.05.125, reservation of subsurface resource rights to the
State of Alaska. This would allow for mineral rights to
titled owners of Native allotments.
• Section 3:
Exempts the new provision pertaining to quitclaim deed to
the federal government from AS 38.05.125, restriction on
sale, lease or other disposals of agricultural land. This
eliminates the limitation on use of such land to
agricultural use.
• Section 4:
AS 38.05.035 makes quitclaim deeds to the federal
government when the land was wrongfully or erroneously
conveyed to the state a permissive actions. This statute is
repealed, and the quitclaim deed becomes mandatory under
Section 1.
MS. MOSS summarized that Section 1 requires the DNR to give a
quitclaim deed to the Bureau of Land Management (BLM) for lands
that were selected as Native allotments so that BLM can deed
that land to the rightful owner. The reason for the provision in
Section 1 is for the DNR to keep track of the fact that the
state is losing land selections amounting to 103 million acres;
so, the legislation would subtract those entitlements from the
103 million acres. She added that the state has actually over
selected by 25 percent and that allows for the changes proposed
by the legislation.
She detailed that section 2 reserves subsurface rights to the
original owner, the Native entitlement.
She explained that section 3 makes sure that the land from the
quitclaim deed is not used as agricultural land, that it is fee
simple land with all rights reserved.
She said section 4 repeals the current statute that says that
the department "may" and will be changed to "shall."
4:19:41 PM
She explained that the federal court decision in Aguilar v.
United States basically said that there was already a
preexisting title or right to that land when the BLM gave it to
the state under state selections. She said BLM should recover
and give that land to the rightful owner and if it takes
adjudication, BLM should sue the state to get that land back.
The federal court decision is very plain.
She said the committee will hear from DNR that there are
exceptions because some of the allotments are in the Trans
Alaska Pipeline System (TAPS) right-of-way. She noted that BLM
and DNR have signed a memorandum of understanding (MOU) that
would allow for land swaps with the allotment owners upon the
approval of the owner. However, in 1971 when the Alaska Native
Claims Settlement Act (ANCSA) was passed that repealed the 1906
Native Land Allotment Act there were 10,000 applicants with
16,000 parcels ranging from 40 to 160 acres. Currently, about
300 allotments are still pending.
MS. MOSS said DNR currently is transferring six to eight parcels
a year and the sponsor feels that the state can do a lot better.
4:21:21 PM
SENATOR COGHILL emphasized that the legislation is not to pick
on DNR; the intent is to "put the heat" under an issue because
the process has taken over 100 years. As a result, progeny from
15 different family groups have a claim on an allotment and the
members have a hard time even agreeing among themselves. He said
the state should facilitate an immediate allocation for the
family groups that can agree. He conceded that there are
subsurface rights on some allotments, but the rights would be
retained to those who would have it. He noted that there is
concern that the allotment involves Indian country. However, the
process is really a private land allotment that belongs to the
owners.
SENATOR KIEHL asked how the subsurface rights piece works in the
bill.
MS. MOSS explained that when the people claimed the land, they
had subsurface rights, whereas the state retains subsurface
rights when it owns the land. The bill lays out a process that
would allow the state to quitclaim deed the property back to the
federal government with subsurface rights. That acreage gets
written off the 103 million acres and BLM would title the land
to the original owner with all subsurface rights.
4:23:27 PM
SENATOR BISHOP asked her to clarify that the state's 103 million
acres stays whole and the allotment comes out of the
government's acreage.
MS. MOSS answered that is correct.
SENATOR KAWASAKI asked why the bill is needed. He opined that
the allotment should have already been done by DNR.
MS. MOSS answered that the law says that the allotment is
permissive, not mandatory. The bill says the allotment is
mandatory.
SENATOR KAWASAKI said the bill instructs DNR to do the
allotment, but he was unclear about the directive to the BLM.
MS. MOSS explained that the Aguilar court case said, "Not only
do you need to give this land back to the original owner, if you
can't get the state to do it you should go to court and sue the
state; they ruled that they should adjudicate this."
4:24:36 PM
CHAIR BIRCH opened invited testimony.
4:24:57 PM
DESIREE DUNCAN, Native Lands Manager, Central Council Tlingit
and Haida Indian Tribes of Alaska, Juneau, Alaska, testified in
support of SB 42. She detailed that Tlingit and Haida provides
Native Alaska trust services to 11 communities in Southeast
Alaska. They currently have approximately 20 title recovery
cases which includes villages that are not served by the Central
Council. The Native Alaskan applicants have been waiting for
over 50 years to get title to their land and most are deceased,
and their heirs are now waiting for what is rightfully theirs.
Right away the Homestead Act gave the land to non-Natives. SB 42
is a very important bill that will allow Native allotment
applicants to get the land that their ancestors applied for many
years ago.
4:27:02 PM
SHEILA NEKETA, Staff, Land Management Services, Bristol Bay
Native Association, Dillingham, Alaska, testified in support of
SB 42. She detailed that the Bristol Bay Native Association is
working on 36 pending Native allotments located on state
selected land, allotments that were determined valid by the BLM
but were erroneously and wrongfully conveyed to the state. She
asserted that the state refuses to reconvey the identified lands
back to BLM. She noted previous public testimony for similar
legislation from Bristol Bay participants in 2014 and asked that
the testimonies be included in support of SB 42. She said SB 42
is very important to the people in the Bristol Bay service-
provider area for what it means to themselves, their relatives,
and their subsistence lifestyle.
4:30:51 PM
ROBERT BREAN, Allotment Claimant, Anchorage, Alaska, testified
in support of SB 42. He explained that his mother is a recipient
of authorization from the federal government for a Native
allotment that she applied for in the mid-1960s. He opined that
a lot of the land was expedited in the interest of developing
the oil fields and getting a pipeline built. He said what the
federal government did not do was actively pursue surveying of
Native allotment parcels and finalizing the paperwork to
transfer Native allotment parcels to individuals. He summarized
that SB 42 will provide DNR with the leverage and legality to do
the right thing for Native allotments.
4:36:08 PM
MITCHELL ALLAN, Allotment Claimant, Fairbanks, Alaska, testified
in support of SB 42. He quoted a Native rights booklet that
leaned towards a positive action on Native allotments by saying,
"There is an immediate need for a fair and just settlement of
all claims by Natives and Native groups in Alaska." He added
that the booklet also says, "The settlement should be
accomplished rapidly with certainty without litigation." He
disclosed that he has been dealing with his Native allotment
claim since 1971, shortly before the law was repealed. He said
SB 42 will resolve his Native allotment issue.
SENATOR COGHILL commented that he hopes Mr. Allan ultimately
receives his allotment.
4:39:12 PM
MURRAY CLAYTON, Allotment Claimant, Fairbanks, Alaska, testified
in support of SB 42. He disclosed that BLM has determined that
his allotment application is valid, and BLM has asked the state
to reconvey his allotment to him. He said after 48 years his
hope is that for his allotment to come to a satisfactory
conclusion.
4:41:20 PM
MARTY PARSONS, Director, Division of Mining, Land and Water,
Alaska Department of Natural Resources, Anchorage, Alaska,
stated that the division is making a sincere effort to reconvey
lands to BLM for the purposes of certificating lands to the
noted Native allottees. He said previous testimony has made it
clear that reconveyance is important to the Native community of
Alaska. The division understands how important reconveyance is,
and the division takes the matter extremely seriously. The
division has taken some important steps to resolve the
conveyance transfers. The division recently entered into a
cooperative agreement with BLM to hire a dedicated staff whose
sole purpose is to focus on working on reviewing the conveyance
requests from BLM to reconvey lands and to help fulfill the
state's obligation under the federal program.
MR. PARSONS explained that the division is actively reviewing 12
files to see if they can be reconveyed. The division has 70
files where the division is waiting for additional information
from BLM before the division can continue its review. The
division has already reconveyed 282 parcels to the BLM for
certification to the allottees.
He said to provide the best opportunity for allottees to receive
the land that they have historically used, the division has
reopened over 100 cases that were previously closed or denied
for reconveyance. Many of the allotment files have been closed
because they were for lands that were affected by state pipeline
projects or because the lands were located within legislatively
designated areas (LDA). Earlier decisions were based on the
position that lands inside the LDAs were removed from the public
domain and cannot be made subject to the allotment application.
Through further and more detailed review of the enabling
language, the division found that such a strict interpretation
of LDAs may have been an error, so if the division reapplies
what is known as the "Relates Back Doctrine" which means if the
allottee had claimed the land prior to the LDA being put into
place, that provides the division with an opportunity to remove
the noted obstacles for reconveyance so that many of the
previously denied allotment applications are currently under
review for potential reconveyance. Similarly, a better
definition of the Alaska Natural Gas Pipeline Project also
allowed the division to remove other obstacles for reconveyance.
He disclosed that all reconveyances are subject to the public
process for the disposal of the state interest as indicated
under Article 8, Section 10 of the Alaska Constitution.
4:44:51 PM
He said the division has reviewed the current language of SB 42
and has prepared an indeterminate fiscal note. When the division
considers whether to approved BLM's request to reconvey parcels,
the division does a thorough review to see if there are any
third-party interest in the land, if it contains constructed
state infrastructure, or if it provides access to mineral or oil
and gas deposits.
He explained that an outcome of the Supreme Court's 1979
decision in Aguilar v. United States, currently the state can
enter into a settlement release agreement with the allottees to
make the conveyance subject to these interests. As written, SB
42 would change the law so that the only criteria necessary for
mandating that the state must reconvey parcels of land is
whether the conveyance to the state was made in error. Parcels
reconveyed under such criteria cannot be made subject to roads,
pipelines, transmission lines, historic access routes, or
recreational facilities constructed by the state, or other
easements required by law; if this infrastructure cannot be
protected, the state would have to provide a lease or right-of-
way from the allottee or the state would have to get the land
back from the allottee either by buying it or condemning it
through an eminent domain process. In addition, land sold
through auction or conveyed to the University of Alaska, Mental
Health Trust, or municipalities would need to be reacquired in
order to fulfill the request for conveyance. Under the current
SB 42, if a parcel was found to have been conveyed in error then
not only would the land itself but the subsurface mineral estate
would also be reconveyed back to the federal government. If the
mineral estate was found to contain "leaseables" or
"locatables," things like gold, coal, or oil and gas, the estate
would be split between the allottee and the federal government,
and the federal government would retain the mineral rights; this
would deprive the state with an opportunity for revenues that
would otherwise be retained by working with the surface
landowner under the current statute.
4:47:13 PM
MR. PARSONS explained that in addition to potential fiscal
concerns with HB 42 as written, there are concerns that the
passage of the bill will not significantly increase the speed of
which allottees receive their allotment certifications. BLM is
currently processing only five or six quitclaim deeds a year due
in large part because all the allotments require to have a field
inspection before BLM accepts the quitclaim deed. If the field
inspection shows that the parcel is contaminated, then
regardless of source, whether it is from the allottee or someone
trespassing on the allotment, BLM will reject the quitclaim deed
and the allotment will not be certificated. At the current rate
of five to six certifications a year, certification would take
more than three decades based on BLM's current inventory of
allotments to the allottees. He emphasized that the state of
Alaska and the division consider the reconveyance of the Native
allotments as a serious and important undertaking.
He summarized that the division has attained agreement with BLM
to provide funding for a position within the division's realty
services section that is dedicated to the review of active and
previously closed allotment cases as well as to reinterpret
previous impediments to the reconveyance of allotment parcels.
The division's staff is largely engaged with multiple service
providers to discuss difficult cases with the intent to find
resolutions that includes reconfiguring a parcel, to remove a
parcel from a potential piece of state infrastructure like the
Alaska Highway, or help identify a substitute parcel from the
state's selected lands. The division believes its allotment work
is a clear indication that the state is actively seeking to
increase the number of parcels to be conveyed and to fulfill the
federal commitment.
MR. PARSONS said another way the division can help to complete
conveyances of Native allotments is for the state to continue to
increase the land available for selections as substitute
parcels. As the ANCSA corporations complete their land
entitlement, more land identified by the state converts from
what's known as "top filing" or "future interest of the state,"
to "selected status" that becomes available for the state to
receive under its entitlement. Lands which are not identified
for the final 5.5 million acres of state land entitlement can be
made available for Native allottees to select as a substitute
parcel if the original parcels cannot be conveyed.
4:50:03 PM
He explained that there is 7.8 million acres of substitute
parcel land that the division has identified. The division
realizes that some of the substitute land is less than desirable
due to topography or lack of infrastructure, but as more lands
are converted into "selected status," the division is seeing an
increase in the pool of land that is desirable for the
allottees.
He reiterated that the state takes completion of the allotment
program very seriously and the division looks forward to working
with the sponsor to craft a path forward with respect to the
rights of the Alaska Natives so they can obtain their allotments
and to fulfill the federal allotment program as well as to
protect the state's interest.
SENATOR COGHILL thanked Mr. Parsons for providing the committee
with a clear idea of what is happening as well as detailing some
of the complexities of how the state must deal with
reconveyance. He said Aguilar v. United States probably came up
with a clear criteria and asked Mr. Parsons if the bill should
mirror the court decision's criteria.
MR. PARSONS answered that Aguilar v. United States provides a
process as well as a "thick book" that provides all the steps
necessary. He said the bill can mirror the case; however, the
division is actively working under the "may" language for
reconveyance to the federal government where the division has no
control over allotment cases reconveyed to the federal
government where cases may take years to certificate to the
allottees.
SENATOR COGHILL agreed that the state cannot make the federal
government do anything. He said he will work with the division
to find a better pathway forward with the bill's language. He
specified that his intent was to show the committee the
complexity with allotment as well as honoring the "prior right."
4:53:19 PM
SENATOR BISHOP asked if Mr. Parsons said it could take BLM 30
years to reconvey.
MR. PARSONS answered yes, at BLM's current rate of certifying
five to six allotments a year. He detailed that the division is
waiting for additional information on 70 parcels. He added that
the 12 parcels the division is actively reconveying will take a
couple of years. He said unfortunately because of the work
required by BLM before they can accept the state's quitclaim
deed, field research and time is required before land can be
reconveyed to the allottees.
SENATOR BISHOP said he will talk to Senator Coghill to address
the reconveyance.
SENATOR KIEHL asked how unresolved Native allotment land could
have ended up with state infrastructure and state easements. He
said his experience is that DNR does not let anybody do anything
on state land with a question mark on it.
MR. PARSONS answered that when ANCSA was passed, the allotment
program was closed, and many applications were passed to the
Bureau of Indian Affairs (BIA) or other agencies and then lost.
Lands continued to be conveyed to the state between the time
that the allotment program was closed, and Aguilar v. United
States was adjudicated. The allotments the division is working
on came to light, in many cases, after the state had already
received title but before the state knew that there was an
underlying allotment claim on the land.
4:56:38 PM
SENATOR GIESSEL referenced an allotment spreadsheet that Ms.
Moss provided to the committee. She noted that many of the
allotments are in national parks, national forests, and national
wildlife refuges. She asked Ms. Moss if the allotments in
federal park land makes the process more complicated.
MS. MOSS answered that she did not know. She opined there could
be an issue and noted that Congress just passed a Vietnam
veterans' allotment that listed exceptions to where lands could
not be selected that included the Arctic National Wildlife
Refuge (ANWR), national forest system land designated as
wilderness by Congress, military land, and inner-outer corridors
of right-of-ways such as TAPS.
SENATOR COGHILL opined that what the federal government said and
what Aguilar v. United States says, might give the state
instruction on how to create a way forward for the allottees who
may never be able to get the land based on some of the criteria,
but the allottees should get the opportunity to get some land.
He admitted that some of the allottees that he has spoken with
have indicated that they are not interested in a swap at the
beginning; however, if the allotment cannot be physically done,
there must be a pathway forward.
He summarized that he will work with DNR and some of the legal
teams that have talked about the legal structure under Aguilar
v. United States to figure out how allotments can be transferred
and creating a pathway with BLM to separate allotments that
there is no practical way to process.
MS. MOSS noted that Mr. Parsons described about 100 parcels that
have been denied in the past that would fall under the public
lands that are currently being reviewed for possible approval.
4:59:03 PM
CHAIR BIRCH held SB 42 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB42 Aguilar Cases in Alaska 2014.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Fiscal Note DNR-MLW 3.22.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Sectional Analysis Version A.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Sponsor Statement.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Tanana Chiefs Letter 3.22.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Version A.PDF |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Aguilar v. U.S..pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB 51 Version R 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Changes Version K to Version R.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 18 AAC 70.016.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 AFA Resolution 3.12.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Brenda Jones Letter 3.19.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Gerald Lapp Email 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Jessie Badger Letter 3.19.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Jim Clark Testimony 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Laura Stats Email 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Mickael Mackowiak Letter 3.19.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 SEACC Guy Archibald Testimony 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 SEACC Petition 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 SEACC Sarah Davidson Testimony 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 SEAFA Letter 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Steve Winker Email 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |