Legislature(2021 - 2022)GRUENBERG 120
03/22/2022 10:00 AM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| Presentation: Skipper Science Program | |
| HB397 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 397 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
March 22, 2022
12:01 p.m.
MEMBERS PRESENT
Representative Geran Tarr, Chair
Representative Jonathan Kreiss-Tomkins
Representative Andi Story
Representative Dan Ortiz
Representative Sarah Vance
Representative Kevin McCabe
MEMBERS ABSENT
Representative Louise Stutes, Vice Chair
OTHER LEGISLATORS PRESENT
Representative Mike Cronk
COMMITTEE CALENDAR
PRESENTATION: SKIPPER SCIENCE PROGRAM
- HEARD
HOUSE BILL NO. 397
"An Act relating to state ownership of submerged land within and
adjacent to federal areas; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 397
SHORT TITLE: STATE OWNERSHIP OF SUBMERGED LAND
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
03/14/22 (H) READ THE FIRST TIME - REFERRALS
03/14/22 (H) FSH, RES
03/22/22 (H) FSH AT 10:00 AM GRUENBERG 120
WITNESS REGISTER
LINDSEY BLOOM, Campaign Strategist
Salmon State
Juneau, Alaska
POSITION STATEMENT: Co-presented the Presentation: Skipper
Science Program.
CHRISTOPHER TRAN, Natural Resource Specialist
Aleut Community of St. Paul Tribal Government
Anchorage, Alaska
POSITION STATEMENT: Co-presented the Presentation: Skipper
Science Program.
BRENT GOODRUM, Deputy Commissioner
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: On behalf of the House Rules Standing
Committee, sponsor, by request of the governor, introduced HB
397.
JIM WALKER, Section Chief
Public Access Assertion and Defense
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Presented during the hearing on HB 397.
JESSIE ALLOWAY, Section Supervisor
Solicitor General Statewide
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
397.
ACTION NARRATIVE
12:01:07 PM
CHAIR GERAN TARR called the House Special Committee on Fisheries
meeting to order at 12:01 p.m. Representatives Story, Ortiz,
McCabe, and Tarr were present at the call to order.
Representative Vance arrived as the meeting was in progress.
^PRESENTATION: Skipper Science Program
PRESENTATION: Skipper Science Program
12:01:59 PM
CHAIR TARR announced that the first order of business would be
Presentation: Skipper Science Program
PRESENTERS
LINDSEY BLOOM
CHRISTOPHER TRAN
NOTE: The presentation was recorded and log notes were taken.
The recording is available at the legislature's web site
akleg.gov or by contacting the House Records Office at State
Capitol, Room 3, Juneau, Alaska 99801 (mailing address),
(907)465-2214, and after adjournment of the second session of
the Thirty-Second Alaska State Legislature this information may
be obtained by contacting the Legislative Reference Library at
(907) 465-3808.
12:16:08 PM
ADJOURNMENT
The House Special Committee on Fisheries recessed to a call of
the chair at 12:16 p.m.
1:37:33 PM
CHAIR GERAN TARR called the House Special Committee on Fisheries
meeting back to order at 1:37 p.m. Representatives Story,
McCabe, and Tarr were present at the call back to order.
Representatives Vance and Kreiss-Tomkins (via teleconference)
arrived as the meeting was in progress.
HB 397-STATE OWNERSHIP OF SUBMERGED LAND
[Contains discussion of SB 227.]
1:38:04 PM
CHAIR TARR announced that the final order of business would be
HOUSE BILL NO. 397, "An Act relating to state ownership of
submerged land within and adjacent to federal areas; and
providing for an effective date."
1:39:01 PM
BRENT GOODRUM, Deputy Commissioner, Department of Natural
Resources, On behalf of the House Rules Standing Committee,
sponsor, by request of the governor, introduced HB 397. He
stated that the bill pertains to the codification of state
submerged lands in federal areas. He stated that Alaska, as of
statehood in 1959, had been granted ownership of land in its
navigable rivers and lakes but that clear title had not been
granted. He suggested that the status-quo of uncertainty and
ambiguity of ownership, management, and control of navigable
water bodies was not in the state's best interest. He stated
that there exists a need for a different approach to land
management.
1:42:05 PM
JIM WALKER, Section Chief, Public Access Assertion and Defense,
Department of Natural Resources, presented during the hearing on
HB 397. He drew attention to the presentation entitled, "HB 397
Research - Submerged Lands Presentation 3.22.22.pdf," [included
in the committee packet] and read from slide 2, as follows
[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 [and expressly]
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.
MR. WALKER noted that the state had been granted ownership via
the Equal Footing Doctrine and the Alaska Statehood Act at the
time of statehood, and via the Submerged Lands Act of 1953. He
added that, if a [parcel of land] was designated as a federal
Conservation Systems Unit (CSU) after statehood, then the state
owns the lands beneath all navigable waterways.
1:44:04 PM
CHAIR TARR asked for additional information on the Equal Footing
Doctrine, the Alaska Statehood Act, and the Submerged Lands Act
of 1953.
1:44:18 PM
MR. WALKER explained that the Equal Footing Doctrine exists in
the U.S. Constitution and provides that every state that enters
the union after the initial colonies would enter the union on
the same footing and has the same "deal" with the federal
government regarding ownership of land beneath every navigable-
in-fact and tidally influenced water in the state. He stated
that the doctrine was important to prevent the state from
becoming a ward of the federal government. He asserted that the
content of HB 397 was equivalent to what had been provided to
the other 49 states. He explained that the Federal Submerged
Lands Act and the Alaska Statehood Act further build on the
doctrine.
1:46:12 PM
JESSIE ALLOWAY, Section Supervisor, Solicitor General Statewide,
Department of Law, answered questions during the hearing on HB
397. She noted that the Submerged Lands Act expands the Equal
Footing Doctrine to include lands three miles from the
coastline. She noted that the doctrine and the Submerged Lands
Act, in conjunction with the Alaska Statehood Act, would include
lands beneath all navigable water and tidelands.
1:47:11 PM
MR. WALKER drew attention to slide 3 which depicted a list of
areas that had become federal CSUs post-statehood. He stated
that the bill only considers federal areas created post-
statehood and identifies state-owned lands for which the
legislature may wish to eliminate all doubt regarding ownership.
He stated that, since the date of statehood, only 9 percent of
800,000 river miles of submerged lands under state-owned rivers
and only 16 percent of 30,000,000 acres of submerged lands under
state-owned lakes have been acknowledged by the federal
government as state-owned.
1:48:50 PM
REPRESENTATIVE MCCABE asked for an explanation of federal
acknowledgment and whether that would mean issuance of a title
or based on the outcome of a court case.
1:49:11 PM
MR. WALKER answered that both examples offered by Representative
McCabe were means by which ownership of lands is conferred. He
added that the federal government could issue a navigability
determination via the Bureau of Land Management (BLM). He added
that acknowledgment could be obtained through the Recordable
Disclaimer of Interest (RDI) process, which was created as an
instrument of the Federal Land Policy and Management Act of
1976, for cases in which the state and federal government agree
on the status of navigability and the federal government issues
a disclaimer that it has no interest in the land. He explained
that the RDI process was developed as a quick and easy way to
address such issues, but that the experience of the RDI process
was neither quick nor easy. He added that many instances had
required over a decade and occurred at a high cost, and he
provided the example of the RDI claim related to Becharof Lake,
the second largest lake within the state of Alaska. He
explained that Becharof Lake is, at its deepest point, 450 feet
deep and has an average depth of 100 feet, and it covers
hundreds of surface miles. He suggested that it was obvious
that the lake is navigable, and the state had filed an RDI
application. He stated that the initial filing period took over
two years and cost $10,000 for the federal government to
determine that "you can float a boat in it."
1:51:50 PM
MR. WALKER further added that there exists "quiet title
litigation" under the federal Quiet Title Act by which the state
sues to seek a court ruling of state ownership. He explained
that the state had success with cases involving the Knik River,
the Stikine River, and the Mosquito Fork River. He stated that
the Mosquito Fork judicial ruling had opined that the federal
government had acted in bad faith and the State of Alaska had
been awarded attorney fees and costs. He stated that litigation
takes a long time. He stated that HB 397 would provide a means
by which the state may assert ownership by identifying the
navigable waters [as listed in the bill.]
1:53:33 PM
REPRESENTATIVE VANCE asked whether the amount of $10,00 would
apply to each lake or stream. She noted that there were listed
over 1,800 such waterways, and more expected in the future.
1:54:01 PM
MR. WALKER answered yes. He stated that Becharof Lake had been
selected as an obviously navigable waterway and the example had
proven the time and cost required for the federal process. He
stated that [smaller waterways] would require more than 2 years
for the BLM to conduct navigability studies and would involve
additional administrative costs. He offered the example of the
Stikine River RDI request, and he explained that the RDI process
had stalled, and the state was forced to pursue quiet title
litigation, which took more than a decade to obtain an
affirmative court declaration that the Stikine River is
navigable. He stated that HB 397 was conceived to expedite that
process, and that the waterways identified in HB 397 had
undergone the same meticulous assessment within the federal
areas in the proposed bill, and that the state had listed the
lands of which it was certain it would prevail ownership in
court. He stated that federal land managers hold the position
that, should a designation of navigability not exist, the
default position is that it is not navigable. He stated that HB
397 would be a bold proclamation of ownership of presumptively
navigable waters.
1:56:32 PM
REPRESENTATIVE VANCE asked how a state law would aid the State
of Alaska in federal court.
1:56:44 PM
MR. WALKER stated that HB 397 would pursue active management of
the lands listed in the bill and suggested that Ms. Alloway
offer comments to the question regarding federal courts. He
added that, should the federal government take issue with the
state's management of those lands, it would be permitted to sue
the State of Alaska as landowner.
1:58:06 PM
CHAIR TARR noted that there had been complexities in land
selection processes between the State of Alaska and Native
corporations predating statehood. She asked if the delays that
Mr. Walker had described were comparatively similar.
1:58:54 PM
MR. WALKER offered that the land selection process was separate
from that which is outlined in the proposed bill, and that the
lands in the bill were within federal jurisdiction. He added
that the title of submerged lands passed and were vested to the
state via the Equal Footing Doctrine and separate from the land
selection process described by Chair Tarr. He allowed that the
answer to the question regarding the length of time involved was
one that the state had been pursuing for many years via
litigation and other processes. He suggested that there exist
additional time impacts when the federal counterparts are
"dragging their feet." He stated that when the federal
government does not consult the State of Alaska as an adjoining
landowner or as one which owns lands within federal
jurisdiction, that federal land managers may follow the process
that occurs in other states. He stated that Alaska was
different from other states by the existence of inholdings
within federal areas and large tracts of state submerged lands.
He stated his belief that federal land managers would prefer
status-quo rather than engaging with the state as a separate
sovereign.
2:01:11 PM
CHAIR TARR asked how recently the matters involving the Knik
River, Stikine River, and Mosquito Fork River had resolved.
2:01:31 PM
MR. WALKER stated that there exist numerous pending cases and
offered the North Fork and Middle Fork of the Fortymile River,
the Middle Fork of the Koyukuk, the Bettles River, and the
Dietrich River are all currently involved in litigation. He
noted that 180-day notice, which is required prior to quiet
title litigation, had been given for the Mulchatna River, the
Chilikadrotna River, Twin Lakes, and Turquoise Lake, among
others. He offered that recent cases had included the Mosquito
Fork River, the Knik River, and the Stikine River, among others.
He added that no substantive progress was being made on any of
the pending RDI applications in more than two years. He offered
that the RDI process involving the [inaudible] river had taken
five years during which the federal government had been
preparing a notice for the federal register. He stated that HB
397 would not solve all the problems associated with land
ownership but would amount to "a solid base hit."
2:03:58 PM
MR. WALKER stated that the impetus for the drafting of HB 397
had been the outcome of Sturgeon v. Frost, which had been ruled
in unanimous favor of Mr. Sturgeon's assertion that his use of
the state-owned Nations River would not be subjugated to federal
management.
2:04:41 PM
MR. WALKER drew attention to slide 6 of the presentation, which
depicted a larger DNR strategy to address the existing problems
associated with state land ownership. He noted that the state
has taken an active management role in lands that were conferred
to the State of Alaska at statehood. Mr. Walker allowed that
the bill was lengthy and attributed its length to the list of
waterways. He stated that the remainder of the bill would
codify state ownership, management, and control of those lands.
He stated that susceptibility to navigability contained in the
bill had been derived from case law.
2:07:09 PM
MR. WALKER referred to slide 8, which addresses the task of the
evaluation of all post-statehood federal areas and noted that HB
397 would provide for phases of implementation, the first of
which had been completed. He noted that, should HB 397 pass,
there would exist a reporting requirement that would commence
with the results of the evaluation set forth in the Second Phase
to identify [objectively] navigable waterways in U.S. Fish &
Wildlife Services (USFWS) refuges and the Chugach National
Forest that would result in future proposed legislation to amend
the statute to add those navigable and tidal influence waters.
He explained that the third phase would conclude the work with
the USFWS involved lands and would incorporate the lands under
BLM management. He noted that the fourth phase would be the
ongoing process of clarification, modification, and amendment of
all the areas, such as in a case in which a pending litigation
produces an outcome and would require an update to the statute.
2:09:17 PM
MR. WALKER summarized the selected sectional analysis on slides
9 11, which read as follows [original punctuation provided]:
Section One: The purpose of the legislation is to:
• Underscore state ownership, management and control
over submerged lands in federal areas.
• List specific navigable waters in federal areas
beneath which Alaska owns the submerged lands.
Create an annual reporting requirement to add to the
listing and amend as necessary.
Sections Two through Six:
• Define geographical scope of legislation (post-
statehood federal areas).
• Charge DNR with responsibility to conduct ongoing
navigability research to determine state title to
submerged lands within relevant federal areas.
• Define key navigability terms for purposes of
legislation including ordinary high-water mark, mean
high water line, etc.
Section Seven:
• Assigns the annual legislative reporting
requirement.
• Lists example susceptibility criteria (derived from
relevant caselaw) to guide DNR in making navigability
determinations including, but not limited to:
The types of watercraft to be used in assessing
navigability.
Documented personal use establishes that a river is
susceptible to navigation.
Navigability does not require a clear channel for
navigation, two-way traffic, or historical evidence if
the river is susceptible to navigation.
MR. WALKER next drew attention to slide 12 which depicts areas
highlighted in blue, which are rivers and lakes determined to be
navigable, and areas highlighted in red, which are rivers and
lakes which have not been determined to be navigable. He noted
that slide 13 depicts the same waterways, should HB 397 pass.
He noted that the large geographical area depicted on maps of
the entire state did not provide sufficient detail to adequately
demonstrate the significance of the waterways concerned.
2:12:06 PM
MR. WALKER drew attention to slide 13, on which a map depicts
the Noatak National Preserve and the Kobuk Valley National Park.
He explained that the waterways shaded in blue were determined
to be navigable, the areas shaded in purple were areas in which
there was a conflict in determination of navigability, and the
areas shaded in pink were areas in which navigability was
undetermined. He drew attention to slide 14, which depicted the
changes in status of navigability, should HB 397 pass.
MR. WALKER noted that the public relies on the maps before the
committee and that the projected changes to the maps had been
made conservatively and, in the public's best interest. He
stated that HB 397 would force the federal government to honor
its promise made at statehood that Alaska owns submerged lands
under navigable waters statewide.
CHAIR TARR invited Ms. Alloway to offer additional comments.
2:15:43 PM
MS. ALLOWAY referred to an earlier question regarding potential
impacts on federal litigation and stated that the state may only
bring quiet title litigation should there exists a controversy.
She noted that the federal government often takes no position
regarding ownership and, as a result, the state may not file
suit. She stated that, should HB 397 pass, the state would be
asserting its rights of ownership and the burden would shift to
the federal government to sue for ownership following a
navigability determination.
2:17:00 PM
REPRESENTATIVE VANCE stated her support of matters being
codified into law rather than being determined by a court, and
asked what the role the commissioner would be in determining
navigability [of certain waterways] under section 4 of the bill.
MR. WALKER answered that the Public Access Assertion and Defense
section has a knowledgeable staff that consider all sources to
assess whether a particular waterway is navigable and whether
the state would prevail in court. He stated that the staff
would consider historical use, and noted that historical records
may be lacking, so the staff would also consider aerial imagery
captured at the time of statehood and accounts of personal use,
among other factors. He stated that navigability could be
determined by either historical use or susceptibility for use
for navigation. He allowed that proving susceptibility for use
for navigation may seem to be a difficult task but offered that,
court cases have determined that, if a waterway is in its
natural and ordinary condition and not modified by man since
statehood and can be boated in currently, then the waterway was
navigable at statehood. He referred to an earlier question
posed by Chair Tarr to learn of additional rivers that had been
the subject of litigation and contested proceedings, and named
Dennison Fork River, Fortymile River, Delta River, Kisaralik
River, and the Kuskokwim River. He noted that the Kuskokwim
River's recent determination [as navigable] had been made by the
Interior Board of Land Appeals, which is the administrative
appellate body within the U. S. Department of the Interior.
2:21:24 PM
REPRESENTATIVE VANCE asked what would happen if litigation
occurred concerning a river that had not been determined
navigable by the commissioner.
MR. WALKER answered that, should the state be sued, it would
prepare proof to establish navigability. He stated that the
evidence would include historical evidence, current evidence
such as boat travel at different water levels and ArcGIS data
obtained by unmanned aircraft. He added that the state would be
well-equipped to address litigation. He offered the example of
Lake Clark, which had been involved in public complaints of
federal interference with the use and enjoyment of the lake. He
stated that individuals had been denied permits for certain
activities and that some commercial guides had applied for
permits via the Southcentral Regional office of DNR, which had
prompted research that revealed that no navigability
determination had been made. He stated that the Public Access
Assertion and Defense had been delegated authority from the
commissioner to make such determination and, for Lake Clark, the
determination of navigability was issued.
2:25:15 PM
MR. WALKER explained that the DNR Southcentral Region office
established the types of permits that should be required via a
public process that included notification of the upland property
owner. He noted that the federal government advised that the
state "should not" take the action. He characterized the
response as appropriate between sovereigns, and that HB 397
would promote such a relationship.
2:27:32 PM
REPRESENTAIVE STORY noted incidents concerning the Lake Clark
area asked for further examples of federal interference.
2:27:52 PM
MR. WALKER answered that DNR had received numerous complaints
regarding Crescent Lake including federal law enforcement
conducting time consuming watercraft safety inspections. He
shared that commercial operators had complained that federal
requirements could pose costly safety risks. He offered an
example in which another complainant had alleged harassment
regarding mooring buoys.
2:31:47 PM
REPRESENTATIVE STORY asked whether there existed any state law
enforcement regarding permitted activities and how would it be
conducted, should HB 397 pass.
2:32:11 PM
MR. WALKER opined that there could exist a new need for
additional law enforcement and that the management of the
issuance of permits was in place. He stated that the matter of
jurisdiction would provide for more transparent management
structure to the public.
2:34:56 PM
CHAIR TARR referred to section 6 and asked whether the
definition of submerged lands would be consistent with the
federal definition.
MR. WALKER answered that it would be consistent and much of it
had been derived from federal case law.
2:36:43 PM
CHAIR TARR asked whether management of adjacent lands would
change, and what other permits may be required, should HB 397
pass.
MR. WALKER answered that he would defer to regional land
management offices for a complete answer and offered to follow
up with the committee. He noted that permit types would include
moorage permits, boat storage permits, dock permits, and
infrastructure permits.
2:39:34 PM
REPRESENTATIVE STORY asked what impact the passage of HB 397
would have on cases that were pending in court.
MR. WALKER answered that active litigation would be allowed to
conclude in the court and would not be affected by the passage
of HB 397. He noted that, should the state prevail in pending
litigation, it would have a positive impact to further a more
cooperative relationship with the federal government and would
support future amendments as provided in the bill [to include
additional waterways.]
2:42:51 PM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 2:42
p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| House Fisheries Committee - Skipper Science Presentation 3.22.22.pdf |
HFSH 3/22/2022 10:00:00 AM |
Skipper Science |
| HB 397 Sponsor Statement 3.10.22.pdf |
HFSH 3/22/2022 10:00:00 AM HFSH 4/5/2022 10:00:00 AM HFSH 4/19/2022 10:00:00 AM HFSH 5/5/2022 10:00:00 AM |
HB 397 |
| HB 397 Version A 3.14.22.PDF |
HFSH 3/22/2022 10:00:00 AM HFSH 4/5/2022 10:00:00 AM HFSH 4/19/2022 10:00:00 AM HFSH 5/5/2022 10:00:00 AM |
HB 397 |
| HB 397 Sectional Analysis 3.15.22.pdf |
HFSH 3/22/2022 10:00:00 AM HFSH 4/5/2022 10:00:00 AM HFSH 4/19/2022 10:00:00 AM HFSH 5/5/2022 10:00:00 AM |
HB 397 |
| HB 397 Fiscal Note One - 3.14.22.PDF |
HFSH 3/22/2022 10:00:00 AM HFSH 4/5/2022 10:00:00 AM HFSH 4/19/2022 10:00:00 AM HFSH 5/5/2022 10:00:00 AM |
HB 397 |
| HB 397 Research - Submerged Lands Presentation 3.22.22.pdf |
HFSH 3/22/2022 10:00:00 AM HFSH 4/5/2022 10:00:00 AM HFSH 4/19/2022 10:00:00 AM HFSH 5/5/2022 10:00:00 AM |
HB 397 |