Legislature(2013 - 2014)BELTZ 105 (TSBldg)
01/24/2013 09:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| Overview: Federal Overreach - Presentation on State Activities Related to Rs 2477 Easements Over Federal Lands and Disputes Over Submerged Lands and Navigable Water | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
JOINT MEETING
SENATE STATE AFFAIRS STANDING COMMITTEE
HOUSE STATE AFFAIRS STANDING COMMITTEE
January 24, 2013
9:00 a.m.
MEMBERS PRESENT
SENATE STATE AFFAIRS
Senator Fred Dyson, Chair
Senator Cathy Giessel, Vice Chair
Senator John Coghill
Senator Bill Wielechowski
HOUSE STATE AFFAIRS
Representative Bob Lynn, Chair
Representative Wes Keller, Vice Chair
Representative Lynn Gattis
Representative Shelley Hughes
Representative Doug Isaacson
Representative Charisse Millett
Representative Jonathan Kreiss-Tomkins
MEMBERS ABSENT
SENATE STATE AFFAIRS
Senator Bert Stedman
HOUSE STATE AFFAIRS
All members present
COMMITTEE CALENDAR
OVERVIEW: FEDERAL OVERREACH - PRESENTATION ON STATE ACTIVITIES
RELATED TO RS 2477 EASEMENTS OVER FEDERAL LANDS AND DISPUTES
OVER SUBMERGED LANDS AND NAVIGABLE WATERS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record.
WITNESS REGISTER
ED FOGELS, Deputy Commissioner
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Presented information on federal overreach
into resource development in Alaska.
KENT SULLIVAN, Assistant Attorney General
Natural Resources Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: Presented information on R.S. 2477.
SCOTT OGAN, Manager
Public Access Assertion and Defense Unit
Division of Mining, Land & Water
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Presented information on navigability
issues.
ACTION NARRATIVE
9:00:40 AM
CHAIR BOB LYNN called the joint meeting of the Senate and House
State Affairs Standing Committees to order at 9:00 a.m. Present
at the call to order were Senators Coghill, Giessel, and Chair
Dyson, and Representatives Gattis, Hughes, Isaacson, Keller,
Millet, and Chair Lynn. Senator Wielechowski and Representative
Kreiss-Tomkins arrived shortly thereafter.
^OVERVIEW: FEDERAL OVERREACH - PRESENTATION ON STATE ACTIVITIES
RELATED TO RS 2477 EASEMENTS OVER FEDERAL LANDS AND DISPUTES
OVER SUBMERGED LANDS AND NAVIGABLE WATER
9:02:58 AM
CHAIR DYSON introduced the topic of the meeting, as well as the
testifiers. He said that Ed Fogels is a Deputy Commissioner at
the Department of Natural Resources and is responsible for
overseeing five divisions - Agriculture, Forestry, Mining, Land
and Water, Parks and Recreation and Support Services. He said
that Scott Ogan, a long-time friend, leads the Department of
Natural Resources' Land's Navigability Project with a mission to
protect the public rights associated with navigable and public
waters, and to ensure that the state's title to lands beneath
navigable waters is protected. He noted the importance of
today's topic. He quoted former-president Dwight D. Eisenhower
who said, "Don't let the pressing keep you from doing what is
important."
9:05:06 AM
ED FOGELS, Deputy Commissioner, Department of Natural Resources,
introduced the topic of "Federal Overreach into Resource
Development in Alaska." He said he would review the history of
the Statehood Act in order to explain how the state determined
its land position.
MR. FOGELS related that Alaska was purchased in 1867. In 1884
Congress extended the Federal Mining Law to Alaska, which
allowed mining claims to be staked. In 1903 the federal
government allowed homesteading in Alaska. Many federal
conservation units and national parks and refuges were
established before statehood, such as Mount McKinley and Glacier
Bay National Parks, National Petroleum Reserve-Alaska (NPRA),
Katmai National Park, Kenai and Kodiak National Wildlife
Refuges, and the Tongass and Chugach National Forests.
CHAIR DYSON recalled that NPRA was set aside as a Naval
petroleum reserve.
MR. FOGELS related that on July 7, 1958, President Eisenhower
signed the Alaska Statehood Act. The Act originally gave Alaska
103 million acres of a land entitlement. With subsequent
legislation, that was expanded to the 105.8 million acres of
land that is the current entitlement. Alaska was given 25 years
to make land selections. Subsequent legislation extended that
window to 1994 to finalize selections. As of today, Alaska has
received all but about 5.5 million acres of its entitlement.
9:09:06 AM
REPRESENTATIVE ISAACSON inquired if those lands are in the
state's possession with clear title or if they are awaiting
transfer.
MR. FOGELS explained that the 100 million acres the state owns
has been transferred to the state. When a state first receives
land from the federal government it is referred to as "interim
conveyed," or tentatively approved. It has not been surveyed or
patented. The vast majority of those lands today are considered
tentatively approved, which gives the state full management
rights.
REPRESENTATIVE ISAACSON asked for clarification of tentatively
approved land. He asked if it could be sold without restriction,
even though the state does not have clear title.
MR. FOGELS replied that the state does not have patents to the
lands, but it does have full management authority and the
ability to sell the land.
SENATOR WIELECHOWSKI asked if there was a plan for the 5.5
million acres that remains.
MR. FOGELS explained that half of the 5.5 million acres is in
federal withdrawals, military reservations, and the TAPS
pipeline corridor. He noted that those are very valuable lands
that the state would like to have some day. The state will keep
those acres in mind for the purpose of selection at a later date
if they become available. The remaining half of the 5.5 million
acres is available to the state now.
He said as the state decides how to use the remaining acreage,
the process becomes more complicated. Under the Statehood Act,
the state was allowed to over select lands - up to 125 percent
of the actual number of acres. Native Corporations were also
allowed to over select by the same percentage. He said that
Native claims must be decided ahead of state claims. The Bureau
of Land Management must adjudicate and decide whether to award
the land to the Native Corporation first. He noted that the
remaining entitlements are over selected by about 200 percent,
which is contrary to Alaska National Interest Lands Conservation
Act (ANILCA) provisions. The federal government has requested
that the state relinquish selections.
CHAIR DYSON asked for clarification.
MR. FOGELS stated that the federal government would like to see
Alaska's selections at 125 percent over the selection level. He
explained that the Governor is in the process of collecting
resource data and is trying to delay giving back selections.
He maintained that there is no rush at this time for the state
to finish the selection process. The state is attempting to
understand more about its resource values first.
9:14:18 AM
REPRESENTATIVE HUGHES asked how much of the 5.5 million acres is
left and if it is a part of the over selection.
MR. FOGELS explained that the 5.5 million acres is the
entitlement the state will eventually receive. He said the state
is 200 percent over selected.
REPRESENTATIVE HUGHES noted the selection timeline ending in
1994 and wondered why the state is not honoring it.
MR. FOGELS clarified that 1994 was the state's deadline for
submitting selections, which the state has done. It was not a
date by which the state was to receive lands. The state can only
whittle down the already-made selections. There is no timeline
for the federal government when deciding which lands the state
will end up owning.
REPRESENTATIVE HUGHES stated that some of the "hoped for" lands
are on the list.
MR. FOGELS said that was correct.
CHAIR DYSON asked if land designated for parks or wilderness
areas comes out of the federal share or the state's share. He
wondered if it could come out of Alaska's 105 million acres.
MR. FOGELS did not think so. He explained that park lands are
selected from Bureau of Land Management (BLM) multiple-use
lands. He said the state would fight back on that issue. He
added that ANILCA prohibits further expansion of Alaska's lands
for national parks.
9:17:47 AM
SENATOR WIELECHOWSKI asked if there was a map of the 5.5 million
acres. He inquired about the legislature's role in the land
selection process.
MR. FOGELS offered to provide a map of all of the state's
selected areas. He explained that DNR has prioritized the
selections so that the federal government is aware of their
importance to the state. The selections are adjusted from time
to time pending new information. At this point, the state has
made the selections and the commissioner of DNR will now work
with BLM to accept or reject the selections.
MR. FOGELS continued to say that after the Statehood Act, the
Native Claims Act had not yet been settled yet. In 1968 Prudhoe
Bay was discovered and it was necessary to find a route for TAPS
to Valdez. That forced the Native Claims issue. The Alaska
Native Claims Settlement Act (ANCSA) was signed into law in
1971.
He noted that while the state was trying to figure out the
Native Claims issue, the federal government froze Alaska's land
selections and transfers, and rejected most of the state's
selections. During the ANCSA debate, people were talking about
withdrawing lands for the Native corporations and for
conservation system units. That issue was tabled, but the "V2
Lands Debate" provision withdrew most of the good lands from
state selection. He related that when ANILCA was finalized in
1980, Alaska lost many valuable lands.
9:22:16 AM
CHAIR DYSON asked if the same was true with ANSCA. He wondered
if the lands awarded came from the state.
MR. FOGELS explained that since the state's land selections were
frozen by the federal government, Native corporations were able
to select some of those lands and the state's selection pool
shrank.
MR. FOGELS said that in 1980 President Carter signed ANILCA,
which drew 100 million acres into conservation system units in
Alaska. He listed the lands that were lost for development:
Orange Hill Deposit in Wrangell St. Elias, copper deposits,
Misty Fjords National Monument, Admiralty Island Monument.
REPRESENTATIVE ISAACSON asked if ANILCA was an executive order
or was passed by Congress.
MR. FOGELS said it was passed by Congress.
He said ANILCA was designed to protect Alaskan's rights and
needs for traditional access. Congress set aside management
provisions that federal land managers are supposed to take into
account. He noted that ANILCA has two "no more" provisions that
forbids the establishment of more wildlife refuges. He spoke of
letters the state has written to BLM addressing violations of
the "no more" clause. There is an office within DNR that
monitors federal land activity.
9:26:51 AM
REPRESENTATIVE KELLER emphasized that those who were around when
ANILCA was passed were very upset that 60 percent of Alaskan
land was off limits. He stressed that protections were laid down
and must be strictly paid attention to.
MR. FOGELS gave a current example - the Delta River Special
Management Area, where the state protest was denied by the
Secretary of the Interior.
MR. FOGELS touched on the Outer Continental Shelf Lands Act
(OCSLA) created on August 7, 1953. The state manages submerged
lands out for three miles; the federal government manages
submerged lands from there to the territorial limit.
He referred to the state land status map which he said hasn't
changed much. He summarized status of the remaining lands and
the need for more information. In addition to the 105 million
acre land entitlement, Alaska also owns 65 million acres of
submerged lands, tide line lands, and shore line lands.
9:31:11 AM
REPRESENTATIVE HUGHES requested clarification of the colors on
the map.
MR. FOGELS related that the blue lands equal about 100 million
acres of entitled lands, the largest land entitlement of any
state. That land was intended for use for economic independence.
The green land is ANILCA. The pink lands are Native Corporation
lands, and brown lands are BLM federal, multi-use lands.
He offered to answer questions.
CHAIR DYSON complimented Mr. Fogels on his presentation.
MR. FOGELS concluded that the state must build strong
relationships with the federal government. The Interstate Mining
Compact Commission (IMCC) - Senator Giessel's SB 2 - is an
important way to band together with other states regarding mine
issues.
He explained the Super Fund Law - CERCLA 108(b) - EPA's
initiative to assume control of bonding for hardrock mining. He
termed it worrisome. He said the bonding part determines the
cost of reclamation. Whoever has control over bonding controls
the money. He suggested that IMCC is the vehicle to prevent
federal control over bonding. Currently, EPA looks at Alaska as
a state that is doing it right, with respect to bonding.
9:37:24 AM
CHAIR DYSON pointed out a resolution written last year that
supported DNR's efforts towards state independence. Commissioner
Sullivan said that it is valuable that the people of Alaska
support state control. He asked if another resolution would be
supportive.
MR. FOGELS said he would take that idea back to Commissioner
Sullivan.
He continued to discuss IMCC and its organizational structure.
The Office of Surface Mining is the federal body that has
delegated coal mine regulation to the states. In the last few
years they have established an Enhanced Oversight Directive that
scrutinizes states inappropriately. Mining states are disturbed
by this initiative so IMCC has taken it on.
He pointed out that IMCC is also working on Endangered Species
Act issues.
MR. FOGELS stressed that DNR sees federal overreach coupled with
decreasing resources of the U.S. Army Corps of Engineers, as a
serious concern to Alaska's economic health. At once time,
federal agencies recognized that Alaska's wetland situation was
unique in the nation and agreed to handle permitting with more
flexibility (the Alaska Joint Memorandum). It is not clear if
the federal agencies have been implementing this Memorandum in
recent years.
He noted that the Governor has introduced HB 78 and SB 27, bills
that establish authority for the state to evaluate and seek
primacy for wetlands permitting. He emphasized that Alaska is
unique and should have more flexibility on wetlands permitting.
9:42:28 AM
REPRESENTATIVE ISAACSON asked how much of the cooperative
agreement with the Corps is affected by recent U.S. Supreme
Court decisions that make any standing water wetlands.
MR. FOGELS agreed that the Supreme Court decisions put new
sideboards on how wetlands are delineated and make reclamation
decisions difficult. He gave an example of mining in the 40-Mile
district and fears of compensatory mitigation costs for
wetlands. He said DNR believes that if Alaska can assume primacy
the state will have much more control over wetlands policies.
CHAIR DYSON asked committee members to consider additional
questions to submit to DNR.
REPRESENTATIVE MILLETT asked Mr. Fogels if he would discuss the
National Ocean Policy, which is not going through the
congressional legislative process, and what it means to Alaska's
coastline.
MR. FOGELS replied that DNR has not had a lot to do with that
initiative. He noted the Governor has concern about where the
federal government is going with National Ocean Policy. He
offered to provide more information at a later date.
He discussed the President's Interagency Working Group on
Coordination of Domestic Energy Development and Permitting in
Alaska (IAWG), which was established by an executive order to
help permitting and efficient development of energy resources
development. He noted that Alaska did not get a seat on the
working group and was told that it is a federal working group.
He reported increasingly better communication with the group and
he hoped that it would help with wetlands permitting issues,
especially on the Outer Continental Shelf (OCS). He believed
that IAWG would be addressing National Ocean Policy issues,
also. The group was tasked with writing a report on Integrated
Artic Management. He referenced letters from the Governor and
from himself to Deputy Secretary Hayes that basically stated the
state's concerns about Arctic management. The letters said what
was not needed is additional layers of governance or regulatory
activity. What is needed is a more collaboration relationship
with the federal government.
9:49:32 AM
KENT SULLIVAN, Assistant Attorney General, Natural Resources
Section, Department of Law, presented information on R.S. 2477.
He said that R.S. 2477 arose out of Section 8 of the Mining Law
of 1866 and was later re-designated as Section 2477 of Revised
Statutes of 1878. It was a simple one sentence enactment that
says, "The right-of-way for the construction of highways over
public lands, not reserved for public uses, is hereby granted."
He related that the grant is self-executing - it comes into
being automatically when a public highway is established across
public lands in accordance with the law of the state. All
rights-of-way existing on the date of repeal of R.S. 2477 in
1977 were expressly preserved. He described how rights-of-way
come into being: when the elements have been satisfied for their
creation and federal courts have said, "We'll look to state law
to determine whether or not those elements have been satisfied."
Each state has different requirements to show whether R.S. 2477
has been fulfilled.
He explained that R.S. 2477 is a grant by the federal government
as an offer for a right-of-way that can be accepted by the
states and by the public. In Alaska, the acceptance can be
manifested by public use or through actions by public
authorities.
MR. SULLIVAN related how highways came to be defined.
Historically, highways included foot trails, pack trails, sled
dog trails, crudely built wagon roads, and other corridors of
transportation. Under AS 19.45.001(9), highways include a
highway, road, street, trail, walk, bridge, tunnel, drainage
structure, and other similar or related structures or
facilities.
He discussed how R.S. 2477 applies to Alaska. It includes
historic routes which exist not only on federal lands, including
present day BLM, Park Service, and Forest Service land, but also
on former federal lands which are now held by the state or owned
by private parties, including Native corporations.
CHAIR DYSON asked if Native land is included.
MR. SULLIVAN said it was included, as well as homesteaded land.
CHAIR DYSON asked if there is a mechanism for someone purchasing
land to research whether there is an old route on the land which
might be re-activated.
MR. SULLIVAN said not necessarily. It is a legal interest
similar to prescriptive and implied easements. It is incumbent
upon the private property owner to research the background of
the property. He noted that DNR has a database of recognized
R.S. 2477's.
CHAIR DYSON asked if that information is included in a title
company search.
MR. SULLIVAN said no. Title companies search only things that
have been recorded, such as deeds and easements.
9:57:10 AM
REPRESENTATIVE ISAACSON used an example of a person in the
Bettles area and asked what happens when primacy is denied in
spite of supporting documents.
MR. SULLIVAN replied that in Alaska, there are many ways to
assert the existence of an R.S. 2477, which is a state-owned
interest. However, the courts have recognized the ability of
private parties to assert interest with regard to R.S. 2477's
themselves.
REPRESENTATIVE ISAACSON clarified an example of restricted trail
access. He inquired about the policy to maintain a clear
highway.
MR. SULLIVAN noted that every dispute is different. In some
instances the state has intervened and initiated litigation to
remove blockage of an R.S. 2477, and in some instances they have
not. There are many blockage issues out there.
REPRESENTATIVE ISAACSON asked how long it takes DNR to resolve
these issues.
MR. SULLIVAN said it depends on if there is an existing file or
not. He stated that his background is in real property
litigation. He said R.S. 2477 cases are extremely difficult and
complex due to the need to research ancient claims or documents,
or to find living witnesses, and federal immunity issues.
10:04:07 AM
MR. SULLIVAN spoke of controversy surrounding R.S. 2477. From
the federal agency perspective, R.S. 2477 was created in
anticipation of travel needs. He pointed out that federal land
managers began to emphasize conservation as the highest
priority, which caused problems. From an environmentalist
perspective, there is fear that R.S. 2477 is being used as a
land grab. They are afraid of what may happen if ownership of
the right of ways is given to the state, as opposed to the
federal government.
He shared Utah's current efforts with pursuing R.S 2477's the
last 15 or 20 years. Utah has statute-of-limitation concerns and
was forced to file all claims by June of 2012. They filed 22
separate cases involving over 10,000 rights-of-way. He concluded
that Alaska can learn much from Utah's efforts, although there
are many differences between the two states.
CHAIR DYSON thanked Mr. Sullivan for providing such interesting
information.
10:09:31 AM
At-Ease
10:10:14 AM
REPRESENTATIVE KELLER explained the goals of the Citizen's
Advisory Commission on Federal Areas (CCACFA). He related that
CCACA works with state and federal agencies on land issues. He
provided a brief history of the organization.
10:13:23 AM
At-ease
10:16:50 AM
SCOTT OGAN, Manager, Navigability Project, Department of Natural
Resources, Division of Mining, Land & Water, Department of
Natural Resources, provided information on the Public Access
Assertion and Defense Unit (PAAD). He shared the PAAD mission
statement, which is to protect the Alaska lifestyle through the
assertion and defense of access to Alaska's public lands and
waters. He listed statewide policy issues such as statehood
entitlements, navigability, R.S. 2477, ANCSA easements, as well
as day-to-day litigation strategies. He said he was overseen by
a group called the Interagency Navigability and Access Team,
made up of representatives from DNR, DF&G, and DOL.
He mentioned the Equal Footing Doctrine, which says that all
states are admitted to the union on equal footing with other
states, including the 1953 Submerged Land Act, which granted the
title to submerged lands beneath navigable waters. He listed
case law examples, such as Daniel Ball, Utah, Kandik/Nation,
Gulkana, and PPL Montana. He said the Supreme Court affirmed
Alaska's opinion in all cases.
10:22:30 AM
CHAIR DYSON thanked the presenters.
CHAIR LYNN also thanked the presenters.
10:23:22 AM
There being no further business to come before the committee,
Chair Dyson adjourned the Joint Senate and House State Affairs
Committees at 10:23 a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 13.01.24 R.S. 2477 PowerPoint Presentation.pptx |
HSTA 1/24/2013 9:00:00 AM |
Dept of Law PowerPoint Presentation - R.S. 2477 |
| Fogels_Alaskas Land History_Senate State Affairs_1-24-13.pdf |
HSTA 1/24/2013 9:00:00 AM |
Fogels Alaska Land History Senate State Affairs |
| Joint State Affairs 1-24-13 IAM Letter to Hayes 11-16-12.pdf |
HSTA 1/24/2013 9:00:00 AM |
Joint State Affairs 1-24-13 IAM Letter |
| Joint State Affairs DNR Navigability 1.24.13.pdf |
HSTA 1/24/2013 9:00:00 AM |
Joint State Affairs DNR Navigability 1-24-2013 |
| Joint State Affairs Presidential Executive Order 13580.pdf |
HSTA 1/24/2013 9:00:00 AM |
Joint State Affairs Presidential Executive Order |