Legislature(2001 - 2002)
01/29/2001 03:35 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES COMMITTEE
January 29, 2001
3:35 p.m.
MEMBERS PRESENT
Senator John Torgerson, Chair
Senator Drue Pearce, Vice Chair
Senator Rick Halford
Senator Robin Taylor
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Pete Kelly
Senator Kim Elton
OTHER MEMBERS PRESENT
Senator Loren Leman
COMMITTEE CALENDAR
Department of Law: Status of Alaska's resource cases
WITNESS REGISTER
Ms. Barbara Ritchie, Deputy Attorney General
Civil Division
Department of Law
P.O. Box 110300
Juneau AK 99811
POSITION STATEMENT: Commented on resource cases.
Ms. Joanne Grace, Assistant Attorney General
Department of Law
1031 W 4th Ave., Suite 200
Anchorage AK 99501
POSITION STATEMENT: Commented on resource cases.
ACTION NARRATIVE
TAPE 01-4, SIDE A
Number 001
CHAIRMAN JOHN TORGERSON called the Senate Resources Committee
meeting to order at 3:35 pm and announced the committee would hear
an update by the Department of Law of the state's resource cases.
MS. BARBARA RITCHIE, Deputy Attorney General, Department of Law,
said her main role today was to introduce Ms. Joanne Grace,
Assistant Attorney General, head of the statehood defense section.
MS. JOANNE GRACE said she would focus primarily on the cases that
have undergone the most change in the last year, like the Katie
John case and the Glacier Bay case, which really involve all of
Southeast Alaska. She is getting ready to file another case within
the next day or two on the roadless directive for the Tongass
National Forest that she would comment on, also. She explained:
The Katie John case - we appealed the final judgment in
that case exactly a year ago and after a few months we
asked the Ninth Circuit to consider the case 'en banc'
rather than to consider it again with just three judges.
In the Ninth Circuit that means 11 judges hear the case
instead of just three judges. Ninth Circuit agreed to
hear the case en banc and we briefed it and argued it.
So we're now before the Ninth Circuit again. I would say
we're at a really critical stage in this case not only
because it's nearing the end of its existence, but also
because having survived for 10 years, the case is now
intercepting a distinct trend in Supreme Court case law.
The Supreme Court more and more recently has been willing
to identify and precisely define limits on Congress's
authority to interfere with traditional state functions.
The case law that's coming out of the Supreme Court on
federal/state balance of power issues is much different
today than it was 10 years ago. So our argument in the
Katie John case is based on one of the issues the Supreme
Court is finding particularly important these days. It's
called the Clear Statement Doctrine.
Under the Clear Statement Doctrine, a federal court will
not assume that Congress intended to take over a
traditional state function unless Congress has made it
unmistakably clear that's what it intends to do. So it's
absolutely plain to anyone reading the act. The reason is
that Congress will not shift the balance of power between
a state and the federal government lightly. You are not
going to assume Congress intended to do that.
This is a doctrine that developed out of a 1991 case
called Ashcroft v. Gregory. In that case the issue
before the court was whether the Missouri constitution
that mandated that state judges retire at age 70 violated
a federal act that prohibited age discrimination. The
court looked at that issue and said it's a particularly
state function to define the qualifications of state
officials, particularly state judges. It's not something
the federal government normally involves itself in. The
Age Discrimination Act had an exception in it for
appointees on a policy making level. The court said it
is not clear whether state judges fit into this exception
or not. So we are going to refuse to find that Congress
intended to designate the qualifications of state judges
because Congress hasn't made it absolutely clear that
that is what it intends to do. The court also didn't
seem to think that Congress would have that authority
even if that had been its intent.
So this is the doctrine we are arguing in the Katie John
case. Our argument is that federal takeover of fisheries
management on most of Alaska's navigable waters is an
assumption of a traditional state authority and,
therefore, the court could not find that Congress had
that intent unless Congress made that unmistakably clear
in the language of ANILCA (Alaska National Interest Land
Claims Act).
There's a lot of good argument on our part that fisheries
management is a traditional state function. The U.S.
Supreme Court has said for 150 years that states take
title to the land underlying navigable waters at
statehood because the state has dominion over those
waters. The state has an obligation to manage the waters
in the resources in trust for the public for fishing and
transportation and other public uses. Therefore, the
state has an obligation to conserve those resources which
means it has an obligation to limit uses by setting
seasons, means and methods, bag limits, and things like
that. That has always been understood to be a state
function.
So our argument in the Katie John case in this appeal is
because this is a traditional state function, it has to
be unmistakably clear in ANILCA that Congress intended
the federal subsistence board to have authority over
navigable waters where the United States has reserved a
water right. Our position is that that is not
unmistakably clear in ANILCA. If Congress had wanted to
include navigable waters subject to a reserved water
right, Congress would have said that. It wouldn't have
done it in the roundabout way that the United States has
argued. It's obviously not clear from the statute given
the position the parties have taken in this case.
The United States took the position in the beginning of
the litigation that the statute did not clearly include
navigable waters and, in fact, took the position that it
clearly did not include navigable waters. When the
United States flipped its position three years into the
litigation, it didn't change its mind about the clearness
of the statute. It didn't say we were wrong; actually
it's absolutely clear in the statute that navigable
waters were intended to be included. It simply said the
statute is ambiguous. We can't tell from the statute
whether Congress intended to include these navigable
waters, but as a federal agency, it's our duty to
interpret this statute and resolve ambiguities - and we
think it's reasonable to interpret it to include certain
navigable waters.
The Alaska Supreme Court in the Totemoff case found that
it was clear those navigable waters were not included in
the language of the statute and that Congress did not
intend to include those waters. In the original Ninth
Circuit case, the dissenting judge, Judge Hall, looked at
the statute and said it's not clear that Congress
intended to include these waters. It's not our place as
judges to decide that they should be included. Congress
has to do it. Even the two judges who decided the case
against the state did not find the language to be clear.
Those judges said we can't tell what Congress meant from
the language in statute. We can't tell what Congress
meant from legislative history. We'll look to the federal
agencies' interpretation. We find this federal agencies'
interpretation to be reasonable.
But under the Clear Statement Doctrine that the Supreme
Court applies, it's not enough that it's a reasonable
interpretation. It has to be unmistakably clear from the
language in statute. So that's the argument that we've
made in this second appeal on the Katie John case. The
timing of this turned out to be fortuitous because we
argued it on December 20 and only two weeks later the
United States Supreme Court issued a new decision in a
different case applying the Clear Statement Doctrine.
That case, I'm sure you heard about it on the radio -
it's a really landmark case for states. It's called the
Solid Waste Services of Northern Cook County v. U.S. Army
Corps of Engineers. It's a case where the issue was
whether the Corps of Engineers has authority to regulate
intrastate waters. In this case it was an abandoned
gravel pit where there was some migratory waterfowl and
the question was whether it was the Corps of Engineers
authority under the Clean Water Act to issue dredge and
fill permits [indisc.] to those waters. They had issued
regulations stating that their authority extended to
intrastate waters as long as there were migratory birds
that used that water as habitat.
The Supreme Court looked at the case and said it's a
traditional state function to regulate intrastate waters.
It's not clear from language of the Clean Water Act that
Congress intended these agencies to extend their
authority that far. It's unclear. Also, again the court
seemed to think that if Congress had made that clear,
Congress's commerce clause authority probably didn't
extend that far. So, it refused to interpret the Clean
Water Act to give the Corps of Engineers authority to
regulate intrastate waters.
We just think that the climate is right for the kind of
arguments we're making in the Katie John case. The Court
actually has another case before it now under Congress's
spending clause authority. It's an Alabama case and the
issue in that case is whether the state's English
proficiency requirement for driver's license violates
Title 6 of the Civil Rights Act. Again, it's a clear
statement doctrine argument that the state is making. It
has to be clear that Congress is intending that statute
to apply. So, this is definitely an area a lot of the
Supreme Court is focusing on. It's cutting back on the
general understanding of what Congress's authority is to
take over traditional state functions and it's refusing
to interpret laws to have the effect of shifting
state/federal authority unless Congress has made it
perfectly clear that that's what it intends to do.
Not predicting that we're going to lose the Ninth Circuit
case and, therefore, the Supreme Court is going to hear
this, but I'm assuming the Ninth Circuit is following
this trend and is well aware that it needs to follow
Supreme Court authority. If it doesn't, it seems to me
this is the kind of case that the Supreme Court would be
interested in hearing - partially because it involves
this issue of state/federal authority and also because,
at this point, it would be an en banc decision and
probably with a dissent and that's the kind of case that
the Supreme Court is more likely to take.
Number 899
SENATOR TAYLOR thanked her for the explanation and asked, "Judge
Holland's opinion in the Babbitt case where he said that Congress
in ANILCA had not provided any authorization for creation of
regulations and hoped they must have intended to do so. That seems
directly contrary to the Clear Statement Doctrine."
MS. GRACE replied, "It is obviously completely contrary to the
Supreme Court law in this area and I don't believe that he had any
authority for making that statement."
SENATOR TAYLOR responded that that was the case the Department
dismissed in the final hour and asked if there is opportunity at
this juncture to reopen that and ask the judge in light of current
law to reconsider that decision.
MS. GRACE answered, "The state agreed to dismiss that with
prejudice and we would not be in a position to bring that ever
again. That's not to say that the issue couldn't arise again, but
the state couldn't raise it directly in a new case."
Number 1000
SENATOR TAYLOR said he thought there was some authority and added:
An executive on behalf of the state cannot diminish the
sovereignty of that state in their unilateral action. In
other words, the executive making the decision to
instruct the Attorney General to dismiss the case
significantly impacted the sovereignty and the equal
rights, if you will, of the people of Alaska - not only
on under their constitution, but under the federal
constitution. And I don't think that's an authority or a
right that an elected governor has. And I think there is
some case law on the subject. As a consequence, if you
could get back to me, I'd appreciate it, because that may
very well provide, if not this administration, certainly
the next administration, the opportunity to revisit that
issue even though I realize the executive and the
attorney general consented to a dismissal of the case
against us. I don't believe they had any authority to
diminish the sovereign rights of the people of the State
of Alaska by that unilateral action.
SENATOR LINCOLN said she had been asked the following question a
number of times and would pass it on to Ms. Grace:
As you know, Ms. Norton has been nominated for Secretary
of Interior and listening to you describe the events that
have lead us to this point in time; - you know that Ms.
Norton was also involved in the, - I'm not sure what the
term is, for a brief for the subsistence issue and was
quoted in the media that she would not be involved in
this issue for a year. I don't know what that means, but
if the courts don't rule in your favor, then how do you
view Ms. Norton? Should she be confirmed? How do you
view her nomination or her role in resolution of this
issue?
MS. GRACE answered that she didn't know what Ms. Norton's position
would be, but presumably she would be in a position to reinterpret
the law. The Department of Interior is not bound forever by its
position on any issue as evidenced by the fact that it changed its
position on this very issue after President Clinton was elected.
"I would be somewhat surprised if any new administration would do
that very lightly. I would not expect the Department of Interior
to change its position on this issue without a lot of
consideration."
SENATOR LINCOLN asked if that was an avenue the Department of Law
would pursue.
MS. GRACE replied that the Department of Law would probably not do
that on its own. That would be a policy choice by the governor.
She has had no indication that they would try that.
SENATOR TAYLOR noted that the governor had made statements on the
roadless issue and asked when the Attorney General's office would
be filing suit.
MS. GRACE said the Department would file a complaint tomorrow or
the next day. She said she could summarize the case for the
committee although she hadn't worked on it personally.
CHAIRMAN TORGERSON asked when the court finally put the Ashcroft v.
Gregory in place as the Clear Statement Doctrine.
MS. GRACE replied that the decision was issued in 1991:
The Supreme Court has applied it three times, because of
that decision that just came out a couple of weeks ago.
In one decision the court found that a state's
foreclosure laws fell under a state's traditional
authority and it refused to find that federal bankruptcy
laws usurped the state's foreclosure laws, because it
found that the state's interest in the stability of title
to lands within its state was a traditional state
function and, therefore, the Clear Statement Doctrine
should apply in that case. And then there was a case
involving the issue of whether the American with
Disabilities Act should apply to state prisons. The
state in that case argued that the Clear Statement
Doctrine should apply. The court said, assuming that the
Clear Statement Doctrine should apply, we think that
state's regulation of its own prisons is a traditional
state authority. But we think the federal law very
clearly intends the American with Disabilities Act to
apply to state prisons.
So I think that those three cases along with the Corps of
Engineers, the Clean Water Act case demonstrate that the
court is being fairly liberal in defining a traditional
state authority. I don't think there's really any
question as to whether state management of fisheries and
navigable waters is a state function. That is not a
tough argument to make. I think the court is being
fairly generous in finding state regulation in the
particular cases that have come up to be traditional
state functions that federal laws usurping those
functions would be a dramatic shift or enough of a shift
in state/federal authority to require Congress to be
unmistakably clear.
CHAIRMAN TORGERSON said he found it interesting that we're not
taking it on as a state's right issue instead of a loop hole. He
asked Ms. Grace to describe the roadless case.
MS. GRACE said:
The roadless case is based on a directive that was
published in the federal register on January 12 that
prohibits road construction, reconstruction, and timber
harvest in areas that are called inventoried roadless
areas. This means for the Chugach National Forest that
98.9 percent of the forest will be closed to road
construction, reconstruction, or timber harvest and in
the Tongass, 90 percent of it will be. The state's
position on this is that this amounts to defacto
wilderness status of these areas by executive action.
She understands that the core of the state's claims will
be that the roadless directive permanently eliminates
processes for land use planning that Congress has
required under federal law so that, for example, Congress
has provided in the Wilderness Act that there will be no
more wilderness designation without Congressional
approval. Congress has provided in the National Interest
Lands Conservation Act that no public lands can be
withdrawn over 5,000 acres without Congressional
approval. Congress has provided in the National Forest
Management Act that there are certain processes that the
Forest Service must go through for land use planning
including such things as considering the unique factors
of a particular forest, for example in the Chugach the
one million acres of dead spruce and the increasing
public use of the forest that might call for increased
trails and roads. Also, I think, as I understand it,
that Act also requires that that the Forest Service
consider input from local communities and from the state.
The Multiple Use and Sustained Yield Act requires that
the lands be used for multiple purposes, but the roadless
directive is so extensive that it eliminates almost all
uses. I think the state's complaint is going to have two
or three other counts. It's not in a final draft at this
point, so I don't have a copy to give you, but our
intention is to file it by Wednesday.
CHAIRMAN TORGERSON asked if she would be handling that case.
MS. GRACE replied that Ms. Elizabeth Barry was handling the case.
SENATOR PEARCE asked where the case would go first.
MS. GRACE replied that it's going to be filed in federal district
court in Alaska. The United States always gets 60 days to answer,
she said. She thought that there would also be interveners.
Number 1603
SENATOR PEARCE asked what was the legal status of a directive on
the federal register.
MS. GRACE replied that she didn't know if it's a regulation or an
executive order.
SENATOR TAYLOR asked why they didn't file a direct action suit like
the state did in the Southeast waters case.
MS. GRACE explained that the kinds of cases the Supreme Court will
take as regional actions, even though technically it will consider
actions between a state and the United States, are really much
narrower than that and usually involve boundary disputes between
states or coastal boundary disputes between a state and the United
States. She didn't believe that was the kind of case the Supreme
Court would take as a regional action.
SENATOR TAYLOR asked if Ms. Barry was working with any of the other
western attorney generals on this issue.
MS. GRACE answered that she was working with an assistant attorney
general who is handling the case in Idaho, Steve Strack. She didn't
know about Washington. Western states generally work together.
SENATOR TAYLOR remarked that he had been reminded by his friends in
the placer mining business that BLM has now come out with new
[indisc.] making directives also, which may have devastating
impacts on our placer mining industry as far as the amount of money
that has to be paid up front each year for a claim. We set up a
bonding process for placer miners, but it's apparently not adequate
and we're not recognized in BLM. He added, "It would be very costly
and probably drive a good portion of them out of business." He
wanted to know if her department was aware of that.
MS. GRACE replied that hadn't come to her attention, but they have
a separate section in the Attorney General's office, the Oil, Gas
and Mining Section handles those issues.
MS. GRACE said she wanted to talk about a Southeast lands case.
Three major things have happened since the last legislative
session. The first thing is that the Supreme Court granted the
State of Alaska's motion to take the case as an original action.
This means, essentially, they accepted the state's complaint. She
continued:
The United States answered it. That happened in June.
In October, the court appointed a special master to hear
evidence in the case. This is an extremely important
part of the case, because the Supreme Court, even though
it will sit as an original court in rare cases, it
doesn't sit a trial. So it appoints a special master to
hear the evidence that we have to present, possibly come
up to Alaska, take a look at the Alexander Archipelago,
and take a look at Glacier Bay, and make a written
recommendation to the Supreme Court. This kind of
recommendation carries a lot of weight with the court.
The court appointed, in October, Professor Gregory Maggs
from George Washington University Law School. He has a
very impressive resume'.
Attorneys on the case are going to Washington D.C. and
meet the special master and go over the case.
The third thing that happened is that we filed the motion
with the Supreme Court asking to amend the complaint to
add a fourth count. The Supreme Court granted that
motion very recently. I wanted to explain this fourth
count to you because it is different than the others.
It's not a self evident kind of claim. In general, this
is a quiet title action to submerged lands in Southeast
Alaska. It's a boundary dispute with the United States
about where Alaska's boundaries begin and where the
United States boundaries end. In general, under the
Submerged Lands Act, a state's boundaries are measured
from its legal coastline. The legal coastline is defined
as the line of mean low water where the coast faces the
open sea and the line demarking the seaward limit of
inland waters. Inland waters are, essentially, internal
waters of the state. One of the state's arguments in
this case is that all of the waters of the Alexander
Archipelago are inland waters. Those are all of Alaska's
waters and the coastline skirts the western edge of the
Alexander Archipelago and our boundary is three miles out
from that line.
We had in our complaint originally, a count that alleged
that all the waters of the Alexander Archipelago are
inland waters. You can see this, by the way, on the
second map in here that is labeled exhibit 1.
The United States claims that Alaska's boundaries only go
three miles out from its natural coastline. So there are
these pockets and enclaves within the Alexander
Archipelago that are marked in red on this map that are
not state waters. Those are not within the state
boundaries of Alaska.
We had in our original complaint a claim that these are
inland waters because they are historic waters. The
United States Supreme Court determines what are inland
waters. And the Supreme Court relies on an international
treaty called the International Convention on the
Territorial Contiguous Zone. It's a treaty that lays out
rules for how countries define their boundaries vis a'
vis other countries. So, under the convention, if the
United States has historically treated waters as inland
waters of the United States and if other foreign nations
have acquiesced in that characterization, then those are
inland waters of the state when the state becomes
[indisc.] And we have evidence that the United States
treated the waters of the Alexander Archipelago as waters
of the United States as early as 1903 in the Alaska
Boundary arbitration between the United States and Canada
which was an arbitration to draw the boundary between the
United States and Great Britain. It was an arbitration
to determine the boundary between Alaska and Canada.
The United States took the position in that arbitration
that those were inland waters of the United States, not
open to vessels of foreign nations. Great Britain
acquiesced in that characterization - as did Norway. We
have evidence that the United States continually took
that position until 1971 when they published these charts
that show the doughnut holes. But that claim depends on
us essentially proving the subjective intent of the
United States. We have to prove what the United States
thought. We have to prove that they continually thought
that and we have to prove that foreign nations agreed
with that.
So we came up with a second theory that is completely
objective and doesn't depend on what the Untied States
thought. This is based on the theory that Southeast
Alaska is made up of juridical bays. Juridical bays are
simply legally defined bays. This comes from the
convention. Under the convention, if a bay meets the
definition of a juridical bay, then it is inland waters
owned by the state. End of the case. So, if you look at
the fourth map in here, the one entitled juridical bays,
you can see that you may not have realized that southeast
Alaska was made up of two large bays and two small bays,
but, in fact, it is. There is the north southeast bay,
that we designated in green, that goes from Cape Spencer
down to Coronation Island and the south bay is Coronation
Island down to Cape Fox. There is a third bay that is
Sitka Sound and the fourth bay is Cordova Bay.
If we can establish that these bays meet the definition
of juridical bay under Article 7 of the Convention, then
these are inland waters for purposes of Alaska's
boundary. The requirements for a juridical bay are
essentially two. The first requirement is the bays must
be well marked, deeply-penetrating indentations
containing land-locked waters. This is not a difficult
test for us to meet because of the islands that are in
the mouths of these bays. Land-locked means essentially
that the water has to be surrounded in three directions
by land. If you look at the water areas of Southeast
Alaska, most of those areas are surrounded on four sides
by land. Also, it must provide protection to a mariner
on at least three sides. One side can be the open sea,
but it must provide protection on three sides. The
reason for this is that, again, the convention is an
international document and the idea is that inland waters
are so much a part of the land of the sovereign that they
should be within the boundaries of the sovereign. They
shouldn't be considered open seas. The idea is that a
mariner traveling in these waters would know that he had
infringed on the area of a sovereign nation.
Southeast Alaska, it seems to us, clearly meets that
definition. Coastal towns in Southeast Alaska are so
much a part of the water; there's such a close affinity
between the towns of southeast Alaska and the water that
it's ridiculous to think of this area as being anything
but within the boundaries of the state of Alaska. It's
O.K. that part of the indentation of this bay is made up
of these islands, of Kuiu Island, Mitkof Island, and
Kupreanof Island. Under the terms of the convention, if
islands can be assimilated to the mainland, they fit that
geographic formation. In other words, these islands are
so large and so close together and have such narrow and
shallow straights between them, that the court will
consider them to be assimilated with the mainland for
purposes of defining these bays.
The second requirement for defining a juridical bay is
that the bay has to meet the semicircle test. What that
means is that the bay must be as large or larger than a
semicircle whose diameter is the line across the mouth of
the bay. In this case, again, having the islands in the
mouths of the bay really helps us, because the lines that
close the bay do not have to go from headland to
headland. They can go from headland to the island and
from the island to the bottom headland. So if you look
at the map, for example, the north bay we've designated,
there's only two small closing lines. If you add the
length of those two lines together the semicircle only
needs to have a diameter of that length. You can see the
bays easily meet that requirement.
The new claim we have added to our case, the court has
accepted it. The special master has asked us all to come
to Washington D.C. in February and come up with a
management plan for the case. We already had discussions
with the United States and have come to terms on what
we're thinking in terms of a schedule with the case. We
expect that we will have a trial in the case probably, we
hope, in Anchorage, as opposed to Washington D.C. or some
place else in the summer of 2002 or 2003 depending on
whether part of the case is resolved on summary judgment
just on pleadings. Then we would expect that the special
master would issue a report within six months or a year
of the trial and we would have briefing before the United
States Supreme Court.
Number 2039
SENATOR TAYLOR said he had been told for many years by the U.S.
Forest Service representatives in Southeast that they had
documentation which indicated that they had reserved the water
rights of the Tongass at some point in time. He asked, "Pursuant
to our discussions, I requested that documentation from the U.S.
Forest Service in July and I have had absolutely no response to my
letter and wondered if you had in the discovery process."
MS. GRACE replied that they are just starting the discovery process
and hadn't received any documents at all. She told members:
We have a lot of evidence that they have not treated
these waters as if they are within the Forest Service.
The Solicitor of the Department of Interior issued an
opinion in the '50s saying these are not Forest Service
waters. We don't manage them. And we have other
evidence from the Statehood Act discussions and from some
lighthouse reservations when they were rewrote; I take it
from the answer that the United States filed in this
case. The only thing I can infer from their answer is
that they consider the marine water of the Alexander
Archipelago to be part of the total ecosystem of the
forest. Therefore, retention of those submerged lands
were necessary when the forest was created, because you
can't separate the waters from the forest for purposes of
the forest. That's about as well as I can articulate
what I've understood their theory to be.
SENATOR TAYLOR said he had been informed that this was a document
and not made up out of someone's definition of ecosystem.
Apparently, they told Ms. Grace the same thing.
CHAIRMAN TORGERSON asked if the fourth complaint would slow the
overall case down on our original complaint.
MS. GRACE replied that it didn't, at all.
TAPE 01-4, SIDE B
Number 2320
MS. GRACE continued:
The special master was appointed in October and we
informed the special master and the United States
immediately that we intended to amend the complaint. He
had already scheduled this case management conference for
February and so, what we did was share our motion with
the United States ahead of time, before we filed it and
the United States looked it over and said we won't oppose
this if you take certain arguments out of your motion.
So, we did take the arguments out, because the non-
opposition of the United States was very important in
getting the Supreme Court to grant the motion. The
Supreme Court granted the motion very quickly. It didn't
refer the motion to the special master as it usually does
in these cases, I think because the United States didn't
oppose it. We don't think it slowed the case down at
all.
CHAIRMAN TORGERSON asked if the United States was represented by
people in Alaska or in D.C.
MS. GRACE replied that the United States is always represented when
it's in the Supreme Court by someone in the Solicitor General's
Office, the branch of the Department of Justice that handles
Supreme Court cases. So Jeff Maneer from the Solicitor General's
Office, the person who's handling the Microsoft appeal before the
Supreme Court, is handling this case. And also somebody from the
Appellate Division in Washington D.C. is handling it, an assistant
attorney general in Anchorage, Bruce Landa, who handles
environmental cases is on the case and also the United States has
on contract another retired Department of Justice Attorney in San
Diego. So there's four people handling it for the United States,
one of whom is from Alaska.
MS. GRACE said that those are the federal relations litigation
cases that are active right now. She wanted to comment on some of
last year's questions on 17 B easement terminations, because that
looks like it's becoming active, as well. She said:
These are easements that were created when the federal
government conveyed land to Native corporations. Certain
easements were retained so that the public would have
access to publicly owned lands and major waterways. The
BLM promulgated regulations that provided that easements
that were not being used for the purpose for which they
were created would be terminated by December 18, 2001.
The BLM has now begun this process and is now
investigating which easements are not being used for the
purpose for which they were created. The regulations say
that among other things that it will terminate easements
for which there were no reasonable alternative if there
is no evidence of present existing use.
This is a concern for the state for a couple of reasons.
One is that I think it's not necessarily true that
because easements haven't been used by now or haven't
been heavily used by now, they will never be used. We
are talking, again, about access for which there is no
reasonable alternative.
The second concern is that many of these easements have
never been marked or maintained and that may be a reason
why there is no evidence of present existing uses -
because BLM has never marked many of them or maintained
any of them. Some of them exist only in a very
intangible sense. So, the process right now is that the
BLM is, at this point, looking into present existing uses
on 17 B easements. It will not announce before December
2001 that it intends to terminate any easements. At that
point it will begin identifying easements that it intends
to terminate and there will be public notice and there
will be a chance for comment before termination and there
will be a chance for an appeal. Terminations will not
begin until December 2002. I am sure state agencies will
be following these terminations and we'll see what kind
of designations they make.
CHAIRMAN TORGERSON asked if she thought that policy would change
with the new administration.
MS. GRACE said it depends on what comes to the attention of the
administration.
CHAIRMAN TORGERSON said he thought for them to terminate our
easement because of non-usage is plain garbage, because they
haven't marked or defined them. In some cases, we've been barred
from using them.
Number 2142
SENATOR HALFORD asked if there was any provision that allows for
termination.
MS. GRACE answered there is not and said:
There is no requirement for use to set the easements up
to begin with. The idea was we have this public land and
the pattern of ownership is going to change so that there
will be no way for the public to get to the public land
or major water ways and, therefore, the United States
will retain the easement. It was enough, according to
the Department of Interior Board of Land that there might
be some future use. When they were created that was
enough - to find it necessary to retain the easements,
but apparently that has no place in the decision to
terminate. Future use has no place in the decision to
terminate them.
SNEATOR HALFORD said he had met with federal agents on this issue
and they were also terminating some easements where the public land
to be accessed by the easement was no longer going to be public
land. For example, the Native corporation that had the land over
which the 17 B went ended up, because of other shortages and trades
back and forth, taking the parcel the access was to.
MS. GRACE answered that there was no reason for an easement in that
kind of case. The Alaska BLM has information about these kinds of
terminations on their website. It's probably not going to be clear
whether this is something to get concerned about unless we see a
proposal for termination.
SENATOR LINCOLN asked how many easements she was talking about.
MS. GRACE said she had no idea and BLM probably didn't either,
since they were taking a year to figure it out.
CHAIRMAN TORGERSON said he had requested that information from our
State Division of Mining, Land, and Water.
SENATOR HALFORD asked if all the 17 B easements were now closed as
far as the transfers made. They had to be on the original transfer
to the Native corporations.
MS. GRACE answered if he was asking if BLM could create an easement
after the land had been conveyed.
SENATOR HALFORD asked if once they withdraw a 17 B easement, it's
his understanding there's no way it ever comes back. It's a one
way process. They are reserved at the time of transfer and that's
the only time it could be reserved and once the transfer occurred,
they could never be created again.
MS. GRACE said that is accurate. They have to retain the federal
interest. It's theoretically conceivable that they could condemn
an easement, but ANCSA doesn't provide for that. The process that
BLM foresees is that after they have a final judgment to terminate
an easement, they'll record the disclaimer, disclaiming whatever
interest they had in the easement. Then the private land owner,
the native corporation will have sort of a full bundle of sticks.
At that point it would be too late.
SENATOR HALFORD asked "if the creation of a 17 B easement - and we
found that RS2477s belong to basically anybody - is there any
private course of action for an individual who may have determined
that they were dependent on a 17 B easement which is proposed to be
deleted.
MS. GRACE replied that she thought an individual who could state
some interest in the easement would have a cause of action.
SENATOR HALFORD asked if the state would.
MS. GRACE answered that it's more difficult for the state because
the state would have to allege standing to bring an action.
SENATOR HALFORD interjected, "if the parcel of public land was
state land that the 17 B easement went to."
MS. GRACE replied,
That possibly would give the state a stronger interest.
It's difficult for the state to file a lawsuit against
the United States on behalf of the people of the state.
That's called "parens patriae." States can do that in
general, but it's difficult to do it against the United
States, because federal courts consider the United States
to be the ultimate parens patriae and the state wouldn't
have standing to question the actions of the ultimate
patriae - because the United States upholds the interests
of the state.
SENATOR HALFORD asked if there were some holes in that doctrine.
MS. GRACE replied not that she knew of, "but if the state could
allege some state interest…"
SENATOR HALFORD said the state could have interest in selling the
land.
MS. GRACE answered if the easement were to state land, we'd have a
much better case, especially if it were to a major waterway, too.
SENATOR HALFORD said the next question is "State submerged land is
state land."
MS. GRACE said that was right, but a major waterway and navigable
water are not necessarily the exact same.
SENATOR TAYLOR asked if a parcel of state land sits on the other
side of a parcel of corporate land and an easement goes through
there, that would be protected under 17 B, and if that easement is
removed at the request of the owner of that property, then there is
no access to cross that property or right of access to get to the
state land.
MS. GRACE said, "Her understanding is that they are not going to
terminate easements that lead to a completely isolated piece of
land even without evidence of present existing use, but they will
terminate without evidence of present existing use an easement for
which there is no reasonable alternative."
She tried to clarify her answer by saying they will not terminate
an easement to an isolated piece of publicly owned land. She
thought that meant "the only way" regardless of the lack of
evidence of present existing use. They will terminate for lack of
evidence of present existing use and easement for which there is no
reasonable alternative.
SENATOR HALFORD asked, "If the state owned the mountain tops and
the only access that can ever be built into a road is a 17 B
easement, but you could on a map at least look through a series of
state owned parcels and come down across the mountain tops and
glaciers to get there, then they will go ahead and terminate it
because there is some theoretical map connection. Is that what
you're talking about? I'm trying to get the distinction."
MS. GRACE responded that they really need to wait and see what the
BLM has in mind. They are drawing a distinction between easements
to isolated parcels and easements for which there's no reasonable
alternative.
SENATOR HALFORD asked, "If that isn't one of the criteria for the
creation of 17 Bs in the first place. He said, "I thought that in
order to get the 17 B there had to be a determination on it - that
that was necessary to have access to the public lands or public
waters involved. Some people think there were 17 Bs that should
have been, but weren't. So, you had a one-shot deal and now
there's a second shot to reduce it further."
MS. GRACE answered that it seems to her that distinction is
vulnerable to a challenge of being arbitrary and capricious.
SENATOR HALFORD asked, "If they withdraw the easement and take that
action and the documents are there - and we now have basically,
because we know through the Gulkana case that we own subsurface
estate that they have transferred in patent to third parties
because they did it before the Gulkana case went forward. What's
our avenue to go back?"
MS. GRACE answered, "Congress. BLM couldn't do anything about
that. BLM is powerless, because once they have conveyed it, they
have conveyed it."
Number 1661
SENATOR HALFORD said that means the state should be involved in the
legal action to stop that from happening.
MS. GRACE answered that she didn't think it was happening after
Gulkana.
SENATOR HALFORD said he was talking about 17 Bs. He used Gulkana
as an example of the state's subsurface rights, but once you've
transferred the full bundle of rights, BLM can't take it back.
MS. GRACE asked him if he thought the Department of Law hadn't been
sufficiently involved.
SENATOR HALFORD said that wasn't it. He wanted to make sure when
it gets to the point that they are actually considering giving a
specific easement away, that as an interest to the state of Alaska
that we be involved not after the fact, but try to enjoin the
action before it happened.
MS. GRACE answered that she thought the Department of Fish and Game
and the Department of Natural Resources would watch these very
closely.
CHAIRMAN TORGERSON asked if they were involved in any 17 B
litigation right now.
MS. GRACE answered they weren't.
CHAIRMAN TORGERSON said a case had been filed in Seldovia over that
17 B easement and asked why we aren't part of that.
MS. GRACE said she wasn't aware of it and didn't know the answer.
CHAIRMAN TORGERSON said it had to do with motorless versus a
walking trail fight between residents, BLM and Native corporations.
MS. GRACE said she thought she knew this situation, but she
couldn't tell him what their involvement is right now.
CHAIRMAN TORGERSON said that was a far-reaching one, if the state
doesn't get involved in it pretty quick. There's no solution that
he's seen besides sticking with the original agreement.
SENATOR TAYLOR said they could use eminent domain to acquire back
rather than have to pay for rights-of-way across private land.
MS. GRACE said she thought they could do that. If it's for a
public purpose, the state has that authority to take private
property as long as it's willing to pay for it.
SENATOR TAYLOR asked what would happen if it was transferred to a
Native corporation that may have certain restrictions on the
alienation of that property.
MS. GRACE said that was a good question, but she didn't have the
answer.
CHAIRMAN TORGERSON asked if there were any further questions for
Ms. Grace. There were none.
CHAIRMAN TORGERSON adjourned the meeting at 4:47 p.m.
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