Legislature(2021 - 2022)BUTROVICH 205
02/03/2021 03:30 PM Senate RESOURCES
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| Start | |
| Overview: Alaska Lands and Waters History | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
February 3, 2021
3:32 p.m.
MEMBERS PRESENT
Senator Joshua Revak, Chair
Senator Peter Micciche, Vice Chair
Senator Click Bishop
Senator Gary Stevens
Senator Natasha von Imhof
Senator Jesse Kiehl
Senator Scott Kawasaki
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
OVERVIEW: ALASKA LANDS AND WATERS HISTORY
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
DICK MYLIUS, Natural Resources Consultant
Anchorage, Alaska
POSITION STATEMENT: Provided a historical overview of Alaska's
lands and waters.
ACTION NARRATIVE
3:32:27 PM
CHAIR JOSHUA REVAK called the Senate Resources Standing
Committee meeting to order at 3:32 p.m. Present at the call to
order were Senators Bishop, Kawasaki, Kiehl, Micciche, Stevens,
and Chair Revak. Senator von Imhof joined the meeting shortly
thereafter.
^OVERVIEW: Alaska Lands and Waters History
OVERVIEW: Alaska Lands and Waters History
3:33:18 PM
CHAIR REVAK announced the purpose of the meeting is to hear an
overview of Alaska's lands and waters history by Mr. Dick
Mylius.
He noted Mr. Mylius retired from the Alaska Department of
Natural Resources (DNR) in 2010 with 29 years of service. He
added he served as director for the department's Alaska Division
of Mining, Land, and Water.
3:34:50 PM
DICK MYLIUS, Natural Resources Consultant, Anchorage, Alaska,
detailed he previously worked for almost 30 years for DNR and
has been retired for the last 10 years. He said he has stayed
engaged and current on land issues through trainings he does on
the Alaska Lands Act including for the Institute of the North.
He explained his presentation is something that he has put
together for new DNR employees because it had taken him 15 years
as a DNR employee to figure out how the pieces of Alaska's land
ownership fit together and thought sharing the information would
be useful.
MR. MYLIUS noted his overview is part one of two parts, part one
covers information up to 1980. He said Ms. Tina Cunning is
addressing the committee on the following Monday to talk about
the [Alaska National Interest Lands Conservation Act] (ANILCA)
and some of the things that have happened because of ANILCA.
He explained his overview will get the committee members up to
how Alaska got to ANILCA. The act is based on things that
happened prior to its passage, including influences going back
to Alaska's territorial days, the [Alaska Statehood Act], and
the Alaska Native Claims Settlement Act (ANCSA).
3:36:38 PM
MR. MYLIUS addressed slide 1 from his overview, Alaska Land
History. He said land ownership in Alaska is unique, something
important to understand when someone is dealing with individuals
outside of Alaska, whether it be federal individuals in
Washington, DC who are proposing things that do not work in
Alaska for various reasons or other legislatures who are trying
to compare Alaska's situation to their situation.
MR. MYLIUS explained slide 2 details some of the reason why
Alaska landownership is unique. A large percentage of the state
is public land, 87 percent: federal, state, and municipal. There
is a large acreage area of federal land set aside for
conservation. Over 60 percent of federal lands in Alaska are set
aside for conservation. The State of Alaska owns more land by
far than any other state and has the most generous land grant of
any state.
He referenced slide 3 and noted the other thing that makes
Alaska unique is two federal laws. The first one is ANILCA, no
other state has one federal law that applies to all federal
lands within its bordersat least parts of ANILCA apply to all
federal lands. For example, the subsistence provisions in
ANILCA-Title XIII and other parts apply to very specific units
of parks and so on. However, ANILCA applies in one way, shape or
form to every piece of federal land in Alaska.
MR. MYLIUS said no other state has a comprehensive federal law
like ANILCA that makes exceptions to the nationwide federal land
laws such as the Wilderness Act. Also, no other state has a
comprehensive statewide land settlement with its Native people,
that being ANCSA.
3:38:40 PM
He explained slide 4 references a U.S. Supreme Court decision on
Alaska's unique land ownership. Two recent U.S. Supreme Court
cases dealt with John Sturgeon's use of a state-owned navigable
water within a National Preserve. In 2016, Chief Justice John
Roberts specifically addresses the Park Service's authority, but
it applies generally to all federal land, he paraphrased as
follows:
ANILCA repeatedly recognizes that Alaska is different,
and ANILCA itself accordingly carves out numerous
exceptions to the Park Service's general authority
over federally managed preservation areas. Those
Alaska specific provisions reflect the simple truth
that Alaska is often the exception, not the rule.
MR. MYLIUS said slide 5 details his presentation outline as
follows:
• Native use and occupancy
• Russian ownership
• Federal ownership
• Statehood Act
• Alaska Native Claims Settlement Act
• Alaska National Interest Lands Conservation Act
MR. MYLIUS explained slide 6 shows general land ownership in
Alaska. The color-coded map of Alaska shows the following:
• Green: Federal National Parks, National Wildlife Refuges,
and National Forests
• Blue: State Lands
• Dark Grey: [Bureau of Land Management] (BLM) National
Petroleum Reserve
• Tan: Other BLM Lands
• Pink: Native Corporation Lands
He noted the map also shows military properties, municipal
lands, etcetera.
3:40:22 PM
MR. MYLIUS referenced federal acreage via an Alaska map on slide
7, Federal Land, as follows:
• National Parks: 54 million acres
• National Wildlife Refuges: 77 million acres
• National Forests: 22 million acres
• BLM-National Petroleum Reserve: 23 million acres
• Other BLM: 51 million acres
• Military: 2 million acres
• Total Federal Land: 242 million acres (60 percent of
Alaska)
He said at the time ANILCA passed, approximately 70-80 percent
of all acreage in the National Wildlife Refuges in the Lower 48
are generally small tracks of land, whereas in Alaska they are
huge tracks of land that were set aside to protect large
ecosystems.
MR. MYLIUS noted the two National Forests totaling 22 million
acres are two of the three largest National Forests in the
country: Chugachthird largest, and Tongassthe largest. BLM has
a unique area, the National Petroleum Reserve23 million acres
and 51 million acres scattered throughout Alaska. The military
has two million acres, which includes: Fort Wainwright, Fort
Greely, and Fort Richardson. The total amount of federal land in
Alaska is 242 million acres, 60 percent of all of Alaska.
3:41:30 PM
MR. MYLIUS referenced slide 8 and said there are a lot of
different figures about how much land Alaska has and that is
partly because the state is still having land transferred to it
and at the same time the state is transferring land out to
municipalities and through land sales, etcetera. The total
amount of land granted to the state totals about 105 million
acres.
He detailed Native Corporations will eventually receive 46
million acres of land, 12 percent of the state. When ANCSA
passed, the act referenced 44 million acres. However, BLM
figures note 46 million acres will transfer to Native
Corporations.
MR. MYLIUS noted Native allotments, other private, and municipal
land totals five million acres, which is one percent.
He said people raise the issue that only one percent of Alaska
is in private ownership. The question is not quite correct
because Native Corporation land is private land, so private
ownership is approximately 13 percent of Alaska. Alaska is a
huge state and has very few people, so in terms of per capita
land ownership, Alaska is second or third in the country in
terms of per capita private landownership. North Dakota and
Montana might have larger private landownership where there are
large ranches and large agricultural tracks.
3:43:14 PM
MR. MYLIUS addressed the need-to-know Alaska's land history and
referenced slide 9 regarding the Sturgeon cases. U.S. Supreme
Court Justice Elena Kagan wrote the court's unanimous decision
in the second Sturgeon decision, [Sturgeon v Frost, March 26,
2019]. He recommended reviewing Justice Kagan's comments because
she provides a well written and entertaining short history of
Alaska landownership. He referenced one of Justice Kagan's
quotes on the importance of understanding the history, she said:
We begin, as Sturgeon I did, with a slice of Alaskan
history. The United States purchased Alaska from
Russia in 1867. It thereby acquired "in a single
stroke" 365 million acres of andan area more than
twice the size of Texas. You might think that world be
enough to go around. But in the years since, the
Federal Government and Alaskans (including Alaska
Natives) have alternately contested and resolved and
contested and...so forth who should own and manage
that bounty...
MR. MYLIUS added he is going to address those years of
contesting, controversies, and actions taken regarding lands in
Alaska.
He said slide 10 details prior to 1867, Native Alaskans owned
most of the land in Alaska through Aboriginal Title, but they
did not have the western concept of private landownership. A map
on slide 11 shows territorial areas for Alaskan Native languages
that kind of coincides with traditional areas occupied by the
different Native peoples of Alaska.
3:45:17 PM
MR. MYLIUS referenced slides 12 and 13 regarding Russian
occupancy from the 1700s to 1867. Unlike the eastern United
States where the colonists came with the idea of settling the
land, the Russians never had an intention to settle Alaska,
their interests were to extract natural resources, furs and
timber were the primary ones.
He noted Russia established several forts for trade with limited
settlements in areas around Sitka, Kodiak, and so on. Russia had
limited land claims in terms of private ownership. The Russian
Orthodox Church got deeds to property, but for the most part the
Russians did not settle or establish specific parcels of
landownership other than claiming all of Alaska.
MR. MYLIUS pointed out a map on slide 13 that showed Russia's
limited settlements in Alaska, primarily coastal communities.
There were settlements in the Seward Peninsula and Bering Strait
area, but no settlements in northern Alaska. The Russians did
not get very far in the Interior, the farthest inland was Nulato
Island [Yukon River], and they explored further up the Yukon and
Copper Rivers.
He referenced slides 14 and 15, 1867-Treaty of Cession. In 1867,
Secretary of State William Sewardan influential guy and
President Lincoln's most trusted advisornegotiated the Treaty
of Cession. After the treaty passed, the federal government said
all of Alaska is federal propertyexcept of where the Russians
essentially established ownership transfer to the Russian
Orthodox Church or individuals.
MR. MYLIUS noted the Russians never really dealt with the Native
people of Alaska in terms of ownership issues. The Russians
never really claimed that they conquered Alaska Natives, but
they certainly did not give them citizenship or any property
rights.
MR. MYLIUS referenced slide 15 and detailed Article III of the
Treaty of Cession that basically said:
The uncivilized tribes will be subject to such laws
and regulations as the United States, from time to
time, adopt in regard to aboriginal tribes of that
country.
He explained that basically there was no settlement of Native
land claims through Russian days or through the Treaty of
Cession.
3:48:07 PM
MR. MYLIUS noted a map shown on slide 16 detailed the land ceded
by Russia to the United States. The actual map is from the
National Archives and shows Alaska to be exactly in 1867 what it
is today as a state.
He referenced slide 17, Early Territorial Land Events, as
follows:
• 1870: gold discovered at Sundum (SE Alaska)
• 1880s: gold discovered at Juneau and Fortymile
• 1884: District Organic Actfirst federal land law in
Alaska, extended mining laws to Alaska, recognized Native
possession of lands
• 1897: Klondike Gold Rush
• 1899-1900: Nome Gold Rush
• 1900: Kennecott Copper discovered
• 1903: Alaska open to Federal Homesteading
• 1906: Alaska Native Allotment Act
MR. MYLIUS said people called the Territory of Alaska "Seward's
Icebox" or "Seward's Folly." However, there was a lot of
interest in Alaska shortly after its acquisition from Russia,
particularly by miners. The first federal land law applied in
1884 was the District Organic Act that essentially extended
mining laws to Alaska, but the laws were subject to Native land
possession, a provision not quite understood and not enforced
very much.
MR. MYLIUS detailed there was a large influx of people into
Alaska for the Klondike and Nome gold rushes, and the Kennecott
copper discovery. The Alaska Native Allotment Actpassed in
1906allowed individual Alaskan Natives to acquire up to 160
acres of land.
3:49:53 PM
MR. MYLIUS addressed slide 18, The National Perspective on
Federal Lands. He said about the time that the United States
acquired Alaska, there was a movement started in the country to
set aside some of the public lands. The first National Park was
Yosemite in 1864, followed by Yellowstone shortly after that.
The federal government established the U.S. Forest Service in
1905 and the U.S. Park Service in 1918. The federal government
did not lose sight of its actions when looking at Alaska.
He referenced slide 19, Pre-Statehood Federal Land Withdrawals-
Alaska, as follows:
• 1868: Pribilof Islands Reserve
• 1891: Afognak Island Reserve
• 1907: Chugach and Tongass National Forests
• 1917: Mount McKinley National Park
• 1918: Katmai Monument
• 1923: Naval Petroleum Reserve
• 1925: Glacier Bay Monument
• National Wildlife Refuges (Ranges): Kenai Moose Range,
Kodiak, Arctic, Aleutians
• Indian Reserves
MR. MYLIUS said the land withdrawals became significant when
addressing land that both the state and Native Corporations
received.
3:51:18 PM
He detailed slide 20, Significance of Pre-statehood Land
Withdrawals, as follows:
• Largely off limits to Statehood Land Selections (400,000-
acre exception from Chugach and Tongass National Forests)
• Often constrained ANCSA selectionespecially in Parks and
Refuges
• Generally closed these lands to public land laws (such as
mining claims, except National Forest)
• May defeat State's title to navigable waters
• May alter how certain provisions of ANILCA and ANCSA apply
(old Mt. McKinley, NPRA)
MR. MYLIUS said the withdrawals often constrain Native
Corporations' selections, particularly National Parks and
Refuges; those lands closed public land laws to mining claims
and homesteadingexcept for National Forests in the case of
mining claimsand they may defeat the state's title to navigable
waters. The withdrawals also impact provisions of ANILCA and
ANCSAbest example being old Mt. McKinley National Park, and
NPRA.
3:51:57 PM
He noted a map on slide 21 shows the original colonial land
claims that extended as far west as the British territories. For
example, Massachusetts had a land claim that went as far as the
Mississippi River and Virginia to northeastern Minnesota. The 13
original states decided that any of the lands to the west of the
Appalachian Mountains would cede to the federal government for
carving out new states.
MR. MYLIUS said slide 22 explains the carving out and setup for
new states through the Land Ordinance of 1785, which created the
Public Land Survey System for establishing townships, ranges,
and square mile selectionsa system that everybody in the
western states was familiar with.
He explained as an incentive for states to form in a way for
states to get revenue, the federal government said Section 16
one section out of the 36 sections for each townshipwould grant
the states trustland for public schools. The first state to
receive such a grant was the state of Ohio in 1803. As new
states came into the union, each state negotiated their entry
terms.
MR. MYLIUS noted when California became a state in 1850, they
asked for each township to receive 2 sections out of every 36
sections because their land was more mountainous than the
midwestern states. In 1896, Utah requested four sections because
they claimed their land was drier and more mountainous than
California. Some states argued that they should get "trust" land
grants for other public purposes such as prisons, etcetera.
3:54:15 PM
He referenced slide 23 and detailed the "trust" lands the
Territory of Alaska received as follows:
• School Trust: 104,000 acres
• University (1929): 111,000 acres
• Mental Health (1956): 1 million acres
• These are all trust lands: lands must be managed for
fiduciary interest of the trust beneficiaries
MR. MYLIUS noted the "trust" lands for mental health was the
only mental health grant ever granted by the federal government
because Alaska's mental health services were out of state in
either Seattle or Portland. Mental health advocates in Alaska
probably asked for land or money, but Congress decided to give
one million acres to generate revenues to provide for mental
health services. The first parcel granted for mental health is
where the Alaska Psychiatric Institute and is in Anchorage.
3:55:05 PM
He said he added slide 24, Status of Trust Land Grants, for the
legislature's interests. In 1978, the legislature dissolved
those trusts because there was a push for the state to sell and
transfer more lands to municipalities and to put some trust
lands into, for example, Chugach State Park.
MR. MYLIUS detailed in the 1980s, both the University and
subsequently Mental Health sued and said those land transfers
violated the trust because they were not getting the revenues
from those lands and land disposals, or in the case of municipal
entitlements, there were no revenues. Basically, the legislature
had approved giving away University and Mental Health lands
without compensation to the trusts. The courts ruled the state
had violated those trusts' responsibilities and required the
legislature to reconstitute those trusts with unincumbered
original trust lands, and to not set aside other state lands for
other uses.
He explained the "trust" land grants led to the [University of
Alaska Land Management] and the [Alaska Mental Health Trust
Lands Office]. The dedicated trust funds occurred before
statehood and are not subject to the Dedicated Funds Provision.
MR. MYLIUS referenced slide 25, Alaska Statehood Debate, and
noted there was a certain amount of federal spending in Alaska
during WWII. The federal government largely provided public
services including roads and schools. Congress asked how Alaska
would support itself as a state and statehood advocates asked
for a large federal land grant without any strings to use for
funding development and state services.
3:57:35 PM
SENATOR VON IMHOF thanked Mr. Mylius for his informative
presentation. She recalled learning about the lawsuit,
particularly the Mental Health land, but people have talked
about the University and their lands grant office. She asked him
if the University land trust is an active, viable, and cash-
flowing trust that annually kicks out money.
MR. MYLIUS answered yes, there is a land office under University
management in Anchorage. He said he is not sure who the person
in charge is, but they do have money and receive a fair amount
of money from timber and parcel sales. As part of the
settlement, they have an active land-fill program. The trust is
a dedicated fund, and a large part funds go to [The University
of Alaska Scholars Program to award scholarships to students in
the top ten percent of their Alaska high school class].
He noted there is a long history of controversy where the
University has argued that they should have received a larger
land grantAlaska's university land grant was smaller than every
state other than Rhode Island, but some people argue that part
of Alaska's large statehood grants were meant for the
University.
MR. MYLIUS said the legislature over the years has passed
various legislation to transfer land to the University. There
was a proposal in Congress to transfer some of the state's
entitlement out of the Tongass, but the legislation did not
pass. There are constitutional questions with transferring state
land to the University. The legislature did pass two bills, but
a previous governor vetoed one bill and it went to court.
4:00:57 PM
SENATOR MICCICHE noted earlier discussions about transfer
issues. He asked him if there is another section where he will
talk about dates, timing on the remaining state land transfers,
and what is holding up the transfers.
MR. MYLIUS answered yes, he will specifically address transfers
during his Alaska Statehood Act overview and will provide a
recap on where all the entitlements remain.
He referenced slide 27, Alaska Statehood Act. He said there is
often confusion on how many acres Alaska has, and people say
103.35 million acreswhich was in the actbut that does not
include the million acres the Mental Health Trust received, the
UA grant, and subsequent changes that increased the state's
entitlementCook Inlet Land Exchange increased the state's
entitlement by a half million acres.
MR. MYLIUS detailed there were two sections in the Alaska
Statehood Act that granted lands to the state, one was the
Community Grant, Section 6(a), which was a small grant of
400,000 acres via the National Forests and 400,000 acres out of
BLM.
He said the [Section 6(b)] General Grantthe big grant with an
area the size of Californiawas 102.5 million acres from BLM
land; that excluded the pre-statehood withdrawals noted earlier
in his presentation as off limits: Mt. McKinley, the NPRA, the
Arctic Refuge, and so on.
He noted Section 6(m) of the Alaska Statehood Act applied to the
Submerged Lands Act, and Section 4 acknowledges Native land
rights that were unresolved at the time the act passed.
4:03:06 PM
MR. MYLIUS said slide 28 shows a couple of unique provisions of
Alaska's land grant that differed from any other state. Alaska
was able to select its lands, noting he believes all the other
states' grants were specific sections of lands. Sections were
originally sixteens, then sixteen and thirty-six, and then
sixteen and thirty-three. Alaska was able to select from any
vacant and unappropriated federal land which was most of the BLM
and Forest Service lands within the state at the timethe Forest
Service limit was 400,000 acres.
He noted the unique provisions also gave Alaska 25 years to file
its land selectionsamended to 35 years in ANILCA because of the
"(d)(2)" debatesand ANCSA basically made it impossible to meet
that 25-year deadline, and they are not "trust" lands.
MR. MYLIUS referenced slide 29 and noted the National Forest
Community Grant [Section 6(a)] was unique where the state would
receive a smaller grant of 400,000 acres out of both the Chugach
and Tongass National Forests. The grant required the lands had
to be adjacent to established communities suitable for
prospective community centers and recreation areas; that went
into litigation to define that because the state wanted to use
some of its land selections for forestry and minerals out of the
Tongass. Through a settlement agreement, the state agreed to
only select land for those purposed in the Alaska Statehood Act.
The selections allowed the state to create most of the Marine
Parks in Prince William Sound and Southeast Alaska.
MR. MYLIUS noted maps on slides 30 and 31 that illustrated
Southeast Marine Parks and Prince of Wales Island. He said the
Alaska Statehood Act constrained the purpose of the state's
selections but did not constrain the state after its selections.
The state can harvest timber off those National Forest lands
selections and some selections ended up in the Southeast State
Forest created by the legislature a few years back.
4:05:48 PM
He referenced slide 32 and noted Section 6(i) is an important
part of the Alaska Statehood Act which said all state land
grants will include minerals but requires the state to reserve
minerals and any sales or other disposalswhich means the state
can never dispose of the mineral estate through a sale or a
disposal.
MR. MYLIUS explained because of Section 6(i), whenever the state
sells land or transfers landlike to municipalitiesthere is a
mineral reservation to the state under AS 38.05.125 which
basically says the state is retaining the mineral rights. The
section has been an issue at times, especially 15-20 years ago
when the state proposed a large natural gas sale in the Mat-Su
Valleymostly the Susitna Valleyand the property owners
realized they did not own the minerals under their land. The
section can become an issue, particularly when the state has
sold or transferred the land to a municipality.
He said Section 6(i) is also why state mining claims can never
go to patenta claim going to patent is possible under federal
law in theory but hardly anybody has received a federal mining
patent in quite a few years. The state needs to deal with the
patent issue to retain the minerals and land exchanges. The
section also complicates land exchanges dealing with Native
Corporations' subsurface ownership.
4:07:16 PM
MR. MYLIUS addressed slide 33, state Land Grants, and noted the
slide gets to part of the question that Senator Micciche asked
about the status of the grants. The state has received about 100
million acres to date. The federal government patented or
surveyed 69 million acres to the state with 31 million acres
tentatively approved. The Alaska Lands Act confirms tentative
approval is titledbut it just means those lands are not
surveyedand that is really a BLM workload issue.
MR. MYLIUS noted there are current issues where BLM has proposed
cutting some of the corners of surveying that the state
disagrees with because the state argues that is a federal
responsibility to adequately survey the land before they issue
the patents.
He summarized the state has received 100 million acres out of
105 million acres and noted he will address the remaining 5
million acres.
4:08:14 PM
MR. MYLIUS referenced slide 34, Promised Landthe last 5 million
acres. The federal government has largely fulfilled the
University, School, and Mental Health grants. The remaining five
million acres, the State, under ANILCA, can top-file on lands
currently not available because of an administrative federal
withdrawal and one of those is the [Trans-Alaska Pipeline
System] (TAPS) corridor that follows the Dalton Highwayabout
two million acresthat the state has coveted forever. However,
the state cannot get the lands because of the federal
withdrawal. BLM issued a Land Use Plan a month ago that proposes
to revoke that withdrawal, but the plan is only a draft plan
subject to public comment and that is one of the big issues to
deal with.
He said he believes the state has narrowed down the acreage
amount it wants in the TAPS corridorless than two million
acresbut the state is holding on to some of its entitlements
specifically to get the corridor land because the parcel is more
valuable than some piece of tundra the state could get in
western Alaska.
MR. MYLIUS noted there is about one million acres that the state
is holding because there are various inholdings, particularly
mining claims because a lot of miners with federal claims would
prefer to operate under state claims. There is process that BLM,
the state, and the miners use to transfer federal mining claims
considered inholdings because the federal government excluded
the claims when they transferred the land to the state.
He added there is various chunks of landoften close to
communitiesthat the state could get, but the state cannot get
the land until the federal government surveys all ANCSA land,
and that essentially is a survey issue resolving all the final
ANCSA conveyances.
MR. MYLIUS noted that state also has selections via top-filings
on military landslands such as Fort Richardson and Fort
Wainwrightthat the state could hold those selections in place
for 50 or 100 years in case the federal government ever
surpluses any of those properties versus taking tundra land in
western Alaska.
4:11:11 PM
MR. MYLIUS noted in slide 35, state-owned Navigable Waters, the
state also owns 60-65 million acres, defined under three
categories: shorelands, tidelands, and submerged landsdefined
in state statutes.
He detailed shorelands are lands under inland navigable waters
such as the Susitna, Tanana, and Gulkana Rivers, acquired under
the Equal Footing Doctrine which is when the original 13
colonies became 13 states where they reached certain agreements
and every other state that enters the Union comes in under
"equal footing" with those agreements. One agreement was the
state, not the federal government, would own land under inland
navigable watersthis includes waters within Conservation System
Units established after statehoodbut it may not include waters
within those units established prior to statehood.
MR. MYLIUS said as a side note, the John Sturgeon case fed into
the second [state-owned navigable waters] category. Mr. Sturgeon
was on a state-owned water within a Conservation System Unit
established after statehoodthe Nation River which the state has
a court decision that says it is a state-owned navigable
waterbodybut the river flows within the outer boundaries of a
Federal Park created under ANILCA, and that had led to the
dispute.
He explained state-owned tidelandslands under tidal influence
between high tide and low tidethat the state also owns out to
the three-mile territorial limit under the Equal Footing
Doctrine Submerged Lands Act.
MR. MYLIUS noted slide 36, What are the state-owned Navigable
Waters, and one of the big issues is the state acquired title to
its navigable waters in 1959, but there are no lists of what
they are and there is disagreement about what is navigable.
4:13:00 PM
He referenced slide 37, Multiple Legal Definitions of Navigable
Waters and Navigability, and explained he is talking about
"title for navigability purposes," which means who owns the bed
of the navigable watersit has been defined by over 150 years of
federal court cases and is not to be confuses with navigability
definitions used for the Clean Water Act within the [U.S. Army
Corps of Engineers'] jurisdiction or the [U.S. Coast Guard]
authority.
MR. MYLIUS addressed slide 38 on the determination of navigable
waters and noted a landmark case[U.S. Supreme Court in Daniel
Bell (1870)]. He paraphrased the court's ruling as follows:
Susceptible of being used, in their ordinary
conditions, as commerce, over which trade and travel.
He explainedfrom slide 39there are several ways to determine
navigability and one is through the federal courts. The state
has gone to federal court and a landmark case the state cites is
the Gulkana River which established the commercial rafting and
susceptibility for commercial rafting and commercial uses would
define navigability in Alaska.
MR. MYLIUS said the Gulkana River case is important because the
time a state becomes a state defines navigability. Prior to
Alaska, the last state under the Union Act was Arizona in 1914.
Arizona has two navigable waters within the state, so there are
not a lot of good federal precedents out of any of the western
states. The states that have a lot of navigable waters go back
to the days before people had motorized crafts. So, Alaska was
charting new ground.
He noted a case where Alaska tried to assert a floatplane
established navigability in the Slopbucket Lake case. The court
ruled an airplane is not a boat and the state did not own the
bed of the lake just because airplanes can land on it.
MR. MYLIUS said the state has always asserted that anything that
meets the Gulkana River criteria should be navigable. Sometimes
federal agencies and ANSCA Corporations disagree with the state,
but the only way to resolve that is through Quiet Title, or if
the state and the federal governmentBLMcan reach an agreement.
BLM will typically issue a Recordable Disclaimer of Interestan
active project that BLM and DNR have been working on for quite a
few years.
4:15:31 PM
He noted slide 40, Impact of Pre-Statehood Withdrawals on
Ownership of Navigable Waters, and referenced his earlier talk
about the pre-statehood withdrawals of Mt. McKinley, Tongass,
and Chugach. Depending on area definitions, the federal
government could retain ownership of the navigable waters within
the pre-statehood withdrawals.
MR. MYLIUS said the landmark case before the U.S. Supreme court
was Utah Lakethe largest lake in Utah that is clearly a
navigable waterbodywithdrawn at the time Utah became a state.
The U.S. Supreme Court said, "No, you have to make it real clear
that you are including the waters and that you intended to
defeat the state's title to those navigable waters." That became
a big issue in Alaska's North Slope.
4:16:39 PM
He addressed slide 42, Pre-Statehood Withdrawals-NPRA and Arctic
National Wildlife Range, and noted a U.S. Supreme Court case
where the state thought was an island called Dinkum Sands.
He explained Dinkum Sands is more than three miles offshore of
Prudhoe Bay shoreline and beyond the three-mile state
territorial limit. However, the state argued Dinkum Sands was an
island and therefore was state land with a three-mile ring
around it. There happened to be a lot of oil under Dinkum Sands,
so it was worth going to court to fight about whether Dinkum
Sands was a state-owned island.
He said the court ruled that the state does not own Dinkum Sands
because it is not an island since that area emerges above water
a couple of times a year due to unique water and ice conditions.
The court ruling meant the federal government gets the revenues
from Dinkum Sands. However, because the case went to the U.S.
Supreme Court, the state included some other legal issues.
MR. MYLIUS noted there was an issue about the [Arctic National
Wildlife Refuge (ANWR)formerly known as the Arctic Wildlife
Range]established after statehoodand whether that defeated the
state's title. The boundary of ANWR goes offshore to barrier
islandswithin the boundary of ANWR that would normally be
state-owned waters between the barrier islands and the shorebut
the court said, "No, the refuge defeated the state's title and
more significantly on contemporary issues," the same thing was
true of the National Petroleum Reserve established in 1923 by
President Harding.
He referenced a map on slide 43, BLM's National Petroleum
Reserve-Alaska (NPRA), to illustrate the boundary of the
reserve. He pointed out the boundary near Wainwright and near
Utqiagvik goes offshore and includes what normally would be
state-owned waters. However, because those are within the
boundary and the U.S. Supreme Court ruled the withdrawal was
meant to defeat the state's title to those, they are off limits.
MR. MYLIUS noted a similar situation in NPRA and pointed out a
"blue blob" on the righthand corner of the map that identified
Teshekpuk Lake. Again, that would normally be a state-owned
waterbodyTeshekpuk Lake is one of the largest lakes in the
statebut because of the U.S. Supreme Court decision, the state
does not own the lake's bed, so it is the federal government
that decides about oil and gas leasing in Teshekpuk Lake.
4:18:56 PM
MR. MYLIUS referenced slide 44, Pre-StatehoodGlacier Bay
Monument and Tongass National Forest, and noted the state also
went to court over Glacier Bay regarding an issue about who
regulates fishing within the former National Monumentnow a
National Park. The U.S. Supreme Court ruled Alaska's pre-
statehood withdrawal did defeat the state's title.
He noted because the state could go directly to the U.S. Supreme
Court, the state included other disputes. One dispute was the
Tongass marine waters that are more than three miles offshore
areas between islandsand who regulated those; that was an issue
that had to do with where you could dump waste as well as the
unspoken question about whether the federal government retained
the marine waters of the Tongass National Forest. Since
statehood, the state managed the marine waters, but there were
always people in the U.S. Forest Service that said those might
be federal waters.
MR. MYLIUS said the U.S. Supreme Court affirmed a disclaimer
that the federal government issued to say "no, the state owns
those" to clear that up. That expanded to include the inland
navigable waters in the Tongass through a reportable disclaimer
issue with the Stikine River.
He addressed slide 45 on why navigable waters ownership matters.
He explained whoever owns the bed of the water for title
purposes determines if state laws govern use of the riverbed and
waterway and decides who gets the mineral rights and so on.
Regardless, the Alaska Constitution governs public use and
private ownersand occasionally federal agenciesmay try to
restrict the uses the state believes the constitution protects.
MR. MYLIUS referenced slide 46, Alaska's State-Owned Land: 165
million acres. He explained the amount of land the state owns in
title is about 165 million acreseventually 105 million acres up
uplands and 60-65 million acres of tidelands through shorelands
and submerged landsan area equal to California, Oregon, and
Washington combined, making Alaska the second largest landowner
in the United States next to the federal government.
4:21:23 PM
MR. MYLIUS addressed slides 47-48, State Constitution-Article
VIII. He said the people that drafted the Alaska Constitution
knew the importance of state lands. Someone told him Alaska is
the only state that has a whole article of its constitution
dedicated to natural resources. Some court issues and federal
lands disputes tie directly to the Alaska Constitution,
including subsistence issuesnoted on the last point on slide 47
regarding fish, wildlife, and waters available for common use.
He added slide 48 includes constitutional requirements for
public notice, the ability to stake mining claims, and so on.
MR. MYLIUS noted he included slide 49, Municipal Land
Entitlements, as an issue of interest to the legislature. The
state shares its lands bounty with municipalities in the form
of, "Municipal Land Entitlements."
He explained municipalities receive 10 percent of vacant,
unappropriated, unreserved state landdefined in statute. The
act passed in 1978 and granted specific acreage and entitlements
to the boroughs that existed.
MR. MYLIUS said an entitlement example includes the Mat-Su
Borough receiving the most generous entitlement355,210 acres
because there is a lot of state land in the borough. The
Municipality of Anchorage never received its full entitlement
because most of the big chunks of state land are in Chugach
State Park or at the Anchorage International Airport. The
municipality reached a settlement agreement in 1986, but there
may be some outstanding state landlike DOT propertiesthat the
municipality could someday get if they are surplused by the
state.
He referenced slide 50, State Land Selections1960s. The state
was able to select what lands that they got but was initially
cautious. The state selected lands around communities, but some
smart geologists at the [Alaska Division of Geological and
Geophysical Surveys] (DGGS) suggested selecting land at Prudhoe
Bayone of the state's earliest land selections.
4:24:09 PM
MR. MYLIUS noted the state then decided to branch out and file
state selection claims near Native communitiesslide 51, Native
Claims-1960s. As a result, Native communities said, "Wait a
minute, the State of Alaska has been around for six or seven
years and just filed claims on the land right around our
village." Native communities started to file land claims and by
1966 the Secretary of Interior announced the state would not
receive any more land until it dealt with the aboriginal land
claimsthose claims covered 80 percent of Alaska by 1968.
He said the Prudhoe Bay oil discovery in 1968 kind of forced
Congress to deal with the Native claims to allow for the
building of a pipeline from Prudhoe Bay to a deep-water port in
Cook Inlet or Valdez, which resulted in the passage of the
Alaska Native Claims Settlement Act (ANCSA) in 1971.
MR. MYLIUS referenced slides 52-63 regarding the key provisions
of ANCSA. He noted with ANCSA, the federal government took a
different approach to dealing with Native lands versus how they
dealt with it in the Lower 48. In the East, the federal
government pushed Native people off their lands and gave them
lands in the more central and western parts of the country; they
were reservations held in trust by the federal government and
the Native tribes did not own their lands outright, Alaska
Natives said they wanted a different deal.
He explained what ANCSA did was extinguish aboriginal land
claims. The Treaty of Cession acknowledged they were Native
people but there was no lands agreement. The Alaska Statehood
Act acknowledged that there were Native lands rights and claims,
but they were unresolved. ANCSA was the final resolution of
aboriginal land claims.
MR. MYLIUS noted ANCSA provided land near villages for
subsistence and community uses, provided economic opportunities,
and provided for Native ownership. They are private lands, not
trust lands or reservations, they are tribal lands. He said
because Alaska Natives had essentially aboriginal title to all
of Alaska, there was a billion dollars set aside basically as
compensation for the lands not conveyed back to the Natives.
He referenced slide 55 and detailed ANCSA established 13
regional and 224 village corporations. Stockholders were Alaska
Natives living on the date the Act passed in 1971. Alaska
Natives could enroll in a regional corporation and a village
corporation, receive stock, and there was a billion dollars set
aside as compensation for the lands not conveyed.
4:27:09 PM
MR. MYLIUS addressed slide 56, ANCSA Regional Corporations.
There was a unique ownership split in terms of ANCSA land where
the regional corporations received the sub-surface estate under
the village landsexcept in pre-ANCSA National Wildlife Refuges
and NPRAand they received additional acreage based on a
population and area formulas. The result of that, for example,
Doyon received a huge land grant, making Doyonhe believesthe
largest private landowner in the country.
He detailed the total amount of surface and subsurface that
Native Regional Corporations got was 17 million acres. The
Regional Corporations also received the subsurface under village
lands, cemetery and historic sites, and a 70 percent revenue
sharing provision.
MR. MYLIUS referenced the map on slide 57, ANCSA Regional
Corporation Boundaries, and noted the map shows Doyon's
geographic areain terms of the stateis very large due to their
large population and number of villages, and they received a
very large land grant.
He noted slide 58, ANCSA Village Corporations, and explained
they received surface estate, required to select lands around
their villagesthe amount of land was a function of their
population. The smallest villages received three "townships"
which was 69,000 acres, the largesthe believesis 6 townships.
The ANCSA villages received 22 million acres of land.
MR. MYLIUS said the Tlingit-Haida villages in Southeast received
23,000 acres because there was a previous settlement due to the
formation of Tongass National Forest. The Tlingit-Haida villages
had received a monetary compensation through court decisionsthe
compensation came through in the 1960s.
He noted slide 59, ANCSA-Provisions for Indian Reservations, and
detailed reservations existed at the time of ANCSA14
reservations with 13 extinguished by ANCSA. The reservations had
the choice of either taking simple title to their reservation
land, receiving surface and subsurface, or getting the provision
similar to other villages where they received the split between
the regional and village corporations.
MR. MYLIUS said large reservations receiving a larger
entitlement and basically took the simple title provision. For
example, St. Lawrence Island is over a million acres of land,
the Gambell and Savoonga Native corporations jointly own the
land. Similarly, Arctic Village and Venetie had a very large
reservationjust south of the Arctic Wildlife Refugeand they
took simple title as did Tetlin in eastern Alaska and Elim on
the Seward Peninsula. Those that had small reservations opted
for the regular provisions for ANCSA villages. One reservation
on Annette Island, Metlakatla Reservation, opted out of ANCSA
entirely.
4:30:09 PM
MR. MYLIUS addressed slide 60, ANCSA Section 17(b). He explained
the provision requires access across ANCSA lands to public lands
and watersstate or federalbut there are a lot of issues
related to identification and management. Public access is an
important part of ANCSA.
He referenced slide 61, Select ANCSA Amendments, and noted ANCSA
has received amendments a whole bunch of times. He suggested
knowing what the amendments are when reviewing ANCSA due to its
changes over time.
MR. MYLIUS addressed slides 62-63 regarding ANCSA and federal
lands. He said one other provision in ANSCA deals with federal
lands and note native lands. He noted from a historical
perspective, the environmental movement was kind of born in the
1960s. There was the Wilderness Act and there was a huge
controversy about Redwood National Park. The first Earth Day
took place in 1970, the National Environmental Policy Act (NEPA)
passed in 1970, and the Environmental Protection Agency (EPA)
formed in 1970. So, ANCSA comes along in 1971 and Congress
inserted Section 17(d)(1) and Section 17(d)(2).
He noted slide 63, ANCSA Section 17(d)(1). He explained
"17(d)(1)" still lives on and it allows the Secretary of
Interior to withdraw lands from entry under public land laws,
withdraw lands for mineral entry, leasing, sales, for study and
classification; many of these withdrawals are still in place.
MR. MYLIUS said in 2004, Congresswith the urging of Senator
Murkowskipassed the Alaska Land Transfer Acceleration Act. The
Act required BLM to finally look at the [17(d)(1)] withdrawal
parcels and see if some of them could go away, made available
for mineral entry, or to speed up the transfers to the state.
He noted on January 19, 2021right before the [presidential]
inaugurationthe Secretary of Interior revoked 9.7 million acres
of 17(d)(1) withdrawals in northwest Alaska and the Seward
Peninsulait was a land use plan that BLM adopted approximately
15 years ago that called for those relocationsbut the Secretary
of Interior had to do the actual act; that is the biggest chunk
of 17(d)(1) withdrawals ever revoked, a big accomplishment.
4:32:39 PM
MR. MYLIUS referenced slide 64, BLM Map: ANCSA 17(d)(1)
withdrawals. He said the 17(d)(1) withdrawals shown on the map
is a little more alarming than one might think because most of
the purple areaswhich are 17(d)(1) withdrawalsare actually
within National Parks and National Wildlife Refugesare kind of
irrelevant. However, the green areas are the areas that are
active BLM lands where there is Section 17(d)(1) withdrawals
that could result in revocation. He pointed out on the map areas
numbered 4, 5, and a little bit of 7, that is some of the areas
where BLM just revoked some of those withdrawals. He noted the
salmon-colored corridor in the area labeled 3, is the "PL5150"
Dalton Highway corridor that he previously mentioned; BLM's
current draft plan proposes to revoke itit is not a (d)(1)
withdrawal but is different and withdrawn for the construction
of TAPS.
He addressed slide 65, ANCSA Section 17(d)(2), a big part of
ANCSA that was hugely controversial. He explained Section
17(d)(2) allowed the Secretary of Interior to withdraw public
lands from state and ANCSA Regional Corporationsup to 80
million acresfor study as future National Interest Lands.
During the 1970s there was a huge debate in Alaska between 1971
when ANCSA passed and Section 17(d)(2)and 1980 when the Alaska
Lands Act passed, a huge debate about what lands should be
permanently set aside as National Interest Lands.
4:34:24 PM
MR. MYLIUS noted slide 66, "(d)(2)" LandsExamples of Disputes.
He said the Wrangell Mountainsthat is where the Kennecott
copper deposit is, the richest copper deposit in historyis in
the middle of what is now a National Park and there was a big
issue. The question was whether the area should be open to
mining, timber harvest, and preserving its watershed. ANILCA
preserved the area, and it is now the [Wrangell-St. Elias
National Park and Preserve Alaska], the largest national park in
the country.
MR. MYLIUS said timber production versus wilderness in the
Tongass National Forest was another huge dispute. In the 1970s,
there were large timber contracts with two pulp mills during the
"(d)(2)" debate, but there was a big push to create wilderness
areas. The Tongass is one area where ANILCA compromised and set
aside a number of areas for wilderness as well as a provision
that required a certain amount of timber harvest; that is one of
the compromises that became undone by the Tongass Timber Reform
Act.
MR. MYLIUS remarked ANILCA was a lot of compromises and the
Tongass is a good example where there were significant
compromises between timber interests and the wilderness
preservation interest. One of the compromises that has not quite
heldoil and gas in the Arctic Coastal Plainwas an issue that
Congress "punted on" in 1980 when ANILCA passed. The Arctic
Coastal Plain was a big controversy fought about in "(d)(2)"
debates, and nobody could decide what to do and they decided to
study it and let somebody else decide.
He noted some of the decided areas included earlier proposals
for "(d)(2)" units included a National Wildlife Range in what
today is the [proposed Pebble Mine] site. The state argued for
keeping the area for state ownershipnobody thought there were
significant mineral deposits in the area during the debate, the
Pebble deposit discovery did not occur until the late 1980sbut
it was an issue in terms of whether the federal government
should retain the area.
He said another big issue during the "(d)(2)" debate was whether
creating a National Park like Yellowstone would impact what
Alaskans like to do.
4:37:09 PM
MR. MYLIUS addressed slide 67, 1980-ANILCA, as follows:
• Created or expanded National Parks, Wildlife Refuges,
National Forests, National Monuments, and other federal
land designations.
• New Conservation System Unites (CSUs) areas totaled about
106 million acres
• Protected federal lands now total 137 million acres (37
percent of the state)
• ANILCA established new wilderness areas
He referenced slides 68 and 69, AcreageBefore and After ANILCA,
as follows:
• National Park System
o Before: 7.5 million
o After: 54 million
o Net: +46.5 million
• National Wildlife Refuges
o Before: 23.3 million
o After: 77 million
o Net: +53.7 million
• National Forests
o Before: 19 million
o After: 22 million
o Net: +3 million
• BLM National Recreation/Conservation Areas
o Before: 0
o After: 2.2 million
o Net: + 2.2 million
• Other BLM
o Before: 200+ million acres
o After: 72 million acres
o Net: -125 million
• Designated Wilderness
o Before: 0.1 million
o After: 57 million
o Net: +56.9 million
• Wild and Scenic Rivers
o Before: 0
o After: 0.6 million
o Net: +0.6 million
• Total National CSUs
o Before: 30.8 million
o After: 137 million
o Net: +106 million
• Note: "Before" acreages are estimates and exclude 1978
Monuments
MR. MYLIUS explained National Forests were a significant part of
the Tongass set aside as federally designated wilderness where
none had existed before.
He noted BLM received two unique areas to manage, the National
Conservation Area and the White Mountains National Recreation
Area. Also, the change in BLM acreage was due to all the acreage
for National Parks and National Wildlife Refuges came out of
previously managed BLM lands.
4:39:09 PM
MR. MYLIUS addressed slide 70 and said ANILCA included a whole
bunch of amendments, many were land adjustments based on some
corporations not wanting their lands within the new CSUs.
MR. MYLIUS referenced slide 71, 2021Remaining Land Transfers,
as follows:
• 2 million acres still to transfer under ANCSA
• 7 million acres to survey/patent under ANCSA
• 5 million acres still to be transferred to State of Alaska
• About 19 million acres of State selections and topfilings
• Many State selections overlap ANCSA selections and Native
Allotments
• 36 million acres to survey/patent to State
• About 250 Native Allotment parcels to transfer
• New Veteran Native Allotment Program in 2019 Natural
Resource Management Act (S 47)
He explained topfilings refers to land currently not available
for some reason because of a federal withdrawal or competing
claim.
MR. MYLIUS noted there is a lot of overlapping between ANCSA
selections and the state selection. However, the rules as to who
gets what are clear, there are no disputes, and the transfers
are just a matter of getting the last land surveyed. For
example, a Village Corporation generally trumps a state
selection and the Regional Corporation maybe not, but the rules
are all real clear so there is not disputes so much between the
state and Native Corporations.
He said there is a whole new Veteran Native Allotment Program
that just passed in 2019 that BLM is in the process of rolling
out. BLM is trying to identify the "(d)(1)" withdrawals because
they act as area transfer constraints under the Veteran
Allotment Program.
4:40:44 PM
MR. MYLIUS referenced slide 72, Three Laws to Remember, as
follows:
• Alaska Statehood Actgranted land to the State (1958)
• Alaska Native Claims Settlement Act(ANCSA) resolved
aboriginal land claims (1971)
• Alaska National Interest Lands Conservation Act (ANILCA)
designated federal conservation units and legislated unique
provisions for public use (1980)
MR. MYLIUS said understanding the Alaska Statehood Act, ANCSA,
and how they lead up to ANILCA is important.
4:41:14 PM
CHAIR REVAK thanked Mr. Mylius for his informative overview. He
asked him to elaborate on "(d)(1)" withdrawals and how that
affects Native allotments.
MR. MYLIUS explained the "(d)(1)" withdrawals go back to ANCSA,
put into place to both enable the Native villages to file their
ANCSA land selections and to allow BLM to look at those lands
for figuring out if some require protection. They were meant as
temporary withdrawals but have been in place for almost 50
years. The withdrawals have prevented mining claims and Native
allotments until they go away.
He said he believes BLM has not got to a point where people are
actually filling their Native allotment claims because the
bureau is still sorting out eligibility. The issue is a federal
BLM question as to how that program operates, but it is a new
program. BLM is working with the [Bureau of Indian Affairs]
(BIA) to identify who is eligible and what lands are available.
4:43:13 PM
CHAIR REVAK summarized the administration removing the
revocation of those withdrawals continues to tie up the land
that would otherwise be open for the Native Veterans Allotment
program.
MR. MYLIUS answered yes, but not revoking those withdrawals.
SENATOR MICCICHE asked if he may meet with him and Roger Pearson
to further address the continuous erosion of state rights under
the Alaska Statehood Act, ANILCA, and a little bit of ANCSA.
MR. MYLIUS answered yes. He noted he has worked with Mr. Pearson
and others via the Institute of the North to address the erosion
of knowledge of what is in the Alaska Statehood Act, ANILCA, and
ANCSA. He said Alaskans, federal land managers, and "fresh
faces" from administration changeswhether Democrat or
Republicanhave no understanding of the compromises in those
past federal laws.
CHAIR REVAK thanked Mr. Mylius for providing the committee with
important information on what the [federal government] promised
Alaska throughout the history of the state, something that
deserves focus.
4:47:46 PM
There being no further business to come before the committee,
Chair Revak adjourned the Senate Resources Standing Committee
meeting at 4:47 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SRES AK Lands and Waters Overview 2-3-21.pdf |
SRES 2/3/2021 3:30:00 PM |
Alaska Lands and Waters Overview |