CS FOR SENATE BILL NO. 219(FIN) "An Act establishing and relating to the Navigable Waters Commission for Alaska." RON SOMMERVILLE, CONSULTANT, HOUSE AND SENATE RESOURCE COMMITTEE, testified in support of the legislation. He explained that Senator Halford and Representative Porter put the concept of the joint commission forward. The purpose of the Alaska Navigable Waters Commission would be to expedite transfers of title on submerged lands. Under the Submerged Lands Act, when Alaska became a state in 1959 it received the ownership of submerged lands that are under navigable and marine waters up to three miles. Approximately 60 million acres of submerged lands were transferred to the state (as long as the state can prove that they were navigable at the time of statehood). In order to claim title under the act the state has to file under the Act with 180- day notice stating its intention to claim land under a specific body of water. The courts and federal agencies have taken a narrow interpretation of the federal Quite Title Act. The courts have ruled that the state has no jurisdiction if the federal government is silent; this creates a barrier to the state's acquisition of submerged lands. The definition of "navigable" has also created problems. In Oregon, the definition centers on the ability to float a log down a body of water. He noted that in the Gulkana case of 1987 the Ninth Circuit Court upheld that the Gulkana River was navigable all the way up to the lake. The key point was that the river was used for purposes of commerce or could be used for the purpose of commerce. A rubber raft or canoe could be floated up the river with approximately 1,000 pounds. The Court ruled in the state's favor. The problem was that there were a lot of conveyances prior to 1987. The Bureau of Land Management (BLM) has refused to correct errors in these cases. This has clouded titles. The state has not lost its title to navigable waters, but the determination of which waters were navigable was not made. Mr. Sommerville noted that the BLM was not required to use its own manual for surveying instructions for conveying lands in Alaska until after 1988. The BLM, by their own manual, is required to meander boundaries around lakes larger than 50 acres or a stream wider than three chains or 198 feet, which would prevent the submerged lands that belong to the state from transferring to the adjacent landowner. Mr. Sommerville explained that since statehood title on submerged lands has been resolved on 13 rivers. There are 22,000 rivers that could be considered navigable. In 1992 and 1996 the state submitted to the BLM a list of 217 rivers on which quiet title was requested. The state did not receive federal cooperation and decided to take three rivers lying in the northeastern part of Alaska to court: the Black, Kandik and the Nation Rivers. After nine years the court ruled in the state's favor on two of the rivers. The third river was determined not to have jurisdiction. He concluded that it would take 99,000 years to resolve title at the current rate. Mr. Sommerville pointed out that it took approximately $1 million dollars of state and federal funds to resolve navigability on two rivers. Title is needed for many reasons: to lease rivers, manage trespass, or extract gravel. He stressed that it is not a subsistence issue. Subsistence is a reserve water rights issue, which is a separate court issue. Mr. Sommerville observed that SB 219 is a process worked out with the federal government to create a commission to identify navigable and non-navigable rivers and develop a list and where possible work with the Administration to certify the list. He observed that Congress and the state legislature might need to be consulted on certification of some rivers. There is a CIP fiscal note of $200 thousand dollars, which is exclusively for the conduct of the commission. The operation of the commission would have to come from the agencies and federal assistance. Vice-Chair Bunde referred to the number of members in section 3. He observed that the membership composition was different in state and federal legislation. Mr. Sommerville explained that the membership component was altered in the Senate Finance Committee. The congressional version was made prior to the Senate change. He anticipated that the congressional version would be changed to correspond to the state version. The sponsor was agreeable to the change in the Senate Finance Committee and did not think that it would be difficult to change the federal law to coincide with the change. Representative Croft questioned if any part of the Katie John decision was based on the title of land. Mr. Sommerville observed that some jurisdictional issues occur with the exercise of submerged title. In the Katie John case the state maintained that the area in question was a navigable stream. The claim revolved around the reserved water right. The argument did not center on the issue of navigability. Representative Croft questioned if the fact that the land had never been certified under the Quiet Title Act played into the jurisdictional issues in the Katie John case. Mr. Sommerville observed that he is not an attorney, but did not recall it being part of the case. In response to a question by Representative John Davies, Mr. Sommerville discussed title meandering. He explained that the mean high waterline of a river or lake estimated for the conveyance in order to assure that no submerged lands are convey. The boundary of the uplands would be conveyed to the adjacent landowner. Representative John Davies observed that Mr. Sommerville had indicated that there were mistakes made in the Gulkana case. Mr. Sommerville clarified that mistakes were made prior to issuance of the order. The BLM did not follow its own surveying instructions until told to by Congress. Some streams less than 3 meters wide and some lakes less than 50 acres were transmitted as submerged land. Some of these bodies are clearly navigable and should have been corrected. Those titles are still clouded. Representative John Davies asked the interpretation of navigable land through a national park. Mr. Sommerville explained that ownership of submerged lands in parks would belong to the state of Alaska. The question is how much authority does the adjacent landowner, the federal government, control. The federal government can exercise some control if the activity would impact the adjacent federal land. If the state controls the submerged land in a national park or refuge area they could exercise control of access to the navigable water. For instance the state could limit by permit the number of people or how they access the water. Vice-Chair Bunde observed that as long as an individual is on the water afloat that they are in state territory. If a foot were stepped on the land than they would be in the private landowner's water and would be trespassing. Mr. Sommerville pointed out that the submerged landowner could exercise some control. If a person floats down a river on private land the state law, which applies to the use of state waters, would apply as long as they remain on the water. If the federal government owned the submerged land they could exercise "quite a bit" of control on the water. Representative Bunde pointed out that if the state did not have control and a dispute occurred over the recreational use of submerged lands, state residents would be in trespass on federal land if they put foot on the surrounding land. The state would not have significant use for recreational purposes of the land, even though there is access to the water. DICK BISHOP, ALASKA OUTDOOR COUNCIL, FAIRBANKS, testified in support of the legislation. He observed that the Gulkana case was just the beginning of the story. He noted that he had been contacted by the BLM regarding the use of rivers in Alaska, which indicated that the task was difficult and moving at a glacial pace. There has to be a means to expedite the process. There are a number of lose ends that could cause problems in the future. There are millions of acres of state lands in limbo. The federal government hasn't asserted interest in the lands. The legislation could provide the factual background and legwork to allow it to be settled by the courts. Representative John Davies asked if the Commission could identify rivers that are less controversial and could be presented to Congress and resolved. Mr. Bishop responded that resolution is contingent on a determination of navigability and the process by which a decision is made. There is not a lot of controversy about the basic issue of the terms of the Submerged Lands Act. He concluded that bureaucracy is more of an issue than controversy. The difficulty is in getting a determination. Vice-Chair Bunde observed that some of the rivers would be used for travel during frozen periods. He questioned how the legislation would interplay with the Katie John decision. Mr. Bishop responded that they are different issues. The Katie John issue relates to the reach of the federal authority and Federal Reserve waters. The controversy is tied to federal authority under the Reserved Waters Doctrine, not the Submerged Lands Act. Co-Chair Mulder MOVED to report CSSB 219 (FIN) out of Committee with the accompanying fiscal note. Representative Croft OBJECTED for the purpose of a statement. He concluded that the issue did not interact with the Katie John case and WITHDREW his OBJECTION. There being NO OBJECTION, it was so ordered. CSSB 219(FIN) was REPORTED out of Committee with a "do pass" recommendation and with a previously published fiscal note: #1 LAA/DNR.