CS FOR SENATE BILL NO. 219(RES) "An Act establishing and relating to the Joint Federal and State Navigable Waters Commission for Alaska; and providing for an effective date." This was the first hearing for this bill in the Senate Finance Committee. RON SOMERVILLE, Resource Consultant, House and Senate Majority, testified to the bill. He referenced the supporting documents before the members, specifically information from the Department of Law [copies on file]. Mr. Somerville gave history of the issue beginning at statehood in 1959, when Alaska acquired title to the approximately 60 million acres of submerged lands in the State. He informed that court decisions have affirmed this acquisition; however there has been difficulty in determining what constitutes as navigable waters. Mr. Somerville listed three issues involved in the determination of navigable waters, the first being a federal "quiet title Act", which provides a mechanism by which a state could acquire title to navigable waters. He stated that the courts have ruled that the federal defendants in these matters could be involved in adjudicating a disputed title in which the federal government claims an interest. However, he qualified that in instances where the federal government "refuses" to claim an interest, the court has ruled that the federal government has no jurisdiction in the matter. He characterized this situation as a "catch-22" because the State could file a 180-day notice for quiet title to particular submerged lands and if the federal authorities do no contest the claim, the courts could refuse to rule on the claim. Mr. Somerville spoke to the next issue as the navigable criteria. He explained that in Alaska, as in most states, the courts primarily determine the navigability on a case-by-case basis utilizing established criteria. He detailed a case that established precedent involving an area near Gulkana where the lands in question are submerged part of the year, but exposed other parts of the year. He informed that it was determined that the land is navigable because the waters were used for purposes of commerce at the time of statehood, whether by raft, canoe or other means. Mr. Somerville shared that the Alaska Department of Law submitted to the US Department of the Interior, a list of approximately 200 identified rivers or areas that met the criteria established in the Gulkana court decision and that should be declared navigable waters. He stated that it was decided the State would litigate to obtain the status of navigable waters for three rivers: Black, Kandig and Nation. After nine years and approximately $1 million in th expenses, he stated the federal 9 Circuit Court of Appeals ruled that two of the rivers are navigable because the federal government had claimed an interest. However, he pointed out, the court determined it did not have jurisdiction over making a determination with regards to the Black River because the federal government had not claimed an interest in that area. Mr. Somerville continued with the third issue, which he pointed out is unique to Alaska, and relates to the obligation of the federal Bureau of Land Management to "meander" the boundaries of bodies of water of a certain size and to make navigability determinations. He stated that prior to 1983, this did not occur and that as a result, a significant amount of land was conveyed, which the State asserts are navigable waters and should not have been conveyed. He noted that a 1983 administrative agreement ordered that a manual survey by conducted, which was affirmed by the US Congress in 1988. Mr. Somerville continued that since statehood, 13 rivers have been affirmed as navigable by federal courts. He noted the approximately 22,000 rivers in the State, which could be disputed for navigability, and approximately one million lakes and other bodies of water of a significant size. He calculated the current rate of determination of navigability is too slow and too expensive. Mr. Somerville asserted the State must hold title over these navigable waters in the event the State decides to use, lease or claim management jurisdiction over the areas. Mr. Somerville stated the intent of this legislation is to expedite the identification of navigable and non-navigable water bodies to allow a certification process by the US Secretary of the Interior or Congress. Mr. Somerville addressed the proposed committee substitute, 22- LS0965\J. He relayed a conversation between Senator Halford and the US Secretary of the Interior relating to possible administrative processes that could expedite the identification. As a result of this information, Mr. Somerville informed that the proposed committee substitute provides for a joint commission comprised of State and federal agencies, although it specifies the commission would exist even if the federal government chose not to participate. He noted the original version of the bill provides that the commission would not exist without federal participation. He surmised the inclusion of federal agencies on the commission would give the body a higher status and would allow the federal agencies more input into the determination of navigability. Senator Austerman asked if a unilateral commission would have the same authority as a joint commission that included federal agency participation. Mr. Somerville replied it would be beneficial to have both federal and state government involved. He noted this legislation is patterned after the Federal State Land and Planning Commission that was created under the Alaska Native Claims Settlement Act (ANCSA). He stated that even without federal participation, the proposed commission would compile a list of identified navigable waters for submission to the US Secretary of the Interior. Senator Austerman referenced a statement issued by the Alaska Public Waters Commission on SB 219, Establishing and Relating to the Navigable Waters Commission for Alaska, [copy on file] and distributed by Senator Wilken. He noted the statement offers recommendations and asked the witness to address these. Mr. Somerville responded that the costs of the Land Use Planning Commission are considerably higher than the proposed commission, in part because the mandate of the proposed commission is "much narrower" than the original commission. Mr. Somerville spoke to the opportunities to review the proposed commission's activities and expenses in the future. He surmised that the cost would be more expensive than the amount proposed in the accompanying fiscal note. However, he asserted that if the navigability of only ten rivers were resolved, the financial benefit would be greater than the current method. KEITH BAYHA, Alaska Public Waters Commission, testified via teleconference from Anchorage, to reference the written testimony he submitted. Senator Hoffman referenced the first paragraph of the sponsor statement, which states that the commission would become a reality only if Congress could provide authorization in federal law. He asked where this language is contained in the legislation. Mr. Somerville corrected that the proposed committee substitute does not contain this language and that such congressional authorization would not be necessary. Senator Hoffman next asked if the proposed committee substitute would only designate those navigable waters that were used for commercial efforts at the time of statehood. Mr. Somerville affirmed this is one of the criteria for establishing navigability. Senator Hoffman asked where this language is contained in the committee substitute. Mr. Somerville replied this criterion is established in federal law. Senator Hoffman requested the language of the federal law. Senator Leman clarified that an act of Congress would not be required for the commission to take affect, although such and act would be necessary if the commission were to be jointly comprised of federal and state agencies. Mr. Somerville affirmed. Senator Leman asked if Mr. Bayha had advice as to how the governor should appoint members to the commission, noting that the Alaska Public Waters Commission written testimony states that the members should possess a technical background rather than be appointed only for political reasons. Mr. Bayha replied the organization has not identified specific individuals to nominate for the positions on the proposed commission. However, he qualified that the commission had speculated on whom the governor might appoint. He expressed concern that if all members were "previous political personalities" the proposed commission might not contain sufficient technical knowledge necessary to be effective. Therefore, he relayed that the commission recommends a combination of political and technical perspectives. Senator Leman attempted to ascertain whether the legislation should contain provisions requiring that appointees must possess certain technical knowledge on the matter. Mr. Bayha replied that if legislative intent were clarified, changes to the bill would not be necessary. Senator Leman expressed his intent that only those with adequate technical ability served on the commission. Mr. Somerville reminded that the proposed commission is patterned after an existing commission, which does follow criteria for technical expertise of appointees. Senator Wilken asked the influence Governor Tony Knowles' action of not appealing Katie John vs. State of Alaska to the US Supreme Court has had on this legislation. Mr. Somerville stressed this legislation "does not in any way overturn, or in any way interfere, with the federal government claiming its Federal Reserve water rights." Senator Leman directed attention to page 3, line 11 of the proposed committee substitute pointing out the requirement that at least one member of the commission must be an Alaskan Native. He asked if this legislation applies state statute defining Alaskan Native as a person with at least one-quarter-blood quantum, or "the looser definition" utilized for qualification of medical benefits and other governmental services. Mr. Somerville was unsure and again noted the bill is patterned after the Federal State Land Planning Commission, which contains the requirement that at least one member be an Alaskan Native. He stated the qualification of Alaskan Native under the provisions in ANCSA, is one-quarter blood quantum. Co-Chair Kelly commented it is inappropriate to appoint members to a panel on the basis of race. He indicated he would offer an amendment to remove this restriction from the proposed committee substitute. Co-Chair Kelly also voiced concern with inclusion of Governor Tony Knowles in the appointment process. Co-Chair Kelly remarked, "We have found over a period of time in his actions and him not pursuing court, Supreme Court cases and other actions that are…" SFC 02 # 52, Side B 10:37 AM Co-Chair Kelly continued, "… designed to protect the sovereignty of Alaska is not there." Co-Chair Kelly expressed he would be concerned about a commission appointed by the current governor. He furthered, "We've not seen a lot of results from the task forces and commissions that he's appointed in the past actually solve problems, but they're usually used as public relations vehicles and they become very contentious and they rarely solve anything. They just create new problems." Co-Chair Kelly indicated he would hold the bill in Committee to restructure the appointment process and also to address the effective date. Senator Hoffman requested a fiscal note from the Department of Natural Resources, as the Department would be impacted. Co-Chair Kelly ordered the bill HELD in Committee.