SB 219-NAVIGABLE WATERS COMMISSION  CHAIRMAN JOHN TORGERSON called the Senate Resources Committee meeting to order at 3:40 p.m. Present were Senators Wilken, Halford, Stevens and Chairman Torgerson. He said he would probably not have a quorum to take action on bills today, but would at least take testimony on the bills. He announced SB 219 to be up for consideration. MR. RON SOMMERVILLE, consultant to the House and Senate Majority, said that SB 219 is designed for one purpose - to expedite the process for determination of navigability in Alaska. He explained some background history as follows: In a nutshell when we got statehood in 1959 and the state inherited title to about 60 million acres of tide and submerged lands, about 15 million of that is navigable waters under our streams and, according to DNR, about 30 some million acres lies within our marine submerged lands out to three miles. The key on navigability is if it was navigable at statehood, it's navigable today. The problem has been - now I'll go through two or three items which will illustrate why in fact we should pursue a more expeditious process. The final determination, unfortunately, has fallen in almost every case to the federal courts, which is not unusual. That's the way almost every state has done, except Alaska has a considerable amount of water - about 22,000 thousand streams which could probably be litigated as being navigable or nonnavigable and upwards of one million or more of water bodies, lakes in particular, that could be litigated as well. The problem basically is, as the state has found in the Quiet Title Act itself, in summarizing it, the feds in essence, the Court under the Quiet Title Act, can be defendants in adjudicating a disputed title in which the U.S. claims an interest. The feds have taken a narrow view of that and it has been upheld to some extent in the courts. If the feds don't take an active interest or assert an active interest in a particular water body, then the state is powerless to force some sort of quiet title act. I'll give you an example of that in just a second. The second basic problem is the navigability criteria itself. Although the Utah Lake decision in 1987 said if Congress didn't explicitly take away the tide and submerged land estate under the Equal Footing Clause, in essence when we became a state, we inherited that title. The Gulkana Case in 1987 was probably the key case in Alaska, which I might add that most of the attorneys have told me that navigability is kind of on a state- by-state, case-by-case basis - particular water body or stream or whatever. The Gulkana was specific to Alaska. In your packets there's kind of a summary of the Gulkana thing. I could read that if you desire, but in essence it affirmed what the state had been contending for a long time - that is a very broad definition as to the navigability use or use as a water body for commerce. The Gulkana criteria has been applied since 1983 to almost every decision, although be it very few of them relating to navigability. But it is a standard by which navigability will be determined in the future. There have been other cases that the Department of Law has pursued in order to try to get some clear definition from the courts as to what water bodies would qualify. The third item, which is a difficulty, is the BLM surveys themselves, one of the reasons why the state is now looking at some expeditious process for determining that [indisc.]. It wasn't until 1983 when administratively BLM decided to utilize its own BLM manual of surveying instructions, and later ratified, by the way, in 1988 by Congress instructing them to do that. But prior to 1983 a lot of conveyances were made to corporations in the state, Native Corporations under the Alaska Native Claims Settlement Act, where in fact the BLM did not determine navigability. As such, a lot of streams and water bodies were transferred and submerged lands with them to the corporations whereby the state said we think a lot of these water bodies were in fact navigable and thus sets up a case where you have plotted title and the potential for numerous litigation. So, there's never been an attempt to go back prior to 1983 and correct the errors that were made in the conveyances. Since statehood there have been 13 rivers determined by the federal courts to be navigable in 40-some years. We estimate 22,000 rivers and the cost of about $1 million went into a court case called the Kandig, Nation and the Black Rivers [in northeast Alaska]. That was three rivers out of two hundred that the Department of Law had submitted in 1992 and 1996 to Department of Interior with indication on the Quiet Title Act - 180 day notice, we intend to quiet title to these two hundred water bodies. Nine years later and $1 million later we resolved two of them. The third one is the one I was mentioning a while ago - is this issue of the feds convinced the courts that they had not asserted title to one of the rivers. So, two of them were resolved and one was left, in essence, in abeyance. There was no decision. At this rate, you can calculate it will take us 99,000 years to resolve our title to our navigable waters and an excess of $11 billion if the same criteria were applied. Why do we need title? If the state is going to manage its water bodies, which it more and more needs to do, that if you want to issue leases, you want to exercise jurisdiction, title becomes important, because along with title comes the ability to regulate what happens in the water column. SB 219 is designed specifically for that purpose. The body itself that is being created does not have any authority, it won't go into affect until a similar law is passed in Congress setting it up. The individuals appointed would make recommendations as to which water bodies qualify under the Gulkana decision or other criteria established by the courts. It would provide a list of navigable or nonnavigable waters, which could then be verified by Congress, the administration, the courts or whatever. I think Senator Halford could elaborate more on a recent meeting that he participated in with the Secretary and the delegation. The response was positive to the concept and that's why Senator Halford asked that this bill is before you. SENATOR HALFORD said: We met with the Secretary of Interior and suggested what we were looking at, as the first draft, to create an entity that would make recommendations for being passed by state law and federal law and she said, 'Well, we have a proposal that we're considering for RS 2477s in Utah where basically the federal government files a recordable, basically, a notice of nonobjection, which essentially closes the case or as close as you can get to a quit claim on an easement.' That was more than we had hoped to think about even asking for. The draft you have takes out a lot of the formality in the original version, but it still takes a working group to come up with those that aren't controversial to be recommended for solution. That was the conversation. We were very pleased with the conversation. MS. CAROL CARROLL, Director, Administrative Services, DNR, offered: The department has a navigability person and the only thing that we are really able to do is to look at the conveyances that the federal government does give us and analyze those to make sure that they have conveyed the land that they are supposed to and that they haven't counted the riverbeds within that conveyance. We also, with the one person that we have there, we make sure that we take navigability into consideration when we do land sales by making sure that we get an easement so we have public access. For the committee's information, on the House side that person has been cut out of the budget. I just wanted you to know that. The department on this bill feels it would be a good idea. CHAIRMAN TORGERSON asked, "Do you like the bill?" MS. CARROLL replied, "We feel it would be that something really does need to be done and this bill is certainly one way you could do that." CHAIRMAN TORGERSON said, "It's the only way I've seen so far. It's a very important bill." CHAIRMAN TORGERSON said they would hold the bill until Senator Wilken could join them. SB 219-NAVIGABLE WATERS COMMISSION  CHAIRMAN TORGERSON announced SB 219 to be back up for consideration. SENATOR WILKEN moved to report SB 219 from committee with individual recommendations and the attached fiscal note. Someone noted that the committee had not adopted the committee substitute. SENATOR WILKEN moved and asked unanimous consent to rescind their actions in reporting SB 219 from committee. There were no objections. SENATOR WILKEN moved to adopt the CS to SB 219, version C, Cooke, 3/27/02. There were no objections and it was so ordered. SENATOR WILKEN moved to report CSSB 219(RES) from committee with individual recommendations and the attached fiscal note. There were no objections and it was so ordered.