SENATE RESOURCES COMMITTEE January 30, 1998 3:35 P.M. MEMBERS PRESENT Senator Rick Halford, Chairman Senator Lyda Green, Vice Chairman Senator Bert Sharp MEMBERS ABSENT Senator Loren Leman Senator Robin Taylor Senator John Torgerson Senator Georgianna Lincoln COMMITTEE CALENDAR Waterway Management Issues WITNESS REGISTER THE FOLLOWING PEOPLE TESTIFIED ON WATERWAY MANAGEMENT ISSUES: Mr. Dane Larsen, Staff Auditor Legislative Audit Division P.O. Box 113200 Juneau, AK 99811-3200 Mr. Mike Marsh, Staff Auditor Legislative Audit Division P.O. Box 113200 Juneau, AK 99811-3200 Commissioner John Shively Department of Natural Resources 400 Willoughby Ave. Juneau, AK 99801-1724 Ms. Jane Angvik, Director Division of Lands 3601 C St., Suite 1122 Anchorage, AK 99503-5947 Ms. Tina Cunning, ANILCA Program Manager Department of Fish and Game P.O. Box 25526 Juneau, AK 99802-5526 Mr. Rob Bosworth, Deputy Commissioner Department of Fish and Game P.O. Box 25526 Juneau, AK 99802-5526 Mr. Dick Mylius Resource Assessment & Development Department of Natural Resources 3601 C Street, Ste 1110 Anchorage, AK 99503-5947 Ms. Joanne Grace, Assistant Attorney General Department of Law 1031 W 4th Ave., Suite 200 Anchorage, AK 99501-1994 Ms. Robin Willis Access Defense Manager Department of Fish and Game 333 Raspberry Rd. Anchorage, AK 99518-1599 ACTION NARRATIVE TAPE 98-3, SIDE A Number 001 CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 3:35 p.m. and announced a briefing on waterway management issues. He said they would start with the Department of Legislative Audit. MR. DANE LARSEN, Staff Auditor, said that after several decades of statehood the legislature is understandably concerned about whether any real progress has been made in settling the public's rights concerning Alaska's waterways; and the short answer is that it's a very slow journey and we've barely just begun. Alaska has 17,000 identified rivers and streams and an estimated 2 million lakes larger than 50 acres. Only a handful of these bodies have been addressed so far. They completed a review of various waterway management issues last March for fiscal years 96 and 97, including the Departments of Law, Natural Resources, and Fish and Game. The objective of the audit was to evaluate the effectiveness of the State's programs for resolving issues of ownership access and resource allocations concerning public waterways. That audit identified a number of areas where improvements could be made. Some of the problems have been addressed, but they still have concerns in four major areas. Those areas are first: public access easements under ANCSA, 17 (b) which are public routes across private land; second, the allocation of the State's water supply among competing users (traditional water rights), third, federal reserved water rights (the Babbit Case raised this issue), and fourth, the ownership of submerged land, which involves a legal determination as to which land beneath a particular waterway is owned by the State. MR. MIKE MARSH, Staff Auditor, said his first area of concern is the public access easements under section 17 (b) of ANCSA. They provide legal access between waterways, public land, and other parts of the State's transportation network, such as rural airports maintained by DOT. These easements arise during a BLM process for conveying ANCSA land selections, he explained. BLM writes the State a letter concerning each proposed conveyance and gives the State, specifically DNR and Fish and Game, the opportunity to request any easements they feel are necessary for public access. Though these easements are meant to assure public access to public lands, BLM's process is largely insulated from the public. There is little input other than from government agencies and the affected land owner. The report recommends ways to facilitate input from citizen groups and people who live and work in the area involving the easement. BLM estimates there 3,500 of these easements in Alaska and less than 5 percent are marked on the ground with any sort of signs. Federal regulations establish the easements at only 25 - 60 ft. in width depending on the type of transportation involved. Even using the global positioning satellite system (G.P.S.), it would be difficult for the average user to accurately determine an unmarked, abstractly determined line on the ground when it's only 60 ft. wide at most. G.P.S. accuracy on a predictable, consistent basis is plus or minus 300 ft. Information containing the location of 17 (b) easements cannot be obtained from commercially available publications. The average recreational user would need to research obscure legal materials kept at government offices. So, the public would be unlikely to use them at all. An unpublicized, unmarked easement is in effect no easement at all. Some 17 (b) easements are subject to termination by BLM if there is no evidence of public use by 2001. Number 150 CHAIRMAN HALFORD asked if termination provisions came out of federal law or negotiations with BLM in the recording of the easements at the time of conveyance. MR. MARSH replied that they come out of the federal regulation that was enacted by the federal government pursuant to ANCSA. CHAIRMAN HALFORD asked if ANCSA provided for limitations like that. MR. MARSH replied that it didn't specifically, but when the federal government enacted the regulations, they put that detail in. CHAIRMAN HALFORD commented that maybe the State should be challenging that very regulation. MR. MARSH said that was a good question. They recommend that various forms of State financial assistance be conditioned upon the marking and maintenance of easements across land under the recipient's control, like the dedication of land necessary for schools, parks, streets, and drainage. An analogy would be the requirement that businesses dedicate some of their parking lot spaces to handicapped parking. Additionally, for State grants related to land use, they suggest that compliance with easement marking and maintenance be added to the list of items which private CPA firms are required to verify under the State's single audit act. Another problem with the 17 (b) easements is prior to 1977, BLM reserved easements that ran continuously along waterway shorelines. Parties selecting affected tracts filed litigation challenging those easements. However, these parties did not wish their ANCSA conveyances delayed while awaiting the outcome. So most of them entered into written agreements with BLM that had the special condition that the conveyance would proceed on schedule as though there were no disputes at all. Any easement found invalid by the court would be vacated. In the event that a reserved easement was found invalid, the land owner committed himself, in advance, to substitute a replacement easement. In 1977, the federal court found the easements in dispute to be invalid and in the 20 years since that decision, some of the prevailing land owners have kept their word, but a large number have not. CHAIRMAN HALFORD asked what would replace an easement that was found invalid along the shoreline of a river. MR. MARSH replied that pursuant to the agreement, the landowners agreed in advance that instead of waiting until the federal court resolved this, they would agree to receive the land without cloud on the title; and if the easements were found invalid, they would automatically agree to an easement that was lesser in scope to be a legal substitute. CHAIRMAN HALFORD asked if the federal challenge was the degree of easement, but it was still the same place. MR. MARSH replied that the ones that were found to be forbidden were continuous along the shore, but ones that were periodic along the shore were still permissible. The essence of the federal case was that BLM had impermissibly set aside too big an easement. It was not consistent with ANCSA or ANILCA. Smaller, periodic easements along a waterway were considered permissible. CHAIRMAN HALFORD commented that an easement around a rapids for a portage was fine, but a continuous easement down the whole river was not. MR. MARSH said that unfortunately neither BLM nor the State kept track of the number of promised easements that were never provided and this needs to be done without delay, because 17 (b) easement issues will be finalized by 2001. The State needs to make a conscious choice whether to hold land owners to their contracts or let them slide. Number 247 CHAIRMAN HALFORD asked if the contracts were a matter of public record. MR. LARSEN responded that they are public record. There are contracts between villages and corporations which could be enforced by the State as a third party. CHAIRMAN HALFORD asked for an index of them. Number 266 MR. MARSH said if the State decides to enforce its rights to these promised easements, their report details a variety of legal remedies the State can pursue. On the topic of water allocation, Alaska has a small population and a third of the nation's fresh water. Our current approach simply assumes that we have an unlimited supply of water. However, the availability of water controls the development of other resources and this assumption will not be valid throughout the next century. Our water statutes already recognize the need for the State to regulate the export of Alaska's fresh water. The interest for exporting water from Alaska to other states and countries appears to be increasing. We have put very little effort to even determine the amount of fresh water that is still available in our waterways. The technical way for monitoring this is known as gauging stations; but less than one percent of the State's waterways have this equipment. He thought the State could condition the water rights of large users upon the installation of gauging stations at their own expense. The U.S. Geological has divided our State into six hydrological subregions, each of which focuses on the area's main river systems. The legislature enacted a procedure which would allow the court system to simultaneously determine everybody's water rights for an entire subregion in a single case. This procedure is called a basin wide water rights adjudication. Although the preceding is conducted in the State court system, the rights subject to adjudication explicitly include federal reserve water rights. This is also called a general water adjudication and has had considerable use in state courts of drier areas in the lower 48. Its value was greatly promoted when Congress passed a statute in 1952 giving its consent to have its water rights decided in such state court proceedings. Alaska has never used the basin wide adjudication procedure because the Department of Law has traditionally assumed it narrowly applies to only one specific water related issue - the quantities available for consumption by competing users. There has been little actual conflict to justify such a proceeding. Additionally, federal reserve water rights only recently acquired their unexpected importance to the management of fisheries. They feel the Department of Law is underestimating the possibilities for basin wide adjudications. The existence of federal reserve water rights now determines how responsibilities will be divided up between the state and federal governments when managing important fisheries. Until the Babbit Case in 1995, the federal reserve water rights were used to allocate physical quantities of water between the federal government and users competing with the federal government. The Babbit decision is unique in that it is used to define the geographical scope of federal management authority. DNR estimates that just under half of the State consists of federal land that may have those rights. The State's current approach is to wait for the federal subsistence board to announce where it claims such rights exist, but there is another possibility, the basin wide adjudication. CHAIRMAN HALFORD asked if the feds have just ten percent of a water right and the State has all the rest, does that give the federal government the federal reserve water right in a management sense. MR. MARSH answered that is an undecided question, because we have never before seen a concept that has used water quantity being spread geographically to define a territory that is used for administering rights. This is an opportunity for us, he emphasized. Navigability or fighting over the title of submerged land is another topic. As a general rule land underlying a waterway is owned by the State, if the waterway was navigable at the time of Statehood. Federal case law considers a waterway to have been navigable at statehood if it was or could have been used for commerce. The current State's approach is to file an action to quiet title in the federal court. However, each of these suites involves only a few water bodies out of the thousands that could probably meet the criteria for navigability. The State selects these water bodies for test cases with the hope that a victory will serve as a valuable precedent in eventual negotiations with the federal government over other waterways. Unfortunately, the federal government has taken a never surrender approach even in instances where BLM has already conceded navigability on an administrative level. Only about a dozen water bodies are the subject of quiet title actions. Water adjudications whether for one river or an entire hydrologic basin span 10 - 20 years, entire administrations at both the state and federal levels. He used the Dinkum Sands Case that was decided less than a year ago by the U.S. Supreme Court as an example. We fought the federal government for 18 years and walked away empty handed. The factual issue of waterway navigability should be subject to determination in the State courts as part of an adjudication of water related issues for an entire system of rivers. Once the factual issue of navigability has been decided in a state's favor, you can treat the underlying land as state owned. Anybody can test the State's ownership and the state court's factual determination should have binding effect in later proceedings to directly quiet title in the federal court. The affected state departments have expressed doubts that the courts would allow this suggested approach. But the bottom line is that it simply remains an untried matter of first impression. No one seems to dispute the basic underpinnings of such an approach. Both a State statute and the U.S. Supreme Court provide clear legal authority for Alaska to use the basin wide adjudication process, if it wants to do it. Both provide clear legal authority for Alaska to join the federal government as a party to a basin wide adjudication. Both provide clear legal authority for Alaska to determine federal reserve water rights in the context of a basin wide adjudication. Except in the context of an action to directly quiet title against the federal government, state courts have the authority to routinely make factual findings of navigability to resolve property disputes. State statutes and regulations make factual findings of navigability pertinent to some of the water rights issues subject to basin wide adjudications. These findings may have binding affect against the federal government and any later litigation to directly quiet title in a federal court. They see resolution of the State's waterway issues as a very long-term project for finalizing the allocation for three of its most important natural resources - water, fish, and submerged land minerals. Number 483 SENATOR LINCOLN asked what is long-term in his view. MR. MARSH replied with basin wide adjudications they are talking about litigation that traditionally in the lower 48 has taken decades. It may take 50 years before all water rights of all rivers in the State are decided. SENATOR LINCOLN asked if he meant litigation using the three categories of water, fish, and submerged minerals. MR. MARSH answered specifically the water related issues. It's hard to predict when the State will decide the submerged land issues and fishery issues are extremely controversial. Although the Alaska Supreme Court has adopted the Public Trust Doctrine for Alaska, Mr. Marsh said, debate continues as to whether it imposes an affirmative duty to initiate legal action on waterway issues or simply restricts the State's ability to convey property out of the public domain. One position asserts that the State incurs liability for violating the public trust if it fails to aggressively pursue suits involving navigability and 17 (b) easements. An opposing position asserts that State managers must allocate their use of limited legal resources among a wide variety of projects and the choice to pursue potential claims lie within their executive discretion. After examining the interpretations of the Alaska Supreme Court, they concluded that the Public Trust Doctrine does not place the State under a duty to pursue every potential claim for assertion of navigability or for a 17 (b) easement. The number of possible claims is staggering. He noted the provision in Title 38 which says, "an individual may institute a civil action to recover damages for the failure of the State to enforce its trust responsibilities to the people of the State." Though the decision to pursue an individual case lies within executive discretion, this statutory section may impose a duty on the State to adopt some form of binding program to pursue issues such as public access. This remains an untested question in Alaska law. Number 524 COMMISSIONER JOHN SHIVELY, Department of Natural Resources, said they did respond in writing to some of the Legislative Auditor's suggestions. He agreed with the first conclusion that navigability decisions were virtually ignored in FY 95 - 96. The legislature took the money specifically out of his budget the first year he was commissioner. At the time they indicated to the legislature what the effect would be. There was then a specific appropriation for navigability and they reorganized with Mr. Jim Culverson heading this effort. CHAIRMAN HALFORD said he wanted to come back to how they are doing with all the money that has been appropriated. COMMISSIONER SHIVELY said there is no question that not marking easements causes problems and they have tried to develop easement atlases and some of that information has been available to the public. These were done with Exxon-Valdez Trust money; however, they are expensive. CHAIRMAN HALFORD asked if they have copies of the old ones. COMMISSIONER SHIVELY said he didn't have any with him, but would get them to him. CHAIRMAN HALFORD asked if they are available to the public. An unidentified speaker responded that they are available except for Copper River which is out of print. CHAIRMAN HALFORD noted that it was hard to look up the information without an atlas. COMMISSIONER SHIVELY said that is a problem, because the easements themselves are actually reserved not to us, but to the federal government. It's their management responsibility, but the federal government has never seen fit to appropriate the money for it, because it is a very expensive process. TAPE 98-3, SIDE B Number 001 MS. JANE ANGVIK, Director, Division of Lands, said that the atlases are available in every library in the State and at all the public information centers wherever the State has them. COMMISSIONER SHIVELY added that one of the reasons they are out of print is that they made a major distribution of them to public places where the public could at least get at them. They gave them to individuals until they were out of print, but they are still available to look at. He agreed with the conclusion that there's minimal long-term impact to the State's piece meal approach to waterway litigation. They are concerned about the fact that the federal government has not been more cooperative in any of these things as he thought it would be as much in their interest to resolve these issues as ours. But he wouldn't play down the impact of what the State has done as in the Gulkana decision which had a major impact on native land conveyances. It completely changed how BLM handles those. It made the State's ability to have the federal government declare certain waterways navigable much more specific and much more generous towards us than BLM's original approach. Ultimately each river, if it's ever to be contested, will have to be decided in a court, but for most part they haven't seen native corporations litigating the navigability issues that have been made by the federal government as a result of the Gulkana. CHAIRMAN HALFORD asked if the State was now reviewing the conveyances for navigability determinations. MS. CUNNING, ANILCA Program Manager, answered that they and ADF&G have reviewed all federal conveyances for navigability. CHAIRMAN HALFORD asked if they had made any comments to BLM requesting navigability where they were not showing it. MS. CUNNING replied yes, it is jointly done as part of the Interagency Map Team. They work together on the review of the conveyances and then where they have sound data to support a determination. It is signed off by Jane Angvik. MR. ROB BOSWORTH, Deputy Commissioner, Department of Fish and Game, said he would answer questions about how the two agencies work together. CHAIRMAN HALFORD said to assume the question is asked. MS. ANGVIK inserted that the Navigability Team is composed of members of ADF&G, Department of Law, and DNR. She chairs the group which coordinates the annual work program for all three agencies with respect to navigability and coordinates the funding of projects which are funded discreetly into each of the three agencies. They work as a unit on all navigability issues related to review of conveyances, documents from the BLM, as well as designing a strategy for the litigation issues that come up with navigability and issues that occur where ADF&G has a more active presence than DNR. They attempt to resolve management conflicts as well as pursue litigation against the federal government. CHAIRMAN HALFORD said one of the areas the audit talked about was the lack of top level direction with regard to program implementation and asked if Commissioner Shively agreed that it was no longer a valid criticism. COMMISSIONER SHIVELY answered that they disagreed with that, referring to page 39. He didn't think they would expect commissioners or deputy commissioners to be working on a river by river, conveyance by conveyance review. Other very well qualified people are doing that. The three commissioners have given direction to the Navigability Team. He is perplexed by what the auditors meant. CHAIRMAN HALFORD said they would go back and ask them at another time and asked what they could do to make the whole public process with regard to easement identification better. COMMISSIONER SHIVELY answered that it's his understanding that BLM used to do an extensive notification of people and they got virtually no response. They have changed as a matter of economy the number of people they actually notify. He also understands when they see an area of interest to a group or an individual, the Team notifies them and works with them. He reiterated that the process of review of these issues is a federal process. CHAIRMAN HALFORD asked if the State could provide a public process. COMMISSIONER SHIVELY replied that the State could provide a public process, but he didn't know if it would have any effect. It would have to take place within the federal time limits and public processes come at some cost. They could hold public hearings, but he wasn't sure that was the most productive use of people's time. He thought getting knowledgeable people, particularly in ADF&G and DNR, who have been out on the ground and seeing if they know of anyone who might be interested is a more effective use of our resources. CHAIRMAN HALFORD asked if there are shore line easement agreements that were negated by federal action being replaced by discontinuous easements. He asked what process it would take for the State to bring those agreements to something that was on the ground and into an easement atlas. COMMISSIONER SHIVELY described a process where they review the files on a case by case basis to see who had the agreements, which identifies which easements were invalidated by the court system, and then look at who has given replacement easements, and suggest to the BLM and other land owners that they do the rest. The alternative would be to go to court and attempt to force an agreement that he didn't think the State was a party to. CHAIRMAN HALFORD asked if they could get an index of those in question. MR. CULBERSON, Navigability Team Member, replied that they have a good understanding of where the villages with agreements are, because they were conveyances that occurred in a specific period of time while the litigation was pending. He said they would put together an index for the Committee. CHAIRMAN HALFORD asked him to explain how Gulkana was a victory. Some of his constituents say the feds are trying to take over the Gulkana River. It's a wild and scenic river, it's a State navigable waterway; they look at regulations that they don't think the feds should be able to put on their activity; and blame the legislature for not doing anything about it. COMMISSIONER SHIVELY responded that there are two different issues here. The reason Gulkana was a victory is that we won submerged lands which has an impact on native conveyances. The wild and scenic issue is not unique to that area. Once navigability is determined and the federal government is an adjacent land owner, and more specifically when they have made some kind of restrictive designation, we are going to continue to have difficulties. The 40-Mile is another example of that. Ultimately, some of those issues may have to be litigated. Number 532 MR. DICK MYLIUS, Division of Lands, said because of the Gulkana court decision, there is no question or disagreement between BLM and the State over the ownership of the bed of the river. They try to work cooperatively with the State and have the ability to influence things. In Gulkana's instance, they control all access to the river. He said an issue with the Fish and Wildlife Service is that there are assertions that they have certain authority to manage things that happen on State lands, if they have an impact on the resources that are on the federal uplands. There may be litigation over this in the future. CHAIRMAN HALFORD asked how long it took Gulkana to get through the court system and what happened to the conveyance while it was in court. Have we gone back to any of those conveyances to apply the standard that was mandated by the court to the prior conveyances? MR. CULVERSON answered that BLM had to get the native corporations to voluntarily concur with making redeterminations of navigability. Some of them have agreed to do that, but for the most part native corporations don't find it in their best interests to authorize BLM to go back and make new determinations. CHAIRMAN HALFORD asked what are the advantages and disadvantages of a native corporation to have it or not and how can the State carry forward the enforcement of what we won in the Gulkana case as it applies to the other rivers. COMMISSIONER SHIVELY answered he thought the main reason the native corporations would not want to reconvey land that has been conveyed to them is control of the land. CHAIRMAN HALFORD asked if they got credit for that. COMMISSIONER SHIVELY replied that a navigable water involves certain public access rights that they may not always be supportive of. CHAIRMAN HALFORD asked if they didn't expect to lose it in court eventually anyway. COMMISSIONER SHIVELY answered that they may or may not; it would take an individual court decision for each case. CHAIRMAN HALFORD asked if the State should be cleaning those up. COMMISSIONER SHIVELY answered that he didn't think there were more than one or two that were causing us serious concerns right now. MR.CULVERSON added that they have had concerns in western Alaska, particularly Quinhagak, where certain rivers were conveyed to the corporation which is charging the public fees they feel they shouldn't have to pay to use the rivers. They have a conveyance that was made by the federal government and without a lawsuit there is no way to recover title. Another hot spot is the Karluk River on Kodiak Island that has fees being charged, also. It's more complicated because it's in a wildlife refuge and the impacts of a recent Supreme Court case on the North Slope, the Dinkum Sands case. The court's decision was that the State did not own the submerged lands within the refuge because, under the statehood compact, we did not acquire rights to the submerged lands even if they are navigable. CHAIRMAN HALFORD said he is concerned that a group of people from a community feels they have a legal right to tell someone to do something and a group of people from somewhere else who feel they don't have the legal right might use force and create long term animosities. COMMISSIONER SHIVELY said he knew that the main area of concern in Kanaktuk was the lands have not been conveyed to the village and the river is considered by them to be navigable. They realize the State has the right to manage the gravel bars and allow camping on them. The State's concern is how to manage that. The Karluk situation came out of a refuge, but that in itself doesn't prevent people from using the water. The undetermined issue is what happens if they stop in the middle of the river or turn their canoe over. Can someone step on the river bottom to save themselves or to fish. MR. MYLIUS added that Quinhagak is on the Arolik River and they have found the best short term solution is education where they work with both the native corporation and the public to understand what clearly are their separate rights. They have published a brochure stating clearly what the rights are. Number 300 CHAIRMAN HALFORD said he thought it was their obligation to bring some sort of closure to those kinds of questions. The State should be dealing with the Gulkana precedent with regard to the previous cases and actively applying it to future conveyance. COMMISSIONER SHIVELY responded that he disagreed and said the State has actively pushed the Gulkana decision for every conveyance that has taken place since it was made. In terms of the ones that were done previously, he agreed that they have not been aggressive. That's a more difficult situation because each one of those that isn't handled voluntarily can only be handled by litigation. CHAIRMAN HALFORD said he thought that was a very dangerous way to establish precedence. If people believe they have a right to protect something, they may use a degree of force beyond what they would use if they didn't believe the law was behind them. He thought they should be fixing problems in the order they are coming up. SENATOR GREEN said she thought part of the concern is that the priority has not been established of addressing the cases Senator Halford was talking about. COMMISSIONER SHIVELY replied that he had been through several of these situations and the Task Force has worked well in terms of their recommendations. They have a lot of on ground knowledge. COMMISSIONER SHIVELY announced the Superior Court decided today lease sale 85 A was valid and the State had met all the requirements, although he thought it would be appealed by the Trustees for Alaska. CHAIRMAN HALFORD asked if the State should be taking some kind of action in court regarding the cancelable 17 (b) easements before their 2001 deadline. COMMISSIONER SHIVELY answered that he would have to go back and read the regulation. He did not believe it called for automatic cancellation of the easements. It is a regulatory provision that was not in law that allows the BLM to vacate the easement if it wasn't used. He thought the land owners themselves would have to ask for that. He guessed they would be better looking at the individual vacations which BLM has the ability to do whether they have a 20 year period or not. If we don't agree these should be vacated, we would litigate that. To his knowledge, we would not see a wholesale vacation of easements in 2001. CHAIRMAN HALFORD asked for a list of easements that would be vacated on those grounds. COMMISSIONER SHIVELY said he didn't think they could get a list because the first thing they would have to say is that this easement has not been used and, therefore, we ask BLM to vacate it. CHAIRMAN HALFORD noted that not all of their easements have that provision on it. Other easements do. MR. CULVERSON responded said he thought it was being made into a bigger issue than it really is. BLM has to individually vacate these easements one at a time and they have to go through a public process to do it. There's a much bigger savior out there and that's the fact they can't terminate an easement that hasn't been used if it provides the only access to public land. By definition, in order to get reserved as a 17 (b) easement in the first place, it would have to provide the only access to public land. The only way they could use that provision is if some other easement, such as a new public highway was built, and the 17 (b) easement was there and wasn't being used. MS. ROBIN WILLIS, Access Defense Manager, said they have started to have a couple of terminations at this point. They have one in Unalaska which accesses State waters. The corporation has asked for a termination. It's at the end of a road and heavily used. They have problems, because the corporation believes that access by way of water from the city is sufficient and not too many people in the community have a boat to access it. Both she and Mr. Bill Hobbes who work on 17 (b) easements are a bit concerned about 2001 in a sense that all the corporations have that as a deadline and different federal agencies are managing them depending on whether they are within refuges, parks, or forests. They can within their own ranks try and do the termination process. It may inundate those who are working on them. CHAIRMAN HALFORD asked for a copy of the application and a brief statement about how the process works. He asked if the State is still vacating section line easements when transferring land to municipalities. COMMISSIONER SHIVELY said they vacate, but only if there's alternative access. Mr. Culverson concurred. CHAIRMAN HALFORD asked if ADF&G is involved in that process. MR. CULVERSON replied yes, and said that they review all the municipal entitlement conveyances. CHAIRMAN HALFORD asked if there's a recreational access question. Do they have an opportunity to say they would not like to have that section line easement vacated? MS. WILLIS said she wasn't aware of that happening in the entitlements she has seen, but some may go through different people in the Division of Habitat. MR. CULVERSON added that it usually doesn't come up, because they usually don't vacate those. CHAIRMAN HALFORD asked what was happening with the whole Title Section of DNR. MS. ANGVIK replied that section is alive and well. They are vigorously securing an additional 200 - 300 thousand acres of land a year from the federal government. They review all the native allotment conveyances, and are in the process of doing title researches for things like oil and gas lease sales, timber sales and mining issues. She said they are a little slower in responding to requests from agencies than in the past because of staff reductions. SENATOR LINCOLN noted that the atlases they were referring to earlier cost $17.24 and she hoped the Committee wasn't suggesting having thousands of them produced just in case someone would come in and ask for them. She thought printing just sections of the atlas was more economical, especially since the atlases were in the libraries and other public places. CHAIRMAN HALFORD responded that he didn't think they should be given out for free, but he didn't think they should be out of print either. MS. ANGVIK explained that Prince William Sound and Kodiak had been digitized and were available on the web so people can look up the very section they are interested in to see what the public easements are. MR. CULVERSON added that they do charge $10 per copy, because people who want them are willing to pay and they go too fast if they are free. COMMISSIONER SHIVELY said the ultimate goal is to have the State digitized so people can access information easier. CHAIRMAN HALFORD said another way to do it would be to privatize it and let someone make some money publishing and selling them. COMMISSIONER SHIVELY said the information is public and there is nothing the government is doing to prevent doing that. SENATOR LINCOLN said she wanted a copy of Mr. Marsh's testimony. She hoped, if the Commissioner was going to respond, that they could have it before Wednesday's meeting. COMMISSIONER SHIVELY said they had partially responded already. CHAIRMAN HALFORD said there are two areas that permeate land access and use. One of them is navigability water and the other is RS 2477. He said the Committee would be spending a lot of time on these issues this year. TAPE 98-4, SIDE A Number 001 CHAIRMAN HALFORD said they would continue this hearing next Wednesday and adjourned the meeting at 5:15 p.m.