SENATE RESOURCES COMMITTEE February 4, 1998 3:42 P.M. MEMBERS PRESENT Senator Rick Halford, Chairman Senator Lyda Green, Vice Chairman Senator Loren Leman Senator Bert Sharp Senator Robin Taylor Senator Georgianna Lincoln MEMBERS ABSENT Senator John Torgerson COMMITTEE CALENDAR WATERWAY MANAGEMENT ISSUES WITNESS REGISTER Mr. Mike Marsh, Staff Auditor Legislative Audit Division P.O. Box 113300 Juneau, AK 99811-3300 Mr. Paul Bowers, Director Statewide Aviation Department of Transportation and Public Facilities P.O. Box 196900 Anchorage, AK 99519-6900 Mr. Bruce Botelho, Attorney General Department of Law P.O. Box 110300 Juneau, AK 99811-0300 Ms. Joanne Grace, Assistant Attorney General Department of Law P.O. Box 110300 Juneau, AK 99811-0300 Ms. Jane Angvik, Director Division of Lands Department of Natural Resources 3601 C Street, Ste 1122 Anchorage, AK 99503-5947 Mr. Jim Culberson, Navigability Team Division of Lands Department of Natural Resources 3601 C. St., Ste 1122 Anchorage, AK 99503-5947 Ms. Robin Willis, Biologist Division of Habitat and Restoration 333 Raspberry Rd. Anchorage, AK 99518-1599 Ms. Carol Shobe, Realty Services Section Division of Lands Department of Natural Resources 3601 C St. Ste. 960 Anchorage, AK 99503-5947 ACTION NARRATIVE TAPE 98-5, SIDE A Number 001 CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 3:42 p.m. and announced the Committee would continue discussion on Waterway Management Issues. In the last meeting one question asked was which corporations had agreed to stipulations regarding replacement easements if the continuous easements in the court case were not upheld, which they were not. He referenced a list of corporations before the committee that could go back and negotiate for discontinuous easements as were envisioned in 17 (b) according to court interpretation. Another thing the committee asked for were copies of the public easement atlases which they also had before them along with a copy of the Unalaska easement vacation. He said they didn't have anything back yet on funding allocations and were going to get an updated response to the audit report from Department of Law, Department of Fish and Game, and Department of Natural Resources. MR. MARSH, Legislative Auditor, said quite a few of the recommendations had already been successfully resolved. Recommendation #1 for DNR personnel who review the easement notices and navigability reports to document the rationale for their decisions is now being done according to Mr. Dick Mylius, Division of Lands. Recommendation #2 that DNR and ADF&G should facilitate BLM's inclusion of citizen groups in the process for reserving public easements was perhaps misunderstood. He had in mind that they simply have three meetings - one with each of the BLM districts in the different areas of Alaska - where the citizen groups could be invited and be put on a mailing list. Recommendation #3 had to do with one particular BLM district that has some boiler plate provisions which he understood from Ms. Shobe, Realty Services, had been successfully negotiated and was no longer an issue. Recommendation #4 has two parts to it recommending that DNR and ADF&G personnel who review the easement notices should consult the extensive BLM case files as part of their process and he has found that this is occurring when necessary. He has not heard a consensus on spending a little time on each easement consulting the people who live and work in the affected areas. He thought half hour phone calls to the individuals should do for that. SENATOR LINCOLN asked why they didn't add village councils to exhibit two. MR. MARSH said if they aren't getting an individual notice, they should, because people who live in an area have the best idea about where an easement should or should not go. SENATOR LINCOLN said she hoped the councils were added, if they are not already. MR. MARSH agreed 100 percent. He said recommendation #5 has to do with airport operating agreements and looking at easements as part of a total transportation system involving public airports, waterways, as well as access to tracts of public land, some of which are very isolated, and trying to come up with ways to mark them. Unless they are marked, it's very difficult to use them and there will be disputes with people using them as to whether they are trespassing or within the boundaries of the easement. The report recommends that it just be part of the contract for maintaining the local airport. CHAIRMAN HALFORD asked if there are cases where the easement to the airports themselves aren't finalized. MR. PAUL BOWERS, Director, Statewide Aviation, responded that the State has had leases at various airports around the State and some of them have expired and the airport is still being operated by the State, but clear title is still not resolved. CHAIRMAN HALFORD asked if there were leases because he thought ANSCA required that the airports be transferred to the State in fee. Number 200 MR. BOWERS replied that some are transferred and some are not, although ANCSA required it. Many of the communities have inadequate, substandard airports and they are trying to build new airports. The issue is getting an improved airport that goes beyond the existing airport property line. CHAIRMAN HALFORD asked him to provide the operative section of the Claims Act and a list of the airports that the State doesn't own. MR. MARSH said recommendation #6 required more study, but was regarding getting easements marked in local areas by conditioning grants involving land use to unincorporated communities or unnamed recipients. He said it was not unusual in traditional subdivision platting that there be requirements like dedicating land for drainage, streets, schools, etc. Recommendation #7 has to do with easement atlases, MR. MARSH said. CHAIRMAN HALFORD said as he reads 17 (b) there is no requirement for any time frame with regard to their use. He doesn't see easements disappearing in 2001 or that they must be used. In fact, some of the transfers to the State and the corporations won't even have occurred by then. "Should we be challenging that federal regulation as a matter of policy," he asked. ATTORNEY GENERAL BRUCE BOTELHO responded that the Unalaska matter is an example where the State has filed an appeal and that action was pending in front of the Department of Interior, Land Appeals Board. The question deals with the broader issue. MS. JOANNE GRACE, Assistant Attorney General, said she thought the proper approach was to appeal any termination of an easement that BLM does to the extent we aren't able to convince the Department of Interior to vacate that termination. In a particular case they would challenge the regulations in court and maybe make an argument that the agency exceeded its authority in providing for termination of those easements where the statute didn't provide it. But they wouldn't do it just on the face of the regulations. As far as she knows, the Unalaska case is the only termination that's occurred to date. SENATOR HALFORD wondered when the feds adopt a regulation that is so blatantly different than the statute, wasn't there a better way than waiting until it bites us before we swat it? MS. GRACE replied in certain cases they need particular facts to bring a challenge. In this case, it may be invalid on its face and we could just bring a facial challenge to the regulation as being beyond the authority of the agency. As far as she knows, this has only happened once. So she didn't know how big a problem this would ultimately be, but it is something they could look into. CHAIRMAN HALFORD said he would like something back on whether there is some way we can do a more generic approach to that than waiting for them to act and then going to court. He was afraid with a short deadline, everything would happen at once. He asked if the State has cases prior to Gulkana River where the title to the stream bed of a navigable river has been transferred to a third party and we don't do anything about it for 20 or 30 years, and then somebody decides they are going to do something with that resource. Are we going to have a very good case, if we say that was a fraudulent transfer, the land had already been transferred to the State of Alaska? MS. GRACE answered that theoretically we would not lose our title through the passage of time and theoretically a court would simply look at the issue of whether the waterway is navigable under applicable federal standards. It shouldn't make a difference that 30 years has passed. After a long passage of time, maybe 50 - 75 years from now, a court might sympathize more with a private land owner who said to the court that the United State conveyed this property to them and that they have used it and the State has never asserted an interest in this property. The court might apply a rule of property which says this is the person who has acted like he's an owner, and therefore, the court sympathies would be more with that person than they may be with the State who never asserted title to those navigable waters. So a private land owner wouldn't be able to make that kind of argument if the State is on record as determining that waterway to be navigable. CHAIRMAN HALFORD asked what constitutes a State navigability determination. MS. GRACE said that there is a formal process the State goes through. The Director of the Division of Lands signs what is called a State navigability determination. Her understanding is that when the public calls the Department of Natural Resources and asks if the waterway is navigable, if the State's response is yes, then there's a formal written navigability determination that the DNR has conducted. Number 390 MS. JANE ANGVIK, Director, Division of Lands, said she had members of the Navigability Team with her, and directed the committee to the Navigability Criteria Evaluation Form, which Ms. Carol Caroll should have a copy of. One of the processes they go through in making a navigability determination is to review the factual case with respect to a particular water body by the utilization of this criteria. This criteria evaluation is one of the products of the Navigability Team since its inception nearly a year and a half ago. It is not only used to evaluate the physical data we have in all of our files, that is DNR, ADF&G, and DOL, but also used to see if it's a good candidate as a possible water body to litigate. CHAIRMAN HALFORD said they have copies of the form. He asked if they do this to a water body that is already transferred and, if not, what do they do with a water body that has already been transferred to a third party corporation that is obviously navigable. MS. ANGVIK answered they have not gone back on the pre-Gulkana cases, because they are working forward. They are evaluating conveyances that are still being made. They have also made navigability determinations on waterways and water bodies either where there is existing management conflict or where there have been questions raised either by members of the public, by the mining community, by sportfishing interests or by someone in the public. Much or their methodology is predicated on where the demand for a navigability determination is requested. CHAIRMAN HALFORD asked what they tell the public when there's a river that has been transferred to a third party that is obviously navigable above and below and they ask if they can be there or not. MS. ANGVIK replied that it depends on where it is and what the situation is. MR. JIM CULBERSON, Navigability Team, said that he tries to determine whether or not a river has been conveyed. If it hasn't been conveyed, they make an assertion of ownership. If it has been conveyed, he first informs the person that it has been conveyed and at the time of conveyance the federal government thought it was non-navigable, that the State feels it's navigable, and that it's a disputed issue. It's a possibility that trespass action could be brought against them for using the land. The navigability is a defense of the trespass. There is no real clear answer for pre- Gulkana decisions. CHAIRMAN HALFORD asked for the two or three most potentially contentious of those that were transferred pre-Gulkana. MR. CULBERSON said that the State feels the Arolik River is navigable and that we own it. That's probably the hottest issue. Another one involves the Chuitna River in which case the BLM conveyed half of the river to the Tyonek Native Corporation and determined that the other half was navigable. That created a tense situation trying to determine where the middle of the river was and who owned what. The other issue was the Karluk River which has a brochure outlining disagreements and public rights. CHAIRMAN HALFORD asked how many pre-Gulkana transfers he thought would end up with that kind of conflict when use is increased. MR. CULBERSON said he thought there are about 100 water bodies in the State that continually come up where there are conflicts between the owner and the user. MS. ANGVIK asked how many of those were pre-Gulkana conveyed. MR. CULBERSON said he thought almost all of them were pre-Gulkana and that's almost always the issue. Number 466 CHAIRMAN HALFORD said he thought it was a dangerous position to be in where both sides thought the law was on their side. MS. ANGVIK said that where there have been flagrant assertions of ownership by upland owners. Troopers have been called in and have been able to maintain the peace and the law. MS. GRACE added that it depends on how the conflict arises. If there's a private civil trespass action between two individuals, the State may never know about it. CHAIRMAN HALFORD asked if he understood correctly that the State would not defend the title of the State to the navigable waters on behalf of the public citizen that's using it. He asked what the State would do. MS. GRACE said she wasn't suggesting the State wouldn't take a side. She was suggesting that the State might never know about it. There are a couple of issues here; one is title to the submerged lands and the rights it gives the public and the second is the right the public has to use waterways regardless of who owns the submerged lands. In this State, the public has the right to use any waterway that's navigable under State statute which is very broadly defined - essentially anything that's navigable in fact. This is a different standard than navigability for title purposes. So the State takes the position that the public has the right to use the water of any river that's navigable, in fact. Someone mentioned on Friday that it's not particularly clear what rights go along with that. It's perfectly clear that the public can use the waterway, but it's not clear how much of the bed they can use, if any or what portage rights they might have. Things like that. This is something the State would probably welcome litigation on, because it's something they want clarified. The public has the right to use any waterway that's navigable in fact and in the right case she thought the State would like to get some of the peripheral issues of exactly what that means resolved. If it were a case where we felt we owned the submerged lands, and therefore felt the public has the right to use the submerged lands, as they have the right to use any State lands, then she presumed the State would step in and defend the public's right. She couldn't promise they would, because that is a policy decision, but generally their position is yes, they are here to protect the public's rights. CHAIRMAN HALFORD asked if there was anything in between going to court and litigating a hundred different conveyances at the rate of two a year for the next fifty years or whatever. What if by statute the State asserted title as navigable to all submerged lands under any lake larger than X and any river with a flow more than X, unless someone can prove otherwise. He asked if there was some way the State can reverse some of the burdens that take forever. MS. GRACE responded that we certainly could do that and she thought it would clearly put the public and private upland owners on notice as to what the State believes it owns. It wouldn't determine title. It would still be open to challenge by private upland owners. CHAIRMAN HALFORD said if we do that now and they don't do anything for another 50 years, doesn't that put the court and history on our side? It would be the opposite if we do nothing. MS. GRACE answered that she thought it would. She also thought it would be a strong position for the State to say they put the public on notice in whatever way 50 years ago. It might be more flexible to have a statute that provides the agencies with some way to declare things rather than have a law that you would have to amend every year, because the State would continually be doing navigability determinations. CHAIRMAN HALFORD said we're behind by 500. So we could take the first 500 and then the agencies. MS. GRACE responded that as long as the law made it perfectly clear that it wasn't an exclusive list. SENATOR TAYLOR said he thought it would work. MS. GRACE said she thought they would want to make it clear that we weren't taking title, but asserting what's there. CHAIRMAN HALFORD said they weren't done with this question because it weaves itself all the way along. He asked if there were any other questions on recommendations five, six, and seven. MR. MARSH responded that he thought seven was misunderstood. They were simply indicating that the atlases have real limited potential, given the limited State resources and constantly changing easements and to consider putting them on USES maps and a host of other publications. His understanding from talking to Ms. Shobe is that she's in the process of trying to implement this. Number 566 SENATOR LEMAN asked if the Department could make information available electronically, because even commercially available maps were changing too fast. MS. MARSH said to the extent that people have access to Internet or can physically come into navigability central in Anchorage at DNR that's very viable and is probably the way to get the very most up- to-date information. It depends on people throughout the State having access to the Internet and being friendly with using it. It also depends on some government agency having the resources to continually update the information that's kept on the Internet. MS. ANGVIK added that there are three easement atlases that are digitized - Kodiak, Prince William Sound, and Kenai as well as the navigability map which is in digitized format. All of this material will eventually be available on our website. The intention is that anything we have in electronic form will be available to the public as widely as the State can disseminate it as quickly as they can. SENATOR LEMAN asked if it made sense to make it available as soon as possible and to quit printing the documents that soon go out of date. MS. ANGVIK replied that they are all in favor of making it electronically available as soon as possible, but there are still parts of the State that are not digitized. She agreed that it is a lot easier to update the digitized record than the written record. TAPE 98-5, SIDE B CHAIRMAN HALFORD said it looks like BLM requires an invitation from the affected corporation prior to marking the easements on that corporation land. Why would a corporation want to mark easements, like Chugach did, unless they were obvious and in use. He asked for someone to describe how the feds do it now and show the committee an example of a vacation application in Unalaska. MS. ROBIN WILLIS, Access Defense Manager, explained that they have been requesting marking of easements in a variety of areas. When they wrote a letter to BLM requesting that they mark easements, in this instance, along the Karluk River, the response they got was that the corporations were required to make an invitation for them to be a party to the actual location of the easement and that one of the upland owners in that particular area was not particularly interested in getting the easements marked and the State didn't have any recourse in that particular location. The attempts they have made at requesting marking have occurred. CHAIRMAN HALFORD said if there is a requirement that they be used and documented somewhere prior to 2001, and if the person who owns the underlying title can not tell you where it is so that you can't use it or document it, it seems like all the cards are on one side of the table. MS. WILLIS said that was their impression, too, and they haven't found a way around it. SENATOR TAYLOR asked if the Public Trust Doctrine meant nothing. MS. GRACE answered that there is a jurisdictional problem, if he is suggesting the State file suit against the federal government to force marking of 17 (b) easements. When the State files suit on behalf of the public, the Ninth Circuit holds that it can't file suit against the United States, because the United States ultimately has the public's interest at heart. The State, therefore, doesn't have standing to file suit against the United States. CHAIRMAN HALFORD asked if that was common to all circuits. MS. GRACE answered that it is black letter law. SENATOR TAYLOR said they were not talking about the federal government, but the upland owner, especially along the Karluk River. MS. GRACE said she didn't know the answer, because she hadn't looked into the issue. There would be a question of whether the upland owner has a duty to mark 17 (b) easements. CHAIRMAN HALFORD said that section 17 (b) is pretty short and a lot is hanging on that. It seems like it would be worth seriously researching, at least, action against the apparent statute of limitations that they're tying into these easements that they don't want us to know about, mark, or use and which will thereby disappear under their regulations. SENATOR TAYLOR said he is informed that along the Karluk River there is a trail that goes from Larson Bay over the ridge and all the way down the Karluk River and that trail has been used historically probably for millennia. He has walked part of it himself and didn't have any difficulty in determining where it was. It would seem if our personnel wanted to mark that, they couldn't be excluded by the upland property owner. Are we just asking people if they would like us to come on the land and if they say no, we don't do anything or are we attempting to assert these rights and failing to take to court or to use such other action as may be necessary to assert these rights, he asked. MS. WILLIS pointed out that in the area of Soldovia, BLM went out to mark easements and had a community meeting and before they could mark them, they were informed they would be cited for trespass and put into jail if they tried to mark the easements, because they would have to go across private property to get there. As a result, BLM decided to go home without marking the easements. They are the managing agency for the 17(b) easements as they exist. The State doesn't even have ownership management authority on those easements at all. So marking them is even more difficult for us than it would be for the federal agencies. CHAIRMAN HALFORD asked if they were told they would be put in jail for trespass on private land not subject to the easement to get across to the easement or was it on the private land that was subject to the easement itself. MS. WILLIS answered that it was private property that needed to be walked across in order to get to where the 17 (b) easement was to be marked. CHAIRMAN HALFORD said the 17 (b) has to be by definition connected to pubic property from some direction or other - either by a public waterway or property. It seems the BLM people should have just used the other way. MS. WILLIS explained that they were approached and decided against proceeding. She knew that BLM had tried to mark easements where there was confusion and have been deterred by a variety of methods and that was one of them. CHAIRMAN HALFORD asked her to send him documentation of them being deterred. SENATOR SHARP asked if a public easement can only be marked by a government agency or can it be marked by anyone considered public. MS. WILLIS explained that the federal agencies are the managers of the 17 (b) easements, so BLM, Fish and Wildlife Service, Park Service, or Forest Service are traditionally the agencies responsible for marking and managing the easements. They traditionally request that the private upland owner accompany them in the process and on occasion the State is invited to assist. SENATOR LEMAN asked if it was correct that they either mark it themselves or do they have someone under contract who marks it. MS. WILLIS said that was correct. CHAIRMAN HALFORD asked Ms. Willis to go over the specifics of the Unalaska case. MS. WILLIS explained that the road system in Unalaska was created in the 1940's by the military and the Corporation received title to the land prior to the Andress litigation which had to do with whether continuous shore line and stream side easements were reserved or not. That decision was made in 1978 and was in a transitional phase until 1979 at which point they came up with the current regulations which include periodic site easements rather than continuous shore line easements. She said the overview before the Committee is intended to show them there is no access between downtown and Humpy Cove. The only access the public has to public lands are the simple easements they see on the map. The portion of the road that's between Summer Bay and Humpy Cove was conveyed during the transition between the discussions for Andress on continuous versus periodic points. It was not part of the groups of conveyances for which there was a conformance where you replaced continuous shore line easements with periodic site easements. Consequently, the road going to Humpy Cove didn't have a site easement and the Fish and Wildlife Service has that as one of their justifications for terminating this easement, because they say it does not access public waters. In fact, the patent says it goes to the public waters of Humpy Cove. MS. WILLIS said they have done a lot of work with the community and they are very concerned about not being able to get to their favorite recreational areas. There are only five salmon streams in the location where they can fish and get subsistence fish. They requested that the State protect their interests and they are attempting to do so. This is in the middle of litigation. This is a termination requested by Fish and Wildlife Service of an easement, because it doesn't have a site easement associated with it. It is clearly something that has been used for a very long time by the community and is still very important to the locals. MS. ANGVIK added that they have officially appealed this action and the BLM has also disagreed with the Fish and Wildlife Service. CHAIRMAN HALFORD asked if the State owned all the tide and submerged land on the shore line in that area. MS. WILLIS answered no, the tidelands were conveyed to the town of Unalaska, although a 50 ft. wide public easement was reserved along the coast for purposes of public access, similar to a public trust. CHAIRMAN HALFORD asked if the land was conveyed to the State at statehood and the State conveyed it further to the local government. MS. WILLIS said that was correct. CHAIRMAN HALFORD said it was obvious that it was public land and public access. He asked if the allotment at Morris Cove cut off the road that goes over to Alangik Bay. MS. WILLIS said it does, except within the allotment they reserved a 25 ft. trail easement so people can legitimately walk along that trail to Alangik Bay. CHAIRMAN HALFORD asked if that was a trail or a road now. MS. WILLIS said that it's a road up to the allotment, a trail through the allotment, and it's not really even a marked trail to Alangik Bay. CHAIRMAN HALFORD asked if the allotment preceded the trail, then. MS. WILLIS answered that it did. CHAIRMAN HALFORD asked if there were any other cases where they were notifying her of action on potentially vacating a 17 (b) easement. MS. WILLIS answered there were a number of places where they have litigation outstanding like Afognak Island where the State believes there are two large lakes that are navigable. The only easements that were reserved were two site easements and they want to terminate those, because of their feeling that they are non- navigable water bodies. CHAIRMAN HALFORD asked how large the lakes were. MS. WILLIS answered that they were 400 - 500 acres. CHAIRMAN HALFORD asked if the federal government transferred the submerged lands under those lakes. MS. WILLIS answered they were meandered out under survey rules, so they didn't convey them, but they have riparian rights associated with them as the upland owner. CHAIRMAN HALFORD asked if there was any federal withdrawal that preceded statehood in those cases. MS. WILLIS answered that she didn't believe so. MR. CULBERSON added that there was a withdrawal for a fish culture preserve that predated the forest and then there was a forest withdrawal. Both of those were prestatehood and that was their justification for not recognizing the State's ownership in the submerged lands. CHAIRMAN HALFORD asked if that was what was necessary to beat us on those. MR. CULBERTSON answered there was first a fish culture preserve on Afognak Lake, which probably related to the Lake. That was later revoked and replaced by a forest reserve that didn't have the withdrawal attribute of the other court cases. This particular case has both scenarios. Number 380 SENATOR TAYLOR asked what is motivating the Fish and Wildlife Service. MS. WILLIS answered that they have difficulty managing easements that are not close to where their units are located. This one is managed out of Palmer, the Corporation is probably frustrated that they can't have more management taking place on the easement. Fish and Wildlife Service doesn't have anyone locally to do it. SENATOR TAYLOR said the information he had was that the community was maintaining the road. MS. WILLIS replied that the community maintains the road at least out to Summer Bay itself, but it doesn't maintain it to Humpy Cove. MS. ANGVIK explained that the issue for the private upland owners is that the public is trespassing on their uplands by way of that road. They are the ones who have persuaded Fish and Wildlife Service that the easement is causing the public to trespass on their private lands. SENATOR TAYLOR asked who was the upland owner. MS. WILLIS answered Unalaska Corporation. MS. ANGVIK said while this has all been under discussion of the navigability program, it's within the Realty Service Section and is funded out of the general fund and isn't funded by the Navigability Program. It isn't included in the scope of waterway issues. CHAIRMAN HALFORD thanked her for that clarification. He asked the Department of Law if there was anything, including money, stopping the State from marking 17 (b) easements should we choose to do so. MS. SHOBE answered that at any time any of the federal agencies involved could transfer management of the easement to the State. Easement management regulations were never completed back in 1983 and are part of a holding draft pattern. Because of the cost this would be a horrendous task, but it could be done if we want to do it. All we have to do is ask the federal agencies involved. MR. MARSH added that this is one of the major issues of the audit that the easements are unmarked in many cases and it's hard for the public to locate them and hard to use them. He understands from talking to BLM that any time the State would like to take over easement marking, they can do so both legally and with BLM's blessing. However, that is an expensive cross to bear. From a practical perspective, it's hard to mark things against people's will and maintain that marking. The practical solution from the auditor's perspective is to get the land owners to contract with the State as a condition of various services to just mark the easements and maintain the marking in a routine manner as a condition of getting things they want in return from the State. CHAIRMAN HALFORD said particularly for easements between the airport and the river, DOT ought to be able to maintain the 600 yds. down to the river. SENATOR LINCOLN noted there were two corporations which were not listed with the native corporations that have a 17 (b) agreement with the Department of Interior. She asked Mr. Marsh why and asked for an explanation of those which had received patent and owe the 17 (b). MR. MARSH said he didn't produce the list. CHAIRMAN HALFORD said that was from Division of Water and the discussion was in the context of if the State lost the court case on continuous shore line easements, and he could see why they did, then the corporations had agreed to come back and grant discontinuous easements for the same purposes. MR. CULBERSON said he pulled this list from a case file that was submitted to them by BLM in 1983 as part of a proposal for their two phase process. The first phase of the process was to terminate the [indisc] easements and the second phase was to acquire the donations. It may be that this list only contains conveyances that had illegal easements that were being terminated as opposed to all conveyances that may have been subject to the agreement. It's possible that BLM made an error in preparing the list. MS. ANGVIK said that probably the critical issue is the second list where the final patent has been conveyed to the corporations. Now it's between them and BLM with respect to where the 17 (b) easements are. CHAIRMAN HALFORD questioned the resource agencies of the State, if there was a record of correspondence and have we asked BLM to follow up on those conveyances and get those easements. MR. CULBERSON answered that yes they have and BLM gave priority to some of the conveyances until they initiated the "patent plan process." At the time they decided they were only going to deal with conveyances in areas where they were doing surveys which is the way they have focused their budget. They only address easement issues in areas where they intend to go in the next field season and do on the ground surveys. CHAIRMAN HALFORD asked if they do allotments and easements at the same time. MR. CULBERSON said that is correct. CHAIRMAN HALFORD asked if they mark the easements when they do them. MR. CULBERSON said no. The mission of the BLM is to convey land and in order to do that, they have to survey it. Marking 17 (b) easements is not part of the process. CHAIRMAN HALFORD responded that the federal law the land is conveyed under says the easements shall be reserved and if they are conveying the land without the easements, they are violating the federal law; and if the easements aren't there in the initial conveyance, they can never be added. He asked if anything he said was wrong. MR. CULBERSON replied that the initial conveyance has a paragraph in it that says they have right under the easement agreement to come back in and reserve the easement at a later date. CHAIRMAN HALFORD said that may be better than having easements that are going to be canceled in 2001. MS. SHOBE added there was an agreement with almost all the corporations with the Secretary of Interior during the period of time of the litigation that finally resulted in saying that coast line easements were invalid. Each one of the interim conveyances (i.c.) had the language in it that says they can come back and "donate" the site easements. She asked BLM today about why they aren't doing this as a special project and they said it is under their patent plan process of trying to focus their staff in one general area and to move forward on their main goal. They are reserving the easements, but they just aren't marked. SENATOR TAYLOR asked if they were marked on some kind of plat or graph or are they just including some generic paragraph that at some date in the future they may come back to ask for this easement. MS. SHOBE said on the situations that Mr. Marsh has brought up where they have to conform under the Andress agreement, there is a paragraph in the specific i.c. that says they can come back and do it, but on every single i.c. and patent there is a topographical map that BLM puts together on a 1 to 6,300 scale with a line drawn to indicate a site or trail easement. That is not on the official record; it is with the file and with the documents conveyed to the native corporation. The State gets a copy of it, and that's the basis for the easement atlases. If the corporation chooses to record their conveyance document and attaches the maps, it is in the recorder's office. That is the only public notice that BLM has. CHAIRMAN HALFORD asked if that would constitute notice to a third party that 15 years later contests the existence of an easement on land that they bought from one of the native corporations. Number 140 MS. GRACE said she wasn't familiar with the i.c. paragraph and asked if they have the option of recording with the map. MS. SHOBE answered that Alaska is a nonmandatory recordation state, so if they want to pull those maps off of their conveyance documents, they do not need to record them. Because sometimes they are unwieldy and it costs per page to record them and they need to be broken down, a lot of the maps were not recorded, but she has copies of them. CHAIRMAN HALFORD asked if 15 years down the road a corporation sells a 20 acre parcel to a third party, who then after a period of 10 years develops and utilizes this parcel of ground fully and goes to get title insurance, does the title insurance company insure title to that parcel with no easements shown. MS. SHOBE answered that she hoped the title companies would have had this information and would not give a title policy out that would include such an easement. CHAIRMAN HALFORD asked where they would get the information. MS. SHOBE answered they can get it many ways. Most title companies have copies of the 163 maps. MR. CULBERSON explained that normally the process a title company would use in doing a title search is that it is subject to all the reservations in the federal patent which contain 17 (b) easements. It would be the responsibility of the person receiving the title report to go to BLM and look at the reservations in the patent. SENATOR TAYLOR said he was fascinated by the name of "Statehood Defense Unit." He asked how many were in the unit. MS. GRACE explained that their funding was not broken down person by person. When the attorneys work on a statehood defense matter, they charge that to statehood defense money. ATTORNEY GENERAL BOTELHO explained that a study Senator Taylor was referring to was a study done in the first year of this administration. Essentially, 27 attorneys were to participate on various committees and look at the consequences of various issues involving native governments in the State. They are now in front of the Supreme Court and will have a decision in the next several weeks to three months. SENATOR TAYLOR asked if there was any involvement in RS 2477's or 17 (b). ATTORNEY GENERAL BOTELHO said not in that exercise. RS 2477 is an ongoing issue and is billed against statehood defense. SENATOR SHARP asked how many right of ways were transferred and sold for the Exxon Valdez back to a government agency. CHAIRMAN HALFORD said some of those became State lands. MR. MARSH said it was their suggestion that the legislature study basin wide adjudication further, because it is already in statute and has the potential to resolve some long term water related issues. This is a study type issue and was meant to be an alternative to the federal government having a rather bad attitude about attempting to settle these things without long term litigation. The potential for basin wide adjudications is that it settles various rights over an entire river system or hydrologic unit of which there are six in the State. MR. MARSH said the remaining recommendations were narrow in scope. Number 9 was advice for the record for people who put obstructions across navigable waterways and what ought to be done about this problem. Some people suggested criminal prosecution. TAPE 98-6, SIDE A Number 001 They further recommend in #10 that peace officers have the authority to enforce injunctive orders that are obtained. The final recommendation was where some State employees were doing water management duties and were interfered with in their access to navigable waterways and the adjacent land. The statutes provide for a land surveyor and private employment to have the ability to go on to land to execute their function. They saw no reason to not have the same rights for waterway management employees of the State. ATTORNEY GENERAL BOTELHO said they concurred with recommendations well, like in consumer protection. MR. MARSH said his remarks were well taken in the enforcement of municipal zoning ordinances at the local level. Frequently private citizens will have the right to pursue what they think is a zoning violation in their neighborhood. CHAIRMAN HALFORD said he would like to come to some conclusions that produce a product. The expertise and interest are in the state departments, the native corporations, and the general population. The other thing to do would be to pay native corporations to mark the easements, if they are already delineated. He said there are two issues he is going to work on this session - RS 2477's and navigability and the pieces of public access around them that give us a chance to enjoy the resources of the State. He said he would like any suggestions possible. He thought there had to be some middle ground and that we couldn't afford to wait forever. CHAIRMAN HALFORD adjourned the meeting at 5:25 p.m.