Legislature(2003 - 2004)
03/01/2004 09:05 AM Senate FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE BILL NO. 305 "An Act relating to state ownership of submerged land underlying water that was navigable at the time Alaska achieved statehood." This was the first hearing for this bill in the Senate Finance Committee. JOE BALASH, Staff to Senator Gene Therriault, the bill's sponsor, read the Sponsor Statement as follows. With the exception of withdrawn federal lands, at statehood in 1959, Alaska received title under the equal footing doctrine to all submerged lands under state navigable waters and marine waters out to three miles. Unfortunately, the federal government has been slow to concede any navigability determinations. Since Alaska entered the Union, the federal courts have determined fewer than 20 rivers navigable. Unless the state is pro-active in asserting its claims, it stands to lose up to 60 million acres of its statehood entitlement. In some cases, the federal government has used every possible legal tactic under the Federal Quiet Title Act to impede the state's assertion of ownership. The Black, Kandig and Nation Rivers in northeast Alaska are examples. These three Rivers clearly meet the criteria established by the federal courts for determining navigability in Alaska Although no one contested the state's claim that these streams met the federal criteria, this case took nine years and millions of state and federal dollars to litigate. Eventually the state won two of the three cases. The third was resolved by a Federal Recordable Disclaimer of Interest in 2003. In addition, prior to 1989 the federal government applied incorrect standards to determine navigability and may have mistakenly conveyed state-owned land to Native corporations, clouding the title to hundreds of thousands, if not millions, of acres. This is a critical topic as Congress considers a deadline for completing the land selection and conveyance processes. Contributing to the problem is the lack of a reasonable and efficient way for the state to secure title to its submerged lands. SB 305 takes three steps to begin the process of identifying state claims. First, SB 305 provides to all parties that the state is laying claim to all submerged lands, except those withdrawn at the time of statehood, that meet the standards and criteria established in the Submerged Lands Act and in various federal court decisions. Second, it provides authority for state agencies to identify, in accordance with the appropriate federal and state laws, which waterbodies the state claims as navigable and non- navigable. This will help the state clarify criteria for identifying navigable waters, address conflicts involving clouded titles due to inaccurate conveyances from the Bureau of Land Management, and more clearly delineate its title claims. Third, the bill directs the Department of Natural Resources to give notice to all private property owners, including native corporations created under the Alaska Native Claim Settlement Act, that may have received title to lands that could have erroneously included state submerged lands in their conveyance. This is critical to resolve future problems regarding mineral development, gravel extraction, access and other related land uses. This legislation is only one step for the state to eventually resolve the title disputes over its submerged lands, and deals only with the issue of state title to submerged lands. It does not address conflicts over federal fish and wildlife management in state navigable waters created by federal reserved water rights claims. Mr. Balash concluded that, "this is primarily an issue where federal agencies have used incorrect definitions and means of conveying title to primarily the Native corporations." He continued that, "this is just an assertion of the State's claims and an effort" to put on record that the State does not "concede any of our title to anybody." Co-Chair Green questioned whether conceding title, which has been incorrectly conveyed, to one group might set a precedent whereby the State would be required to concede title to other groups. Mr. Balash responded that "the real question" is establishing that the water was recognized as being "navigable at the time of Statehood." He shared that "the knowledge, the files, the criteria upon which that is all based in order to stake that claim is getting old." He exampled that "the people who know about particular bodies of water are soon to be passing," and in that case, the State "would lose the ability to regain that knowledge and reclaim that title in a Court or a federal agency." He furthered that were the State to not pursue the issue now while the information is still available, the Court might decide that since the State "didn't care about it for the last 45 years, why do you care about it now." Senator Olson asked regarding the State's assertion "that incorrect standards were being used" by the federal Bureau of Land Management (BLM), whether there is a definition of what constitutes navigable waters or whether the contrary opinion is the result of a difference of opinions as to what navigable waters are. Mr. Balash reiterated the State's position that the BLM used incorrect definitions. He informed that "the Courts have delineated what a navigable waterbody is." Continuing, he pointed out that some conveyances were granted "prior to 1989, before some of that case law" was determined, and, he voiced that this "would indicate" that some of the State's title have been incorrectly conveyed to Native corporations. Mr. Balash stated that one component of the Alaska Native Claims Settlement Act was that each of the Native corporations was awarded a certain acreage allotment, and he continued, any of the submerged land acreage that was incorrectly conveyed "counted against that total acreage." He noted that were the State to reclaim title to those submerged lands, that acreage would be removed from the allotment, and the Native corporations would be entitled "to make additional selections in the uplands or in other parts of the State." Senator Olson surmised therefore "that the Native corporations are not going to be happy with this legislation." Mr. Balash responded that this might not be the case as a Native corporation might be able to select more acreage. However, he noted that conflict might arise were a Native corporation not desire to relinquish the land. He noted that the Sealaska Native Corporation has been reviewing this legislation to determine any negative consequences; however, he noted that no information has, of yet, been provided. Senator Hoffman commented on the State's assertion that the federal government has been "dragging its feet in the conveying of the State's submerged lands" and that, as a result, the State has had to resort to taking expensive legal action. He asked whether the State would be required to continue the litigation process were the federal government to continue its status quo approach to the issue. Mr. Balash replied that there are numerous courses of action. He noted that the federal Department of the Interior and the BLM are working with the State to review cases for the Federal Recordable Disclaimer of Interest process. He stressed that because litigation is difficult, expensive, and time consuming, other legislation would be forthcoming to establish a State/federal Navigable Waters Commission, which would address the issue "in an expedited manner." He shared that there are options that the State and federal government could use to try and speed up the process; however, he reiterated that this legislation is the first step in clarifying the State's position to future federal Courts and agencies in regards to the State's claim to submerged lands. Senator Hoffman noted that the year 2009 has been specified as the target date to identify all State submerged lands. Mr. Balash responded that the goal is to identify as much of the land as possible by that date. He noted, however that the submerged land issue is not being addressed on the federal Congressional level at this time. However, he noted that the Navigational Waters Commission legislation has been previously addressed at the Congressional level, and he continued, the hope is that that Commission would be established "sooner rather than later." DICK MYLIUS, Deputy Director, Division of Mining, Land and Water, Department of Natural Resources testified via teleconference from an offnet site and noted that he is available to answer questions. JOANNE GRACE, Senior Assistant Attorney General, Opinions, Appeals, & Ethics Section, Office of the Attorney General, Department of Law, testified via teleconference and clarified, in response to Senator Hoffman's questions, that while the State was granted the title to its submerged lands at Statehood, the issue "is to determine what belongs to the State and what doesn't." She noted that, before 1989 when the BLM was applying incorrect standards, it might have conveyed some submerged lands to Native Corporations "that the United States did not actually have title to convey." She continued that BLM's position was that the lands being conveyed to the Native corporations were designated as non-navigable, and that the Native corporations would be charged acreage for that land. She clarified, however, that were these lands determined to be navigable, the Native corporations' concern is that "they were charged acreage for land that they did not actually receive, and if the conveyances are all completed by the year 2009, then the Native corporations would lose the opportunity to go back to BLM and say you purported to convey this submerged land to us when you were using incorrect standards, and we would like you to go back and reconsider using the correct standards so that we can be credited with the acreage that we should have gotten for those submerged lands." Senator Hoffman voiced that numerous Native corporations received "over-selections" of lands, and therefore, he continued, the assertion that they would be losing land "may not be exactly true, as it depends on how large their over-selections are." He shared that the corporation he is a member of has an over-selection of approximately ten percent. Therefore, he opined, when the submerged land identification is completed in 2009, "many of the Corporations would still get their land." Co-Chair Green asked whether a wrongful conveyance would place "a cloud on the title." Senator Hoffman affirmed that while there would be a cloud on the title and the land would be withdrawn from the corporation, the over-selection would compensate for the removed land. RON SOMERVILLE, Resource Consultant to the House of Representatives and Senate Majority, testified via teleconference from an offnet site and noted that during the drafting of SB 305 and SB 295, one of the issues of discussion was that "only the corporations could request the clarification from BLM" regarding the navigability issues. He asserted that the State could not make this request. Therefore, he continued, the encouragement is to the Native corporations to get that process going "if the villages want to do that." TINA CUNNING, State-Federal Issues Program Manager, Office of the Commissioner, and Co-Chair, State Navigable Waters Team, Department of Fish and Game, testified via teleconference from an offnet site to note that there are some corporations that "are closer to" their entitlement allotment than others. She shared that one of these corporations had requested BLM "to review some of the waters" conveyed to it, and the determination was that the land "was incorrectly included in the conveyances." She stated, therefore, that some corporations would benefit from the inclusion of the upland acreage language. Co-Chair Green asked whether the time frame of 180 days, as identified in Sec. 3, line 7, that reads as follows, would be sufficient. NOTICE TO NATIVE CORPORATIONS. Within 180 days after the effective date of this Act, the commissioner of natural resources shall send a written notice of the state's claim of ownership of submerged land described in AS 38.04.062(a), as enacted in sec. 2 of this Act, to each regional corporation established under 43 U.S.C 1607 (sec. 8, Alaska Native Claims Settlement Act). The purpose of the notice is to assert the state's ownership interest in submerged land that may have been erroneously included in a conveyance or patent to a regional or village corporation from the federal Bureau of Land Management. Mr. Balash stated that, "this is a generic notification to be sent out to potential landowners who might have been wrongly conveyed lands." He stated that the "language was developed in consultation with the State agencies, and therefore, he stated, any concern about this timeframe would have, at that time, been addressed. Co-Chair Green asked for confirmation that the notice would be of generic nature as opposed to being required to delineate each parcel of land. Mr. Balash confirmed that is correct. He stated that the 2009 date is the date targeted by Alaska's Congressional delegation and the Office of the Governor; however, he noted that the Congressional legislation regarding this issue has not yet been adopted. Senator Dyson moved to report the bill from Committee with individual recommendations and accompanying fiscal note. There being no objection, SB 305 was REPORTED from Committee with fiscal note #1 in the amount of $186,500 from the Department of Natural Resources.