Legislature(2003 - 2004)

02/18/2004 03:33 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         SB 305-ASSERTING STATE TITLE TO SUBMERGED LAND                                                                     
CHAIR SCOTT OGAN announced SB 305 to be up for consideration.                                                                   
SENATOR GENE THERRIAULT,  sponsor, said one of  the issues behind                                                               
SB  305 is  that people  who  remember some  historic trails  and                                                               
navigable waters  and can help  the state assert title  will soon                                                               
be gone. He explained:                                                                                                          
     With the  withdrawal of federal  lands at  statehood in                                                                    
     1959,  Alaska  received  title to  -  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 in                                                                    
     conceding this  navigability. Since Alaska  entered the                                                                    
     Union, the  federal courts  have determined  fewer than                                                                    
     20 rivers  to be  navigable. Unless  the state  is pro-                                                                    
     active in  asserting its claims,  it stands to  lose up                                                                    
     to  60  million acres  of  land  that  were due  to  it                                                                    
     because  of  becoming  a  state.  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,  Kandik and                                                                    
     Nations 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 has  contested  the  state's                                                                    
     claim that  these streams  meet federal  criteria, this                                                                    
     case took nine years and  millions of state and federal                                                                    
     dollars to  litigate. Eventually  the state won  two of                                                                    
     the three  claims and the  third was  recently resolved                                                                    
     by  the federal  recordable disclaimer  of interest  in                                                                    
     In  addition,  prior  to 1989  the  federal  government                                                                    
     applied incorrect  standards to  determine navigability                                                                    
     and may  have mistakenly conveyed state-owned  lands to                                                                    
     Native corporations, clouding the  title to hundreds of                                                                    
     thousands,  if  not  millions,  of  acres.  This  is  a                                                                    
     critical  topic  as  Congress considers  deadlines  for                                                                    
     completing   the   land    selection   and   conveyance                                                                    
     processes.  Of   course,  those  deadlines   are  being                                                                    
     suggested by our own congressional delegation.                                                                             
     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  these  state                                                                    
     claims. First,  SB 305 provides  notice to  all parties                                                                    
     that the state is laying  claims 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                                                                    
     So, we're  just making a blanket  statement that unless                                                                    
     it was reserved at the  time of statehood, the state is                                                                    
     laying claim at  this time to all  submerged lands that                                                                    
     lie under navigable water ways.                                                                                            
     Second, it provides authority  for the state's agencies                                                                    
     to identify in accordance  with the appropriate federal                                                                    
     and state laws  which water bodies the  state claims is                                                                    
     navigable and  non navigable. This will  help the state                                                                    
     clarify  criteria  for  identifying  navigable  waters,                                                                    
     address conflicts  involving clouded titles due  to the                                                                    
     inaccurate  conveyances  by  BLM  management  and  more                                                                    
     clearly  delineate its  title  claims.  There the  bill                                                                    
     directs the  Department of  Natural Resources  (DNR) to                                                                    
     give notice  to all private property  owners, including                                                                    
     Native  corporations created  under  the Alaska  Native                                                                    
     Claims 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.                                                                                                         
SENATOR THERRIAULT noted that if  submerged land comes out of the                                                               
Native corporation  entitlement, they are  due more land.  So, he                                                               
felt it  behooved them  to work  with the  state to  resolve this                                                               
problem. He concluded:                                                                                                          
     This  legislation  is only  a  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 the  Federal Reserve                                                                    
     Water Rights criteria.                                                                                                     
SENATOR  ELTON  said  if  this   bill  passes,  he  assumes  that                                                               
different  entities  could  challenge  it. He  asked  if  Senator                                                               
Therriault  could  quantify  how   many  conveyances  to  village                                                               
corporations have occurred  that would need to  be reviewed under                                                               
this bill.                                                                                                                      
SENATOR THERRIAULT  replied that  he didn't  know and  that folks                                                               
from the Department  of Natural Resources (DNR)  could testify on                                                               
SENATOR ELTON asked  if it would be reasonable to  assume if land                                                               
had been  conveyed to a  village or a regional  corporation, that                                                               
it was  because they wanted  those submerged lands and  that they                                                               
might want to protect the ownership right they thought they had.                                                                
SENATOR  THERRIAULT said  that could  be the  case for  some, but                                                               
other corporations may be interested  in not having the submerged                                                               
land  count against  their acreage  and claim  additional uplands                                                               
SENATOR RALPH  SEEKINS asked if lands  were conveyed erroneously,                                                               
wouldn't that be  a wrongful conveyance and need  to be corrected                                                               
sooner or later.                                                                                                                
SENATOR  THERRIAULT replied  certainly, the  sooner it's  cleared                                                               
up,  the  better.  The  trigger   would  be  a  determination  of                                                               
navigability  on that  particular stretch  of water.  The Gulkana                                                               
case  has established  clear criteria  from which  the state  can                                                               
make assertions.                                                                                                                
SENATOR SEEKIN  asked if the  Native corporations should  have an                                                               
interest in clearing their land titles.                                                                                         
SENATOR  THERRIAULT responded  that he  thought the  corporations                                                               
would want  to know  what land  was theirs,  just like  the state                                                               
CHAIR OGAN asked what the following language on page 3, line 13,                                                                
meant and how he envisioned it working:                                                                                         
     (6) in  1989, the  United States  Court of  Appeals for                                                                    
     the  Ninth  Circuit  ruled  that  the  Bureau  of  Land                                                                    
     Management   had   applied   incorrect   standards   in                                                                    
     determining  navigability  for  its  land  conveyances;                                                                    
     however,  the   Bureau  of  Land  Management   has  not                                                                    
     reconsidered most of its pre-1989 determinations;                                                                          
SENATOR  THERRIAULT replied  that  Dick Mylius,  DNR, could  talk                                                               
about the technical details, but  the determination would be made                                                               
under federal  law on  court criteria  that had  been established                                                               
through litigation. He  felt it is more important  that the state                                                               
move forward on its assertions than  to make a list of rivers for                                                               
the public, at this point.                                                                                                      
MR. DICK  MYLIUS, Deputy Director,  Division of Mining,  Land and                                                               
Water, DNR, said  the department is being asked  to inventory all                                                               
past  determinations that  had been  made, most  significantly by                                                               
the BLM. It  envisioned inventorying those lands,  but not making                                                               
a decision on every stream.                                                                                                     
CHAIR OGAN  asked if  the department would  be looking  mostly at                                                               
BLM determinations.                                                                                                             
MR. MYLIUS  replied yes because  the BLM  has done most  of them,                                                               
but the court  had done a few,  also. The DNR has  made about 100                                                               
navigability determinations  (although the bulk of  them may have                                                               
come through BLM conveyances).                                                                                                  
CHAIR OGAN  asked how the department  had determined navigability                                                               
- by floating a boat on it?                                                                                                     
MR. MYLIUS  replied that is  generally correct. The  Gulkana case                                                               
states a raft that can carry 1,000 pounds is navigable criteria.                                                                
SENATOR  SEEKINS  asked if  there  was  any tension  between  the                                                               
entities that had determined navigable waters.                                                                                  
MR. MYLIUS replied the department  would not limit itself to only                                                               
BLM conveyances.                                                                                                                
SENATOR  SEEKINS asked  if the  state is  asserting title  on the                                                               
lands regardless of who determined it.                                                                                          
MR. MYLIUS replied yes, but  if the assertion was challenged, the                                                               
courts would resolve the dispute.                                                                                               
SENATOR ELTON  asked if  a dispute arises  between the  state and                                                               
someone  who  thought they  had  been  conveyed submerged  lands,                                                               
would that dispute  go to state court or federal  court or either                                                               
MS. GRACE jumped  in and replied that it would  depend on whether                                                               
the United States was a party.  A dispute between a private party                                                               
and the state would be resolved in state court.                                                                                 
SENATOR WAGONER said Mt. Redoubt  erupted years ago and channeled                                                               
the Drift  River into Montana  Bill Creek. Since then,  the Drift                                                               
River had  switched back  to its  original channel.  Montana Bill                                                               
Creek probably  would not  have been  classified as  navigable at                                                               
the  time,  but  the  Drift  River  would  have.  He  asked  what                                                               
classification it would have.                                                                                                   
TAPE 04-10, SIDE B                                                                                                            
MR. MYLIUS  replied that is  very difficult to determine.  If the                                                               
river  was  navigable  at  statehood and  changed  because  of  a                                                               
natural occurrence  and the change  could be seen,  it's possible                                                               
that state ownership would still be in the old river corridor.                                                                  
CHAIR  OGAN  asked  him  if  he has  an  inventory  of  potential                                                               
navigable waters.                                                                                                               
MR.   MYLIUS  replied   that  the   department  doesn't   have  a                                                               
comprehensive  list of  all  state  rivers, but  it  does have  a                                                               
comprehensive  list   of  over   200  rivers  that   are  clearly                                                               
CHAIR OGAN asked  if this situation was similar to  the one a few                                                               
years ago when the BLM  extensively identified and mapped rights-                                                               
of-way for RS2477s.                                                                                                             
MR.  MYLIUS replied  that  the  RS2477 project  tried  to dig  up                                                               
historical  information  that  might  not  be  available  in  the                                                               
future.  This is  more like  a  project digging  through BLM  and                                                               
state files to figure out what's there.                                                                                         
CHAIR OGAN said  testimony has indicated that it  would take many                                                               
lifetimes  to prove  up on  the  navigable water  claims and  yet                                                               
people who have  the histories are passing away. He  asked if Mr.                                                               
Mylius thought the  state was losing something by  not doing that                                                               
historical research now.                                                                                                        
MR.  MYLIUS replied  that  the BLM  did  historical research  and                                                               
compiled an extensive navigability  portfolio and the state wants                                                               
to get a  copy of it. Yes, some information  will be lost because                                                               
people  with historical  knowledge are  dying. He  clarified that                                                               
the  standard the  state  has  to prove  is  that  the river  was                                                               
acceptable for use  at statehood, not that it  was actually used,                                                               
a somewhat lower standard than for RS2477s.                                                                                     
SENATOR SEEKINS asked  if the intent of this effort  is to assert                                                               
title the state was granted  under the Equal Footing Doctrine and                                                               
the Submerged Lands Act.                                                                                                        
MR. JOE  BALASH, Staff  to Senator  Therriault, said  the Senator                                                               
had  to  step out  and  answered  that  is  correct. One  of  the                                                               
concerns  is that  another  45 years  could  pass before  someone                                                               
tries to get title for the  state. The court, at that time, could                                                               
look back and say the state never really tried.                                                                                 
SENATOR SEEKINS  read the pertinent  part of the  Submerged Lands                                                               
Act into the record:                                                                                                            
     43  U.S.C.  13.11  Rights  of  the  States  [under  the                                                                    
     Submerged Lands Act of 1953]                                                                                               
     It  is hereby  determined  and declared  to  be in  the                                                                    
     public interest that (1) title  to and ownership of the                                                                    
     lands  beneath navigable  waters within  the boundaries                                                                    
     of  the respective  states, and  the natural  resources                                                                    
     within such  lands and  waters, and  (2) the  right and                                                                    
     power  to manage,  administer, lease,  develop and  use                                                                    
     the said lands and  natural resources all in accordance                                                                    
     with  applicable  state law  be,  and  they are  hereby                                                                    
     subject   to   the    provisions   hereof   recognized,                                                                    
     confirmed, established  and vested  in and  assigned to                                                                    
     the respective states....                                                                                                  
     (b)(1)   The   United   States  hereby   releases   and                                                                    
     relinquishes   unto  the   said  states   [and  persons                                                                    
     aforesaid],  except as  otherwise reserved  herein, all                                                                    
     right,  title, and  interest of  the United  States, if                                                                    
     any it  has, in  and to  all said  lands, improvements,                                                                    
     and natural resources;....                                                                                                 
SENATOR SEEKINS said that is the  issue the state is battling. We                                                               
have a  quitclaim in the  1953 Submerged  Lands Act, but  yet the                                                               
quitclaim has no validity because title hasn't been transferred.                                                                
SENATOR  ELTON asked  if  a trapper  running his  dog  team up  a                                                               
stream in  the wintertime  makes it a  navigable waterway  - even                                                               
though the water isn't flowing.                                                                                                 
MR.  MYLIUS replied  no and  that the  traditional definition  of                                                               
navigable refers to, basically, flowing water.                                                                                  
CHAIR OGAN announced that SB 305 would be set aside.                                                                            
         SB 305-ASSERTING STATE TITLE TO SUBMERGED LAND                                                                     
CHAIR  SCOTT OGAN  announced SB  305 to  be up  for consideration                                                               
SENATOR THOMAS WAGONER  moved to pass SB 305  from committee with                                                               
individual recommendations and attached fiscal note.                                                                            
SENATOR ELTON objected to make a statement.                                                                                     
     I don't have a good  enough grasp, yet, to know whether                                                                    
     I should object or not. So,  I'm going to sign 'no rec'                                                                    
     on this, but  clearly this is a  rather broad assertion                                                                    
     and it seems to me that  if, in fact, we do, it's going                                                                    
     to be more  than just a catalogue exercise  on the part                                                                    
     of DNR  - that, in fact,  we may be setting  in motion.                                                                    
     It's  like tugging  at the  shorts  on one  end of  the                                                                    
     clothesline  and not  watching  the pants  jump at  the                                                                    
     other  end.  I  would   anticipate  it's  the  kind  of                                                                    
     sweeping assertion  of rights  that could lead  us into                                                                    
     extended  litigation  with  entities who  already  have                                                                    
     conveyed   land.  I   don't  understand   all  of   the                                                                    
     implications of  that. I'm  not going  to vote  no; I'm                                                                    
     going to withdraw  my objection. Let's just  say I have                                                                    
     a lot of questions that surround this, yet.                                                                                
CHAIR  OGAN  said  he  felt very  strongly  about  expanding  the                                                               
state's  efforts  with resource  development  and  this issue  is                                                               
probably one of  the most important things  the Legislature could                                                               
do for  the future of  the state.  He noted that  Senator Elton's                                                               
objection  had  been removed  and  that  SB  305 had  moved  from                                                               
CHAIR  OGAN noted  that the  whole committee  was present  except                                                               
Senator Lincoln.                                                                                                                

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