Legislature(2003 - 2004)
02/18/2004 03:33 PM Senate RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 2003. 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 First, SB 305 provides notice to all parties that the state is laying claims to all submerged lands except those withdrawn at the time of statehood that meet the standards and criteria established in the Submerged Lands Act and in various federal court decisions. 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 that. 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 instead. 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 does. 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 court. 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 navigable. 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 again. 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 committee. CHAIR OGAN noted that the whole committee was present except Senator Lincoln.