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
              SJR 27-SUBMERGED LAND TITLE DISPUTES                                                                          
CHAIR SCOTT  OGAN called the Senate  Resources Standing Committee                                                             
meeting  to order  at 3:33  p.m. Present  were Senators  Wagoner,                                                               
Dyson, Seekins, Elton and Chair  Ogan. Senator Stevens arrived at                                                               
3:35. The  first order of  business to come before  the committee                                                               
was SJR 27.                                                                                                                     
MR.  BRIAN HOVE,  Staff to  Senator  Seekins, sponsor,  explained                                                               
that the  state has  been waiting for  the federal  government to                                                               
make  claims on  navigable  waterways within  the  state and  the                                                               
federal agency  has been "doing  a little foot dragging."  SJR 27                                                               
asks it to move the process along.                                                                                              
CHAIR OGAN asked him why the process needs to move faster.                                                                      
MR.  HOVE  replied that  the  state  needs  to  have use  of  the                                                               
waterways that were promised it at statehood.                                                                                   
CHAIR OGAN said  that Alaskans already use the  waterways - "Just                                                               
get a boat and go on 'em. Nobody is stopping us, right?"                                                                        
MR. HOVE clarified that he meant not only use, but manage.                                                                      
SENATOR SEEKINS stated that this  resolution is very important to                                                               
the future of  the State of Alaska. The State  of Alaska has over                                                               
20,000 rivers  and over one million  lakes - or 60  million acres                                                               
of  submerged   lands  (anything   from  the  high   water  mark,                                                               
underneath, to the high water mark on the other side).                                                                          
     Those submerged  lands by virtue  of the  Equal Footing                                                                    
     Doctrine, when  we became a state,  were transferred to                                                                    
     the  State of  Alaska -  those that  were not  reserved                                                                    
     prior to  statehood. The  federal government  held them                                                                    
     in trust  for the future  of the State of  Alaska. Once                                                                    
     we were  admitted, those  lands became  sovereign lands                                                                    
     of the State  of Alaska. Yet, we've never  been able to                                                                    
     get title - and even  though the Equal Footing Doctrine                                                                    
     said,  and  our  statehood agreement  with  the  United                                                                    
     States of  America says, that  the Submerged  Lands Act                                                                    
     of  1953 also  applies  to the  State  of Alaska.  That                                                                    
     Submerged Lands Act says that  title to those submerged                                                                    
     lands would  be transferred  to the  state or  that the                                                                    
     title belongs to the state.  We've not been given clear                                                                    
     title. There  is still a  clouded title by  the federal                                                                    
     government. It lays  choate. In other words,  if at any                                                                    
     time on  a river  that has not  been determined  or the                                                                    
     title  has   been  clearly  transferred,   the  federal                                                                    
     government can  come along  and say  we now  believe we                                                                    
     have a claim in the  ownership of these submerged lands                                                                    
     and then we  have to go to court under  the Quiet Title                                                                    
     Act  to sue  the  federal government  to  get title  to                                                                    
     something  that was  given to  us at  statehood. That's                                                                    
     wrong. And the federal  government has drug their feet.                                                                    
     They've said that Alaska is  a huge state and it's just                                                                    
     really tough to get this  done, but it's been 45 years,                                                                    
     Mr. Chairman....                                                                                                           
SENATOR SEEKINS said  that statements from a  Ninth Circuit Court                                                               
decision, written  by Judge  Kleinfeld, on  a quiet  title action                                                               
brought by the  Doyon Limited against the  federal government are                                                               
relevant  in  this  instance.  He   explained  that  the  federal                                                               
government  tried  to  include  the  submerged  lands  under  the                                                               
Kandik, Black and the Nations  Rivers as part of their allocation                                                               
to Doyon  Corporation under the  Alaska Native  Claims Settlement                                                               
Act (ANCSA). Doyon maintained that  couldn't be done, because the                                                               
submerged lands belonged  to the state. Title was  cleared on two                                                               
of the rivers, but since the  federal government had not yet made                                                               
a claim on the third river,  Judge Kleinfeld could not give quiet                                                               
title to the state. Senator Seekins quoted Judge Kleinfeld:                                                                     
     It is undisputed that when  the Union was created, each                                                                    
     of the 13  original states retained title  to the lands                                                                    
     covered by  navigable waters and  that under  the Equal                                                                    
     Footing   Doctrine,  each   new  state   succeeds  upon                                                                    
     statehood to  the federal interest in  those lands. The                                                                    
     Submerged Lands  Act gave Alaska  title to the  beds of                                                                    
     navigable waters  on January  3, 1959. Under  the Quiet                                                                    
     Title Act,  the federal  government takes  the position                                                                    
     that its  sovereign immunity shields it  from the state                                                                    
     government's claim  to clear  title to  those submerged                                                                    
     lands.  Mr.  Chairman,  until  the  federal  government                                                                    
     itself makes  a claim, because  Alaska is very  large -                                                                    
     much  of  it  is  wilderness and  there  are  numerable                                                                    
     waters  the federal  government  has not  had time  [45                                                                    
     years]  to determine  what claims  it  wishes to  make.                                                                    
     Therefore,  the state  government must  wait until  the                                                                    
     federal  government makes  a claim,  if  it ever  does,                                                                    
     before  settling  whether  it  has  title.  That's  not                                                                    
     acceptable, in my  opinion, for me as  a legislator and                                                                    
     a trustee  of our lands  that should be  commonly owned                                                                    
     by the  people of the  State of  Alaska - to  have that                                                                    
     cloud on  our title.  This resolution asks  the federal                                                                    
     government  to join  with the  state to  help us  clear                                                                    
     that title.                                                                                                                
CHAIR OGAN  said he met  with the  Secretary of Interior  and the                                                               
Senate  President last  summer  and was  very  encouraged by  the                                                               
progress  that had  been  made on  title  transfers of  submerged                                                               
lands. The  process is  arduous and  lengthy, even  if SJR  27 is                                                               
followed to the letter.                                                                                                         
SENATOR  ELTON asked,  in reference  to  the Doyon  case, if  the                                                               
federal government transferred title  of submerged lands to other                                                               
SENATOR SEEKINS replied that he wasn't aware of any.                                                                            
SENATOR ELTON  said he would  like any history the  sponsor might                                                               
have that  could explain why  Congress considered, but  failed to                                                               
pass,  the legislation  that provided  for  federal officials  to                                                               
participate in the Navigable Waters Commission.                                                                                 
MR. RON SOMERVILLE,  Resource Consultant to the  Senate and House                                                               
Majority, partially answered the  question saying the Legislature                                                               
was in  the process of  passing the 2002  State/Federal Navigable                                                               
Waters   Commission  when   he  and   Senator  Halford   went  to                                                               
Washington, D.C.,  to amend the Quiet  Title Act to speed  up the                                                               
process  and to  push  for the  Navigable  Waters Commission.  He                                                               
briefed the committee:                                                                                                          
     That's  when  she  raised  this   issue  of  using  the                                                                    
     recordable  disclaimers  of   interest  as  a  possible                                                                    
     solution to it. One of  the reasons, I think, that this                                                                    
     is  included  in  here,   even  though  the  recordable                                                                    
     disclaimer of  interest has been effective  in one case                                                                    
     - that's the Black River  - it hasn't been subjected to                                                                    
     the court  challenges that the  environmental community                                                                    
     has   been   threatening   over   use   of   recordable                                                                    
     disclaimers of  interest on RS 2477  transfers in Utah.                                                                    
     I mean, that's where it's  probably going to hit first.                                                                    
     And  they've  threatened  to  do   the  same  thing  on                                                                    
     recordable  disclaimers   of  interest   for  navigable                                                                    
     waters  in Alaska.  It's a  painful  slow process  that                                                                    
     kind  of gets  you looking  at what  other options  are                                                                    
     there. One  is amend  the Quiet  Title Act,  initiate a                                                                    
     Navigable  Waters  Commission  and  continue  with  the                                                                    
     recordable  disclaimers of  interest as  best you  can.                                                                    
     It's  utilizing all  three of  the things  available to                                                                    
     the state.                                                                                                                 
CHAIR OGAN supposed  that Congress could just  grant Alaska title                                                               
in one  fell swoop, if  it decided to  and asked how  likely that                                                               
was to happen.                                                                                                                  
MR. SOMERVILLE replied  that first Congress would  have to define                                                               
what is  really meant  by transfer  of title  and agree  with the                                                               
state  on  what  water  is   navigable  and  what  water  is  not                                                               
navigable. He elucidated further:                                                                                               
     It's  even further  complicated  by the  fact that  the                                                                    
     conveyances were made by the  Bureau of Land Management                                                                    
     (BLM)  prior  to  the Gulkana  case,  which  placed  an                                                                    
     additional clouded  title on conveyances to  the Native                                                                    
     corporations, because  a lot of state  navigable waters                                                                    
     were    transferred   as    part   of    their   upland                                                                    
     entitlement....  So, the  federal government,  in order                                                                    
     to  just transfer  something, the  state would  have to                                                                    
     clearly  describe  what  navigable  was  and  what  non                                                                    
     navigable was. We're  doing it on a case  by case basis                                                                    
     and at  the rate of 13  cases in 45 years,  I calculate                                                                    
     it will take us 76,153 years to get our entitlement.                                                                       
CHAIR OGAN  asked if a certain  size boat going down  a river was                                                               
criteria for navigable water.                                                                                                   
MR.  SOMERVILLE  responded  that  the Gulkana  case  changed  the                                                               
criteria for  navigability as did  the Black, Kandik  and Nations                                                               
Rivers cases.  "Those cases  set the standard  by which  BLM must                                                               
abide in any navigability determinations  and that has helped the                                                               
state in getting reasonable determination from BLM."                                                                            
He  said  that  a river  had  to  be  navigable  at the  time  of                                                               
statehood  to qualify.  People  who  were alive  at  the time  of                                                               
statehood and can  describe the commercial uses of  that river to                                                               
make  it navigable  are going  to be  passing away  soon and  the                                                               
state could lose its entitlement.                                                                                               
SENATOR SEEKINS  said it's easy  to see  a river is  navigable by                                                               
floating a  boat on it, but  proving that someone floated  a boat                                                               
on it at  statehood is the threshold that  Judge Kleinfeld looked                                                               
at; and whether  there was trade or fishing  or transportation at                                                               
the time of statehood.                                                                                                          
The  federal  government  has  claimed an  interest  in  some  of                                                               
Alaska's rivers  also, to  facilitate subsistence  management. He                                                               
hinted that there is some  discussion about whether that could be                                                               
a  cause  to bring  an  action  under  the  Quiet Title  Act.  He                                                               
digressed a little  saying the Submerged Land  Act indicates that                                                               
state ownership  includes everything in and  underneath the water                                                               
column and is subject to state  management. "So, there's a lot at                                                               
stake  in the  determination of  whether or  not those  submerged                                                               
lands belong to the State of Alaska."                                                                                           
CHAIR OGAN  said that  Joann Grace  is probably  one of  the most                                                               
knowledgeable people  in the state  on submerged lands  and state                                                               
sovereignty and asked if she would answer questions.                                                                            
SENATOR  ELTON  asked how  the  concept  of state  management  of                                                               
everything above  and underneath submerged lands  [and subject to                                                               
state management] played into the debate on subsistence.                                                                        
MS. JOANN GRACE, Department of Law, replied:                                                                                    
     If  the United  States owns  the submerged  lands, then                                                                    
     the river or  lake is public lands under  ANILCA and is                                                                    
     subject to  a subsistence  priority. If the  state owns                                                                    
     the  submerged  lands,  then the  subsistence  priority                                                                    
     depends on whether the United  State has an interest in                                                                    
     the water column,  not the land, but the  water. If the                                                                    
     court found  that the United States  had reserved water                                                                    
     rights  in the  water,  then the  water becomes  public                                                                    
     land  subject  to  the subsistence  priority.  So,  the                                                                    
     subsistence  priority  doesn't particularly  depend  on                                                                    
     [indisc.]  title  to  the  submerged  lands.  In  other                                                                    
     words, any  navigable water that flows  through federal                                                                    
     lands that  is reserved,  like any  conservation system                                                                    
     unit, is subject to a  federal reserve water right and,                                                                    
     therefore,  is  subject  to  the  subsistence  priority                                                                    
     regardless of who owns the submerged lands.                                                                                
CHAIR OGAN asked, for the record,  if a molecule of water crosses                                                               
federal  land and  the quiet  title [for  that land]  hasn't been                                                               
transferred  to the  state, does  the federal  government reserve                                                               
the right to  manage the fisheries in that water  column based on                                                               
the Reserved Water Rights Doctrine.                                                                                             
MS. GRACE replied that it does:                                                                                                 
     As long  as the United  States has  a water right  in a                                                                    
     water  column,  then it's  public  land  as defined  in                                                                    
     ANILCA and,  therefore, a subsistence  priority applies                                                                    
     to it. That is very well-settled law at this point.                                                                        
CHAIR  OGAN noted  that the  reason for  current land  management                                                               
policy is  because a  few years  ago, the  last governor  did not                                                               
appeal  a decision  on  the  State of  Alaska's  right to  manage                                                               
fisheries to the Supreme Court.                                                                                                 
MS. GRACE  replied that is correct;  the governor did not  file a                                                               
serve petition  and a final  judgment from the Ninth  Circuit and                                                               
that is what is being addressed.                                                                                                
CHAIR  OGAN asked  if another  lawsuit would  have to  be brought                                                               
forward if the state chose to litigate the question again.                                                                      
MS. GRACE replied that is correct.                                                                                              
SENATOR SEEKINS  asked if  ANILCA applies to  lands in  which the                                                               
United States has just an interest or to which it holds title.                                                                  
MS.  GRACE  replied  that Title  VIII,  subsistence,  applies  to                                                               
public  lands, which  are  defined as  land,  water and  interest                                                               
therein [indisc.]. So the argument in  the Katie John case was if                                                               
the  United States  holds title  to any  part of  the water  in a                                                               
river  or  lake,  that  river  or  lake  is  public  land  and  a                                                               
subsistence priority applies to it. They have prevailed on that.                                                                
CHAIR  OGAN asked  if managing  fish and  game was  a fundamental                                                               
element of state sovereignty.                                                                                                   
MS. GRACE replied:                                                                                                              
     I  don't think  that the  Supreme Court  has ever  said                                                                    
     that   it's   a    fundamental   attribute   of   state                                                                    
     sovereignty.  It  certainly  is  something  that  every                                                                    
     state does - mostly all  the lands in the boundaries of                                                                    
     the state.                                                                                                                 
CHAIR OGAN asked if police  powers weren't a fundamental issue of                                                               
state sovereignty.                                                                                                              
MS. GRACE replied that traditional  state police power is not the                                                               
same as an essential attribute.                                                                                                 
CHAIR OGAN asked  if sovereigns are the only ones  to have police                                                               
MS. GRACE replied  that the state has police  powers and Congress                                                               
can preempt those, because it represents a higher sovereign.                                                                    
CHAIR OGAN noted there were no other questions for Ms. Grace.                                                                   
SENATOR  ELTON asked  if the  chair  was planning  on moving  all                                                               
three pieces  of legislation since  they were all related  to the                                                               
same subject.                                                                                                                   
SENATOR SEEKINS said  that he intended for this bill  to stand on                                                               
its own merit.                                                                                                                  
SENATOR ELTON said  after debating the other bills,  there may be                                                               
a need to add a whereas or resolve clause to SJR 27.                                                                            
SENATOR  SEEKINS  moved  to  pass  SJR  27  from  committee  with                                                               
individual recommendations  with the attached fiscal  note. There                                                               
were no objections and it was so ordered.                                                                                       

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