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
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 entities. 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 powers. 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.