Pearch, Joint Federal and State Navigable Waters Commission, S. 2587

Statement of Drue Pearce

Senior Advisor to the Secretary of the Interior for Alaska Affairs

before the Committee on Energy and Natural Resources

United States Senate

on S. 2587, a bill to

Establish a Joint Federal and State Navigable

Waters Commission for Alaska

July 30, 2002

Mr. Chairman, I appreciate the opportunity to appear before you to present the views of the Department of the Interior on S. 2587, a bill to establish a Joint Federal and State Navigable Waters Commission.

We believe the purposes of the bill are laudable and we support legislation to create a commission. We believe a bill would provide a desirable focus on the seemingly endless process of determining title to unreserved beds of navigable waters in the State of Alaska. While we support the purposes of the bill and the focus it will provide on this important issue, we must recognize there are limits on what a commission may be expected to accomplish. Also, we would like to work with the Committee to refine language as to duties of the Commission and purposes of the reports to enhance the usefulness of the work of the Commission. In addition, we understand that the Department of Justice is still reviewing this bill and may have additional concerns.

We share the view of the State of Alaska that there will be many cases where the navigability of particular waterways is not likely to be in dispute. The commission process is an excellent way to identify such waterways without protracted and costly litigation. While some disagreement between the two governments is inevitable, the ability to identify those waterways not in dispute properly leaves both governments in a position to more efficiently utilize their resources to address those waterways for which the resolution is more difficult.

Background

Under the Equal Footing Doctrine and the Submerged Lands Act of 1953, "title to and ownership of the lands beneath navigable waters" vested in the states at the time of statehood. Section 6(m) of the Alaska Statehood Act of 1958 applied the Submerged Lands Act of 1953 to Alaska. Thus, title to unreserved beds of navigable waters passed to the state on January 3, 1959.

Thousands of rivers and streams and millions of lakes are located on Federal lands in Alaska. This question of who owns the unreserved beds, and the natural resources in the beds, of these rivers, streams, and lakes has not been answered. The Interior Department's policy has been to make administrative navigability determinations to permit an agency to perform its administrative functions under the public land laws. The BLM, for example, makes administrative navigability determinations in support of the lands transfer program authorized by the Alaska Statehood Act, the Alaska Native Claims Settlement Act, and the Native Allotment Act. However, the Department's Solicitor noted in 1976, "the determinations by BLM will not decide legal disputes with respect to title, determine or adjudicate title...."

The State of Alaska has long sought to establish its right, title, and interest in the beds of navigable waters. Ordinarily, this is accomplished through real property quiet title actions in federal court. In August 1992 the State notified the Secretary of the Interior, among others, that it intended to initiate quiet title proceedings on nearly two hundred rivers, streams, and lakes. Nearly a year later, in November 1993, the State took its first step in this effort, filing a suit in Federal Court in Anchorage to quiet title to the beds of the Nation, Kandik, and Black Rivers (all located in the Upper Yukon area).

In January 2000, the Ninth Circuit Court issued an opinion in this case which frustrates the State's efforts. In a white paper entitled "Conflicts Concerning Title to Submerged Lands in Alaska" (March 4, 2002), State officials presented the predicament to the Alaska Legislature. The paper states that the United States has adopted a very narrow view of the term "interest" due to the Ninth Circuit's opinion that the federal court has no jurisdiction to hear quiet title actions against it unless the federal government actively and expressly asserts an interest in the lands. Because the Federal government rarely expresses such interest, the State rarely has a viable cause of action to quiet title to submerged lands.

In response, the State of Alaska legislature passed a bill, SB 219, signed into law by the Governor on June 20, 2002 to create a navigable waters commission. The effective date is September18, 2002. According to testimony before the legislative committees, the navigable waters commission provision was patterned after Section 17 of the Alaska Native Claims Settlement Act which created the Joint Federal-State Land Use Planning Commission for Alaska. The bill is very similar, though not identical, to the current Senate bill, and anticipates a possible Federal partner in the Commission through Federal legislation.

Purposes and Duties

The bill enumerates three purposes, to

(1) expedite the process of quieting legitimate title to the submerged lands in the State of Alaska,

(2) facilitate determinations for purposes of the Submerged Lands Act (43 U.S.C. 1301 et seq.), which bodies of water in Alaska are navigable waters, and

(3) recommend to the State of Alaska and the Federal Government ways to improve the process of making water use and navigability decisions and to fairly and expeditiously quiet title to the State's submerged lands.

To further these purposes, the bill establishes duties of the Commission to,

(1) make recommendations to the Secretary of the Interior and the State of Alaska regarding determinations of bodies of water in the State that are navigable waters for purposes of the Submerged Lands Act,

(2) establish a process for employing established standards to facilitate making such recommendations and determinations,

(3) develop procedures for involving private landowners, including Alaska Native corporations and the general public, in that process,

(4) undertake a process to identify navigable waters in Alaska pursuant to established standards and criteria, and

(5) make recommendations to improve coordination and consultation between the government of the State of Alaska and the Federal Government regarding navigability determinations and decisions concerning title to submerged lands.

The Commission's duties are reasonable. While advisory only, they can be helpful, but we believe they may be further detailed to assist and focus their efforts.

The efforts of the Commission could help the BLM in resolving numerous jurisdictional questions which they have confronted over the past fifty years, involving the issuance of mining claims, rights-of-way permits, land use permits, and oil and gas lease sales which involved submerged lands. For over a decade the BLM and the State have disputed, for example, which entity has jurisdiction over certain sections of the Fortymile River. Mining-related activities usually precipitate these disputes. The proposed Commission's work could also help resolve questions of ownership over islands that form in a river or lake after the date of statehood.

However, we should point out that "established standards and criteria" referred to in item 4 may be somewhat elusive. The Federal courts set the legal standards for title navigability determinations. As the courts have repeatedly said, each water body must be considered on its own merits. Also, the Commission's recommendations are not definitive, but must be acted upon by the Federal and State governments, and where there is disagreement between the Federal and State governments, the Commission would need to recognize that only the courts will resolve the legal differences.

We note that the term of 2 years may be insufficient to effect the purposes of the Commission. The Committee may want to consider a longer term or including in a report from the Commission a provision for addressing the need for renewal.

The membership in the Commission includes 7 members each representing the Federal and State governments. We believe the Committee should consider providing memberships for additional interested Federal agencies, including relevant land management agencies, and possibly the Department of Justice for their expertise in the area.

We note that there are ironies in navigability determinations, in that while they may result in State ownership, they also trigger legal responsibilities for other Federal agencies, such as the Corps of Engineers, EPA, and the Coast Guard.

We support legislation to create a Commission. We would like to work with the Committee to refine provisions for duties, membership, and reporting, to best effectuate the purposes of the Commission. However, we believe a more systematic process is long overdue to identify navigable and non-navigable waters of Alaska, by far the nation's largest and most complex state with respect to these issues. The Commission can contribute significantly to the Federal and Alaska State governments working together in a more focused and productive way to resolve these important issues.

In addition, OMB advises that S. 2587 has pay-as-you-go implications because of the commission compensation provisions. An estimate has not yet been developed.

This concludes my testimony, and I thank you again for allowing me the opportunity to testify on this issue of such importance to the people and State of Alaska. I would be happy to answer any questions you may have.