The Department of the Army has no objection to S. 945. Enactment of this legislation will cause no increase in budgetary requirements of the Department of the Army. The Bureau of the Budget advises that, while there would be no objection to the presentation of this report to the committee, its views on S. 945 will be furnished to the committee in connection with the report of the Department of Justice on the bill. Sincerely yours, STEPHEN AILES, Secretary of the Army. GENERAL COUNSEL OF THE DEPARTMENT OF COMMERCE, Hon. WARREN G. MAGNUSON, Chairman, Committee on Commerce, DEAR MR. CHAIRMAN: This is in further reply to your request for Department views on S. 945, a bill creating a joint commission of the United States and the State of Alaska to make administrative determinations of navigability of inland nontidal waters in the State of Alaska for State selections. The purpose of this bill is to create a commission composed of an equal number of members from the Department of Interior and from the Department of Natural Resources of the State of Alaska to determine whether inland nontidal waters within areas of Federal land in Alaska being selected for transfer to State ownership are navigable so as not to be counted against the acreage authorized in the Alaska Statehood Act for selection. This Department interposes no objection to enactment of this legislation. The Alaska Statehood Act provided that the territorial waters of the Territory of Alaska became property of the new State immediately upon its entrance into the Union. Another provision of the Statehood Act granted to the State the right under certain conditions to select for itself certain Federal lands over a 25-year period. As the selection of this acreage proceeds, the question of navigability of waters within the areas selected must be determined since navigable waters should not be charged against the State's selection quota. This bill would provide the machinery for making such determination. The Bureau of the Budget advises that while there would be no objection to the presentation of this report to the committee, its views on S. 945 will be furnished to the committee in connection with the report of the Department of Justice on the bill. Sincerely, ROBERT E. GILES. Hon. WARREN G. MAGNUSON, COMPTROLLER GENERAL OF THE UNITED STATES, Chairman, Committee on Commerce, DEAR MR. CHAIRMAN: By letter dated February 4, 1965, you requested our comments on S. 945. This measure would create a joint commission of the United States and the State of Alaska to make administrative determinations of navigability of inland waters in the State of Alaska for State selections. We note that the last sentence of section 3 provides that joint expenses of the commission shall be borne equally by the two governments. In this regard, S. 945 contains no provision as to how the joint expenses shall be financed or who shall account for the funds so used. It is suggested that a provision specifically providing therefor be added to S. 945. We have no further comments to make concerning this measure. Sincerely yours, JOSEPH CAMPBELL, Comptroller General of the United States. FEDERAL MARITIME COMMISSION, Hon. WARREN G. MAGNUSON, Chairman, Committee on Commerce, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: This is in reply to your request of February 4, 1965, for the views of the Federal Maritime Commission with respect to S. 945, a bill creating a joint commission of the United States and the State of Alaska to make administrative determinations of navigability of inland nontidal waters in the State of Alaska for State selections. Inasmuch as the bill does not affect the responsibilities or jurisdiction of the Commission, we express no views as to its enactment. The Bureau of the Budget has advised that there would be no objection to the submission of this letter from the standpoint of the administration's program. Sincerely yours, ASHTON C. BARRETT, U.S. DEPARTMENT OF THE INTERIOR, Hon. WARREN G. MAGNUSON, Chairman, Committee on Commerce, DEAR SENATOR MAGNUSON: This responds to your committee's request for our views on S. 945, a bill creating a joint commission of the United States and the State of Alaska to make administrative determinations of navigability of inland nontidal waters in the State of Alaska for State selections. We recommend that the bill be enacted with our amendments. The purpose of the bill is to assist the State of Alaska in its selection of 103,350,000 acres of public lands, under the Statehood Act of July 7, 1958 (72 Stat. 339), as amended, and to assist this Department in the discharge of its duties as the processing agent of the Federal Government with respect to such selections. More particularly, the bill is designed to facilitate the identification of navigable bodies of water so that the acreage thereof will not be computed against the State's selection rights. The State has 25 years from January 5, 1959 (the date of admission), within which to make its selections. S. 945 establishes a joint commission of the United States and the State of Alaska to make administrative determinations with respect to State selections. The Commission, which will meet in Alaska, will consist of not less than two and not more than five officers or employees of this Department, selected by the Secretary of the Interior, and a similar number of officers or employees of the Department of Natural Resources of the State of Alaska, designated by the commissioner thereof. The commissioner may designate an officer or employee of the department of law in lieu of one from his department. Salaries and expenses of Federal and State members will be borne by their respective governments. Joint expenses of the commission will be borne equally by the two governments. The bill also provides that the meetings of the Commission will be held at the call of the Chairman. The Chairman for the first meeting will be designated by the Secretary and subsequent Chairmen will be elected by the Commission. The chairmanship is to alternate between members appointed by the Secretary and those from the State of Alaska. In making determinations, the Commission is to be guided by statutory, common law, and judicial pronouncements on the subject of navigability of waters. The Commission is empowered to hear evidence bearing upon the question of navigability from representatives of the two departments, or from any expert witnesses hired by the Commission. Any party who has an interest in a determination of the Commission may be authorized to present evidence to the Commission if he first establishes to the satisfaction of half of the members of the Commission a sufficient interest in the proceedings. The bill also envisages that, as soon as practicable, the Commission shall make a determination of the navigability or nonnavigability of a body of water proposed for selection by the State. The bill provides that determinations of the Commission shall be binding upon all departments, agencies, officers, and employees of both the United States and the State of Alaska, and upon all persons deriving title from either or both governments subsequent to the date of enactment of the bill. It further provides that nothing in the bill shall prejudice the right of either government or any affected party to seek a judicial determination of the navigability or nonnavigability of any body of water by filing a petition in the U.S. district court in Alaska within 1 year after publication of a determination in the Federal Register. About the time that the public land States were admitted to the Union, they were granted public lands of the United States for various purposes. Among such purposes was the support of common schools, for which the land grants usually amounted to but 2 to 4 sections (1,280 to 2,560 acres) per township (36 square miles), or a maximum of 6 to 12 percent of the land area. At the time of admission of Alaska into the Union, the Federal Government owned some 99 percent of the total land area. In order to provide a base for a more viable economic situation, the Congress granted to the State of Alaska the right of selection of over 100 million acres. Even after such selection program has been completed, the Federal Government will continue to own approximately 50 percent of the total land area in the State of Alaska. In Alaska very little land had passed from Federal ownership and there seemed to be little likelihood that much land would so pass within the then existing statutory framework. (U.S. Code Cong. & Ad. News, 1958, p. 2393, et seq.) The bill would afford a ready vehicle for resolving questions of navigability to the extent that such questions arise in connection with the State selection program of the State of Alaska. The beds of bodies of navigable waters belong to the State of Alaska by virtue of section 1 of the Statehood Act (72 Stat. 339 (1958)). Pollard's Lessee v. Hagan (3 How. (15 U.S.) 212 (1844)). The beds, therefore, are not chargeable against the acreage limitations of the grants to the State of Alaska pursuant to the Statehood Act. It is obviously to the interest of both the State and the United States that the navigable status of waters within selected areas shall be fixed with certainty. Adoption of the proposal would also tend to facilitate development of mineral resources, since it would eliminate the acquisition of both Federal and State leases for the same land. The Federal Government and the State of Alaska can fix, each in its respective sphere, the rights acquired under mineral leases granted by them. The scope of the bill is properly limited to determinations of questions of navigability with respect to State selections. Otherwise, the functions of other Federal agencies would in all probability be involved. In that context, it would be questionable whether a commission consisting solely of representatives of this Department and of the State of Alaska would be appropriate. As we have indicated earlier, the sole purpose of the bill is to determine navigability only for the purpose of State selections. Ordinarily the determination of the area which passes under a grant of public lands is a Federal function. The Secretary of the Interior is authorized, and is under a duty, to consider and determine what lands are public lands, what public lands have been or should be surveyed, and what public lands have been or remain to be disposed of by the United States. Litchfield v. Register and Receiver (9 Wall. (76 U.S.) 575, 577 (1869)). The Secretary, therefore, has adequate authority to make the determinations which the bill contemplates will be made by the Commission. However, in view of the magnitude of the problem, the unusual impact of the selection program upon the economy of the State, and the need to achieve early agreement upon such issues, we believe that the bill would serve a useful purpose. We suggest the following clarifying amendments: 1. On page 2, line 2, substitute "an equal" for "a similar". This will insurethat both parties will be equally represented on the Commission. 2. On page 4, line 10, between "be" and "binding" insert "be published in the Federal Register and shall". Although section 6 envisages such publication, the section contains no positive mandate for such publication. The Bureau of the Budget has advised that there is no objection to the presentation of this report from the standpoint of the administration's program. Its views will be furnished to you in the Department of Justice's report on the bill. Sincerely yours, JOHN A. CARVER, Jr., Under Secretary of the Interior. Hon. WARREN G. MAGNUSON, U.S. DEPARTMENT OF JUSTICE, Chairman, Committee on Commerce, DEAR SENATOR: This is in response to your request for the views of the Department of Justice on the bill S. 945 creating a joint commission of the United States and the State of Alaska to make administrative determinations of navigability of inland nontidal waters in the State of Alaska for State selections. The fact that a body of water is navigable has important jurisdictional and proprietorial consequences in Federal-State relationships, for the States, by virtue of their sovereignty, are the owners of the lands underlying the navigable waters within their boundaries, Pollard v. Hagan (3 How. 212 (1845)), while the Federal Government, under the powers conferred upon it by article I, section 8, clause 3 of the Constitution, to regulate commerce, can control and use navigable water to the full extent that the exercise of its powers under the commerce clause may require. United States v. Chandler-Dunbar Water Power Company (229 U.S. 52 (1913)). No particular procedure exists for the determination, as between the State and Federal Governments, of the navigability of bodies of water; whenever the question arises with respect to a particular river or lake, if not settled amicably, it is settled by resort to court action. In United States v. Oregon (294 U.S. 1, 14 (1935)), the Supreme Court stated: "Since the effect upon the title to such lands is the result of Federal action in admitting a State to the Union, the question, whether the waters_within the State under which the lands lie are navigable or nonnavigable, is a Federal, not a local one. It is, therefore, to be determined according to the law and usages recognized and applied in the Federal courts, even though, as in the present case, the waters are not capable of use for navigation in interstate or foreign commerce." Under the Statehood Act of July 7, 1958, as amended (72 Stat. 339) the State of Alaska is granted the right to make selections of certain public lands of the United States. Alaska has many lakes and rivers, and one of the practical problems faced by State officials in drawing up their selection lists, and by Federal officials in approving them, is ascertaining whether the land underlying a particular body of water already belongs to the State (as it would under the doctrine of Polland v. Hagan, if the body of water is navigable) or whether the land must be charged against the acreage the State may select (as it must if the water is nonnavigable). The purpose of the bill is to provide the means by which administrative determinations of navigability may be made. The bill would create a Navigable Waters Commission, a joint commission of the United States and the State of Alaska, to make administrative determinations, for purposes of State selections only, of the navigability or nonnavigability of inland nontidal waters within the State of Alaska. At meetings of the Commission, the Department of the Interior and the Department of Natural Resources of the State of Alaska, jointly or separately, would propose to the Commission a determination of the navigability or nonnavigability of particular waters. The Commission would receive evidence on the question of navigability from representatives of the two departments, any experts hired by the Commission, and person who establishes to the satisfaction of one-half of its membership a sufficient interest in the proceedings. The Commission would then make determinations of the navigability or nonnavigability of such waters, and its determinations would be published in the Federal Register. The bill provides that in making its determinations the Commission shall be guided by statutory, common law, and judicial authorities on the subject of navigability of waters. Insofar as State selection rights are concerned, the Commission's determinations would be binding upon the United States and the State and all persons deriving title from either or both governments subsequent to the date that the bill becomes law. The bill would also provide that a proceeding for judicial review of any such determination may be instituted within a specified period of time in the U.S. District Court for the District of Alaska. The subject of the bill is not a matter for which the Department of Justice has primary responsibility and accordingly we make no recommendation as to its enactment. However, there are certain features of the bill to which attention is invited. Although the bill would authorize the Commissio matter of navigability of certain waters from any receive evidence on the son having "a sufficient interest in the proceedings," it does not require the Commission to give notice of hearing to persons who may have such an interest. Accordingly, it is suggested that the bill be amended to provide that the Commission shall publish notice of hearing on a proposal in the Federal Register and may publish such notice elsewhere as the Commission deems appropriate. This could be accomplished by inserting the following sentence after the period on line 18, page 3 of the bill: "Notice in advance of Commission hearings, including a statement of the time and place of the hearing, shall be published in the Federal Register and may be published elsewhere as the Commission deems appropriate." Also, it is recommended that since the publication in the Federal Register of the Commission's determinations seems to be contemplated (cf. sec. 6 of the bill), but is nowhere required, the bill should expressly spell out the requirement of publication. This could be accomplished by adding the following sentence after the sentence ending on line 21 of page 3 with the word "proposed"; "This determination shall be published promptly in the Federal Register." Since, as pointed out above, the question of whether the waters within a State are navigable or nonnavigable is a Federal one, it is recommended that section 5 of the ball, providing that the Commission in making its determinations of navigability shall be guided "by statutory, common law, and judicial authorities," be revised to require the Commission to be guided, in the language of United States v. Oregon, supra, by "the law and usages recognized and applied in the Federal courts." This would merely state what the law in fact is, that Federal decisions and statutes, and not State decisions and statutes, must control the determination of the navigability of waters. Section 6 of the bill provides that determinations of the Commission shall be binding, insofar as State selection rights are concerned, upon all departments, agencies, officers, and employees of both the United States and the State of Alaska. It is assumed that this provision is intended to refer to executive, as distinguished from nonexecutive, bodies and personnel. If this is so, it is recommended that on page 4, line 3, after the word "all," the word "executive" be inserted to make clear that which apparently is intended. Section 6 also provides that any affected party, including the United States or the State of Alaska, may obtain judicial review of any determination of the Commission by filing a petition in the District Court for the District of Alaska. The bill concludes with the sentence, "Such judicial review shall be on the basis of the record." This sentence appears inadequate to describe the appropriate procedure. If the judicial review is on the record made by the Commission at its hearing, it should be made clear that the reviewing court is confined to deciding whether or not substantial evidence supported the Commission, and while it may remand to the Commission for further evidence, no de novo proceedings should be undertaken by the reviewing court. Furthermore it is the view of this Department that where judicial review is confined to the substantiality of the evidence to be found in the record before the administrative body, the proper court for such review should be the court of appeals. Accordingly it is recommended that in lieu of the language "United States District Court for the District of Alaska" appearing on lines 18 and 19, page 4, of the bill there be substituted the following language, "The United States Court of Appeals for the Ninth Circuit." Also, the last sentence of the bill should be stricken and the following inserted in lieu thereof: "As a part of its answer the Commission shall file a certified copy of the transcript of the record, including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commission, and may, in its discretion, remand the cause for a rehearing. The findings of the Commission as to any fact, if supported by substantial evidence, shall be conclusive." The Bureau of the Budget has advised that while there would be no objection to the presentation of this report to the committee, the Bureau believes that the Secretary of the Interior already has adequate authority and has in fact traditionally made determinations of navigability in connection with public land programs. It is the Bureau's view that the State's interest would appear to be protected adequately through recourse to the courts in the event of a disagreement between the Federal and State governments. In any event the authority to make appointments should be vested in a Federal officer since the Commission would be performing Federal functions. Sincerely, RAMSEY CLARK, Deputy Attorney General. |