AS Title 38, Chapter 4: Policy for Use and Classification of State Land Surface

Chapter 04. Policy for Use and Classification of State Land Surface. Article 1. Public and Private Land Use. Sec. 38.04.005. Policy. (a) In order to provide for maximum use of state land consistent with the public interest, it is the policy of the State of Alaska to plan and manage state-owned land to establish a balanced combination of land available for both public and private purposes. The choice of land best suited for public and private use shall be determined through the inventory, planning, and classification processes set out in AS 38.04.060 — 38.04.070. (b) In classifying and making state land available for private use and settlement purposes, the director shall consider the natural resources and conditions present on the land and shall seek to minimize the adverse effect of private settlement on wildlife, fishery, mineral, timber, and other significant resources of the land; the director shall also make adequate provision for public open space which is accessible to communities so that natural areas are easily reached from all communities and settled areas. The amount of that land shall be sufficient to meet existing and projected needs for accessible public recreation land. Special care shall be taken to preserve public access to public water and to retain state ownership of sufficient land which combine high value for recreation and other public purposes with accessibility to settled areas. This classification for public purposes does not constitute dedication to open space, but the division's management of land so classified shall be in a manner to preserve the identified values. (c) In allocating land for private use and public retention, the requirements of future generations shall be considered. To this end, a supply of state land of a variety of types and locations shall be reserved to provide an opportunity for future decisions. (d) Private land use rights are integral to the material well-being of the people of Alaska and our society. (e) The involvement of a proximately located municipality and of local residents is essential in classifying and making state land available for private use and settlement. The director shall, when appropriate, hold public meetings in the communities most affected by the disposal to solicit the views of the residents of the communities affected. (f) Land owned by the Board of Regents of the University of Alaska is not subject to the provisions of this chapter. Sec. 38.04.010. Public interest in making land available for private use. (a) The primary public interest in conveying rights to state land surface to private parties is to make them available to individuals and other persons for direct use in areas classified as suitable for these purposes. In making state land available for private use, the director shall seek to guide year-round settlement to areas where public services already exist, or can be extended with reasonable economy, or where development of a viable economic base is probable. (b) State land that is located beyond the range of existing schools and other necessary public services, or that is located where development of sources of employment is improbable, may be made available for seasonal recreational purposes or for low density settlement. The seasonal recreation use or low density settlement shall have sufficient separation between residences so that public services will not be necessary or expected. The availability of timber, firewood, and water resources shall be considered in determining separation between residences. By considering the availability of timber, firewood, and water under this subsection or in making any disposal decision, the state does not by virtue of that consideration imply any right of the person receiving the disposal to an exclusive or other right to the timber, firewood, or water, that the state will not make any other disposals in the area, or that any disposals made will be limited in type or any other manner. Sec. 38.04.015. Public interest in retaining state land in public ownership. The primary public interests in retaining areas of state land surface in public ownership are (1) to make them available on a sustained-yield basis for a variety of beneficial uses including subsistence, energy development, aquaculture, forestry, grazing, sport hunting and fishing, hiking, snowmobiling, skiing, and other activities of a type which can generally be made available to more people and conducted more successfully if the land is in public rather than private ownership; (2) to facilitate mining and mineral leasing by managing appropriate public land for surface uses which are compatible with subsurface uses; (3) to protect critical wildlife habitat and areas of special scenic, recreational, scientific, or other environmental concern; (4) to restrict development in hazardous locations such as floodplains and avalanche zones; and (5) to guide the location of settlement and development to minimize public costs and maximize social and economic benefits. Article 2. Land Availability for Private Use. Sec. 38.04.020. Land disposal bank. (a) The commissioner shall establish a land disposal bank containing state land classified for disposal into private ownership. (b) The land disposal bank does not include (1) land nominated for selection or selected by a municipality to satisfy a general grant land entitlement under AS 29.65 or former AS 29.18.201 — 29.18.213; (2) land retained in state ownership for multiple-use management; (3) land where less than a fee simple title has been conveyed; (4) land retained in state ownership under an enactment of the legislature or by the governor or a state agency under authority of law. (c) Land to be retained in state ownership may be classified by the commissioner into multiple-use management categories under AS 38.05.300 . Land outside a municipality to be retained in state ownership consists of land classified for retention in state ownership by the commissioner by July 1, 1985. Land conveyed to the state by the federal government that is to be retained in state ownership consists of land classified by the commissioner within two years of receipt of tentative approval or patent, whichever occurs first. State land not classified for retention in state ownership or selected by a municipality under this section shall be classified and included in the land disposal bank. The commissioner shall ensure that the bank includes at least 500,000 acres. (d) By January 15 of the first session of each legislature, the commissioner shall notify the legislature that the commissioner has available a report on the status of land in the land disposal bank under the following categories: (1) land suitable for homestead disposal; (2) land suitable for subdivision disposal; (3) land suitable for agricultural, commercial, or industrial disposal; and (4) land suitable for other purposes. (e) The commissioner shall annually submit to the governor an appropriation request for funding estimated to be necessary for the next two years to allow (1) survey and disposal of land proposed to be made available for homestead staking, with the general location of the land; (2) survey and disposal of land to be offered as agricultural, commercial, industrial, or other uses under AS 38.05.055 or 38.05.057, with the general location of the land; (3) the survey and disposal of land proposed to be offered as subdivisions, with the general location of the land; (4) preliminary feasibility studies, engineering design work, right-of-way acquisition, and construction of access roads and capital improvements required by municipal subdivision ordinance or regulation of the platting authority; (5) identification of land that will be proposed for disposal under this subsection in future fiscal years. (f) The request of the commissioner under (e) of this section shall include an analysis and an assessment of the market demand for the land proposed for disposal. (g) After July 1 of each year, the commissioner shall direct the expenditure of money appropriated for the disposal of land in response to requests made under (e) and (f) of this section for the following: (1) land designated as suitable for homestead disposal shall be classified and surveyed under this chapter and AS 38.05 and made available for staking and lease under AS 38.09 ; (2) land designated as suitable for subdivision and homesite disposal shall be surveyed, subdivided, classified, and disposed of under this chapter, AS 38.05 , and AS 38.08 ; (3) land designated commercial, industrial, or suitable for other disposal shall be sold under AS 38.05.055 or 38.05.057; (4) land designated agricultural shall be disposed of under AS 38.05.055 — 38.05.065, except the Board of Agriculture and Conservation ( AS 03.09.010 ) shall receive notice of each proposed disposal and be given an opportunity to comment before the final disposal decision is made. (h) Individual parcels disposed of in subdivisions intended for private residential or recreational use may not exceed five acres unless the commissioner determines that a larger size is necessary to comply with municipal ordinances; to permit the design of a viable subdivision because of topographical features, soil conditions, on-site sewage disposal requirements, or water drainage or supply considerations that are unique to the subdivision; to increase the return to the state from the sale of the parcels; to minimize adverse effect on wildlife, fishery, public recreation, timber, or other significant resources in the area; or to minimize adverse effect on other residential uses in the area. (i) Nothing in this section prevents the disposal of other land by the commissioner in accordance with AS 38.05.055 , 38.05.057, 38.05.070, the issuance of remote recreational cabin site leases or sales under AS 38.05.600 , AS 38.08 , AS 38.09 , or other law. (j) A person or an agency of the state may nominate land retained in state ownership for inclusion in the land disposal bank or may nominate land in the land disposal bank for retention in state ownership. The commissioner shall hold public hearings semiannually to take nominations under this subsection. A transfer of land from retention in state ownership to the land disposal bank or from the land disposal bank to retention in state ownership shall be accomplished through a classification order under AS 38.05.300 and with notice under AS 38.05.945 . The commissioner shall make a written determination within six months after receipt of a nomination if the commissioner determines that the land nominated will not be classified or reclassified as requested. (k) The commissioner may withdraw from the land disposal bank state land that has been offered for disposal but not conveyed within five years after the inclusion in the land disposal bank. State land withdrawn from the land disposal bank under this section must be reclassified under AS 38.04.065 . Sec. 38.04.021. Disposal of municipal grant land entitlements. [Repealed, § 38 ch 91 SLA 1997.] Sec. 38.04.022. State land disposal income fund. (a) The revenue from the state land disposal program shall be deposited in the state land disposal income fund in the state treasury. On June 30 of each fiscal year, the portion of that fund that exceeds $5,000,000 shall be deposited in the state general fund. The legislature may appropriate money from the state land disposal income fund for expenditure by the Department of Natural Resources for necessary costs incurred by the commissioner in the implementation of state land disposal programs authorized under this title or for any other public purpose. (b) Within five days after the legislature convenes in regular session, the Department of Natural Resources shall notify the legislature that a report reflecting all money deposited in the fund established under (a) of this section during the prior fiscal year is available. Sec. 38.04.025. Variety of uses. [Repealed, § 88 ch 152 SLA 1984.] Sec. 38.04.030. Land availability programs. Programs that may be used by the director to make the state's land surface available for private use under AS 38.04.020 — 38.04.055 include sale of whole or partial rights to the fee simple estate, including conveyance of agricultural use rights; leasing; open-to-entry; homesiting; homesteading; permitting for construction and occupation of cabins in isolated locations on land retained in state ownership; and other methods as provided by law. However, agricultural use rights may be conveyed only after consulting with the Board of Agriculture and Conservation. Sec. 38.04.035. Criteria for program selection. In determining which land availability program is appropriate for state land in different locations, the director shall be guided by the following criteria: (1) to cover public costs associated with private land use and to provide the public with a fair return for publicly owned property, conveyance of state land to private parties shall be at fair market value except where otherwise authorized by statute, or by an administrative regulation the adoption of which is specifically permitted by statute; (2) sale or lease programs should be used where land is readily accessible to a major community center or where, because of a prime location on waterfront or a transportation route or some other location characteristic, land has relatively high real estate value; (3) sale programs are preferred but lease programs may be used (A) where special land use controls are required and there is a high public interest in having certain types of land used for particular purposes; (B) when the intended use is a temporary one; (C) in commercial or industrial situations when a leasehold can provide cash flow advantages to the lessee; (D) when a unique location with special public values is involved, as in a deep water port, hydroelectric site, or aquaculture facility; (E) where current demand for private use is high, but projections suggest that, in the future, the land may be more valuable for public use, as in accessible waterfront recreation areas; (4) limited or conditional title may be granted when the state's best interest so dictates; among other things, title limitations may include grants of agricultural interest only, retention of development rights, and retention of scenic or other easements; a conditional title may be tied to a development schedule or other standards of performance. Sec. 38.04.040. Availability of university land. [Repealed, § 88 ch 152 SLA 1984.] Sec. 38.04.045. Survey and subdivision. (a) [Repealed, § 88 ch 152 SLA 1984.] (b) Before the issuance of a long-term lease under AS 38.05.070 or of a patent for state land, an official cadastral survey shall be accomplished, unless a comparable, approved survey exists that has been conducted by the federal Bureau of Land Management. Before land may be offered under AS 38.08 or AS 38.09 , or before land may be offered under AS 38.05.055 or 38.05.057, except land that is classified for agricultural uses, an official rectangular survey grid shall be established. The rectangular survey section corner positions shall be monumented and shown on a cadastral survey plat approved by the state. For those areas where the state may wish to convey surface estate outside of an official rectangular survey grid, the commissioner may waive monumentation of individual section corner positions and substitute an official control survey with control points being monumented and shown on control survey plats approved by the state. The commissioner may not issue more than one conveyance for each section within a township outside of an official rectangular survey grid. Land to be conveyed may not be located more than two miles from an official survey control monument except that the commissioner may waive this requirement on a determination that a single purpose use does not justify the requirement if the existing status of the land is known with reasonable certainty. The lots and tracts in state subdivisions shall be monumented and the cadastral survey and plats for the subdivision shall be approved by the state. Where land is located within a municipality with planning, platting, and zoning powers, plats for state subdivisions shall comply with local ordinances and regulations in the same manner and to the same extent as plats for subdivisions by other landowners. State subdivisions shall be filed and recorded in the district recorder's office. The requirements of this section do not apply to land made available for material sales, for short-term leases, for parcels adjoining a surveyed right-of-way, or for land that has been open to random staking under the homestead program in the past; however, for short-term leases, the lessee shall comply with local subdivision ordinances unless waived by the municipality under procedures specified by ordinance. In this subsection, “a single purpose use” includes a communication site, an aid to navigation, and a park site. Sec. 38.04.050. Access to private use areas. Wherever state land is surveyed for purposes of private use, legal rights-of-way and easements shall be reserved for access and, where appropriate, for utility services to each parcel of land. A right-of-way or easement shall be located to assure adequate and feasible access for the purposes for which the right-of-way or easement was intended. Where necessary and appropriate for the use intended or where required by local subdivision ordinances, the director shall arrange for the development of surface access as part of the land availability program. The direct cost of local access development shall be borne by the recipient of the land unless otherwise provided by state statutes or regulations. Sec. 38.04.055. Access through private use areas. The commissioner shall reserve easements and rights-of-way on and across land that is made available for private use as necessary to reach or use public water and public and private land. An easement or right-of-way reserved under this section shall include trails that have an established history of use for commerce, recreation, transportation, or providing access to a traditional outdoor activity. In this section, “traditional outdoor activity” has the meaning given in AS 38.04.200 . Sec. 38.04.058. Restrictions on easement or right-of-way use. The commissioner may, under terms agreed to in writing by a grantee, lessee, or interest holder of state land, restrict the use of an easement or right-of-way reserved under AS 38.04.050 , 38.04.055, or other law in order to protect public safety or property. The commissioner may not agree to or enforce a restriction under this section unless the restriction is narrowly tailored to achieve the protection of public safety and property while preserving access to the maximum extent practicable and the commissioner makes a written finding identifying how the restriction will protect public safety and public or private property. Article 3. Inventory, Planning, and Classification. Sec. 38.04.060. Inventory. (a) The commissioner shall prepare and maintain on a continuing basis an inventory of all state land and water and their resource and other values, giving priority to areas of potential settlement, economic development, and critical environmental concern. This inventory shall be kept current so as to reflect changes in conditions and to identify new and emerging resource and other values. (b) The commissioner's inventory must include land and water under interagency assignment of land management authority and land and water proposed for such an assignment. That land and water must be reviewed at regular intervals to analyze current and proposed uses as these uses relate to alternative uses for all or part of the land and to determine the uses which best provide for the public interest. (c) As funds and manpower are made available, the commissioner shall provide local and federal governments and major private landowners with data from the inventory for the purpose of planning and managing the uses of land in proximity to state land. Sec. 38.04.062. Identification of state submerged land. (a) Except as provided in (f) of this section, the state owns all submerged land underlying navigable water to which title passed to the state at the time the state achieved statehood under the equal footing doctrine or 43 U.S.C. 1301 — 1315 (Submerged Lands Act of 1953). (b) The commissioner shall compile, maintain, and make public a list and map of all water in the state that the commissioner, the United States Department of the Interior, Bureau of Land Management, or a state or federal court determines was navigable water at the time the state achieved statehood. The submerged land underlying that navigable water shall be included in the inventory of state land prepared under AS 38.04.060 . (c) The commissioner shall also maintain and make public a list of all water in the state that the commissioner determines, in consultation with the commissioner of fish and game, was nonnavigable at the time the state achieved statehood. (d) Water not included on the lists described in (b) or (c) of this section is not considered either navigable or nonnavigable until the commissioner has made a determination as to its navigability at the time the state achieved statehood. In addition, the commissioner may make corrections and alterations to the lists described in (b) and (c) of this section to maintain the accuracy of each list. (e) A determination made by the commissioner under this section (1) does not create an interest in or right of entry onto any real property that does not otherwise exist under state law; (2) may not be recorded; and (3) does not constitute final agency action. (f) Submerged land that the state conveyed under AS 38.05.820 and 38.05.825 is not subject to the state's assertion of ownership under (a) of this section. (g) In this section, (1) “navigable water” means water that, at the time the state achieved statehood, was used, or was susceptible of being used, in its ordinary condition as a highway for commerce over which trade and travel were or could have been conducted in the customary modes of trade and travel on water; the use or potential use does not need to have been without difficulty, extensive, or long and continuous; (2) “nonnavigable water” means surface water that was not navigable water at the time the state achieved statehood. Sec. 38.04.065. Land use planning and classification. (a) Except as provided in (d) and (h) of this section, the commissioner shall, with local governmental and public involvement under AS 38.05.945 , adopt, maintain, and, when appropriate, revise regional land use plans that provide for the use and management of state-owned land. (b) In the adoption and revision of regional and site-specific land use plans, the commissioner shall (1) use and observe the principles of multiple use and sustained yield; (2) consider physical, economic, and social factors affecting the area and involve other agencies and the public in achieving a systematic interdisciplinary approach; (3) give priority to planning and classification in areas of potential settlement, renewable and nonrenewable resource development, and critical environmental concern; (4) rely, to the extent that it is available, on the inventory of the state land, its resources, and other values; (5) consider present and potential uses of state land; (6) consider the supply, resources, and present and potential use of land under other ownership within the area of concern; (7) plan for compatible surface and mineral land use classifications; and (8) provide for meaningful participation in the planning process by affected local governments, state and federal agencies, adjacent landowners, and the general public. (c) The commissioner shall adopt regional land use plans for state land. Each regional land use plan must identify and delineate (1) areas of settlement and settlement impact, where land must be classified for various private uses, renewable and nonrenewable resource development, and for public recreation, open space, and other public uses desirable in and around settlement; and (2) areas that must be retained in state ownership and planned and classified for various uses and purposes under AS 38.04.015 . (d) The commissioner may adopt as a land use plan a comprehensive plan adopted by a municipality having planning and zoning powers or a land management plan adopted by another governmental entity if the commissioner determines that the plan adequately recognizes and protects state interests. A decision to adopt the plan must be preceded by public hearings in affected and interested communities and by a draft decision, available for public review, that describes the state's interests and how the state will implement the plan. (e) Land shall be classified as provided in AS 38.05.300 . (f) Each decision about the location of easements and rights-of-way, other than for minor access, shall be integrated with land use planning and classification. In this subsection, “minor access” means (1) an easement for fiber optic cable of any length in an area where the land has not yet been classified; and (2) other comparable easements as determined by the commissioner in regulation. (g) Each land use plan adopted by the commissioner under this section shall be consistent with municipal land use plans to the maximum extent determined consistent with the state interests and the purposes of this chapter. (h) Before the commissioner adopts a regional land use plan, a land classification may be made on the basis of a site-specific land use plan. After adoption of a regional land use plan, land classifications shall be made under the plan. (i) An oil and gas lease sale or gas only lease sale is not subject to this section. Oil and gas lease sales and gas only lease sales are subject to the planning process established under AS 38.05.180 . Sec. 38.04.070. Management categories. State land classified for uses and purposes involving retention in public ownership may be included in the following management categories: (1) state public reserve land: areas of public land to be managed for a wide variety of compatible uses and purposes in accordance with the principles of multiple use and sustained yield; land designated to this category may include, but need not be limited to, state forest reserves and state wildlife reserves as well as land classified for public purposes within settlement impact areas; (2) state parks: areas with special recreational, scenic, cultural, historical, wilderness, or similar values, to be managed primarily for the public use and enjoyment of these values; (3) state trails: a system of public historic or recreational trails; (4) wild and scenic rivers: a system of rivers and adjacent state land with special natural, scenic, and recreational values located within or adjacent to a wild and scenic river area managed as part of the national system of wild and scenic rivers in accordance with 16 U.S.C. 1271 — 1287 (Wild and Scenic Rivers Act); (5) state public domain: land within areas designated on regional plans as settlement and settlement impact which are not part of the management categories listed in (1) — (4) of this section; through classification, this land may be made available for private use, settlement, and development as well as for public uses associated with settlement and development. Article 4. Access to State Land and Fishing Streams. Sec. 38.04.200. Traditional means of access. (a) The commissioner may not manage state land, water, or land and water so that a traditional means of access for traditional outdoor activities is restricted for the purpose of protecting aesthetic values of the land, water, or land and water or is prohibited unless the restriction or prohibition is (1) for an area of land, water, or land and water that encompasses 640 contiguous acres or less; (2) temporary in nature and effective cumulatively less than eight months in a three-year period; (3) for the protection of public safety and public or private property; (4) for the development of natural resources and a reasonable alternative for the traditional means of access across the land, water, or land and water for traditional outdoor activities on other land, water, or land and water is available and approved by the commissioner; or (5) authorized by act of the legislature. (b) In this section, (1) “aesthetic values” means those values that exist as an expression of the social or cultural viewpoint held by a portion of the population; (2) “traditional means of access” means those types of transportation on, to, or in the state land, water, or land and water, for which a popular pattern of use has developed; the term includes flying, ballooning, boating, using snow vehicles, operation of all-terrain vehicles, horseback riding, mushing, skiing, snowshoeing, and walking; (3) “traditional outdoor activities” means those types of activities that people may use for sport, exercise, subsistence, including the harvest of foodstuffs, or personal enjoyment, including hunting, fishing, trapping, gathering, or recreational mining, and that have historically been conducted as part of an individual, family, or community life pattern on or in the state land, water, or land and water. Sec. 38.04.205. Fishing stream access report. (a) The department, in consultation with the commissioner of fish and game, shall annually, not later than the 10th day of each regular legislative session, provide to the legislature and the governor, and post on the department's Internet website, an electronic report (1) detailing the department's efforts during the previous year to maintain or enhance access to and along fishing streams; (2) stating the department's objectives for enhancing and maintaining access to and along fishing streams by the public in the upcoming year. (b) In this section, “fishing stream” means a stream with an appreciable sport, personal use dip net, commercial, or subsistence fish population. Article 5. General Provisions. Sec. 38.04.900. Regulations. (a) The commissioner shall adopt under the Administrative Procedure Act ( AS 44.62 ) regulations believed necessary to carry out the purposes of this chapter. (b) A municipality has standing to petition the commissioner for the adoption of a regulation, or for the amendment or repeal of an existing regulation, or to appeal a decision of the commissioner with respect to classification, management, or disposal of land made under authority of a regulation adopted under (a) of this section with respect to state land outside the corporate boundaries of the municipality to protect any interest which the municipality is authorized to regulate outside its boundaries under AS 29.35.020 . (c) If the regulations adopted by the commissioner under (a) of this section fail to provide for a process by which decisions of the commissioner may be appealed, an interested person may petition for reconsideration of a decision. The petition shall contain the information required to be submitted by AS 44.62.220 and shall be acted upon by the commissioner in the manner provided in AS 44.62.230 . For purposes of this subsection, a municipality is an interested person with respect to its interests in land defined in (b) of this section. Sec. 38.04.910. Definitions. In this chapter, unless the context otherwise requires, (1) “commissioner” means the commissioner of natural resources; (2) “director” means the director of the division of lands of the Department of Natural Resources; (3) “fair market value” means the price at which a willing seller and a willing buyer will trade; (4) “long-term lease” means a lease for a term of more than 10 years; (5) “multiple use” means the management of state land and its various resource values so that it is used in the combination that will best meet the present and future needs of the people of Alaska, making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; it includes (A) the use of some land for less than all of the resources; and (B) a combination of balanced and diverse resource uses that takes into account the short-term and long-term needs of present and future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific, and historic values; (6) “official cadastral survey” means a United States public land survey or a survey executed under survey instructions issued by the division for the purpose of preparing a cadastral survey plat, and approved and accepted by the division for the state's official records; (7) “official control survey” means a position marked on the ground by triangulation or traverse stations established in conformity with standards adopted by United States Coastal and Geodetic Survey for first, second and third order work, whose geodetic positions have been rigidly adjusted on the North American datum of 1927 and approved by the division; (8) “short-term lease” means a lease for a term of 10 years or less; (9) “state park” means an area of state land designated by law to be managed for public use and enjoyment of recreational, scenic, cultural, historical, wilderness, and similar values, and includes roadside rests and recreational beaches, state monuments and historic sites, state recreation areas and state parks, including marine parks; (10) “state trail” means an area designated by law to be managed as a public historic or recreational trail including but not limited to (A) trails designated under AS 41.21.850 — 41.21.860, wilderness trails and campsites; and (B) trails and footpaths designated under AS 41.21.864 — 41.21.872; (11) “subdivision” has the meaning given in AS 40.15.900 ; (12) “sustained yield” means the achievement and maintenance in perpetuity of a high level annual or regular periodic output of the various renewable resources of the state land consistent with multiple use; (13) “wild and scenic river” means a free-flowing river or stream designated as provided in 16 U.S.C. 1271 — 1287 (Wild and Scenic Rivers Act, 82 Stat. 906).