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HomeMy WebLinkAboutManagment of Land, Water and Hydrothermal Resources Associated With Hot Springs in AK 1980GEO 025 “x Alaska Energy Authority LIBRARY COPY MANAGEMENT OF LAND, WATER AND HYDROTHERMAL RESOURCES ASSOCIATED WITH HOT SPRINGS IN ALASKA Dave Denig-Chakroff Geothermal Program Coordinator STATE OF ALASKA Department of Natural Resources Division of Research and Development Policy Research/Land Entitlement Section January 1980 S20 a) MANAGEMENT OF LAND, WATER AND HYDROTHERMAL RESOURCES ASSOCIATED WITH HOT SPRINGS IN ALASKA Dave Denig-Chakroff Geothermal Program Coordinator STATE OF ALASKA Department of Natural Resources Division of Research and Development Policy Research/Land Entitlement Section January 1980 SN é MA rs NY v p al O\C ¢& . \ 4 M = De oe Stote of Algska DIVISION OF GEOLOGICAL 8 GEOPHYSICAL SURVEYS ENERGY RESOURCE SECTION SPRINGS IN ALASKA Sowa tor Mot Sorog ota Mille, USGS OFRS7O —° % : 2 = > So ‘Seon = ee Dole Moreh 1974 Explanation Hot Springs Exoct tecation known Exoct location unknown ‘Ares of recent volcaniem DISTRIBUTION OF THERMAL | \ \ \ TABLE OF CONTENTS Page Distribution of Thermal Springs in Alaska (Map) ..... ++ eee ei Introduction . . 1... 6 ee we ee ew ee we we we ww we we we we ee ewe ee TL Federal Land Withdrawals Affecting Hot Springs . . . . i) Summary of Federal Laws Affecting Land Containing Hot Springs (Table)... 1... 2. eee eee ee e 4 Water Rights... 1... 2 ee ee ee ee ee www we wee we ee ew ew 5S Alaska Constitution . 2... 1 6 1 ee ee ee ew ee ee ee ee ee «610 Hydrothermal Resources... 6 1 ee ee ee ee ew we we ee ew we we 12 Conclusions . . 1. 66 we ee eee we we we ee te we eh we ew ew ew «14 References... =. ee ee ee ee ee ew hE Appendices . . 1. 1 1 eee ewe we we we we ew wee we ee we we ee ee A ii Introduction The Department of Natural Resources has recently completed a review of legal and institutional issues relating to geothermal resources in Alaska in order to develop recommendations for amendments to state statutes affecting the management of those resources. During this review, a number of issues have been raised and ambiguities noted regarding the management of land, water and hydrothermal resources associated with hot springs. Questions regarding land management which have been raised and will be addressed in this paper include: * What federal laws apply to land surrounding hot springs, and what is their effect? * What is the ownership status of land containing hot springs in Alaska? Water management questions to be addressed include: * What are the state and federal government's respective roles regarding the management of water associated with hot springs? * What is the effect of federal reserved water rights? * What is meant by the phrase "mineral and medicinal waters" in the Alaska Constitution and why does the Constitution exclude such waters from appropriation under state water law? What is the effect of this exclusion? Finally, the following questions regarding hydrothermal resources management will be addressed: * What is the potential for use of thermal resources associated with hot springs in Alaska? ° What is the effect of federal laws on such use? ° What state laws apply to the use of these thermal resources and what is their effect? Federal Land Withdrawals Affecting Hot Springs A series of executive and public land orders issued as early as 1911 have had a significant effect on the lands surrounding hot springs in Alaska. These orders have reserved for federal use an area around hot springs outside national forests which were located on vacant, unreserved land in 1911. The first federal law specifically addressing land containing hot springs in Alaska came in the form of Executive Order 1324% signed by President Taft, March 28,-1911 (Appendix 1). It withdrew and reserved for public purposes 160 acres around every hot spring on public land in the Territory of Alaska. This order was later amended by Executive Order 1883 of January 24, 1914 (Appendix 2) so that it would not apply to land within national forests. In 1947, Public Land Order 399 (Appendix 3) revoked Executive Orders 13244 and 1883, and amended Executive Order 5389 of July 7, 1930 (Appendix 4) to take their place. Executive Order 5389 withdraws public land containing hot springs or springs "the waters of which possess curative properties" and reserves such land for lease for the construction of facilities or improvements to accommodate the public. Prior to the issuance of PLO 399, Executive Order 5389 did not apply to Alaska; however, as amended, it applies to land in Alaska except for land within national forests.1/ Section 704(a) of the Federal Land Policy Management Act of 1976, 43 U.S.C. 81701, (FLPMA), repealed the authorizing statutes under which Executive 1/ =A 1961 Department of the Interior Solicitor's Opinion (M-36625) indicates that any public land on which wells are drilled for the development of geothermal water would be subject to withdrawal and reservation under Executive Order 5389. The Solicitor's basis for this opinion is that "there is no language in [Executive Order 5389] or the regulations issued pursuant thereto which restricts the term "hot spring' to a spring created solely by the forces of nature." This opinion, however, has been reversed by a more recent Solicitor's Opinion (M-36914, June 25, 1979). Although the 1979 Opinion discusses a 1926 Executive Order which withdraws land containing springs and water holes, it states that the general approach adopted also applies to Executive Order 5389. In his 1979 Opinion, the Solicitor states, "I cannot agree . . . with the inference in some of the opinions of ‘my predecessors that the . . . Order causes a reservation of all artificially developed water sources . . . I am therefore overruling expressions in prior opinions . . . to the extent they apply the . . . Order to artificially developed water sources on the public lands." The Solicitor further defines the term "spring" to mean "a discrete natural flow of water emerging from the earth at a reasonably distinct location . . ." (emphasis added). Order 5389 was issued.2/ Consequently, hot springs which come into existence after the effective date of FLPMA (October 21, 1976) are not withdrawn by Executive Order 5389, but could be withdrawn under other, still-existing legislative authority.3/ FLPMA appears to have a potentially significant effect on land containing hot springs within national forests. Even though such land was not withdrawn by Executive Order 5389 as amended, the State has been prevented from receiving title to it. When land within a national forest is selected, it is removed from the forest system and placed in the public domain prior to transfer. At that point, the land was (before FLPMA) subject to Executive Order 5389 and could not be transferred if it were within the prescribed locality of a hot spring. FLPMA, however, has repealed the federal statutes which authorized Executive Order 5389. All previously withdrawn land remains unaffected by the repeal, but no new withdrawals can be made. Since Executive Order 5389 never withdrew lands containing hot springs in national forests in Alaska; and now, cannot withdraw them if they are removed from the forest system, it appears that the Order no longer prohibits the State from selecting and receiving title to such land through the forest selections process. In a few cases in Alaska, lands containing hot springs were in private ownership prior to Executive Order 1324% of 1911; otherwise, all such lands outside national forests have been withdrawn and reserved by the federal government. Regulations pursuant to Executive Order 5389 require that.applicants, in order to select land outside national forests, must show that no hot springs exist on the land or within the area prescribed by the order (43 C.F.R. 2311.2(a), Appendix 5B). Since Executive Order 5389 was in effect before Statehood and no title to land containing hot springs within national forests has been obtained, the State does not control any hot springs by virtue of its land ownership. 2/ Section ‘10 of the Act of December 29, 1916 (43 U.S.C. 8300) and The Pickett Act of June 25, 1910 (43 U.S.C. 8141). 3/ =Solicitor's Opinion M-36914 of June 25, 1979 implies that Executive Order 5389 has withdrawn lands containing hot springs regardless of whether the water source is known to exist or has been specifically located. Thus, the fact that a hot spring in existence before October 21, 1976 was not identified until after that date would not affect the withdrawal of land around it. Summary of Federal Laws Affecting Land Containing Hot Springs Date June 25, 1910 March 28, 1911 January 24, 1914 December 29, 1916 March 3, 1925 July 7, 1930 August 20, 1947 October 21, 1976 Law 43 U.S.C. 8141 (Pickett Act) E.0. 1324% E.0. 1883 43 U.S.C. 8291 43 U.S.C. 8971 E.0. 5389 PLO 399 43 U.S.C. 81701 (FLPMA) Effect Authorizes the President to make withdrawals of public lands in certain cases, Withdraws land containing hot springs in Alaska. Amends E.0. 1324 to ex- clude land in national forests. Authorizes reservation of land containing public springs and water holes. Authorizes leasing of withdrawn land con- taining hot springs for resort purposes. Withdraws land con- taining hot springs in the U. S. except for _ Alaska. Revokes E.0.'s 13244 and 1883, and amends E.0. 5389 to include land in Alaska except for land in national forests. Repeals Acts of 1910 and 1916; however, existing withdrawals remain in force unless changed in accordance with FLPMA, Appendix 5A Water Rights The federal orders and subsequent regulations affecting hot spring locations are fairly clear as to their intent with respect to withdrawal and reservation of land. However, the issue of water rights remains somewhat clouded not only on this land, but on all federal withdrawals and reservations. Federal versus state water rights has been the subject of several landmark Supreme Court cases and a recent Department of the Interior Solicitor's Opinion. A review of federal legislation, Court decisions relating to water law and the recent Solicitor's Opinion can help clarify the issue of water management on federal land containing hot springs in Alaska. Water Rights in the State of Alaska are based on the appropriation doctrine. Under this doctrine, the federal government generally recognizes the State's authority to manage and appropriate surface and subsurface waters. The Act of Congress of 1866 as amended by the Act of 1870 established the appropriation doctrine of water rights in the western United States.4/ The Act of 1866 is primarily a mining law; however, Section 9 contains provisions which give formal sanction of the federal government to appropiations of water on public lands of the United States when such appropriations are obtained through, and are acknowledged by, local customs, laws and court decisions. The Act further provides that the rights of appropriators will be protected by state or territorial laws. The appropriation doctrine received further support in western states with the enactment of the Desert Land Act of 1877.5/ This Act provides that water rights on desert land are subject to prior appropriation and that all unappropriated water should be held free for appropriation by the public subject to existing rights. In 1935, a Supreme Court decision held that the Desert Land Act applied not only to desert land but to all land of the public domain in the affected states and territories.6/ It . further held that the Act severed all waters from the public land leaving waters subject to appropriation under the laws of the states and territories. In Alaska, the United States District Court at Sitka recognized and applied the appropriation doctrine as early as 1890, holding that prior appropriations were entitled to protection under the Act of Congress of 1866.7/ It was 100 years after the enactment of the Act of 1866 that 4/14 Stat. 253, 89 (1866) and 16 Stat. 217 (1870). 5/19 Stat. 377 (1877), 43 U.S.C, 8321 et seq. (1964). 6/ California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 160-163 (1935). 7/ Noland v. Coon., 1 Alaska 36, 37-38 (1890). the State of Alaska, in 1966, adopted the Water Use Act based on the appropriation doctrine. 8/ Although the laws and court decisions thus far cited affirm state regulatory authority over water rights in the western United States, several Supreme Court decisions have placed limitations on this authority. These limitations have traditionally been referred to as "federal reserved water rights" or the "Winters Doctrine." This doctrine gives the federal government reserved rights to water on federally reserved lands. These water rights are protected against subsequent state appropriations. The Winters Doctrine was foreshadowed by the 1899 Supreme Court case of United States v. Rio Grande Dam and Irrigation Company. This Court decision held that the United States, as owner of lands bordering a stream, cannot be deprived by a state of the right to the continued flow of the stream's waters as may be necessary for the beneficial use of the property.9/ The Winters Doctrine was later articulated in the 1908 case for which it was named, Winters v. United States.10/ In the "Winters" case, the Supreme Court held that the Indians of the Fort Belknap Indian Reservation in Montana were entitled to reserved water rights which were protected against rights acquired later under state law. The next judicial influence on the Winters Doctrine came in the 1955 Supreme Court case of Federal Power Commission v. Oregon (also known as the "Pelton Dam" case).11/ The Court's decision essentially extended the Winters Doctrine to apply not only to Indian reservations, but to any lands "withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws." The decisions of the "Winters" and "Pelton Dam" cases have subsequently _ been reaffirmed in two Supreme Court cases. In the 1963 case of Arizona v. California, the Court granted reserved water rights to the Indians of the Colorado Indian Reservation and went on to say that the United States has the power to reserve water rights for other federal reservations and property.12/ In discussing its Arizona v. California decision in a 1971 case, the Supreme Court said: [T]he Federal Government had the authority both before and after a State is admitted into the Union "to reserve waters for the use and benefit of federally reserved lands." .. . The federally reserved lands include any federal enclave.13/ 8/ ALS. 46.15. 9/ 174 U. S. 690 (1899). 10/ 207 U. S. 564 (1908). 11/ 349 U. S. 435 (1955). 12/ 373 U. S. 546 (1963). 13/ United States v. District Court in and for the County of Eagle, 401 U. S. 521 (1971). A concise description of the effect of the Winters Doctrine as it had evolved to this point was written in 1971 by Frank Trelease, a noted authority on water law and primary author of the Alaska Water Use Act. If the United States by treaty, act of Congress or executive order reserves a portion of the public domain for a federal purpose which will ultimately require water, and at the same time the government intends to reserve unappropriated water for that purpose,14/ then sufficient water to fulfill that purpose is reserved from appropriation by private users. The effect of the doctrine is twofold: 1) when water is eventually put to use the right of the United States will be superior to private rights in the source of water acquired after the date of the reservation, hence such private rights may be impaired or destroyed without compensation by the exercise of the reserved rights, and 2) the federal use is not subject to state laws regulating the appropriation and use of water.15/ Mr. Trelease describes the doctrine as "wild cards that may be played at any time, blank checks that may be filled in for any amount or may never be cashed."16/ In more recent years, however, two Supreme Court cases have resulted in a curtailment of the effects of the Winters Doctrine. A 1976 Court decision stated, "the implied-reservation-water-rights doctrine, however, reserves only that amount of water necessary to fulfill the purpose of the reservation, no more . . ."17/ The most recent modification of the Winters Doctrine came in July of 1978 in the case of United States v. New Mexico.18/ In its decision, the Supreme Court held that the Gila National Forest in New Mexico has reserved water: rights only for the primary purposes for which it was established, but not for any secondary purposes. It also stated that "[w}here water is only valuable for a secondary use of the reservation . . . there arises the contrary inference that Congress intended . . . that the United States would acquire water in the same manner as any other public or private appropriator." 14/ The government's intent to reserve water need not be explicitly stated. A 1976 Supreme Court decision holds that this intent "is inferred if the previously unappropriated water is necessary to accomplish the purpose for which the land reservation is created," (Cappert v. United States, 426 U. S. 128). Historically, federal reserved water rights have most often been created by implication rather than by express reservation. 15/ F. Trelease, Federal-State Relations in Water Law, 109 (1976). 16/ Id. at 160. 17/ Cappaert v. United States, 426 U. S. 128 (1976). 18/ 98S. Ct. 3012 (1978). A recent Department of the Interior Solicitor's Opinion affirms the U.S. v. New Mexico Supreme Court decision.19/ In his 1979 Opinion, the Solicitor states: The United States retains water rights by reserving federal lands and waters necessary to fulfill specified purposes... . [T]here is an important distinction between the purposes of a land reservation and secondary or subsidiary management apart from the reservation purpose(s); i.e., only the former obtain water rights by the act of reserving the land for particular purposes. [Emphasis added.] The Solicitor later acknowledges that "land management agencies of the Department of the Interior have, throughout their history, appropriated water on the lands they administer . .. This appropriation of water... . is necessary to carry out the secondary uses for which many federal reservations are administered." He advocates continuance of this policy saying, "application should be made pursuant to state procedural law for all uses of water interior land management agencies are making and plan to make on the federal lands they manage which are not covered by reserved rights..." According to the Solicitor, the purposes of a federal withdrawal may require reservation of the "total yield" of a water source. Such is the case, in his opinion, on lands containing a spring or water hole withdrawn by a 1926 Executive Order. 20/ The Solicitor broadly interprets the primary purposes of. the 1926 Order to include, "(a) stockwatering, (b) human consumption, (c) agriculture and irrigation, including sustaining fish, wildlife and plants as food and forage sources, and (d) flood, soil, fire and erosion control." Unfortunately, the Solicitor does not specifically address the amount of water reserved by Executive Order 5389, but says only that "[t]he general approach adopted . . . in relation to the 1926 Order is . . . applicable to these reservations."' He does acknowledge, however, that "reserves [created by Executive Order 5389] are generally local in character or otherwise minor." Unlike the broad purposes of the 1926 Order which require reservation of the "total yield," Executive Order 5389 has a very specific purpose which could certainly be fulfilled with a much smaller water reservation in most cases. The lands withdrawn by Executive Order 5389 have only one primary purpose, which is clearly stated in the Code of Federal Regulations, 43 C.F.R. 2311.0-3(b)(2) (Appendix 5B): Purpose of withdrawal. The Executive order [5389] . . . was designed to preserve for general public use and benefit the unreserved public lands, containing hot springs or springs the waters of which 19/ Solicitor's Opinion #M-36914, (June 25, 1979), Leo Krulitz, Solicitor. 20/ Executive Order of April 17, 1926 which creates Public Water Reserve No. 107, withdraws and reserves vacant, unappropriated, unreserved public land which contains a spring or water hole, or other body of water needed or used by the public for watering purposes. Alaska was excluded from the reserve created by this Order by Executive Order 5106 of May 4, 1929. possess curative properties, in order that they might be leased under the provisions of the act of March 3, 1925 (43 Stat. 1133; 43 U.S.C. 971), and the regulations issued thereunder, contained in 62311.4. Thus, the federal water reservation would, presumably, be limited to an amount needed for "bathhouses, hotels, or other improvements for the accommodation of the public," as stated in the provisions of 43 U.S.C. 971 (Appendix 5A) and 43 C.F.R. 82311.4 (Appendix 5B). Any water available over and above this reservation would be subject to appropriation under state law. This state appropriation authority is acknowledged in the federal regulation pertaining to both Executive Order 5389 and the 1926 Order (43 C.F.R. §3211--Public Water Reserves, Appendix 5B). In granting a permit to conduct water from a public water reserve to a point outside the reserve, including unreserved public land, Section 2311.3(f) requires, "[t]hat the right to appropriate the waters of the State to the uses contemplated shall be obtained within 1 year from and after the issuance of the permit and the permittee shall file a certificate to that effect issued by the proper State Authority ... . In the event that the State certificate as to the right to appropriate the water is not filed within 1 year, . . . then such permit shall become and be subject to cancellation." Since the 1926 Order reserves the total water yield at each source, this section is apparently applicable only to lands withdrawn by Executive Order 5389. In the past, there has been a great deal of misunderstanding with respect to the appropriation and granting of rights to water associated with hot springs in Alaska. In some cases, the State of Alaska has denied issuance of water appropriation certificates based solely on the fact that the water in question was naturally hot. However, the federal regulations, Solicitor's Opinion and Supreme Court decisions cited above indicate that such denials are not justified unless the water is reserved and needed for use by a resort on a federal leasehold containing a hot spring. If this is not the case, the water is subject to appropriation under the state Water Use Act. Alaska Constitution Water rights are addressed in the Constitution of the State of Alaska in Article VIII, Section 13, which states: Water Rights. All surface and subsurface waters reserved to the people for common use, except mineral and medicinal waters, are subject to appropriation. Priority of appropriation shall give prior right. Except for public water supply, an appropriation of water shall be limited to state purposes and subject to preferences among beneficial uses, concyrrent or otherwise as prescribed by law, and to the general reservation of fish and wildlife. Inherent in this statement are two often-asked questions: (1) What are “mineral and medicinal waters"? and (2) Why are they excluded from the appropriation doctrine? The answers to these questions can be found in the Alaska Constitutional Convention Proceedings (selected portions in Appendix 6). Transcripts of the proceedings indicate that by inserting the phrase "except mineral and medicinal waters" into Article VIII, Section 13, delegates intended to preclude appropriation by the State of "hot springs or springs with proven medicinal value." The following quotes from the proceedings show that this preclusion was made in deference to federal law which allegedly maintained the authority for such appropriations. January 18, 1956 [morning] TAYLOR: . . . the federal law provides that all hot springs or springs with proven medicinal value are reserved to the federal government, so people can have beneficial use of those springs-- those waters that do have a distinct medicinal value. And IL thought, . . . in the section which is now 13, we could include some provisional clause along that line. [afternoon] RILEY: . . . this goes to the question raised by Mr. Taylor earlier today. He drew attention to the fact that the federal government reserves the disposition of hot springs. And some of vs have talked with some of the federal land office people since that time, in an attempt to arrive at language as nearly like the federal reservation as possible, and this ["except mineral and medicinal waters"] is what we have offered. It appears that the federal law to which the delegates were referring was Executive Order 5389 of July 7, 1930 and its subsequent amendment and regulations (Appendices 3-5). However, these orders and regulations effect a withdrawal and reservation of land and do not specifically give the federal government authority for the disposition of waters. As noted above, this issue was left for the courts to decide. 10 At the time of the Constitional Convention in January of 1956, the Winters Doctrine was well established; and in the previous year, the Supreme Court had held, in the "Pelton Dam" case, that federal reserved water rights applied to any lands "withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws."21/ Thus, the understanding of the delegates, that the law withdrawing lands containing hot springs included a reservation of the waters, was certainly well founded. However, the exemption of "mineral and medicinal waters" from the water appropriation clause in the Constitution is misleading in the following ways: 1) The phrase "mineral and medicinal waters" does not adequately describe what the delegates intended to exclude from the appropriation clause. Furthermore, this phrase is not defined either in the Constitution or in the Water Use Act where it is also used. 2) The exclusion of "mineral and medicinal waters" singles out one type of federal withdrawal (lands containing hot springs) for which the State acknowledges federal reserved water rights by Constitutional reference, whereas the Court has declared that the federal government maintains certain water rights on all withdrawals and reservations where they are needed. 3) The exclusion of "mineral and medicinal waters" could be interpreted to mean that the federal government reserves rights to all water associated with hot springs. However, the Supreme Court has held, in recent years, that federal reserved water rights apply only to the primary purposes for which the withdrawal was made.22/ Other water uses are subject to appropriation under state law, a fact acknowledged by the Court, federal regulations and a Department of the Interior Solicitor's Opinion. : These ambiguities could be clarified by amending the Water Use Act to define "mineral and medicinal waters" to mean waters of a hot spring or spring with curative properties, that is reserved by the federal government under PLO 399 and Executive Order 5389. This would not resolve the disparity caused by a Constitutional reference to one type of federal reserved water right and not to others; however, it would certainly help explain the intent of delegates to the Constitutional Convention and would clarify the State's role with respect to water management on land containing hot springs. 21/ 349 U. S. 435 (1955). 22/ United States v. New Mexico, 98 S. Ct. 3212 (1978). 11 Hydrothermal Resources Due to their close proximity to the surface, the thermal resources associated with hot springs are easily utilized. In addition to traditional uses for baths and spas, these resources have potential for a wide variety of other applications such as space heating, district heating, agriculture and aquaculture uses, food processing and small-scale electric power generation. In Alaska, hot springs have historically been used for bathing purposes; first by Native Alaskans and later by immigrants to the state. Homesteaders developed most of the privately owned lands containing hot springs as spas or resorts in the early 1900's; and in a few cases, also used thermal energy from these hot spring waters for space heating and agricultural purposes. The State of Alaska is currently engaged in a geothermal demonstration project at Pilgrim Hot Springs located about 50 miles north of Nome where 90°C. (194°F.) water has been encountered at a depth of 90 feet. The thermal resources at Pilgrim have the potential for supporting a large agriculture or aquaculture facility and some geologists believe they may even be capable of supplying a district heating system for the City of Nome. The Act of March 3, 1925 (43 U.S.C. 971, Appendix 5A) was rather narrow in its scope, providing for leasing of federal lands containing hot springs for "bathhouses, hotels or other improvements for the accommodation of the public." However, a growing awareness of geothermal resource potential and advancement of geothermal technology to pursue it led to the enactment of the Geothermal Steam Act of 1970 (84 Stat. 1566). This federal law provides for leasing and utilization of geothermal resources on both the public domain and withdrawn lands. Lands containing hot springs withdrawn by Executive Order 5389 fall under its authority and may be leased for hydrothermal uses other than hotels and bathhouses. However, these uses would not be considered a primary purpose of the withdrawal. Currently, two State laws could apply to hydrothermal development on federal or private lands containing hot springs in Alaska. The Oil and Gas Conservation Act provides that the Alaska Oil and Gas Commission may regulate drilling, producing and plugging of wells drilled to a specified depth when it is likely that a hazardous substance may be encountered (AS. 31.05.030(g)). Recently, the Commission established that hot groundwater under pressure is hazardous. Also, any withdrawal of water from a groundwater source is subject to the Water Use Act. Even in the case of land withdrawn under Executive Order 5389, it appears (based on past Supreme Court decisions), that development of hydrothermal resources for anything other than bathhouses, hotels or other resort improvements would be subject to prior appropriation under the state Water Use Act, since such development would not be a primary purpose of the withdrawal. Furthermore, this type of development on federal land would require a lease under the Geothermal Steam Act, which states, "[nJothing in this act shall constitute an express or implied claim or denial on the part of the Federal Government as to its exemption from State water laws." (84 Stat. 1573, Sec. 22.). It is anticipated that the State Legislature will consider amendments to statutes affecting geothermal resources 12 management during the 1980 legislative session. The application of state laws to hydrothermal development on federal and private lands containing hot springs could be affected by such legislation. 13 Conclusions Based on the above discussion and citations pursuant to questions set forth in the Introduction, I have reached the following conclusions concerning the management of land, water and hydrothermal resources associated with hot springs in Alaska. Land Management: * Federal laws (summarized in the Table on page 4) have withdrawn and reserved vacant, unappropriated land in the state surrounding all hot springs which were in existence prior to October 21, 1976 and which were not within a national forest. This land is reserved for leasing for bathhouses, hotels or other improvements for the accommodation of the public. Land containing hot springs which is within a national forest is neither withdrawn nor reserved for such purpose and may be able to be selected under the forest selections process. Land containing hot springs which was occupied, appropriated or otherwise reserved prior to March 28, 1911 may be in private ownership. Otherwise, land in Alaska surrounding hot springs is in federal ownership. Water Management: ° On federal withdrawals containing hot springs, the federal government maintains reserved rights to an amount of water needed for bathhouses, hotels or other improvements for the accommodation of the public. All other surface and subsurface water is subject to state jurisdiction under the Water Use Act. The effect of the reserved water right is that when water is eventually put to use for the purpose specified in the federal withdrawal, water rights for that purpose are superior to rights granted by the State after the date of the federal withdrawal. Water reserved for the federal purpose is not subject to the state Water Use Act. The phrase "mineral and medicinal waters" as used in the Alaska Constitution means waters of a hot spring or spring with curative properties, that are reserved by the federal government under PLO 399 and Executive Order 5389. The State Constitutional Convention excluded these waters from appropriation under state law in deference to the federal reserved rights which pertain to them. This exclusion affects only an amount of water needed to fulfill the primary purpose of the withdrawal. All other water is subject to the Water Use Act. Hydrothermal Resources Management: ° There is great potential for the use of hydrothermal resources associated with hot springs in Alaska including applications to 14 space heating, district heating, agriculture and aquaculture uses, food processing and small-scale electric power generation. Federal withdrawals containing hot springs may be leased under . provisions of the Act of March 3, 1925 for bathhouses, hotels or other improvements for the accommodation of the public. Withdrawn land and land in the public domain may be leased for geothermal development under provisions of the federal Geothermal Steam Act of 1970. State statutes which could affect hydrothermal development on federal or private lands containing hot springs include the Oil and Gas Conservation Act (AS 31.05) and the Water Use Act (AS 46.15). The Oil and Gas Conservation Act regulates development for safety and resource conservation purposes. The Water Use Act provides for determination and adjudication of rights in the waters of the state; and for water appropriation and distribution. The application of state statutes to hydrothermal development may be affected by a pending proposal for amendments to statutes affecting geothermal resources development in Alaska. 15 References Brooks, Heidi Topp, "Reserved Water Rights and Our National Forests," Natural Resources Journal, 19:2:433-443, University of New Mexico, Natural Resources Vourna~ School of Law, April, 1979. Ellis, Harold H. and J. Peter DeBraal, "Federal-State Relations: The Proprietary Power and the Reservation Doctrine," in Water Rights Laws in the Nineteen Western States by Wells A. Hutchins, J. D., 3:21:38-53, Washington D. C., U. S. Dept. of Agriculture, 1977. Hutchins, Wells A., completed by Harold H. Ellis and J. Peter DeBraal, “Water Rights Systems Pertaining to Water Courses: Establishment of the Appropriation Doctrine in the West," Water Rights Laws in the Nineteen Western States, 1:159-180, Washington, D. C., U. S. Department of Agriculture, 1977. » "Appendix: Summaries of the State Water Rights Systems--Alaska," Water Rights Laws in the Nineteen Western States, 3:141-161, Washington, D. C., U. S. Department of Agriculture, 1977. Kitchen, Gerald J., "Geothermal Leasing Practices," Land and Water Law Review, 13:1:25-59, University of Wyoming, College of Law, 1977. Markle, Donald R., Geothermal Ener: in Alaska: Site Data Base and Development Status, 1:15-22, Klamath Falls, Oregon, Geo-Heat Utilization Center, April, 1979. Sacarto, Douglas M., State Policies for Geothermal Development: Uncovering a Major Resource, Denver, Colorado, National Conference of State Legislatures, 1976. 16 APPENDICES APPENDIX 1 (COPY) DEPARTMENT OF THE INTERIOR WASHINGTON March 27, 1911. Sir: The Commissioner of the General Land Office has called to my attention the fact that there are a number of hot springs and and other springs in the District of Alaska, the waters of which possess curative medicinal properties and suggest that the public interest, particularly that of the natives of Alaska, would be served by the withdrawal of the lands containing such springs from disposition pending the consideration by Congress of some measure providing for their use. Under existing laws, lands containing mineral springs, not of a saline character, are subject to sale under the general land laws applicable to Alaksa with the exception of the acts relating to the sale of mineral lands. 1 concur in the opinion of the Commissioner with respect to public lands containing these springs and have the honor to submit with favorable recommendation an order of withdrawal. Very respectfully, (Sgd) Walter L. Fisher, Secretary E.C.F. APP 1 (1324) ORDER OF WITHDRAWAL. It is hereby ordered that the following described lands be, and the same are, hereby withdrawn from settlement, location, sale, or entry and reserved for public purposes; to wit, to enable Congress to consider legislation providing for the use of medicinal springs in the public lands in the District of Alaska, subject to all the provisions, limitations, exceptions, and conditions contained in the Act of Congress entitled, "An Act to authorizie the President of the United States to make withdrawals of public lands in certain cases," approved June 25, 1910. All tracts of public lands in the District of Alaska upon which hot springs, or other springs, the waters of which possess curative medicinal properties, are located, to the extent of 160 acres surrounding each spring, in rectangular form with side and end lines equidistant, as near as may be, from such spring or group of springs. (Signed) W.H.Taft —$—$ President. Referred to the Commissioner of the General Land Office for March 28, 1911. appropriate action. (Signed) WALTER L. FISHER Secretary of the Interior. APPENDIX 2 “recutive Ordcr a oe == ALASKA Under authority of the Act of Congress entitled “An Act To Author- we the President of the United States to make withdrawals of public lands in certain cases,” approved June 28, 1910 (36 Stat, 8.47). as amended by the Act of August 24, 1912 (37 Stat. 497), it is hereby ordered that the Exe cutive Order dated. March 28, Fort, withdrawing “all tracts of public Et 9 } lands in the District of ; ka upon which hot springs, or other springs, ——— ; s the waters of which possess curative medicinal properties, are located, to the extent of 160 acres surrounding cach spring, in rectangular form with cide and end lines equidistant, as near as may be, from such spring or group of springs,” be revoked so far as it applies to lands within Nation: a : ten tres ee ee Nee forests, WOODROW WILSON Tur Waarre Louse, 24 January, 1914. 7 { No. 1883. | APPENDIX 3 [Public Land Order 360) UNITED STATES AND ALASICA REVOCATION OF EXECUTIVE ORDER 13244, WITHDRAWING PUBLIC LANDS CONTAINING NOT OR MEDISINAL SPRINCS IN ALASICA AND AMENDING EXLCUTIVE ONDER 6389 WITI- DRAWING SUCIT LANDS IN UNITED STATES By virtue of the authority contained la section 1 of the act of June 25, 1910, c. 421, 36 Stat. 837 (U.S. C., Title 43, sec, 141), and pursuant to Executive Order No. 9337 of April 24, 1043, it is ordered cs follows: Exccutive Order No. 132434 of March 28, 1911, ‘withdrawing certain public. lands tn the Terrjtory of Alaska contain- ing hot or medicinal springs, as amenged by Exccutive Order No. 1883 of January 24, 1014, Is hereby revoked; and Execu- tive Order of July 7,.1930,-with- drawing certain public Jands containing Hot_or Medicinal springs, exclusive of such lands in Alaska, is amended by de- leting therefrom the Words “cxcTustve of Alaska”, so that the said order shall ap- ply to lands containing hot or medicipal springs in both Alaska and the United States. Exccutive Order No. 5389, as herein amended, shall not apply to lands within National Forests, - This order shall not otherwise become effective to change the status of the surveyed or unsurveyed public lands in Alaska released fm withdrawal by this order until 10:00 a. m. on October 22, 1047, At that time, subject to valld existing rights and the provisions of existing withdrawals, the unsurveyed lands shall become subject to settlement and other forms of appropriation in ac- “cordance with applicable laws and regu- lations, but the surveyed lands shail be- come subject to application, petition, lo- cation, or sclection us follows: =—(a) Ninety-day period for preferences right flings. For a petiod of 90 days from October 22, 1947, to Junuary 20, 1948, inclusive, the surveyed public lands in Alaska released from withdrawal by this order shall be subject to (1) uppli- cation under the homestead laws, or the small tract uct of June 1, 1938 (52 Stat. 609, 43 U. 3. C. sec. 682a), as amended, by qualified veterans of World War 0, for whoso service recognition ts granted by the act of September 27, 1944 (53 Stat. 734, 43 U. S. C. sees, 279-283), subject to the requirements of applica-' ble law, and (2) application under any applicable public-land law, based on prior existing valid settlement rights and preference rights conferred by existing + Jaws or equitable claims subject to al- Jowance and confirmation. ‘Applications by such veterans shall be subject ta claims of the classes described in sub- division (2), (b) Twenty-day advance period for si- multancous prefercence-right fiings. For a period of 20 days from Octover 2, 1947 to October 21, 1947, inclusive, such veter~ ans and persons claiming preference rights superior to those of such vetcrans, may present their applications, and all such applications, together with those presented at 10:00 a. m, on October 22, 1947, shall be treated as simultaneously fled. . (c) Date for non-preference right fil- ings authorized by the public-land lau:s. Commencing at 10:00 a. m. om January , 21,15 2, any of the lands remaining un- Appropriated shall become subject to such application, petition, location, or selee- tion by the public generally as may be authorized by the public-land laws. (d) Twenty-day advance period for st- multancoug non-prefercnce right filings. * Applications by the general public may be presented during the 20-day period from January 1, 1948, to January 20, 1948, inclusive, and ell such applica- tions, together with those presented at 10:00 a. m. on Jar 21, 1048, shall be treated as simultancoucty filed, Veterans shall accompany thelr appi- cations with certified couples of their cere tifleates of discharse, or other sath.face tory evidence of their nuliitary or nava} service, Persons asserting preference rights, through setuicment or otherwice, and those having equitable claims, shall accompany their applications by duly corroborated affidavits in support there- of, sctting forth in detail all facts rele- vant totheirclaims. | . * Applications for these lands, which shall be filed in the proper district land oifce In Alaska shall be acted upon in accordance with the regulations con- tained in § 295.8 of Title 43 of the Code of Federal Regulations (Circular No. 324, May 22, 1914, 43 L. D. 254), to the extent that such regulations are applicably. Appli. .tions uncer the homestead laws shall be governed by the regulations con- taines in Part 65 of Title 43 of the Code of Federal Regulations and applications under the small tract act of June 1, 1938, shall be governed by the regulations con- taincd in Part 257 of that title. Inquiries concerning these Jands shall be addressed to the proper district land oMce"in Alaska, . The lands released from withdrawal by this order and for which applications may be fled as stated above are described follows: AU surveyed public lands in Alaska con- taining hot springs, or other springy the waters of which possces curative medicinal Propertica, to the extent of 1CO acres sur-~ rounding each apring, in rectangular form with side and end lincs equidistant, as near as muy be, from such spring or group of springs, Dot including, howover, any-emallest legal subdivision of the public land surveys which contains a hot spring, or a spring the waters of which possess curative properties, © : C. Giragp Dantrtson, Assistant Secretary of the interior, i “Aveust 20, 1947. + 4%. BR. Doo, 47-2007; Piled, Aug. 97, 1947; . 6:45 a.m) —_—_—. ‘ r APPENDIX 4 Executive Order ‘Withdrawal of Public Lands Containing Medicinal Springs United States Under authority of the act of Congress approved June 25, 1910 (36 Stat. 847), as smended by the act of August 24, 1912 (37 Stat. 497), it is hereby ordered that every smallest legal subdivision of the public land surveys which is vacant unappro- priated unreserved public land and contains » hot spring, or a spring the waters of which possess curative properties; and all land within one-quarter of a mile of every such spring located on unsurveyed public land, ‘exehverve-of tesa, be, and the same is hereby, withdrawn froin settlement, location, sale, or entry, and reserved for lease under the provisiona of the act uf Murch 3, 1925 (43 Stat. 1133), subject to valid . existing nghts. This order shall remain in full force and effect unless and until ‘reyoked by the President or by act of Congress. 7 oe HERBERT OOVER Tux Waite Hover, July 7, 1980. _ No. 5389] APPENDIX 5A 43 §971 PUBLIC LANDS Ch. 22 Title 15, the right of way granted in sections 966-970 of this title shall be forfeited without further action or declaration on the part of the Government or any. proceedings or judgment of any court. Apr. 12, 1910, ¢. 155, § 5, 36 Stat. 296. § 971. Bathhouses, hotels, etc., adjacent to mincral, medici- nal, ctc., springs on public lands The Secretary of the Interior, upon such terms and under such reg. ulations as he may deem proper, mee permit Tesponsible persons or associations to use and occu or the erection of bathhouses, hotel ‘or other improvements for te ‘accommodation of the public, suitabl spaces or tracts of fend near or adjacent to mineral, maodietnal m other springs which are located upon unreserved public lands or pub- lic lands which have been Withdrawn for the protection of such springs: Provided, That permits or leases hereunder shall be erlods not exceeding twenty years. ar. 3, , c. 458, 43 Sta 1133. CHAPTER 23.—GRANTS OF SWAMP AND OVERFLOWED LANDS Sec. 981. Indemnity to States on sale of lands. 982. Grant to States to aid in construction of levees and drains. 988. Lists and plats of lands, for governors of States. 984. Legal subdivisions mostly wet and unfit for cultivation. 985. Patents to prior purchasers and locators. 986. Selection of lands confirmed. 987. Lands to be certified to State of California within one year. 988. Act extended to Minnesota and Oregon. 989. Homestead entries by purchasers from Missouri of lands de. clared not to be swamp lands. 990. Grant to Missouri. 991. Title of purchasers of unconfirmed lands in Arkansas con. firmed. 992. Sale of erroncously designated water-covered areas in Arkan. sas. 993. Sale of lands in Louisiana; preference rights; application for purchase; appraisal; payment for land. 994. Sale of lands in Wisconsin. § 981. Indemnity to States on sale of lands Upon proof by the authorized agent of the State, before the Dj. rector of the Bureau of Land Management that any of the lands pur. chased by any person from the United States, prior to March 2, 1855, were “swamp lands,” within the true intent and meaning of the Act 332 APPENDIX Chapter ll—Bureau of Land Management 1902 (32 Stat. 388; 43 U.S.C. 372 et seq.), respectively. (3) With respect to mineral lands, the said orders do not prevent pro- specting, locating, developing, mining, entering, leasing, or patenting of the withdrawn lands, under the provisions of the applicable mineral or mineral leasing laws. §2300.0-5 Definitions. As used in §§ 2351.1 to 2351.6, and 2357.1, the term “withdrawal or reser- vation” means ‘withdrawal, reserva- tion, or restriction” and “land” in- cludes both land and water areas. PART 2310—WITHDRAWALS— BUREAU OF LAND MANAGEMENT Subpart 2311—Public Water Reserves Sec. 9311.0-3 Authority. 2311.0-8 Lands subject to withdrawal. 2311.1 Selections, filings, or entries. 2311.2 Application to select or enter lands. 2311.3. Use of lands withdrawn as public water reserves. 2311.4 Leasing of public lands near or adja- cent to springs, for bath houses, hotels or other improvements. Subpart 2313—Stock Driveways 2313.0-3 Authority. 2313.1 Application for stock-driveway with- drawal. Subpart 2317—Public Aviation Fields 2317.0-3 Authority. 2317.0-7 Cross references. 2317.1 Procedures. Subpart 2311—Public Water Reserves Autuontty: Sec. 11, 39 Stat, 865; 43 U.S.C. 301, unless otherwise noted, Source: 35 FR 9552, June 13, 1970, unless otherwise noted. §2311.0-3 Authority, (al) Withdrawal of lands from set- tlement, location, sale, or entry; reser- vatton for public use. By executive ordér of April 17, 1926, it was ordered thal every smallest legal subdivision of the public-land surveys which is vacant, unappropriated, unreserved, public land and contains a spring or 83 5B § 2311.0-3 water hole, and all land within one quarter of a mile of every spring or water hole located on unsurveyed public land be, and the same is hereby, withdrawn from settlement, location, sale, or entry, and reserved for public use in accordance with the provisions of section 10 of the act of December 29, 1916 (39 Stat. 865; 43 U.S.C. 300), and in aid of pending legislation. (2) Purpose of withdrawal. The Ex- ecutive order of April 17, 1926, was de- signed to preserve for general public use and benefit unreserved public lands containing water holes or other bodies of water needed or used by the public for watering purposes. It is not therefore to be construed as applying to or reserving from homestead or other entry lands having small springs or water holes affording only enough water for the use of one family and its domestic animals. It withdraws those springs and water holes capable of providing enough water for general use for watering purposes. he provisions of the act of Marth 1925 (43 Stat, 1133), subject _to valid (2) Purpose of withdrawal. : seutlve order mentioned in b The Bi (o1) of this section was desi enefit. the unreserved pub and § 2311.0-8 § 2311.0-8 (a) Lands not needed or used by the public for watering purposes. (1) The object of the Executive order of April 17, 1926, was to: * * * preserve for general public use and benefit unreserved public lands containing water holes or other bodics of water needed or used by the public for watering purposes. (2) In the States of Alabama, Arkan- sas, Florida, Louisiana, Michigan, Min- nesota, Missouri, Mississippi, and Wis- consin the springs or water holes, if any, on the public lands are not needed or used by the public for wa- tering purposes. The conditions in those States are entirely different from those in the other public-land States where grazing is carried on toa considerable extent and not only springs and water holes but other available sources of water supply are sometimes quite scarce. There are no lands in the States mentioned that come within the purview of the Execu- tive order of April 17, 1926. Therefore, a nonwater hole and nonspring state- ment is not required in connection with applications for lands in such States. Neither will such statement be required in connection with applica- tions for lands in Federal reclamation Projects. (3) By E.O. 5106 of May 4, 1929, Alaska was excluded from the public water reserve created by E.O. of Apr. 17, 1926. Lands subject to withdrawal. § 2311.1 Selections, filings, or entries. (a) It must be shown by a duly cor- roborated statement in connection with every selection, filing, or entry made upon or subsequent to the date of Executive order of April 17, 1926, or theretofore filed but not allowed, that no spring or water hole exists, if it be a fact, upon any legal subdivision of the land sought to be appropriated, if surveyed, and if unsurveyed, within one-quarter of a mile from the exteri- or boundaries of said land. If there be any spring or water hole the showing should state the exact location and size thereof; together with an estimate of the quantity of water in gallons which it is capable of producing daily, and any other information necessary Title 43—Public Lands: Interior to determine whether or not it is valu- able or necessary as a public water re- serve. (b) The showing mentioned will not be required in connection with pro- posed State exchanges or indemnity school and other State selections, in- volving public lands in grazing dis- tricts, where agreements as to the ex- changes or selections have been reached by representatives of the State, and the Bureau of Land Man- agement. (c) Where orders of designation under the said acts contain the quoted paragraph in paragraph § 2311.0-8(a) of this section, it will not be necessary for an entryman to make the showing required by §§ 2311.1(a) and (b) of this section, (d) Application of order of withdraw- al to specified cases. (1) In case the at- tempted appropriation of the land is one the allowance of which is within the discretion of the Secretary of the Interior or the Bureau of Land Man. agement, the showing required by § 2311.1(a) of this subpart must be fur. nished, irrespective of the date of filing of the application, entry, or se- lection, before favorable action is taken thercon. (2) This requirement shall not apply, however, to selections or filings made in pursuance of grants which have been determined to be “grants in prae. senti,” and to have attached and become effective prior to April 17, 1926. (3) Geological Survey designation lists, under the Enlarged Homestead Acts will contain a paragraph that: This area. contains no springs or water holes of the type intended to be withdrawn by Executive order of April 17, 1926. creat. ing public water reserve No. 107, and, there. fore, is unaffected by it. § 2311.2 Application to select or enter lands. (a) Showing as to hot or medicing springs required wi applications {, ands. (1) An a) cant to ne select Tands situated ouraide of : uy fonal_ forest In an. ate mi Ow APP 5B Chapter tl—Bureau of Land Management properties exists, if it be a fact, u ught juan aro a mile from such S' spri €_quan fof water In lions Whic. is capable of produc- Caan and any other Information Be sary to determine whether or not necessa mine whe r or no TS Valtiable or necessar, within the meaning of said Executive order. The (4) The showing mentioned will not e n_connection To- yolviny j To Pare agrecinenis ie to he EF X- nges se ections ave bee ae a Tepresentatives of the a eg uu of Land Man. tates ani ureau oO. ni ment. Teblication of order of withdraw- a Tospeeied cases. ry Th case the a t tem) ed a ropriation 0 ands is one Oana ance of which is within Saistretion of Ine Secretary of the Inter r the Bureau of Lan an- agement, the Showing referred to in saragraph ta) of this section must be ing O. @ application, entry, or se- tion before Ttavorable action ts taken thereunder. e 2) ological Survey designation sts, under e knilarge omestead Act, will contain a paragrap stat ng: This area contains no spring of the type intended to be withdrawn by Executive order of July 7, 1930, No. 5389, and there- fore is unaffected by it. (3) Where _orders_ of designatlo contain the above-quoted paragraph t S ara- o make the showing require: grapmr ta) OT Unis secl = SO in Cases oO. Ic: entries for lands within Federal recla- § 2311.3 mation projects, where a report is made the Bureau of Reclamation that the lands contain no spring of the type neni to bs withdrawn by E.O. 5389, Ju will not be neces- Sary for the Claimant to make the Eee ee by. paragraph Tay OF (R.S. 2478; 43 U.S.C. 1201) § 2311.3 Use of lands withdrawn as public water reserves. (a) Authority; governing regulations. Permission may be obtained to use or improve lands withdrawn as or in con- nection with public water reserves, under the act of June 25, 1910 (36 Stat. 847; 43 U.S.C. 141-143, 16 U.S.C. 471), or any other act, by filing appli- cation for such permission under the act of February 15, 1901 (31 Stat. 790; 43 U.S.C. 959), in accordance with the regulations governing said act, as found in Parts 2850, 2860, and 2870 of this chapter, as supplemented by this section. (b) Who may make application; form and contents. (1) Any citizen or associ- ation of citizens of the United States, or any corporation, duly created and existing under and by virtue of the laws of any State of the United States, who may desire to improve the pro- ductivity of any water hole or source of water supply within the boundaries of any public water reserve, or to con con- euct such waters from their source in such a reserve @ point or PIECE -WHOTE_CONVERTENT-TOT-DUBTIC USE, fay Tie In the proper office for the OST, Within Which the reservation Ts situated, an application for permis sion so_as to use the reserve: , Or e_waters over or tren h the same. (2) Such application should be in the form of a statement, duly corroborat- ed by at least two persons, setting forth in detail the plan of the appli- cant for the improvement and care of the public water reserve, the public necessity for such improvement, the reasons why such plan will be more conducive to the public good and better conserve the waters for public use, and any other facts and circum- stances pertinent thereto. 85 APP 5B § 2311.3 (c) Map and field notes required when water is. to de conducted outside of the reserve. If the waters are to be conducted from their source within the reserve to a point outside of the reserve, the application should be ac- companied by a map and separate field notes in duplicate, the map being delineated upon tracing linen, and pre- pared in accordance with the regula- tions governing the submission of ap- plications under the act of February 15, 1901, also evidence that applicant has applied to the proper State olticial for permission to appropriate the waters to the uses contemplated and fas prosecuted such application In good faith to date of the Tiling o: SPETIERTON. a amr (ad) en reservoir declaratory state- ment may be required. If the place of use of the water is upon unreserved public land the applicant may be called upon to file a reservoir declara- tory statement under the act of Janu- ary 13, 1897 (29 Stat. 484; 43 U.S.C. 952-955), as well as the application under the act of February 15, 1901, if deemed advisable. (e) Stipulations and agreements re- quired. As a condition precedent to the granting of any such permission, the applicant will be required to execute such stipulations and agreements as may be deemed proper and necessary by the authorizing officer of the proper office, to safeguard the public interests, after investigation of the facts, circumstances, and conditions in connection with each individual case. (f{) Conditions of permit; failure to comply with the same, (1) Each permit shall contain, besides those found nec- essary in individual cases, the follow- ing conditions: (i) That the right to appropriate the waters of the State to the uses con- templated shall be obtained within 1 year from and after the issuance of the permit and the permitice shall file A certilicate to that effect issued the proper State authority. i) That the provosed system shall be fully completed in substantial con- formity with the plan upon which the rmit is predicated, within 2 years from and after the issuance of such permit, unless a different period is Title 43—Public Lands: Interior specifically provided for in such permit. : (ii) That of the permittee shall. during the month of January, in each year after the completion of such system, file with the authorizing offi- cer of the proper office within which the system is located, a statement of maintenance, in substantially the fol- lowing form: . (Name) of ——--—————--— (Ad- dress), states that he is the President of the —-—-—-—— company (or person) to whom permit (give land district and serial mumber), was issued by —--———, (give date), in connection with public water reserve No.——— that. the system as set forth and de scribed in said permit has been kept in repair and water sufficient for the public needs has been kept therein during the whole of the calendar year of 19——, that the samc has been kept open to the public at all times during the year, and that the said permittee has in all things, complied with the provisions of said permit, and the stip- ulations therein contained and the acts under which said permit was issued. (Signature) (Date) (2) In the event that the State cer- tificate as to the right to appropriate The water Is not Tiled within t year, or proof of the construction of the system, consisting of the statement of the permittee duly corroborated by two witnesses within 2 years or such other period as may be mentioned in the permit, or statement of mainte- nance is not filed as hereinbefore pro- vided or in case any of the terms, con- ditions, provisions, or stipulations of the permit shall not be well and in good faith performed, observed, and carried out, then such permit shall become and be subject to cancellation. Nothing hereinbefore contained, how- ever, is to be construed as limiting the power or authority of the authorizing officer to cancel and terminate the permit at any time when in his jude- ment such action is desirable. APP 5b Chapter !l—Bureau of Land Management (3) Permits issued hereunder are transferable only upon the written au- ‘hority and consent of the authorizing vificer. (g) Changes in system or new struc- tures may be authorized. If, at any time, it becomes necessary for the per- mittee to change his system or to erect Structures other than those author- ized by his permit, application for per- mission so to do, in the form of a Statement setting forth in detail the Teason and necessity for the change Must be filed, and no such change shall be made until authorized in writ- ing by the authorizing officer. (R.S. 2478; 43 U.S.C. 1201) $2311.14 Leasing of public lands near or adjacent to springs, tor bal OUSES, otels, or other improvements. (a) Statutory authority. The act of March 3, 1925 (43 Stat. 1133; 43 U.S.C. 971) authorizes the issuance of leases for periods not exceeding 20 years of tracts of land near or adjacent to min- eral, medicinal, or other springs locat- ed upon unreserved public lands or public lands withdrawn for the protec- tion of such springs, for the erection of bath houses, hotels, or other im- provements for the accommodation of the public. Leases may issue under the act to any responsible persons or asso- clations, which words are construed to include private corporations and mu- nicipalities. (b) Lands which may be leased. Leases may be issued for surveyed or unsurveyed unreserved public lands in the several States, situated near or ad- jacent to mineral, medicinal, or other springs, which are located upon unre- served public lands, and for public lands which have been withdrawn for the protection of such springs. (c) Form and contents of applica- tion. An application for lease should be filed in duplicate in the proper office and should include the follow- ing: (1) Applicant's name and address. (2) If applicant is a private corpora- tion, a certified copy of the articles of incorporation. (3) If applicant is a municipality, the law or charter and procedure en by which the municipality his become a 87 § 2311.4 legal body corporate. An application by a private corporation or municipal- ity should show that it is legally quali- fied to take the lease requested and that the taking of such lease has been duly authorized by its governing body. (4) An accurate description of the land desired. If the land is surveyed it should be described with reference to the public-land surveys. A lease may be granted for part of a legal subdivi- sion or for more than one legal subdi- vision, in the diserction of the man- ager. (5) The names and addresses of three persons to whom reference may be made as to applicant's reputation and business standing and as to his ability, both from a financial stand- point and otherwise, to carry out the contemplated project. (6) The period of time for which the lease is desired, not to exceed 20 years, and the purpose for which the lease is sought, whether for the erection of a bathhouse, hotel, or other improve- ment for the accommodation of the public. It is important that the appli- cation should specify all purposes for which it is intended or desired to use the land, as a lease, if issued, will au- thorize the use of the land only for the purposes specified in the applica- tion, and its use for any other purpose will not be permitted. Thus, if an ap- plicant for a hotel in addition to using the land for ordinary hotel purposes, wishes to operate a billiard hall or moving-picture theater, etc. on the land, that fact should be disclosed in the application. (1) Details as to the proposed im- provements, including the estimated cost of construction and of subsequent maintenance; also the time when con- struction work will begin and when it will be completed, if the proposed lease is granted. (d) Granting of lease is discretion- ory. The granting of an application for lease is discretionary, and any applica- tion may be granted or-denied in part or in its entirety as may appear to be warranted in the particular case. (e) Authority of the authorizing offi- cer to regulate prices. All leases issued under the act of March 3, 1925, will contain. stipulations authorizing the APP 5B § 2313.0-3 authorizing officer to fix the rates and prices for accommodations and serv- ices whenever this is deemed neces- sary. The charges which may be made may or may not be regulated by the authorizing officer as may be deemed proper in the particular case. (43 Stat. 1133; 43 U.S.C. 971) Subpart 2313—Stock Driveways Source: 35 FR 9554, June 13, 1970, unless otherwise noted. §: °13.0-3 Authority. The reservation of driveways . for stock provided for in section 10 of the act of December 29, 1916 (39 Stat. 865; 43 U.S.C. 300) will be considered on ap- plication of parties interested on rec- ommendation of other departments of the Government, or on the reports of agents of this Department. Lands withdrawn for driveways for stock or in connection with water holes can not thereafter be entered. § 2313.1 Application for withdrawal. (a) Upon the receipt in the proper office of a duly executed application, in duplicate, for the withdrawal of public lands for a stock driveway by responsible parties in interest, the lands described therein shall be segre- gated from disposition temporarily, pending final action thereon by the Bureau of Land Management. (b) Pending and during such tempo- rary segregation, applications to enter or select any affected lands may be re- ceived and suspended, (c) Lands withdrawn for driveways for stock or in connection with water holes are not subject to entry or dispo- sition, and applications for the acquisi- tion of lands so withdrawn will be re- jected by the authorizing officer. Ap- plications for the exchange of such lands, which show that they are filed Pursuant to a program for the im- provement of stock driveways, and ap- plications to lease or use such lands under any appropriate public land law, until such time as they may be needed for the purposes of the withdrawal, and where the proposed use will not stock-driveway 88 Title 43—Public Lands: interior interfere with such purpose, will re- ceive consideration. Subpart 2317—Public Aviation Fields Source: 35 FR 9554, June 13, 1970, unless otherwise noted. § 2317.0-3 Authority. (a) The act of May 24, 1928 (45 Stat. 728; 49 U.S.C. 211), as amended, autho- rizes the Secretary of the Interior to withdraw lands for beacon lights and other air-navigation facilities, under such rules as he may prescribe. ¢b) Under the authority given to the President by the act of June 25, 1910 (36 Stat. 847; 43 U.S.C. 141, 16 U.S.C. 471) to withdraw lands for public pur- poses, withdrawals may be made for beacon lights, emergency or intermedi- ate landing fields, except terminal air- ports. § 2317.0-7 To the extent applicable, the proce- dures in Part 2350 of this chapter shall apply. § 2317.1 (a) Withdrawals under the act of May 24, 1928 (45 Stat. 728; 49 U.S.C. 211) may be made on motion of the Bureau of Land Management, or upon application of the Federal Aviation Agency or any other Federal agency, or the lessee of a terminal airport or the applicant for such a lease. (b) In addition to the requirements of Part 2350 of this chapter, all appli- cations for withdrawal shall contain a statenient by the authorized officer of the Federal Aviation Administration as to the need and feasibility of the fa- cility for which the withdrawal is re- quested. Cross references. Procedures. PART 2320—WITHDRAWALS FOR OTHER INTERIOR AGENCIES Subpart 2322—Bureau of Reclamation Sec. 2322.0-3 Authority. 2322.0-5 Definitions. 2322.0-7 Cross references. 2322.1 Effect of withdrawals. 2322.1-1 Under first form. APP 5B APPENDIX 6 ALASKA CONSTITUTIONAL CONVENTION PROCEEDINGS Taw. 18 19SEC RESIDENT EGAN: What is your pleasure, Mr. Riley? RIDEY: Mr. President, I move its adoption. PRESIDSNT EGAN: Mr. Riley moves the adoptio amendment, of the proposed ROBERTSON: “Way we have it read again, pease. PRESIDENT EGAN:\ Will the Chief Clerk/please read it again. (The Chief Cl&ck read the proposed amendment again.) PRESIDENT EGAN: Mr. ves. Do you ask unanimous con- sent, Mr. Riley? ~ RILEY: I do, Mr. Presiden PRESIDENT EGAN: Mr. Rid€y ask&unanimous consent for the adop- tion of the proposed endment. r. Ralph Rivers. R. RIVERS: I objegt, just for the ment, Mr. President. Would sie not say "subor@inate property righ " 4anstead of “inferior"? RILEY: Either/would do, I would think. 2 delegate apf the Committee accepted it. is is one proposed by R. RIVERS; That could be referred to Style anW Drafting. I will support Xfnet. - ENT EGAN: Is there objection to unanimous cohgent request forAhe adoption of the amendment? If there is no objection, proposed amendment is ordered adopted. Are there other Mendments to Section 17? Section 18? Mr. Taylor. we TAYLOR: Seventeen, Mr. President. I have a question regarding that particular section. It says the person should not be divested of his right to use of waters, except for a superior beneficial or public use. I was thinking about matters which have not been brought up by the Committee, and I brought it up today: the federal law provides that all hot springs or-springs with proven medicinal value are reserved to the federal govern-— ment, so people can have the beneficial use of those springs -- those waters that do have a distinct medicinal value. And I thought, possibly, in 17, or in the section which is now 13, we could include some provisional clause along that line. PRESIDENT EGAN: Do you have an amendment, Mr. Taylor? APP 6 2561 TAYLOR: I have no amendment right now. I just brought it up, that we might prepare an amendment after the dinner recess. RRESIDENT EGAN: Mr. Ralph Rivers. R. RIVERS: Mr. President, I have an amendment to Sectio# 16, if may have the privilege of backing up a bit. The néw Sec- tion ko. : PRESIDENQ EGAN: The Chief Clerk will please read tKe proposed amendment\to the new Section 16. CHIEF CLERK "Line 13, page 6, delete the periéd after the word ‘law' and add\'with just compensation!." PRESIDENT EGAN: \Mr. Ralph Rivers. R. RIVERS: Mr. Président, I move the adgtion of the emendment. I might state that talked to Mr. Riley and a couple cf others on the Committee; I den't know whether/I referred it to the Committee as a whole, but I talked to members of the Cormnittee about it. PRESIDENT EGAN: Mr. Ralph\Rivers/moves the adoption of the proposed amendment. Is there aecond? : TAYLOR: Would you read it aga? ‘ KNIGHT: I'll ‘second it. Te st PRESIDENT. EGAN: Mr. Knight seconds the motion. Would the Chief Clerk please read the pfoposed amendment. (The Chief Cler read the amendment\again. } TAYLOR: I'd like Ao raise a point of inquivy. Do you think it would not be betver if that were done only By operation of law "and with just gompensation". PRESIDENT EGAN: Mr. Ralph Rivers. TAYLOR: Dé you want a conjunction in there? R. RIVERS: I don't care whether the "and" is in there or not. That wuld be for Style and Drafting. I'm not sure if ‘operation of laf with just compensation". I think it's adequate with the "any, Mr. President and delegates, the reason I bring this up is/Ahat the very next section says "Proceedings in eminent dgmain may be undertaken for private ways of necessity to paéxmit essential access for extraction or utilization of resources,’ 2593 Tan. 1% SE RRESIDENT EGAN: That would be at the end of the line. RNey asks unanimous consent that the proposed amendme Is there objection? Hearing no objection, is so Are there other amendments from the Resoupées Com- RILEY: I ask unan tion of the amendmers PRESIDENT EGAN: Mr. Ris tion of the amendment. tion, the-proposed amendme y asks unghimous consent for the adop- gs there Objection? Hearing no objec- is/ordered adopted. : CHIEF CLERK: "Page 3, Sect 14, and insert in lieu the eof: the State by the United 9 ates and the State public domailm line 13, strike lines 23 and election of lands granted to for the administration of RILEY: Mr. Presidept, I ask unanimous sensent for the adoption of the amendment., PRESIDENT EGAN Mr. Riley asks unanimous co endment. Would the Chief Clerk please read the DENT EGAN: Is there objection to the unanimous co est for adoption of the amendment? If not, the prop CHIEF CLERK: "Page 5, Section 13; line 20, after the word ‘use! insert a comma, and add ‘except mineral and medicinal waters'." PRESIDENT EGAN: Mr. Riley. RILEY: Mr. President, I ask unanimous consent for adoption of the amendment. PRESIDENT EGAN: Mr. Riley asks unanimous consent for the adop- tion of the amendment. Is there objection? — COOPER: I object. PRESIDENT EGAN: Objection is heard by Mr. Cooper. COOPER: Just for a point of clarification -- "except mineral waters" -- what is that? : . APP 6 25904 PRESIDENT EGAN: Mr. Riley. RILEY: Mr. Cooper, this goes to the question raised by Mr. Taylor earlier today. He drew attention to the fact that the federal government reserves the disposition of hot springs. And some of us have talked with some of the federal land office people since that time, in an effort to arrive at language as nearly like the federal reservation as possible, and this is what we have offered. PRESIDENT EGAN: Mr. Cooper. COOPER: Mr. President, I'll have to ask further. The term "mineral waters" -- anyone living in this area certainly is well aware of. the fact that there is plenty of mineral in this water; and, therefore, there could be a question at a future date. PRESIDENT EGAN: Mr. Riley, do you have an explanation? Do you so move, Mr. Riley, for the adoption of the amendment? RILEY: I have, yes. PRESIDENT EGAN: Mr. Riley moves. Is there a second to the moticn? eaeuies KNIGHT: I'll second it. PRESIDENT EGAN: Mr. Knight seconds the motion. The question is open for discussion. The question is, "Shall the proposed amendment, as offered by the Committee on Resources, be adopted by the Convention?" All those in, favor of adopting the proposed amencment will signify by saying "aye", all opposed, by saying "no", The "ayes" have it and the proposed amendment is ordered adopted. Are there other amendments? a EF CLERK: No more committee amendments. PRESIDE! he second time around on t GAN: If not, then we will start wit amending process. KILCHER: Mr. Pres PRESIDENT EGAN: Mr. Kilch KILCHER: Will this be PRESIDENT EGAN: time, for Smith. arecess at this , mendments? Mr. es the Committee desi pose of hearing any propose offer- would like to ask if there are amendments to 3056 APP 6 JAN. 25, \9SE yroposed amendment will signify by saying "aye"; alY. oppose saying "no", The "ayes" have it,and the proposed amen is dered adopted. Are there other proposed committee ments*® : CHIEF CLE therein'. K: "Page 4, lines 1 and 2, strike ‘or inverests RILEY: Mr. Président, I move the adoption of e amendment as read. , STEWART: | I second the motion. PRESIDENT EGAN: Mr. Ridey moves the Adoption of the amend- ment, seconded by Mr. Stewart. Mr,/Riley. ‘RILEY: That is simply ea redixdaficy. . It appears in a subsec-. tion and it appears earlier o age 3 in the language qualify— ing the subsection. has moved it has been seconded PRESIDENT EGAN: Mr. Ril : went be adopted\by the Convention. Mr. that the proposed amen Hurley. — HURLEY: May I as thet? Mr, Riley again where it\Nappears before RILEY: On pege 3, Mr. Hurley, on line 24, PRESIDEN ‘ EGAN: Is there further discussion? If ndoty.the: 1S‘, "Shall the proposed committee amendment ibe. a: Convention?" All those in favor of adopting).the> men d= will signify by saying "aye"; all opposed, by saying} \, io" "ayes" have it and the proposed amendment is ordered a re there other committee amendments? $e CHIEF CLERK: "Page 5, line 20 ae RILEY: I would like to suggest to the Clerk that the word . "the" might help the sense of that amendment. Shall I rend: the amendment ? CHIEF CLERK: Yes, please. PRESIDENT EGAN: Mr. Riley. RILEY: On line 20, we had, : by. action of the 'Conventt Thy - Sdn- serted, "except mineral and medicinal. waters" 7 ‘That | rticular insert should, under this amendment, follow. the ‘word "shall", ‘Gnstead of the word "use", It was ‘adopted following’: the word "use", but in the judg ment of the Committee, it Would , better follow the word "Shall" for clarity. of, meaning -- "except ila mineral and medicinal waters" inserted after the word "shall" APP 6 3057 and set off by commas. I move its adoption. PRESIDENT EGAN: Mr, Riley moves the adoption of the proposed amendment. Is there a second to the motion? KNIGHT: I second it. PRESIDENT EGAN: Mr. Knight seconds the motion. Mr. Taylor. TAYLOR: I am not objecting; this is just for information. ‘ir, Riley, did your Committee, in considering this amendment as to mineral springs or mineral and medicinal waters--is that the definition as given in the Bureau of Land Management regu- lations? RILSY: I would say that it is not full, but representatives of BLif in town, in Fairbanks that is, suggested to us that it would satisfy the point raised by you and others the other evening, ~~ TAYLOR: That is right. I think that was my amendment and I wasn't sure whether that was as it was set forth. RILEY: Yes, that is right. I am sorry I didn't check with you before. PRESIDENT EGAN: Mr. Hellenthal. HELLENTHAL: Mr, Riley, I take it this is a matter of substance or we wouldn't be asked to pass on it. RILEY: I would say it is a matter of substance. HELLENTHAL: How is it a matter of substance? RILEY: As I read it now, Mr. Hellenthal, it states, "All waters reserved to the people for common use except mineral and medicinal waters..." which would suggest that mineral and medicinal waters may not be reserved to the people for common use; but, if it is reac following the word "shall": "All waters reserved to the people for common use shall, except mineral and medicinal waters, be sub- ject to appropriation." There is a prospect there of misunder- standing, we feel, of a substantive nature. The point of the whole sentence is that these waters with that exception shall be subject to appropriation. We don't want to suggest that all other waters except mineral and medicinal waters are subject to reservation. The reservation applies across the field. a, HELLENTHAL: Style and Drafting can still work on it after tnis amendment? : : RILEY: I am sure, but with this to clarify our meaning. 3058 APP 6 i PRESIDENT EGAN: The question’is, "Shall the proposed amendment be adopted by the Convention?" All those in favor of adopting the proposed amendment will signify by saying "aye"; all op- posed, by saying "no". The "ayes" have it, and the. proposed amendment is ordered adopted. Are there other committee ameng- ments? . ONTEF CLERK: "Page 5, line 24, strike 'of' and substituts ‘aong'." RILEX Mr. President, I move the adoption of the amenfiment. PRESIDENT EGAN: Mr. Riley moves the adoption of thé amend- ment. Is there a second? MARSTON: _I\gecond the motion. PRESIDENT EGANX Mr. Marston seconds the mot#6n, Mr. Riley. RILEY: The Committee feels that the substdtution of the word "among" in that inStance ties in more cle4rly with the con- cept of concurrent uwye. Thet, too, might have been a Style and Drafting change b&t we feel that i¥ does touch on sub- stantive matter, ; PRESIDENT EGAN: The question is, /Shall the proposed amendment be adopted by the Convention? AIX those in favor of adopting the proposed amendment will Signffy by saying "aye"; all op- posed,>y saying "no". The "“ajgs" have it and the proposed amendment is ordered adopted./ Wre there other amendments?’ CHIEF CLERK: '"Transpose Seétions Y and 8, page 3." PRESIDENT EGAN: Transpoge Sections R.and 8. Mr. Riley. RILEY: Here, Mr. President, I would wave the motion to adopt, thinking it weéuld serve the purpose to call the matter to the attention of/Style and Drafting. PRESIDENT EGAN: /Are there other amendments fer Committee Pro- posal No. 8/a? R. RIVERS: May I address a question to Mr. Riley< PRESIDENT XGAN: If there is no objection, Mr, Rive R. RIVERS: Mr. Riley, I refer to page 3, first to lin& 7, which X have marked down as a new Section 8, and it speaks of "langé and interests therein". The same-question applies\to newection 10 on line 24, "or interests therein", and I woytd like to know wnat that means: "or interests therein"? RILEY: I should like to ask for a five-minute recess aid