Title 11 . Natural Resources

Chapter 62 . (No Regulations Filed)

Section 840. Definitions

11 AAC 62.840. Definitions

In these regulations the following terms shall have the meaning indicated unless the context clearly requires a different meaning:

(1) "Act" means the Alaska Land Act, AS 38.05;

(2) "commissioner" means the Commissioner of the Department of Natural Resources of Alaska;

(3) "director" means the Director of the Division of Lands of the Department of Natural Resources;

(4) "division" means the Division of Lands within the Department of Natural Resources. Administrative powers and other delegated duties as prescribed by law or regulations are vested in the director;

(5) "filing hours" are the hours between 10:00 a.m. and 3:00 p.m. on business days, which are Mondays through Fridays, except holidays;

(6) "land" means all tide and submerged lands under the jurisdiction of the division;

(7) "lease" means a lease issued or held pursuant to chs. 58, 64 and 80 of this title;

(8) "order" means a determination made by the director or the commissioner in accordance with authority lawfully vested in him, issued in writing, filed in the permanent files of the division, posted in a conspicuous place in the offices of the division, and made continuously available for inspection by the public;

(9) "section" means a section of these regulations;

(10) "part" means a part of these regulations;

(11) "person" means any person, firm, corporation, cooperative association, partnership or other entity legally capable of owning land or an interest therein;

(12) "occupant" means any person as defined herein, or his successor in interest, who actually occupied for any business, residential, or other beneficial purpose, tidelands, or tidelands and submerged lands contiguous thereto, within the state, on or prior to January 3, 1959, with substantial permanent improvements. The holder of a permit of clearance in respect to interference of navigation, or of a special use permit from a government agency will not qualify as an "occupant" unless such entry on the land had, through exercise of reasonable diligence, resulted in actual occupancy and substantial permanent improvements as hereinafter mentioned. No person shall be considered an occupant by reason of having

(A) placed a fish trap in a position for operation or storage upon the tide, shore, or submerged land;

(B) placed a setnet or piling therefor or any other device or facility for taking of fish;

(C) placed pilings or dolphins for log storage or other moorage;

(D) placed floats or vessels upon the tide, shore or submerged land;

(E) placed telephone, power or other transmission facilities, roads, trails or other improvements not requiring exclusive use of possession of tide or contiguous submerged lands; or

(F) claimed the land by virtue of some form of constructive occupancy.

Where land is occupied by a person other than the owner of the improvements thereon, the owner of the improvements shall, for the purposes of this section, be considered the occupant of such lands;

(13) "occupied or developed" means the actual use, control, and occupancy, but not necessarily residence, of the tide and contiguous submerged land by the establishment thereon of substantial permanent improvements;

(14) "improvements" shall mean buildings, wharfs, piers, dry docks, and other similar types of structures permanently fixed to the tide or contiguous submerged lands that were constructed and/or maintained by the applicant for business, commercial, recreation, residential, or other beneficial uses or purposes. In no event shall fill be considered a permanent improvement when placed on the tidelands solely for the purposes of disposing of waste or spoils. However, fill material actually utilized for beneficial purposes by the applicant shall be considered a permanent improvement;

(15) "fill" shall mean earth, gravel, rock, sand, or other similar materials placed upon tide or contiguous submerged lands for the purpose of elevating the lands for a specific useful purpose. The placement of earth, gravel, rock, sand, or other similar materials on tide or contiguous submerged land solely for the purpose of spoils disposal and thereafter abandoned and not used for any beneficial purpose shall not be considered fill;

(16) "substantial permanent improvement" shall for these regulations have the same meaning as improvements defined in sec. 840(14);

(17) "reclaimed or constructed tide or contiguous submerged lands" is here defined as those lands resulting by purposeful filling of tide or contiguous submerged lands;

(18) "preference right," subject to the classifications thereof established hereafter, means and includes the right of an occupant to acquire by grant, purchase, or otherwise, at the election of the occupant, except as otherwise limited or prescribed in this Act, any tract or tracts of tideland, or tideland and submerged land contiguous thereto, occupied or developed by such occupant on and prior to January 3, 1959;

(19) "Class I preference right." A Class I preference right shall be extended to persons who occupied and developed tide and contiguous submerged lands seaward of a surveyed townsite on and prior to September 7, 1957, after executing a waiver to the state of all rights such occupant may have had pursuant to Public Law 85-303. If the occupied and developed land is seaward of a municipal corporation, a waiver must also be made to the corporation. Upon execution of the waiver, such persons or their successor in interest, have the right to acquire such occupied and developed tide and contiguous submerged lands from the state or the municipality for a consideration not in excess of the cost of survey, transferring and conveying title.

A Class I preference right shall also be extended to persons who occupied and developed tide and contiguous submerged lands not seaward of a surveyed townsite on and prior to September 7, 1957. Such persons, or their successor in interest, are not required to sign a waiver and shall have the right to acquire such occupied and developed tide and contiguous submerged land from the state for a consideration not in excess of the cost of survey, transferring and conveying title;

(20) "Class II preference right." A Class II preference right shall be accorded to Class I preference right claimants who refuse to execute a waiver to the state or to the state and municipality of any rights such occupants may have acquired pursuant to Public Law 85-303. It shall be mandatory for such municipal corporation and the director to expeditiously honor the application from the occupant after the Secretary of the Army has submitted to the Secretary of the Interior and the Governor of the state maps showing the pierhead line established by the Corps of Engineers with respect to the tract so granted.

Pierhead lines have not been established in Alaska, nor is the establishment of such lines probable in the forseeable future. Therefore, the most expedient method of acquiring such lands occupied and developed seaward of a surveyed townsite on and prior to September 7, 1957, is by obtaining a Class I preference right;

(21) "Class III preference right" shall mean the preference right extended to a person who occupied and developed tidelands after September 7, 1957, and who continued to occupy the same on January 3, 1959. Such persons, or their successor in interest, have the right to acquire such occupied and developed tidelands for a consideration not in excess of the cost of appraisal, administering and transferring plus the appraised fair market value thereof, exclusive of any value occurring from improvements or development, such as fill material, building, or structures thereon;

(22) "permit preference" is herein defined as that privilege of the upland owner to acquire first choice over other non-preference right claimants to a permit for like use and enjoyment of the state owned tide or contiguous submerged lands abutting his property;

(23) "lease or permit preference." The holder of a valid Corps of Engineers Permit issued prior to November 15, 1959 may be accorded preference to a lease or permit by the state if justified in accordance with the policy of AS 38.05, as amended, and if in the best interest of Alaska. Such preference shall be subordinate to all other preferences recognized under this Act;

(24) "upland owner" is herein defined as that owner whose upland property abuts the line of mean high tide;

(25) "shore lands" means all lands which are covered by non-tidal waters that are navigable under the laws of the United States up to ordinary high water mark as heretofore or hereafter modified by accretion, erosion, and reliction;

(26) "tidelands" means those lands which are periodically covered by tidal waters between the elevation of mean high and mean low tides;

(27) "submerged lands" means those lands covered by tidal waters between the line of mean low water and seaward to a distance of three geographical miles or as may hereafter be properly claimed by the state;

(28) "coast line" means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters;

(29) "mean high tide" at any place subject to tidal influence shall be interpreted as the tidal datum plane of the average of all the high tides as would be established by the U.S. Coast and Geodetic Survey. "Mean High Water Line" shall be interpreted as the intersection of the datum plane of mean high water with the shore;

(30) (A) "mean lower water" at any place subject to tidal influence shall be interpreted as the tidal datum plane of the average of the low tides as would be established by the U.S. Coast and Geodetic Survey;

(B) "mean lower low water" at any place subject to tidal influence shall be interpreted as the tidal datum plane of the average of the lower of the two low waters of each day as would be established by the U.S. Coast and Geodetic Survey;

(31) "harbor line" is defined as that line fixed by the Secretary of the Army which is the limit to which piers, wharves, bulkheads, or other work may be extended in navigable waters without further authorization, Section 11, River & Harbor Act of March 3, 1899 (30 Stat. 1151; 33 U.S.C. 404);

(32) "pierhead line" is defined as a line fixed by the Corps of Engineers of the Department of Army that is parallel to existing line of mean low tide at such distance offshore from the line of mean low tide that said pierhead line shall encompass, to the landward, all stationary, manmade structures (but shall not encompass any part of breakwaters, bridges, or piers used for vessel dockage which part extends beyond such a parallel line marking the seaward extremity of other manmade structures) which were in existence as of February 1, 1957, to seaward of the particular townsite for which the pierhead line is being established, and shall encompass no more, Public Law 85-303 (71 Stat. 623) 1957;

(33) "natural resources" includes, without limiting the generality thereof, oil, gas, and all other minerals, but does not include fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine, animal and plant life, or water power, or the use of water for the production of power;

(34) "accretion" is defined as the gradual and imperceptible addition of new land to old by the natural deposition of sediments, i.e., sedimentation;

(35) "monument" shall be as described in sec. 300(d);

(36) "fair market value" is defined as the highest price, described in terms of money, which the property would bring if exposed for sale for a reasonable time in the open market, with a seller, willing but not forced to sell, and a buyer, willing but not forced to buy, both being fully informed of all the purposes for which the property is best adapted or could be used;

(37) the singular number includes the plural;

(38) the masculine gender includes the feminine and the neuter.

History: Eff. 7/20/60, Register 1; am 6/23/62, Register 5

Authority: AS 38.05.020

AS 38.05.365

AS 38.05.820