Legislature(2015 - 2016)HOUSE FINANCE 519
03/16/2015 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB115 | |
| HB26 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 115 | TELECONFERENCED | |
| += | HB 26 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE BILL NO. 115
"An Act relating to the transfer of public land from
the federal government to the state and to the
disposal of that land; and providing for an effective
date."
1:32:50 PM
REPRESENTATIVE MIKE CHENAULT, SPONSOR, read the sponsor
statement (copy on file):
Committee Substitute for House Bill 115 (RES) enacts
the Alaska Sovereignty and Transfer of Federal Public
Lands to Alaska Act. The bill requires that the United
States to transfer title to public lands to Alaska on
or before January 1, 2017. The bill also affirms
Alaska's state sovereignty under the Ninth and Tenth
Amendments to the U.S. Constitution.
Although there are a number of state and federal
constitutional issues regarding the provisions
contained within the bill, this bill was introduced
since the 35-year deadline from the time Alaska was
admitted into the Union as provided within the
Statehood Act, PL 85-508, is long past. I believe
there is a breach of good faith since the state is
still entitled to and awaiting the transfer of the
remaining 5.5 million acres. Thus far the state has
received patent to about 99.5 million acres.
Currently, the state has 10.9 million acres of
selections from which to receive its 5.5 million acres
of entitlement as well as 10.2 million acres of top-
filings that may eventually become selections should
applicable withdrawals be lifted. These withdrawals
come in numerous varieties of federal action and
processes. Two common executive branch actions that
create withdrawals are Public Land Orders (PLOs,
issued by the Department of the Interior) and
Executive Orders issued by the President.
The committee substitute for House Bill 115 (RES)
requires the federal government to turn over all lands
held by the federal government to the state subject to
acceptance by the state with the exception of lands
used for military purposes including military
reservations.
At this time according to the Department of Natural
Resources, there are approximately 222 million acres
within Alaska under federal ownership.
1:36:12 PM
Representative Chenault relayed that he was open to
questions.
Co-Chair Thompson pointed to the Legislative Legal opinion
that the bill would be unconstitutional.
Representative Chenault agreed that the bill might be
unconstitutional, but that the court system would need to
make the final determination, not the legal opinion of one
lawyer.
Representative Gara felt that the legal opinion clearly
stated that the bill was unconstitutional. He queried
whether the sponsor knew of any provision in the U.S.
Constitution that allowed a state to take federal land from
the federal government.
TOM WRIGHT, STAFF, REPRESENTATIVE MIKE CHENAULT, replied in
the negative.
Representative Gara noted that similar laws had been
enacted; a 1982 initiative that had demanded that the
federal government return all federal land within the state
was deemed unconstitutional by the U.S. Attorney General,
no movement had occurred on the issue for 32 years. He
furthered that in Utah a similar bill had been passed,
which had forced that state to set aside $2 million for
litigation purposes. He feared that the bill would result
in future litigation cost to Alaska.
Mr. Wright answered that the path to litigation would be
determined by the courts system and the governor. He shared
that the "Tundra Rebellion", passed in 1983, was not
enacted because the U.S. Attorney General took issue with
the law. He argued that the state had been waiting for 35
years to receive approximately 5.5 million acres, which
required that a strong message be sent to Congress.
Representative Gara wondered whether the bill could be
limited to the transfer of lands that had been promised to
the state upon statehood.
Mr. Wright replied that it would be up to the will of the
committee.
Co-Chair Thompson noted that department staff were online
for questions.
Vice-Chair Saddler spoke to the zero fiscal note. He asked
where anticipated legal expenses to defend the legislation
would come from.
Mr. Wright pointed out that the fiscal note was
indeterminate, not zero, because the legal costs were yet
unknown.
Vice-Chair Saddler asked about the Legislative Research
Services Brief that discussed land outside of wildlife
refuges and monuments. He wondered about the timing of the
bill.
Mr. Wright replied that the bill was related to timing due
to the president's orders to set aside more of Alaska's
land for conservation.
1:42:23 PM
Representative Guttenberg wondered whether the state was
behind in the survey work necessary to transfer most of the
land and, if so, should the state be working on that issue
while simultaneously pushing the legislation.
Representative Chenault deferred the question to the
Department of Natural Resources. He added that there could
be reasons to hold back on certain land selections because
other selections could become available.
Representative Guttenberg asked whether the ninth and tenth
amendments had ever been used successfully when arguing
similar cases on court.
Mr. Wright replied that the amendments had been included in
the backup documents for the bill in order to highlight
state sovereignty over certain issues.
Representative Guttenberg restated his question.
Mr. Wright believed that Utah was currently using those
amendments to argue a similar court case.
1:44:38 PM
ED FOGELS, DEPUTY COMMISSIONER, DEPARTMENT OF NATURAL
RESOURCES, added that of the 100 million acres of land
received by the state through the Statehood Land
Entitlement, 65 million had been surveyed and patented to
the state; approximately 35 million had yet to be surveyed
and were considered "tentatively approved." He furthered
that the 35 million acres essentially belonged to the
state, to manage as it wished, and that the survey backlog
was not currently limiting the state's ability to fully
utilize its lands.
Representative Guttenberg spoke to the conflict of property
transfers among land owners sharing property lines. He
wondered how far along the state was concerning resolution
on native allotment and over-selection issues.
Mr. Fogels thought that the question was broad and would
require and extended amount of time for a response. He
explained that the issues were ongoing and that the
department was mandated by law to transfer lands to
municipalities; some municipalities had completed their
entitlements, some had not. He continued that there were
many issues related to native allotments and the Bureau of
Land Management (BLM) had conveyed many allotments to-date.
He opined that the world of land management was complex.
Representative Guttenberg asked how quickly the state could
take the transfer of land, were the issues to be settled,
and the legislation were to pass.
Mr. Fogels felt he could not answer the question. He said
that if the courts determined the additional 200 acres
would be awarded to the states then it would be a
significant task to identify which lands, in addition to
the Statehood Land Entitlement lands, would be given to the
state.
1:48:49 PM
Representative Wilson felt that the fiscal note should be
zero, and not indeterminate, because there would be no
fiscal impact until a decision was made to litigate the
issue.
Mr. Fogels responded that the department's fiscal note was
based on the assumption the bill would be successful. He
said that the note accounted for the process and the
additional land management by DNR. He added that additional
revenues to the state could be expected. He stressed that
the fiscal note was purely related to land management and
did not consider litigation expenses.
Representative Wilson felt that the fiscal impact of the
bill should be viewed as a budget issue for the sake of
accuracy.
Mr. Fogels replied that the department had been asked to
provide a fiscal note for potential costs due to additional
land management.
Representative Wilson hoped that the department would
further scrutinize the fiscal note.
Co-Chair Neuman wondered whether the federal government, or
the state, would decide which lands would be returned.
1:52:11 PM
Mr. Wright replied that approximately 5.4 million acres of
land had been allotted to the state through the statehood
act, 10.9 million acres of selections to receive the
allotment, and 10.2 million additional acres of land that
was considered "top filed", a contingent selection where
the land would be subject to federal restrictions or
withdrawals; the state could not take these lands but by
executive order on the federal level. He gave an example of
land that was rich with mineral deposits along Trans-Alaska
Pipeline System (TAPS) that was currently under top filing
status and was unavailable to the state. He noted that no
wilderness refuges had been included in the bill. He
thought that it would be financially prudent to exclude
national parks from the bill because the state would not be
able to afford to maintain them.
Co-Chair Neuman surmised that the legislation asked the
federal government to turn requested lands back over to the
state for resource development.
Mr. Wright believed there was wide national support for
western states to win the transfer of federal public land
back to states, mainly to open up utilization of the public
land.
Co-Chair Neuman repeated the question as to whether the
bill would allow the state to select lands that it felt
would be beneficial to the state.
1:55:54 PM
Mr. Fogels responded that the state had 5.4 million acres
left to go in its entitlements and that the state had
selections on approximately 10.1 million acres, and an
additional 10.3 top filed. He said that the state had to
complete the statehood land entitlement process. He stated
that the bill offered a strong recommendation that public
land orders be lifted by the federal government to allow
the state to broaden its selection pool of land. He shared
that valuable lands had been identified that the state
would like to control. He said that the bill would require
the federal government to give additional lands; not
specified, and lands could be rejected that were deemed to
not be in the state's best interest.
Co-Chair Neuman surmised that the state needed the land in
order to diversify the economy. He believed that the bill
would create jobs for the state.
1:58:10 PM
Representative Kawasaki asked about the acreage of state
park land managed by the state. Mr. Fogels replied that the
state currently had approximately 3 million acres in the
state park system.
Representative Kawasaki wondered whether the fiscal note
for the bill would be increased by the state adopting the
entire 54 million acres of park land currently under the
federal government.
Mr. Fogels replied that there was the possibility that
revenue could be generated by acquiring the additional
lands, but that a way to zero out the fiscal note had yet
to be determined.
Representative Kawasaki thought that if the state were to
assume the 54 acres of federal park land it would be a cost
to the state. He opined clean water responsibilities that
the state took over in 2008, as well as wetlands permitting
in 2013, both of which had been of additional cost to the
state, and wondered if the legislation would produce
similar results.
2:01:25 PM
Mr. Wright replied that the sponsor intended to ask one of
the finance committee members to introduce an amendment
that would exclude national parks.
Vice-Chair Saddler pointed to page 2, lines 5 through 6:
(b) The affirmation, reservation, and assertion in (a)
of this section include the reservation of the rights
of the state to claim a credit or setoff for any
amount or injury inequitably or unlawfully caused or
claimed by the federal government.
Vice-Chair Saddler asked whether there was a listing of the
possible amounts identified in the section, and whether
there was an estimate of the potential value of those
injuries.
Mr. Fogels answered that he would provide the information
to the committee at a later date.
Representative Gara asked whether the 5.4 million acres
left to transfer to the state from the federal government
were in dispute.
Mr. Fogels replied no, the 5.4 million acres were the
remaining land entitlement. He reiterated that there were
10.1 million acres of land in "selection status", of which
selections had been prioritized, and that the state could
ask for conveyance of those lands at any time. He shared
that the "choicest" lands to the state were in the second
group of top filed lands and amounted to an additional 10.3
million acres. Those choice lands were currently off-limits
to the department because of the federal land withdrawals.
He stressed that it was important that the Department of
the Interior list the public land orders so that the state
could broaden the selection pool to the full 20.4 million
acres to choose from. He argued that the public land orders
no longer served a purpose and should be lifted by the
Department of the Interior.
2:05:08 PM
Vice-Chair Saddler wondered if there had been any
indication of willingness, or resistance, by the BLM to
comply with the goals of the bill. Mr. Fogels believed that
the BLM and Department of the Interior were reluctant to
lift the public land orders. He relayed that Governor
Walker had met with Department of the Interior Secretary
Sally Jewell to discuss the issue. He state that the BLM
would convey the state anything that was a valid state
selection fairly expeditiously. He reiterated that he was
speaking only to the statehood land entitlement; he could
not answer how the federal government would react to the
bill in regard to additional lands.
Vice-Chair Saddler asked whether passage of the bill would
encourage federal authorities to move more expeditiously
with the conveyance of state lands or other federal lands
to the state.
Mr. Fogels thought that the bill would help to lift the
public land orders.
Representative Gara reiterated concern that the bill was
unconstitutional. He hypothesized that if Alaska could take
whatever federal land it wanted, what would stop other
states from acting similarly, to the detriment of the
country.
Mr. Wright thought that decisions pertaining to the
hypothetical situation would be determined on a state-by-
state basis.
Representative Gara offered the example of the state of
Kentucky taking over the United States Mint and
subsequently destroying the economy on the federal level.
Mr. Wright responded that he could not speak to the
example.
Representative Gara added that Pennsylvania could take and
sell the Liberty Bell.
Mr. Wright rebutted that he could not speak to the
intentions of other state, nor answer rhetorical questions.
Co-Chair Thompson deduced that Representative Gara was
speaking to material things, whereas the bill discussed
land and the states right to the land after 50 years of
waiting.
Representative Gara stated that his concern was for passing
a bill that was unconstitutional. He requested a fiscal
note and an opinion from the Department of Law.
Co-Chair Thompson argued that the committee was not at the
point of appropriating money, but bringing the subject to
the forefront by alerting the federal government that the
state was ready to take back the land.
Representative Gara shared that the State of Utah had
passed a similar bill, which had garnered little response
from the federal government. He said that nothing had
happened in Utah for two years because the bill was
unenforceable. He stated no litigation had been filed
because the bill was unconstitutional. He wondered whether
the bill was the appropriate vehicle for gaining the
attention of the federal government.
Co-Chair Thompson contended that if more states filed bill
of a similar type, the federal government might revisit the
issue of conveyance of lands to states. He believed that
the bill was a good start in a possible national movement.
Vice-Chair Saddler requested an overview of the development
of public land ownership in the Eastern United States
verses the Western United States.
2:11:58 PM
Representative Chenault replied that he could not provide a
history. He said that as states became states, more land
from each wound up under federal control. He related that
the biggest problem that Congress faced when Alaska became
a state was the state's small population and large land
mass; there was fear that Alaska would become another
colony, leaving the federal government to take care of the
state's needs. He felt that, because approximately 62
percent of the Alaska's land was currently under federal
authority, the state had not been able to develop its
resources to sustain its economy. He suggested that the
state might not have to rely on federal dollars for certain
programs if it was allowed to develop its lands in a
responsible manner. He remarked that that initial fear of
Congress was what had occurred, not because of Alaska's
lack of ingenuity, but because the federal government had
not allowed the state to develop its land. He believed that
the legality of the bill should be decided in court.
Representative Munoz understood that lands that were top-
filed related to new land designations on preliminarily
selected lands. She asked whether the top-filing happened
before or after the lands had been identified by the state.
Mr. Wright deferred the question to the department.
Mr. Fogels answered that top-filed meant that the land was
wanted by the state, but that the land could not become an
officially selected parcel because of federal action. He
said that clean federal land, managed by the Bureau of Land
Management would be a valid selection; top-filings were a
selection on top of a federal withdrawal and not an
official selection allowed by Alaska National Interest
Lands Conservation Act (ANILCA).
2:16:08 PM
Representative Munoz surmised that top-filing could include
designations for refuges, parks, and national forest land.
Mr. Fogels replied in the negative. He explained that all
of the selections and top-filings were on BLM land,
multiple use federal lands, and the state had no selections
on refuges. He shared that national forests were handled
differently, the state had a special "flavor" of selection,
particularly in Southeast Alaska. He provided an example of
the pipeline corridor; when TAPS was first built BLM put a
withdrawal called Public Land Order 5150 from Prudhoe Bay
to Valdez. He explained that any BLM within the corridor
was withdrawn from state selection, resulting in a narrow
right-of-way. He furthered that the selections within the
corridor were not valid selections, but top-filings,
meaning that as soon as the federal government lifted the
public land order the top-filings would turn into valid
selections.
Representative Munoz asked why the state was not selecting
land within the 10.1 million acres that were still valid
for selection. Mr. Fogels replied there was valuable land
in the 10.1 million acres of selected lands, the issue was
that there was also valuable and in the other 10.3 million
acres of top-filed land, some of which was even more
desirable.
Representative Munoz surmised that the 10.1 million acres
was unencumbered with top-filing and the legislation would
lift the top-file designation on the 10.3 million acres,
further expanding the pool of land that state could
request.
Mr. Fogels replied in the affirmative.
Vice-Chair Saddler asked for verification that the bill
would not require the transfer of military bases. Mr.
Wright replied in the affirmative.
2:19:56 PM
Representative Guttenberg understood that asking the
federal government remove its restrictions would allow the
state to expand its selection criteria.
Mr. Fogels reiterated that the state was entitled to 5.4
million acres under the Statehood Land Entitlement, where
those 5.4 million acres were chosen from was the question.
The state wished to grow the pool to choose that acreage
from to 20.4 million acres.
Representative Guttenberg wondered how many employees in
the department interacted with federal land managers. Mr.
Fogels replied that the department interacted with federal
employees on many issues, on a daily basis. He said that he
could not provide a number related to the issue.
2:22:30 PM
Representative Guttenberg asked whether the department was
actively pursuing lands that were rich in heavy metals.
Mr. Fogels replied that most of the lands currently managed
by the state were open to mineral entry; there were a
number of mineral prospects begin worked throughout the
state. He said that the state encouraged and increase in
the mining industry and recognized that responsible mining
practices contributes greatly to Alaska's economy. He
assured the committee that the department was encouraging
additional responsible mining in the state.
HB 115 was HEARD and HELD in committee for further
consideration.
Co-Chair Thompson requested to be a co-sponsor of the
legislation.
| Document Name | Date/Time | Subjects |
|---|---|---|
| AS 38.05.125.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |
| BLM-Alaska Conveys 729,000 Acres to State of Alaska.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |
| Draft A Legal Memo-HB 115.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |
| Leg Research-State Lands.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |
| MyliusPresentationonLands-2013.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |
| South Carolina Resolution.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |
| State asks feds for transfer of 19,322 disputed acres on North Slope.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |
| PL85-508.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |
| US Constitution-9th and 10th Amendments.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |
| USCODE-2011-title43-chap33A-sec1635.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |
| Utah HB148.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |
| CSHB 115 (RES)-Sponsor Statement.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |
| HB 115 AK Miners Assoc Support.pdf |
HFIN 3/16/2015 1:30:00 PM |
HB 115 |