Legislature(2015 - 2016)BUTROVICH 205
02/03/2016 03:30 PM Senate RESOURCES
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| HB115 | |
| SB137 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 115 | TELECONFERENCED | |
| *+ | SB 137 | TELECONFERENCED | |
HB 115-AK SOVEREIGNTY;US TRANSFER LAND TO ALASKA
CHAIR GIESSEL announced consideration of HB 115 [CSHB 115(FIN)
was before the committee]. She invited the sponsor's staff to
provide a brief sectional analysis.
TOM WRIGHT, staff to Representative Chenault, Alaska State
Legislature, said HB 115 addresses issues related to public
lands including the transfer of title of public lands to the
state and also asserts state sovereignty under the 9th and 10th
Amendments of the U.S. Constitution. According to the Department
of Natural Resources (DNR), right now there are 222 million
acres under federal ownership: the Bureau of Land Management
(BLM) has about 75 million acres; wildlife refuges comprise
about 70 million acres; national parks comprise 54 million
acres; national forests comprise about 22 million acres, and the
Department of Defense has 2.2 million acres. Alaska was granted
28 percent of the total land area within its borders. State
entitlement was about 106 million acres after various federal
laws were enacted. The remaining entitlement to be selected is
5.4 million acres.
The state has selected 10.9 million acres from which to receive
those remaining 5.4 million acres, and has 10.2 million acres of
top filings that may eventually become selections. A top filing
is a contingent selection where the land is subject to federal
restrictions or withdrawals. The state is prevented from
selecting any of those lands until such time as a public land
order is issued by the Department of Interior or an executive
order is issued by the executive branch.
The definition of public land within the bill is federal land in
the state, except for title held by another person or for
military purposes. He said a legal memo indicates constitutional
issues with this legislation, but it can be asserted that since
land selections were supposed to have been finalized 35 years
after Alaska's admission into the United States, that the
federal government really has not acted in good faith in
honoring the requirements of the Statehood Act.
3:34:05 PM
SENATOR STOLTZE joined the committee.
MR. WRIGHT said that the state has lost revenue due to lack of
resource development on these federal lands; the Alaska National
Wildlife Refuge (ANWR) is a prime example. Actions last year by
the Obama administration to try to lock up federal lands from
any development whatsoever also would have impinged on the
state's entitlement to a share of the revenues from mineral
development on these federal lands.
MR. WRIGHT said that HB 115 also asserts the state's sovereign
rights under Articles 9 and 10 of the U.S. Constitution, and
this was previously addressed in the 1983 initiative known as
"The Tundra Rebellion," which was never implemented after its
affirmation by voters.
He said that Utah is also struggling with the federal government
in trying to get the lands it is entitled to, and the South
Carolina House adopted a resolution in 2013 supporting western
states in the transfer of federal public lands to them. So,
Alaska is not unique in that situation. He said the western
states are dominated by federal land ownership. The resolution's
main points are that the lack of utilization of these public
lands and natural resources has a negative effect on the states'
economies as well as that of the entire United States.
An interesting fact is that a study done by the Property and
Environmental Research Center (PERC) found that the federal
government loses an average of 27 cents for every tax dollar
spent managing public lands, whereas state land trusts, on the
other hand, realize $14.51 for every dollar spent on managing
public lands.
He said the bill is simple and that is why he didn't prepare a
sectional analysis, but he offered to go over each section.
SENATOR COGHILL wanted to know what a "public land order" is
referring to Section 4.
3:38:05 PM
ED FOGELS, Deputy Commissioner, Department of Natural Resources
(DNR), Juneau, Alaska, answered that "public land order" is the
term the department works with most. He didn't have a precise
legal definition, but it is a land order put in place by the
Secretary of the Interior on federal lands to withdraw for
certain purposes. It prevents state selections from attaching to
those lands.
He explained that Alaska is approaching the end of its statehood
land entitlement process. Of the 105 million acre entitlement,
100 million acres have been conveyed and there are 5 million
acres to be conveyed. The state has selected 10 million acres on
BLM land that it could probably get tomorrow by just asking for
it. The state also has about 10 million acres of lands it would
like to select, but because of the public land orders, those
selections don't attach; these are called top filings. The state
can't get those lands until the public land orders are lifted.
In reality, the state would like to acquire some of the more
valuable lands encumbered by the public land orders.
MR. FOGELS said DNR had been pressing the Department of Interior
to lift those public land orders, because they have outlived
their initial purpose. For example, public land orders were put
in place to make sure that the Native corporations could select
their lands, but now those selections have been done.
SENATOR COGHILL asked if public land orders were part of the
land agreement issue that came up under the Alaska National
Interest Lands Conservation Act (ANILCA).
MR. FOGELS answered that those land orders were actually put in
place by ANILCA.
SENATOR COGHILL asked if other land orders are disparate in
their purposes.
MR. FOGELS responded that there are multiple purposes. A couple
of classic examples are the footprint of the Susitna Watana
Project that is encumbered by a public land order for a power
site withdrawal. The second example that they have been fighting
about for years is Public Land Order 5150 that withdrew a wide
swath of land for the Trans-Alaska Pipeline System (TAPS)
pipeline from Prudhoe Bay to Valdez that encumbers tens of
thousands of acres that are clearly not needed. The state would
like to select some of those lands for their rare earth mineral
potential.
He corrected himself saying that the Native Corporation public
land orders may have been put in place by the Alaska Native
Claims Settlement Act (ANCSA) not by ANILCA.
3:43:11 PM
CHAIR GIESSEL recognized Speaker Chenault in the audience.
SENATOR COGHILL remarked that the first section talks about the
rights to "setoffs" and asked how the state and federal
governments view those.
MR. FOGELS responded that this term is not used a lot by DNR. It
is basically the placement for any loss of economy that Alaska
would have received had those federal lands had been fully
utilized.
SENATOR COGHILL said because the buffer zones in his neck of the
woods are getting bigger and bigger, the trappers and placer
miners are faced with economic issues. They fall under a rule
that needs to be challenged, but practically speaking, an
economy can't be developed there either.
MR. WRIGHT responded that this language is modeled after a Utah
bill (HB 141). The sponsor described "setoff" as establishing a
place holder to reserve the state's rights as it pursues its
sovereignty on land claims against the federal government. It
provides notice that the state reserves its right to claim a
credit or "setoff" for any amount of injury suffered by the
state that is wrongfully caused or claimed by the federal
government. If the federal government finds the state has a
liability to the federal government, the right of setoff allows
the state to reduce or eliminate that liability by deducting or
offsetting the amount the federal government owes the state.
That claim could be used on any resource, or oil and gas
development.
SENATOR COSTELLO said in previous years Mr. Fogels had testified
to the fact that the state doesn't want to rush to complete its
land selection, because once it does, then some of these other
areas are off the table, plus more information will be gathered
about the resources on it. She asked him to talk about "that
delicate dance" and how this essentially not only keeps the
state from the benefits of economic development on these lands
but also from completing its land selections. She also had
always thought it was 103.5 million acres and he is using 105
million acres.
MR. FOGELS responded that he could give the committee an
accounting, but the several different land grant programs total
up to an entitlement of 105 million acres. He said it has been
the department's position to not rush to the finish line. The
state has to get its last 5 million acres and they want to
choose the best ones. The 20 million acres in this pool, half of
which is off limits to the state, is a big pool of land about
which not much is known. He explained that for a number of
years, DNR did a strategic and critical minerals assessment
program and got a lot of new information on many of those lands.
This is how they found the rare earth and other critical mineral
spikes in Public Land Order 5150. But, the first thing to do is
to unencumber that 10 million acres. If that were done, DNR
would ask for certain lands right now, because they know they
are valuable. They would probably go for some lands in the
selected category.
He explained that the public land orders also hamper the state's
ability to gather data on those federal acres as well as the
ability of explorers to explore (a lot of data comes from the
private sector).
SENATOR WIELECHOWSKI asked if the administration supports this
bill.
MR. FOGELS said he had been told that the bill could have
constitutional issues and based on that, the administration
might find it hard to put its full weight behind it. The public
land order issue is incredibly important to the DNR.
SENATOR WIELECHOWSKI said he didn't think there was any
disagreement on that; the argument is all about whether the bill
is legal or not. A lot of times attorneys for Legal Services
hedge, but they didn't hedge on this; they said the bill is
unconstitutional and cited the Constitutional provision, Article
12, Section 12, that says:
The State of Alaska and its people forever disclaim
all right and title in or to any property belonging to
the United States or subject to its disposition.
Basically, Senator Wielechowski said, the argument in this bill
is that Alaska's Constitution is unconstitutional. But aside
from that, if the bill passes, what is the enforcement mechanism
for the department?
3:51:38 PM
MR. WRIGHT said honestly, he didn't think the state would take
any action. The state is just asserting that it could be better
stewards of state lands than the federal government can.
CHAIR GIESSEL thanked Mr. Fogels for his readiness to be on call
for information.
SENATOR MICCICHE said he wanted a listing of public land orders
that are set aside to understand the one section of the bill
that is worthy of fighting for.
CHAIR GIESSEL referred him to an on-line resource, The American
Lands Council, that has a map of the U.S. which shows the areas
in red, but she said she would also ask for that information.
SENATOR COGHILL said he would be willing to work with Mr. Fogels
and asked if he was willing to consider that the Statehood Act,
ANCSA and ANILCA became the formulating documents that were
meant to be about land use. There is probably a pretty good case
that the constitution has already been stepped over. He asked
Mr. Wright if he had gone through the series of legal steps to
show that Congress has unilaterally changed - without getting
permission from the state that would back up the fact that it
has to look through its Constitution, through ANCSA, and through
ANILCA - to make this case.
MR. WRIGHT answered no, but he would be more than willing to
look at that. He understands the constitutional questions that
come with this bill.
SENATOR COGHILL said he would be willing to work with him and
that he thought a severability portion needed to be added. The
way the Statehood Compact has been treated - especially under
the current administration where conservation unit guidance
overrule the whole constitution and a compact that Alaska made
with the federal government - might be the place to start a
conversation to show that if the state has to assert itself,
it's in defense of the Constitution, not in contradiction to it.
3:56:53 PM
SENATOR COSTELLO moved Amendment 1: 29-LS0587\I.3.
29-LS0587\I.3
Bullard
4/7/15
AMENDMENT 1
OFFERED IN THE SENATE
TO: CSHB 115(FIN)
Page 2, line 30, following the first occurrence of
"state":
Insert ", except for land that is used for
military or naval purposes including a military
reservation,"
Page 3, line 3:
Delete "43 U.S.C. 1635(f) (sec. 906(f)"
Insert "43 U.S.C. 1635(f)(1) (sec. 906(f)(1)"
CHAIR GIESSEL objected for an explanation.
MR. FOGELS said he worked with the sponsor on the two
amendments. The first one on page 2, line 30, inserts, "under
the public land orders to be lifted except for land that is used
for military and naval purposes including a military
reservation," because those are important lands and the state
doesn't have an interest in getting those. If they are abandoned
or withdrawn at some point in the future, the department would
keep a selection in place and it would attach at that time.
The second amendment on page 3, line 3, is technical and refers
specifically to the Statehood Act, Sec. 906(f)(1), because the
other sections aren't relevant. Sec. (1) basically restricts
over-selection to 125 percent and the department has selected
about 200 percent. So, according to this section, the BLM could
just start tossing the over-selections out without the state's
permission. The department has kept BLM at bay, because of the
public land order issue. So, it wants that 125 percent over-
selection restriction deleted.
3:59:34 PM
SENATOR STOLTZE said "naval" has different definitions and asked
if it is intended to be military-associated or is it broader to
encompass National Oceanic and Atmospheric Administration (NOAA)
vessels and encampments.
MR. FOGELS answered that the intent is to protect military
presence in Alaska.
CHAIR GIESSEL removed her objection and finding no further
objection, she announced that Amendment 1 was adopted.
4:01:47 PM
LOIS EPSTEIN, Director* Arctic Program* Wilderness Society*
Juneau, Alaska* strongly opposed HB 115. She said the Wilderness
Society is a national membership organization that has had
scientists working in Alaska since its inception in the 1930s.
Their scientific work has helped identify and protect the
highest quality wildlife, recreational, and scenic habitat in
the state.
She said HB 115 overreaches greatly, going well beyond lands
that have been selected for conveyance to the state. They are
concerned that state management would undermine protection of
certain types of federally managed lands. They also oppose the
bill, because it is unconstitutional according to a February 13,
2015, Legal Services memo, and it would also be costly to the
state. Former Arizona Governor, Jan Brewer, vetoed a similar
bill, because it was unconstitutional.
Lastly, she said, given the need for the legislature to address
the complicated fiscal problems facing the state, they believe
holding this hearing on a clearly unconstitutional bill makes no
sense. She quoted from an April 3, 2015 Juneau Empire editorial
about HB 115 that backed up that sentiment.
4:05:08 PM
SENATOR STEDMAN commented that the legislature has been frugal
with its time this year dealing with the fiscal issues and they
take their jobs very seriously. He assured the public that
members are working the budget and still trying to keep to their
normal business along the way. However, he was a little
concerned when they start getting newspaper articles in their
bill packets. He exclaimed that everyone can get articles from
the entire political gamut with even more extreme opinions than
those in the U.S., and said, "Where does it stop? Do we ask ISIS
what they think and start reading it into our record? I think we
need to be a little bit careful there."
4:06:26 PM
ELIZABETH DABNEY, Executive Director, Northern Alaska
Environmental Center, Fairbanks, Alaska, opposed HB 115. It
ignores the U.S. Constitution and the state's legal advisors.
Given the fiscal crisis Alaska is in and the resources that
would be need to be dedicated to seeing this through, the best
thing at this time is to let it go of this bill's initiative.
4:08:04 PM
JOSEPH SEBASTIAN, representing himself, Kupreanof, Alaska, said
he is a 38-year resident and a commercial fisherman in Southeast
Alaska. He opposed the portion of HB 115 that wishes to revoke
and reclaim 222 million acres of federal public lands in Alaska.
He said federal lands have laws and rights that do not exist on
state or private lands. One such right is subsistence use, which
under ANILCA seeks to protect the public's right to those lands
for subsistence takings and purposes. Yet, under current state
forestry regulations, timber harvest is a primary use on state
lands.
Another example is the National Policy Environmental Act (NEPA)
that ensures certain procedures and oversight to resource use
and development that do not exist on state or private lands.
State forestry on state lands is relaxed to a point where it
appears that "variance management" or "anything goes" is the
state's low standard. The state is unable to manage the lands it
already has under its jurisdiction. While he didn't oppose the
state regaining the 5.5 million acres of Statehood Act lands
still unconveyed, he opposed the "nonsensical pie in the sky"
request for all 222 million acres of federal lands that belong
to all Americans.
SENATOR STEDMAN noted that the original 13 colonies had very
little federal land, and when the State of Texas came into the
Union it had very little federal land. The later states coming
into the Union ended up having all the federal land. The
original 13 colonies and Texas have healthy economies and their
tax base is much broader than Alaska's; they have a lot easier
time funding schools and building roads.
CHAIR GIESSEL, finding no further comments, closed public
testimony. She said they would hear from Mr. Sturgeon who was
also asserting state jurisdiction over state land in the U.S.
Supreme Court. She said HB 115 goes on to the Judiciary
Committee where it will be further examined, particularly on
legal issues.
SENATOR COSTELLO commented that there is a difference in the
tone and tenor of this bill that it wouldn't have if it was in
the form of a resolution. It gets at the heart of what it means
to be an Alaskan and references the economic wealth in our
Statehood Compact. She then moved to report work order 29-
LS9587\I as amended from committee with individual
recommendations and attached fiscal note(s).
SENATOR WIELECHOWSKI objected. He said they shouldn't be
spending any more time on this and their energies should be
focused on other ways to resolve this problem. Legislators took
an oath when they were sworn in to uphold the Constitution and
this is beyond a doubt unconstitutional.
4:15:28 PM
A roll call vote was taken: Senators Stoltze, Coghill, Micciche,
Stedman, Costello, and Chair Giessel voted yea; Senator
Wielechowski voted nay. Therefore SCS CSHB 115(RES) moved from
committee.
4:15:55 PM
At ease