Legislature(1997 - 1998)
02/10/1997 08:02 AM House CRA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 89 - SHUYAK ISLAND STATE PARK Number 095 ALAN AUSTERMAN, Representative, Alaska State Legislature, came forward to testify on HB 89 as sponsor. He read the sponsor statement into the record. "House Bill 89, and companion Senate Bill 64 have been introduced by the Kodiak delegation at the request of the Kodiak Island Borough Assembly and the Alaska State Parks. These bills represent the outcome of a long and complex effort by the state and federal authorities along with local efforts to compensate for the effects of the Exxon Valdez oil spill. The bill adds specific land water areas to the Shuyak State Park. Shuyak Island was heavily impacted by pollution streaming westward from the 1989 accident. "In 1984, the Shuyak State Park was established from part of the state's holdings to protect the area's fish and wildlife habitat and public recreation opportunities, while maintaining customary hunting and fishing uses. The two largest land owners on Shuyak Island are the State of Alaska and the Kodiak Island Borough. "One provision of the oil spill settlement was the establishment of a joint federal and state council to manage remediation and recovery efforts. Previous litigation imposed management restrictions that required the state to maintain wildlife habitat and public recreation values while the borough was partially prohibited from commercial or industrial uses on its lands. "It is for this purpose that the Oil Spill Trustee council, one which I have served, selected the Borough's Shuyak Island lands and purchased them in 1996. Responsibilities of the group include the replacement of lost fish and wildlife habitat with the acquisition and protection of other high value habitat. The final effort is the consolidation of the lands under the protective management of the Shuyak State Park. "HB 89 completes the transaction by formally incorporating all state lands on the island into the Shuyak Island State Park. The expanded park retains the management goals, purposes, and allows uses of the original park." REPRESENTATIVE AUSTERMAN stated that in addition to the state lands there are approximately six to eight private in-holdings on Shuyak Island that will not be affected by this transfer to the state. He added that Shuyak Island is a unique island located on the northern end of the Kodiak chain of islands. The only land mass between Shuyak and the main land are the Barren Islands. Shuyak is heavily used by hunters, fishers, sport users, and kayak users out of the Homer area. A number of charter boats visit this area too, as well as people from the Kodiak area. The means of travel to the island is either by float plane or boat. REPRESENTATIVE AUSTERMAN added that the senate version of this legislation has moved out of Senate Community and Regional Affairs. The only questions on the senate side dealt with recreational use of Shuyak Island because this legislation prohibits the use of motorized vehicles. This island has very dense forests and very little open areas. It does not lend itself to the use of any motorized vehicles, whether it be snow machines or ATVs. Number 414 REPRESENTATIVE JOE RYAN stated that his only concern was that the department has a way of getting a hold of a park and making it inaccessible to everybody. He said he would hate to see this happen. He asked Representative Austerman if there was any chance this would happen. Number 445 REPRESENTATIVE AUSTERMAN responded that he did not see this happening. The state park has been on Shuyak Island for a long time. A portion of the island that the borough owned was down the center of the island. On the east side of the island the state had a habitat area. On the west side of the island there was a state park and then the lands which the Kodiak Island Borough had received title to. In essence, as far as the island is concerned and the usage of it, turning the entire island into a state park is probably the best thing that could happen. In the long term, if the Kodiak Island Borough was to own it and there was a change in mentality on the borough's behalf, there is a potential that they would use the island to its degradation. REPRESENTATIVE AUSTERMAN served and helped establish the State Park Advisory Council in Kodiak about 16 years ago when it had been the effort of that council and the state parks people in Kodiak to make the lands available for use. The fact that the state habitat area is on the east side of the island and the state parks owns the west side of the island, it seems only natural that the center of the island also be turned into a state park. Number 578 REPRESENTATIVE AUSTERMAN stated that there had been an omission from the original bill. In the past, the water areas around this island have been used for commercial and sport fishing, as well as hunting. For some reason, commercial fishing was left out of the original draft and he offered this as an amendment. This amendment, number A1, read as follows: Page 1, line 10, following "fishing,": Insert "commercial fishing." Number 602 REPRESENTATIVE RYAN made a motion to adopt the amendment A1 as outlined. Hearing no objection it was ordered. Number 622 REPRESENTATIVE OGAN asked how many in-holders were involved with this park. REPRESENTATIVE AUSTERMAN responded that the State Parks Division was on line to answer these types of questions, but he believed there were six or eight in-holdings. One of them is a commercial operation as a hunting and fishing lodge and then there are a number of other small in-holdings, including an old mining claim. None of the uses of these in-holdings would be affected. Number 658 REPRESENTATIVE JERRY SANDERS said he was having trouble seeing the difference between this situation and the one the legislature faces almost monthly with Mr. Babbit and President Clinton. Is this situation any different from what's happening on a national level where the Alaska legislature would in effect lock this island up to development? REPRESENTATIVE AUSTERMAN offered that he saw a difference and noted that he is a fairly conservative business oriented person who solidly believes in development, although he does feel there are areas within the state that should not be developed. Shuyak Island is one of them. This island is an enclosed, solitary eco-system and the nature of the land lends itself to be designated as a state park. There are a number of other areas around the state that are accessible and in close proximity to potentially developed areas that make more sense to develop. Shuyak State Park is not one of these because of its remoteness and the fact that more than half of the island is already designated as a state park or habitat area. He also noted the island's aesthetic value as weighed against its potential for development. Number 795 REPRESENTATIVE SANDERS said he wasn't arguing any of these points and that he would probably support this bill, but it seemed that this is exactly what President Clinton says about the Arctic National Wildlife Refuge (ANWR). He stated there seemed to be something hypocritical about this. REPRESENTATIVE AUSTERMAN noted that this could be said about any kind of development one way or the other. He also pointed out that a small footprint of ANWR was slated to be developed which lends credibility to pursuing the project. He added that if they proposed to put drilling rigs all over the ANWR area then he would probably have problems with that too. Number 888 REPRESENTATIVE OGAN asked a series of questions about the proposed park, from the mining interest there to the policy of eminent domain. Representative Ryan asked a question regarding the restrictions placed on weapons. In response to all of these Representative Austerman deferred to the Division of Parks, a representative of which was waiting to testify by teleconference from Anchorage. Number 1025 JIM STRATTON, Director, Division of Parks & Outdoor Recreation, Department of Natural Resources, testified by teleconference from Anchorage on HB 89. Mr. Stratton stated that the existing Shuyak Island State Park provides some of the best fishing and hunting opportunities in the entire state park system. When the park was first created in 1984, the legislature provided for four public use cabins that have since become some of the more popular cabins in the park system, especially for silver fishing in August and deer hunting in the fall. Travel to the park is primarily by float plane from either Kodiak or Homer and it's a significant economic boost to air taxi operators and guides in both communities. MR. STRATTON specified that this bill would perpetuate these fish, wildlife and recreational opportunities by expanding the park's boundaries to encompass two major pieces of the island whose current and future uses are legally restricted for fish and wildlife habitat and public recreation purposes. The 9,900 acres of existing land on the east side of the island are restricted by a legal settlement between the state and Kodiak Island Borough. This legal settlement resulted from a disagreement over municipal entitlement and sets forth in a consent decree signed in 1981, that these lands may only be used for wildlife habitat and public recreation. Plans for that acreage become a state game refuge whenever completed and are now included in this park expansion. MR. STRATTON continued that in 1996, the Exxon Valdez Oil Spill Trustee Council purchased the lands in the middle of the island from the Kodiak Island Borough to assist in the recovery of species impacted by the Exxon Valdez oil spill. The borough sold the land with the expectation that it would be added to the park to perpetuate its fishing, hunting and recreational uses. The conservation easement held on those properties by the federal government restricts uses to those which will maintain the existing fish and wildlife habitat and allow for public recreation. State Parks has a long history of providing recreational access in a habitat friendly manner and they look forward to providing that access in an expanded Shuyak Island State Park. MR. STRATTON stated that once these additions have been established as part of the park system, State Parks will undertake a revision of the current park master plan to include the new acreage in an island wide plan for trails, camp sites, possible new cabin sites and anchorages. As funds and volunteers are made available, these new access opportunities will be realized. The park designation does not diminish any existing hunting, fishing or trapping rights on the island. The park's original 1984 legislation is very clear in its intent that management of fish and game, especially commercial fishing is the responsibility of the Department of Fish and Game and not of State Parks. Parks works cooperatively with Fish and Game by managing two fish counting weirs in the existing park to help determine commercial fish openings. MR. STRATTON stressed that management of the island will impact the park system only a minimal amount as they already have a seasonally staffed ranger station on the island and a volunteer program that brings two to four volunteers to assist the ranger every summer. The increased cost of management is for extra boat gas to access the shoreline of the newly expanded park. They're currently expanding the visitor opportunities in the existing park by developing a trail system and a new visitor contact station funded by the state's Exxon Valdez criminal settlement through the Division of Parks and Marine Recreation Project. MR. STRATTON added that Shuyak's existing reputation as a fishing and hunting destination in the late summer and fall is expanding as Alaskans, local tourism companies and adventure travelers from around the world discover its unique kyaking and small boating opportunities to not only fish, but also observe marine mammals and sea birds, as well as terrestrial wildlife. The proposed park expansion will add Shuyak to the other great park units in Alaska, Chugach, Kachemack Bay, Denali and Wood-Tikchik as a popular topic for adventure travel in sportsman magazines seeking new and exciting destinations to share with their readers. MR. STRATTON stated that he had met with a local travel writer who was interested in writing about Shuyak's diverse fishing, hunting and recreational opportunities. Designation of the island as a park will significantly add to the allure of Shuyak and increase its notoriety in Alaska as a recreational destination. This is good for Alaskan hunters, fisherman, boaters and for those businesses who provide transportation and support to the island. Number 1280 REPRESENTATIVE OGAN stated that as someone who lives near state land which he often hunts on, he didn't feel "warm and fuzzy" about turning this area into a park. He has hunted in parks and finds the experience somewhat more pleasurable in some ways, since there are a lot less people because of the restrictions. He does find some of the restrictions somewhat imposing on the way he traditionally hunts though. REPRESENTATIVE OGAN referred to Mr. Stratton's testimony that this legislation would not diminish hunting, fishing or trapping opportunities. It has been Representative Ogan's experience with parks that someone has to get a permit to do just about anything there, including staying on trails, etc. He stressed again the amount of restrictions involved. Somehow, he frankly has a hard time believing that this would not put more restrictions on hunting and fishing, rather than less. Number 1357 MR. STRATTON responded that someone does not presently need a permit to hunt on Shuyak Island State Park. They can go anywhere they want, there are no restrictions to stay on trails. They do permit commercial guides that take people out on guided hunts though. Alaskans anywhere in the state park system who hunt don't need a permit. Shuyak is a very popular hunting destination and they don't intend to change the status quo. REPRESENTATIVE OGAN stated that sheep hunting throughout the Chugach has gone to permit because of the Department of Fish and Game, yet there is an overpopulation of sheep there. There seems to be a mentality with parks to restrict access. He has a hard time believing that existing hunting rights won't become diminished under park control. Number 1474 MR. STRATTON offered that on his next trip to Juneau he could meet with Representative Ogan to review the existing park units for a restriction status. He noted that in Wood-Tikchik State Park tremendous caribou hunting takes place without restrictions, as well as at Denali State Park. He believed Shuyak would be established primarily for its hunting and fishing opportunities. He didn't see that they'd do anything to restrict these opportunities. Through the local Parks and Advisory Board, the Borough and the Sportsman Association would be right there to look over their shoulders to make sure they don't restrict the uses. REPRESENTATIVE OGAN asked about access to the mining claim on the island and about motorized vehicle restrictions. Number 1532 MR. STRATTON responded that there were two mining claims on the island, one is on Big Fort Island which is on the eastern side of Shuyak Island which is a nonactive claim held by a woman who lives in Kodiak and as he understood, she has told the local parks people in Kodiak that she is in support of this bill. The other mining claim is owned by someone out of state. This claim is in the existing park. If this person wanted to mine the claim, they could do so, but the department has not heard from them and they don't know what their intent is. REPRESENTATIVE OGAN noted that he currently had grave concerns that traditional accesses were problematic. He's heard other testimony about the state cutting off access and he had some misgivings about this. He referred to page 4, line 1, where it says the commission may acquire land and water within the boundaries of Shuyak Island Park except by eminent domain. He noted that this was a change in policy and he asked Mr. Stratton to explain it. Number 1591 MR. STRATTON noted that it was his understanding that this was just a different way to write the same thing. The previous statute said they may not acquire land within the boundaries by eminent domain and this legislation says they may acquire except by eminent domain. The lawyers who advised him said that this meant the same thing. He then stated that the Parks Department can't use eminent domain on the island. REPRESENTATIVE OGAN said that this was not the same thing because they've been given the power to acquire water. This certainly is a change. Number 1650 MR. STRATTON responded that this was true. REPRESENTATIVE OGAN stated then that it would be fair to say that this expanded their powers. MR. STRATTON responded that he would agree with this. The water on the island consists of many small ponds and lakes. The private in- holdings and anything they might be able to acquire from a willing seller is all along the shoreline and doesn't include any of those lakes from the maps that he's seen. REPRESENTATIVE OGAN asked how many in-holdings there were in the park and whether or not they have been notified. Number 1678 MR. STRATTON stated that there were six in-holders and they have notified those people who live in state. They are in the process of getting support from them. He noted a letter of support sent to Senator Mackey from the people from Fort William, the largest in- holder. All of the other in-holders are in the process of sending in support letters to Representative Austerman. There is one person who lives out of state that they have not been able to get a hold of. They don't know where this individual is. Number 1715 REPRESENTATIVE JOULE stated that he was interested in what the locals had to say about this proposal, especially those who use the area for sport hunting, subsistence hunting, sport and commercial fishing, the charter boat operators, etc. He also wanted to know if there was any active opposition to this proposal or whether this will adverse their business or ability to hunt and fish in the area. REPRESENTATIVE AUSTERMAN apologized that the letters of support were not included in the packet. There are a number of them and he didn't know why they weren't in the file. As to specific charter boats, he has seen a letter from a commercial operator who takes kayakers to the area who was definitely in support of this legislation. He assumed that the charter boat operators are in favor of this legislation too. This legislation does protect all their rights concerning sport and commercial fishing. He also noted that they would make support letters available to the committee from the Kodiak Audubon Society, the Kodiak Island Convention and Visitors Bureau, Port Williams Lodge and Wavetamer Kayaking Adventures. REPRESENTATIVE AUSTERMAN stated that after serving 9 years on the borough assembly there, his sense from the people is that this is a natural thing to happen to this park. This is something they've been planning on for a long time. It was understood that this area would eventually turn into a state park and this was one of the reasons they had a lot of interest in cutting timber off of the island. All of the islands to the south, the Afognak area especially, has been clear cut so the consensus was that either they turn it into a state park or it would probably be developed. To have habitat on one side and state park on the other, it seemed nonsensical to clear cut the center of the island. Number 1884 REPRESENTATIVE JOE RYAN stated that this would probably be the last time he would approve any private land be reverted to the public ownership. This Exxon Valdez settlement sticks in his throat. To hijack that company over an accident when they did not intend to run their tanker onto a reef and to extort $5 billion from them and use it to buy up more land, he doesn't like this policy. REPRESENTATIVE RYAN asked about section 5, paragraph (b). It was his understanding that the use of unlawful weapons is prescribed throughout the code in Alaska, as well as in the federal codes. He asked why this particular change was made from "use" to "unlawful use." Number 2052 MR. STRATTON responded that he didn't know. This was the way the legislative drafters sent it back to them. He thought they were trying to make some kind of consistent language through all the statutes relative to weapons use, but stated that this was just a guess on his part. He then responded to a question posed by Representative Ryan regarding a state game refuge that's been "hanging fire" for some time, that's been consolidated into this bill. MR. STRATTON outlined that when the consent decree was signed in 1981 between the borough and the state, the intent was that the state lands on the eastern edge of the island would eventually be established as a state game refuge by the legislature. This never came to completion and right now this is general state land, but the consent decree restricts what this land may be used for in respects to public recreation and wildlife. When the department began working with the borough in adding the lands which they sold to the Exxon Valdez Trustee Council for the same purposes, it made sense to consolidate all of the lands together and make the entire island a park for consistent management across the entire island. MR. STRATTON continued that the plans they use for state parks are primarily developed with the users groups to identify where facilities should be developed, such as camp sites and trails, public use cabins, etc. This becomes their blue print for enhancing access and creating recreational opportunities as funds and volunteers are available. Any restriction that would be proposed in a land use plan has to go through the rule making process and go out for another round of public comment before it can be adopted. They listen to this public comment and weight it very heavily when making their decision. Anything they propose has to go through the regulation process. The parks plans do have the force of law. Their plans are an opportunity for people to agree on how they would like to see an area managed, but as far as implementing this they have to take other steps. Number 2100 REPRESENTATIVE SANDERS noted the letters of support distributed to the committee and he asked whether there were responses from the community of Port Lions. REPRESENTATIVE AUSTERMAN stated that he didn't believe they have received anything from Port Lions, but said they could contact them to find out what their response is. Number 2131 REPRESENTATIVE OGAN asked Mr. Stratton if there were lakes big enough to land float planes on Shuyak Island. MR. STRATTON answered yes and that they would continue to allow float planes to land on all of the lakes. The language which came from the borough specifically says that float plane landings will continue. REPRESENTATIVE OGAN asked if state law would be dominant over borough regulations. MR. STRATTON stated that he was referring to the conservation easement and these were the conditions which the Kodiak Borough put on the management of the land when they sold it to the Exxon Valdez Trustee Council. This is a restriction on the deed of the land and within this restriction it says that float equipped aircraft on water bodies shall not be prohibited. REPRESENTATIVE OGAN referenced a problem with Blair Lake in Denali State Park and the restriction of assess to this lake. He again stated that he didn't have a "warm and fuzzy" feeling that this would always be the case in regards to further restrictions. He then made reference to unlawful use of firearms language and asked, "If you have that language in there, then essentially, you could regulate the use by firearms, of firearms by regulation if they violated that regulation it would unlawful, is that correct?" Number 2220 MR. STRATTON responded that this was correct. They currently do have regulations regarding the use of firearms within certain distances of public use cabins and camp grounds. REPRESENTATIVE AUSTERMAN pointed to the map hanging on the wall behind Chairman Ivan. Kodiak Island has a large green section on it and then a small green section on the north end of Afognak. These are federal lands. The blue and pink lands are state and privately owned lands. Given the fact that two thirds of Kodiak Island is tied up in a national wildlife refuge and the fact that the community of Kodiak through the borough assembly have agreed to take this island of Shuyak on the far north end and turn it into a state park, tying up more lands in this area, is indicative of how the communities of this region feel, ie. that they do want these lands set aside for hunting and fishing. Number 2293 REPRESENTATIVE JOULE noted that he had asked the question about how the locals felt based on how some individuals in the state of Alaska would like to develop ANWR while being controlled by a hugh bureaucracy. He used the same analogy as outlined by Representative Sanders regarding the legislature assuming the same role on the state level as the president on the federal. He thought it would be ironic for them to disallow this park if this is what the local people want. He said he would be interested in hearing from the people who use the area often, more specifically those folks from Port Lions. REPRESENTATIVE AUSTERMAN stated that Representative Joule's concerns were well taken. Each area of the state is unique and different from other areas and he used the small footprint analogy again. He said that they would talk to folks at Port Lions and said that since the mayor of the Kodiak Borough was on line he may have more information regarding this community. Number 2372 REPRESENTATIVE RYAN said that he was not about to stand in the way of Representative Austerman and his community if they feel this park is necessary. He pointed out that Representative Austerman is more familiar with the area, but his problem is that he is extremely suspicious. He said he has watched the bureaucracy over and over again come out with good intentions, but insidiously things get shut and closed down with time. He said that this gets very frustrating and tiresome, "and you say to yourself we've got to put a stop to this sooner or later" and the only two ways he knows how to do this is to stop giving them the opportunity in the first place and/or take away their budgets. He said he favors the latter since this sends a very strong message. The whole concept of America's foundation was based on the private ownership of land as freedom. REPRESENTATIVE AUSTERMAN stated that he tended to agree with Representative Ryan and a lot of his statements, but he was trying to emphasis that with the amount of land that's already tied up on Kodiak Island and the fact that the community is willing to tie up Shuyak Island is a reflection that they do have an understanding about the value of land, as well as having open access to it, especially in an area like Kodiak. Number 2465 JEROME SELBY, Mayor, Kodiak Island Borough testified by teleconference from Kodiak on HB 89. He said they have been five years in the making on this project and urged the committee to adopt this bill. A lot of the concerns identified were also concerns that they had and he referred to the deed restrictions. TAPE 97-6, SIDE B Number 000 MAYOR SELBY stated that if these restrictions are abused in any way by the Parks Division then the property reverts back to the borough. This was done on purpose so they wouldn't have to deal with a lot of the same concerns which the committee has raised. The deed restrictions also say that the land has to be managed as if it were a state park. The deed itself basically mandates that this land will be a park. They are asking the legislature to ratify this park into the state land system. MAYOR SELBY stated that there will be very little additional cost to the Parks Department on an annual operating basis. They were also sensitive not to run up the bill on the legislature in terms of managing this area, other than the department needing some additional skiff gas and some additional summer help. This is a very minimal impact on the budget. This effort to make Shuyak Island a park was supported unanimously from the Kodiak community. He was not aware of a single voice of opposition. Number 067 MAYOR SELBY said the significance of this is that a few years back the borough looked at selling some remote cabin sites on this island. He said that if there is a concern in the community regarding an issue two or three people will show up for a public hearing. If it's a big issue they will get 10 or 15 people in attendance. They had 100 people show up in opposition of the borough selling land for private cabin sites on this island. These 100 people unanimously voted to make this area into a park so it is available for the long term. He said there was a lot of good rational for this. MAYOR SELBY offered that this island rated out as the most critical habitat for all of the injured species from the Exxon Valdez oil spill and that this was why it was purchased by the council. He continued that this island is one of the most valuable habitat areas in the entire north Pacific. It is such a small island so that they aren't tying up a hugh land mass in order to have one of the most productive ecosystems in the entire north Pacific retained for the long haul. He noted that this area is perfect for Kodiak Island to develop their tourism. Afognak Island is being heavily logged and developed in other ways which conflict with tourism. The Shuyak Park would help diversify the area economy. MAYOR SELBY continued that they don't see this park as a "lock up" situation, but development of a different kind which is tourism. He mentioned again the heavy use of the four cabins already on the island and the Port Williams lodge as well. This is also an important commercial fishing area. He then spoke to the deed restrictions about the recreational vehicles. This issue was heavily debated. First, it's a small enough island that recreational vehicles aren't needed. Secondly, and the bigger problem, is that there are serious erosion problems with recreational vehicles on Kodiak Island which stems back to the ash fall from the Katmai eruption in the early 1900's. Once someone cuts into this 18 inches of ash with a vehicle it starts to erode and becomes just like putty and eventually causes slides. This ash flows into the streams suffocating the salmon. Number 338 REPRESENTATIVE SANDERS asked Mayor Selby if he knew Peter Squartsoff and whether Mr. Squartsoff shares the same opinion about establishing this park. MAYOR SELBY responded that he believed so and had talked to Peter a number of times in 1989 when he was mayor of Port Lions. Mayor Selby said he spends a great deal of time in Port Lions since his wife was born and raised there. He said he was not aware of anyone in Port Lions opposing this legislation. Shuyak Island is far enough away from Port Lions that the Afognak and Port Lions people don't use this island heavily. They use Afognak island predominantly for their subsistence hunting and fishing, as well as the immediate area surrounding Port Lions. Number 394 WILLY DUNNE testified by teleconference from Homer on HB 89. He is chair of the Kachemak Bay State Park Citizen Advisory Board. The board has not acted on this issue yet, but they would address it this month. Speaking for himself as a hunter and a fisherman he uses Shuyak Island. He used to commercial fish out of Homer and has hiked around this island. This island would be a great addition to the state park system. It also makes sense from an economic standpoint. There are a number of businesses out of Homer which shuttle people to Shuyak Island by plane and boat. By designating this island park land, it would provide added economic benefit to some of the operators out of the area. He spoke with some of these local concerns and they all voiced support. Number 483 MICHELE DRUMMOND came forward to testify on HB 89 as a Kodiak Island resident. She stated that she fully supported this park. She has friends who hunt there and looks forward to having them bring venison back. She felt as though this designation would be an excellent idea as long as the existing uses were kept intact. Shuyak Island offers great hunting opportunities with Blacktailed Deer which are as plentiful as the silver salmon that run in the streams there. Ms. Drummond mentioned the abundant halibut stocks around the island which bring boats from the Kodiak and Homer area, as well as pollack and pacific cod. She felt that since Shuyak Island is located between Homer and Kodiak it provides an economic tourism resource for both communities. Number 556 REPRESENTATIVE OGAN asked to see the deed restrictions. REPRESENTATIVE AUSTERMAN said that they would make these available. This legislation has been referred to the Resource Committee and they would provide it at that time. Number 585 REPRESENTATIVE RYAN asked Representative Austerman if he would consider changing back the language in section 5 regarding the lawful use of weapons versus leaving it the way it was. He was concerned that every time they make the slightest in-road on weapons use and ownership, it is always at the detriment of the individual. JERRY LUCKHAUPT, Legislative Legal and Research Services, Legislative Affairs Agency, came forward to provide information on HB 89 and the language used as drafter of this bill. The language regarding the lawful use of a weapon in section 5 was just the way he received it from the department. It mirrors the last time the state created the Afognak Island park reflected in AS 41.21.188. This weapons language, as he recollected, was inserted at this time in response to the Attorney General's office so they could avoid a situation where they'd have to allow the unlawful use of a weapon on Afognak Island State Park. The language was originally inserted to allay concerns by the legislature that they didn't want hunting or the use of a firearm being prohibited in the parks as some sort of incompatible use, so language like this was inserted approximately 15 years ago to ensure that use of a weapon would be allowed except for public safety purposes. Then the concern was raised two years ago when referring to the use of a weapon that this implies any unlawful use would be allowed except for some type of public safety exception. This then was how the language "unlawful use" came to be. "Unlawful" would be prohibited and then "lawful" would be allowed. As long as someone is lawfully using a weapon, then it can't be prohibited except under some public safety grounds. Number 776 REPRESENTATIVE RYAN offered that if this language is already noted in present statutes, wouldn't reference to the same in this bill be considered "overkill." MR. LUCKHAUPT stated that in his opinion that the use of a weapon would be good enough, but they end up in a situation where they've got different provisions in statutes in one case, "use of a weapon" and then "lawful use of a weapon." If the legislature means different things then different language is used. Usually when the legislature uses different language it does mean different things. From this point of view, consistency would be important. The reality is that there is no difference in the language and he agreed with Representative Ryan. Number 888 REPRESENTATIVE OGAN asked if the language "lawful use" gave the Park Service the authority to regulate the use of weapons by regulations, say if they decide that someone's caliber used is not allowed, or target practice is not allowed, this would give them the ability to enforce this. MR. LUCKHAUPT stated that they would be very limited in the regulations they can pass under this section restricting fire arms. The lawful use of a weapon must be allowed except in unique areas that may be closed for purposes of public safety by regulation. First they must identify unique areas by regulation and they'd have to identify that they're closing this area to the use of a weapon for purposes of public safety. Otherwise, they have to allow any lawful use of a weapon in this area, target shooting is allowed, including the use of all calibers to the extent there are restrictions that the Board of Game may impose. Number 1002 REPRESENTATIVE OGAN state that in Chugach State Park target practice is not allowed, so he begged to differ. On page 4, line 1, there is a language change regarding when the commissioner can acquire land and suggested the use of the word "except" instead of "not." MR. LUCKHAUPT noted that this alteration would just be a different way of saying the same thing. Again, this language matches the language which the legislature last used in dealing with the Afognak Island State Park. The current language reads that the commissioner may not acquire land within the boundaries of Shuyak Island State Park by eminent domain as this is a clear prohibition on the commissioner using eminent domain within the park. The new language would say that the commissioner may acquire land and water within the boundaries of Shuyak Island State Park except by eminent domain. He interprets this to mean that the commissioner can still acquire land within the boundaries of the park, but he cannot use eminent domain. He assumed the only reason why DNR or the Department of Law would want to change this language would be for the purposes of uniformity. The commissioner can still acquire land using this language by purchase or land trades, but eminent domain could not be used. Number 1121 REPRESENTATIVE OGAN pointed out that they would be given the opportunity to acquire land and water though, such as lakes and streams. He asked how this expanded definition changed their scope of powers to acquire lakes and streams, or whether they were just talking about fresh or salt water as well. MR. LUCKHAUPT stated that Shuyak Island was originally created to include only the uplands and fresh water bodies within the park. "So, the tidelands and the waters, you know, surrounding the park that are, getting in the whole idea of what are state waters which basically you can go three miles out and those sorts of areas, originally the tidelands and the salt water overlying those tidelands was not part of the park and so what they are doing here is adding those tidelands along with certain other lands to the park." MR. LUCKHAUPT noted that the land being added by the legislature does include water, including all the waters overlying those tidelands and submerged lands that are within the sections that the legislature has set aside. This does give the commissioner the authority to acquire other land and water within the park. The only time there might be a difference with including water or not is if the water is navigable or not and then when a determination is made that a particular stream is navigable, then the state owns the land underneath this navigable water. If the stream is not navigable then whoever the land owner is owns the stream bed itself. Under the constitution the state owns all the water in the state. Whatever land and water that's not part of the park, but within these boundaries the commissioner can acquire by purchase. MR. LUCKHAUPT responded to the comment made about target shooting in the Chugach State Park. This park does not have a restriction on lawful use of weapons and what they have to allow. Under Chugach State Park, AS 41.23.123, the commissioner can adopt any regulation that is incompatible with any of the other uses the commissioner has identified within the park. Number 1350 REPRESENTATIVE OGAN took Mr. Stratton to task for his answer regarding page 4, line 1. He said that he was really upset. He asked Mr. Stratton what this language did and Mr. Stratton's response was that it says the same thing. Never did he mention that this also included any of the state waters 3 miles out or the tidelands. He said he would appreciate more forthcoming answers when he asks questions such as this one. MR. STRATTON apologized. He didn't realize that the water which they can acquire from private, willing sellers would include the tidelands and he pointed out that they aren't acquiring the waters up to 3 miles out. The bill only includes the tidelands. Number 1432 REPRESENTATIVE OGAN said that he thought he heard Mr. Luckhaupt say that Mr. Stratton requested this language and for the record he stated that he thought this was a good example of the park misrepresenting its intentions. Number 1447 REPRESENTATIVE RYAN noted that the borough has made a very advantageous land sale of 26,665.62 acres for $42 million, but the thing that he questions is why the United States Department of Agriculture Forest Service provided an appraisal as of November 1, 1994, when the borough has an assessor who keeps track of the values of land in the borough and also the state assessor comes by from time to time to figure what the contribution will be for the foundation formula, why was the United States Department of Agriculture assessment accepted instead of their own particular records of that (indisc.) tied in with the state. He asked if one assessment was more advantageous to the borough than another. REPRESENTATIVE AUSTERMAN said that Mayor Selby could correct him if wrong, but he believed that the assessment of these land values was done by an independent assessor so that the negotiations over the actual appraisal value and what the borough would receive from the lands would be fair and equitable. MAYOR SELBY stated that the assessment was conducted by the Department of Agriculture as a requirement of lands acquired by the Exxon Valdez Trustee Council, especially since timber was involved. This is what was done, but the reality is that when they conducted the final negotiation of purchase the value of the land ultimately used for the acquisition was the values that the Kodiak Island Borough Assessor, Pat Carlson developed three years previous to them spending well over a half a million dollars in their appraisal process. Number 1620 REPRESENTATIVE RYAN asked if this was just for the surface and that it didn't include sub-surface rights which the state still retains. MAYOR SELBY said that this was correct. The borough only sold what they had title to from the state of Alaska. Number 1665 REPRESENTATIVE RYAN moved and asked unanimous consent to move CSHB 89 (CRA) out of committee with individual recommendations and accompanying zero fiscal note as amended. Hearing no objection, CSHB 89 (CRA) was moved out of the House Community and Regional Affairs Committee.
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