Legislature(1999 - 2000)
03/20/2000 01:10 PM House RES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 255-PUB.LAND: BEST INT. FINDINGS/ PUB NOTICE CO-CHAIR MASEK announced that the final item before the committee would be CS FOR SENATE BILL NO. 255(RES), "An Act relating to best interest findings and land use permits, rights-of-way, and easements issued by the Department of Natural Resources; and providing for an effective date." Number 1874 SENATOR PETE KELLY, Alaska State Legislature, testified as the sponsor of SB 255. He explained that SB 255 clarifies the way the state issues permits for certain rights-of-way. In Fairbanks the Golden Valley Electric Association (GVEA) has, over the past few years, attempted to obtain a transmission line built from the Healy power plant to Fairbanks. The GVEA was proceeding with a multitude of environmental impact statement (EIS) hearings and public hearings; GVEA attempted to proceed in an environmentally sound way with public notice and support. However, a court decision reversed how such permits are issued. He explained that for some 20 years, [the state] has issued permits under AS 38.05.850 instead of performing "best interest findings." He said that performing a best interest finding every time a small right-of-way is needed would be a great hindrance to development. The court determined that the transmission right-of-way was functionally revocable and thus was a state divestiture of its interest in lands. In his opinion, the court misinterpreted the intent of the legislature. SENATOR PETE KELLY said that much of how the state conducts business in the Department of Natural Resources is now in jeopardy because [under the aforementioned court case] the state will have to perform best interest findings for almost every small right-of-way. He informed the committee that under the statute, as it existed before the court decision, the following projects were accomplished: the Snettisham power project, the municipal sewage outfall line in Klawock, the Whittier access road project, the communications line issued to the Mat-Su Telephone Association, electric distribution lines, natural gas distribution lines, gathering lines, and many of the permits issued on the North Slope. SENATOR PETE KELLY predicted that the opposition to SB 255 will say that the best interest finding is being taken away, which he said is not true. He stated that the best interest finding never existed, and that "it only existed when a court made an interpretation on state statute and reversed 20 years of the way we did business." Opposition has also said that "we" [SB 255] will take away public notice. However, Section 4 of SB 255 adds public notice because before SB 255 the public was not required to do public notice for these types of permits. He offered to take questions but pointed out that others present could better answer some questions. Senator Kelly noted that when SB 255 was first introduced, he was accused of doing special interest statutes for his region. Although this legislation would impact his region, it would impact business throughout Alaska. Without SB 255, he stressed that there will be serious problems with the budget of the Department of Natural Resources (DNR) and its ability to perform basic projects with its allotted manpower. Furthermore, [the department] will be tied up in court time after time for small projects. Number 2158 REPRESENTATIVE BARNES interjected that before public testimony is taken, she would like to read the following statement into the record. Representative Barnes stated: Senate Bill 255 was introduced to deal with a serious problem brought to light in a recent Alaska Supreme Court decision related to best interest findings and land use permits, rights-of-way and easements issued by the Department of Natural Resources. Passage of SB 255 will clarify and confirm that permits issued under AS 38.05.035 are exempt from the best interest finding requirement. The Alaska Constitution in Article VIII, Section 10, provides that "no disposals or leases of state lands, or interests therein, shall be made without prior public notice and other safeguards of the public interest as may be prescribed by law." The legislature addressed this issue in law in AS 38.05.035 by providing for an exclusion for permits that could be revoked. Over the years, I have fought long and hard to protect the Railbelt Energy Fund until we could get the votes to appropriate those monies to build the northern and southern interties. And as you will remember, we also contributed heavily to PCE [power cost equalization] at the time. A stable, reliable, reasonably priced source of energy is the key to any future major development in the Railbelt area. In 1993, we passed the most comprehensive energy bill that this state has ever seen. Since the passage of the 1993 legislation, the professional preservationists have used every conceivable effort to delay and stall these projects. Last year, their efforts were directed at the Fairbanks to Healy Electric Transmission Intertie project. First, the opposition filed in federal court for a "stay" on the route chosen in the environmental impact statement. The "stay" was rejected. Second, they appealed the decision by the federal court. They lost the appeal following a series of additional public meetings. Third, they filed in Superior Court and asked that the right-of-way permit that had been issued by the DNR be revoked. The issuance of the right-of-way permit was upheld. This is a tenacious group, they don't give up easily. Their last action was to file in the Alaska Supreme Court challenging the Department of Natural Resources for issuing the permit without first making a best interest finding. Upon reviewing the matter, the court reversed the decision of the Commissioner of the Department of Natural Resources and remanded the case back to DNR for a best interest finding. The court went on to say that when a power line right- of-way permit is issued for use of state-owned property, this is disposing of state land and the permit cannot be issued until a best interest finding has been made. The court cited an old case, Wilderness Society v. Morgan, in which they determined that to be revocable one would have to consider whether the structure could be moved and whether the land could be left in its original condition. The court concluded that in this case, the permit was not functionally revocable and therefore was subject to the best interest finding. To comply with the Supreme Court Order, the Department of Natural Resources has undertaken the process of making a best interest finding. Since 1993, this project has been the subject of the intense scrutiny of a federal environmental impact statement and a rigorous review by the Department of Natural Resources' permitting process. This project has been studied almost to death. There have been hours and hours of public testimony, scores of studies, pages of public and private input, and months of professional review. The result, BLM [the Bureau of Land Management] granted a right-of-way from a point just south of Fairbanks 28 miles west to Wood River. The Army, the federal agency that uses this area, issued a letter of non-objection. The borough also issued a letter of non-objection with one slight route shift. The right-of-way granted to Golden Valley Electric Association by DNR was from Wood River west to a point 4 miles east of Nenana and then south to Healy. The route was determined by the agencies following multiple hearings, not by Golden Valley Electric. GVEA needs this new line. They have just enough generating capacity to serve their existing load when everything is running. There is no margin. Any remaining generating capacity that is available to GVEA is located south of Healy. Fairbanks is connected to this additional generation capacity through one single, 33 year old undersized line that is desperately in need of rebuilding. When this line trips during peak demand in winter, power load is lost. This is expensive and totally unacceptable. It also jeopardizes existing businesses. The February 22, 1999, decision by the Alaska Supreme Court ordered that the issuance of the permit to Golden Valley Electric Association for the construction of the electric transmission intertie between Fairbanks and Healy was subject to a best interest finding by the Department of Natural Resources. The court determined that due to the magnitude and intent of the electric transmission intertie project, the project does not meet the requirements of AS 38.05.035 exemptions and therefore ruled in favor of the plaintiffs, the Alaska Center for the Environment and the Sierra Club. Not to diminish the importance of the Fairbanks to Healy Intertie project, but of even greater concern is [that] several other major projects in our state that have been permitted under our existing statute; the same statute that DNR used to issue the permit to Golden Valley. The court's decision now jeopardizes the status of these previously issued permits as each of them may, under the court's logic, constitute a disposal of state land for which a best interest finding (under existing law) would be required. This is why there is a retroactive provision in this bill. These older projects include, but are not limited to, the following: 1. The right-of-way for the power transmission line and related facilities for the Snettisham Power Project from Snettisham to Juneau; 2. The forced main and marine outfall line right-of-way issued to the City of Klawock; 3. The right-of-way issued to Matanuska Telephone Association for 1,200 feet of buried communication line on the bottom of Willow Lake; 4. The right-of-way issued to Norgasco, Inc. for a gas distribution line in the industrial leased area at Prudhoe Bay; and 5. The right-of-way issued to SOHIO (now known as BP Exploration [Alaska]) for an 11 mile permanent gravel road for access to the Duck Island Unit in conjunction with the Endicott Pipeline. SB 255 will amend and clarify the legislature's intent as it relates to the issuance of permits by the Department of Natural Resources. Number 2655 NANCY FRESCO, Northern Alaska Environmental Center, testified via teleconference from Fairbanks. Ms. Fresco said that the Northern Alaska Environmental Center is opposed to SB 255. She reiterated Senator Pete Kelly's earlier comment that current laws do not require a best interest finding or any other lengthy process for small revocable rights-of-way on state land, which makes up the vast majority of the permits granted by DNR. This bill creates an exemption from the best interest finding for all permits under AS 38.05.850 regardless of the size or scope [of the project]. Ms. Fresco pointed out that the Healy-Fairbanks intertie project, which sparked this attempt to limit the public process, is unique in both its size and controversial location. She believes this is why it took so many years of public process before such a case appeared before the Alaska Supreme Court and this discrepancy became apparent. She stated: When considering permits for very large projects such as this one [the Healy-Fairbanks intertie], particularly when the use of the land is functionally nonrevocable, it should be the obvious responsibility of the Department of Natural Resources to examine the type of questions raised by a best interest finding; ... Is the use of the state land in the best interest of Alaska, and this includes the best interest for environmental purposes and also the best interest for development purposes. MS. FRESCO said removal of this formal examination could lead to poor decision making. She told members that SB 255 also falls short of required constitutional safeguards. Article VIII, Section 10 of the Alaska Constitution requires public notice and other safeguards prior to the disposal or lease of state land. Public notice alone, without any means for input or response cannot be considered adequate to fulfill the aforementioned clause. State land belongs to the people of Alaska and SB 255 would dangerously undermine the ability of Alaskan citizens to know how the state's land is being managed. In conclusion, Ms. Fresco said, "Contrary to a lot of the testimony I've been hearing, this is not a change that would affect the vast majority of permits, it's something that would only affect those large scale permits where many citizens here in Fairbanks as well as elsewhere in the state feel that it is their right to have due public process, to have a chance for public input as well as just the formality of a very brief public notice as would be provided by this bill." Therefore, Ms. Fresco believes that SB 255 should not be supported. MS. FRESCO replied, in response to Representative Cowdery, that she is representing the Northern Alaska Environmental Center in Fairbanks, which has a current membership of approximately 1,200. In further response to Representative Cowdery, Ms. Fresco stated that she had contacted the membership numerous times. She specified that the 1,200 membership only represents the due- paying membership, but there are many citizens who are not members of the center that support the center's position on SB 255. Number 2843 SUE SCHRADER, Alaska Conservation Voters, noted that the Alaska Conservation Voters and the Alaska Conservation Alliance are sister nonprofit organizations dedicated to protecting Alaska's environment through public education and advocacy. Many of the Alaska Conservation Voters' members actively participate in land use issues and take advantage of the public process when available. The Alaska Conservation Voters is concerned that the passage of SB 255 would "remove the accountability and responsibility that the state has towards its citizens to show that the state is managing our publicly-owned assets properly." MS. SCHRADER stated that the Alaska Conservation Voters believes that SB 255 "represents a dangerous grant of authority to DNR at the expense of the public's right to know how our land is being managed." This bill is a broad-sweeping reaction to an Alaska Supreme Court decision which addressed the largest right-of-way permit ever issued under this statute. She indicated that the court ruled in this manner due to the size of the project, which impacts over 1,200 acres of land. Due to the size of the project, the court ruled that the permit was not functionally revocable, and therefore DNR should perform a best interest finding. Therefore, the court was looking out for all Alaskans. MS. SCHRADER acknowledged that Senator Pete Kelly expressed many concerns today and in his March 6 press release one of which is concerned that the court decision would require a best interest finding for every right-of-way. The Alaska Conservation Voters finds that markedly misleading. As mentioned the Healy-Fairbanks intertie project is unique due to its large size. Ms. Schrader maintained that the vast majority of right-of-way permits issued under the statute in question would not need to have a best interest finding under this court decision. She felt that the most troubling aspect of SB 255 is that "it gets DNR off the hook from ever doing a best interest finding on a right-of-way utility regardless of the size." TAPE 00-22, SIDE B MS. SCHRADER emphasized that despite the addition of a provision for public notice in the CS, there is concern that the bill does not meet the requirements of the constitution. A simple public notice in the classified section of the newspaper does not meet the requirements that the Alaska Conservation Voters think Alaskans need on these huge projects. She specified that Alaskans need access to public hearings and testimony and a critical analysis by the department and other interested parties with regards to the merits of the project. This is the only way to safeguard the public's interest. Although SB 255 has been framed as protecting DNR and developers of projects on state land, the Alaska Conservation Voters believes "it's yet another attack on all Alaskans' ability to provide oversight of government actions." She further stated, "We believe that it represents a special interest legislation aimed at negating a very narrowly crafted court decision that had financial implications for the sponsor's family and as such, this legislation should not be supported." Number 2889 TOM WALDO, Staff Attorney, Earthjustice Legal Defense Fund, explained that Earthjustice is a national nonprofit public interest environmental law firm. The firm represented the Northern Alaska Environmental Center and the Sierra Club in the lawsuit regarding the northern intertie, which prompted SB 255. Mr. Waldo urged the committee to reject SB 255 because it is bad public policy and it violates Article VIII, Section 10 of the Alaska Constitution. The bill exempts all permits, easements and rights-of-way from the best interest finding requirement. He specified that this exemption applies whether the easement is revocable or not. He pointed out that if DNR conveys an irrevocable easement or right-of-way, a disposal of an interest in state land, then Article VIII, Section 10 of the constitution applies. Article VIII, Section 10 provides, "No disposals or leases of state lands, or interests therein, shall be made without prior public notice and other safeguards of the public interest as may be prescribed by law." He informed the committee that in the Senate, it was pointed out that SB 255 would violate Article VIII, Section 10 by stripping away all of the public notice and other safeguards. Therefore, the Senate amended SB 255 and inserted Section 4 which provides for public notice for permits that are not functionally revocable. He explained, "What this means is that DNR could, theoretically, issue a single permanent nonrevocable easement covering all 100 million acres of state land and could do so with nothing more than a legal notice published back in the classified section of the newspaper." He restated that this [SB 255] is poor public policy and does not satisfy Article VIII, Section 10 of the Alaska Constitution. Mr. Waldo informed the committee that this issue was litigated in 1993 before Judge Green in the Superior Court in Fairbanks in the case of Vern Weiss v. State of Alaska, which was the Mental Health Trust litigation. Upon review of Article VIII, Section 10 of the Alaska Constitution and the constitutional history and its purposes, Judge Green, in a decision on summary, wrote the following: This constitutional history demonstrates that the framers were not interested only in public notice. Rather it is clear that they intended a mandatory obligation on the legislature to establish other appropriate safeguards in addition to public notice to protect the public interest in state lands. The framers contemplated discretion in the legislature to provide other safeguards of the public interest, but they clearly expected and required something beyond public notice. MR. WALDO said, "The problem with SB 255 is that it allows DNR to convey substantial interests in state land with nothing more than bare public notice." Again, he reiterated that SB 255 is poor public policy and does not satisfy the constitution. Furthermore, SB 255 is unnecessary because the Supreme Court's decision, as Ms. Schrader and Ms. Fresco testified, applies only to the small number of permits for which the improvements to the land are so substantial that the permit is not revocable in any practical sense. In those rare cases, a best interest finding is an appropriate process to follow. Therefore, Mr. Waldo urged the committee to reject SB 255. REPRESENTATIVE BARNES pointed out that Article VIII, Section 10 of the constitution says, "The legislature shall prescribe by law what the public notice safeguards are." She believes the legislature has done so quite adequately. Number 2668 JOHN SHIVELY, Commissioner, Department of Natural Resources, testified via teleconference. He thanked Senator Pete Kelly and Representative Barnes for their statements as they accurately reflect the reality that "we" [DNR] see as a result of the [Alaska] Supreme Court decision. Although the environmental community claims that the court decision would apply to large projects, there is nothing in the decision which would indicate such. He pointed out that functionally irrevocable permits could be anything from a sewer outfall to a fiber optics cable. He said that the [Alaska] Supreme Court did not provide good direction, and therefore SB 255 is necessary. COMMISSIONER SHIVELY turned to the public process and noted that the department has, in issuing permits and rights-of-way, used a variety of processes under the existing legislation, including a best interest finding when the department felt such was necessary. He remarked that if this project had only been on state land, the department might have used the best interest process for finding for the right-of-way. However, since the federal government was involved the department chose a more onerous public process, the environmental impact statement. He noted that there were hearings held between the federal and state governments on this matter. Additionally, Commissioner Shively noted that he held his own hearing, a totally discretionary hearing. Commissioner Shively said that he resented the implications of the environmental community that DNR would merely place a small public notice in the newspaper for a major public project. There is nothing in the department's history that would indicate that would be the way it would be handled. Commissioner Shively said, "It's irrelevant what's in this law, about whether we meet the constitutional requirements or not. We're either going to meet them or not if this goes to court. The court will decide whether or not we've met our constitutional responsibilities. The law can only help guide us." He commented that the Senate amendment does help guide the department. In conclusion, Commissioner Shively urged the committee to adopt [CSSB 255(RES)]. Number 2513 IRENE ALEXAKOS commented that to say that the only purposes of the environmental community were to delay and stall the Golden intertie project is false. The environmental community does not disagree with an intertie. Ms. Alexakos clarified that the environmental community disagreed with the proposed route. An existing route that had the railroad corridor, the existing intertie and the road could have been utilized versus cutting a swath through the wilderness and making unnecessary environmental destruction. With regard to the comments that the court's opinion jeopardizes the status of previously issued permits, that is also false. She said, "You won't see Earthjustice Legal Defense Fund or the environmental groups challenging other permits, they would have done so by now if that was the case." Furthermore, Ms. Alexakos refuted the claim that months of professional review has been performed on this [intertie project] because DNR does not have any professional electrical engineers on staff. She believes that SB 255 takes brotherly love to an extreme as the bill was clearly introduced for the benefit of Senator Pete Kelly's brother, the CEO of Golden Valley Electric. REPRESENTATIVE BARNES interjected that the witness is out of line with accusations that Senator Pete Kelly introduced SB 255 for his brother. Representative Barnes pointed out that she wrote the legislation that originally allowed the northern and southern interties to proceed. Representative Barnes stressed that she would not tolerate such accusations. MS. ALESAKOS specified that although Representative Barnes may have written the legislation that allowed that [the northern and southern interties], Senator Pete Kelly wrote and introduced SB 255. REPRESENTATIVE BARNES refuted that and noted that Senator Pete Kelly's brother is retiring from Golden Valley. She remarked that she would put her name on the bill [as] sponsor and request that Senator Pete Kelly's name be removed. Representative Barnes said that such an accusation is appalling. CO-CHAIR MASEK asked if Ms. Alesakos worked for Earthjustice. MS. ALESAKOS stated that she is representing herself. In further response to Co-Chair Masek, she said she is a member of many conservation groups. CO-CHAIR MASEK stated that the committee is discussing the merits of the bill, and therefore she requested that Ms. Alexakos direct her testimony to the legislation. Furthermore, Co-Chair Masek said that she did not want to hear accusations of false information. MS. ALEXAKOS inquired as to what she said that could be found false as she believes that she is sticking to the basis of the bill. Number 2310 CO-CHAIR HUDSON pointed out that in all proceedings, regardless of the side of the issue one takes, it has been a practice to avoid trying to impugn someone's motives or reputation. Co-Chair Hudson requested that Ms. Alexakos speak to her conflict in regard to the intent of the bill or elements that she would recommend be changed. He said that Ms. Alexakos could make her point without trying to attach some personal motive to Senator Pete Kelly or any other member. REPRESENTATIVE HARRIS said that he wanted to echo Representative Barnes and Co-Chair Hudson's comments. As a new member of the legislature, he believes that one learns not to determine what people, legislators or the public, think. That is asked of witnesses as well because "we" can return the favor and can also deny one the opportunity to testify if "we" wish. In fairness that is not done, and therefore in fairness he requested that Ms. Alexakos not make determinations of another's motives. MS. ALEXAKOS remarked that she could hardly see how this could be ignored. REPRESENTATIVE COWDERY informed Ms. Alexakos that there other remedies, the Ethics Committee, if she believes there is an abuse. MS. ALEXAKOS pointed out that this body [the legislature] brings complaints to the Ethics Committee. REPRESENTATIVE COWDERY stated that private citizens can bring complaints to the Ethics Committee as well. Generally, most of the complaints to the Ethics Committee are brought by the private sector. MS. ALEXAKOS noted that legislators themselves compose the membership of the Ethics Committee. REPRESENTATIVE HARRIS stated a point of order as the testimony seems to be straying. CO-CHAIR MASEK asked if Ms. Alexakos had any further testimony that she would like to add. Number 2134 MS. ALEXAKOS said that SB 255, a bill introduced in response to a ruling about the northern intertie project, goes too far and is not in the public interest. She reiterated that DNR has no electrical engineers on staff. REPRESENTATIVE COWDERY asked if Ms. Alexakos' organization has professional electrical engineers on its staff that have reviewed this [project]. If so, he requested that she provide the committee with their written review. MS. ALEXAKOS reiterated that she was not representing any organization. REPRESENTATIVE COWDERY said, "So, you have no professional engineer knowledge whatsoever then on this; is that what I heard you say?" MS. ALEXAKOS answered that she did not understand Representative Cowdery's point. REPRESENTATIVE JOULE remarked that with regards to Ms. Alexakos comment that the Ethics Committee consists of legislators seems to assume/imply that those members are not going to be fair, which already impugns the body. [Ms. Alexakos made an inaudible response.] Number 1969 REPRESENTATIVE BARNES made a motion to move CSSB 255(RES) out of committee with individual recommendations and the accompanying zero fiscal note. She requested unanimous consent. There being no objection, CSSB 255(RES) was moved from the House Resources Standing Committee.
| Document Name | Date/Time | Subjects |
|---|