Legislature(2015 - 2016)BARNES 124
02/27/2015 01:00 PM RESOURCES
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HB 115-AK SOVEREIGNTY;US TRANSFER LAND TO ALASKA 1:11:58 PM CO-CHAIR TALERICO announced that the next order of business is 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." 1:12:11 PM REPRESENTATIVE HAWKER moved to adopt the proposed committee substitute (CS), labeled 29-LS0587\E, Bullard, 2/26/15, as the working document. There being no objection, Version E was before the committee. 1:12:55 PM REPRESENTATIVE MIKE CHENAULT, Alaska State Legislature, as the sponsor, introduced HB 115. He read from the following written sponsor statement [original punctuation provided]: House Bill 115 enacts the Transfer of Public Lands Act. The bill requires the United States to transfer title to public lands to Alaska on or before January 1, 2017. This bill would also provide that if the state transfers title to public lands to which it received title from the federal government under the Transfer of Public Lands Act, the state shall retain 50 [percent] of the net proceeds received by the state and pay 50 [percent] of the net proceeds the state receives to the federal government. Although there are a number of state and federal constitutional issues regarding the provisions contained within the bill, this bill was introduced since the 25 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 contract as well as 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. 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 created withdrawals are Public Land Orders (PLOs issued by the Department of the Interior and Executive Orders issued by the President. At this time according to the Department of Natural Resources, there are approximately 222 million acres within Alaska under federal ownership. This bill is modeled after a Utah house bill, [House Bill] 148. 1:16:26 PM REPRESENTATIVE SEATON noted that according to a legal memo there are several constitutional problems. He inquired whether some of those are cured by the proposed committee substitute. TOM WRIGHT, Staff, Representative Mike Chenault, Alaska State Legislature, replied not so much according to the legal memo. He said he doesn't think there is anything in the legal memo that the sponsor could fix in this bill, but a lot of the adaptations within the proposed CS were recommendations by the Department of Natural Resources (DNR). The sponsor hasn't tried to hide the constitutional issues and that is why the legal memo was distributed. 1:17:19 PM REPRESENTATIVE TARR inquired whether anyone from the federal government is available to answer questions. CO-CHAIR TALERICO responded there is not. REPRESENTATIVE TARR understood that the process is being worked through but that the surveying process for the selected land takes a lengthy amount of time and could be the reason for some delays. She asked whether the sponsor has any information in this regard and whether there is anything else outside of the bill that the state can do to speed up the process. MR. WRIGHT deferred to DNR for an answer. ED FOGELS, Deputy Commissioner, Office of the Commissioner, Department of Natural Resources (DNR), concurred that the surveying and transfer of the lands does take some time, but the key issue for DNR is that so much of the potential federal lands the state would like to choose from are locked up in these federal withdrawals and Public Land Orders (PLOs). To speed up the process the state needs the federal government to lift those withdrawals so there is a bigger pool of lands for the state to choose from. 1:20:41 PM REPRESENTATIVE JOSEPHSON observed that page 2, [line 2], of the CS references the Ninth Amendment [to the Constitution of the United States]. He inquired why this is included given it is a Bill of Rights amendment related to personal liberties. He understood the Ninth Amendment essentially says something like "the previous eight amendments may not constitute all the liberties of the American people." MR. WRIGHT answered the Ninth and Tenth amendments are closely aligned. The Ninth Amendment goes to the enumeration in the constitution of certain rights that shall not be construed to deny or discourage others retained by the people. The Tenth Amendment deals with more of state rights. The sponsor thought both were inclusive into the state sovereignty issue and didn't want to miss anything. REPRESENTATIVE JOSEPHSON recalled that the first draft of HB 115 excluded national parks, but Version E doesn't do that. He asked whether the Utah measure excluded national parks like Zion, Bryce Canyon, Arches and other famous national parks that he has yet to see. MR. WRIGHT replied the Utah bill did exclude the national parks. He said there are some national park lands that DNR would like to have access to, according to the information he received. However, he said, the sponsor is having second thoughts on the national park inclusion, especially with these times of budgetary deficits about whether the sponsor would want to take those over. Thus, the sponsor is further exploring national parks, but that is as far as the sponsor is willing to go at this point in time. 1:22:40 PM REPRESENTATIVE HAWKER understood the language in the legislation doesn't mandate that the State of Alaska accept such things as national parks, it allows the state and the agency to make decisions whether it's in the best interest to accept land that is made available to the state. MR. WRIGHT responded correct. 1:23:10 PM REPRESENTATIVE SEATON drew attention to Version E, Section 4, page 2, lines 26-27, which states: "LIFTING OF PUBLIC LAND ORDERS; PERIOD FOR MINERAL EXPLORATION AND RESOURCE EVALUATION." He inquired whether that is the federal government withdrawing its claim for subsurface resources within the areas the federal government is going to continue to own or is just exploration ability so the state can evaluate the land and say which the state would want to choose. MR. WRIGHT answered it is to allow DNR to do evaluations as to what mineral resources may be there and what might be available for development. He deferred to DNR to answer further. MR. FOGELS replied that those withdrawals and Public Land Orders keep the state's selections from attaching. If they are lifted and then the state's selections attach, the state can get conveyance to the lands in fee simple subsurface and surface. 1:24:51 PM REPRESENTATIVE TARR requested examples of these areas where there is a Public Land Order that the state would want withdrawn so that that land would become available for state selection. MR. FOGELS responded one example is PLO 5150, which withdrew a corridor along the original Trans-Alaska Pipeline System (TAPS) right-of-way. He said it is a very big corridor that does not need to be withdrawn from selections since the pipeline has been constructed. Recently, as part of DNR's strategic and critical minerals initiative, some work was done in that area and some information was found that leads the department to believe there is potential for rare earth elements along that corridor. So, that is clearly a place that DNR would like to see the PLO lifted so the state's selections can attach and the state could get ownership of that land. REPRESENTATIVE TARR asked what the process would be without this legislation for communicating with the federal government about a situation like the aforementioned. MR. FOGELS answered that DNR's process, which it has been undertaking, is to communicate with the Secretary of Interior and asking the Secretary to lift these Public Land Orders. At an Alaska regional level DNR works with the Bureau of Land Management (BLM) as BLM does its resource management plans, and in those plans DNR will ask BLM to recommend lifting those withdrawals as part of the BLM plan. But ultimately the Secretary of Interior must put pen to paper to lift those withdrawals. REPRESENTATIVE TARR inquired whether there is a process outside of BLM's land use plans in which DNR can ask for a withdrawal and, if so, whether that process requires the federal government to respond to the state within a certain amount of time and issue a decision within a certain amount of time. MR. FOGELS replied DNR is not aware of any formal process with any kind of structure to it, so it would be simply a matter of writing letters. He said DNR has asked and has not gotten anywhere. 1:28:00 PM REPRESENTATIVE HAWKER observed the fiscal note currently in the committee packet goes to the original bill and is not relevant to Version E. He inquired whether Mr. Fogels can assure him that a forthcoming fiscal note for Version E will also be an indeterminate note. MR. FOGELS responded he does not see any change in DNR's fiscal note with Version E. MR. WRIGHT added, "except for the analysis." MR. FOGELS stated that except for the analysis the fiscal note would be indeterminate. 1:29:12 PM CO-CHAIR TALERICO opened public testimony on the bill. No one in the committee room or on line wished to testify. 1:29:48 PM REPRESENTATIVE TARR commented that it would be helpful to have a federal government representative respond to questions at the next hearing on the bill. CO-CHAIR TALERICO understood Representative Tarr's concern, but said he hopes to move the bill today. He said he has dealt with this from a municipal level before and has typically found the federal government to be nonresponsive. REPRESENTATIVE SEATON thanked the sponsor for considering the national park issue, saying that that would be beneficial to the bill because it would take off the table something that could be very controversial and draw a number of people to oppose the bill. He encouraged the sponsor to make the bill cleaner. He added that when the federal government isn't listening, action needs to be taken to hopefully stimulate some listening. CO-CHAIR TALERICO confirmed the bill has another committee of referral. REPRESENTATIVE HERRON said that in his recent four years of experience on Arctic policy, federal employees will talk as long as it is not being recorded in a committee hearing. He said he therefore thinks it unlikely that the committee would get their comments on the record. 1:31:55 PM CO-CHAIR TALERICO closed public testimony. 1:32:07 PM REPRESENTATIVE JOSEPHSON said this bill speaks to some real and perceived frustration. But, he added, he thinks he wouldn't recognize his home state anymore if the bill were to pass. He related that the legal opinion he has says Article XII, Section 12, makes this unconstitutional and describes why. REPRESENTATIVE TARR expressed her disappointment that in under 10 minutes the committee is going to work on and move a bill that is substantial in nature and that has far reaching impacts. She offered her hope that the committee can be more thoughtful in the future. REPRESENTATIVE HAWKER said he doesn't feel at all uncomfortable about moving this bill forward as it sends a message to the federal government that he is comfortable with. It is a statement from the House Resources Standing Committee that it believes that Alaska's statehood entitlement needs to be fulfilled and fulfilled in a timely basis. 1:33:58 PM REPRESENTATIVE HAWKER moved to report the proposed committee substitute for HB 115, Version 29-LS0587\E, Bullard, 2/26/16, out of committee with individual recommendations and the forthcoming indeterminate fiscal note. REPRESENTATIVE TARR objected, saying she thinks more time should be given to deliberating the bill and hearing from additional people. She pointed out that typically when the legislature wants to communicate with the federal government it is done by resolution rather than statute. So, if that is truly the intent of this legislation, the committee should be considering a resolution, not a far-reaching statutory change. REPRESENTATIVE JOSEPHSON also objected, stating he doesn't think this needs more attention and he doesn't need to hear from the federal government. He said he doesn't think there would be any point in having Yosemite, Yellowstone, the Great Smoky Mountains, all of it, and it is for those reasons he will be not recommending the bill's passage. REPRESENTATIVE HAWKER noted that the bill places provisions into uncodified law, so it doesn't carry the full weight and authority of a statute. As uncodified law it is an even stronger statement than a simple resolution. 1:35:49 PM REPRESENTATIVE TARR, in response to Co-Chair Talerico, maintained her objection by nodding yes. A roll call vote was taken. Representatives Herron, Hawker, Olson, Seaton, and Talerico voted in favor of the proposed CS for HB 115. Representatives Tarr and Josephson voted against it. Therefore, CSHB 115(RES) was reported out of the House Resources Standing Committee by a vote of 5-2.