Legislature(2015 - 2016)BARNES 124
03/18/2016 01:00 PM RESOURCES
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HB 216-NAVIGABLE WATER; INTERFERENCE, DEFINITION 1:02:00 PM CO-CHAIR TALERICO announced that the first order of business is HOUSE BILL NO. 216, "An Act relating to obstruction or interference with a person's free passage on or use of navigable water; and amending the definition of 'navigable water' under the Alaska Land Act." [Before the committee was the proposed committee substitute (CS) for HB 216, Version 29-LS0995\E, Bullard, 3/14/16, adopted as the working document on 3/16/16.] 1:02:33 PM JOSHUA BANKS, Staff, Representative David Talerico, Alaska State Legislature, discussed the sponsor's 3/18/16 memorandum, included in the committee packet, that details the questions raised by members during the committee's 3/16/16 meeting. He addressed the concern raised by Representative Seaton and Representative Herron about whether there would be restrictions to prevent possible harm from all-terrain vehicles (ATVs) operating along and through anadromous streams. He said the sponsor confirmed with the Alaska Department of Fish & Game (ADF&G) and the Alaska Department of Natural Resources (DNR) that the statutes currently in place would provide some restrictions on what activities could be conducted in or around navigable waters. He relayed that ADF&G notified the sponsor of AS 16.05.871, which requires a person to obtain a permit to conduct certain activities around anadromous waters and is in place to ensure adequate protection of ADF&G resources. Mr. Banks elaborated that AS 16.05.896 allows for a misdemeanor offense to be issued to anyone doing material damage to salmon spawning grounds or disrupting salmon migration. He further explained that there are a number of statutes DNR could use to restrict or manage the use of waters through regulation, including determining which uses are incompatible within certain areas. Drawing attention to Section 1 on page 1 of Version E, he pointed out that AS 38.05.128(a) gives permission to a state agency to obstruct the free passage of navigable waters if it is authorized by law or permit issued by a federal or state agency. So, he continued, a department could stop an activity causing harm to sensitive areas if there is an authorization in the law. MR. BANKS next addressed the concern raised by Representative Josephson regarding whether the 1824 U.S. Supreme Court case Gibbons v. Ogden [may cause a problem for the state's definition of navigable water]. Mr. Banks explained that this case dealt primarily with interstate commerce and did not deal with navigability unless it was closely associated with interstate commerce. MR. BANKS lastly addressed the concern raised by several testifiers regarding the deletion of the language "but not limited to". He reported the deletion is being done due to a legal preference that Legislative Legal and Research Services has started moving toward. He explained that using the single word "including" has the same legal meaning as "including but not limited to", and gets the point across using less words. 1:07:35 PM REPRESENTATIVE JOSEPHSON moved to adopt Conceptual Amendment 1, which read: Page 1, line 8, following "law"; Insert "or regulation," CO-CHAIR TALERICO objected for purposes of discussion. REPRESENTATIVE JOHNSON requested a copy of the amendment prior to discussion. 1:08:41 PM The committee took a brief at-ease. 1:10:55 PM REPRESENTATIVE JOSEPHSON explained why he is offering Conceptual Amendment 1. He said he was advised by an attorney who is a water rights expert that the definition in Version E could be restrictive. He noted the Constitution of the State of Alaska, Article VIII, Section 14, Access to Navigable Waters, states, "Free access to the navigable or public waters of the State, as defined by the legislature, shall not be denied any citizen of the United States or resident of the State, except that the legislature may by general law regulate and limit such access for other beneficial uses or public purposes." He further noted that Title 5 contains a huge number of ADF&G regulations, many created by the Alaska Board of Game. In further research he found the 3/2/01 decision for the case, Interior Alaska Airboat Association Inc. v. State of Alaska, Board of Game, which concerned regulations in the Nenana region and the Noatak River and whether, for example, on a navigable waterway the Alaska Board of Game could say an airboat or an aircraft cannot be used in certain locations. The Supreme Court of Alaska ruled that the Alaska Board of Game can do that, he related. He said he wants the record to reflect that it is not necessarily a free- for-all across Alaska's navigable waters and so he is offering this amendment. 1:13:16 PM REPRESENTATIVE JOHNSON brought attention to Version E, page 2, lines [1-2], which state, "authorized by the commissioner after reasonable public notice." He held that this is regulation and therefore adding "or regulation" is unnecessary. CO-CHAIR TALERICO said the legislature as a body defines the law of the state, which engages the departments to actually create regulations. So, since law is covered in the bill, his question is whether it would be redundant to add "or regulation". He opined that regulations are born via the laws provided by the legislature. REPRESENTATIVE SEATON offered his understanding that "law" includes both law and regulations of the state; it is not simply by statute, law is a broader term. REPRESENTATIVE TARR allowed it may be accurate that the proposed language is unnecessary, but said HB 216 would be made more clear by including "or regulation". She suggested taking a brief at ease in order to solicit the opinion of Legislative Legal and Research Services. CO-CHAIR TALERICO said he personally does not have a lot of heartburn about adding the amendment, even though he is unsure how necessary it is. REPRESENTATIVE HERRON said he views the amendment as a "belt and suspenders" amendment and agreed the amendment is redundant. CO-CHAIR NAGEAK concurred. 1:16:40 PM CO-CHAIR TALERICO removed his objection. There being no further objection, Conceptual Amendment 1 was adopted. 1:17:07 PM REPRESENTATIVE TARR offered her appreciation for the answers to the questions, particularly the issue of sensitive areas and protection of anadromous streams. She addressed previous testifiers who may be listening saying that although the definition is becoming broader, committee members care about the state's salmon and want to avoid any unintended consequences, while [protecting the use of] motorized vehicles. CO-CHAIR TALERICO offered his appreciation for the questions raised by the committee members, saying it is the committee's responsibility to vet the bills and pursue answers. REPRESENTATIVE SEATON referenced the definition that people have basically unlimited access to waters of the state. He shared his hope that the addition of methods, such as all-terrain vehicles, snow machines, and so forth, will be further investigated by the sponsor to ensure that adding "in any season" is not expanding access of citizens upon private property. He posited it would be good to clarify that expanding the definition and what can be used will not result in invading private property by statute that allows people access. 1:20:05 PM CO-CHAIR NAGEAK moved to report the proposed committee substitute (CS), Version 29-LS0995\E, Bullard, 3/14/16, as amended, with attached fiscal notes and individual recommendations. There being no objection, CSHB 216(RES) was reported from the House Resources Standing Committee.