Legislature(2015 - 2016)BARNES 124

03/18/2016 01:00 PM RESOURCES

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
- Meeting will Reconvene at 1:00 pm on 3/19/16 -
Scheduled but Not Heard
Heard & Held
-- Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 216(RES) Out of Committee
        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                                                               
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                                                               
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.                                                                           

Document Name Date/Time Subjects
HB0274 Ver. E.PDF HRES 3/18/2016 1:00:00 PM
HB 274
HB274 Sponsor Statement Ver. E.pdf HRES 3/18/2016 1:00:00 PM
HB 274
HB274 Sectional Analysis Ver. E.pdf HRES 3/18/2016 1:00:00 PM
HB 274
HB 274 Fiscal Note.pdf HRES 3/18/2016 1:00:00 PM
HB 274
HB 274 Supporting Documents - Repealers.pdf HRES 3/18/2016 1:00:00 PM
HB 274
HB274 Supporting Documents-Letters of Support.pdf HRES 3/18/2016 1:00:00 PM
HB 274
HB274 Supporting Documents-Parks Div Briefing on Point Bridget.pdf HRES 3/18/2016 1:00:00 PM
HB 274
HB274 Supporting Documents-State Land Exchanges Fact Sheet.pdf HRES 3/18/2016 1:00:00 PM
HB 274
HB274 Supporting Documents-Trust Land Exchange.pdf HRES 3/18/2016 1:00:00 PM
HB 274
CSHB 216( 1 ) - Sponsor Statement.pdf HRES 3/18/2016 1:00:00 PM
HB 216
CSHB 216( 2 ) - Sectional Analysis.pdf HRES 3/18/2016 1:00:00 PM
HB 216
CSHB 216( 4) - Legislation Ver. E.pdf HRES 3/18/2016 1:00:00 PM
HB 216
CSHB 216( 3 ) - Summary of Changes (Ver. W to E).pdf HRES 3/18/2016 1:00:00 PM
HB 216
Adopted Amendment for CS HB 216 Request new CS.pdf HRES 3/18/2016 1:00:00 PM
HB 216
HB 216 Talerico Memo on questions in committee.pdf HRES 3/18/2016 1:00:00 PM
HB 216