Legislature(2005 - 2006)CAPITOL 106
03/30/2006 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB45 | |
| SB249 | |
| HJR27 | |
| HB461 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 45 | TELECONFERENCED | |
| + | SB 249 | TELECONFERENCED | |
| += | HJR 27 | TELECONFERENCED | |
| *+ | HB 461 | TELECONFERENCED | |
| + | TELECONFERENCED |
HJR 27-ALLOTMENTS FOR NATIVE VIETNAM VETERANS 8:47:40 AM CHAIR SEATON announced that the next order of business was HOUSE JOINT RESOLUTION NO. 27, Urging the United States Congress to pass legislation amending the Alaska Native Vietnam Veterans Allotment Act to allow deserving veterans to obtain allotments of vacant land within the State of Alaska; and to reopen and legislatively approve allotments in the Tongass National Forest. CHAIR SEATON highlighted several handouts new to the committee packet. 8:49:34 AM REPRESENTATIVE JOHN COGHILL, Alaska State Legislature, as sponsor of HJR 27, referred to questions that were asked at the previous hearing and directed attention to information from Alaska Legal Services, which shows how [S. 2000 and H.R. 1811] would amend the existing Alaska Native Vietnam Veterans Allotment Act. Regarding the issue of whether or not heirs would be allowed the allotment, he noted where the handout explains that currently only those heirs of a veteran who died in the Vietnam war or from war injuries would qualify, whereas the amendments proposed by the aforementioned U.S. Congress bills would allow an heir of any now deceased Vietnam Era veteran to apply for an allotment. REPRESENTATIVE COGHILL said probably the biggest issue is in regard to vacant federal lands. He noted that there is an amendment in the committee packet that would target that issue. He stated: This resolution, which would encourage the passage of H.R. 1811 and S. 2000, still does not address the issue of the Tongass Forest .... We are asking them to look at the [Shields v. United States, 698 F.2d 987 (9 Cir., 1983)] decision, but those two cases would not deal with it. REPRESENTATIVE COGHILL explained that vacant lands are those that do not have any prior use; land with pipelines, gas lines, roads, bridges, slips, or other improvements would not be considered. He referred to a related portion of the previously mentioned handout, which read: "Thus, veteran allotments would be allowed in all national forests and national parks in Alaska." He said he personally thinks "that's just fine that we have 'inholdings' in some of our parks and preserves, and national forests." He pointed out that many of those allotments were set out before many parks were in existence. Furthermore, he said, the Act went through at the same time that some of the parks were being formed, and "there was an understanding that they would be able to select out of those parks." REPRESENTATIVE COGHILL suggested that Ms. Yeatman could speak to the issue of the application process. He said, "Because in my view I think that's a very steep ... deal. I don't think it would be an easy thing for any of the possible 1,200 - I think is what it amounts to - applications." 8:53:47 AM CHAIR SEATON stated that the original allotment required either usage or occupancy of those lands; therefore, there is a significant difference between that which would have been occupancy in an area that was designated as [a] park, and this [resolution], which says that you can select land that you've had no historical tie to at all. He continued: And so, it seems to me that when we're talking about a national park, there's a significant difference between the previous allotment bill that said, ... "If you've got this historic tie at usage or occupancy of that land and this bill that's in there now that says any park is fair game - or refuge. And I don't see the monuments addressed in here, so, I'd like to get it clarified. 8:54:44 AM REPRESENTATIVE COGHILL responded as follows: I agree that is part of the issue, but the tradeoff for me ... is: there were a lot of lands that had no improvements or limitations because of pipelines, et cetera - the various different changes that really cut ribbons through much of the land that would be available. And again, they would have to be legislatively approved, so they still have a pretty high bar to get over in my view. But the tradeoff is just that. Whereas before it had to be land that was traditional use. But in many cases there [have] been buildings, campsites, bridges, I mean all kinds of things that have happened over the last century that have really made that distinction very hard to follow through. The fact that there [were] probably 40,000 allotments possible and now we're down to the last 1,200 possible, I don't think that the tradeoff is that big of a deal. So, to me the policy call is I would let them go ahead and make the selection. 8:56:16 AM CHAIR SEATON asked Ms. Yeatman if those who applied for an allotment but did not receive one could apply again. 8:56:59 AM CAROL YEATMAN, Supervising attorney, Native Allotment, Alaska Legal Services, answered yes. In response to a follow-up question from Chair Seaton, she estimated that there would be 1,200 allotments available. Regarding whether national parks, refuges, and forests are considered vacant federal land, she began by saying that the original Act of 1906 had no use and occupancy requirement. If people had known about the opportunity, they could have picked land anywhere in the state, with the only restriction against picking mineral land. The law was changed in 1956, she said, and that's when use and occupancy requirements were put in place. According to the legislative history for that change, Ms. Yeatman said, the forest service did not want Native allotments within national forests. When U.S. Congress found out what that meant in terms of the cost in time to adjudicate an allotment, it tried to change the law again under Alaska National Interest Lands Conservation Act (ANILCA) and gave legislative approval to the then pending allotments. MS. YEATMAN continued: For the amendments, having legislative approval is just giving the veterans the same opportunity the people have under the current general allotment Act, which is legislative approval. The land that's available under the amendment is any vacant federal land, and that means - similar to the original Allotment Act - that any federal land that has nothing on it is available for veterans' allotment. And one of the problems that we've seen in the current law [is] that most applications that were rejected were rejected on the grounds that the land applied for was not available because there were so many restrictions in the Veterans Allotment Act as it stands now. But under the amendments, national parks, national forests, [and] national monuments would all be available for veteran allotments, as long as there was no interest such as a right of way easement or gravel pit, pipeline, improvement, and so forth, or anything that would make it not vacant. 9:00:44 AM CHAIR SEATON directed attention to page 2 of the Alaska Legal Services Corporation's handout, and the second bulleted point, which read: Veteran allotments will be allowed on all vacant federal land. This means that all federal land will be available for veteran allotments as long as it is vacant. Vacant federal land is without buildings, roads, bridges, existing and proposed pipelines, existing and proposed rights-of-ways and easements, designated campsites, boat launches, logging areas or any improvements or proposed improvements that would exclude land as not being vacant. In contrast, under existing law most federal land is not available because it is specifically excluded [all national forest land is excluded] or it was withdrawn before the veteran used it. CHAIR SEATON asked what the limitation on a proposed easement or improvement means. He asked, "What makes it either vacant or not vacant?" 9:01:28 AM MS. YEATMAN replied that what makes it vacant is if there is a little marker showing that the land is going to be taken - that it has been selected for a specific purpose - "anything that would ... take an area off the market, so to speak." She said additionally there are umbrella federal laws that would also apply. For example, every allotment today has a reservation for ditches, canals, "and so forth," and if the allotment is in an area known to be an oil and gas area, then that also is reserved from the allotment. She explained that that means the allotment is certified, or there is a patent for it, but the allotment owner does not get subsurface rights to oil and gas. She indicated that there are also other restrictions. 9:02:53 AM CHAIR SEATON noted that the legislation specifically exempts from selection any Trans-Alaska Pipeline System (TAPS) right-of- way area, but does not exempt a natural gasoline/pipeline corridor. 9:03:45 AM MS. YEATMAN explained: The reason the extension is specifically in the amendment, or ... [H.R.] 1811 and S. 2000, is because that was a concession to [the Alyeska Pipeline Service Company (ALYESKA)]. ALYESKA reviewed the proposed legislation to amend the [Alaska Native] Veterans Allotment Act [of 1906] and they ... understood that "vacant" meant land that wasn't the pipeline, but they were so concerned about that that they asked us to concede and just put and express exemption for the pipeline. So, that's why that's in there. It's not that anybody thinks that the pipeline would be vacant land; it's just that to satisfy Alyeska's great concern, we added that provision. But ... vacant means vacant, and I don't even think that's a word that lawyers would fight over very often. I think that if there's a proposed pipeline route, or if there's anything on the books, then that would take it out of being vacant. 9:04:53 AM CHAIR SEATON stated his concern: We have, of course, a natural gas pipeline. ALYESKA is concerned about their corridor enough that they wanted to get specific exclusion under the law. And we don't have that specific exclusion for the [gas] pipeline corridor. And if we had a multitude, or even a number, of private inholdings that could delay the construction of a pipeline, then that would be something very significant to our state. And so, I want to make sure that what we're proposing - and I understand this is only a resolution - but we are -- this is the State of Alaska asking the federal government to do something, and I want to make sure that we ask them for what we really want and not what we don't want. And so, do we have court cases that delineate ... when a proposed, or a thought of, or a potential pipeline corridor becomes vacant? 9:06:37 AM MS. YEATMAN answered no. She said Chair Seaton is expressing the same serious concerns that ALYESKA expressed several years ago "when we added that provision to specifically exempt the pipeline." She suggested that the Alaska State Legislature should ask U.S. Congress to add a provision that would satisfy its concern. 9:08:02 AM CHAIR SEATON stated a concern regarding trustees of state. 9:10:26 AM MS. YEATMAN responded that fortunately for Chair Seaton's concern, allotment law doesn't work quite the same as "other properties and trustees, and so forth." There are no trustees for an "allotment estate." Ms. Yeatman explained as follows: A personal representative is appointed by a state court; that's in federal regulation. The personal representative has one duty, and that duty is to make out the application - period. And that person has no fiduciary duty as a trustee would under normal state law. That's because it's the Bureau of Indian Affairs that's the trustee for a person's estate and a person's property. And that trusteeship ... doesn't really kick in until the allotment is certified. So, while a person is making application for an allotment, whether that person is an heir or personal representative, or both, there is no trustee ... [or] fiduciary duty; there's only the authority under the law to make an application. So, we don't have to worry about a trustee picking a piece of property to maximize the state, because that is not what that personal representative's duty or authority is; it's only to make application for an allotment. And generally speaking, in the past, personal representatives have been an heir - either a child of a deceased veteran or a parent - and they generally picked the land that they used for subsistence that was near their village - just like everybody else did. 9:13:15 AM CHAIR SEATON said he is relieved to hear that, because that alleviates that concern. He mentioned an upcoming amendment that would address the previously discussed pipeline. 9:13:58 AM CHARLES HUBBARD, testifying on behalf of himself, referred to his written testimony [included in the committee packet] and said it obviously is not "the whole story." He said the end of both H.R. 1811 and S. 2000 state that the Department of Interior will have one year to establish regulations. He indicated that the final rule published in 43 CFR 25.60, June 30, 2000, involved a public testimony process. He said one of the questions that came up was whether there is land owned by the federal government that [the Bureau of Land Management (BLM)] cannot convey to someone who qualifies. He continued: Part of their answer is: Land presently selected but not conveyed to the State of Alaska the state may relinquish - up to 160. And obviously that would be a process that would have to go through the state. So, the concerns of people selecting lands that the state has selected would be addressed if they would do that, and it would be addressed with the state. And it also says you cannot receive an allotment containing any of the following: a regularly used, recognized campsite that is primarily used by someone other than yourself. In other words, public parks. ... Most parks have campsites and other things in them that other people use. These are the regulations that came out under 43 CFR 25.60. In the original [Veterans] Allotment Act, it also addresses the fact that the allotment only had surface rights - not subsurface rights, and it also addresses pipeline, railroads, and other right of way that they cannot restrict any of those type of activity - the allotments cannot. 9:17:46 AM DEE HUBBARD, testifying on behalf of herself, mentioned her e- mailed testimony [included in the committee packet]. She stated: When I last checked with anyone in Washington D.C., the report that the [U.S.] Department of Interior was supposed to have completed and sent to [U.S.] Congress in 1999 cannot be found. I was told sometimes this happens when a department really doesn't want to do a report. So, the possibility of finding out how many Alaska Natives might be affected by this is not available. The other item is in talking with [Cynthia] Ahwinona, from Representative [Don] Young's office, she is really hopeful that this resolution will get moving and get passed, because she said she really needs it back in D.C. to help with Representative Young's legislation. 9:19:47 AM CHAIR SEATON, after ascertaining that there was no one else to testify, closed public testimony. 9:19:53 AM REPRESENTATIVE COGHILL, regarding an issue brought up by Ms. Hubbard [in her written testimony] regarding conservation system units, said Ms. Hubbard asserted that if there was land selected within a conservation system unit that BLM would "go to find land outside of that system." He said he would like clarification on this issue from Ms. Yeatman. 9:20:28 AM CHAIR SEATON read from Ms. Hubbard's testimony for the benefit of Ms. Yeatman, who was testifying via teleconference and did not have a copy. 9:21:22 AM MS. YEATMAN said the conservation system unit (CSU) is in existing law. She revealed that she was recently told by "two fairly high BLM officials" that they "wished they had never put that in the regulations." She continued: It's in the federal regulations that apply to the veteran allotments today; it's not in the amendment. ... Ms. Hubbard is right, in that the definition of a conservation system unit is very broad; it covers almost all federal land. And it gives the CSU manager - that is the manager of that particular area, whether it's a wildlife refuge or a park or whatever - ... veto power over a veteran allotment. And I'll give you a good example. I have a client that applied for a veteran's allotment in a national park - St. Elias - and he applied for the allotment of land that he's used for many, many years. ... It's along the road, there's an old mine, there's two airstrips, there's a grocery store, there are two lodges, there are a number of homestead cabins, and so forth - recreational areas. It's a very well developed area, and it's not far off the highway. The CSU manager rejected his allotment on the grounds that it was inconsistent with the purpose of the park, although it was in an area that's highly developed. So, the provision for CSU in the federal law today allows the CSU manager - the park manager or a fairly low-level employee - to reject an allotment. And when that happens, the veteran then has to go and pick an alternative sight. But as we've seen over and over, one of the big problems with the Veterans Allotment Act is there isn't any land available as it's defined under current law. And so, if veterans are not allowed to get allotments in a national park, or a wildlife refuge, or a national forest, then we're right back where we started from, and there isn't any land left for them. They're going to be left out of getting any land whatsoever, because that's all that's left. 9:24:02 AM CHAIR SEATON asked if the provision that [Ms. Hubbard] is talking about would be superseded by S. 2000 or H.R. 1811. 9:24:20 AM MS. YEATMAN answered that's correct; [the provision] is in current law, not in the proposed amendments in U.S. Congress. Regarding Ms. Hubbard's remark that she was unable to obtain a copy of a report to U.S. Congress that the U.S. Department of Interior was supposed to have made, Ms. Yeatman stated her understanding that Representative Coghill provided that information to the committee. 9:25:08 AM CHAIR SEATON said he would ask Representative Coghill to forward that information to Ms. Hubbard. 9:25:52 AM CHAIR SEATON moved to adopt Amendment 1, [found on two separate pages], which read as follows [original punctuation provided]: Page 2, following line 27: Add a new clause to read: "FURTHER RESOLVED that the United States Congress is urged to prohibit the selection of allotments in a national park, a national wildlife refuge, a national monument, or the right-of-way for a proposed Alaska natural gas pipeline; and be it" Insert at page 2 line 25 WHEREAS, the policy of the United States of America over the past several decades has been to acquire in- holdings in our National Park, Refuge, and Monument systems to provide a contiguous manageable entity; and WHEREAS, acquisition by numerous private parties of parcels that will be necessary for the right-of-way and construction of the Alaska North Slope Natural Gas Pipeline could complicate and delay the construction of such a vital facility, 9:27:01 AM REPRESENTATIVE RAMRAS objected for discussion purposes. 9:27:11 AM REPRESENTATIVE COGHILL said he disagrees with a majority of the amendment, with the exception of the language related to the right-of-way of a proposed natural gas pipeline. Closing down national parks, refuges, and monuments, he said, would effectively "slam the door on other selections," because the land available then would be "minimal to nothing." He said he doesn't have all the answers, but he said, "Even if the language in Congress passes through, I can tell you the CSU management would be a huge barrier anyway." He said he thinks the level of scrutiny the allotments will get will be huge, because several federal agencies will have to review them. 9:29:11 AM CHAIR SEATON clarified that Amendment 1 includes national parks, refuges, and monument systems, but does not include any of the national forests, which are the largest portions of federal land in Alaska. 9:29:20 AM REPRESENTATIVE COGHILL said that would be helpful in Southeast and Southcentral Alaska, but not for the vast majority of Alaska. He explained that Amendment 1 would make everything on a river system in the interior or the northern region of Alaska off limits. 9:29:47 AM CHAIR SEATON said Amendment 1 would take out Arctic National Wildlife Refuge (ANWR) and Denali National Park. He asked what else would be affected. 9:30:04 AM REPRESENTATIVE COGHILL listed: Gates of the Arctic, Selawik Refuge, and Porcupine River Refuge. He said he would have to bring in a map to point out other areas. Notwithstanding that, he stated other areas that would be affected would be: most of Western Alaska, all of North Alaska, and most of Interior Alaska. He concluded, "I think almost all federal land - maybe with a few exceptions - [is] going to be within the description of 'parks, refuges, or monuments.'" 9:30:44 AM CHAIR SEATON asked if taking refuges out of Amendment 1 would "provide enough ... delineation." 9:31:03 AM REPRESENTATIVE COGHILL replied, "There are some parks that are probably more sensitive than others. I think Denali is probably one that has gotten [the] most attention." He said several of the parks and refuges in Northwestern Alaska are probably not as contentious, thus, he may, after further study, consider Chair Seaton's proposal to take refuges out of Amendment 1. He said he thinks the Tongass National Forest is already off limits because of the aforementioned Shields case. He added, "The bar is still very high." Once a land selection is made, there are several land managers that can make suggestions and "make these allotment applications sit on ... their desks for years." He said he sides with applicants of the allotment, because he thinks the federal land managers have a huge advantage, which is why he is "arguing so strenuously for this." He stated: I understand your concern - don't get me wrong. I don't want inholdings to become a barrier to healthy management of those parks. I tend to agree with you. But I think, together with inholdings that we've already had, it's been proven that both management pressure from parks and political or public opinion, I guess you'd say, has kept those even from being what they were promised they could be. So, I am concerned about putting this in a resolution. I think it's something we need to watch, but I think it would send the wrong language. 9:33:17 AM CHAIR SEATON moved to adopt Amendment 1 to Amendment 1, which would remove ", Refuge," from the first "WHEREAS" and remove "a national wildlife refuge," from the "FURTHER RESOLVED" portion of Amendment 1. 9:33:53 AM REPRESENTATIVE GATTO objected to Amendment 1 to Amendment 1. He offered his understanding that if there was an allotment made in a national park, "they wouldn't be allowed to exercise subsistence rights anyway ..., but they would be allowed to build a lodge." 9:34:12 AM REPRESENTATIVE COGHILL said he does not think Representative Gatto's statement is accurate. He offered his understanding that subsistence rights in national parks are guaranteed under the Alaska National Interest Lands Conservation Act (ANILCA), but with some limitations. He said it is true that building on the land would be allowed, but he would debate anyone who said big hotels would show up on the land. However, he stated that he thinks "they should have the right to do on their land what any of us have the right to do on our land." He said the reality is that most of [the Native American Vietnam Era veterans] want land for traditional uses. 9:35:16 AM REPRESENTATIVE GATTO maintained his objection to Amendment 1 to Amendment 1. 9:35:29 AM REPRESENTATIVE GARDNER, regarding the Tongass being off limits because of the Shields case, noted that the resolution would urge that the allotments denied under the Shields case be reopened and approved, which she said would "put the Tongass back on the table." 9:36:06 AM REPRESENTATIVE COGHILL responded, "The chances of us getting that are probably pretty slim, but I think it's a reasonable request." Both H.R. 1811 and S. 2000 do not include the Tongass. 9:36:42 AM REPRESENTATIVE ELKINS maintained his [previously inaudible] objection to Amendment 1 to Amendment 1. 9:37:21 AM REPRESENTATIVE GATTO asked for confirmation that a double negative is involved, thus, Amendment 1 to Amendment 1 would allow national wildlife refuges to be used. 9:37:36 AM CHAIR SEATON answered that's correct. He offered further clarification. 9:38:22 AM REPRESENTATIVE COGHILL said he agrees with Amendment 1 to Amendment 1, but still does not like Amendment 1 itself. 9:38:37 AM A roll call vote was taken. Representatives Gatto, Lynn, Ramras, Gardner, and Seaton voted in favor of Amendment 1 to Amendment 1. Representative Elkins voted against it. Therefore, Amendment 1 to Amendment 1 passed by a vote of 5-1. 9:39:51 AM CHAIR SEATON read Conceptual Amendment 1 [as amended] and asked if there was any objection. 9:40:22 AM REPRESENTATIVES RAMRAS AND ELKINS objected to Amendment 1, [as amended]. 9:40:28 AM REPRESENTATIVE RAMRAS stated that he likes HJR 27 the way it was brought to the committee. In response to a question from Representative Gatto, he reiterated his statement. 9:41:03 AM ELKINS indicated that he objected for a reason similar [to that of Representative Ramras]. 9:41:07 AM CHAIR SEATON spoke to Conceptual Amendment 1, as amended. 9:42:01 AM REPRESENTATIVE COGHILL, in response to a question from Representative Gatto, reiterated his understanding that under ANILCA there are some guarantees for subsistence use within national parks. REPRESENTATIVE COGHILL, in response to a request for a definition of "subsistence" from Representative Gatto, said there are some restrictions, but it has to do with guaranteeing harvesting of fish and wildlife "for certain subsistence uses." He said he would have to review that information before expounding further on it. 9:42:47 AM REPRESENTATIVE COGHILL, in response to a question from Representative Lynn, reiterated that he does not support Amendment 1, as amended. He stated: If you go back under ... the D.2 selection of ANILCA, there [were] a lot of lands that were taken off the table by the President of the United States, under the Antiquities Act, that did not get to go through the public process and really violated these Native allotment possibilities. So, I think the park system, the refuge areas, and the monuments, did not take into account the hanging issue of Native allotments. So, as far as I'm concerned, they have the first right. And so, that's one of the reasons why I've been so adamant about it. 9:43:51 AM A roll call vote was taken. Representatives Gardner and Seaton voted in favor of Amendment 1, as amended. Representatives Elkins, Lynn, Ramras, and Gatto voted against it. Therefore, Amendment 1, as amended, failed by a vote of 2-4. 9:44:31 AM REPRESENTATIVE GARDNER offered her understanding that HJR 27 addresses misinformation and broken promises, and she said it is never too late to remedy a mistake or unfairness. She stated that the issue that is troublesome for her is that the proposed resolution addresses only Vietnam Veteran Era veterans and not veterans from other wars. 9:45:46 AM REPRESENTATIVE COGHILL responded that he asked the same question when the issue was first brought to him. The answer, he explained, is that the Native people "had access to this right up into the '70s." The fact is, he said, many did not apply. He stated that he lays much of the blame for that "at the feet of BLM." He offered further details. He reiterated that he thinks it is an issue of fairness to ensure that Native Vietnam veterans from the entire Vietnam Era are given access to allotment applications. 9:49:19 AM REPRESENTATIVE GATTO asked whether the Korean War was classified as war or police action, and why veterans from that conflict aren't included in HJR 27. 9:49:52 AM REPRESENTATIVE COGHILL, in response to the former question, said it wouldn't make a difference if a veteran was involved in war, cold war, or police action. He said the reasons that the Korean War is not included in the resolution are similar to the reasons he previously stated to Representative Gardner regarding why veterans of other wars are not included. 9:50:50 AM CHAIR SEATON said he applauds Representative Coghill's effort. He stated that he thinks without Amendment 1 [text provided previously] it will be more difficult to get U.S. Congress to accept HJR 27. He said, "I'm afraid that the legislation, as constructed, will draw numerous critics because of the potential for degrading national parks [and] monuments and delaying the gas pipeline." He encouraged Representative Coghill to revisit those issues and see if there is any way to address them. 9:52:43 AM REPRESENTATIVE GATTO moved to report CSHJR 27(MLV) out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHJR 27(MLV) was reported out of the House State Affairs Standing Committee.
| Document Name | Date/Time | Subjects |
|---|