Legislature(1993 - 1994)

03/31/1994 08:05 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
  SENATE BILL NO. 67                                                           
                                                                               
       An Act amending  provisions of ch.  66, SLA 1991,  that                 
       relate to reconstitution  of the  corpus of the  mental                 
       health trust, the  management of  trust assets, and  to                 
       the  manner  of  enforcement   of  the  obligation   to                 
       compensate  the trust; and  providing for  an effective                 
       date.                                                                   
                                                                               
  Co-chair  Pearce  directed  attention to  a  work  draft (8-                 
  LS0409\Q, Chenoweth, 3/22/94) CSSB 67  (2d Fin); zero fiscal                 
  notes from the Dept. of Law, Dept. of Fish and Game, and the                 
  Alaska Court  System;  correspondence  from  Cordova  United                 
  Fishermen United; and  the committee report from  passage of                 
  CSSB 67 (Fin) on May 6, 1993.                                                
                                                                               
  Senator Rieger MOVED  for adoption of  CSSB 67 (2d Fin)  "Q"                 
  version for discussion  purposes.  No objection  having been                 
  raised,  CSSB 67  (2d  Fin) was  ADOPTED.   Co-chair  Pearce                 
  advised  that  the  attorney  general  and  commissioner  of                 
  natural  resources  would  provide  an  overview of  changes                 
  incorporated within the  bill.  No public  testimony will be                 
  taken at this  time.  The  legislation will then be  brought                 
  back  before  committee  for  further  discussion  "sometime                 
  around the 11th of April . . . ."                                            
                                                                               
  HARRY NOAH, Commissioner, Dept.  of Natural Resources,  told                 
  members that  the attorney  general would  first review  the                 
  legal background and  the fundamental  basis upon which  the                 
  "Q"  version was  drafted.   The commissioner  said  that he                 
  would then speak to "How we've  gotten to where we've gotten                 
  on the specifics of the bill."                                               
                                                                               
  ATTORNEY GENERAL BRUCE  BOTELHO came  before committee.   He                 
  explained that he would be speaking from typewritten text in                 
  an attempt to build a record for review by both the superior                 
  and supreme court.  (A copy  of the Attorney General's typed                 
  remarks is appended to these minutes as Attachment A.)                       
                                                                               
                                                                               
  Senator Kerttula  referenced  comments that  the state  must                 
  return to the trust fair market value  equivalents for trust                 
  land sold or  otherwise disposed of,  and asked "as of  what                 
  time?"   The  Attorney General  responded, "as of  1978, the                 
  time that the trust  was dissolved."  He further  noted that                 
  the  supreme  court  provided  the following  directive  for                 
  reconstituting the trust:                                                    
                                                                               
       1.   Those general  grant lands which were  once mental                 
  health         lands will return to former trust status.                     
                                                                               
       2.   In the event  exchanges of  lands have been  made,                 
  those                                                                        
            properties  which  can  be traced  to  an exchange                 
            involving  mental  health   lands  will  also   be                 
            included in the trust.                                             
                                                                               
       3.   To the extent that former mental health lands have                 
  been                                                                         
            sold since the date of  conveyance, the trust must                 
            be reimbursed  for the  fair market  value at  the                 
            time of the sale.                                                  
                                                                               
       4.   In calculating  the total amount  owed, the  trial                 
  court                                                                        
            should   grant  a   set-off   for  mental   health                 
            expenditures  made  by the  state during  the same                 
            period.                                                            
                                                                               
       5.   In the event that  expenditures exceeded the value                 
  of                                                                           
            land sold, the state need not furnish cash as part                 
            of the reconstitution.                                             
                                                                               
  Mr.  Botelho  next spoke  to  three legislative  attempts to                 
  reconstitute the trust (page  4 of Attachment A).   The most                 
  recent  proposal,   Ch.  66,  SLA   91,  was  found   to  be                 
  constitutional, but preliminary approval was denied because:                 
                                                                               
       1.   The settlement agreement did not provide  security                 
  to                                                                           
            guarantee the state's performance.                                 
                                                                               
       2.   Both the state and plaintiffs could terminate the                  
            settlement at any time, without court approval.                    
                                                                               
  Judge Greene made clear  in her ruling that the  adequacy of                 
  mental  health  funding   and  services   provided  by   the                 
  legislature were not  at issue.   All parties to the  action                 
  have come to the conclusion that the mental health community                 
  will  remain  dependent  on  annual  appropriations  by  the                 
  legislature to  pay for most  of the  state's mental  health                 
  program.                                                                     
                                                                               
                                                                               
  Senator Kerttula asked  if the state  had a cause of  action                 
  against those who  profited from  transfer of mental  health                 
  lands from  the original trust.  Mr.  Botelho responded that                 
  since no  illegal activity was  involved, there is  no cause                 
  for action.   He attested  to the fact  that litigation  has                 
  cast  a  cloud on  resource  development of  original mental                 
  health lands.  He further spoke to need to clear title (page                 
  7, Attachment A).                                                            
                                                                               
  In response to  questions from Senator Kerttula  and Senator                 
  Kelly regarding the cloud upon title to former mental health                 
  lands now held by private individuals, Mr. Botelho explained                 
  that  the proposal  to return  to trust original  lands that                 
  have not otherwise  been disposed  of, return of  substitute                 
  lands, and provision of compensation  ($225 million) for the                 
  gap between  original and  substitute lands  is intended  to                 
  immediately  lift  the  lis  pendens   and  clear  title  to                 
  privately held  lands.   Private land  holders are  innocent                 
  third  parties  since  they  purchased  the land  under  the                 
  assumption  that the state  had full  authority to  make the                 
  transfers. Many purchases predate the filing of the lawsuit.                 
  Senator  Kelly  asked  if the  $225  million  payout  of $15                 
  million a year  for 15  years involves general  funds.   Mr.                 
  Botelho responded affirmatively.                                             
                                                                               
  Senator Kelly next asked if  lands proposed for substitution                 
  have been generating  revenues.  Would  the state sustain  a                 
  loss in general fund revenues from  these lands while at the                 
  same  time paying out  the $15  million?   Commissioner Noah                 
  acknowledged that a portion of the land is generating  "some                 
  income at this point in time."   He said he would provide  a                 
  specific number.                                                             
                                                                               
  Senator  Sharp   inquired  concerning   the  reasoning   and                 
  justification behind  the $225 million payout.  Commissioner                 
  Noah explained that the total was  calculated as a result of                 
  having "pulled a certain number  of properties off the table                 
  . . . in terms of . . . the  land list."  Removed properties                 
  include agricultural lands at Point MacKenzie.  Some of  the                 
  lands  were  previously mental  health  lands, and  some are                 
  substitute lands.                                                            
                                                                               
  Commissioner Noah  next directed  attention to  a series  of                 
  charts  (Attachment B).   He explained that  on December 30,                 
  1993,  the  judge  denied preliminary  approval  of  Ch. 66.                 
  However, Ch. 66  remains the  basis upon which  CSSB 67  (2d                 
  Fin) is  constructed.   There  are  two means  of  achieving                 
  finalization  of  the mental  health  issue.   The  first is                 
  through legislative  resolution.   That is contained  within                 
  the   above-reference  bill.     The  alternative   is  true                 
  settlement.    Settlement  means  that  all parties  to  the                 
  litigation  come  to the  table  and  agree.   The  state is                 
  presently  dealing  with  different sets  of  mental  health                 
                                                                               
                                                                               
  attorneys.     Some represent  the  environmental community,                 
  some   represent   resource   companies,    some   represent                 
  municipalities  and  third-party   landowners,  and   others                 
  represent members of the mental  health community.  Meetings                 
  will be ongoing next week in an attempt to reach settlement.                 
  That is the  best alternative.  Absent  full settlement, the                 
  proposed legislation has  been submitted  for resolution  of                 
  the  issue.     Commissioner  Noah  stressed  that   if  the                 
  legislature takes  no action,  the status  quo will  remain.                 
  Gridlock will continue, title to  lands will remain clouded,                 
  and resource development will remain limited.                                
                                                                               
  Directing attention to page 2 of his handout (Attachment B),                 
  Commissioner  Noah  advised  that the  six  items  set forth                 
  thereon constitute the logic behind the present proposal for                 
  finalizing mental health trust issues.                                       
                                                                               
  The  Commissioner  next referenced  pages  3  and  4 of  the                 
  handout  and  noted  concerns  raised   by  each  group  and                 
  provisions  within  CSSB  67 (2d  Fin)  which  address those                 
  concerns.    Senator Kerttula  questioned  DNR  versus trust                 
  authority management of  trust lands.   He noted  assertions                 
  that the trust authority might obtain considerably more from                 
  management of  its lands  than DNR  would generate  from the                 
  same lands.  Commissioner Noah said  that the trust would be                 
  managed  consistent with  the  mental  health enabling  act.                 
  That means that greater emphasis would be placed on deriving                 
  economic  value.    Senator  Kerttula  asked  if  the  trust                 
  authority would have oversight on leasing.  The Commissioner                 
  responded affirmatively.    Speaking to  concerns raised  by                 
  each group, Commissioner  Noah noted that  "no one can  have                 
  everything they want because it's not physically possible to                 
  do that."                                                                    
                                                                               
  Both Senator Sharp  and Co-chair  Frank inquired  concerning                 
  the  grounds  upon   which  environmental  interests  became                 
  involved in   mental  health litigation.   Attorney  General                 
  Botelho responded that lands from the original mental health                 
  trust had  been transferred  into state  parks and  refuges.                 
  The  environmental   community  is   concerned  that   as  a                 
  consequence of return  of park  lands or areas  such as  the                 
  Haines  eagle  reserve  to  the  trust,  they  might  become                 
  available for development.   Mr.  Botelho referenced a  U.S.                 
  Supreme  Court decision which  concluded that citizens could                 
  defend "trees and spotted owls, and the like in court .  . .                 
  ."  That doctrine lives on.                                                  
                                                                               
  End:      SFC-94, #48, Side 1                                                
  Begin:    SFC-94, #48, Side 2                                                
                                                                               
  Senator Kerttula referenced  the fourth page of  the handout                 
  and inquired concerning the meaning of:                                      
                                                                               
       DNR management with current regulatory scheme used                      
                                                                               
                                                                               
       to  the extent  possible under  the  Mental Health                      
       Enabling Act.                                                           
                                                                               
  Commissioner  Noah  explained  that  part  of  the   problem                 
  encountered in dealing  with the Mental Health  Enabling Act                 
  relates to the fact  that means of dealing with  the "public                 
  process  and that type  of thing" are not  clear.  The state                 
  proposes that specific regulations  be prepared and  adopted                 
  to  carefully outline the  process.  The  process of setting                 
  the regulations will  allow everyone  to have a  say in  the                 
  issue.                                                                       
                                                                               
  Commissioner  Noah  advised that  the  state proposal  would                 
  require some  municipalities  to  reconvey  original  mental                 
  health trust lands back to the trust.  They have expressed a                 
  willingness to do that but requested an extension of time to                 
  select other lands, hence the two-year extension.  They also                 
  want clear title  in order  to allow land  selections to  be                 
  completed.  The proposed bill will accomplish that.  It will                 
  also clear title for third-party landholders.                                
                                                                               
  Co-chair  Frank inquired  concerning the  basis  of resource                 
  development  group   involvement  in  mental   health  trust                 
  litigation.  Attorney General Botelho explained that ongoing                 
  development would be directly impacted by return of lands to                 
  the trust.  Concern arose that the lands might be subject to                 
  a different landlord  who might impose more  onerous royalty                 
  or lease payments.   These parties  have a right to  protect                 
  their interests  and ensure that  they are not  subjected to                 
  potential harm.                                                              
                                                                               
  Commissioner Noah stressed that Judge  Greene found that she                 
  could approve resolution of the issue without all parties in                 
  agreement.  That is an important point.                                      
                                                                               
  Discussion  of  standing needed  to  become involved  in the                 
  litigation followed between Attorney General Botelho and Co-                 
  chair Frank.                                                                 
                                                                               
  Co-chair Pearce directed  that the  meeting be recessed  for                 
  the  Senate  Floor   session  and  scheduled   to  reconvene                 
  approximately ten minutes after adjournment of the session.                  
                                                                               
                       RECESS - 9:00 A.M.                                      
                      RECONVENE - 9:32 A.M.                                    
                                                                               
  The meeting was reconvened with Co-chair Pearce and Senators                 
  Kelly, Kerttula,  and Rieger  in attendance.   Senator  Mike                 
  Miller was also present.                                                     
                                                                               
  HARRY  NOAH,  Commissioner,   Dept.  of  Natural  Resources,                 
  commenced a sectional review of CSSB 67 (2d Fin).   He first                 
  asked that members consider five specific points:                            
                                                                               
                                                                               
       1.   Findings                                                           
       2.   Trust Authority Concept                                            
       3.   Monetary Payments to the Trust                                     
       4.   Reconstruction of the Trust                                        
       5.   Management                                                         
                                                                               
  An additional provision of  the bill says that if  the court                 
  action is  not dismissed  by December  15, 1994,  provisions                 
  relating to the  trust authority and cash payments  would be                 
  repealed.                                                                    
                                                                               
  Speaking  to the  findings,  Commissioner Noah  specifically                 
  noted language  providing the  legislature  power to  remove                 
  land from trust status  if the trust is compensated  for the                 
  land.   The reason for such  findings is to  make the record                 
  very clear as to the legislature's  understanding of what is                 
  specifically occurring in the legislation.                                   
                                                                               
  An additional finding  states that the  land did not in  the                 
  past and will not  in the future generate enough  revenue to                 
  fully fund  mental health programs.                                          
                                                                               
  A further  finding calls for ratification of lands that have                 
  been sold.                                                                   
                                                                               
  The  full  purpose  of  the  findings  is  to  lay  out  the                 
  legislature's understanding of  "where we are at  this point                 
  in this case and the rationale . . . of the underpinnings of                 
  this particular bill."                                                       
                                                                               
  Commissioner Noah next spoke to the trust authority concept.                 
  He  explained  that  it derives  from  Ch.  66.   The  trust                 
  authority  would be  a public  corporation of  the Dept.  of                 
  Revenue.  The purpose of the authority would be to ensure an                 
  integrated, comprehensive mental health program.   The trust                 
  would be governed by  a board of  trustees made up of  seven                 
  members appointed by the governor,  based on their financial                 
  and  land  management experience.    The authority  would be                 
  responsible  for  managing  the cash  assets  of  the trust,                 
  coordinating state  agencies, and providing services  to the                 
  trust.  The authority would have  the ability to make budget                 
  recommendations to both  the governor and legislature  as to                 
  how "the revenue  that's in the trust  would be paid."   The                 
  governor  and  the  legislature would  have  the  ability to                 
  modify those  recommendations but  only based  upon specific                 
  findings.  The trust authority would also be responsible for                 
  overseeing  DNR  administration  in  terms  of  "their  land                 
  management  decisions."   Commissioner Noah  called specific                 
  attention  to  that  provision, advising  that  it  is "very                 
  important  to the  mental  health  community."    Provisions                 
  relating  to  the  trust  authority  would  be  repealed  if                 
  litigation is not dismissed by  midnight, December 15, 1994.                 
                                                                               
                                                                               
  Commissioner Noah next addressed specific monetary payments.                 
  He explained  that the  administration has  proposed to  pay                 
  $225  million to  the trust.    The total  would be  paid in                 
  annual payments  of $15  million for  15 years.   The  state                 
  proposes to  do that by  attaching an overriding  royalty to                 
  existing  leases.     Those   leases  have   not  yet   been                 
  specifically identified.   For a royalty  of $10, the  state                 
  may attach an  overriding $5 royalty  to flow to the  mental                 
  health trust.                                                                
                                                                               
  Co-chair  Frank asked  if  the funding  as  proposed in  the                 
  preceding   paragraph  would   incur  dedication   of  funds                 
  problems.   Attorney General  Botelho responded  negatively.                 
  He explained  that the mental health trust is a pre-existing                 
  trust   established  at   statehood.     The  constitutional                 
  prohibition  against  dedicated  funds  creates  a  specific                 
  exception.  In response  to a further question from  the Co-                 
  chair  concerning  the   specific  amount,  Commission  Noah                 
  advised, "We  were trying  to balance  this on  curing of  a                 
  breach.   So the base  of this is  the value of  work that's                 
  been done over the last eighteen months."                                    
                                                                               
  Speaking  to reconstruction of  the trust, Commissioner Noah                 
  said  the  administration  is proposing  that  approximately                 
  550,000  acres  of  original mental  health  trust  lands be                 
  redesignated as mental health  lands, and that approximately                 
  400,000  acres  of   substitute  lands  be   considered  for                 
  redesignation as part  of the trust.   The proposal here  is                 
  slightly different from the proposal in Ch. 66 wherein lands                 
  would  actually have been  transferred to the  trust.  Under                 
  that arrangement, lands would have to be surveyed, and costs                 
  associated with surveys were  estimated at $15 million.   It                 
  is more fiscally responsible to  simply redesignate the land                 
  for mental health purposes.  The  department is completing a                 
  specific  land list for attachment to  CSSB 67 (2d Fin).  It                 
  would specifically outline each  ADL number associated  with                 
  the mental  health trust.   The  department will submit  the                 
  proposed list  during the  week of  April 11.   Commissioner                 
  Noah reiterated that  it will be  the subject of "some  very                 
  detailed   discussions    between   a    whole   group    of                 
  municipalities,   resource   companies,   the  environmental                 
  community, and the mental health  community.  He then voiced                 
  his hope that  the legislature would  consider the bill  and                 
  list as a  package since it will be difficult  to break down                 
  into  individual   pieces.    Senator  Kerttula   noted  the                 
  responsibilities   of   the  three   separate   branches  of                 
  government  and questioned  legislative  consideration of  a                 
  package  into  which  the  legislature  has  had  no  input.                 
  Commissioner Noah  acknowledged that  the ultimate  decision                 
  making rests with the legislature.                                           
                                                                               
  Directing  attention  to  land  management  aspects  of  the                 
  proposal, Commissioner  Noah explained that  language within                 
  the bill strives to  strike a compromise.  It  suggests that                 
                                                                               
                                                                               
  management  of  the lands  be  undertaken by  DNR,  and that                 
  statutes under Title  38 be utilized to  the extent possible                 
  under the  mental  health enabling  act.   Because  the  act                 
  itself  is  "fairly  quiet" on  this  particular  issue, the                 
  department  has  proposed that  regulations  be used  as the                 
  defining vehicle.   Management would  be in concert  between                 
  the Commissioner and trust authority.  Senator Kerttula said                 
  that  he  viewed  mental  health  lands  as  an  interesting                 
  comparative vehicle to state development of the same type of                 
  lands.    That  comparison   is  eliminated  under  proposed                 
  management.     Commissioner   Noah   suggested   that   the                 
  marketplace would drive  development.  Transfer of  the land                 
  to the  mental health trust will not  change the marketplace                 
  or desire  for development of  the lands.   Attorney General                 
  Botelho  advised that  concerns raised  by  Senator Kerttula                 
  mirror internal debate  over land  management.  The  choices                 
  were either DNR  or the trust authority.  The  intent was to                 
  devise a method that was acceptable to the greatest majority                 
  of the litigants.  Concerns from many directions were raised                 
  over vesting  direct management  of the  lands in  the trust                 
  authority.     Environmental   interests  feared   that  the                 
  authority would attempt  to maximize short-term  development                 
  without  restraint or  regard  for longer-term  stewardship.                 
  Resource development interests were concerned they would see                 
  development  restricted  because the  trust  authority would                 
  attempt to maximize the kinds of revenue it might be able to                 
  extract from industry  by tampering  with lease payments  or                 
  royalty  rates.    Senator  Kerttula   countered  that  such                 
  "tampering" is purely business.   The Attorney General added                 
  that in an attempt to find a vehicle which would most likely                 
  lead to final conclusion, DNR  management was proposed under                 
  a  revised set  of standards  that takes into  account trust                 
  obligations of  the authority.   Senator  Kerttula suggested                 
  that the  proposal represents  "further lazy  law heaped  on                 
  lazy law."  Commissioner Noah advised that he  could foresee                 
  "a  best interest determination" being made so that it would                 
  be clear as to  what is being done with the  lands.  Senator                 
  Kerttula asked if the trust  authority would have veto power                 
  over proposed use of lands.  Commissioner Noah said that DNR                 
  would need authority concurrence.  In response to additional                 
  comments  by  Senator  Kerttula  asking  if there  would  be                 
  objection to language  absolutely requiring concurrence, the                 
  Commissioner voiced concern  over creation of a  system that                 
  would ultimately "bog itself down."                                          
                                                                               
  Senator Sharp raised concern over  DNR management subject to                 
  Title 38 public process which has not proven to be effective                 
  for development of land.  He asked if trust use of  the land                 
  would be subject to intervention  by special interest groups                 
  through the  court system  and suggested that  co-management                 
  would invite litigation.   He remarked that if the  trust is                 
  going to have the land, it should be able to manage the land                 
  the  way  it  wants  to.    Commissioner  Noah stressed  the                 
  complexity of the  issue.  He focused specifically  upon the                 
                                                                               
                                                                               
  taking  of  public lands  and  placement of  those  lands in                 
  trust.  Interested  parties are concerned over  that action.                 
  The  administration has  attempted  to  find middle  ground.                 
  That is the reason for the current proposal.  Co-chair Frank                 
  observed that the court appears to  have said that the state                 
  must reconstitute the trust for the benefit of mental health                 
  beneficiaries, but the trust does not  have to be managed in                 
  a manner consistent with maximum benefit to that group.                      
                                                                               
  Co-chair Frank next asked how the $225 million would show on                 
  state books.   Will it be  shown as a liability,  contingent                 
  liability,   etc.?     Commissioner  Noah   said  that   the                 
  administration is presently  working on that issue  and will                 
  provide details the week of April 11.                                        
                                                                               
  Senator Rieger concurred in concerns  raise by Senator Sharp                 
  and Co-chair Frank regarding management of lands for maximum                 
  benefit.  He then asked how the proposed settlement would be                 
  ratified by plaintiffs.   What power does the court  have to                 
  provide finality?   Attorney General Botelho  explained that                 
  CSSB 67 (2d Fin) would  be incorporated within a  settlement                 
  presented to  the superior  court for preliminary  approval.                 
  If that approval is granted, the next  step is to notify all                 
  members of  the class  action litigation  and allow  them to                 
  comment.  Once the comment period  is closed, the court will                 
  determine whether or not to grant final approval.  The court                 
  does not require  concurrence by all  or even a majority  of                 
  the class members to approve the settlement.  The judge will                 
  decide whether or not the proposal  is a fair and reasonable                 
  outcome and protects the  interests of the class.   Once the                 
  final decision is rendered, any party to the lawsuit is free                 
  to petition the supreme court for review.                                    
                                                                               
  In response to a further question from Senator Rieger asking                 
  if an individual could thereafter bring a second lawsuit and                 
  start  the  process  all over  again,  the  Attorney General                 
  explained  that because the litigation  is a class action, a                 
  person in the mental  health community who is not named as a                 
  party is still considered to be represented.  It is the duty                 
  of the court to look  out for the interest of class  members                 
  whether they are named or not.  While the individual has the                 
  right of repeal to the supreme court, once the settlement is                 
  approved,  someone  who  is   not  part  of  the   class  of                 
  individuals involved in the litigation  would be barred from                 
  challenging  the settlement.    Individuals could,  however,                 
  raise issues that  have never come  up before to attack  the                 
  trust.  Whether or  not they would be successful  depends on                 
  the issue.  Courts are very  liberal about allowing a person                 
  to bring an action or intervene  in an action without making                 
  a  determination of  merit.   In his concluding  remarks the                 
  Attorney General cautioned that just because a settlement is                 
  in place does not mean that mental health lands will  not be                 
  the subject of controversy in the future.                                    
                                                                               
                                                                               
  Senator  Rieger noted  earlier  comments  that  the  current                 
  proposal  is based  on  provisions of  Ch.  66 and  inquired                 
  concerning  which   provisions  from  earlier   law  carried                 
  forward.  TOM KOESTER, Contract Attorney to the State on the                 
  Mental Health  Case, came  before committee.   He  explained                 
  that the proposal takes two approaches:                                      
                                                                               
       1.   If the parties  do not  agree to it,  it ends  the                 
  lawsuit                                                                      
            and repeals Ch. 66.                                                
                                                                               
       2.   If plaintiffs agree with the bill, and the case is                 
            dismissed by December 15, 1994, then provisions of                 
            Ch.  66  which  establish  the  trust   authority,                 
            appropriation  process  for   trust  revenue   and                 
            income,  and  improvements  to  the mental  health                 
            program all take effect.                                           
                                                                               
  Senator Rieger  asked if  general fund  percentage schedules                 
  within  Ch.  66   would  remain.    Mr.   Koester  responded                 
  negatively, advising of repeal.                                              
                                                                               
  Co-chair  Frank  asked  if  the   process  starts  from  the                 
  beginning   if  the   settlement   does   not  go   forward.                 
  Commissioner  Noah   explained  that  the   trust  would  be                 
  reconstructed as laid out by the supreme court.  He stressed                 
  that  one of the things the state  has not brought into play                 
  in reconstruction of  the trust is the $1.3 billion set-off.                 
  The court said  that the  state could deduct  from the  fair                 
  market value  of  land, moneys  spent since  1978 on  mental                 
  health  programs.  That was  included in Ch.  66 and must be                 
  maintained.  It  ensures that  if litigation continues,  the                 
  set-off becomes part of the issue that must be considered.                   
                                                                               
  End:      SFC-94, #48, Side 2                                                
  Begin:    SFC-94, #50, Side 1                                                
                                                                               
  Co-chair Frank  voiced his  understanding that  Judge Greene                 
  will decide whether lands put back in the trust and the $1.3                 
  billion off-set satisfies the supreme  court directive.  The                 
  Attorney General concurred and advised  of a further feature                 
  of  the  bill  which  provides  that the  legislature  would                 
  appropriate  up  to  $100 million,  annually,  if  the court                 
  determines that  the  $1.3 billion  plus  reconstitution  of                 
  original   lands  and   substitute  lands   is  not   enough                 
  compensation.    The  legislature  would  commit,  under the                 
  proposed bill, to appropriate enough  money over time to pay                 
  back  the remainder.   The Dept.  of Law feels  it is highly                 
  unlikely that will  be needed, but  the feature is  included                 
  within the  bill.   The alternative  is that  if we  reach a                 
  settlement with all parties, provisions  of Ch. 66 come into                 
  play.    Those provisions  include  the trust  authority and                 
  ability to derive  a stream of  income over which the  trust                 
  authority  will have  fairly exclusive  control in  deciding                 
                                                                               
                                                                               
  upon expenditure.                                                            
                                                                               
  Co-chair Pearce announced that Senator Rieger wished to pose                 
  a question for  which the  committee would have  to meet  in                 
  executive session.   Prior to going into  executive session,                 
  Senator   Sharp  requested  copies  of  maps  detailing  the                 
  location  of  lands  to be  returned  to  trust  as well  as                 
  substitute lands.   He further  requested an itemization  of                 
  lands described on page  12, line 31, through page  13, line                 
  3.    Commissioner  Noah  agreed  to provide  the  material.                 
  Senator  Kerttula also  requested  the names  of individuals                 
  holding leases on  mental health  lands.  Commissioner  Noah                 
  said that 3,700 individuals are  involved.  Senator Kerttula                 
  asked  for names  of  approximately twenty-five  individuals                 
  holding top value  parcels.  Commissioner Noah  advised that                 
  all  legislators  were provided  copies  of the  February 10                 
  public  notice  and  maps   of  proposed  substitute  lands.                 
  Senator Sharp said he had looked at the material but did not                 
  recall   that  it   highlighted  items   described  in   the                 
  legislation, specifically:    state  parks,  state  forests,                 
  state  game  refuges,  state  wildlife refuges,  state  game                 
  sanctuaries,  state  recreational areas,  state recreational                 
  rivers,  state wilderness parks,  state marine  parks, state                 
  special  management  areas,  state   public  use  areas  and                 
  critical habitat areas, bald eagle preserves, bison  ranges,                 
  and  moose ranges.  Commissioner Noah  said he would provide                 
  the information.                                                             
                                                                               
  Co-chair Pearce announced that the  meeting would recess for                 
  five minutes to clear the  room for the requested  executive                 
  session.                                                                     
                                                                               
                       RECESS - 10:20 A.M.                                     
                     RECONVENE - 10:30 A.M.                                    
                                                                               
  Senator Rieger MOVED  that the  committee meet in  EXECUTIVE                 
  SESSION for the purpose of  discussion of pending litigation                 
  that might affect the  finances of the state.   No objection                 
  having been raised,  the committee met in  EXECUTIVE SESSION                 
  from 10:31 a.m. to approximately 11:20 a.m.                                  
                                                                               
                 EXECUTIVE SESSION - 10:31 A.M.                                
                  REGULAR SESSION - 11:20 A.M.                                 
                                                                               
  The  regular  session  of  the  meeting  was  reconvened  at                 
  approximately 11:20 a.m. with Co-chairs Pearce and Frank and                 
  Senator Kerttula, Rieger, and Sharp in attendance.                           
                                                                               

Document Name Date/Time Subjects