Legislature(2015 - 2016)BUTROVICH 205
04/13/2016 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| HCR17 | |
| HB216 | |
| HB274 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 216 | TELECONFERENCED | |
| + | HB 274 | TELECONFERENCED | |
| + | HCR 17 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 216-NAVIGABLE WATER; INTERFERENCE, DEFINITION
3:41:40 PM
CHAIR GIESSEL called the meeting back to order and announced
that consideration of HB 216. [CSHB 216(RES), labeled 29-
LS0995\N, was before the committee.]
REPRESENTATIVE DAVID TALERICO, Alaska State Legislature, sponsor
of HB 216, testified that this measure has to do with the
state's navigable waters. The Submerged Lands Act of 1953
recognized each state as holding the title for any submerged
land under a navigable waterway within its boundaries. This term
is defined in AS 38.05.965 (14), which specifies a number of
activities that can be conducted in a body of water in order to
deem the body as navigable. While the list of activities is
lengthy, there are a few omissions that HB 216 hopefully will
address.
He said the Submerged Lands Act, the Statehood Act, and the
Alaska National Interest Lands Conservation Act (ANILCA) have
provisions about the state's ability to use its waterways. He
takes this seriously because our waterways provide commerce for
some people and they provide recreation, exploration and
subsistence, as well. Waterways in several of his communities
are highways.
3:42:44 PM
SENATOR WIELECHOWSKI joined the committee.
REPRESENTATIVE TALERICO said he had conferred with the
Department of Natural Resources (DNR) about an unambiguous
definition, one that was a good enough so there would be no
ambiguity about where Alaska stands on its waterways He noted
that there was an amendment to consider.
3:44:39 PM
SENATOR COGHILL moved Amendment 1.
29-LS0995\N.1
Bullard
4/13/16
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR COGHILL
TO: CSHB 216(RES)
Page 2, line 7, following "season":
Insert ", whether in a frozen or liquid state,"
Page 2, lines 9 - 13:
Delete "harvesting of ice, state or federal
military training, landing and takeoff of aircraft,
operation of boats or other watercraft, hovercraft,
snow machines, all-terrain vehicles, and other
motorized or nonmotorized vehicles, storage of
vehicles, and [PUBLIC BOATING,] trapping, hunting
[WATERFOWL AND AQUATIC ANIMALS]"
Insert "landing and takeoff of aircraft, and
public boating, trapping, hunting waterfowl and
aquatic animals"
SENATOR COGHILL explained that this amendment would "slim down"
the definition, because of concerns that this definition would
actually make it tougher for land dispositions within Alaska. It
deletes the harvesting of ice and the nonmotorized vehicle
storage and inserts landing and takeoff of aircraft, public
boating, trapping, hunting, water fowl and aquatic animals. It
also says water is navigable whether it's in the frozen or
liquid state. He didn't want existing verbiage to create a
problem for Alaska on land disposals or create places where
people could hide things in case law.
SENATOR STEDMAN objected for discussion and clarification. He
liked the direction the amendment was going, but was concerned
about how it would affect the southern coastal regions of the
state. Some people who moved up here from the Lower 48 find
airplane noise objectionable, and it seems like more
restrictions have been put on airplanes for ingress and egress
to peoples' properties. One way to restrict them is by using
municipal planning ordinances. He wanted the "pecking order" to
be clear about how this statute would mesh with municipal and
city ordinances.
SENATOR COGHILL referenced Alaska's Public Trust Doctrine and
enjoyment of public waterways on public trust lands is pretty
significant. So, they want to make sure planes have access on
water and on frozen land. The language was meant to assure that
the Public Trust Doctrine was upheld without creating more
difficulties in disposal of public land in Alaska.
3:49:23 PM
SENATOR STEDMAN said to put a finer point on it, planning
departments or commissions take property rights away and it's a
very sensitive subject when municipalities start stripping
peoples' access rights. He wanted it clear what authority the
state has over municipalities with this statute change. He wants
to make it as difficult as possible for folks that showed up
fairly recently to get away from where they live to come here
and make it just like the place they left. He wanted a
conversation on that issue. Then he removed his objection to
adopting Amendment 1.
3:50:36 PM
CHAD HUTCHINSON, staff to Senator John Coghill, Alaska State
Legislature, said he had done research on this issue and there
are multiple definitions of navigable waters depending on
whether you are dealing with a federal or a state agency. For
instance, "navigable waters" has a separate definition as it
relates to the EPA and the Clean Water Act as opposed to what HB
216 is trying to do. There is a definition for "navigable
servitude" as it relates to the commerce clause when a new
channel is built, particularly as it pertains to the Coast Guard
and the military. There is a definition of "navigable waters"
under the Quiet Title Act, evidenced by the Sturgeon Case, and
whether the determination can be made in federal district court,
something the state has struggled with for years. Another case
in the year 2000 tried to assert jurisdiction under the federal
Quiet Title Act, and the federal court system basically said
because they hadn't made a determination as to navigability yet,
they could move to dismiss and the state would have to wait for
some sort of legislative change from Congress, which is what
they are attempting to do right now.
HB 216 references the state Public Trust Doctrine, which is
distinct from those other definitions. Every state's public
trust doctrine is different, he explained, but they have three
common elements: they handle commerce and focus on navigability
and on fisheries. Those are the three things that are held in
trust for the beneficiaries. The trustees are the legislative
branch and they make a determination as to what they consider to
be important to be held in trust for the public. In this case,
the existing statute says that float planes and aircraft are
important. The Public Trust Doctrine has multiple definitions
depending on what the state deems to be important: ie, cutting
ice, bathing, and swimming, on an open beach. The determination
has been made that there is a public interest in maintaining
some sort of access into remote areas of Alaska for float planes
and that is why it is included in the current definition.
MR. HUTCHINSON said expanding the Public Trust Doctrine too much
or adding multiple definitions can adversely affect private
property interests in the surrounding adjacent areas. For state
land disposals they have to fit into the statutory definition of
allowable uses. Depending on what region you are in in Alaska,
aircraft have a significant influence for just getting in and
out of a community. The amendment is balanced to assure the
adjacent private property owners' interest isn't damaged versus
the sponsor's intent of having some sort of analysis as it
relates to frozen water conditions.
SENATOR STEDMAN said his district doesn't have the ice issues
that people in the north have. When water freezes over here
people don't put skis on planes; they just don't fly. But they
do fly into bays to drop off and pick up people from the beach,
from their home on the water front, or from a public easement on
the beach. That type of ingress/egress is his concern in his
district. It is a very sensitive topic, because it infuriates
Alaskans when people come up here and want to shut down access
because they don't like propeller noise for three minutes. He
wants to protect the rights that Alaskans have to access their
property as much as absolutely possible and not be interfered
with by people paddling around in some "non-motorized gizmo." He
wanted a clearer definition of how this language change will
interact with that policy.
3:57:49 PM
SENATOR COGHILL said he totally agreed with Senator Stedman and
that is why the measure talks specifically about landing and
take-off of aircraft, public boating, trapping and hunting.
CHAIR GIESSEL, finding no further questions, invited the DNR to
testify.
3:58:16 PM
ED FOGELS, Deputy Commissioner, Department of Natural Resources
(DNR), said DNR deals with two navigability issues: one is
fighting for state ownership of lands under navigable waters.
They challenge the Bureau of Land Management any time a state
land parcel is conveyed to make sure that navigable waters are
identified, because those lands under navigable waters were
already state-owned at statehood. Therefore, they shouldn't be
part of Alaska's statehood land entitlement. He said HB 216
doesn't really affect that task, at all, because it focuses on
the state's definition of navigability. But in looking at this
bill, he saw perhaps some unintended consequences with impacts
on private property, but the amendment addresses those concerns.
SENATOR STEDMAN said he has had numerous conversations in his
office on this subject over the years. A lot of state leases
were transferred to most of the major Southeast communities
several years ago and the regulatory environment that the state
imposed was much more amenable to the public than when these
leases were turned over to the municipalities. A lot of people
were infuriated because property rights were inadvertently
stripped away, and that is where they are stuck today. He wanted
to know how this measure interacts on the municipal level with
potential removal of property rights folks have under the state
guidance.
MR. FOGELS answered that this bill with the amendment won't have
any impact on the status quo. If there is a body of water the
state believes is navigable today under current law this
amendment would ensure that definition would hold in all seasons
and even if the body of water is frozen. The actual water body
itself would still be accessible as it is today.
MR. FOGELS explained that the state definition of navigability
comes into play when the DNR conveys land to municipalities,
because it can't convey ownership of navigable waters. These
waters have to be identified and excluded from conveyance to the
municipalities. They are retained in state ownership and
easements would likely be reserved along those water bodies.
This bill won't change that in any way.
SENATOR STEDMAN gave him another example: Senator Wielechowski
wants to go trout fishing and grabs his fly rod and wants to be
picked up in front of his house or from a state easement; his
concern is the restriction that may be imposed on him to have a
plane come in and pick him up and take him trout fishing for the
day or load his family's camping gear in a Beaver and go to some
lake. This trend is very slow, but it is definitely in place,
and he wants state statute to be as tight as possible to block
it. "If they don't want to hear float planes, Southeast is not
the place to live," Senator Stedman exclaimed.
MR. FOGELS said this bill would not add further restrictions.
SENATOR STEDMAN said he recognizes that, but he wanted to know
if this bill interacts with any municipal ordinances when some
municipalities may not want airplane noise before 9 a.m. in
after 5 p.m.
4:05:22 PM
MR. FOGELS responded that the intent of the navigability
definition is to define where state ownership is among
municipal, private, and state lands, and it was beyond his level
of expertise to know if the state of Alaska and a municipality
disagree on how float planes should be regulated on a typical
pond. But typically, the state would defer to the local
government to manage that activity if push came to shove.
SENATOR STEDMAN removed his objection to adopting the amendment,
but he wanted the opportunity for his staff to work on the bill
for a day to make sure they leave no stone unturned to keep
property rights embedded with Alaskans who own the property.
SENATOR COSTELLO said she had identified a drafting error on
page 1, line 12, where the number should be 2. After some
discussion, it was decided that there was no error.
CHAIR GIESSEL opened public comment.
4:08:43 PM
RICHARD BISHOP, representing himself, Fairbanks, Alaska,
supported HB 216. One thing caught his attention on page 1, line
8:
Section 1(a)(1) authorized by law or regulation or by
a permit issued by a federal or [AGENCY AND A] state
agency;
He said the Sturgeon case has been very prominent in the news.
The Supreme Court told the Ninth Circuit Court to go back to the
drawing board and get it right. That promises ongoing court
deliberation over some period of time. The National Park Service
issued a news release saying this hadn't really changed anything
and that they would continue business as usual in administering
lands. That raises the question of what sort of regulations or
permits they may apply during the course of further court
deliberations on the question of the extent of their authority
over state navigable waters. He said it is a very dangerous
precedent to have state statute that says "authorized by...a
permit issued by the federal government." It would be
appropriate to qualify that as a "valid federal permit" or
simply leave reference to "federal permit" out. In political
gamesmanship in the legal arena it would be entirely
inappropriate for the state to tacitly concede that any federal
permit without qualification would be cause for restricting the
use of state navigable waters. Wording should be changed to
avoid that implication. Otherwise he supports the bill and the
amendment.
4:12:20 PM
ROD ARNO, Executive Director, Alaska Outdoor Council, Juneau,
Alaska, supported HB 216. He also supported Senator Coghill's
amendment. He had the same concerns as Mr. Bishop about having
some qualifier on the federal permitting.
CHAIR GIESSEL, finding no further testimony, closed public
comment on HB 216. Finding no further objection, she said
Amendment 1 is adopted.
SENATOR COGHILL asked the sponsor to respond to "authorized by
law or by a permit".
REPRESENTATIVE TALERICO said he talked about Alaska's potential
to develop hydroelectric projects in the future, and wanted to
"massage" a provision giving the state the ability to work with
the federal government on permitting those projects. He had
discussed inserting "valid" in front of "permit", but he was
open to suggestions. He shared Senator Stedman's sentiments and
would strengthen that language if possible.
4:15:39 PM
MR. HUTCHINSON said he talked with Mr. Bishop earlier today, and
the Sturgeon case in some respects is a slightly different issue
as it relates to state statute and the state Public Trust
Doctrine. The Sturgeon issue is on federal navigability on the
Nation River in the Yukon. It has been sent back to the Ninth
Circuit with instructions, but the actual specifics of the case
have not been determined. He understands the possible confusion,
which is worthy of further consideration.
CHAIR GIESSEL announced that she would hold HB 216 in committee
to allow the opportunity to work on it.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB274 Sponsor Statement Ver. N.pdf |
SRES 4/13/2016 3:30:00 PM |
HB 274 |
| HB274 Legislation Ver. N.PDF |
SRES 4/13/2016 3:30:00 PM |
HB 274 |
| HB 274 Explanation of Changes Version N.pdf |
SRES 4/13/2016 3:30:00 PM |
HB 274 |
| HB 274 Sectional Analysis Version N.pdf |
SRES 4/13/2016 3:30:00 PM |
HB 274 |
| HB274 Fiscal Note-DNR.PDF |
SRES 4/13/2016 3:30:00 PM |
HB 274 |
| HB274 Supporting Documents-Letters of Support-Dinyea 041216.pdf |
SRES 4/13/2016 3:30:00 PM |
HB 274 |
| HB274 Supporting Documents-Letters of Support-Minto 020316.pdf |
SRES 4/13/2016 3:30:00 PM |
HB 274 |
| HB274 Supporting Documents-Letters of Support-Seth-De-Ya-Ah 020316.pdf |
SRES 4/13/2016 3:30:00 PM |
HB 274 |
| HB274 Supporting Documents-Repealer Explanation.pdf |
SRES 4/13/2016 3:30:00 PM |
HB 274 |
| CSHB216(RES)-Amendment in SRES-Coghill-4-13-2016.PDF |
SRES 4/13/2016 3:30:00 PM |
HB 216 |
| HB274-Updated Fiscal Note-DNR-4-13-2016.pdf |
SRES 4/13/2016 3:30:00 PM |
HB 274 |
| CSHB216-Updated Fiscal Note-DNR-4-13-2016.pdf |
SRES 4/13/2016 3:30:00 PM |
HB 216 |