Legislature(2009 - 2010)BUTROVICH 205
04/03/2009 03:30 PM RESOURCES
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* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SCR 3-OPPOSE FED. CONTROL OF STATE LAND & WATER 4:33:26 PM CO-CHAIR WIELECHOWSKI announced the consideration of SCR 3. This being the first hearing, he stated that it is his intent to hear the resolution and hold it until the next hearing to provide members time to consider it and provide comments or suggestions. SENATOR CON BUNDE, Alaska State Legislature, sponsor of SCR 3, noted that the proposed CS has a minute change that would match language in a bill that is going through the other body. SENATOR HUGGINS moved to adopt committee substitute (CS) to SCR 3, labeled 26-LS0496 adopt \E, as the working document. There was no objection and version E was before the committee. 4:34:28 PM SENATOR BUNDE informed the committee that the CS deletes the phrase "file an action" and inserts the phrase "exercise all legal options" [found in the line 1 of the title of SCR 3]. SENATOR BUNDE said this resolution is about state sovereignty and the fact that the State of Alaska is incrementally losing its most cherished and sovereign right to manage its navigable waters. In the relationship between the state and federal governments, navigable waters have clearly been established as state water and state land. As such they should be regulated and governed by state laws. He mentioned the Yukon-Charley Rivers National Preserve and said apparently there are growing encounters between the public and the National Park Service (NPS) on the state's navigable waters. In particular, the NPS is enforcing prohibitions on certain types of water craft, citing placer miners, restricting four- wheel vehicles on gravel bars below mean high water, and requiring permits for riverboat operators and other tourism related facilities. People in the administration are concerned about this encroachment and have expressed an interest in having the Legislature support legal action to return the state's proper level of sovereignty. SENATOR BUNDE noted that each year the NPS exerts greater authority over sport and subsistence fishing. Drawing an analogy between the NPS and the growth of alder trees, he maintained that "if you don't whack them back they continue growing." SCR 3 encourages the administration to push back to clarify the delineation of state's rights. The Alaska Constitution clearly says that the state owns and manages its submerged lands and navigable waters and that its citizens are free to have unrestricted access under regulations authorized by the Legislature. 4:39:03 PM ELIZABETH BERRY, Attorney, Civil Division, Department of Law (DOL), said she is available for questions. SENATOR HUGGINS asked why the state wouldn't go ahead and file a lawsuit. MS. BERRY replied DOL and other state agencies are currently evaluating the options. She highlighted that there is a statute of limitations problem with a facial challenge to this regulation, which was adopted in 1996. "We cannot just file a lawsuit," she said. SENATOR HUGGINS asked the timeline for a decision. MS. BERRY replied DOL hopes to soon reach a decision on a course of action. SENATOR WAGONER questioned that regulations promulgated by the government would have a statute of limitations. MS. BERRY explained that to challenge a regulation on its face, it has to be done within the statute of limitations, which in this case is six years. DICK MYLIUS, Director, Division of Mining, Land and Water, Department of Natural Resources (DNR), confirmed that DNR has been working on this issue for a number of years. Responding to a question from Senator Wagoner, he said DNR supports SCR 3. SENATOR BUNDE said one of the reasons for this vehicle is that he believes that the various departments would appreciate legislative encouragement on the issue. CO-CHAIR WIELECHOWSKI asked Ms. Cunning if fish and game has a position. TINA CUNNING, Coordinator, Subsistence and Federal Issues, Division of Sport Fish, Alaska Department of Fish and Game (ADF&G), stated that ADF&G supports SCR 3. 4:42:51 PM JAN FLORA, representing herself, said she came to Alaska in 1989 as a placer miner. She left California because of heavy-handed regulators, but found they look like amateurs compared to Bureau of Land Management (BLM) regulators. She asked Senator Bunde to include the BLM in the resolution because they too harass placer miners. She related anecdotal stories of NPS and BLM harassment of placer miners. These waterways are navigable and BLM is very controlling of them, she maintained. 4:46:28 PM STAN LEAPHEART, Executive Director, Citizens Advisory Commission on Federal Areas, said the bill packet should include copies of the letter he sent to the attorney general on the topic of intrusion of NPS regulations into state navigable waters and state management authority. He is speaking in support of SCR 3 and to point out that his letter does not address the possibility that other federal agencies could intrude into the state's management authority of its navigable waters. We're on record supporting both SCR 3 and the House companion resolution, he concluded. CO-CHAIR WIELECHOWSKI asked Mr. Leapheart to send a copy of the letter to his office and he would forward it to other committee members. For some reason it isn't in the bill packets. 4:48:45 PM CARL PORTMAN, Resources Development Council (RDC), stated that RDC supports SCR 3 because the State of Alaska is steadily losing a most valuable sovereign right under the Statehood Act, the Submerged Lands Act, and the Alaska National Interest Lands Conservation Act (ANILCA). The state acquired control over navigable waters for a variety of uses regardless of upland ownership. The state's constitution, laws, and regulations clarify that it owns and manages submerged lands of navigable waterways and the citizens have free and unrestricted access unless prohibited under regulations authorized by the state Legislature. Furthermore, Section 103(c) of ANILCA states that regulations adopted for national parks only apply to federal lands. Beginning in 1996 the NPS placed another layer of regulations over the state's management of its navigable waterways. It has come to RDC's attention that the federal government is enforcing prohibitions on the use of certain types of watercraft that the state in fact authorizes and is requiring some commercial operators to secure federal permits. The state should act to protect its legitimate right to manage submerged lands in its navigable rivers. RDC is in strong support of SCR 3, he concluded. 4:50:48 PM CO-CHAIR WIELECHOWSKI closed public testimony and set SCR 3 aside. SENATOR WAGONER told a personal story and concluded, "We do have a big problem and we need to get it defined quick because Alaskans are losing access to their recreation areas." SENATOR BUNDE cautioned that the clock is ticking because of the statute of limitations. CO-CHAIR WIELECHOWSKI asked when the statute of limitation runs out. SENATOR BUNDE replied he will find out for sure, but he heard someone testify that it began in 2006.