Legislature(2015 - 2016)BUTROVICH 205

04/13/2016 03:30 PM RESOURCES

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
-- Public Testimony --
Moved CSHB 274(RES) Out of Committee
-- Public Testimony --
Moved CSHCR 17(TRA) Out of Committee
-- Public Testimony --
+ Bills Previously Heard/Scheduled 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                                                               
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.                                                                                              
                          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                                                               
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                                                               
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                                                               
     Section 1(a)(1) authorized by law or regulation or by                                                                  
      a permit issued by a federal or [AGENCY AND A] state                                                              
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                                                               
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