Legislature(2003 - 2004)

04/21/2004 01:53 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                  HOUSE FINANCE COMMITTEE                                                                                       
                       April 21, 2004                                                                                           
                         1:53 P.M.                                                                                              
TAPE HFC 04 - 92, Side A                                                                                                        
TAPE HFC 04 - 92, Side B                                                                                                        
TAPE HFC 04 - 93, Side A                                                                                                        
CALL TO ORDER                                                                                                                 
Co-Chair Williams called the House  Finance Committee meeting                                                                   
to order at 1:53 P.M.                                                                                                           
MEMBERS PRESENT                                                                                                               
Representative John Harris, Co-Chair                                                                                            
Representative Bill Williams, Co-Chair                                                                                          
Representative Kevin Meyer, Vice-Chair                                                                                          
Representative Mike Chenault                                                                                                    
Representative Eric Croft                                                                                                       
Representative Hugh Fate                                                                                                        
Representative Richard Foster                                                                                                   
Representative Mike Hawker                                                                                                      
Representative Reggie Joule                                                                                                     
Representative Carl Moses                                                                                                       
Representative Bill Stoltze                                                                                                     
MEMBERS ABSENT                                                                                                                
ALSO PRESENT                                                                                                                  
Susan  Parkes, Deputy  Attorney  General, Criminal  Division,                                                                   
Department of Law; Ernesta Ballard,  Commissioner, Department                                                                   
of   Environmental   Conservation;  Dan   Easton,   Director,                                                                   
Division of  Facility Construction and Operation,  Department                                                                   
of   Environmental   Conservation;   Ron   Wolfe,   Corporate                                                                   
Forester, Sealaska Corporation; Representative Paul Seaton;                                                                     
Cindy  Cashen, Mothers  Against Drunk  Driving, Juneau;  Mike                                                                   
Barnhill, Assistant Attorney General,  Department of Law; Tom                                                                   
Wright,  Staff   to  Representative   Harris;  Susan   Burke,                                                                   
Attorney,   Juneau;  Larry  Meyers,   Deputy  Director,   Tax                                                                   
Division, Department of Revenue                                                                                                 
PRESENT VIA TELECONFERENCE                                                                                                    
Gunnar  Knapp,  Economics Professor,  University  of  Alaska,                                                                   
HCR  28   Relating  to the  socioeconomic  impacts of  salmon                                                                   
          harvesting cooperatives.                                                                                              
          CS HCR28(FIN) was REPORTED out of Committee with a                                                                    
          DO PASS  recommendation and two zero  fiscal impact                                                                   
HB 244    An Act relating to the  Code of Criminal Procedure;                                                                   
          relating  to  defenses, affirmative  defenses,  and                                                                   
          justifications  to certain criminal  acts; relating                                                                   
          to  rights of prisoners  after arrest;  relating to                                                                   
          discovery,  immunity  from prosecution,  notice  of                                                                   
          defenses,  admissibility of  certain evidence,  and                                                                   
          right  to representation  in criminal  proceedings;                                                                   
          relating    to    sentencing,     probation,    and                                                                   
          discretionary  parole;  amending  Rule  16,  Alaska                                                                   
          Rules  of Criminal Procedure,  and Rules  404, 412,                                                                   
          609,  and  803,  Alaska   Rules  of  Evidence;  and                                                                   
          providing for an effective date.                                                                                      
          HB 244 was heard and  HELD in Committee for further                                                                   
HB 546    An Act  relating to regulation of the  discharge of                                                                   
          pollutants  from  timber-related  activities  under                                                                   
          the   National  Pollutant   Discharge   Elimination                                                                   
          System;  relating to  waste treatment and  disposal                                                                   
          permits;   making    conforming   amendments;   and                                                                   
          providing for an effective date.                                                                                      
          CSHB 546(JUD) was REPORTED out of Committee with                                                                      
          individual   recommendations  and  one   previously                                                                   
          published fiscal impact note.                                                                                         
HB 552    An Act relating to gambling and gaming.                                                                               
          CSHB  552(FIN) was REPORTED  out of Committee  with                                                                   
          individual    recommendations     and    two    new                                                                   
          indeterminate fiscal impact notes.                                                                                    
HOUSE CONCURRENT RESOLUTION NO. 28                                                                                            
     Relating to the socioeconomic impacts of salmon                                                                            
     harvesting cooperatives.                                                                                                   
Vice-Chair  Meyer  MOVED  to   ADOPT  Work  Draft  23-LS1419,                                                                   
Version  V,  Utermohle,  dated  3-31-04, as  the  version  of                                                                   
legislation before  the Committee. There being  NO OBJECTION,                                                                   
it was so ordered.                                                                                                              
REPRESENTATIVE PAUL SEATON explained  that HCR 28 was brought                                                                   
forward  at  the  recommendation  of  the  joint  legislative                                                                   
Salmon Industry  Task Force  that convened  for the  last two                                                                   
sessions.  The resolution  requests  that  the University  of                                                                   
Alaska  and its subunit  study the  socioeconomic effects  of                                                                   
the  management regime  in  the Chignik  Cooperative  fishery                                                                   
because  the  Task  Force  lacked   data  on  which  to  base                                                                   
decisions. The short timeframe  led to a $100 thousand fiscal                                                                   
note.   The new version removed  the date and  requested that                                                                   
the  University  continue  its  studies. He  noted  that  the                                                                   
Institute  of   Social  and  Economic  Research   (ISER)  had                                                                   
conducted studies  on the Chignik  fishery, which  were based                                                                   
on   fishermen's  surveys   of   the  economic   impacts   on                                                                   
themselves, but did  not address the economic  impacts on the                                                                   
community. Representative  Seaton pointed to the  zero fiscal                                                                   
note and discussed a couple of the public policy issues.                                                                        
GUNNAR  KNAPP,  ECONOMICS  PROFESSOR,  UNIVERSITY  OF  ALASKA                                                                   
ANCHORAGE, INSTITUTE  OF SOCIAL  & ECONOMIC RESEARCH  (ISER),                                                                   
VIA  TELECONFERENCE,  ANCHORAGE, spoke  representing  himself                                                                   
and ISER.  He  stated that the Chignik Salmon  Cooperative is                                                                   
an issue  that has received  attention regarding  its effects                                                                   
on the community.  He thought that this issue  deserved study                                                                   
and the University would assist as its budget allows.                                                                           
Representative Hawker referred  to the letter from the United                                                                   
Fishermen  of Alaska  (UFA), (copy  on file),  asking if  the                                                                   
Committee  Substitute addresses  their  concerns and  whether                                                                   
the studies look beyond the existing cooperative.                                                                               
Representative  Seaton  replied  that  Chignik  is  the  only                                                                   
allocative cooperative in the  state that allocates a portion                                                                   
of  the  fish  to  fishermen.   The  intent  is  to  generate                                                                   
information in order to make recommendations  to the Board of                                                                   
Fish to establish  public policy. The other  cooperatives are                                                                   
not allocative  and Chignik  is the  first cooperative  to be                                                                   
Representative Hawker commented  that the UFA supports HCR 28                                                                   
Representative  Foster MOVED to  report CS HCR28(FIN)  out of                                                                   
Committee   with    individual   recommendations    and   the                                                                   
accompanying fiscal notes.  There  being NO OBJECTION, it was                                                                   
so ordered.                                                                                                                     
CS HCR28(FIN)  was REPORTED out  of Committee with a  DO PASS                                                                   
recommendation and two zero fiscal impact notes.                                                                                
HOUSE BILL NO. 546                                                                                                            
     An  Act  relating  to regulation  of  the  discharge  of                                                                   
     pollutants  from  timber-related  activities  under  the                                                                   
     National   Pollutant   Discharge   Elimination   System;                                                                   
     relating  to  waste  treatment   and  disposal  permits;                                                                   
     making  conforming  amendments;  and  providing  for  an                                                                   
     effective date.                                                                                                            
ERNESTA  BALLARD, COMMISSIONER,  DEPARTMENT OF  ENVIRONMENTAL                                                                   
CONSERVATION  (DEC), explained  that  Governor Murkowski  has                                                                   
discussed   permit  streamlining.   The  Governor   envisions                                                                   
efficient   and   effective    resource   development   while                                                                   
maintaining the State's environmental  goals. This bill would                                                                   
help to ensure achievement of those goals.                                                                                      
Commissioner   Ballard  informed   the  Committee   that  the                                                                   
National Permit Discharge Elimination  System (NPDES) program                                                                   
is designed  in the  Clean Water  Act for  delegation to  the                                                                   
states. Forty-five states have  delegation, but Alaska is one                                                                   
of the  five states without it.  The Clean Water  Act intends                                                                   
that permitting  be  done at the  state level  where a  state                                                                   
regulatory  agency  can  be  in  contact  with  industry  and                                                                   
municipal  dischargers  to  make   the  important  risk-based                                                                   
decisions effective in protecting a state's waters.                                                                             
Commissioner Ballard  pointed out that  the key parts  of the                                                                   
Clean Water  Act fall  under Sections 402  and 401.   Section                                                                   
402 allows the permit to be written  and issued, while 401 is                                                                   
the  "heart"  of  the program  that  requires  the  state  to                                                                   
certify that the permit will protect  the state's waters. The                                                                   
DEC   issues  the   401  certification   and  currently   the                                                                   
Environmental Protection Agency  (EPA) issues the 402 permit,                                                                   
which requires a  state applicant to get two  permits. In the                                                                   
45  states with  delegation, only  one  permitting action  is                                                                   
necessary  because the state  issues the  402 permit  and the                                                                   
401  certification. Both  of these  water protection  actions                                                                   
are based on a state's water quality standards.                                                                                 
Commissioner  Ballard  explained  that  the  DEC  is  seeking                                                                   
primacy for  only a  portion of  the industries that  receive                                                                   
permits in the State because the  Department is not ready for                                                                   
the  other  industry  segments   to  submit  a  full  primacy                                                                   
package.  The timber  industry requested  partial primacy  to                                                                   
give them the services it needs  from the DEC. She noted that                                                                   
this  would   allow  other  industries   to  observe   how  a                                                                   
regulatory package comes together.  The Department intends to                                                                   
use this as a  pilot project and to seek full  primacy in the                                                                   
Commissioner  Ballard  referred   to  the  fiscal  note,  and                                                                   
pointed  out that  it  is "frontloaded"  with  the first  two                                                                   
years  requiring a  more concentrated  effort by  the DEC  to                                                                   
write regulations  and negotiate with the EPA.   The bill has                                                                   
a relatively small fiscal impact  in future years because the                                                                   
timber industry is currently small.                                                                                             
Representative   Chenault  referred   to   the  fiscal   note                                                                   
reflecting  in   the  Analysis  Continuation   one  full-time                                                                   
position from FY 2005 to FY 2010  and one permanent position.                                                                   
He  questioned  the  two  long-term  non-permanent  positions                                                                   
under Contractual,  noting the  change from $300  thousand to                                                                   
$56 thousand for those two positions.                                                                                           
Commissioner  Ballard  explained that  during  the first  two                                                                   
years,  FY 05  and  FY 06,  the contractual  positions  would                                                                   
write regulations  and would  not remain  part of the  staff.                                                                   
The  permanent  position  would   work  with  the  regulation                                                                   
writers and stay on with the Department.                                                                                        
DAN EASTON,  DIRECTOR, DIVISION OF FACILITY  CONSTRUCTION AND                                                                   
OPERATION, DEPARTMENT OF ENVIRONMENTAL  CONSERVATION, thought                                                                   
that the  Committee might not  have an accurate  fiscal note.                                                                   
Representative  Chenault said  that  the fiscal  note in  his                                                                   
packet was dated  3-9-04, and Commissioner  Ballard clarified                                                                   
that it was the fiscal note she was discussing.                                                                                 
Commissioner   Ballard   continued    explaining   that   the                                                                   
frontloading expense would allow  contractors to complete the                                                                   
regulatory  package under the  Department's supervision.  The                                                                   
remaining staff  position is a  permanent state  employee. In                                                                   
response   to   a  question   by   Representative   Chenault,                                                                   
Commissioner Ballard  explained that  $56 thousand is  in the                                                                   
Department's budget  as an RSA  to the Department of  Law for                                                                   
on-going legal expenses.                                                                                                        
RON WOLFE,  CORPORATE FORESTER,  SEALASKA CORPORATION,  spoke                                                                   
in support of HB 546 that would  allow timber primacy for the                                                                   
NPDES  program.  The  Corporation believes  that  the  action                                                                   
would help a struggling industry  whose survival is important                                                                   
to Alaska's healthy  economy. He pointed out  that the timber                                                                   
industry  is also  important to  the  Native communities  who                                                                   
receive revenues under ANCSA in  the form of dividends. State                                                                   
primacy would give  local access to the regulators  on permit                                                                   
issues rather  than the EPA in  Seattle. Mr. Wolfe  said that                                                                   
the  Sealaska Corporation's  NPDES permits  for log  transfer                                                                   
facilities were  completed three  years ago and  amended last                                                                   
Co-Chair Harris asked  if it would be possible  to change the                                                                   
$177  thousand in  General Funds  for this  year's budget  to                                                                   
Receipt Supported Services on  the fiscal note.  Commissioner                                                                   
Ballard explained  that it would  be difficult to  charge for                                                                   
the services  of writing  regulations.  In future years,  the                                                                   
Department would propose  a fee structure as it  has done for                                                                   
other permit programs.                                                                                                          
Co-Chair Harris pointed out on  the fiscal note that only $30                                                                   
thousand is  indicated in  later years. Commissioner  Ballard                                                                   
said  that  the  DEC  would  propose  to  the  Legislature  a                                                                   
modified  fee  structure  similar  to  its  other  permitting                                                                   
programs that  have a  "slightly stronger contribution"  made                                                                   
by the permit holder.                                                                                                           
Representative Croft  asked if there  would continue to  be a                                                                   
significant General  Fund component and the DEC  would not be                                                                   
fee-based.  Commissioner Ballard  commented on balancing  the                                                                   
General Fund  subsidy of a  permit program having  the public                                                                   
effect  of protecting  the  state's  resources  but also  the                                                                   
direct  effect  of  benefiting   a  municipal  or  industrial                                                                   
discharger.  She pointed out  that the  DEC has General  Fund                                                                   
support  of  all  its permit  programs,  and  said  that  the                                                                   
Legislature's  intent  would  be  some  continuing  level  of                                                                   
General  Fund   support  for   the  Department's   permitting                                                                   
programs.  Future administrations  would  discuss the  issue,                                                                   
she said.                                                                                                                       
Representative  Foster MOVED to  report CSHB 546(JUD)  out of                                                                   
Committee   with    individual   recommendations    and   the                                                                   
accompanying fiscal  note.  There being NO  OBJECTION, it was                                                                   
so ordered.                                                                                                                     
CSHB 546(JUD)  was REPORTED out of Committee  with individual                                                                   
recommendations  and one previously  published fiscal  impact                                                                   
HOUSE BILL NO. 552                                                                                                            
     An Act relating to gambling and gaming.                                                                                    
Co-Chair  Harris MOVED  to  ADOPT Committee  Substitute  Work                                                                   
Draft Version I  dated 4-20-04 as the version  of legislation                                                                   
before the  Committee. There  being NO  OBJECTION, it  was so                                                                   
TOM  WRIGHT, STAFF  TO REPRESENTATIVE  HARRIS, explained  the                                                                   
differences between the original  bill and Work Draft Version                                                                   
Mr. Wright stated that Version I deleted the following:                                                                         
     -  all references  to the Alaska  Gaming Commission  and                                                                   
     its  supervision  of  charitable  gaming  found  in,  or                                                                   
     related to, AS 05.15;                                                                                                      
     - Section 2  from the original bill that  gave authority                                                                   
     to the Alaska Gaming Commission  to suspend a license or                                                                   
     permit for a violation of AS 05.15;                                                                                        
     - Section 3  from the original bill that  gave authority                                                                   
     to  the  Alaska  Gaming  Commission  to  administer  the                                                                   
     provisions of AS 05.15;                                                                                                    
     -  Section 4  from  the original  bill  that provided  a                                                                   
     definition  of the  Alaska  Gaming  Commission under  AS                                                                   
Mr. Wright  stated that  Work Draft Version  I also  made the                                                                   
following changes:                                                                                                              
     - on page 2, line 21,provided a definition of a public                                                                     
     officer  of the State  and gave  it the same  definition                                                                   
     found in AS 39.52.960;                                                                                                     
     - on page 3, line 2, further defined the grounds for                                                                       
     removal of  a commissioner.   This includes  the failure                                                                   
     of  a  commissioner  to  attend  at  least  50%  of  the                                                                   
     meetings in any 12-month period;                                                                                           
     - on page 5, line 27, provided an appeals process which                                                                    
     allows  a person  to  seek judicial  review  of a  final                                                                   
     administrative order of the  commission as defined in AS                                                                   
     44.62.560  and  44.62.570  (judicial  review  under  the                                                                   
     Administrative Procedures Act);                                                                                            
Mr. Wright continued explaining that Version I also:                                                                            
     - deleted subsection 10 on  page 10 of the original bill                                                                   
     that  required  a  person  applying for  an  owner's  or                                                                   
     supplier's  license   to  provide  information   of  the                                                                   
     amount,  date   and  method  of  payment   of  political                                                                   
     contributions, loans,  donations or other  payments to a                                                                   
     candidate or  office holder for the previous  five years                                                                   
     before the date the person applied for a license;                                                                          
     - on  page 11, line  13, added subsection  (i). Requires                                                                   
     an applicant for a license  to submit to the commission,                                                                   
     fingerprints  and  fees required  by  the Department  of                                                                   
     Public  Safety for  criminal justice  information  and a                                                                   
     national criminal history  record check.  The commission                                                                   
     is  then required  to forward fingerprints  and  fees to                                                                   
     the  department   for  a  report  of   criminal  justice                                                                   
     information    under   AS   12.62   (Criminal    Justice                                                                   
     Information   Systems  Security   and  Privacy)   and  a                                                                   
     national  criminal history  record check.   The  results                                                                   
     will be used to then evaluate applicants.                                                                                  
Mr. Wright emphasized that the change adding subsection (i)                                                                     
must be included for the department to get permission to                                                                        
request this information.                                                                                                       
Mr. Wright noted the following changes in Version I:                                                                            
     -  on  page 16,  line  5,  clarified language  that  any                                                                   
     income earned  on the principal of a cash  or negotiated                                                                   
     securities  bond will  be  paid to  the  benefit of  the                                                                   
     -  on  page 16,  line  25,  rewrote subsection  (h)  for                                                                   
     clarity purposes;                                                                                                          
     -  on page 30, line 22, added  security and surveillance                                                                   
     services  and supplies and  money counting  services and                                                                   
     supplies to the definition of supplier's license; and                                                                      
     - deleted  Sections 10  and 11  from the original  bill.                                                                   
     Section  10   repealed  the  definition   of  department                                                                   
     (Department  of  Revenue) since  the  commission was  to                                                                   
     provide  supervision  of charitable  gaming  activities.                                                                   
     Section 11  instructed the revisor to  change references                                                                   
     to  the  commissioner  and  department in  AS  05.15  to                                                                   
Representative  Stoltze  asked  if  he had  looked  into  the                                                                   
ramifications of  the Indian gaming  issues. Mr.  Wright said                                                                   
that he  was in contact with  the Department of Law,  and the                                                                   
request is under review.  Mr. Barnhill could address it.                                                                        
Representative Stoltze  asked if it  is the intent to  have a                                                                   
sole  source contract,  and  whether  there is  expertise  on                                                                   
Indian gaming  within the Department  of Law and  Legislative                                                                   
Legal Services.  Mr. Wright deferred to Mr. Barnhill.                                                                           
Co-Chair  Harris  concurred  with   Representative  Stoltze's                                                                   
concerns.    He  thought  that  there  might  be  a  lack  of                                                                   
expertise in that area because  gaming is not a major part of                                                                   
Alaska's economy.                                                                                                               
MIKE BARNHILL, ASSISTANT ATTORNEY  GENERAL, DEPARTMENT OF LAW                                                                   
(DOL),  agreed  that Representative  Stoltze's  concerns  are                                                                   
valid. As with  any unclear issue of law, the  decision falls                                                                   
to the  courts. While the DOL  can provide its  best analysis                                                                   
and evaluation  of legal  questions, it  cannot predict  with                                                                   
certainty what a court would decide.   Mr. Barnhill said that                                                                   
he  and  experts  in Indian  gaming  and  law  discuss  these                                                                   
Representative  Stoltze asked  if it  should be a  legitimate                                                                   
concern  of the  policymakers  on  this Committee  that  with                                                                   
passage of  the bill, the  sole source contract  in Anchorage                                                                   
could  provide a  legal  remedy for  Native  gaming in  other                                                                   
communities  and  other sites  in  Anchorage.   Mr.  Barnhill                                                                   
replied that passage of the bill would allow Indian gaming.                                                                     
Representative Joule  asked if the  State has a  concern that                                                                   
Indian gaming could result from  this bill. Mr. Barnhill said                                                                   
that the DOL  declines to express views on  policy issues. He                                                                   
was unaware of the Department having a concern.                                                                                 
Representative Croft  asked if it would be possible  to get a                                                                   
ruling or  declaratory judgment on  the status of  the tribes                                                                   
and  their   lands.  Mr.   Barnhill  had   spoken  with   the                                                                   
Solicitor's Office  in the Department of the  Interior and he                                                                   
noted that  most of  the requests  for declaration  of Indian                                                                   
land were turned down. Indian  lands may have a different set                                                                   
of  facts pertinent  to  the  regulation of  each  particular                                                                   
parcel. He doubted  the possibility of getting  a declaratory                                                                   
judgment because it's on a case-by-case  basis. Only a few of                                                                   
the seven  or more Alaskan  cases before the  National Indian                                                                   
Gaming Commission  (NIGC) succeeded  in obtaining  a decision                                                                   
of being Indian lands: Metlakatla, Kake and Klawock.                                                                            
In  response  to  a question  by  Representative  Croft,  Mr.                                                                   
Barnhill explained that these  were requests by the tribe for                                                                   
an  Indian  land  declaration   from  the  NIGC  rather  than                                                                   
lawsuits.  The Department intervened  in the Barrow case, and                                                                   
attempted  to intervene in  the Kake  and Akiachak  cases but                                                                   
was unsuccessful.                                                                                                               
SUSAN BURKE, ATTORNEY,  JUNEAU, stated that she  was asked by                                                                   
Mr. Green to  look into the Indian gaming issues  relating to                                                                   
the bill.                                                                                                                       
Representative  Croft  asked  if  there  is  a  procedure  to                                                                   
determine the status of Alaska  lands under the Indian Gaming                                                                   
Act before enacting this legislation.                                                                                           
Ms. Burke  responded that  village lands  are not subject  to                                                                   
any  alienation  restrictions  and explained  that  the  only                                                                   
lands  held  with  federal  restrictions  on  alienation  are                                                                   
individual Native  allotments. It would be difficult  for any                                                                   
tribal entity to  persuade the Indian Gaming  Commission or a                                                                   
court  that  it exercised  governmental  authority  over  the                                                                   
allotment of  land.   She pointed out  that the courts  don't                                                                   
issue advisory opinions.                                                                                                        
Ms. Burke  said  that she  did not see  the bill  as a  major                                                                   
threat  to the  proliferation  of gaming  in  Alaska for  two                                                                   
reasons.  The   Alaska  Gaming  Commission  would   have  the                                                                   
authority to determine the games  authorized in the Anchorage                                                                   
casino.  In  the Ninth  Circuit,  the  State is  required  to                                                                   
negotiate  with  an Indian  tribe  only over  specific  games                                                                   
authorized by law  or regulation. She stressed that  it is an                                                                   
economic  issue and  she thought  that  Metlakatla, Kake  and                                                                   
Klawock are  so isolated that  it would be difficult  to come                                                                   
up with an economically feasible proposal.                                                                                      
In response to a question by Representative  Croft, Ms. Burke                                                                   
said that Eklutna had applied  in the past for authority from                                                                   
the Indian Gaming Commission.                                                                                                   
TAPE HFC 04 - 92, Side B                                                                                                      
Ms. Burke  continued discussing  Eklutna.   She thought  that                                                                   
Eklutna   would   be   unable  to   meet   the   governmental                                                                   
jurisdiction  aspect of  Indian lands.   She  didn't know  if                                                                   
there  was a  Native  allotment  within the  general  Eklutna                                                                   
Representative  Croft   pointed  out  that  the   two  issues                                                                   
involved in the  Indian Gaming Regulatory Act  (IGRA) are the                                                                   
lands  issue and  governmental  authority  by  the tribe.  He                                                                   
asked if  Native allotments would  be considered  Indian land                                                                   
and not Indian Country.                                                                                                         
Ms. Burke answered  that Indian Country is not  irrelevant in                                                                   
relation  to   the  reservations,   and  after  the   Venetie                                                                   
Decision, people argued the issues  of Indian lands or Indian                                                                   
Country. The  ANCSA settlement  lands are not  Indian Country                                                                   
and  were deeded  to the  regional  and village  corporations                                                                   
without any  alienation on  restriction. The IGRA  definition                                                                   
of lands would not include the ANCSA lands.                                                                                     
Representative   Croft  asked   if  the   Venetie  and   IGRA                                                                   
definitions  are  identical.   Ms.  Burke  said  that  Indian                                                                   
Country  and  Indian  land  are   distinct  definitions.  The                                                                   
definition of Indian lands must  be considered under the IGRA                                                                   
and these  include reservations,  e.g. Metlakatla.  Under the                                                                   
IGRA definition,  Indian lands also  are lands held  in trust                                                                   
with  restrictions  on  alienation  imposed  by  the  federal                                                                   
Representative  Croft asked  what it  takes to change  tribal                                                                   
governance  status. He  pointed  out that  President  Clinton                                                                   
changed some of the authority  given to tribes, allowing them                                                                   
to  operate  nonprofit  organizations.  Ms. Burke  said  that                                                                   
Congress has the  authority to change tribal  governance, but                                                                   
not the President.                                                                                                              
Representative Croft  noted that Congress didn't  declare the                                                                   
Venetie Decision Indian Country  yet. Ms. Burke affirmed, and                                                                   
reiterated  that Congress  has authority  over Indian  issues                                                                   
involving lands or powers.                                                                                                      
Representative  Hawker asked  if  passage of  the bill  would                                                                   
expose the State to the intrusion  of [indisc].  Mr. Barnhill                                                                   
affirmed,  and clarified that  he said  "yes" in relation  to                                                                   
Metlakatla. If  Class 3 gaming  were permitted  in Anchorage,                                                                   
Metlakatla would be able to conduct  the same kind of gaming.                                                                   
Outside  of the  known exceptions  of  Metlakatla, Kake,  and                                                                   
Klawock, he thought the odds were  low that another parcel of                                                                   
land  could qualify  as Indian  lands because  there must  be                                                                   
tribal  governance  over  the  land.  He  guessed  there  are                                                                   
relatively  few parcels  with tribal  governing power,  while                                                                   
noting that  no one has done  an exhaustive survey of  all of                                                                   
the potential parcels.                                                                                                          
Representative Fate  asked if Indian  lands held in  trust by                                                                   
the Bureau  of Indian Affairs  (BIA) would become  available.                                                                   
Ms.  Burke said  that all  village  lands are  subject to  no                                                                   
restrictions  on  alienation,  and  she was  unaware  of  any                                                                   
village land qualifying as Indian lands under IGRA.                                                                             
Co-Chair  Williams commented  that Congress  passed the  1991                                                                   
Amendments involving  a different type of trust  similar to a                                                                   
land bank wherein nothing can  be done on village corporation                                                                   
land. The land  can't be taxed or worked. Ms.  Burke affirmed                                                                   
that it applies to regional corporation land.                                                                                   
In  response to  a question  by  Representative Stoltze,  Ms.                                                                   
Burk said no  one knows how Eklutna's application  would have                                                                   
fared  before  the  Indian  Gaming  Commission  because  they                                                                   
withdrew it  once the Legislature  repealed the  "Monte Carlo                                                                   
Nights."   She  was not  sure if  the Legislature's  concerns                                                                   
were reasonable or  unwarranted, or if Indian  Gaming was the                                                                   
only reason prompting  the repeal of the Monte  Carlo Nights.                                                                   
In  her view,  Eklutna would  have hard  time persuading  the                                                                   
Commission that  it exercises policing and taxing  powers and                                                                   
other governmental  authority  over its  lands to qualify  as                                                                   
Indian  lands under  the definition.  Lawyers always  dispute                                                                   
these issues, she said.                                                                                                         
Representative Croft  brought up page  4 of 6 on  Fiscal Note                                                                   
Component  2476, expressing  surprise at  how little  revenue                                                                   
would  derive from  tourists visiting  the Anchorage  casino.                                                                   
He asked the source of the participation rates.                                                                                 
LARRY MEYERS,  DEPUTY DIRECTOR,  TAX DIVISION, DEPARTMENT  OF                                                                   
REVENUE, replied  that the participation rates  were based on                                                                   
Oregon's 8 casinos  and Washington's 17 casinos.  Two percent                                                                   
of the tourist population would visit the Anchorage casino.                                                                     
In  response  to  a question  by  Representative  Croft,  Mr.                                                                   
Meyers  clarified that  the  $50 million  in  revenue is  the                                                                   
"after prize receipts:"  not total money circulated,  but the                                                                   
profit to the industry.                                                                                                         
Representative Hawker  referred to the  same chart on  page 4                                                                   
of 6 of  the fiscal note,  asking if Total  Tourists includes                                                                   
both domestic and international  tourists. Mr. Meyers replied                                                                   
that  the figure  is  derived  from Northern  Economics,  and                                                                   
reflects only the total domestic tourists statewide.                                                                            
At Ease:     2:58 P.M.                                                                                                        
Reconvene:   3:02 P.M.                                                                                                        
Representative  Foster MOVED to  report CSHB 552(FIN)  out of                                                                   
Committee   with    individual   recommendations    and   the                                                                   
accompanying fiscal  note.  There being NO  OBJECTION, it was                                                                   
so ordered.                                                                                                                     
CSHB 552(FIN)  was REPORTED out of Committee  with individual                                                                   
recommendations  and  two  new  indeterminate  fiscal  impact                                                                   
HOUSE BILL NO. 244                                                                                                            
     An  Act relating  to  the  Code of  Criminal  Procedure;                                                                   
     relating   to   defenses,  affirmative   defenses,   and                                                                   
     justifications  to certain  criminal  acts; relating  to                                                                   
     rights   of   prisoners   after  arrest;   relating   to                                                                   
     discovery,   immunity   from  prosecution,   notice   of                                                                   
     defenses, admissibility  of certain evidence,  and right                                                                   
     to representation  in criminal proceedings;  relating to                                                                   
     sentencing,   probation,   and   discretionary   parole;                                                                   
     amending  Rule 16, Alaska  Rules of Criminal  Procedure,                                                                   
     and Rules 404, 412, 609, and 803, Alaska Rules of                                                                          
     Evidence; and providing for an effective date.                                                                             
SUSAN  PARKES, DEPUTY  ATTORNEY  GENERAL, CRIMINAL  DIVISION,                                                                   
DEPARTMENT OF  LAW (DOL), introduced the omnibus  crime bill.                                                                   
She  noted  that   many  concerns  were  raised   in  various                                                                   
committees, and this bill is very  different than last year's                                                                   
crime bill after the House Judiciary  Committee's work on the                                                                   
new Committee Substitute. The  bill covers both procedure and                                                                   
substantive criminal law.                                                                                                       
Ms. Parkes provided  a detailed explanation of  the sectional                                                                   
analysis.   She pointed  out that the  first six  sections of                                                                   
CSHB 244(2ndJUD)  concern enforcement  of bootlegging,  which                                                                   
is  a  priority  of  the  current  Administration.  It  would                                                                   
empower communities  to limit  alcohol, and allow  by statute                                                                   
the  recognition  and  enforcement   by  state  troopers  and                                                                   
prosecutors of  lower levels of  alcohol in the  communities.                                                                   
Currently four  communities have  chosen to allow  only lower                                                                   
limits  of possession  of  alcohol  than the  state  statutes                                                                   
provide  for.   These  provisions   also  allow   for  better                                                                   
forfeiture.   Currently,  money  is   not  included   in  the                                                                   
bootlegging forfeiture  statutes. This  would allow  money as                                                                   
well as snow  machines and boats in the forfeiture  and bring                                                                   
it into compliance  with the drug statutes.  It also provides                                                                   
that  unless  a village  has  opted  out of  this  provision,                                                                   
providing  liquor to  a  minor in  a local  option  community                                                                   
would become a C felony rather than an A misdemeanor.                                                                           
Ms. Parkes  said that  Section 8 is  a conforming  section to                                                                   
another  provision.  Section   9  amends  the  felony  murder                                                                   
statute.  Current law  provides  that if  a  group commits  a                                                                   
serious  offense  and  one member  kills  a  non-participant,                                                                   
everyone is guilty  of murder. The House  Judiciary amendment                                                                   
states that if  a participant is killed in  the commission of                                                                   
a felony,  the other  participants could  be held liable  for                                                                   
murder unless the death results  from the felony conduct of a                                                                   
Representative  Chenault asked  for further clarification  of                                                                   
the  forfeiture  of  money.  Ms.  Parkes  explained  that  it                                                                   
involves money  that can  be tied to  the crime, as  in money                                                                   
changing hands in a drug deal.  There must be a nexus between                                                                   
the  money  and  the  crime,  and  the  DOL  can't  sweep  an                                                                   
individual's bank  account. She said the forfeiture  of money                                                                   
often happens in drug deals, but  this provision would add it                                                                   
under the bootlegging forfeiture.                                                                                               
Representative Chenault  asked if currently  all participants                                                                   
in  a  group  could  be  charged   with  murder.  Ms.  Parkes                                                                   
affirmed, and explained that the  theory behind felony murder                                                                   
is  that the  conduct of  people  participating in  dangerous                                                                   
activities could result in a death.                                                                                             
Ms. Parkes  spoke to  Section 10,  which changes the  assault                                                                   
statutes.  It closes a loophole  and gives the Department the                                                                   
ability  to  prosecute  cases   of  assault  where  there  is                                                                   
criminal  negligence  and  serious  physical  injury  from  a                                                                   
dangerous instrument.                                                                                                           
Ms.  Parkes  continued. Sections  11  and  12 relate  to  the                                                                   
sexual abuse of a minor statute,  making penetration offenses                                                                   
a  felony  while  contact  offenses   remain  a  misdemeanor.                                                                   
Section 13 creates  a new crime called "violation  of a third                                                                   
party  custodian."  Currently judges,  as  part  of the  bail                                                                   
condition,  release people  to  a third  party custodian  who                                                                   
agrees to report  any violations of bail. Many  people do not                                                                   
take  the  job  seriously, and  this  creates  a  misdemeanor                                                                   
offense  instead  of holding  the  third party  custodian  in                                                                   
contempt for not immediately reporting violations.                                                                              
Ms.  Parkes explained  that Sections  14  and 15  extensively                                                                   
amend  the   self-defense  statutes,  in  response   to  "the                                                                   
sweeping  proposal"  that  created concern  last  session.  A                                                                   
court must  find at  least some  plausible evidence  of self-                                                                   
defense.  It also  addresses gunfights  between drug  dealers                                                                   
and gangs in  Anchorage and Fairbanks, providing  that if the                                                                   
force used  resulted from a weapon  brought to a  felony drug                                                                   
deal  or a  felony  gang activity,  the  violator can't  hide                                                                   
behind the shield of self-defense.                                                                                              
Ms. Parkes  noted that  Section 16 is  an amendment  added in                                                                   
House  Judiciary  Committee.  Under  current  statute,  if  a                                                                   
person  is arrested  and voluntarily  agrees to  talk to  the                                                                   
police,  an  attorney  can  interrupt   the  interview.  This                                                                   
recognizes  that the  Constitutional right  to remain  silent                                                                   
belongs to  the individual and  if the individual  has waived                                                                   
that right, someone else can't  later invoke it on his or her                                                                   
Representative Chenault  questioned if a parent  could decide                                                                   
to end  the interview  of a minor.  Ms. Parkes answered  that                                                                   
officers must ask  minors if they want to have  their parents                                                                   
present. She maintained that there  are safeguards to protect                                                                   
individuals  needing   protection.  Representative   Chenault                                                                   
argued  that there  are cases  of  intimidation, which  would                                                                   
result  in a  minor  waiving their  right.  He spoke  against                                                                   
allowing  minors to be  interviewed without  the presence  of                                                                   
their parents.                                                                                                                  
Ms. Parkes explained that Section 17 conforms the statutes.                                                                     
Section 18  was added  to require a  written or oral  finding                                                                   
when a third-party custodian is required as part of bail.                                                                       
Ms.  Parkes  continued.  Sections   19-21  address  immunity.                                                                   
Section  19 conforms immunity  to the  interpretation  of the                                                                   
Supreme   Court,   which   allows   transactional   immunity.                                                                   
Sections  20  and  21  set  up  a  process  to  handle  these                                                                   
situations  by the  court. If  a witness  is subpoenaed,  the                                                                   
judge will appoint an attorney  and hold a private hearing to                                                                   
decide  if  there  is  a  valid   claim  of  Fifth  Amendment                                                                   
privilege. She discussed the provisions.                                                                                        
Ms. Parkes  noted that  Section 22  is a conforming  statute.                                                                   
Section 23 relates to consecutive  terms of imprisonment, and                                                                   
it is  identical to last  year's bill.   It mandates  that in                                                                   
serious   crimes,  judges   be   required   to  impose   some                                                                   
consecutive term  of imprisonment.  In the  interpretation of                                                                   
current  statute by the  courts, judges  have not  recognized                                                                   
multiple  victims or  multiple  crimes in  their  sentencing.                                                                   
This would  require mandatory time  for each victim  and each                                                                   
Ms.  Parkes noted  that  Sections 24  and  25 are  conforming                                                                   
language. Section 26 applies to  driving under the influence.                                                                   
Currently, the  third DUI within  10 years becomes  a felony,                                                                   
but  because  of  the way  the  ten-year  "look-back"  works,                                                                   
another DUI within 2 or 3 years  might be a misdemeanor. This                                                                   
provision would  recognize another DUI  within 20 years  as a                                                                   
felony once a person has a felony DUI.                                                                                          
In response  to a  question by  Representative Chenault,  Ms.                                                                   
Parkes clarified that another  bill addresses the "look-back"                                                                   
at  past  DUI activity,  but  this  provision  addresses  the                                                                   
Representative  Fate questioned why  drugs are not  addressed                                                                   
in the  bill, considering  their endemic  existence  in rural                                                                   
Alaska.  Ms.   Parkes  responded   that  the  bill   includes                                                                   
provisions to  address the gaps in the  bootlegging statutes,                                                                   
and  the   self-defense  provision  addresses   the  violence                                                                   
related to drugs and alcohol.                                                                                                   
Representative Fate reiterated his concern.                                                                                     
Representative  Joule  acknowledged that  there  are laws  in                                                                   
place to address  drug use, but he pointed out  that the laws                                                                   
are not successful without enforcement.  He noted the lack of                                                                   
funding for enforcement.                                                                                                        
Ms. Parkes  stated that Section  27 addresses the  "big gulp"                                                                   
defense. Current statute allows  a defendant to argue that he                                                                   
consumed a large amount of alcohol  just before his departure                                                                   
in a vehicle, the alcohol was  not in his blood stream at the                                                                   
time he was stopped by the police,  but he was over the legal                                                                   
limit an hour  later when given the blood alcohol  test. This                                                                   
would  foreclose   that  defense   and  make  the   defendant                                                                   
responsible for his alcohol consumption.                                                                                        
Ms. Parkes noted  that Section 28 relates to the  DUI and the                                                                   
20-year  look  forward. Sections  30  and 31  are  conforming                                                                   
statutes.  Section 32  would allow public  disclosure  by the                                                                   
Department  of  Health  &  Social   Services  about  juvenile                                                                   
offenders when it  is necessary to protect the  safety of the                                                                   
public.  Regulations   would  be  created  to   address  this                                                                   
TAPE HFC 04 - 93, Side A                                                                                                      
Representative   Joule   expressed  concern   regarding   the                                                                   
bootlegging  provisions  and  questioned  whether  the  State                                                                   
would have  the resources to  handle the increased  offenses.                                                                   
He observed that part of the intent  in moving from a class A                                                                   
misdemeanant  to  a  class  A   felon  is  to  allow  greater                                                                   
supervision  by probation  officers.   Ms. Parkes offered  to                                                                   
address the issue later.                                                                                                        
CINDY  CASHEN,   MOTHERS  AGAINST   DRUNK  DRIVING,   JUNEAU,                                                                   
testified  in  support  of the  legislation.  She  read  from                                                                   
written testimony, paraphrasing the following:                                                                                  
"Mothers Against  Drunk Driving (MADD) supports  CS for House                                                                   
Bill 244.                                                                                                                       
MADD  supports consecutive  jail  time for  each  death in  a                                                                   
drunk driving crash in order for  restorative justice to take                                                                   
place within our communities.                                                                                                   
As a victim  in the State v.  Glaser case, I cannot  begin to                                                                   
explain  the  unnecessary  bitterness   and  frustration  our                                                                   
families struggle  with because  of the court  decision which                                                                   
refused to consider the multiple  deaths in the drunk driving                                                                   
tragedy.  Currently in  Alaska, a  loved one's  life is  less                                                                   
valuable  than a  stolen automobile  in a  felony case;  this                                                                   
sends  a dangerous  message out  to all  Alaskans. Each  life                                                                   
torn from us by drunk driving  is certainly worth taking into                                                                   
individual  consideration;  to   do  otherwise  would  create                                                                   
additional heartache  and trauma for victims  of this violent                                                                   
MADD also supports  the right for communities  to adopt lower                                                                   
limits  of alcohol  possession  and importation  in order  to                                                                   
increase the health and safety of their people.                                                                                 
MADD supports stricter drunk driving  sanctions for high risk                                                                   
drivers. Habitual  drunk drivers  who have repeatedly  chosen                                                                   
to endanger  themselves  and everyone  else who shares  their                                                                   
road system must be held accountable for their crimes.                                                                          
About  one-third  of all  drivers  arrested  or convicted  of                                                                   
driving  under  the influence  are  repeat  offenders.  These                                                                   
drivers are 40%  more likely to be involved in  a fatal crash                                                                   
than those without prior DUIs.                                                                                                  
MADD supports  increased penalties for those  whose choice to                                                                   
drink and drive results in the  serious injury of an innocent                                                                   
victim or victims.                                                                                                              
People who  drink and drive are  unable to determine  if they                                                                   
are sober before  arriving at their destination.  If a person                                                                   
chooses to drink  and drive then that person  has committed a                                                                   
crime and should be held accountable for his/her actions.                                                                       
MADD supports  the recommended changes  in CS for  House Bi1l                                                                   
224 as  a way  of deterring further  drunk driving  tragedies                                                                   
and improving Alaska's restorative justice system."                                                                             
Ms.  Cashen recounted  an incident  in Hoonah.  She spoke  in                                                                   
support of third  party custodian provisions.  She asked that                                                                   
the amendment  deleting the manslaughter charge  and allowing                                                                   
it  to  become  concurrent sentencing  not  be  adopted.  She                                                                   
discussed  the pain  that  it caused  two  families when  the                                                                   
judge  changed his  decision from  consecutive to  concurrent                                                                   
sentencing  for the accident  causing the  deaths of  her own                                                                   
father and Martin  Richard. In essence, the  drunk driver was                                                                   
punished for  causing one death  instead of two.   Ms. Cashen                                                                   
concluded that  this issue  concerns restorative  justice and                                                                   
the victims of the drunk driver.                                                                                                
HB  244  was   heard  and  HELD  in  Committee   for  further                                                                   
The meeting was adjourned at 3:42 P.M.                                                                                          

Document Name Date/Time Subjects