Legislature(2003 - 2004)
05/08/2003 02:16 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
May 08, 2003
2:16 P.M.
TAPE HFC 03 - 83, Side A
TAPE HFC 03 - 83, Side B
TAPE HFC 03 - 84, Side A
CALL TO ORDER
Co-Chair Williams called the House Finance Committee meeting
to order at 2:16 P.M.
MEMBERS PRESENT
Representative John Harris, Co-Chair
Representative Bill Williams, Co-Chair
Representative Kevin Meyer, Vice-Chair
Representative Mike Chenault
Representative Richard Foster
Representative Mike Hawker
Representative Carl Moses
Representative Bill Stoltze
Representative Jim Whitaker
MEMBERS ABSENT
Representative Eric Croft
Representative Reggie Joule
ALSO PRESENT
Representative Ethan Berkowitz; Representative Beth
Kerttula; Representative John Coghill; Senator Georgianna
Lincoln; Representative David Guttenberg; Representative
Carl Morgan; Rynnieva Moss, Staff, Representative John
Coghill; Rex Shattuck, Staff, Representative Nancy
Dahlstrom; Tom Wright, Staff, Representative John Harris;
Rick Urion, Director Occupational Licensing, Department of
Community and Economic Development; Larry Markley, Lobbyist,
Alaska Regional Electric Cooperative Association (ARECA),
Anchorage; Kate Tesar, Lobbyist, Alaska Yacht Services;
Kelly Hepler, Director, Division of Sport Fish, Department
of Fish and Game; Randy Ruaro, Staff, Representative Bill
Williams
PRESENT VIA TELECONFERENCE
Ron Miller, Executive Director, Alaska Industrial
Development and Export Authority, (AIDEA), Anchorage; Eric
Yould, Executive Director, Alaska Regional Electric
Cooperative Association (ARECA), Anchorage; Gail
Voigtlander, Assistant Attorney General, Department of Law,
Anchorage; Brad Thompson, Risk Management, Department of
Administration; Joe Hart, General Manager, Chitina Native
Corporation, Glennallen; Ken Johns, President, AHTNA Native
Corporation, Glennallen; Ruth Ann Warden, Special Project
Coordinator, AHTNA Native Corporation, Glennallen; Dean
Brown, Deputy State Forester, Division of Forestry,
Department of Natural Resources, Nome
SUMMARY
HCR 21 Relating to establishing the Alaska Energy Policy
Task Force.
CS HCR 21 (FIN) was reported out of Committee with
a "do pass" recommendation and with a new fiscal
note by the Legislative Affairs Agency.
HB 210 An Act relating to the Chitina dip net fishery;
and providing for an effective date.
CS HB 210 (RES) was reported out of Committee with
a "do pass" recommendation and with a new fiscal
note by the Department of Fish & Game and zero
note #1 by the Department of Natural Resources.
HB 245 An Act relating to certain suits and claims by
members of the military services or regarding acts
or omissions of the organized militia; relating to
liability arising out of certain search and
rescue, civil defense, homeland security, and fire
management and firefighting activities; and
providing for an effective date.
CS HB 245 (JUD) was reported out of Committee with
a "do pass" recommendation and with zero note #1
by the Department of Law, zero note #2 by the
Department of Natural Resources and indeterminate
fiscal note #3 by the Department of
Administration.
HB 251 An Act exempting certain foreign pleasure craft
from the mandatory pilot age requirement.
CS HB 251 (FIN) was reported out of Committee with
a "no recommendation" and with a new note by the
Department of Community & Economic Development.
HOUSE CONCURRENT RESOLUTION NO. 21
Relating to establishing the Alaska Energy Policy Task
Force.
Co-Chair Harris MOVED to ADOPT work draft #23-LS1079\D,
Lauterbach, 5/8/03, as the version of the legislation before
the Committee. There being NO OBJECTION, it was adopted.
Co-Chair Harris explained that the resolution would
establish the Alaska Energy Policy Task Force, the first
stage for developing a statewide energy plan. Initially,
the plan will address Rail belt concerns and the issues in
these areas. The plan will also provide the Legislature
with a report addressing power cost equalization (PCE)
concerns, mining and other general interests. General
obligation (GO) bonds will be discussed next year and a
framework will be developed.
TOM WRIGHT, STAFF, REPRESENTATIVE JOHN HARRIS, explained the
changes made to the committee substitute. The Board's
composition resulted from changes adopted in the work draft.
Originally, the Chair of the Regulatory Commission of Alaska
(RCA) was scheduled to be the Chair of the task force.
Following conversations with RCA and the Alaska Industrial
Development and Export Authority (AIDEA), concern had been
voiced that the RCA Chair could have a conflict of interest,
that chair was removed. It has been requested that a member
of the Alaska Energy Authority (AEA) be added to that
position.
A member was also added, jointly chosen by the Minority
leaders of the House & Senate and named by the President,
making a nine-member panel with full representation of
members chosen by the Governor, the President of the Senate
and the Speaker of the House.
Co-Chair Harris referenced the fiscal note, providing for
board member travel and per diem.
Representative Stoltze inquired if there would be outside
hire. Co-Chair Harris responded that it is intended to hire
someone currently working for the Legislature.
Mr. Wright added that the Alaska Energy Authority and AIDEA
are willing to work with the task force providing as much
expertise as possible. He believed the utilities would also
"come on board". Representative Stoltze suggested that at
the proposed salary, the position would be someone willing
to work "pro bono".
RON MILLER, (TESTIFIED VIA TELECONFERENCE), EXECUTIVE
DIRETOR, ALASKA INDUSTRIAL DEVELOPMENT EXPORT AUTHORITY
(AIDEA), ANCHORAGE, interjected that AIDEA intended to help.
LARRY MARKLEY, LOBBYIST, ALASKA REGIONAL ELECTRIC
COOPERATIVE ASSOCIATION (ARECA), ANCHORAGE, stated that
ARECA had discussed this proposal informally as it had only
recently been introduced. ARECA has not yet taken a formal
resolution regarding the concern, however, from
conversations, there appears to be support. There have been
recommendations made and he preferred that Mr. Yould address
those suggestions in more detail.
· ARECA members recommend that the task force
members elect the chair.
· ARECA recommends increasing the number of
utilities from two to three, two from the Rail
belt and one from the rural areas. Presently, one
comes from the Rail belt and the other from non-
Rail belt areas. He added that because the
utilities will be very involved, it would be good
to have the extra person representing a Rail belt
utility.
· To place someone from the mining industries on the
task force.
Co-Chair Harris believed that the President of the Senate or
the Speaker of the House would place someone from the mining
industry on the board if they thought that person was good.
He agreed that the board should choose the Chair and
recommended that an amendment be made.
Representative Stoltze questioned the intent of RCA's
involvement the RCA. Co-Chair Harris explained that RCA is
the critical component because they have previously been
involved in these types of cases. They should be "on
board". He realized the conflict of interest, and that RCA
would only be involved in the decisions and the effort.
ERIC YOULD, (TESTIFIED VIA TELECONFERENCE), EXECUTIVE
DIRECTOR, ALASKA REGIONAL ELECTIRC COOPERATIVE ASSOCIATION
(ARECA), ANCHORAGE, noted that the members of ARECA believe
that the resolution has merit and that they do support HCR
21. ARECA suggests modification to the number of members on
the task force. He questioned if RCA should be the chair or
even have membership on the commission. He indicated that
ARECA supports the task force electing their own chair.
Co-Chair Harris pointed out that the new committee
substitute has the membership from the Regulatory Commission
removed. At this time, membership consists of:
· One member from AEA
· Commissioner of Revenue
· Two members appointed by the Governor who are not
members of the Legislature
· Three members chosen by the President of the
Senate who are not members of the Legislature
· One member chosen by the Minority Leaders of the
House & Senate
· Two members chosen by the Speaker of the House who
are not members of the Legislature
Mr. Yould agreed with those placements. He suggested that
because the issue is about the utility industry, there
should be three members from the electric utility industry,
two of which should come from the Rail belt, primarily
because that is where the majority of the power comes from.
ARECA recommends consideration that the mining industry be
included in membership. He offered to answer questions of
the Committee.
Co-Chair Harris noted that the resolution is written to
indicate that a utility would not have more than one member
on the task force. It states that at least one member would
be from a Rail belt utility and one from a non-Rail belt
utility. He indicated that he would support that someone
from the mining industry is represented, suggesting that to
the Senate President and/or the Speaker of the House. Mr.
Yould voiced his appreciation and agreed that Commissioner
Corbus would be a great addition.
Representative Stoltze asked if there would be support to
include a consumer on the board that buys more than $50
million dollars worth of power. Mr. Yould stated that ARECA
would not oppose that. Co-Chair Harris indicated that he
did not support the idea, pointing out that person could be
chosen. He hoped to keep the board "relatively small" and
not too political.
Co-Chair Harris MOVED to AMEND Page 2, Line 18, deleting
language, "who shall act as chair of the task force" and
inserting on Page 2, Line 27, adding a new subsection #6,
"The Chair will be appointed by the Board".
Co-Chair Harris asked if Representative Berkowitz was
comfortable with that language.
REPRESENTATIVE ETHAN BERKOWITZ commented that it would be
important to have members from the Denali Commission.
Representative Foster MOVED to report CS HCR 21 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal note. There being NO OBJECTION, it was
so ordered.
CS HCR 21 (FIN) was reported out of Committee with a "do
pass" recommendation and with a new fiscal note by the
Legislative Affairs Agency.
HOUSE BILL NO. 210
An Act relating to the Chitina dip net fishery; and
providing for an effective date.
REPRESENTATIVE JOHN COGHILL advised that HB 210 would
eliminate the $25 dollar fee for a Chitina Dip netting
permit. In 2000, the Legislature imposed the increased fee
to guarantee access to the fishery by utilizing $18 dollar
per permit to pay AHTNA and Chitina Corporations a
trespassing fee for river access across their land.
Legislation promoted by Senator Pete Kelly provided funding
to undertake a survey in 2001. There was a specific
$100,000 dollar appropriation for survey and signs. The
Department of Transportation & Public Facilities (DOTPF) was
able to obtain the person who had done the majority of
surveying for native allotments using aerial photography.
There is approximately $54,000 dollars remaining for the
brochure design and printing costs. DOTPF indicated that
enough remains and would include two information signs
placed at the Pavilion and O'Brien.
Representative Coghill pointed out that the results of the
survey indicate that the vast majority of access to the
river is public land, thus, there should be no reason for
people to trespass on private lands to access the Chitina
fisheries. One key facet of the legislation is to make sure
the public access is adequately marked in order to protect
private property owners from trespassing.
Last year Gordy Williams, legislative liaison, testified
that the Chitina dip net fishery is the largest in the State
and in 2001, the Department of Fish and Game issued over
8,000 household permits. The elimination of the fee is a
policy call, stipulating that Chitina is the only fishery in
the State that has been singled out to pay a maintenance
fee. Representative Coghill maintained that Chitina should
be handled in the same manner as all other fisheries.
JOE HART, (TESTIFIED VIA TELECONFERENCE), GENERAL MANAGER,
CHITINA NATIVE CORPORATION, GLENNALLEN, submitted comments
on the proposed legislation. He emphasized the following
points and addressed the impacts that the dip netters have
and the pressures placed on private property. He commented
that those concerns seem to be overlooked.
· Cutting of trees
· Building of new trails
· Fire rings and fires
· Left behind trash at campsites
· Parking and camping
· Shooting
· Fish remains from cleaning
Mr. Hart listed the pressures on the community and services:
· Dumping of trash prior to leaving Chitina in
available dumpsters
· Stress placed on very limited emergency medical
services
· Additional and heavy traffic, speeding and damage
to roads
· Increased use of laundry facilities and public
water wells
· Increased potential for forest fires requiring
additional monitoring by Chitina's volunteer fire
department
· Increased numbers of visitors for law enforcement
to deal with and monitor
Mr. Hart clarified that this is an access issue, regardless
of the fisheries classification and that the dip netters
will be accessing the Copper River across private property.
Comments have indicated that the fee structure should be
determined based upon classification. The access is the
same regardless of the classification and should not be a
factor in establishment of the fee. Access is access, and
that is what the fee is used for. The requirement of a
sport license should not impact the amount of the fee.
With the landslide south of O'Brien Creek closing the road,
the dip netters will be impacting private properties because
the right-of-way is closed at the slide. That creates a
very unsafe situation similar to what happened on the Denali
Highway several years ago. The State of Alaska closed the
highway, yet a car was allowed to travel the highway and the
passengers got stuck and froze. Such circumstance places
the State in a bad legal situation. That ground is unstable
and not scheduled to be repaired due to the large costs.
Mr. Hart continued, between 8,000 and 10,000 people descend
on the town with a population of 123, some making multiple
trips. During the height of the fishery, 2,000 people may
be present daily. Proportionately, that would be like
500,000 tourists descending on Juneau. Those people all
have trash and sewage, which must be disposed of. Unlike
Juneau, Chitina has no local police force for law
enforcement or other infrastructure.
Another concern is the misuse of the right-of-way. The
State of Alaska would not allow 10,000 people to camp and
recreate on the Glenn Highway in Anchorage. People have
suggested placing signs and fences. In the past, wooden
signs were used for firewood and metal signs for target
practice. Fencing of the property is not in the best
interest of the view shed, tourism or the Alaskan landscape.
The legal width of the right-of-way is not in agreement.
The legal case Chitina Native Corporation had against the
State of Alaska in the early 1990's was not pursued
aggressively because of a good faith offering by the State
of Alaska for the establishment of this fee. Now the State
wants to "back out" of the agreed position. He noted that
Department of Transportation & Public Facilities'
documentation indicates the same right-of-way at the end of
the McCarthy road, which is only 200 feet.
Mr. Hart claimed that the State of Alaska has a
responsibility to protect the private property located in
proximity to the fishery. The issue seems to be focused on
one side of that fishery where the right-of-way is located.
The fishermen use both sides of the river and do not stay
below the ordinary mean high water mark, which has never
been established by the State of Alaska or the Bureau of
Land Management (BLM) on the Copper River.
There are frequently releases of raw sewage from RV's along
the roadways and in the gravel pits. People clean their
fish at Suzy Lake and then leave the fish remains behind,
creating problem bears for the town. Chitina, a town of
only few dozen people, is left with the trash of 8,000 to
10,000 people. The dumpsters and toilet facilities
currently available now through the fees are not adequate.
The fear is that the dumpsters, toilets, or our lands will
become a dumping ground for the public.
Mr. Hart added that the funds for proper enforcement for the
fishery are not going to be increased, which means little or
no monitoring and enforcement of trespassing laws for the
State of Alaska private properties. The best solution for
the State of Alaska would be to continue its agreement for
incidental use of 75% of private property. The amount of
dip netters being represented by the Chitina Dipnet
Association is a very small minority consisting of
membership of only 500 people. Mr. Hart emphasized that
there are 9,000 to 10,000 dip netters who use the fishery
each season.
The negative impacts brought by the dip netters to Chitina
are growing. The Legislature is considering removing one of
the only funding sources for the Village to work with in
dealing with the pressures on all of the other properties
impacted by not only these users, but also all visitors to
the area. Leaving the fee in place would not deny anyone
access to the fishery and they would simply be asked by the
State of Alaska to assist in paying for the access to do so
and clean up the trash and toilets they use.
Before there was an agreement between the State, Chitina and
AHTNA, village members patrolled the lands and were met with
angry dip netters who were distraught because they could not
access the river. Many dip netters bring weapons with them
to Chitina, and when combined with alcohol, it creates an
unsafe situation. This could likely lead to a range war
situation where representatives may be injured or indeed
killed in the process of protecting the lands.
Mr. Hart added that although no one wants to address it,
Native lands are not viewed in the same light or treated
with the same respect as other private lands. Dip netters
would not wander, throw trash in, or relieve themselves in
someone's back yard in Kenai with the same abandoned that
they do in Chitina.
Mr. Hart recommended that the Committee not pass HB 210 and
allow the State of Alaska and the Department of Fish & Game
to enter into an agreement with a fee of $15 per permit for
the next year. There needs to be meetings focused on
looking at long-term solutions to the issues and concerns
raised. Members of departments from the State could be
requested to present answers to the many questions, and then
the private property owners could bring forward reasons for
compensation for the impacts. He stressed that the time is
short and that the dip net fishery opens in June and that
there is not enough time to deal with all the unresolved
issues. For that reason, Chitina requests an extension of
the current agreement for another year, during which time
all of the issues could be addressed.
RUTH ANN WARDEN, (TESTIFIED VIA TELECONFERENCE), SPECIAL
PROJECT COORDINATOR, AHTNA NATIVE CORPORATION, GLENNALLEN,
voiced concern with removing the fee. The remedy for
mitigating the issues has not been determined. There is a
long list of problems and issues as referenced by Mr. Hart.
Ms. Warden emphasized that trespassing on the property is a
"huge" concern. That is true especially in the areas where
the people are recreating, fishing and hunting. The current
plan does work. The plan allows Chitina, the Indian
corporation and the State of Alaska to work together to
address some of these issues. It provides access for those
people through the private lands without ramifications.
Ms. Warden stressed that it would not be a good solution to
remove the fees and attempt to address all these issues in a
short period of time. A year extension would be desirable
to work out these concerns.
Co-Chair Williams pointed out that a similar issue exists in
Ketchikan. He commented on map distributed by Senator
Lincoln, indicating that a snow slide that washed out the
road system. Land in Saxman has experienced these same
types of problems. Placement of signs did not work so the
Native Corporation began working with the public and
building up the facilities for the public to use. That is
paying off for his area and asked if that could be done in
Chitina, charging and then policing. The State can no
longer be collecting fees and policing those areas for the
dip net fishery. He inquired if it would be possible to
build a road to the waters edge to help control the flow of
people.
Mr. Hart responded that they had tried to control the flow
using a gated area, which required someone to be on guard
24-hours a day. The public did not like that access and
complained to the Department of Transportation & Public
Facilities and the Department of Fish and Game. That entire
concern was placed into litigation. He reminded members
that there are 8,000 to 10,000 dip netters in comparison to
the 500 people encouraging passage of the legislation. He
surmised that there could be a program built but that it
would be impossible to implement that this year.
SENATOR GEORGIANNA LINCOLN highlighted the map distributed
to the Committee members.
TAPE HFC 03 - 83, Side B
Senator Lincoln pointed out the O'Brien Creek area. She
noted how each area would be affected by the trespassing,
pointing out that the best fishing is at some of the bluffs.
Bluffs do not stop fishermen. The trails are narrow and
there are private lands intermingled with State lands and
that many people come armed, which can lead to dangerous
situations. There are no Village Public Safety Officers
(VPSO) on duty. Senator Lincoln voiced appreciation that
the sponsor had attempted to work out a situation, however,
the gates are to be opened on June 9th. There needs to be a
way to work with Chitina to accommodate them during this
period. There is no way that they can get the fences up
this year. She noted that the fishery ends the end of
September.
Mr. Hart advised that the majority of the people start
showing up around the 4th of July weekend. Senator Lincoln
reiterated that this is a volatile situation. She
recommended calling the fee a "user fee or costs related to
the impacts on the community". She implored the Committee
members help to get the village through this season and then
they could work something out for next year.
REPRESENTATIVE CARL MORGAN spoke to concerns with the other
side of the river and how the private lands are affected.
Co-Chair Williams interjected that the only way to manage
the problem would be in working with the public to address
these problems. He recommended hiring someone to police the
areas, pointing out that the bill goes into effect on July
1. Representative Coghill corrected that the bill has an
immediate effective date.
Senator Lincoln reiterated that the areas do not have the
time to prepare a plan and that hiring only one person would
not be effective. Representative Coghill advised that last
year, the opponents had prepared the same argument. He
stressed that they currently are charging a trespass fee for
public lands. He reiterated that this is not a new
discussion. He acknowledged that there are safety hazards
associated with the river and that the State knows where the
borders of the State lands and private lands are and that
the borders are now clearly delineated.
Senator Lincoln acknowledged that the village areas need to
work on these concerns. The Department of Fish & Game has
admitted that they do not have a resolution with Chitina.
She maintained that there is no other place in the State of
Alaska where there is such an influx of fishers going
through such a narrow area. She foresaw problems if these
issues are not equitably resolved.
Co-Chair Harris asked whether the Department of
Transportation and Public Facilities still plans to pay the
Chitina Native Corporation for any damages done to property
as a result of the trespassing even without the fee.
Representative Lincoln replied that had not been confirmed
in writing. She speculated that the Department would not
reopen the slide at Brian Creek, which would make private
lands more congested with increased safety concerns.
Co-Chair Harris inquired if there was any other place in the
State where a fee was charged for access.
KELLY HEPLER, DIRECTOR, DIVISION OF SPORT FISH, DEPARTMENT
OF FISH AND GAME, explained that this is a unique situation.
Co-Chair Harris asked if there was enough opportunity for
people to cross on public land to avoid the private lands.
Mr. Hepler replied that approximately 60% of the land from
Chitina down to the southern access was accessible. One of
the primary spots is around Brian Creek. Regarding the
right-of-way, many people access the areas with their boats,
however, there continues to be a lot of tension. He
concurred with the suggestion that the Native corporations
create a parking area.
Co-Chair Harris stated that he did not want to see the
private property owners have their rights abused. He added
that he would like to see money placed in the State's budget
to compensate for the concern. He asked about the fiscal
note. Mr. Hepler replied that some funds go for publishing
the permit and bathroom facility use. In response to a
question by Co-Chair Harris, Mr. Hepler explained that $18 -
$25 dollars goes to Chitina and the other funds for
contractual work.
Co-Chair Harris asked whether the Department of Fish and
Game would continue to pay for waste management if the fee
was discontinued. Mr. Hepler responded that was a decision
for the Department of Administration, noting that he would
not like to lose the $180 thousand dollars from his budget
for that purpose. Co-Chair Harris commented that he would
look toward the Capital Budget to locate funding for Chitina
to help resolve these issues.
Representative Stoltze asked for clarification regarding the
charge on the Kenai River. Mr. Hepler explained that would
be a charge for parking. Representative Stoltze asked the
Department's position on that fee. Mr. Hepler commented
that the issue was complex and that the Department has not
yet taken a position.
Representative Chenault asked if there were any fees
collected or paid in Kenai for dip netting fishing. Mr.
Hepler responded that in the past, monies had been spent for
trash receptacles. He added that the Department of
Transportation and Public Facilities spent time in trash
disposal, noting that with the large number of people
involved, they were not able to provide the necessary level
of service.
Representative Chenault raised the concern that there is an
inequity of provided services and that cities incur costs
due to the location of those fishing areas, whether in
Chitina or in Kenai. He proposed that the cost should be
State related rather than a city expense. Representative
Chenault cited his experience while representing the Kenai
borough area.
Co-Chair Harris asked if the city of Kenai spent money to
alleviate a garbage problem that they believed should have
been a State responsibility. Representative Chenault
acknowledged the problem with the State designating the
fishing area and then taking little responsibility for waste
management, parking or habitat concerns. He pointed out
that a charge for parking had helped offset some costs in
his area.
Senator Lincoln thanked the Committee for debating the issue
at such length and for giving thought to the people affected
by the bill.
Co-Chair Harris MOVED to report CS HB 210 (RES) out of
Committee with individual recommendations and with the
accompanying fiscal note.
Representative Foster OBJECTED.
A roll call vote was taken on the motion.
IN FAVOR: Hawker, Stolze, Whitaker, Chenault, Harris,
Williams
OPPOSED: Foster, Meyer, Moses
Representative Croft and Representative Joule were not
present for the vote.
The MOTION PASSED (6-3).
CS HB 210 (RES) was reported out of Committee with a "do
pass" recommendation and with a new fiscal note by the
Department of Fish & Game and a zero note #1 by the
Department of Natural Resources.
HOUSE BILL NO. 251
An Act exempting certain foreign pleasure craft from
the mandatory pilot age requirement.
Co-Chair Harris MOVED to ADOPT work draft version #23-
LS0865\X, Utermohle, 5/7/03, as the version of the bill
before the Committee. There being NO OBJECTION, it was
adopted.
RANDY RUARO, STAFF, REPRESENTATIVE BILL WILLIAMS, explained
the changes made to the committee substitute. Under the
bill, foreign flagged vessels would be divided into three
classes of foreign flagged recreational vessels. Those
under 60' long would not need a marine pilot and vessels
over 60' and under 173' would have opportunity to obtain a
waiver from the pilotage requirement. That would depend if
the requirements determined by the Board of Marine Pilots
had been meet. Foreign flagged recreational vessels over
173' would continue to need a pilot. The Board of Marine
Pilots would establish the standards met.
Co-Chair Harris asked how the 173' number had been
determined. Mr. Ruaro replied that number would cover the
top end of vessels that have come into the State over the
past few years. The marine pilots wanted the number to be
as low as possible and that the maximum should have been
less.
REPRESENTATIVE BETH KERTTULA referenced a letter in the file
from Rear Admiral Underwood referencing gross tonnage. Mr.
Ruaro advised that the maritime gross tonnage measurement is
a volume measurement and that marine architects are good at
getting around gross tonnage requirements.
Representative Kerttula asked if most maritime laws dealt in
gross tonnage. Mr. Ruaro acknowledged that this is a
different approach; however, the standard regulation lists
in gross tonnage.
REX SHATTUCK, STAFF, REPRESENTATIVE NANCY DAHLSTROM,
explained that internationally, the standard is read in
meters and since Alaska does not use meters, feet have been
added.
Representative Stoltze suggested that the marine pilots
would know best how to navigate the fragile waters of
Southeast. He imagined that there are safety concerns with
the legislation.
Mr. Ruaro interjected that in setting the standard, a waiver
or exemption applicants would have to meet the Board of
Marine Pilots reserve.
Co-Chair Harris agreed that this has been an on-going
process and that he would not want to do anything to
jeopardize the safety of people on board. The marine pilots
are an important service to the operation of marine vessels
in Alaska, especially for the larger vessels. He pointed
out that the legislation does provide for a size waiver.
Competent people will pilot the vessels if the Marine Pilot
Board is not satisfied that a ship of a certain size coming
into Alaska waters is safely piloted. There will be
financial benefit to the State. The State is attempting to
reach a compromise with the companies that bring the large
yachts to Alaska and these people are not poor.
Mr. Shattuck pointed out the section of the bill that
imposes a civil fine for violations in not using a pilot.
KATE TESAR, LOBBYIST, ALASKA YACHT SERVICES & PROVISIONING,
voiced her appreciation to the Chairman and his staff in
working out a solution. The bill is a good compromise.
Under Co-Chair William's direction, there is now a fee
structure that will raise approximately $102 million dollars
and that vessels would also a fee for exemptions. She noted
the overwhelming coastal support.
Representative Kerttula asked why the change from tonnage to
feet. Ms. Tesar explained that there is no correlation
between tonnage and footage. Part of the problem is that
with yachts, it is difficult to determine how much they
weigh. Using footage makes identification easier.
Representative Kerttula asked if most pleasure craft would
be less than 300 gross tons. Ms. Tesar did not know. They
are built to varying specifications and that there is "no
rule of thumb".
Vice-Chair Meyer asked how the waiver would work. Ms. Tesar
replied that the Department would have 30 days to receive
back a response.
Representative Kerttula asked if there had been input
received from the marine pilots. Ms. Tesar was not
comfortable responding to that question.
RICK URION, DIRECTOR, OCCUPATIONAL LICENSING, DEPARTMENT OF
COMMUNITY AND ECONOMIC DEVELOPMENT, spoke to the problems
with the proposed legislation. There are a couple of
"hoops" that will be difficult for the Department to "jump
through". The first concern is in regard to the listed
length listed of 173'. He stated that number had been
determined as a compromise that satisfied someone's personal
concern and stressed that was not a good way to address
public policy. The number should be based on real facts.
TAPE HFC 03 - 84, Side A
Mr. Urion added that the Board should have the power in
making decisions regarding establishment of the criteria.
The Board can respond and make those decisions. He
requested that the Department be given that authority.
Co-Chair Williams replied that there had been pilots
involved in making these decisions. He asked if the
Department had provided previous input on the consideration.
Mr. Urion acknowledged that the he had known about the bill
since inception but had not participated in the meetings.
Co-Chair Williams reiterated that the Department had not
participated.
Co-Chair Williams asked what Mr. Urion wanted the Committee
to do. Mr. Urion advised that he wants to make it easier
for people to get licenses. Co-Chair Williams reiterated
that the concern has been before the Committee since the
beginning of the year. Co-Chair Harris interjected that the
process has a way to go and that Mr. Urion would be able to
place further departmental input down the road.
Co-Chair Harris MOVED to report CS HB 251 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal note. There being NO OBJECTION, it was
so ordered.
CS HB 251 (FIN) was reported out of Committee with a "no
recommendation" and with a new note by the Department of
Community & Economic Development.
HOUSE BILL NO. 245
An Act relating to certain suits and claims by members
of the military services or regarding acts or omissions
of the organized militia; relating to liability arising
out of certain search and rescue, civil defense,
homeland security, and fire management and firefighting
activities; and providing for an effective date.
GAIL VOIGTLANDER, (TESTIFIED VIA TELECONFERENCE), ASSISTANT
ATTORNEY GENERAL, DEPARTMENT OF LAW, ANCHORAGE, introduced
CS HB 245 (JUD). The legislation will provide protection
from tort lawsuits in four areas of governmental activity.
The first is in the area of search and rescue:
· Immunity from tort lawsuits for State and local
government and their employees. She noted that
there are approximately 400 search and rescues
conducted each year in Alaska.
· The Alaska State Troopers coordinate search and
rescue activities using State and community
resources.
· That provision is addressed in Section 2 of the
bill.
The second area of governmental activity is in intra-
military Tort Claims:
· Bars tort actions for damages against the State
and its employees by service members - there is no
change to the entitlement to State workers
compensation when on State duty and federal
benefits when on federal duty.
· Provides the State and its military personnel the
same protection from tort lawsuits that the
federal government and federal military personnel
have under the Feres Doctrine and is consistent
with the vast majority of states. The provisions
are found in Sections 4 - 6 of the bill.
· Acts of the organized militia unless the acts were
in the line of duty while on active State service
under AS 26.05.070. That provision is found in
Section 3 of the bill.
Both of those provisions recognize that the federal
government and not the State of Alaska, is responsible for
injuries and claims while service members are under federal
command and control.
The third area of governmental activity would be the
protection in Civil Defense:
· Bars tort claims against the government, employees
and authorized volunteers for damages sustained by
a civilian defense worker, and do not affect the
worker's or authorized volunteer's rights to State
workers compensation.
· Bars third party tort claims against the
government, employees, and authorized volunteers
for damages unless malice or reckless indifference
is shown by clear and convincing evidence.
· These provisions are found in Sections 7 - 10 of
the bill.
The final area of protection is the Fire Management and Fire
Fighting Activities:
· Amends two statutory sections to bar tort claims
by third parties against the State, local
government, other firefighting groups and their
employees.
· Every year the State Division of Forestry is
called upon to respond to hundreds of fires
throughout the State of Alaska. The change is
necessary due to two Alaska Supreme Court cases
holding that the State may be sued for
firefighting activities.
· Litigation disrupts Forestry's day-to-day
operations and diverts substantial State resources
to defend lawsuits. That provision is consistent
with federal and common law practices in other
jurisdictions that immunize those activities. The
provision does not affect existing entitlement to
workers compensation or the availability of
federal or state disaster relief benefits.
Representative Kerttula asked what the military would be
able to sue for and what could the volunteers sue for.
Ms. Voigtlander explained that military would not be able to
sue under the tort case. They would be able to receive
worker's compensation either through the State or through
the federal government. The legislation avoids someone
under federal orders and would be interpreted that military
members could not sue the State for injuries to themselves.
Ms. Voigtlander addressed the types of claims that
volunteers could have. Representative Kerttula referenced
Page 4, Lines 3-13, the defense activity. Ms. Voigtlander
advised that was the civil defense portion of the bill. A
civil defense worker would be covered by worker's
compensation if they were an employee. Above and beyond
that, there is a pre-existing statute that provides worker's
compensation benefits to authorized volunteers if they are
not otherwise on some worker's compensation role. The
legislation bars a tort lawsuit by a volunteer civil defense
worker and it would not affect any person's entitlement to
worker's compensation.
Representative Kerttula questioned the exception of "malice
and reckless indifference" would allow. Ms. Voigtlander
responded that would allow a lawsuit against the government
or a government employee arising out of civil defense
activities. Representative Kerttula commented that would be
the plaintiff suing the government not the volunteer suing
back. Ms. Voigtlander said that was correct.
Representative Kerttula asked if there was any avenue left
for a volunteer in any type of tort against the government.
Ms. Voigtlander replied that the only area left for tort
lawsuits would be if a third party was injured because of an
act of the organized militia and that militia was serving on
State orders. Then that claim would be allowed, as opposed
to the person acting under federal orders. Regarding civil
defense, the only area would be a third party liability. If
that exception was shown for fire fighting and fire
management activities, the legislation would bar all claims
and there would be no exception.
Co-Chair Harris referenced a National Guard case, which sued
the State for a plane that crashed. Ms. Voigtlander advised
that case involved a federal plane piloted by a federal
pilot and that there was a lawsuit filed against the State.
Representative Stoltze referenced Page 5, Lines 3 & 4,
language regarding vaccinations. Ms. Voigtlander noted that
vaccinations are voluntary. For those that volunteer for
the vaccinations as part of their job, they would be covered
through worker's compensation. There is medication to cover
those that develop a bad reaction to a vaccination. Ms.
Voigtlander reiterated that all vaccinations have been on a
voluntary basis. Representative Stoltze inquired if they
had been involuntary in the past. Ms. Voigtlander did not
know.
Representative Stoltze inquired if there would be an
objection to adding an amendment to reference voluntary
vaccinations.
Co-Chair Williams pointed out that language currently exists
in federal law. In response to Representative Stoltze, Ms.
Voigtlander admitted that she did not know that much about
the State's Public Health Program and crisis scenarios. .
Representative Stoltze stated that he would pursue this
concern at a later date.
Representative Foster stated that it was not an option to
get the shots when he was in the military. Co-Chair Harris
agreed that the shots are not voluntary.
DEAN BROWN, (TESTIFIED VIA TELECONFERENCE), DEPUTY STATE
FORESTER, DIVISION OF FORESTRY, DEPARTMENT OF NATURAL
RESOURCES, NOME, voiced how important the legislation is to
the fire-fighting in the State. The Division of Forestry
has the responsibility for all fire fighting in Alaska. Ms.
Brown pointed out that they fight between 500-700 fires each
year and that nearly 86% of those fires are human caused.
Ms. Brown emphasized the importance of safety concerns and
indicated that the bill not only addresses liability for
local fire fighters but for the State fire crews. The
legislation provides the State the same benefits enjoyed by
the federal sector for tort immunity.
Representative Foster MOVED to report CS HB 245 (JUD) out of
Committee with individual recommendations and with the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CS HB 245 (JUD) was reported out of Committee with a "do
pass" recommendation and with zero note #1 by the Department
of Law, zero note #2 by the Department of Natural Resources
and indeterminate fiscal note #3 by the Department of
Administration.
ADJOURNMENT
The meeting was adjourned at 4:30 P.M.
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