Legislature(2013 - 2014)CAPITOL 120
03/19/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Overview: Federal Overreach in Alaska. Citizens' Advisory Commission on Federal Areas | |
| HB366 | |
| HB127 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 373 | TELECONFERENCED | |
| += | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 366 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 19, 2014
1:11 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Neal Foster
Representative Lance Pruitt
Representative Max Gruenberg
MEMBERS ABSENT
Representative Gabrielle LeDoux
Representative Charisse Millett
COMMITTEE CALENDAR
OVERVIEW(S): FEDERAL OVERREACH IN ALASKA
Citizens' Advisory Commission on Federal Areas
- HEARD
HOUSE BILL NO. 366
"An Act relating to reporting an involuntary mental health
commitment to the National Instant Criminal Background Check
System; and relating to relief from disabilities of a record of
involuntary commitment and an adjudication of mental illness or
mental incompetence."
- HEARD AND HELD
HOUSE BILL NO. 127
"An Act clarifying that the Alaska Bar Association is an agency
for purposes of investigations by the ombudsman; relating to
compensation of the ombudsman and to employment of staff by the
ombudsman under personal service contracts; providing that
certain records of communications between the ombudsman and an
agency are not public records; relating to disclosure by an
agency to the ombudsman of communications subject to attorney-
client and attorney work-product privileges; relating to
informal and formal reports of opinions and recommendations
issued by the ombudsman; relating to the privilege of the
ombudsman not to testify and creating a privilege under which
the ombudsman is not required to disclose certain documents;
relating to procedures for procurement by the ombudsman;
relating to the definition of 'agency' for purposes of the
Ombudsman Act and providing jurisdiction of the ombudsman over
persons providing certain services to the state by contract; and
amending Rules 501 and 503, Alaska Rules of Evidence."
- HEARD & HELD
HOUSE BILL NO. 373
"An Act relating to conditions of release and probation in
criminal cases; relating to ignition interlock devices in cases
involving driving under the influence and refusal to submit to a
chemical test; relating to limited drivers' licenses; requiring
the commissioner of health and social services to establish
programs for persons with conditions of release, with conditions
of probation, and with certain limited licenses that require
testing for controlled substances and alcoholic beverages; and
providing for an effective date."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 366
SHORT TITLE: INVOLUNTARY COMMITMENT
SPONSOR(s): REPRESENTATIVE(s) PRUITT
02/26/14 (H) READ THE FIRST TIME - REFERRALS
02/26/14 (H) STA, JUD
03/11/14 (H) STA AT 8:00 AM CAPITOL 106
03/11/14 (H) Moved CSHB 366(STA) Out of Committee
03/11/14 (H) MINUTE(STA)
03/12/14 (H) STA RPT CS(STA) NT 2DP 3NR 1AM
03/12/14 (H) DP: KELLER, KREISS-TOMKINS
03/12/14 (H) NR: GATTIS, HUGHES, LYNN
03/12/14 (H) AM: ISAACSON
03/17/14 (H) JUD AT 1:00 PM CAPITOL 120
03/17/14 (H) Moved CSHB 366(STA) Out of Committee
03/17/14 (H) MINUTE(JUD)
03/19/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 127
SHORT TITLE: OMBUDSMAN
SPONSOR(s): RULES BY REQUEST
02/18/13 (H) READ THE FIRST TIME - REFERRALS
02/18/13 (H) STA, JUD
03/12/13 (H) STA AT 8:00 AM CAPITOL 106
03/12/13 (H) Heard & Held
03/12/13 (H) MINUTE(STA)
03/21/13 (H) STA AT 8:00 AM CAPITOL 106
03/21/13 (H) <Bill Hearing Rescheduled to 3/26/13>
03/26/13 (H) STA AT 8:00 AM CAPITOL 106
03/26/13 (H) Heard & Held; Assigned to Subcommittee
03/26/13 (H) MINUTE(STA)
02/07/14 (H) STA AT 3:00 PM CAPITOL 120
02/07/14 (H) Work Session on above Bill
02/25/14 (H) STA AT 8:00 AM CAPITOL 106
02/25/14 (H) Heard & Held
02/25/14 (H) MINUTE(STA)
02/27/14 (H) STA AT 8:00 AM CAPITOL 106
02/27/14 (H) Heard & Held
02/27/14 (H) MINUTE(STA)
03/06/14 (H) STA AT 8:00 AM CAPITOL 106
03/06/14 (H) Moved CSHB 127(STA) Out of Committee
03/06/14 (H) MINUTE(STA)
03/07/14 (H) JUD AT 1:00 PM CAPITOL 120
03/07/14 (H) <Bill Hearing Canceled>
03/10/14 (H) STA RPT CS(STA) NT 1DP 1NR 3AM
03/10/14 (H) DP: LYNN
03/10/14 (H) NR: GATTIS
03/10/14 (H) AM: KELLER, KREISS-TOMKINS, HUGHES
03/12/14 (H) JUD AT 1:00 PM CAPITOL 120
03/12/14 (H) -- MEETING CANCELED --
03/14/14 (H) JUD AT 1:00 PM CAPITOL 120
03/14/14 (H) Heard & Held
03/14/14 (H) MINUTE(JUD)
03/19/14 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
STAN LEAPHART, Executive Director
Citizens' Advisory Commission on Federal Areas (CACFA)
Department of Natural Resources
Fairbanks, Alaska
POSITION STATEMENT: Presented an overview entitled "Federal
Overreach in Alaska."
JIM POUND, Staff,
Representative Wes Keller
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as staff to Representative Wes
Keller and explained the changes in the CS for HB 127.
BETH LEIBOWITZ, Assistant Ombudsman
Office of the Ombudsman
Legislative Agencies and Offices
Juneau, Alaska
POSITION STATEMENT: Testified that the Ombudsman's Office does
not object to CSHB 127.
KATE BUCKHARDT, Executive Director
Alaska Mental Health Board
Department of Health & Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Testified in support of CSHB 127.
SHERRIE DAIGLE, Deputy Commissioner
Central Office
Division of Administrative Services
Department of Corrections (DOC)
Juneau, Alaska
POSITION STATEMENT: Testified that the Department of
Corrections does not object to CSHB 127.
JEFF JESSEE, Chief Executive Officer
Alaska Mental Health Trust Authority
Department of Revenue
Anchorage, Alaska
POSITION STATEMENT: Posed questions regarding CSHB 127.
LINDA LORD-JENKINS, Ombudsman
Office of the Ombudsman
Legislative Agencies and Offices
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding CSHB 127.
ACTION NARRATIVE
1:11:17 PM
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:11 p.m. Representatives Lynn, Foster,
Gruenberg, and Keller were present at the call to order.
^OVERVIEW: FEDERAL OVERREACH IN ALASKA. Citizens' Advisory
Commission on Federal Areas
1:11:27 PM
CHAIR KELLER announced the first order of business would be an
overview of Federal Overreach in Alaska by the Citizens'
Advisory Commission on Federal Areas (CACFA), presented by Stan
Leaphart. Chair Keller noted several documents provided to the
committee to read in members' spare time. These show some of the
things that CACFA does, and they include civil law cases, the
ANILCA [Alaska National Interest Lands Conservation Act]
process, and the annual CACFA report. There is also a document
from the Department of Law that enumerates Endangered Species
Act actions [in Alaska], which he wants on the record, and a
Department of Law packet on federal laws and litigations. He
noted that Mr. Leaphart was involved in many of those issues.
1:14:48 PM
STAN LEAPHART, Executive Director, Citizens' Advisory Commission
on Federal Areas, Department of Natural Resources (DNR), said
that he has provided the committee with a lengthy PowerPoint
presentation, a copy of CACFA's annual report, and transcripts
from the group's federal overreach summit. He emphasized that
federal overreach is an escalating problem for Alaskans due to
an increase in the amount of restrictions on users of federal
public lands, regulations affecting the use of lands, and
federal preemption of the state's management authority, which is
primarily over fish and wildlife. He reported that there are a
number of instances where the Statehood Compact [provisions in
the Alaska Statehood Act] is not being honored, and the built-in
compromises in the Alaska National Interest Lands Conservation
Act (ANILCA) are being ignored. "We think the situation is
getting worse," he added. He related that even with the efforts
of CACFA, the ANILCA program, and the Public Access Assertion
and Defense (PAAD) Unit of the DNR, Department of Law (DOL), and
the Governor's Office, Alaska continues to be overwhelmed by
federal overreach issues, and it is time to look at new
strategies.
MR. LEAPHART explained that CACFA was created in 1981 and
operated until 1999. It was reestablished in 2007, and its
mission is to determine the outcome of federal regulations and
federal management decisions upon the people of Alaska. The
group gets input from individuals and user groups, including air
taxi operators, hunting guides, fishermen, and miners. He said
CACFA spends a lot of time reviewing and commenting on proposed
management plans and regulations. He explained that the
governor appoints half of the members to the commission, and the
legislature appoints the other half, which includes two members
of the legislature. Chair Keller is the chair of the CACFA, he
noted.
In August 2013, CACFA offered a summit on federal overreach,
which "looked at a whole slate of issues" and intended to
improve the deteriorating relationship between federal
management agencies and the people of Alaska. The speakers
included Governor Parnell, the Attorney General, Alaska's
Congressional Delegation, land users, and many people with
experience on federal land management issues in Alaska. The
summit attendees reviewed the Statehood Compact, Alaska Native
Claims Settlement Act (ANCSA), and ANILCA.
1:20:38 PM
MR. LEAPHART related that the summit attempted to identify
problems as well as possible solutions. The CACFA then planned
to meet with federal agencies, but the federal workers had just
been furloughed so Mr. Leaphart later met with the agencies
himself. He noted that the commission has gotten some feedback
from them regarding its summit and recommendations. In February,
the CACFA met to discuss the summit results, and members
prepared a spreadsheet depicting issues prioritized by
importance and offering the manner in which each issue should be
addressed. He stated that there are five million acres of land
entitlements yet to be transferred to the state and 36 million
acres to be surveyed and patented to the state. Alaska has more
than 60 million acres of submerged lands and tide lands, and the
state does not have clear title to many of those lands, he
remarked, and there are threats to state jurisdiction over those
navigable waters. Furthermore, there are issues on access,
including R.S. [Revised Statute] 2477 rights-of-way and Alaska
Native Claims Settlement Act 17B easements across Alaska Native
corporate lands to access public lands. He referred to the "No
More" [land withdrawal] clause in ANILCA, which is increasingly
ignored by federal agencies. Guaranteed access for traditional
uses and inholdings is being threatened, he said, and there is
increasing preemption of state regulations for the management of
fish and game. He noted that the Bureau of Land Management (BLM)
recently announced implementation of a new policy regulating
placer mining on BLM lands which will cripple small mining
operations.
MR. LEAPHART opined that the following are the main topics
identified as requiring additional attention: the Statehood
Compact; navigable waters and submerged lands; access; fish and
wildlife management; resource and economic development; land
management planning and policies by the federal agencies; and
education and communication. He said that Alaska was granted
105 million acres of uplands at statehood and 60 plus million
acres of submerged lands. He noted that CACFA identified a
number of breeches of the Statehood Contract. He spoke of
unresolved land entitlements, and he said there are millions of
acres currently withdrawn under public land orders-some as long
as 40 years ago-and that has impacted the state's ability to
develop resources on federal lands. He noted that many of the
ANILCA (d)(2) lands were put into a conservation system unit
with special provisions, but many such provisions are not being
honored by federal agencies.
MR. LEAPHART turned to recommendations of the CACFA "for the
governor, for the legislature, the Department of Law, and for
other state agencies to deal with these statehood compacts." He
urged the governor to continue to actively assert the state's
authorities and entitlements, and he suggested working with the
Coalition of Western States. Other western states are facing
the same issues as Alaska, he explained. He said the Alaska
State Legislature can provide oversight and continue its work
with the Council of State Governments. He related that the
Department of Law has been proactive in litigating issues, and
he noted that it may be worth revisiting the statehood compact
case that was decided back in the 1990s.
1:26:34 PM
MR. LEAPHART reiterated that under the Equal Footing Doctrine
and the Submerged Lands Act, the state was granted title to
almost 60 million acres of submerged lands at statehood. The
delay in clearing titles to the submerged lands disadvantages
the state, he stated. Since statehood, fewer than 20 rivers
have been determined to be navigable by the federal courts.
Navigability must be determined on a case-by-case basis which is
time consuming and expensive. He suggested that the state work
with BLM to develop criteria for determining navigability of
water bodies to speed up the process, rather than having to deal
with each water body on a case-by-case basis. Applying National
Park Service (NPS) water regulations to state waters within the
boundaries of national park units is the basis for two on-going
lawsuits. He noted concern that other federal agencies, such as
the United States Fish and Wildlife Service (USFWS), may adopt
similar regulations that would extend their management authority
over state waters within national wildlife refuges.
1:28:44 PM
MR. LEAPHART referred to Sturgeon and State of Alaska v. Masica,
et.al., (AK Dist. Ct., 3:11-cv-HRH), wherein John Sturgeon
challenged NPS water regulations as he was denied use of his
hovercraft on state navigable waters within the Yukon-Charley
Rivers National Preserve. Mr. Leaphart expressed that the NPS
sometimes requires state agencies to secure federal permits in
order to conduct fish and game management activities on
navigable waters within parks and refuges. Under Sturgeon, a
major point is the definition of public lands in Alaska and
whether or not state submerged lands should be included in that
definition. He remarked that ANILCA is clear, but federal
agencies disagree with [CACFA's interpretation]. Therefore, the
Alaska congressional delegation may have the opportunity to
clarify the definition to ensure that federal management
regulations are not applied to state lands and waters or ANCSA
corporation lands within the conservation system units.
MR. LEAPHART noted there is a delay in clearing title to
submerged lands and suggested that the state could attempt an
expedited title process. He said the DOL is currently actively
engaged with a number of [court] cases regarding quiet title on
submerged lands. He remarked that the state has had good luck
using a process called recordable disclaimer of interest, which
is an administrative process outside of the court system. The
process requires a tremendous amount of research and
documentation to demonstrate a particular river or lake meets
the criteria set up to determine navigability, but it generally
works faster than the quiet title action. For example, the
Salcha River in Central Alaska went through a process in
approximately six months, but in some instances the process has
taken two to three years. There are several applications that
the state has filed, he stated, that have been pending for six
or seven years. In some instances the process has worked well,
but not in all cases, he noted. One delay is that each
application has to be dealt with on a case-by-case basis, and he
reiterated that standards should be developed.
1:32:08 PM
MR. LEAPHART stated that the largest issue CACFA deals with is
access, including access to hunting and fishing areas,
inholdings within conservation units, mining claims, or
recreational areas. He reminded the committee that Alaska has
been involved in the R.S. 2477 issue since 1993, and over 1,000
trails have been researched. The Alaska State Legislature
codified 659 of those trails in statute; unfortunately, the
federal agencies generally do not recognize the validity of an
R.S. 2477, and the current policy is that only a court can
adjudicate an R.S. 2477 on federal land. The United States
Geological Survey (USGS) is embarking upon a new mapping program
for Alaska and most of the historic trails are no longer
depicted on those maps, yet the federal Long Range
Transportation Plan (LRTP) acknowledges that trails are an
extremely important part of rural Alaska whether winter trails
for access between villages or summer trails for hunting and
fishing, he remarked. Unfortunately, the LRTP generally does
not recognize state-claimed R.S. 2477 trails or rights-of-way.
He opined that the Department of the Interior cannot adopt
regulations regarding R.S. 2477 without the concurrence of
Congress, and CACFA recommends that the Alaska congressional
delegation take steps to amend the 1997 appropriations bill to
allow that a recordable disclaimer of interest process is used
for R.S. 2477. He indicated the DNR's Public Access Assertion
and Defense Unit requires more resources, as it is difficult to
deal with both R.S. 2477 issues and navigability issues. He
believes that the federal agencies have latitude in recognizing
the R.S. 2477, but they refuse to exercise it.
1:36:58 PM
MR. LEAPHART related that access to inholdings is a key
provision in ANILCA that guarantees an inholder the right of
access into a conservation system unit, "and there have mixed
results, mixed successes, with that." He reported that NPS uses
a Right-of-Way Certificate of Access, and it has simplified the
process, but there are still problems. "We think other agencies
should probably utilize the same process, but none have adopted
it" he stated. The Alaska congressional delegation should
strengthen and clarify the guaranteed of right of access [ANILCA
1110(b)] and, he noted, there is a similar provision, ANILCA
1323, dealing with access across BLM and United States Forest
Service (USFS) lands for inholders. He explained that within
the USFS "Roadless Rule," Alaska was exempted for seven years,
and it was then applied in 2008. This has affected the ability
of the USFS to implement the existing Tongass National Forest
Land Use Management Plan. He related that this has resulted in
the creation of "roaded roadless" areas, which are areas with
existing roads that cannot be used to harvest timber, and "we
see that as a real problem." He reiterated that 17(b) easements
cross ANCSA corporation lands to provide access to state or
federal public lands. He said that many of these easements are
simply identified on maps with no "on-the-ground" locations and
there is rare signage. He noted there is a provision that
allows an easement to be vacated, but there is no requirement
that a replacement easement be found. He said money is needed
to locate and identify the trails on the ground. An example is
the Broad Pass area near Cantwell where a number of easements
show on the maps but are not usable by the public, he explained.
He recommends requesting that the Alaska delegation review this
issue and require that vacation of 17(b) easements not be
performed unless an alternative can be provided.
1:40:21 PM
MR. LEAPHART pointed out that ANILCA Title XI is a process put
in place to deal with undeveloped infrastructure in the state.
He describes it as a very lengthy and complicated process that
has been utilized for smaller projects, like the location of
cell towers and communication sites. Another project is the
Ambler Road, which provides access into the Ambler Mining
District, south of the Noatak National Preserve and across the
Gates of the Arctic National Park. It is ongoing and in its
early stages, he explained. He noted the road from King Cove to
Cold Bay, which is not a Title XI issue, but Title XI could be
used to apply for the road; however, it would still require
congressional approval. He said that the Sterling Highway
upgrade has been stymied somewhat by the Title XI process. He
stated, "One of the things we think could help with Title XI,
particularly for what is known as special access, is access to
public lands via snow machine, motor boat, airplane, and for
subsistence purposes that we think the state should fund some
statewide traditional access studies to document where access
exists, what kinds of access, what people utilize the public
lands for, and how they get there." Generally, federal agencies
will not permit the continuation of access, particularly by a
motorize means, unless it is determined to be traditional, he
explained. Under ANILCA, the federal agencies planning
requirements are to conduct access studies, "but, by and large,
they have not done that," and CACFA is encouraging the federal
agencies to move forward with access studies, he remarked.
1:42:54 PM
MR. LEAPHART expressed that fish and wildlife is a big issue.
There are now restrictions on access for subsistence in the
Wrangell-St. Elias National Park and Preserve as part of the
Nabesna District planning effort. It is CACFA's belief that
subsistence should include active management of resources, and
he related that subsistence users and non-subsistence users have
said that dual management of fish and wildlife resources in the
state is causing a lot of problems for people. He said that
CACFA is asking the state and federal agencies, the Board of
Game, the Board of Fisheries, and the Federal Subsistence Board
to see if they can find a way to simplify regulations and the
regulatory process to reduce overlapping regulations, which are
confusing to the public. He submitted that federal agencies
need to work more with the state regulatory process; they
generally comment on state proposals but do not make many
proposals directly to the Board of Game.
MR. LEAPHART noted that CACFA may hold a subsistence summit this
summer as it is CACFA's understanding that under [Sam E.
McDowell and A. Joyce McDowell, Appellants, v. STATE of Alaska,
Appellee, No.S-9101], the state is not inclined to amend the
Alaska State Constitution to comply with Title XIII of ANILCA,
and the Federal Subsistence Board, which has been in existence
for 23 years, is not likely to go away. Perhaps with those
sideboards, he related, there should be middle ground regarding
simplifying subsistence management on state and federal land for
both subsistence and non-subsistence users.
MR. LEAPHART stated that the Endangered Species Act (ESA) is
increasingly used by advocacy groups to restrict or challenge
development proposals, and it affects both public and private
land. He said that amendments should be made to the ESA to
refine the listing process, minimize critical habitat
designations, and establish better triggers for delisting. Of
the 2,000 plus species that have been listed under the ESA, only
about 2 percent have been deemed to be recovered-"so it seems to
be a one-way list in spite of all the efforts that everybody
puts into trying to deal with endangered species." He added
that there is a huge push by states outside of Alaska to deal
with the ESA. For example, the State of Oklahoma filed a
lawsuit against the USFWS due to its use of the "sue and settle"
tactics, wherein groups petition the USFWS to list a species and
if the agency does not act favorably or in a timely fashion, the
group files suit so the agency works out a settlement agreement.
Unfortunately, he said, the discussion does not involve the
states, industry groups, or private land owners, all of which
could be potentially affected by the settlement agreements.
Since 1990, Wildlife Guardians and the Center for Biological
Diversity have filed over 1,000 lawsuits under the ESA, and many
of those have been settled under this "sue and settle" tactic.
MR. LEAPHART turned to the issue of federal preemption of state
fish and wildlife regulations. Recent management regulations
were adopted by the Board of Game, he said, and the NPS is now
undergoing a rule-making process that will preempt the state
regulations and disallow activities authorized under the state
regulatory process. In some instances, the NPS implemented
federal regulations without going through rule-making or holding
the necessary public hearings, he expressed. There have been
high-profile instances where state management proposals have run
afoul of federal policies and management strategies, and he used
the example of the Unimak caribou herd. He recommends that the
DOL consider litigating instances where state regulations are
preempted, and he encouraged federal agencies to work through
the Board of Game and Board of Fisheries process. He mentioned
the "park service compendium process," and said the NPS
preempted state regulations for bear denning, and it expanded
wolf and coyote seasons in some preserve areas. Recently, the
USFWS preempted state regulations on hunting in the Kenai
National Wildlife Refuge, he proffered.
1:50:07 PM
MR. LEAPHART recommended that the Alaska congressional
delegation sponsor legislation clarifying the state's fish and
wildlife management authority with respect to federal areas,
particularly federal conservation system units, recognizing that
the state has constitutional authority to manage resident fish
and game. He suggested that the state could look at cooperative
management efforts with USFWS on private land, which would
primarily be ANCSA Corporations. He speculated that there may
be Alaska State Constitutional restrictions or statutory
restrictions regarding the aforementioned cooperative
management, and CACFA is requesting that the governor, Alaska
State Legislature, and DOL take a look at the issue. There has
been a call for co-management of which CACFA has not taken a
formal position as it would like to ascertain if cooperative
management is feasible.
1:51:31 PM
MR. LEAPHART mentioned the 17(d)(1) withdrawals that were made
in the 1970s. He said, "The reasons for those withdrawals have
long ago passed; they were commitments made in response to the …
Alaska Land Transfer Acceleration Act to lift those (d)(1)
withdrawals," Unfortunately, he related, BLM told Congress it
would like to complete its planning process for BLM lands, and
in conjunction with that planning process, BLM would review the
existing public land orders and make recommendations to the
Secretary of the Interior for which [withdrawals] should be
lifted. He noted that since the BLM commitment was made in
2006-2007, there have been four Resource Management Plans (RMP)
completed by the BLM. He reported that the Bureau of Land
Management made recommendations to lift 19 million acres of
17(d)(1) withdrawals, and yet not a single acre has been
released. "What that means is that those lands are not
available, and in some cases for state selection." He noted the
most prominent example is the Dalton Highway Corridor Management
Area (DHCMA) where there are two townships on either side of the
corridor subject to Public Land Order 5150, and even though the
state has "top filed" on those [lands], BLM cannot convey the
lands until that public land order is lifted. In a recent
letter from the Secretary of the Interior to Governor Parnell,
the secretary indicated that BLM would have to complete its
planning process before it could consider releasing those lands.
Mr. Leaphart said that that planning process just started and is
probably a 4-5 year process. It is CACFA's recommendation to
encourage the Secretary to lift the public land orders as
recommended in BLM's resource management plans.
MR. LEAPHART described the management of the Tongass National
Forest as moving away from the "working forest" concept. He
reiterated that the Roadless Rule has had a major impact on the
ability of the Forest Service to meet its requirements under the
existing plan, and the focus appears to be toward preservation
rather than multiple-use of the forest. He related that Alaska
is currently involved in challenging the Roadless Rule and its
application in Alaska. He informed the committee that Senators
Murkowski and Begich have sponsored legislation exempting Alaska
from the Roadless Rule. Unfortunately the legislation has not
moved far in the current Congress, but he was hopeful there
would be a hearing within the next few months. He said that
state agencies are to be strongly involved with the revision of
the Tongass Land Use Management Plan, "which is supposed to be
occurring." He noted there is a proposal to create a federal
Tongass Advisory Committee chartered by the Secretary of
Agriculture and said CACFA will work closely with it. He
pointed out that the Chugach National Forest is revising its
management plan as well; however, the Chugach does not have, and
has never had, a very extensive timber program, but CACFA is
interested in the revision of the plan. He said there has been
an emergence of federal policies without any notice, with the
most infamous of those is the Wild Lands policy, which was
implemented by Secretary of the Interior Kenneth Salazar in late
2010. John Katz, Alaska's advocate in Washington, D.C., was
advised of the policy approximately two hours prior to the
announcement was made, he remarked. He informed the committee
that there have been policy changes implemented without much
notice or public process on a local level, which include
conducting studies for additional wilderness, national parks,
and Wild and Scenic rivers.
1:56:49 PM
MR. LEAPHART highlighted that [federal] agencies issue draft
management plans with a range, generally, of three to six
alternatives; however, he is beginning to see the agencies adopt
a final plan with an entirely new "hybrid" alternative that was
not proposed in the draft and that the public had not reviewed.
He offered the following examples: the National Petroleum
Reserve Integrated Activity Plan, Denali Park Road Vehicle
Management Plan, and the Nabesna Off-Road Vehicles Management
Plan, where an alternative came out of the blue and took
everyone by surprise. That trend will require a lot more
oversight and monitoring, he opined. Mr. Leaphart identified
serious energy concerns by small rural utilities and small power
plants, as they are subject to the same regulatory requirements
as a large power plant. He explained that most small utilities
operate their generators with diesel, and they find it necessary
to burn extra diesel because they are required to use low sulfur
diesel which has fewer BTUs and costs more than regular diesel.
Furthermore, even though there is less sulfur emitted using low-
sulfur fuel, by burning more diesel, they create a greater
amount of other types of emissions. He opined that the recent
proposal by the Environmental Protection Agency (EPA) with
regard to use of coal for power plants will be problematic in
the years to come for the reopening of the Healy Clean Coal
Project, the upgrade of the University of Fairbanks's power
plant, and any new coal-fired power plant. "It's really going
to be tough to meet the standards if those are adopted as
proposed by the EPA," he noted.
MR. LEAPHART said that there may be an opportunity for the
Alaska delegation to provide some regulatory relief for the
small rural utilities. The cost of providing electricity to
people in the villages is very high, he stated, and anything
that could be done would be a benefit to the villages. He noted
a problem that came up at the CACFA summit was with the National
Petroleum Reserve of Alaska (NPRA). The areas that are
available for leasing in the Integrated Activity Plan are far
away from the pipeline, and they are almost stranded without
infrastructure, pipelines, and roads. Even though there have
been lease sales, the Integrated Activity Plan makes it very
difficult to develop those energy resources, and there may be an
opportunity to correct that problem, he stated. He noted that
BLM told CACFA that its new placer mining policy will likely
require that even a small miner will have to hire a consultant
in order to develop a plan of operations that will pass muster.
In addition, once mining is completed, reclamation will be
required and the cost could be prohibitive, he opined. He
offered that there are approximately 200 mom-and-pop placer
mines operating on BLM lands, and the number of those that will
be lost has not been identified, but he expects it to be a
considerable amount. However, he is working with BLM, which has
put together a placer mining subcommittee to work with the
industry, attempting to develop ways to implement this policy
that will be achievable for the small miner. Within ANILCA,
there is a requirement that federal agencies conduct regular
mineral assessments of all federal lands in Alaska, and this
occurred for about 20 years, "and then it just went away," he
explained, but it had produced a lot of useful information for
the industry about mineral resources in the state.
Unfortunately, the specific budgetary item for the assessments
was deleted and the Alaska congressional delegation is
encouraged to fund the program as a separate line item and
require the agencies to reinstate that program.
CHAIR KELLER said he is impressed with the nice job that CACFA
commissioners are doing.
2:04:21 PM
MR. LEAPHART continued his presentation by reiterating the "No
More" clause. He explained that ANILCA basically says, "we have
created these new parks, these new refuges, designated these new
wilderness areas, and mandated additional studies, [and] we
think the time has come to be done with those." He expressed
that the agencies have followed that idea in the last 25 years,
but recently the USFWS and NPS decided to revisit the entire
wilderness question for the purpose of possibly recommending
additional wilderness acreage in Alaska within parks and
refuges. He informed the committee that BLM, as part of its
planning process, performs Wild and Scenic river studies, which
he believes is a violation of the "No More" clause. Alaska has
been studied extensively for the last 40 years, and "enough is
enough," he expressed.
MR. LEAPHART said there are new areas of concern. Alaska
Senator Cathy Giessel offered a resolution that called into
question whether Beringia should be supported or opposed, and
CACFA testified to not allow the agreement with Russia to move
forward. He said that World Heritage sites have caused problems
in the past. Another concern is Landscape Conservation
Cooperatives, which were put in place by the Secretary of the
Interior to look at climate change. "But they don't just look
at federal lands," he stated, they are conducted by the USFWS
and they look at whole regions and include state and private
lands. It is something that should be watched, he warned. Rapid
Ecoregional Assessments (REAs) conducted by BLM is a similar
program and overlaps with the Landscape Conservation
Cooperatives in some places. He said regional mitigation
strategies are the "same sort of thing." Furthermore, there are
an increasing number of layers of initiatives and programs that
look at essentially the same issues, like climate change, he
noted. He explained that Congress is concerned and asked the
Department of Interior to review its programs and report on the
efforts and results of programs being implemented. There is a
lot of money and effort being spent on them, and Congress is
rightfully concerned, he opined.
MR. LEAPHART proposed that when it is beneficial to the state,
the state should seek out cooperative agency status for various
planning efforts, which is also available to local governments
and tribal entities. The drawback is that the planning process
is very time consuming and labor intensive, and many local
entities do not have the resources. He stated that there are
ways to entice federal agencies to not conduct additional
wilderness reviews with regard to the "No More" clause. He
described the process as the "budget hammer," and he gave the
example that Congress advised BLM to not spend any more money on
implementing the Wild Lands policy and sidetracked the process.
2:09:03 PM
MR. LEAPHART remarked that the provision for local hire in
ANILCA has worked well and offers an exemption to federal
agencies to hire local people with specialized local knowledge
and skills to assist in managing new parks and refuges. It
worked well for 28 years, he noted, and then someone in
Washington DC decided that it was not being handled properly, so
the program was sidetracked-a program that provided hundreds of
jobs every summer for Alaskans, often in areas without other job
opportunities. Working with the Alaska delegation and the
federal land agencies, the practice was "put back on track," but
the delegation should keep a close eye on it, he noted.
MR. LEAPHART noted another recommendation from the overreach
summit, and that is to encourage federal agencies to work with
stakeholder groups to find voluntary solutions to problems. For
example, there have been so much flightseeing over Denali
National Park, the NPS was getting complaints. The Secretary of
the Interior formed a Denali Overflights Committee, which is
strictly voluntary and includes people from various industries,
including air taxi and flightseeing operators, environmental
organizations, the Federal Aviation Administration (FAA), and
the military. By working together, they developed a series of
recommendations and strategies to deal with noise and
flightseeing problems, and, yet, not a single regulation has
been implemented. He encouraged more of those kinds of
voluntary efforts.
MR. LEAPHART said that CACFA has asked that federal agencies
follow up with its commitments to clean up hazardous materials
on conveyed lands. He noted a legislative resolution to that
effect that has been signed by the governor. The summit
concluded that the deteriorating relationship between the state
and the federal government and the public and the federal
government is due to the lack of effective communication. He
said the Alaska Land Use Council, created by ANILCA, was a
pretty effective body, in spite of its problems, because it
brought key players to the table on a regular basis, and it
dealt with planning and regulatory issues-"a lot of good work
came out of that," but it was only set up to run for ten years.
He noted that there is very little institutional knowledge
remaining with the federal agencies because of turnover. New
people come to Alaska on a regular basis to manage these areas,
and they are not particularly familiar with the areas or with
the compromises built into ANILCA, he opined. Another issue is
that the public is absolutely overwhelmed with the amount of
planning activity and the sheer size of the planning documents
that are produced. He said there were close to 20,000 pages of
planning documents in 2012.
2:15:43 PM
CHAIR KELLER referred to the comment that the public is
overwhelmed by the plans and emphasized that one of the roles of
CACFA is to listen to the public. He noted that legislators
often hear from impassioned, angry, and frustrated people that
have some kind of struggle in getting access to their cabin or
to [trails] they are used to traveling on. He pointed out that
Mr. Leaphart and legislators write letters often challenging the
planning documents that come out of the agencies, and sometimes
the agency responds and will talk with legislators, which is
good; they interact and sometimes there are concessions and
sometimes not. He noted that many of the federal agencies are
responsive, and some, like the EPA, do not [participate].
2:17:20 PM
MR. LEAPHART, with regard to education, remarked that CACFA is
encouraging the Governor's Office and state agencies to develop
educational programs regarding ANILCA, ANCSA, and the Statehood
Compact to put into high schools and universities. He referred
to the Summary Section of his PowerPoint presentation and
described a map depicting federal lands in Alaska. He explained
that it depicts the total amount of Alaskan acreage managed by
federal land management agencies and federally designated
wilderness acreage by agency. He spoke of the high percentage
of federal lands and wilderness in the State of Alaska, and he
summarized the issues he spoke of. He said CACFA issues a
monthly email newsletter to approximately 1,000 people,
including legislative offices, to advise of the various federal
agency activities for planning and regulations-we try to keep
the public advised. At the same time, the public is not always
afforded an optimal opportunity to participate, which has been a
problem since ANILCA passed, and CACFA continually works on that
issue, he related. He advised the committee that the issues and
recommendations contained within CACFA's PowerPoint presentation
should be considered seriously, in spite of any difficulties.
He said that ANILCA said "no more" and CACFA says "no more." He
gave credit to Susan Smith, commission member, for the
PowerPoint presentation.
2:21:45 PM
CHAIR KELLER noted that the Alaska House of Representatives has
already passed the extension on the sunset [clause] for CACFA.
He said he is grateful for the DOL.
2:22:35 PM
HB 366-INVOLUNTARY COMMITMENT
CHAIR KELLER announced that the next order of business would be
HB 366, "An Act relating to reporting an involuntary mental
health commitment to the National Instant Criminal Background
Check System; and relating to relief from disabilities of a
record of involuntary commitment and an adjudication of mental
illness or mental incompetence."
2:22:41 PM
The committee took a brief at-ease.
2:24:00 PM
CHAIR KELLER said the committee will not move the bill as he
wants to make sure "all of the dust is cleaned off it."
REPRESENTATIVE MAX GRUENBERG moved that the committee rescind
its action in passing CSHB 366(STA) out of committee on March
17, 2014.
CHAIR KELLER objected.
2:24:17 PM
REPRESENTATIVE LANCE PRUITT explained that [Amendment 1] deletes
the Department of Health and Social Services (DHSS) as it does
not maintain the subject records, so it is unnecessary to have
the department in the bill.
CHAIR KELLER removed his objection. There being no further
objection, CSHB 366(STA) was again before the committee.
2:25:13 PM
REPRESENTATIVE PRUITT moved to adopt Amendment 1, labeled 28-
LS1172\P.1, Strasbaugh, 3/12/14, which reads:
Page 4, lines 27 - 28:
Delete "and the Department of Health and Social
Services"
CHAIR KELLER objected.
REPRESENTATIVE PRUITT verified that Amendment 1 deletes the
Department of Health & Social Services from HB 366.
CHAIR KELLER announced there being no objection, Amendment 1 was
adopted. [The previous objection was treated as withdrawn.]
CHAIR KELLER announced that HB 366(STA) would be held over.
2:26:09 PM
REPRESENTATIVE PRUITT responded to Representative Gruenberg that
he would be working on two of [CSHB 366] fiscal notes for
Friday's meeting.
HB 127-OMBUDSMAN
2:26:30 PM
CHAIR KELLER announced that the final order of business would be
HB 127, "An Act clarifying that the Alaska Bar Association is an
agency for purposes of investigations by the ombudsman; relating
to compensation of the ombudsman and to employment of staff by
the ombudsman under personal service contracts; providing that
certain records of communications between the ombudsman and an
agency are not public records; relating to disclosure by an
agency to the ombudsman of communications subject to attorney-
client and attorney work-product privileges; relating to
informal and formal reports of opinions and recommendations
issued by the ombudsman; relating to the privilege of the
ombudsman not to testify and creating a privilege under which
the ombudsman is not required to disclose certain documents;
relating to procedures for procurement by the ombudsman;
relating to the definition of 'agency' for purposes of the
Ombudsman Act and providing jurisdiction of the ombudsman over
persons providing certain services to the state by contract; and
amending Rules 501 and 503, Alaska Rules of Evidence." [Before
the committee was CSHB 127(STA).]
2:26:39 PM
CHAIR KELLER explained that the Ombudsman's Office is in the
legislature, and HB 127 is a bill "about who we are." Within HB
127 were points of tension, "so we, basically, went back and
took out the parts that we feel are controversial." He advised
that the committee substitute is "streamlined" and has a chance
of passing through the House and Senate before the end of this
session. He remarked that during the interim the Ombudsman's
Office will be reviewed on a deeper level.
2:27:52 PM
The committee took a brief at-ease.
REPRESENTATIVE PRUITT said the committee is working on the E
Version from the State Affairs [Standing Committee], and "we did
amend it with Amendment 1 on Monday, and Amendment 2 was
withdrawn."
2:32:22 PM
JIM POUND, Staff, Representative Wes Keller, Alaska State
Legislature, stated that "we are proposing to clean up this
language so that the best parts of the bill can be advanced."
Therefore, the proposed committee substitute deletes Sections 3-
5, on page 2 of the bill, which refers to the association with
the Administrative Regulation Review Committee. It also deletes
Sections 10, 11, and 13.
2:34:42 PM
REPRESENTATIVE PRUITT clarified for the committee that this
substitute is Version D.
REPRESENTATIVE GRUENBERG asked about Version E1, which the
committee had adopted.
REPRESENTATIVE PRUITT explained that because Sections 3-5 are
deleted, Amendment 1 from the prior meeting is eliminated.
2:36:24 PM
The committee took a brief at ease.
2:36:38 PM
REPRESENTATIVE PRUITT moved to adopt CS for HB 127, labeled 28-
LS0088\D, Gardner, 3/19/14 as the working document.
REPRESENTATIVE GRUENBERG objected. He noted that there were
several agency representatives present who have been very
patient and who, he believes, did not want to be included in the
bill. He requested that they be given an opportunity to state
whether or not they have an objection to being excluded from
CSHB 127.
2:37:51 PM
BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman,
responded that the proposed committee substitute is not
necessarily the Ombudsman's first choice, but it "gets the core
of the bill handled," and so the office has no objections at
this time.
2:38:39 PM
REPRESENTATIVE BOB LYNN questioned if there should be a separate
bill in the future "to put some of this stuff back in."
2:39:04 PM
MS. LEIBOWITZ responded that currently the Ombudsman's Office
does not now have a plan to submit legislation; that would be a
future policy decision on the part of the Ombudsman.
2:39:19 PM
REPRESENTATIVE LYNN requested that the Ombudsman's Office advise
the committee if the Ombudsman intends to request legislation or
if "we should do that, so we can speed this bill along as it
is."
2:39:30 PM
MS. LEIBOWITZ related that assuming the "streamlined" version of
HB 127 [becomes law] the Ombudsman's Office could then discuss
the possibility of having additional legislation.
2:39:56 PM
REPRESENTATIVE GRUENBERG questioned the purpose of deleting the
word "state" in Section 3.
2:40:44 PM
MS. LEIBOWITZ offered that in almost every provision of the
Ombudsman Act, the Ombudsman's authority and jurisdiction is
discussed in terms of what the Ombudsman shall do with an
agency, and then agency is defined. AS 24.55.160(a)(4) is the
only provision referring to a state agency versus simply an
agency, and she noted this is a non-issue as long the Ombudsman
deals only with state departments. The Ombudsman has
jurisdiction over municipalities and school boards if they opt
into the Ombudsman's jurisdiction, "so, having a reference to
'state' agency where everywhere else in the statute refers to
the ombudsman's ability to investigate agencies creates an
inconsistence for us," she explained.
2:41:48 PM
REPRESENTATIVE GRUENBERG stated he supports the inclusion of
Section 3, eliminating the word "state."
2:42:17 PM
KATE BUCKHARDT, Executive Director, Alaska Mental Health Board,
Department of Health & Social Services, stated that the Alaska
Mental Health Board is now in a position to support the proposed
committee substitute for HB 127 because the revised definition
of "agency" is removed. She thanked the committee.
2:43:00 PM
SHERRIE DAIGLE, Deputy Director, Central Office, Division of
Administrative Services, Department of Corrections (DOC), stated
that the Department of Corrections does not object to removing
Sections 10-11 and supports the House Judiciary Standing
Committee's decision 100 percent.
2:44:03 PM
JEFF JESSEE, Chief Executive Officer, Alaska Mental Health Trust
Authority, Department of Revenue, questioned the ability of the
Ombudsman to obtain confidential records that are confidential
under federal law. He noted that when HB 127 was heard in the
House State Affairs Standing Committee he was concerned about a
possible interpretation by the Ombudsman regarding Section 3 [AS
24.55.160(a)(4)], lines 9 and 13, page 2. "Notwithstanding
other provisions of law" may be being interpreted as including
federal law and not just state law, and that needs to be
clarified. He said he reviewed the National Ombudsman
Association's web site and its model legislation for state
ombudsmen around the country, and he noticed a significant
difference between that language, the language in HB 127, and in
the current statute. Within the national model statute this
item would read "notwithstanding other provisions of state law"
and not just "law" in general, he noted. [Alaska's current
statute refers] to records of every state agency including
confidential records, whereas the model statute reads "including
records made confidential by state law," he submitted. He noted
that this statute does not allow the Ombudsman to supersede
HIPPA or 42 CFR, which are the primary federal laws regarding
confidentiality. Moreover, even if the current interpretation
of the Ombudsman is that it cannot get access to federally
protected records, it is important to modify Section [3] to make
that absolutely clear, he offered.
MR. JESSEE added that the Ombudsman's reports are prepared on a
calendar year basis, and he suggested a fiscal year basis. He
offered that the real value of the Ombudsman's Office is its
ability to take individual cases and discern systemic problems
that the legislature may want to address. [The fiscal year]
will allow the legislature, in advance of the legislative
session, to review whether the Ombudsman's Office had identified
issues the legislature may want to take action on, he remarked.
For example, the Ombudsman web site offers the calendar year
2012 report but not calendar year 2013 report, which would be
most relevant to the legislature, he opined. He pointed to the
procurement provision, Section 6, page 3, lines 9-10, and stated
that although the legislature is attempting to mirror the
legislative council's procurement language, "I would suggest
that you think thoughtfully about whether the Ombudsman needs
this authority over construction." It is his understanding that
construction is not part of the Ombudsman's core mission.
2:49:33 PM
LINDA LORD-JENKINS, State of Alaska Ombudsman, explained that
the calendar year basis was adopted in 2000, which is consistent
with the case load management system and it was not her policy
decision. With regard to access to the calendar year 2013
annual report, the report will come out this year, and it has
been her practice to personally deliver the annual report to all
of the legislators early in the legislative session, she stated.
She said personal considerations have kept her from doing that
this year. When she returns to Alaska she will finish the
annual report and deliver it to the legislature, she explained.
She acknowledged that Mr. Jessie is correct as the Ombudsman has
no interest in handling construction matters, but it does have
occasional procurement issues and this is its way of addressing
those matters.
2:53:50 PM
REPRESENTATIVE GRUENBERG suggested working with Ms. Lord-
Jenkins, Mr. Jessee, Mr. Pound, and other interested parties to
"come up with something." He removed his objection.
2:53:58 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:53 p.m.