Legislature(1993 - 1994)

02/11/1993 05:00 PM House O&G

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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              HOUSE SPECIAL COMMITTEE ON OIL & GAS                             
                        February 11, 1993                                      
                            5:00 p.m.                                          
                                                                               
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
  Representative Joe Green, Chairman                                           
  Representative Pete Kott, Vice Chairman                                      
  Representative Harley Olberg                                                 
  Representative Gary Davis                                                    
  Representative Jerry Mackie                                                  
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
  Representative Jerry Sanders                                                 
  Representative Joe Sitton                                                    
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
  Overview from Legal Department                                               
                                                                               
  WITNESS REGISTER                                                             
                                                                               
  James Baldwin, Assistant Attorney General                                    
  General Civil Section                                                        
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, Alaska  99811-0300                                                   
  465-3600                                                                     
  POSITION STATEMENT: Gave an overview of the Department                       
                                                                               
  Charles E. Cole, Attorney General                                            
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, Alaska  99811-0300                                                   
  465-3600                                                                     
  POSITION STATEMENT: Provided information about the                           
                      Department                                               
                                                                               
  Bruce Botelho, Deputy Attorney General                                       
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, Alaska  99811-0300                                                   
  465-3600                                                                     
  POSITION STATEMENT: Discussed tax categories                                 
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  Tape 93-5, Side A                                                            
  Number 000                                                                   
                                                                               
  CHAIRMAN JOE GREEN  called the House Special Committee on                    
  Oil and Gas to order at 5:06 p.m.  Members present at the                    
  call to order were Representatives Green, Kott, Olberg,                      
  Davis, and Mackie.  He welcomed everyone to the meeting and                  
  noted the meeting was being teleconferenced.  He commented                   
  that James Baldwin from the Department of Law was present to                 
  give an overview.                                                            
                                                                               
  JAMES BALDWIN, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF                     
  LAW, introduced Attorney General Charles E. Cole who gave a                  
  brief overview of the Department.                                            
                                                                               
  CHARLES E. COLE, ATTORNEY GENERAL, stated when Governor                      
  Hickel first came to Juneau the relationship between the                     
  Department of Revenue (DOR) and the Department of Law (the                   
  Department) was not what the Governor had in mind.  He went                  
  on to explain that he and Commissioner Rexwinkel of the DOR                  
  addressed that issue and made good changes.  He spoke about                  
  the royalty litigation, which went on for a number of years                  
  and was largely resolved.  Through this, the Department had                  
  developed massive information about oil transactions which,                  
  he stated, was responsible for more than $600 million.  He                   
  said that out-of-state lawyers were retained for different                   
  cases who brought different views for some major issues.                     
                                                                               
  MR. COLE advised that the Department took a very close look                  
  at those cases and then met with the taxpayer.  Before any                   
  negotiations were entered into they arrived at a figure by                   
  unanimity and if everyone on the settlement team did not                     
  agree then they went back and worked on the problem again                    
  until everyone agreed.  These meetings were held                             
  professionally, courteously, and in good faith, and                          
  oftentimes were requested by the taxpayer, he said, and                      
  believed it was very important, at the conclusion of                         
  negotiations, that all parties could sit down and laugh and                  
  talk.                                                                        
                                                                               
  Number 256                                                                   
                                                                               
  CHAIRMAN JOE GREEN asked if a final agreement was also a                     
  unanimity requirement within the Department.                                 
                                                                               
  Number 269                                                                   
                                                                               
  MR. COLE said unanimity prevailed throughout the entire                      
  process, right down to the final signatures.                                 
                                                                               
  Number 280                                                                   
                                                                               
  CHAIRMAN GREEN inquired into the process by which settlement                 
  was reached.                                                                 
                                                                               
  Number 294                                                                   
                                                                               
  MR. COLE responded,"Its magic.  It is an art form.  After 40                 
  years of doing this you get an idea of what works and what                   
  doesn't.  We talk, debate the issues, and are very well                      
  prepared."                                                                   
                                                                               
  Number 319                                                                   
                                                                               
  CHAIRMAN GREEN asked why the Department went to outside                      
  counsel.                                                                     
                                                                               
  Number 330                                                                   
                                                                               
  MR. COLE stated attorney fees were not a large factor in                     
  using outside counsel.                                                       
                                                                               
  Number 332                                                                   
                                                                               
  CHAIRMAN GREEN asked, "It was not like a one-third percent                   
  or anything like that?"                                                      
                                                                               
  Number 334                                                                   
                                                                               
  MR. COLE replied in the negative.  He stated there were some                 
  exotic issues in one case, and outside counsel had been                      
  obtained to test their evaluation of the issues, for                         
  assurance that the state's analysis was correct and they                     
  were on the right track.  He stated $300,000 was an accurate                 
  figure for the cost of outside counsel in that case.                         
                                                                               
  Number 364                                                                   
                                                                               
  REPRESENTATIVE HARLEY OLBERG asked if the $300,000 was in                    
  addition to the amortization of the $50 million.                             
                                                                               
  Number 365                                                                   
                                                                               
  MR. COLE thought that had been recovered in the royalty                      
  cases.                                                                       
                                                                               
  Number 382                                                                   
                                                                               
  CHAIRMAN GREEN asked if there was a possibility they might                   
  be establishing a precedent in subsequent years.                             
                                                                               
  Number 392                                                                   
                                                                               
  MR. COLE replied in the negative, because each case was                      
  different.  The sense he got from speaking with the                          
  taxpayers was that they wanted to address the issues.                        
                                                                               
  Number 403                                                                   
                                                                               
  REPRESENTATIVE OLBERG stated he read in BP's press release                   
  that the settlement amount would not have a significant                      
  effect on their year-end results because they had already                    
  accounted for it.  He inquired whether BP had prepared for                   
  this type of a result.                                                       
                                                                               
  Number 408                                                                   
                                                                               
  MR. COLE said it was BP's contention that it would not make                  
  a material difference in their tax statement, although they                  
  did not say how much had been reserved for settlement.  He                   
  then asked to be excused.                                                    
                                                                               
  Number 415                                                                   
                                                                               
  CHAIRMAN GREEN introduced James Baldwin and Bruce Botelho.                   
                                                                               
  Number 421                                                                   
                                                                               
  MR BALDWIN gave a brief overview of the operations of the                    
  Department.  He explained the BP settlement was an income                    
  tax case that involved questions of law, which could be                      
  handled in a cost effective manner.  For the upcoming fiscal                 
  year he stated the Department would spend approximately $25                  
  million to finance various areas of litigation, of which                     
  approximately $18-19 million would be used to finance the                    
  cost of outside counsel and experts.                                         
                                                                               
  MR. BALDWIN explained further the types of litigation being                  
  handled were oil and gas tax, that being the severance or                    
  production tax.  In this area there were approximately $1                    
  billion in outstanding appeals.                                              
                                                                               
  Number 472                                                                   
                                                                               
  CHAIRMAN GREEN asked if the $1 billion included the recent                   
  settlement.                                                                  
                                                                               
  MR. BALDWIN reiterated the $1 billion was pending appeals.                   
  He advised of the category known as "income and excise                       
  cases," which covered the recent BP case.  He clarified the                  
  $1 billion was for oil and gas severance, which was a                        
  different kind of tax.  He added there was another category                  
  of cases known as "royalty cases."                                           
                                                                               
  Number 480                                                                   
                                                                               
  BRUCE BOTELHO, DEPUTY ATTORNEY GENERAL, stated another                       
  category was separate accounting, which encompassed the tax                  
  years 1978 through 1981, and would also be in the $1 billion                 
  plus range.  Three tax categories included the production or                 
  severance tax, a separate accounting income tax, and the                     
  worldwide combination that went by a number of names, which                  
  was the issue in the recent BP settlement, he disclosed.                     
                                                                               
  Number 487                                                                   
                                                                               
  CHAIRMAN GREEN asked what separate accounting was and how it                 
  varied.                                                                      
                                                                               
  Number 495                                                                   
                                                                               
  MR. BALDWIN said he would be glad to speak with any of the                   
  committee members individually.                                              
                                                                               
  Number 500                                                                   
                                                                               
  MR. BOTELHO explained that separate accounting attempted to                  
  put a fence around the state of Alaska, in that it was an                    
  income generated solely and separately accounted for                         
  activities of an oil and gas corporation in the state as                     
  opposed to how income might be assessed looking at a                         
  worldwide operation, which was really the worldwide                          
  combination.  It was a constitutional challenge to the                       
  accounting income tax brought by the entire industry.  The                   
  Legislature was concerned about the constitutionality and                    
  that the state would have to refund the billions that were                   
  being generated by separate accounting.  This led to                         
  enactment of special legislation for the oil and gas                         
  industry, the worldwide combination approach, which was what                 
  the state relied on in addition to the severance tax, for                    
  its income, he concluded.                                                    
                                                                               
  MR. BOTELHO noted Greg Erickson was in the audience.                         
                                                                               
  Number 519                                                                   
                                                                               
  MR. BALDWIN explained what Attorney General Cole stated                      
  about the major settlement of the royalty-in-value part of                   
  the case was not quite correct.  This was known as the                       
  Amerada Hess Case, which had been going on since the 1970's,                 
  he said.  In November, 1991, there was a major settlement in                 
  the amount of $633 million, which provided a methodology for                 
  fixing the value of the state's royalty oil.  That                           
  settlement included everything that happened from 1977 to                    
  sometime in 1992, he added.                                                  
                                                                               
  MR. BALDWIN alleged the settlement had the effect of setting                 
  the price of the state's royalty oil into the future and,                    
  therefore, had monumental significance in terms of the                       
  state's revenue picture.  What remains to be litigated was                   
  how much the state should pay producers for cleaning and                     
  conditioning natural gas liquids produced as part of the oil                 
  flow of the North Slope fields, he disclosed.                                
                                                                               
  MR. BALDWIN advised that another aspect of royalty cases was                 
  the royalty-in-kind disputes, which concerned the state's                    
  entitlement to a retroactive price adjustment on existing                    
  royalty oil contracts.  These contracts carried clauses that                 
  tied the value of the oil to the outcome of the Amerada Hess                 
  value settlement.  The total value of those settlements was                  
  approximately $300 million, he noted.                                        
                                                                               
  MR. BALDWIN disclosed settlements had recently been                          
  concluded with Petro Star for approximately $2 million, and                  
  Tesoro for approximately $94 million.  The state was                         
  currently in litigation with Chevron and multiple litigation                 
  with MAPCO, he added.                                                        
                                                                               
  Number 575                                                                   
                                                                               
  MR. BOTELHO interjected that the state by royalty and                        
  statute was entitled to one-eighth of everything that came                   
  out of the ground either in-value or in-kind.                                
                                                                               
  Number 611                                                                   
                                                                               
  MR. BALDWIN said there were potential claims of $327                         
  million, of which approximately $99 million had been                         
  resolved and $47 million had been paid under protest.  This                  
  left a balance of $181 million in outstanding claims against                 
  royalty-in-kind purchasers.  He said his department planned                  
  to spend approximately $6 million pursuing those claims and                  
  that he did not see an inexpensive way out of this type of                   
  litigation.                                                                  
                                                                               
  Number 619                                                                   
                                                                               
  CHAIRMAN GREEN understood that at times the state would be                   
  suing a company and also be a partner with that company in                   
  another lawsuit against a different company.                                 
                                                                               
  Number 624                                                                   
                                                                               
  MR. BALDWIN said, "It is a lawyer's dream and a taxpayer's                   
  nightmare."  He went into the Tesoro settlement and stated                   
  that they structured settlement so Tesoro could continue                     
  operating.  One of the ways this was done was to take over                   
  their rights to claim against another purchaser of the oil,                  
  he explained.                                                                
                                                                               
  Tape 93-5, Side B                                                            
  Number 000                                                                   
                                                                               
  MR. BALDWIN spoke about the Federal Energy Regulatory                        
  Commission.  He explained that as a seller of oil the state                  
  must be watchful of the pipeline's tariffs.  This activity                   
  was undertaken in Washington D.C., and attorneys from                        
  Washington, D.C. were hired and interfaced with attorneys in                 
  the state.  The value of oil was determined by netting-out,                  
  among other things, the price of transporting that oil in                    
  order to get maximum dollars into the state treasury, he                     
  disclosed.                                                                   
                                                                               
  MR. BALDWIN noted that Endicott Pipeline had been settled                    
  recently.  In that instance, a tariff had been instituted                    
  some years ago, the state protested, and settled with the                    
  carrier at a lower rate.  Because of this, the state was now                 
  entitled to additional tax and royalty.  "We basically                       
  watchdog the carriers and their filings," he said.                           
                                                                               
  MR. BALDWIN spoke on the Trans Alaska Pipeline Service                       
  (TAPS) settlement and stated that when it was entered into                   
  years ago it was worth an initial payment of $250 million in                 
  refunds.  He directed members to his handout, and stated                     
  that continued monitoring of filings occurred.  Through that                 
  monitoring activity, the upcoming effect of the new filing                   
  had been recently reported to the legislature, he said.  The                 
  total for the calendar year would be an approximate $80                      
  million increase in revenues because of a change in the                      
  tariff structure, he added.                                                  
                                                                               
  Number 105                                                                   
                                                                               
  MR. BOTELHO talked about corrosion on the pipeline and noted                 
  that prudent costs were not imposed or included as part of                   
  the tariff rate base.  He pointed out the lawyers had first                  
  determined the corrosion problem and continued to work with                  
  the TAPS owners, as well as Aleyska Pipeline Service Company                 
  cooperatively, to ensure a pipeline corrosion correction                     
  plan was in place.                                                           
                                                                               
  Number 131                                                                   
                                                                               
  MR. BALDWIN stated that in the upcoming fiscal year they                     
  would spend $1.5 to $2 million on monitoring activities.  A                  
  major part of this was hiring an expert to do a corrosion                    
  monitoring program as part of the alternate dispute                          
  resolution process currently engaged in with the pipeline                    
  carrier.  He talked about oil and gas litigation, including                  
  entitlement to land underlying the Beaufort Sea.  This case                  
  had significant revenue implications for the state, however,                 
  the extent of potential to be realized from it was unclear,                  
  he noted.                                                                    
                                                                               
  MR. BALDWIN advised the state was engaged in litigation, and                 
  had been for quite some, time with a well financed and                       
  serious adversary in the form of the federal government.                     
  There was an escrow fund, which would be a potential source                  
  of recovery for the state, of over $1 billion.  A Special                    
  Master's decision was forthcoming, and everyone expected the                 
  case to go to the U.S. Supreme Court, he alleged, with an                    
  expected cost of approximately $500,000 for the next fiscal                  
  year.  Litigation was also pending out of the district                       
  attorney's Anchorage office, dealing with the oil export                     
  ban, he added, and pointed out that case had both in-house                   
  and outside counsel.                                                         
                                                                               
  Number 200                                                                   
                                                                               
  CHAIRMAN GREEN asked if there was an act in legislation that                 
  would help.                                                                  
                                                                               
  MR. BALDWIN advised that the Congressional Delegation had                    
  historically attempted to have the ban lifted.  There was                    
  hope in the Bush Administration that an executive order                      
  might have been issued that would arguably give some                         
  authorization for export of crude oil itself.  The                           
  Department of Law's efforts were aimed solely at challenging                 
  the underlying authority of the executive branch of the                      
  federal government to impose the ban, he said.  "We have one                 
  claim in the US Court of Claims in Washington D.C., but we                   
  do not feel we have a very good chance of pursuing it                        
  there," he added.                                                            
                                                                               
  Number 234                                                                   
                                                                               
  CHAIRMAN GREEN inquired into the length of the Department's                  
  presentation.                                                                
                                                                               
  Number 241                                                                   
                                                                               
  MR. BALDWIN directed the committee to the handout, which                     
  related to the Department's budget.                                          
                                                                               
  Number 268                                                                   
                                                                               
  CHAIRMAN GREEN commented that the handout was impressive.                    
  He stated that many of the committee members were new to the                 
  process and would come to Mr. Baldwin with questions.                        
                                                                               
  Number 283                                                                   
                                                                               
  MR. BOTELHO stated at times outside counsel were brought in                  
  to explain specific cases and, if the committee desired,                     
  they could also address the committee.                                       
                                                                               
  ADJOURNMENT                                                                  
                                                                               
  Number 310                                                                   
                                                                               
  CHAIRMAN GREEN stated for the record that Jeff Logan and a                   
  representative from Exxon were at the legislative                            
  information office in Anchorage.  He thanked everyone for                    
  coming, and adjourned the meeting at 6:07 p.m.                               

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