Legislature(1993 - 1994)
03/22/1993 08:00 AM House RES
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
March 22, 1993
8:00 a.m.
MEMBERS PRESENT
Representative Bill Williams, Chairman
Representative Bill Hudson, Vice Chairman
Representative Con Bunde
Representative Pat Carney
Representative John Davies
Representative Joe Green
Representative Jeannette James
Representative Eldon Mulder
Representative David Finkelstein
MEMBERS ABSENT
None
OTHER LEGISLATORS PRESENT
Representative Pete Kott
COMMITTEE CALENDAR
*HB 213 "An Act prohibiting the commissioner of natural
resources from classifying state land, water, or
land and water so that mining, mineral entry and
location, mineral prospecting, and mineral leasing
are precluded or are designated an incompatible
use without an act of the legislature if the area
involved contains more than 640 acres except in
certain situations; and providing for an effective
date."
HEARD AND HELD IN COMMITTEE FOR FURTHER
CONSIDERATION
(* first public hearing)
WITNESS REGISTER
Representative Pete Kott
Alaska House of Representatives
State Capitol
Juneau, Alaska 99801-1182
Phone: 465-3777
Position Statement: Prime sponsor, HB 213
Raga Elim
Special Assistant to the Commissioner
Department of Natural Resources
400 Willoughby Ave.
Juneau, Alaska 99801-1724
Phone: 465-2400
Position Statement: Testified in support of HB 213 on behalf
of administration
McKie Campbell
Deputy Commissioner
Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Phone: 465-4100
Position Statement: Testified in support of HB 213 and
amendments
Dennis DeBolt
Alaska Miners Association
One Sealaska Plaza
Juneau, Alaska 99801
Phone: 586-1512
Position Statement: Testified in support of HB 213
Phil Holsworth
Mining Engineer
326 4th Street, #1200
Juneau, Alaska 99801
Phone: 586-1383
Position Statement: Testified in support of HB 213
Jack Phelps
Legislative Aide to
Representative Pete Kott
State Capitol
Juneau, Alaska 99801-1182
Phone: 465-3777
Position Statement: Responded to questions on HB 213
PREVIOUS ACTION
BILL: HB 213
SHORT TITLE: LIMIT ADMINISTRATIVE LAND CLOSURES
BILL VERSION:
SPONSOR(S): REPRESENTATIVE(S) KOTT,Phillips,Green,Brice,
Mulder,Toohey
TITLE: "An Act prohibiting the commissioner of natural
resources from classifying state land, water, or land and
water so that mining, mineral entry and location, mineral
prospecting, and mineral leasing are precluded or are
designated an incompatible use without an act of the
legislature if the area involved contains more than 640
acres except in certain situations; and providing for an
effective date."
JRN-DATE JRN-PG ACTION
03/10/93 590 (H) READ THE FIRST TIME/REFERRAL(S)
03/10/93 591 (H) RESOURCES, FINANCE
03/10/93 596 (H) COSPONSOR(S): BRICE, MULDER,
TOOHEY
03/22/93 (H) RES AT 08:00 AM CAPITOL 124
ACTION NARRATIVE
TAPE 93-33, SIDE A
Number 000
The House Resources Committee was called to order by
Chairman Bill Williams at 8:12 a.m. Members present at the
call to order were Representatives Williams, Hudson, Bunde,
Davies, Green, James, and Mulder. Absent at the call to
order were Representatives Carney and Finkelstein.
CHAIRMAN BILL WILLIAMS announced the agenda for the meeting
would be to consider HB 213.
HB 213: LIMIT ADMINISTRATIVE LAND CLOSURES
Number 045
REPRESENTATIVE PETE KOTT, PRIME SPONSOR OF HB 213, explained
that the bill was introduced to implement one of the
recommendations of the Alaska Minerals Commission as set out
in the commission's 1993 report to the legislature. Under
current law, he said, a mineral closure order (MCO) may be
executed by the commissioner of the Department of Natural
Resources (DNR) for one of five reasons. Those included
land disposals or land exchanges, public recreation and
wildlife habitat use, resource development, transportation
corridor development, and the reserve use category.
REPRESENTATIVE KOTT referred to Title 38, which currently
requires legislative action to close lands larger than 640
acres for multi-purpose use. By designating mineral
exploration and development an incompatible use, MCO's have
been used to keep mining out. He provided the committee
with an historical perspective, and said that at the time of
statehood, some lands were selected because of the rich
mineral development opportunities, and he said some of those
lands are now affected by closures.
Number 089
REPRESENTATIVE KOTT explained that in the past nine years
there have been more than 1.75 million acres placed off-
limits to mineral exploration and development for public
recreation and wildlife habitat purposes. He noted that
this was more than three times the amount of lands Alaska
had transferred into private hands since statehood.
REPRESENTATIVE KOTT stated his opinion that mineral
exploration and development can be compatible with wildlife
habitat and human recreational use. There is strong
evidence, he said, that mining could take place on many of
the lands closed by MCO's with insignificant consequences to
wildlife habitat. He referred to the "footprint" necessary
for mineral location and mineral extraction as very small,
leaving most of the area unaffected. House Bill 213, he
said, would only affect MCO's on large parcels of land, and
the discretion of the commissioner would still prevail on
parcels smaller than 640 acres.
REPRESENTATIVE KOTT noted that there would be cases where
large acreages should be closed, but because those decisions
have a major statewide economic impact, it would be more
appropriate for those decisions to be made after public
discussion.
Number 117
REPRESENTATIVE KOTT noted further that 46% of all MCO's
currently in effect were issued for reasons of land
disposal, and that category, he said, is specifically exempt
from the provisions of HB 213. Also exempt, he explained,
are MCO's issued to establish utility and transportation
corridors or other infrastructure projects. The
commissioner's authority to apply sound land management
principles in the administration of state lands, he said,
will not be significantly encumbered by this bill. The bill
would help the legislature to fulfill its mandate to provide
for use of resources for the maximum benefit of Alaskans, as
provided in Article VIII, Section 2 of the Alaska
Constitution, he added.
Number 142
REPRESENTATIVE KOTT referred to a recent economic mini-
summit sponsored by a joint House and Senate economic task
force, which he said supported the proposal in HB 213. He
directed members' attention to a summary of that summit, and
specifically to recommendations number 2 and 5 on page 7;
number 5 on page 37; and on page 35 he read recommendation
number 4. (A copy of the summary may be found in the House
Resources Committee Room, Capitol Room 124 , and after the
adjournment of the second session of the 18th Alaska State
Legislature, in the Legislative Reference Library.)
REPRESENTATIVE KOTT then referred to comments by Glen Olds,
the DNR's commissioner, which stated that the department
was willing to work with the legislature to revisit Title 38
and other regulatory requirements which had become expensive
to implement and excessive in creating barriers which affect
the development of Alaska's natural resources.
Number 200
CHAIRMAN WILLIAMS noted for the record that Representatives
Carney and Finkelstein had joined the meeting.
REPRESENTATIVE JOE GREEN referred to proposed amendments
prepared by the DNR, and asked Representative Kott if he
would speak to them. (A copy of the proposed amendments may
be found in the House Resources Committee Room, Capitol
Rooom 124, and after the adjournment of the second session
of the 18th Alaska State Legislature, in the Legislative
Reference Library.)
Number 211
REPRESENTATIVE KOTT addressed the amendments, and explained
that in his view, the amendment which adds "contiguous" on
page 1, lines 5 and 13 of HB 213, was not necessary. He
felt the existing statute worked fine without that. He
discussed hypothetical situations involving 640-acre
sections of land, in particular those that might be
separated by a natural division of land, such as a stream or
river, and the ramifications of inserting the word
contiguous. He believed HB 213, as written, was sufficient
in its definition.
Number 242
CHAIRMAN WILLIAMS commented on the situation of a water
barrier between two parcels or sections of land, and said he
believed that in such cases, the lands were considered
contiguous.
REPRESENTATIVE KOTT agreed that the lands in those cases are
presumed to be contiguous.
Number 252
REPRESENTATIVE CON BUNDE referred to the amendment proposed
to add "contiguous" and speculated on potential problems
that might arise if it was not added to HB 213, such as
miscellaneous small parcels around the state, not contiguous
to each other, being combined until the 640 acre limit is
met. He suggested that without specifying the lands must be
contiguous, the bill could be interpreted to allow this.
Number 266
REPRESENTATIVE KOTT addressed the other amendment proposed
by the DNR, which called for a 60-day deadline for the
legislature to review and disapprove of closures, which
would be submitted in the form of executive orders.
Representative Kott did not support the amendment,
explaining that the legislature should be proactive rather
than reactive. Once a parcel is closed, he said, it is more
difficult to open it back up.
Number 275
VICE CHAIRMAN BILL HUDSON remarked that the second portion
of the amendment would be necessary if the first portion of
the amendment was adopted. The process, he said, requires
that "if the classification is necessary for land disposal
or development of a utility or transportation corridor or
other projects," then "each of the mineral closing orders
issued during the preceding calendar year will be submitted
to the legislature in the form of an executive order" which
he called the legislature's method of checks and balances on
the administration.
Number 301
RAGA ELIM, SPECIAL ASSISTANT TO THE COMMISSIONER OF THE
DEPARTMENT OF NATURAL RESOURCES noted the administration's
support for HB 213, and commented that one additional
amendment was forthcoming from the Department of Fish and
Game. With respect to the second amendment from the DNR,
requiring legislative approval, he told the committee that
the amendment had not yet been subject to any legal review
and should be considered a conceptual amendment. In the
first amendment that called for the insertion of the word
"contiguous," Mr. Elim explained that the bill as written
requires an act of the legislature if the area involved
contains more than 640 acres.
MR. ELIM said the difficulty is in defining what the area is
since it could be interpreted as being the whole state, or
any area of the state. He said specifying contiguous areas
would clarify that question. He remarked that the
legislature still would have the authority to act, through a
bill, if the administration attempts to abuse its authority.
He did not agree with any inference that the procedure was
open to abuse, and said it had not been a problem to date.
By inserting the word "contiguous" he said some objectivity
was provided for HB 213 and it would be less ambiguous.
MR. ELIM referred to the second DNR amendment, and explained
that it attempts to preserve the notion of separation of
powers and checks and balances. He added that there are
critical management reasons why the mineral closing order
may need to be ordered right away, as opposed to waiting for
the legislature to act in the form of a bill. For example,
he commented on a situation in June of 1992, when Glen Olds
became the DNR's commissioner. There had been a question of
whether Moose Creek in Denali National Park would be deemed
navigable, in which case the bed of the river would become
state land and would be open to mining claims.
MR. ELIM explained that in this instance, it was imperative
for the commissioner to be able to act right away to issue a
mineral closing order to forestall mining claims in Denali
National Park.
Number 358
MR. ELIM said that the way HB 213 was drafted, through the
amendment, the commissioner could take that action, subject
to legislative authority to evaluate the merits and override
the decision. He raised the final point that the bill is
silent with respect to the area of land exchanges, which Mr.
Elim said the DNR feels should also be exempt from
legislative oversight. He explained that the state
sometimes engaged in negotiations with municipalities for
the intent and purpose of a land exchange, and he said it
was important that during the course of those discussions,
mineral closing orders be issued so that the status quo is
preserved during negotiations.
REPRESENTATIVE JEANNETTE JAMES asked Mr. Elim to explain how
HB 213 would change the current situation.
MR. ELIM replied that under HB 213 as drafted, closures
based on recreation or habitat reasons would require the
legislature to pass a bill to effect such a mineral closing
order. The way the amendments proposed by the DNR would
change that, he explained, would be to make acreage
contiguous, explicitly listing land exchanges as exempt from
that requirement, and requiring that the legislature would
respond by disapproving an executive order rather than
introducing a bill that would approve the closure. This, he
said, would give the DNR the flexibility to respond quickly
when mineral orders are required.
Number 421
REPRESENTATIVE ELDON MULDER asked Mr. Elim to clarify
whether the DNR's commissioner supported HB 213.
MR. ELIM confirmed that HB 213 had the support of the
commissioner and the administration, with the DNR amendments
and one other amendment that was pending.
VICE CHAIRMAN HUDSON referred to the proposed amendment, and
specifically language relating to "when the classifications
are necessary for land disposal or development of utility or
transportation ..." and stated that the language was
confusing. He asked Mr. Elim to clarify what that language
meant.
Number 451
MR. ELIM replied that he had taken the language in the
amendment directly from the bill, and that he would
recommend adding a comma after the first mention of
"projects" so it would read more clearly.
VICE CHAIRMAN HUDSON recommended taking out, after
"corridors," "or projects(.)", and inserting, "for the
development of utility and transportation corridors or
similar projects or infrastructure." Mr. Elim agreed that
might help to clarify the language.
Number 460
CHAIRMAN WILLIAMS, hearing no other questions for the
representative of the DNR, introduced the next witness, from
the Department of Fish and Game.
Number 470
MCKIE CAMPBELL, DEPUTY COMMISSIONER OF THE ALASKA DEPARTMENT
OF FISH AND GAME (ADF&G), offered the ADF&G's strong support
for the amendments offered by DNR, and explained that the
two departments had worked closely together in developing
those amendments and another from the ADF&G. With those
amendments, he said the ADF&G would support HB 213. The
ADF&G amendment, he said, would appear on page 2, line 4 of
HB 213, where exceptions are listed. After "incompatible
use except", he proposed inserting, "for waters catalogued
under AS 16.05.870 and state land included in legislatively
designated state critical habitat areas, game refuges, and
game sanctuaries, or".
MR. CAMPBELL said the reference to waters catalogued under
AS 16.05.870 are anadromous fish streams already catalogued
by the state. He clarified that the proposed language would
not automatically close any of those lands to mineral
closure, and noted that the vast majority of anadromous fish
streams and legislatively designated game refuges, critical
habitat areas, and sanctuaries are open to mineral closure,
and would be anticipated to remain open under HB 213. He
explained that the amendment was proposed to give the DNR's
commissioner the ability to retain the power he currently
has when there is a highly sensitive area with a potential
resource conflict that would not be in anyone's best
interest.
Number 500
MR. CAMPBELL gave an example of the Mulchatna River, a
highly productive salmon stream of importance to the
commercial fisheries, and said the DNR's commissioner had
previously closed the stream, simply the submerged lands, to
mineral entry through the portions of the river critical to
spawning. Smaller streams, he explained, were generally
left open and dealt with on a case by case, permit by permit
basis. He said in most of those areas, activities could
occur without harm if done properly.
MR. CAMPBELL addressed the second part of the ADF&G
amendment, and said it would exempt lands that the
legislature had specifically designated as part of a
critical habitat area, game refuge, or game sanctuary. He
reiterated that the amendment would not automatically close
any lands but would give the DNR's commissioner the power to
close them. In most refuges, he said, multiple use would
work, but in some refuges, some types of development or
exploration would be inappropriate and HB 213 with the
proposed amendments would give the commissioner that
flexibility.
Number 521
REPRESENTATIVE GREEN asked if a venture were to be proposed
under the existing laws, would there be an economic impact
study (EIS) or an interdepartmental review.
MR. CAMPBELL replied that there would be an
interdepartmental review, and whether or not there would be
an EIS would depend on the size and scope of the project.
He mentioned that there are at times nuisance claims filed,
or small scale claims that are not done because of known
mineral potential, which would be an example of cases this
might apply to.
REPRESENTATIVE GREEN then asked whether those small claims
did not get the review that would preclude them from coming
into areas under the existing law.
MR. CAMPBELL explained that every claim within a Title 16
stream does have a Title 16 review. The purpose of that
review, he said, is not to prevent the mine from happening,
but to see how it can be done. In most of the streams of
the state, he said, it can be worked out, but there are
streams with such overwhelming significance to the fisheries
that closure makes sense.
REPRESENTATIVE GREEN asked whether a stream in that
circumstance was currently protected.
MR. CAMPBELL explained that there was an individual case by
case permitting basis for projects proposed in or by
streams. He said that process is used in the majority of
cases, but on streams of such high value, it would be better
just to close the whole stream rather than deal with each of
the individual cases, especially since the permit review
process is expensive.
Number 565
REPRESENTATIVE GREEN remarked on the perception that HB 213
tends to allow mineral entry where there is no overriding
reason not to. He asked Mr. Campbell whether that was
accurate.
MR. CAMPBELL explained that the language in the ADF&G
amendment would not close anything; the vast majority of
Title 16 streams in Legislative Designated Areas would
remain open, he said. It would allow the DNR's commissioner
to administratively close a particular area if a resource
value was in jeopardy. He referred to a situation where a
harbor seal pupping area required closure, which prevented
the federal government from coming in and closing a much
larger area.
Number 587
DENNIS DEBOLT, ALASKA MINERS ASSOCIATION, testified in
support of HB 213. His association believed the practice of
closing state lands to mineral entry and mineral leasing to
be an important issue. He endorsed the bill, which he said
would put reasonable and prudent restrictions on the ability
of the DNR to make administrative land closures. He
explained that currently there were three ways by which
lands could be closed to mineral entry and leasing. The
first was through legislative action; second was the
application of Title 16 by the ADF&G where fishery resources
may be affected; and third was the administrative closure by
the DNR.
MR. DEBOLT commented that since statehood, more than 3.2
million acres had been closed by legislative action. The
application of Title 16, he added, covers all activity that
could affect a fishery, not just mining. Administrative
closures by the DNR, he said, was limited to 640 acres or
less from the time of statehood until the mid to late
1970's, when a series of DNR commissioners closed large
areas of state land to mineral entry with little or no
justification. The statutes currently require a finding of
incompatibility, and the policy has been broadly
interpreted, he said. Mineral closures were often the
result of state area plans developed by the DNR with
pressure from special interest groups, he added.
Number 625
MR. DEBOLT emphasized the senselessness of the closures,
noting that some of those lands had originally been selected
by the state for their mineral potential. He said the
Hickel administration had generally used mineral closures
within the true spirit and intent envisioned at the time of
statehood. He commented that there was a risk that future
administrations might not carry forth that attitude of
responsibility, and therefore HB 213 was a necessary and
proper provision that would stop massive mineral closures
and still give the DNR the authority to make legitimate and
justifiable closures.
VICE CHAIRMAN HUDSON asked Mr. DeBolt to comment on the
amendments presented by the DNR.
MR. DEBOLT felt the original version of HB 213 was adequate,
but the addition of language specifying "contiguous" lands
would be appropriate.
Number 647
REPRESENTATIVE GREEN referred to the ADF&G amendment to
protect fisheries resources, and asked Mr. DeBolt his
opinion on that amendment.
MR. DEBOLT said that Title 16 provided adequate protections
and that the amendment was not necessary.
REPRESENTATIVE GREEN asked whether Mr. DeBolt felt the
amendment would kill the intent of HB 213.
MR. DEBOLT replied that he felt it would.
Number 659
PHIL HOLSWORTH, MINING ENGINEER AND FORMER COMMISSIONER OF
MINES, told the committee that he had long been involved in
mining issues in Alaska and had participated as Manager of
Lands in the original Mental Health Lands Trust grant from
the federal government in 1956. He explained that some
lands were selected within municipalities for expansion. As
the first DNR commissioner after statehood, Mr. Holsworth
said he continued the process of land selection, including
the North Slope. In 1967, Mr. Holsworth said he left that
position, and two years later, members of the Alaska Senate
and House met and on the advice of the DNR's assistant
commissioner, made an exchange with Cook Inlet Regional
Corporation.
TAPE 93-33, SIDE B
Number 000
MR. HOLSWORTH continued with his description of the history
of land exchanges in the state involving lands granted to
the state by the federal government for the purpose of
funding mental health programs. He said when those lands
were exchanged, he objected. He also said he felt the state
had been in error in not recording the disposal and income
from those lands. Regarding HB 213, he said the bill would
assist in assuring the proper use of lands. He noted that
because there is inconsistency in the actions and integrity
of commissioners of the DNR, this bill would provide some
oversight to their actions.
Number 064
VICE CHAIRMAN HUDSON referred to the DNR amendments, and
asked Mr. Holsworth whether he could see any reason not to
accept the waters catalogued, and anadromous streams and
subject them to the executive order process.
Number 106
MR. HOLSWORTH replied that waters are part of the state's
lands and it would be advisable to handle the issue in that
manner.
Number 127
JACK PHELPS, LEGISLATIVE AIDE TO REPRESENTATIVE PETE KOTT,
commented on the proposed amendments to HB 213. Regarding
the DNR "contiguous" amendment, he said that word had
intentionally been left out in the original statute which HB
213 applies to. He said that by adding that degree of
specificity, a door to potential abuse is opened. Regarding
the amendment that would add land exchanges, he said the
rationale for that made sense and the sponsor would not
object.
MR. PHELPS addressed the question of areas designated by the
legislature as refuges and wildlife sanctuaries, and noted
that the legislature had the power to close those to mineral
entry or multiple use. He said the legislature had demurred
on that point, and added that the legislature had included
in the statutes a requirement that limitations imposed on
those areas be jointly determined by the commissioners of
the DNR and the ADF&G. He explained that the ADF&G's
commissioner currently had permitting authority under Title
16 Chapter 20.050.060 and 500-530, to restrict activities in
certain areas to protect endangered species.
MR. PHELPS told the committee that in an opinion issued by
the Attorney General in 1985, the ADF&G did not have
authority over transactions which were not likely to affect
fish and game or their habitat. Mr. Phelps believed that by
adding this exception in HB 213, the legislature may have
the effect of giving the ADF&G more authority than is
currently granted under Title 16. He said control through
permits should be sufficient, with closures on larger areas
to be determined by the legislature.
Number 203
MR. PHELPS then addressed the amendment which would require
the legislature to overturn actions of the DNR's
commissioner in making closure decisions through the
executive order process. He said this amendment would
amount to regulatory agencies setting legislative agendas.
He speculated that closures do not often exceed 640 acres,
and reminded the committee that HB 213 allows the retention
of closures under 640 acres by the DNR.
REPRESENTATIVE JOHN DAVIES asked Mr. Phelps to expand on his
comments that the ADF&G amendment would broaden the
authority of the ADF&G's commissioner.
Number 218
MR. PHELPS explained that Title 16 in its current status
grants the commissioner the authority to control the use of
fish and game in critical areas. When the legislature has
in the past designated large areas for habitat use, they
have not contravened that Title 16 authority, he said. In
the larger area covered by a refuge or sanctuary, he added,
decisions had to be made jointly by the DNR and the ADF&G.
House Bill 213 in its original version, he said, would not
affect that, but the amendment presented by the ADF&G,
adding those larger areas to the exclusions in the bill,
would allow closures by MCO's and contravene the authority
of Title 16.
Number 251
REPRESENTATIVE ELDON MULDER asked Mr. Phelps to what degree
the ADF&G amendment would open the door to abuse.
MR. PHELPS replied that the current situation would prevail,
within the areas that have been designated by the
legislature. House Bill 213, he explained, would change the
procedure on areas over 640 acres everywhere in the state,
while the amendment would exclude those areas specifically
mentioned from the requirement that closures of areas over
640 acres had to be approved by the legislature. He
speculated that there would be few times critical habitat in
areas over 640 acres would have to be closed.
Number 281
MR. CAMPBELL reiterated that question, and replied that
there had been cases where major anadromous streams have had
to be closed, and in those cases, because of the length
involved, the total area could easily exceed 640 acres. He
added that the situation does not happen often, and that
having the ability to make closures does not mean that any
areas will automatically be closed.
REPRESENTATIVE MULDER asked for clarification on which
authorities rest with the DNR and which with the ADF&G under
HB 213 and the proposed amendments.
Number 295
MR. PHELPS noted that all land decisions are essentially
under Title 38, and not Title 16. He commented that the
need addressed in the writing of Title 16 tends to be
addressed through Title 38 authority, which allows larger
closures.
Number 310
VICE CHAIRMAN HUDSON felt the opposite was true of Mr.
Phelps' interpretation. House Bill 213 as written, he said,
would be enhanced by the checks and balances provided in the
amendments, if the sponsor truly wanted to make certain that
the legislature keeps its eye on any mineral closings. He
spoke specifically to the language in the second DNR
amendment which calls for the DNR to present mineral
closings to the legislature for review within the first ten
days of a legislative session. If waters catalogued under
16.05.870 were not excluded, and critical habitat and game
refuges, he asked Mr. Phelps where in the statutes those
would be handled.
Number 340
MR. PHELPS replied that Title 16.20.050 and 060 deal with
endangered species and critical habitat. Regarding the idea
that the executive order approach would contravene the
intent of HB 213, he said that currently the DNR makes the
closure with no review process. The bill, if amended the
way the DNR has requested, he explained, would be an
improvement on the current status because it would require
legislative review of a number of those closures. The
difference, he said, between that approach and the one
suggested by the sponsor, was that under the sponsor's
suggestion, the closures would be initiated by the
legislature.
MR. PHELPS believed it would require an act of the
legislature to close off access to the state's economic
resources. He suggested the committee ask themselves
whether it was primarily the prerogative of the legislature,
or the prerogative of the executive branch. If they felt
that it was the prerogative of the executive branch and the
legislature only needed to review the decision, then he
suggested they go with the amendment. The sponsor's
position, he added, was that it should be the legislature's
prerogative to make the closures.
Number 378
CHAIRMAN WILLIAMS remarked that the legislative Legal
Services division had been in contact with the committee by
phone and had said the DNR amendment calling for an
executive order was not lawful because executive orders have
specific rules as to their use.
REPRESENTATIVE PAT CARNEY commented that this would only be
a problem if the committee decided to adopt the DNR
amendments.
CHAIRMAN WILLIAMS remarked that because the amendments had
been delivered to the committee just prior to the meeting,
the parties had not had time to review them.
Number 401
REPRESENTATIVE GREEN asked how HB 213, as originally drafted
or with the amendments presented by the DNR and the ADF&G,
would affect the state's problems relating to land use or
closure decisions of the federal government.
MR. PHELPS replied that it seemed to him that an emergency
closure capability driven by federal action would be an
appropriate way to address that situation.
Number 420
REPRESENTATIVE DAVIES questioned the committee procedure
that would be used to address the draft amendments. He
suggested that the amendments be drafted in legal form by
the Division of Legal Services' attorneys.
Number 425
REPRESENTATIVE CON BUNDE commented that perhaps HB 213
should be moved to the next committee as it was, and the
amendments be submitted in final form at that committee.
CHAIRMAN WILLIAMS noted that the next committee of referral
was House Finance.
VICE CHAIRMAN HUDSON remarked that Legislative Legal
Services' advice that the executive order process was not
the appropriate method to accomplish the goals of the DNR
amendment to HB 213 was reason to consider that amendment
out of order.
Number 442
REPRESENTATIVE DAVID FINKELSTEIN agreed with the question of
using the executive order process, but suggested that
another procedure be used or established that would meet the
intent of the amendment.
REPRESENTATIVE MULDER commented that if HB 213 was adopted
without any amendments, and problems came up requiring
emergency closures, he asked Mr. Campbell if the ADF&G had
the ability to deal with the situation.
MR. CAMPBELL responded that the ADF&G has a case by case
permit review process, but no blanket ability to make
emergency closures.
Number 462
REPRESENTATIVE GREEN asked for clarification of whether the
closures in question would be of waterways.
MR. CAMPBELL replied that the ADF&G does not have any power
to do any blanket closures anywhere. They would retain
Title 16 authority to do case by case individual permit
review, but under HB 213, he said, the power of the DNR's
commissioner to make closures over 640 acres under Title 38
would be removed. He also pointed out that, although the
executive order process might be inappropriate, the
legislature did have the ability to establish in statute a
procedure such as that suggested by the DNR in its
amendment, where all mineral closures must be submitted to
the legislature for review and approval. He said the ADF&G
amendment presented no legal problems.
Number 486
REPRESENTATIVE MULDER asked Mr. Campbell to clarify whether,
if HB 213 was amended and passed, the ADF&G would still have
the ability to do a case by case permit review and restrict
activity.
MR. CAMPBELL pointed out that only a small percentage of
Title 16 permits are denied, and those that are approved
usually go through the review process in approximately three
weeks. The ADF&G, he said, can make recommendations to the
permit applicant of steps that reduce the effect on habitat.
He clarified, though, that the ADF&G cannot just say no
activity will be permitted in a specific area. If HB 213
passed without the amendments, he said, the ADF&G would lose
the ability it does have.
REPRESENTATIVE FINKELSTEIN clarified that he saw HB 213 as
being about whether areas are open or closed to mineral
entry. In that context, he said, the ADF&G has no power.
The amendment, he said, guarantees the ADF&G retains its
power under Title 16 to make recommendations.
Number 528
MR. CAMPBELL pointed out another area of concern, which was
the effect if HB 213 passed on those lands or rivers that
have been closed by administrative order but had never been
approved or disapproved by the legislature. He raised the
question of retroactivity.
REPRESENTATIVE FINKELSTEIN asked if the committee would get
a response to that question from the Division of Legal
Services. He said it was not clear on the face of it
whether it would be retroactive. He questioned whether some
closures might be considered void if they did not meet the
requirements of HB 213 in the future.
VICE CHAIRMAN HUDSON referred to Title 16. He read the
sections establishing guidelines for administrative land
closures. He noted that the ADF&G was seeking an amendment
that would make reference to anadromous fish streams. He
said HB 213 could be amended so it would not preclude the
legislature from taking action if it was thought the ADF&G
was going too far. He repeated Mr. Phelps' comment that the
whole question came down to whether the authority for
closures should rest with the DNR to take action and the
legislature would have to reverse the action, or if the
action should be initiated by the DNR subject to action by
the legislature.
Number 570
VICE CHAIRMAN HUDSON suggested that the committee stick with
the concept of the sponsor of HB 213, and add language
suggested in the amendments but excluding "waters catalogued
under AS 16.05 and state land included in legislatively
designated...critical habitat areas..." The result, he
explained, would be a statute with a direct nexus back to
the protection and multiple use concepts in Title 16. At
the same time, he said, the whole thing would be subject to
legislative action as opposed to the automatic opportunity
for the department to close areas.
Number 590
REPRESENTATIVE DAVIES agreed that that suggestion began to
get at the critical issue. He said it appeared that the
legislature has the ability to introduce a bill to make a
mineral closure already, or to take action to open a closed
area. If HB 213 was passed, he said, it would take the
administration out of the land management business and put
the legislature in that business. His principal concern, he
said, was that the legislature is not in session year-round,
and legislators are not land managers. He questioned
whether this was the correct process to have in place. He
noted that in issues of critical timeliness, when the
legislature was not in session, the result could be that the
federal government could come in and close down much larger
sections of land.
REPRESENTATIVE DAVIES also commented that the DNR and the
ADF&G are not separate from the people, but rather are those
hired to manage land under an owner-state concept. He said
that HB 213 seems to tie the hands of the land managers too
much, and that while it is important to send the message
that the legislature does not want unnecessary land
closures, it was also important to allow the departments the
ability to make timely decisions and then submit them to the
legislature for ratification.
Number 622
REPRESENTATIVE FINKELSTEIN referred to the ADF&G amendment
to HB 213. He said it was relatively simple although the
implications are confusing. He paraphrased the amendment,
and said it simply said the ADF&G's power continues to close
mineral claims on anadromous streambeds if the situation
warrants it. He called this a reasonable proposal.
Regarding the legislatively designated areas, he noted the
argument being made that the legislature had the opportunity
to close those areas when they were created and decided not
to. He explained that the reason those areas were not
closed was because the DNR had the power to close them
administratively if the need arose. Most of the areas are
not closed, he said, because the areas are suitable for
multiple-use activities.
Number 646
REPRESENTATIVE MULDER reported that he did not share the
concern about the legislature being able to manage lands,
and said in his view the legislature is more representative
of the people than the bureaucracy is. He questioned
whether there would be a provision in statute, if HB 213 was
passed unamended, that allows flexibility for emergency
situations to be addressed.
MR. ELIM responded that he did not know of any such
provision, which was the driving force for the DNR
amendments. He apologized for the choice of "executive
order" in the amendment, and explained that it was now clear
that it was not the appropriate process. He reiterated that
the amendment does meet the spirit of HB 213, but affords
the flexibility to make it workable. Regarding the term
"contiguous," he said the current statute does not deal with
mineral closing orders, but with multiple-use closures. He
disagreed with the cautions raised on "the danger of
specificity" and argued instead that there was a danger of
ambiguity if "contiguous" was omitted.
REPRESENTATIVE MULDER agreed that there had to be a
provision for dealing with an emergency closure, and the
problem was how to define an emergency. He suggested HB 213
include provisions for flexibility in an emergency situation
with legislative review and approval to follow.
REPRESENTATIVE GREEN responded to previous concerns raised
by Representative Davies, and the empowerment of the DNR's
Commissioner. He recalled an incident when a previous
commissioner made inappropriate decisions, and he stressed
that provisions for checks and balances on the power of
commissioners should be made.
TAPE 93-34, SIDE A
Number 000
REPRESENTATIVE JEANNETTE JAMES agreed with the intent of HB
213, and with the concept of the amendments. She said she
would agree with the concept of letting the legislature be
the deciding group on mineral closures, with provisions for
emergency closures subject to legislative review. She
remarked that she did not see why closures of anadromous
streambeds should be different than any other closure.
Number 038
MR. ELIM remarked on the rationale for the DNR's amendment
that would have the closure decision made administratively
subject to legislative approval, rather than having a
closure initiated as a bill in the legislature. He noted
how difficult it is for a bill to make it through the
legislature. Imposing a deadline for review and approval
would be more effective, he said, than waiting for a bill to
make it through the legislative process.
Number 080
VICE CHAIRMAN HUDSON suggested that the amendment should
indicate "designated critical habitat areas...and anadromous
streams." He said he had concluded that Title 16 seems to
preclude the commissioner from arbitrarily opening a stream
that has anadromous fish in it. He said this would seem to
make the amendment unnecessary.
MR. ELIM clarified the merger of the DNR and the ADF&G
amendments. He said HB 213 would require the DNR's
commissioner, in areas of over 640 acres of a mineral
closing order, for purposes of recreation or habitat, to
come to the legislature for approval. The ADF&G amendment,
he explained, would carve out some of that group to be
brought to the legislature and say it was exempted from the
legislative review. Those would be, he said, catalogued
streams and legislatively designated areas. In those
instances, he said, the commissioner would maintain his
authority to issue mineral closing orders and would not have
to submit them to the legislature.
Number 139
REPRESENTATIVE FINKELSTEIN addressed Representative Hudson's
previous comments on the ability of the ADF&G's commissioner
to arbitrarily open streams. The problem, he said, was that
streams start out open, and could not be arbitrarily closed
without an exemption.
REPRESENTATIVE MULDER commented that there would be no
ability to proactively make closures, only the opportunity
to close an area after an application is made.
MR. ELIM further explained that to issue a mineral closing
order in legislatively designated areas, as HB 213 is
drafted, would require the DNR to come before the
legislature for approval if the reason was for recreation or
habitat. The ADF&G's proposal would exclude that subset of
mineral closing orders from the requirement of legislative
approval.
REPRESENTATIVE JAMES had no problem with adding anadromous
streambeds, but did object to adding legislatively
designated lands for recreational purposes. She felt one of
the purposes of HB 213 was to stop some of the land closures
without legislative review. If all the language in the
ADF&G amendment were included, she said, it would negate the
intent of the bill.
CHAIRMAN WILLIAMS commented that the committee should decide
which direction it wanted to go with HB 213, given the
remaining questions regarding the amendments.
VICE CHAIRMAN HUDSON noted that in reading the ADF&G
amendment, it appeared to only cover legislatively
designated state critical habitat areas, game refuges, and
game sanctuaries, and not all legislatively designated areas
in the state.
REPRESENTATIVE DAVIES repeated his earlier suggestion that
the amendments be refined by the Legal Services' attorneys
and brought before the committee again in a form that
integrates the various amendments.
REPRESENTATIVE CARNEY agreed.
Number 225
CHAIRMAN WILLIAMS told the committee that unless there were
objections, the committee would do as Representative Davies
suggested, and hopefully would have the revised amendments
for consideration on Wednesday, March 24, 1993.
ANNOUNCEMENTS
CHAIRMAN WILLIAMS announced that the committee would hear
HB 232 and HB 238 on Wednesday, March 24, 1993 at 8:00 a.m.
ADJOURNMENT
There being no further business to come before the House
Resources Committee, Chairman Williams adjourned the meeting
at 9:50 a.m.
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