Legislature(1993 - 1994)
04/06/1994 08:15 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
April 6, 1994
8:15 a.m.
MEMBERS PRESENT
Representative Bill Williams, Chairman
Representative Bill Hudson, Vice Chairman
Representative Con Bunde
Representative Pat Carney
Representative John Davies
Representative David Finkelstein
Representative Joe Green
Representative Jeannette James
Representative Eldon Mulder
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HB 443 "An Act relating to the confidentiality of certain
records relating to fish and wildlife; and
providing for an effective date."
ADOPTED CSHB 443(RES) AND PASSED OUT OF COMMITTEE
WITH INDIVIDUAL RECOMMENDATIONS
*HB 357 "An Act confirming and ratifying the conversion of
certain former mental health to general grant land
and disposals of that land, canceling the lis
pendens notices recorded in state public records
against third-party holdings of former mental
health trust land, and urging the attorney general
to seek the dissolution of a related injunction;
and providing for an effective date."
HB 357 PASSED OUT OF COMMITTEE WITH INDIVIDUAL
RECOMMENDATIONS
* (First Public Hearing)
WITNESS REGISTER
DAVID KELLEYHOUSE, Director
Division of Wildlife Conservation
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Phone: 465-4190
POSITION STATEMENT: Supported HB 443
HENRY WILSON, Assistant Attorney General
Department of Law
1031 W. 4th , Ste. 200
Anchorage, Alaska 99501-1994
Phone: 269-5100
POSITION STATEMENT: Answered questions on HB 443
JAMES GOTTSTEIN
406 G Street, Ste. 206
Anchorage, Alaska 99501
Phone: 274-7686
POSITION STATEMENT: Supported HB 357 concept
DAVID WALKER, Attorney
417 Harris
Juneau, Alaska 99801
Phone: 586-3537
POSITION STATEMENT: Supported HB 357 concept
JERRY GALLAGHER, Legislative Liaison
Department of Natural Resources
P.O. Box 107016
Anchorage, Alaska 99510-7016
Phone: 762-2165
POSITION STATEMENT: Answered questions on HB 357
PREVIOUS ACTION
BILL: HB 443
SHORT TITLE: FISH & WILDLIFE CONFIDENTIAL RECORDS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
02/04/94 2259 (H) READ THE FIRST TIME/REFERRAL(S)
02/04/94 2259 (H) RESOURCES
02/04/94 2259 (H) -ZERO FISCAL NOTE (F&G) 2/4/94
02/04/94 2259 (H) GOVERNOR'S TRANSMITTAL LETTER
03/23/94 (H) RES AT 08:15 AM CAPITOL 124
03/23/94 (H) MINUTE(RES)
03/25/94 (H) RES AT 08:15 AM CAPITOL 124
03/25/94 (H) MINUTE(RES)
03/25/94 (H) MINUTE(RES)
04/06/94 (H) RES AT 08:15 AM CAPITOL 124
BILL: HB 357
SHORT TITLE: REMOVE LIENS ON MENTAL HEALTH LAND
SPONSOR(S): REPRESENTATIVE(S) JAMES
JRN-DATE JRN-PG ACTION
01/10/94 2021 (H) READ THE FIRST TIME/REFERRAL(S)
01/10/94 2021 (H) RESOURCES, JUDICIARY, FINANCE
04/06/94 (H) RES AT 08:15 AM CAPITOL 124
ACTION NARRATIVE
TAPE 94-46, SIDE A
Number 000
The House Resources Committee was called to order by
Chairman Bill Williams at 8:25 a.m. Members present at the
call to order were Representatives Williams, Hudson, Bunde,
Carney, Finkelstein, Green, and Mulder. Members absent were
Representatives Davies and James.
CHAIRMAN BILL WILLIAMS announced there is a quorum present.
He stated the meeting is on teleconference with Anchorage.
(CHAIRMAN WILLIAMS noted for the record that REPRESENTATIVE
JAMES had joined the committee at 8:26 a.m.)
HB 443 - Fish & Wildlife Confidential Records
CHAIRMAN WILLIAMS stated this is the committee's second
hearing on HB 443 which is a Governor's bill. He reminded
members that at the first hearing on HB 443, testimony was
heard from Wayne Regelin, Deputy Director of the Division of
Wildlife Conservation and Dr. Gordon Haber, a biologist who
had sought and won a court order to obtain radio collar
information from the department for his own research. He
said Dr. Haber sent several of his research reports for the
committee's review which were made available to members of
the committee.
CHAIRMAN WILLIAMS stated when the committee adjourned the
first meeting on HB 443, there was an amendment proposed by
Representative James pending. The amendment is on page 1,
line 14: Delete the word "or"; and on page 2, line 2:
Insert ", or if the requestor has been authorized by the
department to perform specific activities, and the requestor
agrees to use the information only for purposes as provided
under contract or agreement."
Number 040
REPRESENTATIVE DAVID FINKELSTEIN stated he has an additional
suggested amendment from the Alaska Department of Fish and
Game (ADF&G) which he wishes to distribute. He said the
suggestion is another approach to reach the same goal. He
is attempting to address the issue of how to protect the
department's interest on confidential information without
precluding public release of those portions of the
information which are not sensitive to interested parties or
in the case of sensitive information, to only release the
information under an agreement and in conformance with the
terms of the department.
Number 085
DAVID KELLEYHOUSE, DIRECTOR, DIVISION OF WILDLIFE
CONSERVATION, ALASKA DEPARTMENT OF FISH & GAME (ADF&G),
stated the suggested amendment which Representative
Finkelstein is referring to was prepared only in response to
potential amendments. He said ADF&G prefers that HB 443
remain in its original form with the pending amendment.
CHAIRMAN WILLIAMS asked if there were any objections to the
motion. Hearing none, the MOTION PASSED.
REPRESENTATIVE FINKELSTEIN made a MOTION to AMEND CSHB
443(RES) as follows: On page 1, line 7, after "(2)", delete
[WHEN THE KNOWLEDGE MAY BE DETRIMENTAL TO THE FISH OR
WILDLIFE POPULATION] and insert, "when in the opinion of the
commissioner, the knowledge may be detrimental to fish,
wildlife, human safety, or research or management programs
being conducted by the department or authorized by the
department,". On page 2, line 2, following the word
"population." insert, "The department may also release
records and information that are kept confidential under
this subsection, except for telemetry radio frequencies and
other electronic locating information, to a requestor
conducting scientific research or other specific activities
if the requestor agrees to use the records and information
only as provided under terms of a contract or agreement with
the department."
REPRESENTATIVE FINKELSTEIN explained these are all areas
where the department does not have to release information to
the public so there is a need to make it as strict as
possible. Under current law, the department is not allowed
to release information when the knowledge may be detrimental
to the fish or wildlife population. He stressed the problem
with the current law is it has been treated as being broader
than only fish or wildlife species--the release of the
information has to be detrimental to an entire population,
which is not realistic. He said the first part of the
amendment is more definitive on the release of information
and the department cannot make a decision to not release the
information only because they do not want to.
REPRESENTATIVE FINKELSTEIN stated the second part of the
amendment says the department is able, except for the case
of radio frequencies or other electronic information, to
release records of information to someone conducting
scientific research if that person agrees to use the
information only as provided for under terms of a contract
with the department. Therefore, if someone not employed or
contracted by the state wants to conduct scientific
research, the department limits them to information other
than radio frequency information, and that person agrees to
the terms specified by the department including
confidentiality, then the department may release the
information to that person. He stressed the amendment does
not say the department is required to release the
information and does not go anywhere near the current court
order.
Number 161
REPRESENTATIVE CON BUNDE asked for clarification from the
department as to their position on the pending motion.
MR. KELLEYHOUSE stated CSHB 443(RES) will provide the
commissioner with the necessary discretion to keep
confidential any information which may be injurious to the
state's interest. He said ADF&G prefers the bill be passed
out in its existing form rather than with the pending
amendment. He stressed ADF&G has shown good judgment over
the years in working with other cooperators and professional
scientists. ADF&G is asking, through CSHB 443(RES), for a
reaffirmation from the legislature and a tightening of the
statute, so the department is not forced to release
sensitive information to individuals who the department does
not believe to be reputable. He said passage of the pending
amendment will open the door a little wider and increase the
department's liability in subsequent litigation.
(CHAIRMAN WILLIAMS noted for the record that REPRESENTATIVE
DAVIES had joined the committee at 8:35 a.m.)
REPRESENTATIVE JEANNETTE JAMES felt all department
information should be kept confidential and opposes opening
the door any wider. She stated this information should be
only for state business, performed by the department or any
other person on contract with the state, for a specific
purpose.
REPRESENTATIVE JOHN DAVIES felt the state is everyone who
lives here and public purposes are broader than only what
the department is doing. He said there is a need to
facilitate independent research and stressed the truth is
best served when there is a variety of opinions offered in a
free market place of ideas. He asked for a clarification as
to why the proposed amendment will increase the department's
liability.
Number 221
MR. KELLEYHOUSE responded the current language in the bill
will give the commissioner full discretion in the release of
information. The proposed amendment will provide a risk for
someone to argue in a court of law with the opinion of the
commissioner because of the specifics noted. He said it is
difficult for an agency, especially an agency based on
science, to prove to the court's satisfaction that there
will be a detriment to an individual animal, to a
population, or to a research or management program because
there are plausible arguments to be made in court on the
other side, as were recently made.
MR. KELLEYHOUSE stressed the department has seen evidence of
harassment to collared animals as a result of the release of
information. The department has experienced premature
release of information to the press which ADF&G does not
believe to be a reputable scientific practice. ADF&G does
not disagree with people having differing opinions, but
rather how they go about forwarding their particular
opinion. He stated the premature release of raw data is not
a proper way to argue another scientific viewpoint. He
reiterated the language in the proposed amendment will
provide opportunities for arguments to be made in court for
the release of information.
Number 262
REPRESENTATIVE DAVIES asked if state employees include
university employees.
MR. KELLEYHOUSE replied CSHB 443(RES) will allow the
department to continue working in cooperation with the
University of Alaska.
REPRESENTATIVE DAVIES wondered if a university professor had
an opinion differing from that of the department, would the
cooperation between the two slow down.
MR. KELLEYHOUSE stated the cooperation would not slow down
as long as the different opinion was expressed and a study
plan was put forward which tests the hypothesis. He said
through the years, the department has cooperated with many
people who have had differing opinions and that has not been
a reason for denying a cooperative effort. He felt the
specific issue is the radio frequencies. ADF&G has never
released state radio frequencies, as in the manner which
recently occurred.
MR. KELLEYHOUSE explained the department has only a certain
band to operate in. The department was granted a narrow
band of frequencies to use, which the department will use
forever. He said if the frequencies are released, the
release will not just jeopardize the current study because
the department reuses those frequencies on different
species, in different areas, over and over again and has
done so for over twenty years. He stated when the
department works with other people, a permit is issued
allowing that individual to accomplish their own collaring.
He stressed the department has never invited an individual
into a department's ongoing study, with animals collared at
the state's expense, because of the long-term downside
potential of having those frequencies out.
Number 309
REPRESENTATIVE DAVIES commented there is another area where
the cooperative sharing of the information is essential. He
said the Federal Communications Commission allocates the
exact same bands to the university for doing seismological
research as they do for ADF&G. He stated another
circumstance is that completely independent and
nonbiological research may be impacted by the radio
telemetry frequencies chosen, so there is a need to ensure
that an exchange of that type of information is not
precluded.
REPRESENTATIVE BILL HUDSON said he is attempting to
determine how the proposed amendment will fit in with the
amended HB 443. He felt the original intent of the bill is
a valid intent and supports the amended version even more
because it provides for independent research to take place
under a contract or agreement with the department. He
cannot support the proposed pending amendment.
Number 353
REPRESENTATIVE FINKELSTEIN said the first part of the
amendment says all determinations can be made regardless of
any detrimental impact to any fish or wildlife. He stressed
this part of the amendment actually returns to existing law,
except the amendment fixes the law so there is no unintended
effect such as what the department found in the case where
wildlife populations were determined to be much broader than
only the impact on a particular species or animal. The
first part of the amendment says the detriment can be to a
particular animal, human safety, or research or management
programs--any detrimental impacts found in the opinion of
the commissioner.
REPRESENTATIVE FINKELSTEIN stated in regard to the second
part of the amendment, the reason this confidentiality issue
is being dealt with is because the information is state
information, publicly paid for which members of the state
have an ownership interest in. The goal is to balance the
public's interest with the department's need to protect the
state's interest. He clarified the pool of people
interested in doing independent scientific research is very
small.
MR. KELLEYHOUSE responded it is a very small pool of people.
He stressed CSHB 443(RES) will allow the department to
cooperate with those people.
Number 400
REPRESENTATIVE FINKELSTEIN expressed concern the department
will only get into cooperative agreements with people whose
opinions are in agreement with the department. He
understood that is not the intent of the department but the
language currently in CSHB 443(RES) will allow the
department to exclude people because the department does not
agree with their viewpoint. He felt the legislature has an
obligation to allow people in the state, with different
views, to have access to information, as long as that access
does not interfere with the department's operations.
MR. KELLEYHOUSE responded he has been a scientist for twenty
years and during that period of time, he has worked and
shared information with many researchers holding different
viewpoints than his own. He stressed a difference of
opinion would never cause him or Commissioner Rosier to ever
recommend or deny access to information. He said it is the
total nature of the opposition which weighs into the
decision on whether or not it is in the state's best
interest to enter into an agreement. He reiterated that the
proposed pending amendment may provide some risk for
litigation or argument for involvement of individuals where
the release of information will adversely affect the state's
interest.
REPRESENTATIVE FINKELSTEIN stated it is difficult to
understand how someone may sue based on the language
contained in the proposed amendment, since the release of
information is discretionary upon the department and all of
the findings remain with ADF&G.
Number 445
HENRY WILSON, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW,
testified via teleconference and stated the question of
detriment in current statute and in the proposed amendment
is still going to be open to differing opinions and the
possibility of litigation. He said in the current case, the
argument was made that the use would not be detrimental to
fish and wildlife populations. He can foresee instances
where similar types of arguments can be made. He did not
think the question of the (indiscernible) opinion of the
commissioner being the first determination of detriment
would necessarily preclude litigation because an argument
can be made that the commissioner's opinion was arbitrary.
MR. WILSON said he shares the concern of ADF&G that
interjecting the concept of detriment into the equation
leaves the door open for litigation. He stated the
Department of Law, in reviewing the original statute,
determined the intent of the legislature was to confirm the
department's authority to keep information confidential and
only by interjecting the concept of detriment, was the door
opened up in ways the legislature did not intend. He
expressed concern about the concept of detriment being
subject to different opinions.
MR. WILSON stated the committee's discussion is focusing on
the use of information for research purposes. He stressed
there are other purposes which people might be requesting
this information for, such as tourist businesses--groups who
want to view wildlife. He felt there are other
circumstances where people might request this information
and argue their particular use is not detrimental, either to
the population or the other subjects contained in the
proposed amendment.
Number 510
REPRESENTATIVE BUNDE expressed concern about commercial
interests using confidential information and does not
support releasing information, gathered at the expense of
the state, for private gain.
REPRESENTATIVE JAMES stated the pending amendment seems
innocent but anytime more words are added into a definition,
there will always be more people who want to make the words
say different things. She felt the bill, as currently
amended, already accomplishes the desired goal. She thought
the pending amendment is unnecessary and is opening the door
for disputes.
REPRESENTATIVE FINKELSTEIN asked if there is anything in
CSHB 443(RES) which precludes the department from not
releasing information to people who disagree with the
department. He felt without the language regarding the
detriment to fish and wildlife, decisions will be based only
on the department's viewpoint.
MR. WILSON clarified that Representative Finkelstein was
asking the question in regard to CSHB 443(RES), without the
pending amendment.
REPRESENTATIVE FINKELSTEIN said that is correct.
MR. WILSON responded the only possibility is the provision
(indiscernible) the release necessary to comply with a court
order. Otherwise, he does not see language addressing the
issue Representative Finkelstein mentioned, unless there is
an instance where the department contracts with people they
disagree with.
REPRESENTATIVE FINKELSTEIN said that was his point. If
there is an independent person who disagrees with ADF&G, the
department can choose not to give out information based only
on a disagreement.
Number 595
REPRESENTATIVE HUDSON felt that perhaps part of the pending
amendment can be used. He suggested beginning on page 1,
line 5, it could read, (d) When in the opinion of the
commissioner, the knowledge may be detrimental to fish,
wildlife, human safety, or research or management programs
being conducted by the department or authorized by the
department, the department shall keep confidential... He
said this change will at least give a purpose for the
justification of the commissioner having... He stated along
with the first amendment already adopted, this expands the
department's interaction with specific activities which have
been agreed to be used only for purposes under contract or
agreement.
MR. WILSON thought Representative Hudson's suggestion is a
reasonable alternative but the possibility of litigation
will still be faced, to determine whether a particular use
of the information is detrimental and whether or not the
commissioner's opinion is reasonable and not arbitrary.
REPRESENTATIVE HUDSON clarified the suggestion sets up a
potential standard which could be used by someone who
believes that the commissioner's authority has not been
properly executed.
MR. WILSON responded that is a possibility. He said it
depends on how much interest there is in the information,
how active people are and how far they want to pursue the
information. He stated it could take a series of court
cases to define whether or not a particular group's use of
the information is detrimental.
TAPE 94-46, SIDE B
Number 000
CHAIRMAN WILLIAMS asked if there were any objections to the
amendment proposed by Representative Finkelstein.
REPRESENTATIVE HUDSON OBJECTED.
REPRESENTATIVE FINKELSTEIN stated if there is a desire to
preclude lawsuits, all of the access to public information
laws could be rewritten in a way that the state will never
be sued. He said the result would be the least access,
instead of the ultimate goal, which is the most access. He
stressed there is a potential for lawsuits anytime there is
an attempt to allow citizens access while protecting the
state's interest. He said the other extreme is making
information, which any department does not want anyone to
see, unavailable.
REPRESENTATIVE JAMES said she has less concern with the
second part of the amendment than the first part. She felt
the second part of the amendment is quite definitive.
REPRESENTATIVE DAVIES made a MOTION to DIVIDE the question.
CHAIRMAN WILLIAMS asked if there were any objections to the
motion. Hearing none, the MOTION PASSED.
CHAIRMAN WILLIAMS asked for a roll call vote on the MOTION
to AMEND CSHB 443(RES), on page 1, line 7, after "(2)",
delete [WHEN THE KNOWLEDGE MAY BE DETRIMENTAL TO THE FISH OR
WILDLIFE POPULATION] and insert, "when in the opinion of the
commissioner, the knowledge may be detrimental to fish,
wildlife, human safety, or research or management programs
being conducted by the department or authorized by the
department,".
Voting in favor of the amendment were Representatives Davies
and Finkelstein. Voting against the amendment were
Representatives Williams, Hudson, Bunde, Carney, Green,
James, and Mulder. The MOTION was DEFEATED 7-2.
CHAIRMAN WILLIAMS asked for a roll call vote on the MOTION
to AMEND CSHB 443(RES), on page 2, line 2, following
"population." and insert, "The department may also release
records and information that are kept confidential under
this subsection, except for telemetry radio frequencies and
other electronic locating information, to a requestor
conducting scientific research or other specific activities
if the requestor agrees to use the records and information
only as provided under terms of a contract or agreement with
the department."
Voting in favor of the amendment were Representatives
Finkelstein, James, and Davies. Voting against the
amendment were Representatives Williams, Hudson, Bunde,
Carney, Green, and Mulder. The MOTION was DEFEATED 6-3.
REPRESENTATIVE MULDER made a MOTION to MOVE CSHB 443(RES),
with accompanying fiscal notes, out of committee with
INDIVIDUAL RECOMMENDATIONS.
REPRESENTATIVE FINKELSTEIN OBJECTED.
REPRESENTATIVE FINKELSTEIN stated there are very few people
in the state who want this information, and there are very
few independent scientists, researchers, biologists in the
state. He said everyone is employed by the state or federal
government or municipalities. He felt there should be some
limited access provided to these few people, where the
department's and state's interests are not going to be
harmed and also where the release of the information is not
purely discretionary upon the department.
CHAIRMAN WILLIAMS asked for a roll call vote. Voting in
favor of the motion were Representatives Williams, Hudson,
Bunde, Carney, Green, James, and Mulder. Voting against the
motion were Representatives Finkelstein and Davies. The
MOTION PASSED 7-2.
Number 075
HB 357 - Remove Liens On Mental Health Land
REPRESENTATIVE JEANNETTE JAMES, PRIME SPONSOR, stated she
filed HB 357 because at the beginning of the session, there
was no indication that the Mental Health Lands issue would
be solved and she felt it was very important that the more
than 3,000 Moms and Pops be freed from the situation they
have been stuck in for years, having the lis pendens on
their property. Subsequently, she put the bill on hold
because the Department of Natural Resources (DNR) had told
her they had a solution. Now, nearly three months later,
she is fearful that the presentation made by the department
to settle the Mental Health Lands issue may or may not be
passed. Therefore, she requested a hearing on HB 357 so it
could be passed out, moved to Finance, and join HB 201,
which is the substitute presented by the department.
REPRESENTATIVE JAMES said while HB 357 only addresses a
small portion of the Mental Health Lands litigation, there
are more than 3,000 people affected and a solution must be
found so they are not held hostage any longer. The
committee substitute for HB 201, if passed, will accomplish
the same goal as HB 357 but HB 201 has many other things in
it which may hold up its progress. She believed that HB 357
will at least address the situation with the Moms and Pops.
Number 105
REPRESENTATIVE DAVIES commented Judge Greene's statements in
the past suggest this approach will be, in her words, a
cruel hoax and would not preclude somebody on behalf of the
mental health program from going in and taking one of the
third party purchasers to court individually. He did not
see how the passage of HB 357 will prevent that
circumstance.
REPRESENTATIVE JAMES responded the court order resulted
because in trying to free the Moms and Pops, there was no
identification of those lands sold and no provision made for
payment of those lands, except that the settlement would
eventually accomplish that. She stated HB 357 is different
in that it specifically puts the state of Alaska on record
to committing money or additional land to cover the costs of
the third party lands. The original court order said that
the state would reconstitute the Mental Health Lands Trust,
except for lands which were sold, and those lands would be
compensated at fair market value. She stressed HB 357
provides that fair market value be paid to the Mental Health
Lands Trust for the Moms and Pops. Therefore, the third
party purchasers will be held harmless because the state is
promising to meet that commitment.
Number 160
JIM GOTTSTEIN, REPRESENTATIVE, ALASKA MENTAL HEALTH
ASSOCIATION, testified via teleconference and stated passing
HB 357 will not have much effect. However, he felt the bill
has ideas which can be used to solve specific problems with
the third party purchasers. He said the 1978 legislation,
which the Supreme Court declared invalid in 1985, did
contain a promise to pay for the land taken. The Supreme
Court did not even consider that promise to pay worthy of
note, since nothing was ever paid regardless that the
statute said the state intended to pay, and that statute was
declared invalid.
MR. GOTTSTEIN stated the Supreme Court has been clear that
there are two ways to resolve the Mental Health Lands Trust
litigation: 1) a settlement which both sides bring to the
court for its consideration and approval if fair; and 2)
litigate the issue under the Supreme Court's decision in
1985. Therefore, the legislature cannot just pass a bill
and fix it.
MR. GOTTSTEIN said the basic structure of HB 357 is to trade
out the private third party purchasers as a separate piece.
He noted the Mental Health Association has been proposing
that idea for some time. He added the work done over the
past two and one-half years to identify land, establish
values, etc., makes it very easy to take this specific part
of the problem and fix it this year. He felt an exchange
package can be developed and enacted. That kind of
suggestion has been made by the Mental Health Association to
the state, but the idea has not been pushed because the
Administration and the legislature have expressed a great
desire to solve that particular problem.
Number 213
MR. GOTTSTEIN stated the Administration has wanted to
develop a global settlement solution so there has been no
desire to review this particular piece of the pie. He also
felt the committee substitute for HB 201 is a step backwards
as well.
REPRESENTATIVE JAMES said under discussion is approximately
50,000 acres and over 3,000 people who are being held in a
trial type situation. She thought there will be a benefit
to the state as a whole, to the 3,000 people, and to the
Mental Health community if the third party purchasers
problem can be eliminated, so the rest of the problem can be
solved.
MR. GOTTSTEIN agreed. He felt the idea of HB 357 is good.
However, there cannot just be an intent to compensate, there
has to be an actual compensation provision to make the bill
work. He said all of the pieces to accomplish that are in
place but there is a need to determine what that
compensation should be and then do it.
REPRESENTATIVE JAMES asked if part of HB 357 indicates that
the attorney general's office will go to court to dissolve
the injunction, which will involve a settlement with the
third parties.
MR. GOTTSTEIN responded the attorney general's office has
tried to get around injunctions on other court rulings many
times and has even asked the Alaska Supreme Court to
dissolve the injunction or grant another release and has
been unsuccessful. He said if an actual compensation
package is worked out for the third party purchasers, the
lis pendens will be released with respect to those parcels
and the preliminary injunction will be canceled. He felt
the key is not just an expression of intent to compensate,
but there has to be an actual compensation.
Number 271
REPRESENTATIVE DAVIES commented in reading Judge Greene's
decision, it is obvious that she is very skeptical of any
promises made by the legislature to resolve this issue. He
asked if the third party purchasers are to be separated out
and actually compensated by finding suitable substitute
lands, will that type of deal withstand Judge Greene's
scrutiny and will she agree to solving the issue in two
steps.
MR. GOTTSTEIN replied he felt she would. He stated if all
of the plaintiffs side agree on this arrangement, this kind
of release will fly through the court and can be
accomplished very quickly. He felt the Moms and Pops issue
is the easiest part of the overall issue to fix because
there is not a lot of acreage involved and the land has
already been identified.
Number 300
REPRESENTATIVE HUDSON asked if most of the parcels being
discussed are held by municipalities.
REPRESENTATIVE JAMES stated many of the parcels are held by
municipalities. She said many of the Moms and Pops in her
district have actually purchased the land from the state on
a state subdivision, have paid for the land, and have title
to it, subject to the lis pendens. She noted there are many
who are still paying to the state with the lis pendens and
there are some lands which have been transferred to
municipalities, subdivided, sold and are mortgaged to
banking institutions. She felt the problem needs to be
solved for these people who are entirely innocent and cannot
be held hostage any longer, either by the plaintiffs or the
state of Alaska.
Number 339
REPRESENTATIVE HUDSON clarified every parcel has had a value
and in some cases, the land has already been paid for. He
assumed there has been a total value established for the
entire package, a value which has been lost and needs to be
made up.
MR. GOTTSTEIN said that is correct and added that most of
the work, in terms of the value, has already been done. He
stated most of the work, in terms of the value of the
replacement lands, has also been completed. He felt there
are no significant disagreements between the state and the
Mental Health Association in regard to the value of the
lands.
REPRESENTATIVE GREEN said the fiscal note analysis states
that although the plaintiffs will most likely challenge the
elimination of the encumbrances, adoption of this bill may
help advance the state's cause in the overall mental health
trust litigation. He noted there have been differences
amongst the plaintiffs as well as the other side. He
wondered if the other attorneys for the plaintiffs will
think HB 357 is a good step as this step may indicate an
interruption of the delicate balance which is being worked
out between DNR, the plaintiffs, and the Mental Health
Trust.
Number 385
DAVID WALKER, ATTORNEY FOR SETTLING PLAINTIFFS, testified
via teleconference and stated although he cannot speak for
all of the plaintiffs or guarantee their reactions, he felt
the reaction will be positive because in talking with them,
they indicated support for this idea. He said the key issue
with these third party purchasers is the fact they are being
used as leverage. He stated settling this part of the issue
will help. He felt all the plaintiffs will support the idea
in HB 357. He stated there is a need to go forward with a
discreet (indiscernible) package (inaudible) state lands
into the trust in exchange for the private third party
purchaser lands. If that is accomplished, then the lis
pendens and the injunction will be released in respect to
those parcels. He felt the court will approve this idea.
Number 420
REPRESENTATIVE PAT CARNEY asked how HB 357 will be
accomplished. He assumed there will be a land exchange and
if so, asked how that will affect HB 201.
MR. WALKER stated this will be a discreet package exchanging
these lands for other lands and the third party purchaser
portion will be eliminated from HB 201.
Number 437
CHAIRMAN WILLIAMS thought the courts had said they will not
accept a piecemeal solution.
MR. WALKER responded the court's greatest concerns about
this issue were not only the concerns regarding the rights
of the private third party purchasers but also a deep
concern over the rights of the trust. With HB 357, those
concerns will be taken care of because it will not
complicate things for the court and it will clearly be
something that the parties can come forward and say the
trust is not being harmed, because even though the trust is
releasing lands which are claimed by private third party
purchasers, they are getting other lands in exchange. He
felt the court will not insist on a full resolution of all
issues at once.
REPRESENTATIVE CARNEY clarified it is the Administration's
position that if a definite settlement on Chapter 66 is not
reached, all of that law is null and void, resulting in no
Mental Health Trust authority in existence.
MR. WALKER said that is correct.
REPRESENTATIVE CARNEY asked if this land exchange is made
and that falls through, how will HB 357 work.
MR. WALKER responded if there is a failure ultimately and
there is no Mental Health Trust authority, this property
will be put in the Mental Health Trust Corpus. Therefore,
there still will be a trust. There will be arguments about
how that trust will be managed and what constitutes proper
stewardship of it. There will be an inclusion of this land
into the body of the Corpus of that trust and in exchange
for release of the claims against the private third party
purchasers.
MR. GOTTSTEIN added if there is a trust, a trustee is needed
although there may not be an exact trust authority. One of
the issues in the litigation is what the obligation of the
state is in terms of acting like a trustee. He said the key
point is that it is possible to carve this portion out,
replace these encumbered lands with unencumbered lands in
the trust and then however those lands get resolved in the
case will apply to these new lands.
REPRESENTATIVE DAVIES felt there is some question whether or
not the courts will accept HB 357, but having read Judge
Greene's opinions several times, he said there is a
reasonable chance the court will allow HB 357 to go forward,
as it only involves 10 percent of the disputed lands and
will have a concrete exchange included, if amended. He
thought if a partial settlement is presented, which both
sides agree to, the third party purchasers could be taken
off the hook. He suggested that Representative James bring
back a committee substitute which includes a specific land
exchange.
CHAIRMAN WILLIAMS stated in the interest of time, since HB
357 has to go to the House Judiciary and Finance Committees,
perhaps the bill could be amended in one of those
committees.
Number 536
REPRESENTATIVE JAMES said she is willing to amend the bill
in one of those committees, if the bill can be moved out of
this committee.
JERRY GALLAGHER, LEGISLATIVE LIAISON, DEPARTMENT OF NATURAL
RESOURCES, reminded committee members that HB 201 solves the
broad range of problems. The department has no objection to
HB 357 moving on, but believes the legislature's effort
should be geared toward the entire problem because it is a
large problem. He said the issue of a lands list is very
complicated and the department has promised the House
Finance Committee they will have a list of proposed
substitute lands by next Monday. That list will be beyond
what is necessary for the Moms and Pops exchange.
REPRESENTATIVE DAVIES said Mr. Gottstein has indicated that
a noncontroversial package can be put together and a
settlement be reached, which is consistent with the
discussions he has had with a number of people interested in
the litigation. He added that the problem with the 400,000
acres that the state is proposing is there are some
controversial lands included but it may be easy to get up to
200,000 acres. He felt if that is true, 50,000 acres can be
found and an agreement can be reached.
MR. GALLAGHER stated everyone has sympathy for the Moms and
Pops because they are in a very difficult situation. He
cannot answer the question of whether or not it will be easy
to accomplish HB 357. He said his concern is that taking
the easy lands and allocating them to this one group, the
residual issues might become that much more difficult to
solve.
REPRESENTATIVE JAMES agreed that an effort needs to be made
to solve the entire issue. She said her intent in moving HB
357 forward is to not close out an option--if the big issue
is not resolved, HB 357 is an option to get through the
legislature this year. She felt the Moms and Pops have been
held hostage and there has been no real intense desire on
the part of the plaintiffs or the state to get the Moms and
Pops out before the entire issue is resolved. She stressed
the release could have been done three years ago if the
intent was really to do that. She noted that the agreement
is probably going to involve land more valuable than what
the third party purchasers' land is worth but it is a price
which must be paid to get these people free. She is willing
to let HB 357 sit in the House Finance Committee and push HB
201 on, but if she sees at the last minute that HB 201 is
not going to pass, she wants HB 357 to pass, to ensure these
people are taken care of.
Number 658
MR. WALKER emphasized the plaintiffs are in support of
solving the problem and assisting in this exchange but in
reading HB 357, there are many statements contained in the
bill which he opposes. He does not feel HB 357 sets the
tone required to accomplish the settlement of this part of
the issue. He said the plaintiffs are continuing to work on
the resolution of the entire issue.
REPRESENTATIVE GREEN expressed continued concern about HB
357 jeopardizing the resolving of the entire Mental Health
Lands issue.
TAPE #94-47, SIDE A
Number 000
REPRESENTATIVE HUDSON felt the final solution on HB 357 will
rest with the final committee of consideration. He said
whether or not HB 357 will be able to ride on its own merits
or whether or not it will upset the ultimate state's
negotiations on the total package is beyond this committee.
REPRESENTATIVE HUDSON made a MOTION to MOVE HB 357 with
accompanying zero fiscal notes and a letter of transmittal
indicating that the bill needs amending, out of committee
with INDIVIDUAL RECOMMENDATIONS.
REPRESENTATIVE FINKELSTEIN said the bill, as written, does
not meet the legislature's obligation to the Mental Health
Trust and felt HB 357 will be another empty promise.
Therefore, he cannot support the bill.
REPRESENTATIVE DAVIES wondered if the motion to move and the
attached recommendation for amendment could be made more
specific. He would feel more comfortable if there were some
reference in the needs amending statement which refers to
the issue of needing specific language for the land
exchange. He felt if HB 357 does not contain a land
exchange provision, it will be an empty promise and he could
not support it either. He would agree to pass HB 357 out of
committee if a recommendation be made that in the transit to
the next committee that kind of CS be brought forward.
CHAIRMAN WILLIAMS said the sponsor wants the bill to move
and will amend it.
Number 054
REPRESENTATIVE GREEN expressed concern about the zero fiscal
note analysis stating "most likely will challenge" and
"funds are available in existing mental health lands
budget." He wondered if there actually will be a zero
fiscal note.
MR. GALLAGHER responded the fiscal note in committee members
folders is from the Department of Law which he cannot speak
to. He said DNR is preparing a zero fiscal note, because
there is funding in effect currently for the Chapter 66
settlement, which includes the conveyance of land. HB 357
will not require additional funding.
REPRESENTATIVE GREEN felt if HB 357 is going to cost money,
the committee should know that.
REPRESENTATIVE HUDSON said the reason he cannot offer a
specific amendment is because he does not know what it
should be. He felt HB 357 is a fall back position which
will have to be weighed in the overall scheme of things as
it moves on to House Finance where it will join HB 201. He
stated when HB 357 gets to that point, the necessary
specific amendments will be attached or it will never pass
on the floor. He stressed he would never vote for HB 357 in
its current form.
REPRESENTATIVE DAVIES stated there needs to be a recognition
that the land exchange is a fundamental problem with the
bill as it is currently drafted.
REPRESENTATIVE JAMES said she will be happy to put down on
record that the recommendation of the committee is that
instead of a promise to exchange, the language in the bill
will actually require a land exchange.
REPRESENTATIVE HUDSON said the letter of transmittal will
state that the bill is transferred with a notation that it
requires amending in the language concerning the land
exchange provision.
CHAIRMAN WILLIAMS asked if there were any objections to the
motion. Hearing none, the MOTION PASSED.
CHAIRMAN WILLIAMS asked what the committee's wishes are in
regard to the confirmation hearings for the ten Governor's
appointees which have been referred to the committee.
REPRESENTATIVE DAVIES asked if all of the resumes could be
submitted to committee members for review before the next
committee meeting.
ANNOUNCEMENTS
CHAIRMAN WILLIAMS announced the committee will meet Friday,
April 8 at 8:15 a.m. to hear SCR 13 and SCR 16.
ADJOURNMENT
There being no further business to come before the House
Resources Committee, Chairman Williams adjourned the meeting
at 10:00 a.m.
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