Legislature(1997 - 1998)
04/07/1998 01:50 PM 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 7, 1998
1:50 p.m.
MEMBERS PRESENT
Representative Scott Ogan, Co-Chairman
Representative Beverly Masek, Vice Chair
Representative Ramona Barnes
Representative Joe Green
Representative William K. (Bill) Williams
Representative Irene Nicholia
Representative Reggie Joule
MEMBERS ABSENT
Representative Bill Hudson, Co-Chairman
Representative Fred Dyson
COMMITTEE CALENDAR
HOUSE BILL NO. 284
"An Act relating to infestations and diseases of timber."
- MOVED CSHB 284(RES) OUT OF COMMITTEE
COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 180(FIN)
"An Act relating to state rights-of-way."
- HEARD AND HELD
COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 250(FIN) am
"An Act relating to management of game, to the fish and game fund
and federal aid for restoration of wildlife and fish, and to the
duties of the commissioner of fish and game."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 284
SHORT TITLE: TIMBER THREATENED BY PESTS OR DISEASE
SPONSOR(S): REPRESENTATIVES(S) HODGINS
Jrn-Date Jrn-Page Action
5/10/97 1807 (H) READ THE FIRST TIME - REFERRAL(S)
5/10/97 1807 (H) RESOURCES
3/12/98 (H) RES AT 1:00 PM CAPITOL 124
3/12/98 (H) MINUTE(RES)
3/24/98 (H) RES AT 1:00 PM CAPITOL 124
3/24/98 (H) MINUTE(RES)
4/07/98 (H) RES AT 1:00 PM CAPITOL 124
BILL: SB 180
SHORT TITLE: STATE RIGHTS-OF-WAY: RS 2477
SPONSOR(S): SENATOR(S) HALFORD, Green, Leman, Sharp, Torgerson,
Wilken, Pearce, Ward, Taylor
Jrn-Date Jrn-Page Action
4/18/97 1277 (S) READ THE FIRST TIME - REFERRAL(S)
4/18/97 1277 (S) RESOURCES, FINANCE
2/06/98 (S) RES AT 3:30 PM BUTROVICH ROOM 205
2/09/98 (S) RES AT 3:30 PM BUTROVICH ROOM 205
2/09/98 (S) MINUTE(RES)
2/23/98 (S) MINUTE(RES)
2/24/98 2629 (S) RES RPT PROPOSED COMMITTEE SUBSTITUTE
4DP SAME TITLE
2/24/98 2629 (S) DP: HALFORD, LEMAN, SHARP, GREEN
2/24/98 2629 (S) FISCAL NOTE TO SB & PROPOSED
COMMITTEE SUBSTITUTE (DNR)
2/24/98 2629 (S) ZERO FISCAL NOTE TO SB & PROPOSED
COMMITTEE SUBSTITUTE (DOT)
3/11/98 (S) FIN AT 9:30 AM SENATE FINANCE 532
3/12/98 2839 (S) FIN RPT PROPOSED COMMITTEE SUBSTITUTE
5DP 1NR SAME TITLE
3/12/98 2839 (S) DP: SHARP, PEARCE, PHILLIPS
3/12/98 2839 (S) DONLEY, TORGERSON NR: ADAMS
3/12/98 2839 (S) PREVIOUS FN APPLIES TO PROPOSED
COMMITTEE SUBSTITUTE (DOT)
3/18/98 2881 (S) FISCAL NOTE TO PROPOSED COMMITTEE
SUBSTITUTE (DNR)
3/19/98 (S) RLS AT 11:30 AM FAHRENKAMP RM 203
3/19/98 (S) MINUTE(RLS)
3/20/98 2918 (S) RULES TO CALENDAR 3/20/98
3/20/98 2919 (S) READ THE SECOND TIME
3/20/98 2919 (S) FIN PROPOSED COMMITTEE SUBSTITUTE
ADOPTED UNAN CONSENT
3/20/98 2919 (S) COSPONSOR(S): PEARCE, WARD, TAYLOR
3/20/98 2919 (S) ADVANCED TO THIRD READING UNAN
CONSENT
3/20/98 2920 (S) READ THE THIRD TIME CSSB 180(FIN)
3/20/98 2920 (S) PASSED Y15 N3 E2
3/20/98 2920 (S) ADAMS NOTICE OF RECONSIDERATION
3/23/98 2957 (S) RECONSIDERATION NOT TAKEN UP
3/23/98 2958 (S) TRANSMITTED TO (H)
3/24/98 2721 (H) READ THE FIRST TIME - REFERRAL(S)
3/24/98 2722 (H) STATE AFFAIRS, RESOURCES, FINANCE
3/31/98 (H) STA AT 8:00 AM CAPITOL 102
3/31/98 2811 (H) STA RPT 3DP 1DNP 1NR
3/31/98 2811 (H) DP: JAMES, HODGINS, RYAN; DNP: ELTON;
3/31/98 2811 (H) NR: BERKOWITZ
3/31/98 2811 (H) SENATE FISCAL NOTE (DNR) 3/18/98
3/31/98 2811 (H) SENATE ZERO FISCAL NOTE (DOT) 2/24/98
3/31/98 2812 (H) REFERRED TO RESOURCES
4/07/98 (H) RES AT 1:00 PM CAPITOL 124
BILL: SB 250
SHORT TITLE: MANAGEMENT OF GAME
SPONSOR(S): SENATOR(S) SHARP, Taylor, Wilken
Jrn-Date Jrn-Page Action
1/21/98 2251 (S) READ THE FIRST TIME - REFERRAL(S)
1/21/98 2252 (S) RES, FIN
1/26/98 2309 (S) COSPONSOR: WILKEN
2/11/98 (S) RES AT 3:30 PM BUTROVICH ROOM 205
2/11/98 (S) MINUTE(RES)
2/12/98 2496 (S) RES RPT 4DP 1DNP/AM
2/12/98 2496 (S) DP: HALFORD, TAYLOR, LEMAN, GREEN
2/12/98 2496 (S) DNP/AM: LINCOLN
2/12/98 2496 (S) FISCAL NOTE (F&G)
3/12/98 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/12/98 2840 (S) FIN RPT PROPOSED COMMITTEE SUBST
5DP 1NR SAME TITLE
3/12/98 2840 (S) DP: SHARP, PHILLIPS, PARNELL
3/12/98 2840 (S) TORGERSON, DONLEY NR: ADAMS
3/13/98 2859 (S) ZERO FISCAL NOTE (F&G)
3/19/98 (S) RLS AT 11:30 AM FAHRENKAMP RM 203
3/19/98 (S) MINUTE(RLS)
3/23/98 2947 (S) RULES TO CALENDAR 3/23/98
3/23/98 2948 (S) READ THE SECOND TIME
3/23/98 2948 (S) FIN PROPOSED COMMITTEE SUBSTITUTE
ADOPTED UNAN CONSENT
3/23/98 2948 (S) AM NO 1 ADOPTED Y14 N4 E2
3/23/98 2950 (S) AM NO 2 FAILED Y5 N13 E2
3/23/98 2951 (S) ADVANCED TO THIRD READING UNAN
CONSENT
3/23/98 2951 (S) READ THE THIRD TIME CSSB 250(FIN) AM
3/23/98 2951 (S) PASSED Y14 N4 E2
3/23/98 2951 (S) LINCOLN NOTICE OF RECONSIDERATION
3/24/98 2974 (S) RECON TAKEN UP - IN THIRD READING
3/24/98 2974 (S) PASSED ON RECONSIDERATION Y14 N5 E1
3/24/98 2977 (S) TRANSMITTED TO (H)
3/25/98 2732 (H) READ THE FIRST TIME - REFERRAL(S)
3/25/98 2733 (H) RESOURCES, FINANCE
4/07/98 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE MARK HODGINS
Alaska State Legislature
Capitol Building, Room 110
Juneau, Alaska 99801
Telephone: (907) 465-3779
POSITION STATEMENT: Sponsor of HB 284.
DAN STEIN
1712 Gilmore Trail
Fairbanks, Alaska 99712
Telephone: (907) 458-9386
POSITION STATEMENT: Provided testimony in opposition to HB 284.
ERIK HOLLAND
P.O. Box 73751
Fairbanks, Alaska 99707
Telephone: (907) 452-2760
POSITION STATEMENT: Provided testimony in opposition to HB 284.
DOUGLAS YATES
P.O. Box 221
Ester, Alaska 99725
Telephone: (907) 479-8300
POSITION STATEMENT: Provided testimony in opposition to HB 284.
HUGH DOOGEN
3593 Slater Drive
Fairbanks, Alaska 99701
Telephone: (907) 456-1869
POSITION STATEMENT: Provided testimony on HB 284.
MARTHA WELBOURN, Deputy Director
Central Office
Division of Forestry
Department of Natural Resources
3601 "C" Street, Suite 1034
Anchorage, Alaska 99503-5937
Telephone: (907) 269-8473
POSITION STATEMENT: Provided testimony in opposition to HB 284.
BRETT HUBER, Legislative Assistant
to Senator Rick Halford
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
Telephone: (907) 465-4958
POSITION STATEMENT: Provided sponsor statement for SB 180.
ELIZABETH BARRY, Assistant Attorney General
Natural Resources Section
Civil Division (Anchorage)
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Answered questions of the committee members on
SB 180.
JANE ANGVIK, Director
Division of Land
Department of Natural Resources
3601 "C" Street, Suite 112
Anchorage, Alaska 99503-5947
Telephone: (907) 269-8503
POSITION STATEMENT: Answered questions of the committee members on
SB 180.
PETE AMUNDSON
918 Jackson Street
Ketchikan, Alaska 99901
Telephone: (907) 225-6300
POSITION STATEMENT: Provided testimony on SB 180.
NELSON ANGAPOLE, SR., Executive Assistant - Lands
Alaska Federation of Natives
1577 "C" Street, Suite 300
Anchorage, Alaska 99501
Telephone: (907) 274-3611
POSITION STATEMENT: Provided testimony on SB 180.
MARILYN WILSON, Legislative Assistant
to Senator Bert Sharp
Alaska State Legislature
Capitol Building, Room 516
Juneau, Alaska 99801
Telephone: (907) 465-3004
POSITION STATEMENT: Provided sponsor statement for SB 250.
GERALD BROOKMAN
715 Muir Avenue
Kenai, Alaska 99611
Telephone: (907) 283-9329
POSITION STATEMENT: Provided testimony on SB 250.
SENATOR BERT SHARP
Alaska State Legislature
Capitol Building, Room 516
Juneau, Alaska 99801
Telephone: (907) 465-3004
POSITION STATEMENT: Sponsor of SB 250.
ACTION NARRATIVE
TAPE 98-42, SIDE A
Number 001
CO-CHAIRMAN SCOTT OGAN called the House Resources Standing
Committee meeting to order at 1:50 p.m. Members present at the
call to order were Representatives Ogan, Masek, Barnes, Green, and
Williams. Representative Joule arrived at 1:54 p.m.
Representative Nicholia arrived sometime after the meeting was
called to order.
HB 284 - TIMBER THREATENED BY PESTS OR DISEASE
CO-CHAIRMAN OGAN announced the first order of business was House
Bill Number 284, "An Act relating to infestations and diseases of
timber."
CO-CHAIRMAN OGAN called on Representative Mark Hodgins, sponsor of
the bill.
Number 019
REPRESENTATIVE MARK HODGINS, Alaska State Legislature, stated the
bill requires the commissioner to implement necessary salvage
measures when timber on state or municipal forests are infested or
diseased. There is an amendment to address the concern of the
commissioner's power over chapter 17 discussed at an earlier
hearing. He would like to see the amendment adopted. It would
remove the concerns of Co-Chairman Ogan.
Number 046
REPRESENTATIVE RAMONA BARNES made a motion and asked unanimous
consent to adopt the amendment. It reads as follows:
TO: HB 284
Page 2, line 20,
Following "chapter":
Insert ", other than a requirement of or a
regulation adopted under AS 41.17.115-41.17.119,"
CO-CHAIRMAN OGAN called for a brief at ease.
CO-CHAIRMAN OGAN called the meeting back to order.
CO-CHAIRMAN OGAN asked whether there is any objection to the
motion. There being no objection, it was so adopted.
CO-CHAIRMAN OGAN called for a brief at ease.
CO-CHAIRMAN OGAN called the meeting back to order.
Number 070
DAN STEIN testified via teleconference in Fairbanks. He asked Co-
Chair Ogan whether it is time to comment on the amendment just
passed.
CO-CHAIRMAN OGAN replied he could comment on anything he would like
to. Yes, an amendment was just passed to protect stream buffers
and riparian areas.
REPRESENTATIVE HODGINS stated the amendment prohibits the
commissioner of natural resources from waiving the requirements of
AS 41.17.115 - 41.17.119.
Section 115 is riparian management
Section 116 is riparian standards for private lands
Section 118 is riparian standards for state lands
Section 119 is minimum riparian standards for other public lands
REPRESENTATIVE HODGINS stated the amendment, therefore, would limit
Mr. Stein's testimony.
Number 094
MR. STEIN stated the amendment is good, but he still opposes the
bill because of the public process on the Kenai Peninsula already
underway. The bill undermines the process. He also opposes
exempting salvage and emergency sales of less than 200 acres from
the preparation of a plan of operation. A plan of operation is to
protect Alaska's resources including fish and wildlife. It is a
mistake to not have a plan of operation. The current exemption for
emergency sales in Region I (Southeast) is at a level of ten acres.
There is no scientific evidence to move it to 200 acres. Why was
it placed at such a low acreage before? he asked. It is also a
mistake to give the commissioner the ability to waive any
requirement of the Forest Practices Act.
CO-CHAIRMAN OGAN announced the arrival of Representative Joule.
Number 139
ERIK HOLLAND testified via teleconference in Fairbanks. The
amendment is good, but he still stands in opposition to the bill.
The bill affects the entire state when the biggest part of the
problem is on the Kenai Peninsula. It is too broad. It also
undermines a public process that's already underway funded with
federal money. Why spend our state funds when it's already being
worked on? he asked. In addition, the word "shall" on page 1, line
8, should stay as the word "may." Shall is very dictatorial. He
is also concerned about the language "environmental catastrophe"
and "susceptible to infestation or disease" on page 1, lines 13-14.
Wouldn't that really be almost any tree? he asked. It puts a lot
of control of the public forests in the hands of experts who seem
all too willing to sell it off. He is also concerned about the
waiver of the public process.
Number 172
DOUGLAS YATES testified via teleconference in Fairbanks. He is
opposed to the bill, but the amendment is a start to correcting the
egregious provisions in the bill. It is not appropriate that the
bill uses native forest insects and diseases as an excuse to put
timber sales on the fast track. They are natural disturbances and
events that play an important role in natural forces. Wildlife
managers, commercial businesses, non-commercial recreationists, and
private forest owners may define forest health and the need for
salvage very differently than the Department of Natural Resources
and the timber industry. The bill implies that the salvage of dead
trees can eliminate an insect or disease condition when there is no
evidence that a native forest insect or disease can be eliminated
from Alaska. It is misleading to the public to suggest otherwise.
If the intent is to move the bill from the committee, he suggests
at least limiting it to a regional basis, not statewide. It is a
bill about the effect of the beetles on the Kenai Peninsula,
therefore, restrict it to those lands first and monitor the effects
carefully.
Number 216
HUGH DOOGEN testified via teleconference in Fairbanks. It is
criminal that the timber is being infected by spruce beetles. It
is killing off the resources. He objects to (3) on page 2, line
15. It needs to be amended out.
MARTHA WELBOURN, Deputy Director, Central Office, Division of
Forestry, Department of Natural Resources, testified in Juneau.
The department supports the amendment, but continues to oppose the
bill. It would not reduce the impact of the infestation
significantly, but it would add to agency workload. It would not
provide effective new tools to address the problem of infestation.
The department already has the authority to do emergency and below-
cost sales. In addition, waiving notice requirements for the
Forest Practices Act could risk water quality and fish habitat
protection without effectively combating beetle populations. Any
legislative changes should be coordinated with the spruce bark
beetle task force on the Kenai Peninsula. The bill would have
little or no effect on large infestations because it does not
address the main factors that block control of insect outbreaks:
climatic conditions, weak markets for low-value timber, funding for
timber sales, reforestation, and multiple-use concerns of timber
harvest and "roading." The bill would require the state to do more
intensive insect and disease surveys and develop agreements with
private landowners regardless of their interests. Landowners
choose to respond to infestation depending on their authority and
intentions. Private reforestation actions also vary depending on
their long-term intent and financial situations. In addition, it
is unclear whether subsection (d) would require the state to pay
for "necessary salvage measures" on private lands. Implementing
the bill would be costly because it requires actions statewide. In
1997, surveys recorded 17 different types of insects and diseases
that each damaged more than 100 acres of forest lands affecting two
and one-half million acres. The sites are scattered around the
state, many are in remote locations, and many cross ownership
boundaries. The fiscal note submitted for $615,000 would only
provide for an additional 540 acres of salvage and reforestation
per year. When Canadians visited the spruce bark beetle outbreak
a few years ago, they estimated control would cost $50 to $60
million per year. In the remote areas, some levels of infestations
are a natural disturbance and helps to provide a mix of old and
young forest stands. The department respectfully requests that the
bill is not forwarded. As soon as recommendations from the task
force are available the department would be glad to work with the
legislature on any recommendation that would require changes to
state law or additional state funding.
Number 298
REPRESENTATIVE BARNES suggested passing a zero fiscal note with the
bill since Ms. Welbourn testified that the one submitted would not
cover the cost. It is obvious that there is a problem and the
department has done nothing about it. She asked Ms. Welbourn what
the task forces have done.
MS. WELBOURN replied the task forces held so far have laid the
groundwork for a lot of the work that the department has done. On
state lands there have been more than 20 sales on the Kenai
Peninsula alone totaling over 10,000 acres. However, there are
many areas where salvages are not economically feasible because
there are no markets.
MS. WELBOURN further stated the department submitted a fiscal note
that would be sufficient to provide additional surveys to work with
private landowners as required by the bill and for additional
salvages, but it would not provide enough for salvages statewide.
Number 338
REPRESENTATIVE BARNES made a motion and asked unanimous consent to
move HB 284, as amended, from the committee with individual
recommendations and the attached fiscal note(s). Hearing no
objection, CSHB 284(RES) was so moved from the House Resources
Standing Committee.
CSSB 180(FIN) - STATE RIGHTS-OF-WAY: RS 2477
CO-CHAIRMAN OGAN announced the next order of business was CSSB
180(FIN), "An Act relating to state rights-of-way."
CO-CHAIRMAN OGAN called on Brett Huber, staff to Senator Rick
Halford, prime sponsor of the bill.
Number 352
BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska
State Legislature, stated the issue of Revised Statute 2477 (RS
2477) is long-standing and complex. It was granted by the United
States Congress with the passage of the Mining Act of 1866. The
purpose of the law was to provide for and guarantee the public's
right to establish access across federal land. Subsequent
congressional action and more than 100 years of case law recognize
the state's authority to determine and define RS 2477 rights-of-
way. Although Congress repealed RS 2477 rights-of-way in 1976 with
the adoption of the Federal Land Policy Management Act (FLPMA), it
specifically acknowledged their legal existence established prior
to the repeal. Current federal regulations explicitly provide that
any rights conferred by the RS 2477 rights-of-way grant shall not
be diminished.
MR. HUBER further stated the issue received legislative attention
beginning in 1992 and 1993 with appropriations to fund research and
compile historical information. In undertaking those projects, the
Department of Natural Resources (DNR) reviewed some 1,700 potential
routes resulting in 602 identified rights-of-way that appear to
qualify and can be supported with appropriate documentation. These
602 routes are published in the Historical Trails catalogue and
have been incorporated into the state land administration system.
Last year, the legislature passed SJR 13 with broad support. The
resolution reiterated the legislature's position on RS 2477 rights-
of-way and made its objections clear on the United States
Department of Interior's proposed policy that would have
drastically reduced the state's opportunity to resolve these issues
in its favor. A copy of the policy memo from Secretary Babbitt
dated January 22, 1997 has been included in the bill packet. In
addition, information that came forward during the committee
process, as well as a Senate/House Resources joint overview
supports the action taken on SB 180.
MR. HUBER further stated that SB 180 codifies the 602 documented RS
2477 routes. It requires them to be recorded, provides a process
on vacating those rights-of-way, and sets out liability limitations
for the state. While the RS 2477 rights-of-way that are codified
in this bill have already been accepted by public users and deem
supportable by the state, it is likely that the federal government
will challenge some or all of these routes. Although the current
federal administration is attempting to limit the state's right
regarding RS 2477 rights-of-way, over 100 years of case law on
point recognizes state law as controlling on the issue. Codifying
these routes in statute will strengthen the state's position for
possible and subsequent court action, and provide the effected
landowners and the general public the clear notification that these
routes are available for use. "Simply put, Senate Bill 180 says
these are our rights-of-way and they're available for use by the
public. It's an existing right and it's okay to exercise it."
MR. HUBER further stated that Senator Rick Halford believes RS 2477
rights-of-way, although not a panacea, are an important option for
the state's future transportation needs, mineral development,
tourism and recreational opportunities, access to and between rural
areas. The bill enjoys the support of numerous organizations,
including the Resource Development Council, the Alaska State
Chamber of Commerce, the Alaska Outdoor Council, the Territorial
Sportsman, the Alaska Forest Association, and the Alaska Miners
Association.
REPRESENTATIVE REGGIE JOULE asked Mr. Huber whether he was able to
get any support from the larger private landowners in the state.
MR. HUBER replied actually a letter was sent to most of the major
private landowners and groups representing them last year, and
phone contact has been made with many of the land managers of the
Native corporations. There was some concern from the land
management representative from the Alaska Federation of Natives
(AFN). The findings section is intended to address some of the
private property concerns as well as the vacation process. There
has not been one unified position from the Native corporations,
however. They range from, "we don't believe RS 2477 exist at all"
to "we don't want to see a dogsled trail become a highway" to "we
understand that RS 2477s are out there but there are 17B easements
and other options."
REPRESENTATIVE JOULE asked Mr. Huber how he would see the RS 2477
rights-of-way apply to private landowners including the Native
corporations.
MR. HUBER replied it is important to note that the RS 2477 rights-
of-way that the bill proposes to codify already exist. There is no
action now that can create an RS 2477 rights-of-way that wasn't
accepted by public use prior to their extinguishment with the
passage of FLPMA.
REPRESENTATIVE JOULE asked Mr. Huber how would they affect private
property owners.
MR. HUBER replied the effect would be like any other easement or
right-of-way on a piece of land held by the public. "If you hold
the servient estate then you're affected to some degree in that
there is a public right-of-way to cross your property." It is the
intent of the sponsor to balance private property rights with
public access rights, the public access rights that exist whether
codified in the bill or not. It is important to note that there is
a process of vacation for the rights-of-way before being codified
because people don't know exactly where the routes exist on their
property. However, it does not remove the fact that the right-of-
way is there. The bill says, if a private property owner would be
adversely impacted, there is a process for an alternative route to
pursue either administratively through the Department of Natural
Resources or the courts.
REPRESENTATIVE JOULE asked Mr. Huber to expand on the state's
liability he mentioned earlier.
MR. HUBER replied the Department of Law came forward with a request
to include limitations on the liability for the state. The
liability says merely the act of codifying doesn't result in an
additional claim for monetary damages, if somebody disagrees with
an access route. The liability also is for managing the 602
routes. The state has been managing some of them by default
because some are in use. The bill doesn't address their scope of
use, it is an administrative decision by the Department of Natural
Resources. The liability says the routes are available for use at
the risk of the user.
REPRESENTATIVE JOULE asked Mr. Huber whether the liability would be
extended to the private landowners.
MR. HUBER replied there is a statute on the books that deals with
limits of liability on unimproved land. Testimony from the
Legislative Legal and Research Services has indicated that a
servient estate has no liability for use on a public right-of-way
now, therefore, adding language to specifically limit liability to
servient landowners would be superfluous to what is already on the
books.
REPRESENTATIVE JOULE asked Mr. Huber whether that means yes or no.
MR. HUBER replied that means that although this liability doesn't
directly deal with the private property landowners, there are
statutes on the books and case law history that says liability does
not extend to a private landowner if his land is diminished by a
public right-of-way.
CO-CHAIRMAN OGAN stated he is intimately familiar with a number of
rights-of-way that cross private property in his district. One is
within 600 feet of his house and affects his neighbor greatly. The
language to establish an alternative right-of-way is good. He
asked Mr. Huber whether it would have to be 100 feet, or could it
be smaller based on historical use. He also asked has there been
any precedent set in case law.
MR. HUBER replied the bill doesn't speak to the specific scope or
management of the width of a right-of-way. That is currently
handled through DNR regulations on rights-of-way that go through
its nomination and certification process. There is case law on
point in the superior and supreme courts whereby both upheld an
existing RS 2477 right-of-way (Puddicombe). The courts determined
that the right-of-way was 100 feet.
CO-CHAIRMAN OGAN stated if he remembers the case circumstances
correctly he is the only private inholder surrounded by state
lands. An RS 2477 right-of-way goes right through his land. It
seems the state should be reasonable since he is the only private
landowner around. He likes the alternative language in the bill,
and hopes it will help his neighbor and others in similar
situations.
MR. HUBER stated, according to his understanding of the Puddicombe
case, the private property holder did not want to take an
alternative route. The case went to court and now the state is
contending the RS 2477 right-of-way, but as a private property
owner. It is important to note that these are public rights that
the state holds for the public. Anybody can bring an RS 2477
right-of-way to court and challenge construction and routing on
private property, for example. The parties in Puddicombe did not
explore that avenue. They went straight to court. That avenue
would still be available under the bill.
CO-CHAIRMAN OGAN asked Ms. Barry, from the Department of Law,
whether the bill would allow for a methodology to establish an
alternative right-of-way through property.
Number 585
ELIZABETH BARRY, Assistant Attorney General, Natural Resources
Section, Civil Division (Anchorage), Department of Law, replied she
doesn't read the bill as changing whatever rights there are to
establish an alternative access. "This puts some limitations on
when DNR can vacate an RS 2477 right-of-way, and if they can
workout a reasonable alternative access. As I read the bill, they
would be able to do that."
CO-CHAIRMAN OGAN asked Ms. Barry whether that is a departure from
policy in the past.
MS. BARRY replied, "No."
CO-CHAIRMAN OGAN asked whether it has always been able to do that.
JANE ANGVIK, Director, Division of Land, Department of Natural
Resources, replied under existing regulations, DNR has the
authority to vacate RS 2477 rights-of-way. It does not need
approval from the legislature.
CO-CHAIRMAN OGAN asked Ms. Angvik whether there is a requirement to
provide a reasonable alternative in regulation.
MS. ANGVIK replied "No." There is a requirement for a rationale to
vacate, however.
CO-CHAIRMAN OGAN asked Ms. Angvik how many RS 2477 rights-of-way
has the department vacated since she has been in her position.
MS. ANGVIK replied the department has never vacated an RS 2477
right-of-way. [THE REST OF HER TESTIMONY WAS INAUDIBLE]
REPRESENTATIVE JOULE asked if the conveyance process hasn't been
completed on private lands, specifically ANCSA lands, would that
impact the RS 2477 rights-of-way.
MR. HUBER replied typically on ANCSA lands there is language in the
conveyance that stipulates any rights-of-way, other private
property interests, such as mining claims, that encumber it at the
time of conveyance. In other words: When lands are conveyed to an
ANCSA corporation it comes with language that grandfathers other
property rights on that land.
MR. HUBER further stated these rights-of-way existed before being
codified by this bill. It does not create a new right-of-way. It
does not create a new right. These rights-of-way were accepted by
public use prior to the extinguishment of RS 2477 rights-of-way
statutes.
PETE AMUNDSON testified via teleconference in Ketchikan. He asked,
what are the 11 of the 602 certified, and what 5 out of the 11 are
in litigation with the federal government.
MR. HUBER stated the rights-of-way that are brought forth to be
codified in the bill have not gone through the certification
process. According to his understanding, there are five routes
that are being litigated, only one was commenced by the state. The
four other routes were commenced by private individuals looking to
access their public right-of-way.
MR. AMUNDSON stated the Unuk River road, a haul road, goes through
wilderness in the Tongass National Forest, and asked whether it
would be up for litigation.
TAPE 98-42, SIDE B
Number 000
MR. HUBER replied it possibly could be contested. The
administration talks about brining lawsuits forward, but has only
certified 11 routes since 1992. It has filed and gone to court on
only one route. It has been looking for the ideal test case to
establish a precedent. It would be impossible to guess now which
of the routes would be the first contended or the most hotly
contended.
MR. HUBER further stated, it is important to note that for any road
construction or trail blazing, a person will still need to go
through the same permitting process with DNR. It allows for foot
traffic and traffic that doesn't disturb the vegetation. The more
stringent the land use restrictions are on the land surrounding the
RS 2477 right-of-way, the more contentious the issue.
REPRESENTATIVE JOULE asked Ms. Angvik what effect the bill might
have on privately owned land.
MS. ANGVIK replied the act of recording RS 2477 rights-of-way will
cloud the title of private land in Alaska whether they are owned by
individuals or Native corporations because each trail has not been
identified. Therefore, a private landowner doesn't know whether it
would encroach upon development opportunities. The Department of
Natural Resources is strongly supportive of the state asserting RS
2477 rights-of-way and is pleased to have done the research that
resulted in the identified 602 routes. But, the process set out in
regulation requires a certification process - a title search to
make sure who the landowner is. To date, DNR has only certified 11
of the routes. An alternative to the bill would be to record only
the 11 that have been certified.
Number 081
REPRESENTATIVE BARNES asked Ms. Angvik whether former Governor
Hickel hired Mike Dalton (ph) to do the work on the RS 2477 rights-
of-way.
MS. ANGVIK replied Mike Dalton (ph) was on contract with the state
to assist with the RS 2477 rights-of-way research. The funding
was through a capital improvement program. He did great work with
the staff in Fairbanks identifying the historical record that
resulted in the 602 qualified routes.
REPRESENTATIVE BARNES asked Ms. Angvik what specifically has been
done with RS 2477 rights-of-way since the Knowles' Administration
took over.
MS. ANGVIK replied for the past three years the RS 2477 rights-of-
way project has continued to do additional research. As recently
as this spring, the department provided Senator Rick Halford with
an additional 17 trails that qualified based on their historical
records. In addition, the department did the global positioning
system (GPS) routing for the one RS 2477 right-of-way that is being
challenged in federal court outside of the Fairbanks area. It also
worked with the Department of Law when the state was involved in
the Puddicombe case between two individual parties. The current
appropriation for the RS 2477 rights-of-way research within DNR has
been approximately $200,000 for the last two years. There are two
persons working on the project for two years on a full-time basis,
as well as other research for mining operations in the Interior.
REPRESENTATIVE BARNES asked Ms. Angvik how much money has the
department expended identify the 17 RS 2477 trails.
MS. ANGVIK replied approximately $600,000 (three years at $200,000
a piece).
Number 138
NELSON ANGAPOLE, SR., Executive Assistant - Lands, Alaska
Federation of Natives (AFN), testified via teleconference in
Anchorage. The bill also includes the lands that lead to the ANCSA
corporations. It represents the taking of the private land for
public use without just compensation to the landowners. The taking
of these lands at this magnitude is unprecedented. He cited
examples of impacted land. This kind of taking is contrary to the
Constitution of the United States and the concept of protecting
private landowners. In addition, AFN is concerned that the bill
would create (indisc.) on the land conveyed through the Native
corporations. It seems if the state will be identifying RS 2477
rights-of-way it should be fully responsible for any liability, not
the Native corporations. The Alaska Federation of Natives
recommends that the state continue to identify access across Native
lands using the existing (indisc.) of ANCSA, the proper way to
identify these lands.
REPRESENTATIVE BARNES stated the land transferred under ANCSA also
included all of the RS 2477 trails with the land at the time.
MR. ANGAPOLE, SR. stated the valid existing rights in place at the
time of the Indian land freeze in 1967 and the passage of ANCSA
remain in place.
MR. HUBER stated it is not the intent of the sponsor to segregate
other opportunities to access Native corporation land. Other
possibilities do exist - 17B easements, acts of Congress, and
purchases by the state. They are just existing rights that need to
be preserved as a possible available means for future access.
CO-CHAIRMAN OGAN stated that Article VIII, Section 1, "Statement of
Policy," reads as follows:
"It is the policy of the State to encourage the
settlement of its land and the development of its
resources by making them available for maximum use
consistent with the public interest."
CO-CHAIRMAN OGAN stated there is a compelling interest to make sure
that all can be done to reserve these rights-of-way as mandated by
the state constitution.
Number 278
REPRESENTATIVE BARNES made a motion and asked unanimous to move
CSSB 180(FIN), version 0-LS081\K, from the committee with
individual recommendations and the attached fiscal note(s).
Number 281
REPRESENTATIVE JOULE objected.
CO-CHAIRMAN OGAN called for a roll call vote. Representatives
Barnes, Masek, Williams and Ogan voted in favor of the motion.
Representatives Joule and Nicholia voted against the motion.
Representatives Dyson, Green and Hudson were absent.
CO-CHAIRMAN OGAN called for a brief at ease.
CO-CHAIRMAN OGAN called the meeting back to order.
Number 294
REPRESENTATIVE BARNES made a motion to rescind her motion to move
the bill from the committee. There being no objection, the motion
was rescinded.
CO-CHAIRMAN OGAN announced the bill will be held over until the
next committee hearing.
CSSB 250(FIN) AM - MANAGEMENT OF GAME
CO-CHAIRMAN OGAN announced the next order of business was CSSB
250(FIN) AM, "An Act relating to management of game, to the fish
and game fund and federal aid for restoration of wildlife and fish,
and to the duties of the commissioner of fish and game."
CO-CHAIRMAN OGAN called on Marilyn Wilson, staff to Senator Bert
Sharp, sponsor of the bill.
Number 313
MARILYN WILSON, Legislative Assistant to Senator Bert Sharp, Alaska
State Legislature, read the following sponsor statement:
"In 1994, the Eighteenth Alaska State Legislature passed SB 77,
legislation implementing intensive game management. Since that
time, the Department of Fish and Game and the Board of Game have
had difficulty interpreting and implementing this legislation.
"Senate Bill 250 narrows down and defines legislative findings that
provide the high levels of harvest for human consumption consistent
with the sustained yield principle. It further states big game
prey populations should be managed biologically. This is
accomplished by amending AS 16.05.255(g) and adding a new
definition for sustained yield.
"The Board of Game is further instructed to establish harvest goals
and seasons for managing big game prey populations to achieve a
high level of human harvest. And the commissioner, by delegation
of the board, shall cooperate and assist by implementing
regulations, management plans and other programs to accomplish
these goals.
"To further assist the board and the department, the bill contains
definitions for harvestable surplus and high levels of human
harvest. These are terms that are in existing law and it has
become evident they beg for clear definition.
"Thank you."
REPRESENTATIVE JOULE referred to the submitted amendment and asked
Ms. Wilson what money would be involved.
MS. WILSON replied she is not sure.
Number 362
GERALD BROOKMAN testified via teleconference in Kenai. He is
disturbed by the direction of the substitute of federal game
management by dictating specific narrow objective and human
consumption to the exclusion of others. The bill would restrict or
eliminate the ability of the Department of Fish and Game and the
Board of Game to manage game scientifically and respond to public
input.
REPRESENTATIVE BARNES stated, under the constitution and general
powers of Title VIII, the legislature has the power to manage
Alaska's fish and game. It delegates some of its authority to the
Boards of Fisheries and Game. There is absolutely nothing that
precludes the legislative branch from managing the resources
according to the constitution. The legislature will from time to
time change the power that it has given to the boards. "I just get
awful tired of hearing people say that because we happen to
introduce a bill that has specific to do with our general power,
that we're somehow medaling in powers that we delegate to begin
with."
Number 398
MR. BROOKMAN stated he did not use the word "medaling." He should
have used the word "micro-manage." He recognizes that the
legislature has broad powers in this area. However, it is
exercising those powers too specifically in this case and in
others.
SENATOR BERT SHARP, Alaska State Legislature, Sponsor of the bill,
explained the purposes of Section 2 is primarily to establish a
harvest yield for specific purposes. If it is decided to be used
for a purpose other than what was appropriated, it would have to go
through the reimbursable services agreement (RSA) process. Fish
and game funds are specifically restricted for their use, and
sometimes they are stretched beyond recognition. The legislature
would not be able to get the money back, but anything beyond what
it was appropriated for would be trackable.
SENATOR SHARP explained Sections 3 and 4 establish the definitions
of the terms "harvestable surplus" and "high level of human
harvest." The Board of Game, at its last two meetings, has
attempted to define these areas and has not been able to arrive at
any decision. When the Intensive Game Management Act was passed,
the board asked to remove the definitions to allow flexibility. It
has been four years since the Act passed, and it has not gotten to
the definition stage let alone intensive management. The
definitions in the bill are easy to understand and give the board
a tool to work with when making an allocation decision. They
follow along with the present statute that requires the board to
implement intensive management on identified populations.
REPRESENTATIVE JOULE referred to Section 2, and asked Senator Sharp
whether the money is intended to go to specific divisions or
certain places within the department.
SENATOR SHARP replied Section 2 speaks to fish and game funds that
go into a constitutionally restricted account and can only be used
for the benefit of those that pay into the account. The money
comes from licences, permits, and other fees.
REPRESENTATIVE BARNES asked Senator Sharp to identify the Pittman
- Robertson, Dingell - Johnson/Wallop - Breaux funds for
Representative Joule.
SENATOR SHARP replied the funds that he just talked about are state
funds. The Pittman-Robertson funds are federal funds that are also
restricted similarly as the state funds. Federal funds come from
excise taxes on guns and ammunition that are allocated to the
various states based on a formula. The Wallop-Breaux funds are
federal funds that go back to the states from fishing oriented
gear. The Wallop-Breaux funds have to be used for sport fishing
only, such as building boat launches. Section 2 intends to ensure
that the state complies with the federal requirements for the
restoration of wildlife and fish. It increases the accountability.
It doesn't remove any fiscal authority of the commissioner or
interfere with any legislative oversight. It requires that the
expenditures of those funds are clearly exposed and subsequent
products and services are documented as expenditures.
REPRESENTATIVE JOULE asked Senator Sharp whether the federal funds
would go through the Department Wildlife Conservation and Division
of Sport Fish.
SENATOR SHARP replied the Pittman-Robertson funds go to the
Division of Wildlife Conservation. The Wallop-Breaux funds go to
the Division of Sport Fish. Both divisions are 100 percent funded
with restricted fish and game funds, either federal or state.
REPRESENTATIVE JOULE stated he buys a hunting license and a lot of
ammunition every year like many people throughout Alaska, including
subsistence users. He asked Senator Sharp whether the bill would
prohibit any money from going to the Division of Subsistence.
SENATOR SHARP replied no, as long as it doesn't conflict with the
federal requirements. In fact, over the years it has been
acceptable practice for the Division of Wildlife Conservation to
contract work with the Division of Subsistence. Fish and game
funds are spread out to other divisions based on their expertise.
The Division of Sport Fish is putting in a $1.2 million boat launch
and campground on Lake Aleknagik in conjunction with others.
CO-CHAIRMAN OGAN announced that Representative Nicholia has been at
the meeting for a long time.
REPRESENTATIVE IRENE NICHOLIA asked Senator Sharp whether the money
could be spent on subsistence harvest data.
SENATOR SHARP replied yes through contracts between the Division of
Subsistence and Division of Wildlife Conservation.
REPRESENTATIVE NICHOLIA asked Senator Sharp whether money in the
base budget would be available for subsistence harvest data.
SENATOR SHARP replied it has been available in the past. It
doesn't restrict the two divisions from working together. The bill
says the Division of Wildlife Conservation is charged with
administering fish and game funds, but it can contract out through
an agreement with anybody.
REPRESENTATIVE BARNES asked Senator Sharp whether the Pittman -
Robertson, Dingell - Johnson/Wallop - Breaux funds are primarily
from people who come to the state to hunt and fish.
SENATOR SHARP replied, "Correct." The big bubble increase ($3
million) for the Division of Sport Fish is due to a law changed
about a year ago raising the nonresident license fees for sports
fishing. Most of the money will be used for river drainage surveys
in conjunction with commercial and subsistence fisheries to
accumulate data for stocks. It will be acting jointly with other
divisions to get the program going.
REPRESENTATIVE BARNES asked Senator Sharp whether there is an
exclusive use of the funds. She remembers a problem over funding
for a commercial fish hatchery project.
SENATOR SHARP replied he doesn't recall the problem Representative
Barnes referred to. The Division of Sport Fish runs large
hatcheries for salmon and other fish on Elmendorf Air Force Base,
Fort Richardson Army Base, and in other parts of the state. But,
any new project that the division takes up has to be approved by
the federal coordinators in Anchorage before expending any funds.
CO-CHAIRMAN OGAN announced the bill will be held over.
ADJOURNMENT
Number 648
CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee
meeting at 3:20 p.m.
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