Legislature(2005 - 2006)CAPITOL 124
04/25/2005 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB241 | |
| HB269 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HCR 9 | TELECONFERENCED | |
| += | HB 269 | TELECONFERENCED | |
| += | HB 241 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
April 25, 2005
1:11 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Co-Chair
Representative Ralph Samuels, Co-Chair
Representative Jim Elkins
Representative Carl Gatto
Representative Gabrielle LeDoux
Representative Kurt Olson
Representative Harry Crawford
Representative Mary Kapsner
MEMBERS ABSENT
Representative Paul Seaton
COMMITTEE CALENDAR
HOUSE CONCURRENT RESOLUTION NO. 9
Proclaiming Alaska Agriculture Day for 2005 and 2006.
- MOVED HCR 9 OUT OF COMMITTEE
HOUSE BILL NO. 241
"An Act relating to participation in matters before the Board of
Fisheries by members of the board; and providing for an
effective date."
- HEARD AND HELD
HOUSE BILL NO. 269
"An Act relating to contribution actions relating to the release
of a hazardous substance; and providing for an effective date."
- MOVED HB 269 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HCR 9
SHORT TITLE: AGRICULTURE DAY
SPONSOR(S): REPRESENTATIVE(S) GATTO
04/15/05 (H) READ THE FIRST TIME - REFERRALS
04/15/05 (H) RES
04/22/05 (H) RES AT 1:00 PM CAPITOL 124
04/22/05 (H) Scheduled But Not Heard
04/25/05 (H) RES AT 1:00 PM CAPITOL 124
BILL: HB 241
SHORT TITLE: BOARD OF FISHERIES CONFLICTS OF INTEREST
SPONSOR(S): REPRESENTATIVE(S) WILSON
04/01/05 (H) READ THE FIRST TIME - REFERRALS
04/01/05 (H) FSH, RES
04/13/05 (H) FSH AT 8:30 AM CAPITOL 124
04/13/05 (H) Moved CSHB 241(FSH) Out of Committee
04/13/05 (H) MINUTE(FSH)
04/14/05 (H) FSH RPT CS(FSH) 5DP 1NR
04/14/05 (H) DP: WILSON, HARRIS, ELKINS, LEDOUX,
THOMAS;
04/14/05 (H) NR: SALMON
04/18/05 (H) RES AT 1:00 PM CAPITOL 124
04/18/05 (H) Scheduled But Not Heard
04/22/05 (H) RES AT 1:00 PM CAPITOL 124
04/22/05 (H) Scheduled But Not Heard
04/25/05 (H) RES AT 1:00 PM CAPITOL 124
BILL: HB 269
SHORT TITLE: HAZARDOUS SUBSTANCE RELEASE LIABILITY
SPONSOR(S): REPRESENTATIVE(S) RAMRAS
04/14/05 (H) READ THE FIRST TIME - REFERRALS
04/14/05 (H) RES, JUD
04/22/05 (H) RES AT 1:00 PM CAPITOL 124
04/22/05 (H) Scheduled But Not Heard
04/25/05 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE PEGGY WILSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 241 as sponsor.
JOHN WHITE
Bethel, Alaska
POSITION STATEMENT: Testified in opposition to HB 241.
PAUL SHADURA
Kenai Peninsula Fisherman's Association
Kenai, Alaska
POSITION STATEMENT: Testified in support of HB 241.
RICKY GEASE, Executive Director
Kenai River Sport Fishing Association
Kenai, Alaska
POSITION STATEMENT: Testified in opposition to HB 241.
JERRY MCCUNE
United Fishermen of Alaska
Juneau, Alaska
POSITION STATEMENT: Testified in support of the concept of HB
241.
PAT CARTER
Juneau, Alaska
POSITION STATEMENT: Expressed concerns with HB 241.
LARRY ENGLE
Palmer, Alaska
POSITION STATEMENT: Testified in opposition to HB 241.
JOHN JENSEN, Commercial Fisherman, Board member
Board of Fisheries
Petersburg, Alaska
POSITION STATEMENT: Testified in support of HB 241.
CARL CROME, Commercial Fisherman
Petersburg, Alaska
POSITION STATEMENT: Testified in support of HB 241.
GARY SLAVEN, Commercial Fisherman
Petersburg, Alaska
POSITION STATEMENT: Testified on HB 241.
STEVEN DAUGHERTY, Assistant Attorney General
Alaska Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Answered questions regarding HB 241.
JENNIFER YUHAS, Executive Director
Alaska Outdoor Council
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to HB 241.
JANE PIERSON, Staff
to Representative Jay Ramras
Alaska State Legislature
POSITION STATEMENT: Presented HB 269 on behalf of Representative
Ramras, sponsor.
BENJAMIN BROWN, Legislative Liaison
Department of Environmental Conservation (DEC)
Juneau, Alaska
POSITION STATEMENT: Testified that HB 269 will prevent a future
problem based on this "arcane interpretation" by the U.S.
Supreme Court.
BRETT TOSTEVIN, Assistant Attorney General
Civil Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 269.
GEORGE LYLE, Private Attorney
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 269.
ACTION NARRATIVE
CO-CHAIR JAY RAMRAS called the House Resources Standing
Committee meeting to order at 1:11:37 PM. Representatives
Gatto, Samuels, Elkins, Kapsner, and Ramras were present at the
call to order. Representatives Olson, Crawford, and LeDoux
arrived as the meeting was in progress.
HCR 9-AGRICULTURE DAY
CO-CHAIR RAMRAS announced that the first order of business would
be HOUSE CONCURRENT RESOLUTION NO. 9, Proclaiming Alaska
Agriculture Day for 2005 and 2006.
REPRESENTATIVE CARL GATTO, Alaska State Legislature, spoke of
the work of farmers in Alaska. He said his best friend is a
farmer and owns patents on crops. A good year nets $30,000, he
noted, and the amount of work for a farmer in Alaska is
substantial.
CO-CHAIR SAMUELS moved to report HCR 9 out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, HCR 9 was passed out of committee.
HB 241-BOARD OF FISHERIES CONFLICTS OF INTEREST
CO-CHAIR SAMUELS announced that the next order of business would
be HOUSE BILL NO. 241 "An Act relating to participation in
matters before the Board of Fisheries by members of the board;
and providing for an effective date."
REPRESENTATIVE PEGGY WILSON, Alaska State Legislature, said HB
241 implements changes recommended by the Joint Salmon Task
Force. She stated that the Board of Fisheries is not as
effective as it could be because some of the knowledgeable board
members are conflicted out. Even with only a perception of a
conflict of interest, members excuse themselves, she said. All
board members' expertise should be used during board business to
make the most informed decisions, she opined. She noted that
legislators can participate when they have conflicts of
interest. The conflicted board members can't even discuss
issues or go on record, so this bill allows all members to
participate in spite of conflicts of interest, she concluded.
REPRESENTATIVE LEDOUX asked about the Board of Game.
REPRESENTATIVE WILSON said she has more fishing interests in her
district, and the Salmon Task Force recommended this for the
Board or Fish. She said she is open to amendments, but she
thinks it is important that the expertise of the board members
is not stifled and gets on the record.
CO-CHAIR SAMUELS said that one difference between the Board of
Fish and the Legislature is a board member has a one-seventh
voting power, and it is one in forty for a representative.
1:21:49 PM
JOHN WHITE, Bethel, said he is a past chair of the Board of
Fisheries. He said Alaska has the finest fisheries regulatory
system because impropriety and conflict are kept out of
decision-making. A member who is conflicted out still has an
opportunity to transmit information to the board, he clarified.
In allocation decisions, one party is always trying to get fish
away from the other party, and there are always winners and
losers. Contentions will increase with HB 241, he opined. He
warned that there will be members shamefully abusing their
political power to get what they want for their own fishery.
"I'm dead set against this," he concluded.
1:24:46 PM
CO-CHAIR SAMUELS asked if a conflicted member can participate in
discussions, and how the rules change when the chair changes.
MR. WHITE said conflicted members can testify before the board
and that things do change under different leaders. He said
changing chairs is a good thing; it makes the board dynamic.
The rest of the board can always overrule the chair, he noted.
REPRESENTATIVE KAPSNER asked about board turnover.
MR. WHITE said it relates to the length of the governor's term,
and with the election of a governor, the board can turn over by
the end of a governor's four-year term.
1:27:24 PM
PAUL SHADURA, Kenai Peninsula Fisherman's Association, Kenai,
said his organization has testimony on record from the April,
13, 2005 House Special Committee on Fisheries meeting. He said
HB 241 should pass without amendments. He said the board
appointment process limits the potential for undue preference.
1:29:23 PM
RICKY GEASE, Executive Director, Kenai River Sport Fishing
Association, Kenai, said his organization strongly opposes HB
241. The bill will destroy the perception of an impartial
board, and stakeholders must have faith that the board acts in
the best interest of everyone, he said. This change could ball
up the confirmation process because every interested user group
will lobby to be on the board. He said HB 241 places the power
of the pocketbook over stewardship of the resource. People
don't tend to vote against their own pocket book, and it will
call into question every vote that has an interested party
voting on it. It will destroy the integrity of the board's
committee process, he added. A board member with a direct
financial interest could chair a committee and destroy the
valuable committee process. There currently exists a method to
involve conflicted board members, and they actually can go on
the record and have their knowledge considered, he stated.
1:33:43 PM
MR. GEASE said HB 241 changes the board from a public service to
a private interest. Board members are currently shielded from
such accusations. "We strongly oppose HB 241," he concluded.
1:34:44 PM
CO-CHAIR SAMUELS asked if a conflicted member should have a
place at the table or just provide testimony.
MR. GEASE said he supports the current process. The conflicted
members can participate in the committee and give a three-minute
testimony to the whole board.
1:36:26 PM
JERRY MCCUNE, United Fishermen of Alaska (UFA), Juneau, said UFA
supports the concept of HB 241. He suggested leveling the
playing field because different chairs make different decisions
on the roles of conflicted members. Many lodge owners are not
conflicted out when commercial fishing members are, he stated.
He said the member should be able to put his or her expertise on
the record. The governor can only ask members to resign, and
since the terms are two to three years, the board can entirely
turn over by the end of a governor's four-year term.
1:38:51 PM
REPRESENTATIVE LEDOUX suggested making a distinction between
lobbyists and someone who is using the fish resource.
MR. MCCUNE said it depends on the appointments, and not many
executive directors or lobbyists get on the board. Everyone
comes with some kind of prejudice, he noted.
1:40:32 PM
CO-CHAIR SAMUELS postulated that if a particular gear group gets
a vote, then other gear groups will fight to also be
represented. The infighting could damage the process.
MR. MCCUNE said he thought someone with a financial conflict
would still get conflicted out under HB 241. The appointments
are up to the governor and the legislature who would have to
balance the board.
1:43:14 PM
PAT CARTER, Juneau, said he is a former Kenai guide, and he has
attended many fish board meetings. He said there has not been
an even application of the conflict of interest rules. He gave
an example of members being able to vote because they had a
conflict of only 15 percent of their income, but he has never
seen anyone vote against their pocketbook. He added that this
debate seems to be shaping up as a debate between sport and
commercial fisheries. If the bill passes, there will also be
fights between each commercial gear type. Certain gear types
will push for a seat, and then that person will need to answer
to that gear type, he postulated. Government is run by people
who show up, he said, so expertise will be heard if someone
wants it to. He said a member's financial interest needs to be
gauged. Would a hotel or t-shirt shop owner have a financial
interest in the sport fishing industry, he asked.
1:47:54 PM
MR. CARTER said the public is always suspect of the board's
decisions, and with financial interests carrying the discussions
and voting, it will be a step away from credibility.
1:48:36 PM
CO-CHAIR SAMUELS asked if allowing conflicted members to debate
at the table is inappropriate.
MR. CARTER said currently the member can step aside and testify
as a member of the public, but if that person engages as a board
member, he or she will be able to go into the committee process
and help carry the discussion. The committees form the
foundation of the decisions, he said.
CO-CHAIR SAMUELS noted his frustrations of not participating on
the House floor when he has expertise on aviation issues.
MR. CARTER said it is a public process with public testimony,
and the testimony is used in the debate. The Alaska Department
of Fish & Game (ADF&G) gives an overview. He said there are
discussions during breaks. There used to be vote trading, he
said, and HB 241 will be a step back toward those days.
1:52:31 PM
LARRY ENGLE, Palmer, said he opposes HB 241. He said he has
been involved with the Board of Fisheries process for many
years, and he was an ADF&G staff prior to that. He said he
agrees with every single word in Mr. White's testimony. He
asked if the system is really broken, and noted that the
resource used to be in a "shambles." When the legislature set
up the boards, it wanted maximum public participation, he said,
and that has stayed intact over all the years. The fish
resources are healthier than ever. "Do we want to risk that?"
he asked. Fairness is extremely difficult when there are
financial ties, he declared. Perceptions are important, and the
benefits of HB 241 do not even come close to the loss of the
perception of fairness. It will be a real step backwards, he
said.
1:59:16 PM
JOHN JENSEN, Commercial Fisherman, Petersburg, said he is a
member of the Board of Fisheries, and he supports HB 241. He
said he feels left out of discussions about commercial
fisheries, and he wants to be able to provide information during
deliberations.
2:00:56 PM
REPRESENTATIVE KAPSNER asked about the ability to testify.
MR. JENSEN said conflicted members can provide testimony, but
will not be chosen to be a member of a committee with the
conflict, but can only testify to the committee. He said the
frustration is during the debate after the testimony, which
could get way off track, and still he would not have input.
REPRESENTATIVE KAPSNER said one solution would be to allow the
conflicted member to debate the issues but not vote on them.
MR. JENSEN said that would help a lot.
REPRESENTATIVE ELKINS asked Representative Kapsner why a board
member would not vote since that is their job.
CARL CROME, Commercial Fisherman, Petersburg, said he is in
favor of HB 241. He said legislators are not conflicted out,
and "there's no end to the financial conflict they have." Board
members are scrutinized and approved by the legislature, he
added. He said commercial fishing members get conflicted out
and people are unhappy with the final votes. People on the
board should be voting and deliberating, he stated. He said
lodge owners aren't conflicted out when they should be. The
board is lopsided toward sport fish interests, he concluded.
2:07:31 PM
CO-CHAIR SAMUELS said that all 40 legislators are not beholden
to anybody but their conscience.
REPRESENTATIVE KAPSNER justified legislators not being
conflicted out because they are part of a bigger body.
2:08:14 PM
GARY SLAVEN, Commercial Fisherman, Petersburg, said he was once
chair of the Board of Fisheries and has respect for the members.
In the 1980s the chair and other members of the board would
decide how much participation a conflicted member could have, he
said. Other states were envious in the way Alaska residents
were part of the debate. He reminisced about his days on the
board. He said that sport anglers think the current system is
working well, but commercial fishing is represented by less than
half the board's members. The perspective of the people who are
knowledgeable should be included. He said ADF&G personnel can
comment during debate but the public can't, so the board goes to
the committee level for that. The committee process is great
but takes up a lot of time, he stated. "With the small amount
of commercial participation there is on the board now ... the
issue has changed," and the board needs the input from the
commercial fishing members. If they have a significant
financial interest, "of course they shouldn't vote," he said,
but a blanket exclusion from the process is not serving the fish
board well.
2:13:56 PM
STEVEN DAUGHERTY, Assistant Attorney General, Alaska Department
of Law (DOL), Anchorage, said DOL does not consider HB 241 a
complete exemption from the ethics act. It allows conflicted
members to vote after disclosure, provided the vote is not a use
of state facilities to benefit personal or financial interests.
He said certain provisions of the ethics act would still apply,
like improper gifts, improper use and disclosure of information,
improper representation, accepting compensation for official
duties, and coercion of subordinates. Under HB 241, board
members could still get advice from DOL. He spoke of a
potential amendment, but it was not before the committee.
2:17:53 PM
REPRESENTATIVE LEDOUX asked why participation in a discussion is
considered acting. "Is there a court case?" she asked.
MR. DAUGHERTY said he did not know, but during deliberation the
board members try to influence each other's actions.
REPRESENTATIVE LEDOUX asked the difference between personal and
financial interests.
MR. DAUGHERTY said personal interest is an interest or
involvement by a public officer or immediate family, which
includes membership in any organization, whether nonprofit or
political, from which a person or organization receives a
benefit.
REPRESENTATIVE LEDOUX suggested that a member of UFA might be
excluded from discussing anything that UFA may benefit from.
MR. DAUGHERTY said there are situations where a conflict can
occur, but it is not across the board.
2:21:31 PM
REPRESENTATIVE OLSON asked about the amendment.
MR. DAUGHERTY said it is not a DOL amendment.
2:22:02 PM
JENNIFER YUHAS, Executive Director, Alaska Outdoor Council,
Fairbanks, strongly opposes HB 241 because it would corrupt the
Board of Fisheries and destroy the fish resource. The board has
done a commendable job, she opined. The bill would allow
financially interested users to vote to enrich themselves by
allocating resources to them. It would become a board of fish
lobbyists, she said, and then the legislature will end up
allocating the resources. She said board members with sport
fish backgrounds have sat out of board discussions; it is not
the case that the commercial fisherman have been excluded and
not the sport fishing interests.
2:26:12 PM
REPRESENTATIVE WILSON said everyone needs to be treated the
same, and things change when the chair does.
2:27:30 PM
REPRESENTATIVE LEDOUX asked about other alternatives.
[HB 241 was held over]
HB 269-HAZARDOUS SUBSTANCE RELEASE LIABILITY
CO-CHAIR RAMRAS announced that the final order of business would
be HOUSE BILL NO. 269, "An Act relating to contribution actions
relating to the release of a hazardous substance; and providing
for an effective date."
JANE PIERSON, Staff to Representative Jay Ramras, read the
following statement [original punctuation provided]:
HB 269 deals with fixing the uncertainty caused by the
United States Supreme Court's December 2004 decision
in, Cooper Industries v. Aviall Services, Inc.
Alaska's hazardous substance remediation statutes are
modeled after the Federal Comprehensive Environmental
Response Compensation & Liability Act of 1980 (CERCLA)
and the Superfund Amendments and Reauthorization Act
of 1986 (SARA)
The US Supreme Court found in the Aviall decision
that, a responsible party cannot bring a contribution
action until such time as the party has been sued by
the state or federal government, or has entered into a
formal administrative settlement of liability.
The Aviall decision puts into question the rights of
Alaskan's who conduct voluntary cleanups on properties
contaminated by hazardous substances to undergo
contribution actions against other potentially
responsible parties.
Voluntary cleanups of contaminated sites form the vast
majority of environmental cleanups conducted in the
State of Alaska.
These voluntary cleanups allow the state to focus its
limited resources on monitoring responsible party
cleanup actions, instead of undertaking costly
administrative or judicial enforcement actions to
force cleanups, or undertaking cleanups at public
expense.
The right to contribution actions against other
potentially responsible parties creates an important
incentive for voluntary remediation, by allowing
responsible parties to undertake effective cleanups
themselves, and then be able to recover some of those
costs from other potentially responsible parties, who
fail to voluntarily undertake or assist with the clean
up.
The purpose of HB 269, is to respond to the Aviall
decision by clarifying the language in AS
46.03.822(j), ensuring that responsible parties who
conduct voluntary cleanups may bring contribution
actions against other potentially responsible parties.
HB 269 has the support of both the Department of
Environmental Conservation and the Governor's office.
This is not an area of law where Alaska can afford to
have the common law decisions of the court out pace
our codified laws. For the reasons stated above I
urge the committee to pass HB269.
2:31:12 PM
REPRESENTATIVE CRAWFORD asked for an explanation.
MS. PIERSON said if there was a gas spill on your property, and
you were not the one who spilled it but you clean it up, then
you cannot sue the guilty party until the government instigates
an action. She said HB 269 changes our statutes so that once
the state or federal government has identified other responsible
parties you can sue them for their part in the spill.
2:32:50 PM
BENJAMIN BROWN, Legislative Liaison, Department of Environmental
Conservation, said the Supreme Court came to an odd decision and
said unless you have a right to a contribution action under
certain sections of the act, then you can't go after a third
party defendant. The Alaska Supreme Court has not yet made a
similar decision, but it could, he said. The bill will prevent
a future problem based on this "arcane interpretation" by the
U.S. Supreme Court.
2:35:22 PM
BRETT TOSTEVIN, Assistant Attorney General, Civil Division,
Department of Law (DOL), said the DOL supports HB 269 because it
allows people who do voluntary cleanup to try to get costs
covered even if they have not been sued, and it would removes
the confusion brought about by the Supreme Court decision.
Voluntary cleanup can occur "without us having to incur
additional costs or enforcement actions or have to bring
lawsuits against people simply to allow them to have a right of
contribution against other people who are liable." Without HB
269, a monkey wrench could be thrown into the state's voluntary
cleanup program. The bill would allow a contribution action
after the issuance of the potential liability determination by
the Department of Environmental Conservation, and the bill
defines what that may determination be. The bill will encourage
voluntary cleanups in the future and not reward recalcitrant
parties.
2:40:23 PM
REPRESENTATIVE CRAWFORD asked who would be opposed to the bill.
MR. TOSTEVIN said he does not know of any.
2:41:17 PM
GEORGE LYLE, Private Attorney, Anchorage, said he has clients
who own properties that were contaminated by previous owners.
Current owners are obligated to clean up the properties, but
they should retain the right to go after the parties responsible
for the contamination, he stated. The owners tend to volunteer
to do the cleanup with the understanding that they could
eventually seek recovery from the people who actually caused the
problems. He urged the committee to pass HB 269.
2:43:34 PM
REPRESENTATIVE OLSON moved to report HB 269 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 269 passed out of
committee.
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 2:45 p.m.
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