Legislature(1995 - 1996)

02/13/1995 08:07 AM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               HOUSE RESOURCES STANDING COMMITTEE                              
                       February 13, 1995                                       
                           8:07 a.m.                                           
                                                                               
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Joe Green, Co-Chairman                                         
 Representative Bill Williams, Co-Chairman                                     
 Representative Scott Ogan, Vice Chairman                                      
 Representative Alan Austerman                                                 
 Representative Ramona Barnes                                                  
 Representative Irene Nicholia                                                 
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 Representative John Davies                                                    
 Representative Pete Kott                                                      
 Representative Eileen MacLean                                                 
                                                                               
 OTHER LEGISLATORS PRESENT                                                     
                                                                               
 Representative Ivan                                                           
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 *HJR 27Requesting the United States Congress to accommodate                  
 Alaska's wetlands circumstances in the federal Clean                          
 Water Act reauthorization by increasing statutory                             
 flexibility on wetlands use in Alaska, and to recognize                       
 Alaska's unique and outstanding history of wetlands                           
 conservation.                                                                 
                                                                               
 CSHJR 27(RES) PASSED OUT OF COMMITTEE                                       
                                                                               
 Confirmation of Virgil Umphenour to Board of Fisheries                        
                                                                               
 ADVANCED                                                                    
                                                                               
 HB 20"An Act relating to rights in certain tide and submerged                
 land."                                                                        
                                                                               
 CSHB 20(RES) PASSED OUT OF COMMITTEE                                        
                                                                               
 HB 79"An Act allowing the Department of Natural Resources to                 
 quitclaim land or interests in land, including submerged                      
 or shore land, to a municipality to correct errors or                         
 omissions of the municipality when inequitable detriment                      
 would result to a person due to that person's reliance                        
 upon the errors or omissions of the municipality."                            
                                                                               
 PASSED OUT OF COMMITTEE                                                     
                                                                               
 (* First public hearing)                                                      
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 JEFF LOGAN, Legislative Assistant                                             
 Representative Joe Green                                                      
 State Capitol, Room 24                                                        
 Juneau, AK   99801                                                            
 Phone:  465-4931                                                              
 POSITION STATEMENT:  Provided Sponsor Statement for HJR 27                    
                                                                               
 CARL PORTMAN, Communications Director                                         
 Resource Development Council                                                  
 121 W. Fireweed, #250                                                         
 Anchorage, AK   99503                                                         
 Phone:  276-0700                                                              
 POSITION STATEMENT:  Supported HJR 27                                         
                                                                               
 KEN FREEMAN, Projects Coordinator                                             
 Resource Development Council                                                  
 121 W. Fireweed, #250                                                         
 Anchorage, AK   99503                                                         
 Phone:  276-0700                                                              
 POSITION STATEMENT:  Supported HJR 27                                         
                                                                               
 VIRGIL UMPHENOUR, Appointee                                                   
 Board of Fisheries                                                            
 878 Lynnwood Way                                                              
 North Pole, AK   99705                                                        
 Phone:  488-3885                                                              
 POSITION STATEMENT:  Provided an overview on his background and               
                      answered questions                                       
                                                                               
 DEAN PADDOCK                                                                  
 P.O. Box 20312                                                                
 Juneau, AK   99802                                                            
 Phone:  789-4231                                                              
 POSITION STATEMENT:  Supported confirmation of Virgil Umphenour               
                                                                               
 BRUCE SCHACTLER                                                               
 P.O. Box 2254                                                                 
 Kodiak, AK   99615                                                            
 Phone:  486-4686                                                              
 POSITION STATEMENT:  Opposed confirmation of Virgil Umphenour                 
                                                                               
 ART NELSON, Fisheries Specialist                                              
 Kawerak, Inc.                                                                 
 P.O. Box 948                                                                  
 Nome, AK   99762                                                              
 Phone:  443-4278                                                              
 POSITION STATEMENT:  Supported confirmation of Virgil Umphenour               
                                                                               
 BILL HENRY                                                                    
 1081 Duck Pond Road                                                           
 North Pole, AK   99705                                                        
 Phone:  488-6800                                                              
 POSITION STATEMENT:  Supported confirmation of Virgil Umphenour               
                                                                               
 PAUL KLEINSCHMIDT                                                             
 Nenana, AK   99760                                                            
 Phone:  832-1080                                                              
 POSITION STATEMENT:  Supported confirmation of Virgil Umphenour               
                                                                               
 ANDY GOLIA                                                                    
 P.O. Box 663                                                                  
 Dillingham, AK   99576                                                        
 Phone:  842-5307                                                              
 POSITION STATEMENT:  Supported confirmation of Virgil Umphenour               
                                                                               
 PAUL GRONHOLDT                                                                
 Sand Point, AK   99661                                                        
 POSITION STATEMENT:  Opposed confirmation of Virgil Umphenour                 
                                                                               
 REPRESENTATIVE CARL MOSES                                                     
 Alaska State Legislature                                                      
 State Capitol, Room 204                                                       
 Juneau, AK   99801                                                            
 Phone:  465-4451                                                              
 POSITION STATEMENT:  Prime Sponsor HB 20                                      
                                                                               
 JOHN BAKER, Assistant Attorney General                                        
 Natural Resources Section                                                     
 Department of Law                                                             
 1031 W. 4th, Ste. 200                                                         
 Anchorage, AK   99501                                                         
 Phone:  269-5100                                                              
 POSITION STATEMENT:  Commented on the effect of the public trust              
                      doctrine on conveyances authorized under                 
                      HB 20                                                    
                                                                               
 MOLLY SHERMAN, Representative                                                 
 Alaska Environmental Lobby                                                    
 P.O. Box 22151                                                                
 Juneau, AK   99802                                                            
 Phone:  463-3366                                                              
 POSITION STATEMENT:  Opposed HB 20                                            
                                                                               
 RON SWANSON, Director                                                         
 Division of Land                                                              
 Department of Natural Resources                                               
 P.O. Box 107005                                                               
 Anchorage, AK   99510                                                         
 Phone:  762-2692                                                              
 POSITION STATEMENT:  Answered questions on HB 20                              
                                                                               
 WELLS WILLIAMS, Planning Director                                             
 City and Borough of Sitka                                                     
 100 Lincoln Street                                                            
 Sitka, AK   99835                                                             
 Phone:  747-1824                                                              
 POSITION STATEMENT:  Supported HB 20                                          
                                                                               
 BOB JUETTNER, Administrator                                                   
 Aleutians East Borough                                                        
 1800 A Street, Ste. 103                                                       
 Anchorage, AK   99501                                                         
 Phone:  274-7555                                                              
 POSITION STATEMENT:  Supported HB 20                                          
                                                                               
 REPRESENTATIVE JERRY MACKIE                                                   
 Alaska State Legislature                                                      
 State Capitol, Room 404                                                       
 Juneau, AK   99801                                                            
 Phone:  465-4925                                                              
 POSITION STATEMENT:  Prime Sponsor HB 79                                      
                                                                               
 PREVIOUS ACTION                                                               
                                                                              
 BILL:  HJR 27                                                                
 SHORT TITLE: EXEMPT ALASKA FROM FED CLEAN WATER ACT                           
 SPONSOR(S): REPRESENTATIVE(S) GREEN,Phillips                                  
                                                                               
 JRN-DATE    JRN-PG                ACTION                                      
 02/03/95       234    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/03/95       234    (H)   RESOURCES                                         
 02/13/95              (H)   RES AT 08:00 AM CAPITOL 124                       
                                                                               
 BILL:  HB  20                                                               
 SHORT TITLE: RIGHTS IN TIDE/SUBMERGED LAND                                    
 SPONSOR(S): REPRESENTATIVE(S) MOSES,Kubina                                    
                                                                               
 JRN-DATE     JRN-PG               DATE                                        
 01/06/95        25    (H)   PREFILE RELEASED                                  
 01/16/95        25    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        26    (H)   CRA, RES, FIN                                     
 01/19/95        88    (H)   COSPONSOR(S): KUBINA                              
 02/02/95              (H)   CRA AT 01:00 PM CAPITOL 124                       
 02/03/95       225    (H)   CRA RPT 1DP 3NR                                   
 02/03/95       225    (H)   DP: IVAN                                          
 02/03/95       225    (H)   DP: ELTON, AUSTERMAN, NICHOLIA                    
 02/03/95       226    (H)   FISCAL NOTES (2-DNR) 2/3/95                       
 02/03/95       226    (H)   ZERO FISCAL NOTE (DCRA) 2/3/95                    
 02/13/95              (H)   RES AT 08:00 AM CAPITOL 124                       
                                                                              
 BILL:  HB  79                                                                
 SHORT TITLE: MUNICIPAL LAND ERROR CORRECTIONS                                 
 SPONSOR(S): REPRESENTATIVE(S) MACKIE                                          
                                                                               
 JRN-DATE     JRN-PG               ACTION                                      
 01/13/95        41    (H)   PREFILE RELEASED                                  
 01/16/95        41    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/95        41    (H)   CRA, RES, FIN                                     
 02/02/95              (H)   CRA AT 01:00 PM CAPITOL 124                       
 02/03/95       229    (H)   CRA RPT  4DP  2NR                                 
 02/03/95       229    (H)   DP: MACKIE, ELTON, VEZEY, IVAN                    
 02/03/95       230    (H)   NR: AUSTERMAN, NICHOLIA                           
 02/03/95       230    (H)   2 ZERO FISCAL NOTES (DNR, DCRA) 2/3/95            
 02/13/95              (H)   RES AT 08:00 AM CAPITOL 124                       
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 95-13, SIDE A                                                            
 Number 000                                                                    
                                                                               
 The House Resources Committee was called to order by Co-Chairman              
 Green at 8:07 a.m.  Members present at the call to order were                 
 Representatives Ogan, Austerman and Green.  Members absent were               
 Representatives Williams, Barnes, Davies, Kott, MacLean and                   
 Nicholia.                                                                     
 HRES - 02/13/95                                                               
 HJR 27 - EXEMPT ALASKA FROM FEDERAL CLEAN WATER ACT                         
                                                                               
 JEFF LOGAN, LEGISLATIVE ASSISTANT, REPRESENTATIVE JOE GREEN, PRIME            
 SPONSOR, said in 1989, the National Wetlands Policy Forum                     
 recommended a greater role for state and local governments in                 
 managing wetlands under Section 404 of the federal Clean Water Act.           
 He stated since that time, the Environmental Protection Agency                
 (EPA), through the state wetlands protection development grants and           
 the Corps of Engineers, through the programmatic general permits,             
 have been working to shift regulatory responsibility back to the              
 states.                                                                       
                                                                               
 MR. LOGAN noted that unfortunately, Alaska has not been a                     
 beneficiary of this trend.  He said for the last several years,               
 Alaskans have been seeking administrative remedies to the problems            
 caused by strict adherence to the federal wetlands policy including           
 the no net loss provision.  These efforts have been largely                   
 unsuccessful.  He pointed out that now with Alaska's congressional            
 delegation in leadership positions, it appears likely that a                  
 legislative remedy may be possible.  He stated HJR 27 puts the 19th           
 Alaska Legislature on record in support of modifications to the               
 federal wetlands management program.                                          
                                                                               
 MR. LOGAN told committee members that the sponsor's staff has                 
 worked with staff members of the congressional delegation to craft            
 language which can be used as a tool by the congressional                     
 delegation as they attempt to amend the federal Clean Water Act to            
 more appropriately meet Alaska's needs.  He said HJR 27 is a                  
 statement from the 19th Alaska Legislature that Alaskans from                 
 Kotzebue to Ketchikan and from Dutch Harbor to Deadhorse are best             
 equipped to decide if, when, and how wetlands should be developed.            
 He noted that committee work on S.49, the legislation introduced by           
 Senator Stevens, is scheduled to begin this week.  Committee work             
 on the House version of the Clean Water Act amendments are                    
 scheduled to begin in a few weeks.  He stressed it is important the           
 legislature make a statement for the record in support of the                 
 Congressional delegation's efforts on the state's behalf.                     
                                                                               
 Number 067                                                                    
                                                                               
 CARL PORTMAN, COMMUNICATIONS DIRECTOR, RESOURCE DEVELOPMENT COUNCIL           
 (RDC), said RDC spearheads the Alaska Wetlands Coalition, an                  
 organization formed to work on current wetland regulations.  The              
 Coalition brings a community perspective and balance to the debate            
 and helps guide the overall national policy decision on wetlands.             
 He noted the Coalition includes many Alaska communities including             
 Anchorage, Bethel, Juneau, Sitka, Ketchikan, Cordova, Barrow, and             
 other communities.  He stated over the past several years, the                
 Coalition has sponsored a number of tours of Alaska wetlands,                 
 bringing up key congressional aides to see first hand the problems            
 faced in Alaska regarding wetlands regulations.  These                        
 congressional tours involve key staffers who have jurisdiction over           
 the issue and these visits have taken on an increasing importance             
 now that major legislation is being considered in Washington, D.C.            
 on the issue.  He pointed out the visits have helped advance the              
 staff's learning curve on the issue, have brought them up to date             
 on Alaska's issues and have shown them there is a big difference              
 between rural Kansas and rural Alaska.                                        
                                                                               
 MR. PORTMAN stated RDC and the broad-based membership of the Alaska           
 Wetlands Coalition supports S.49, the Alaska Wetlands Conservation            
 Credit Procedures Act., sponsored by Senator Ted Stevens.  RDC                
 believes this landmark legislation will go a long way in resolving            
 many of the problems in Alaska posed by the unworkable no net loss            
 policy.                                                                       
                                                                               
 Number 091                                                                    
                                                                               
 KEN FREEMAN, PROJECTS COORDINATOR, RDC, stated the regulation of              
 Alaska's wetlands needs to be tailored to the unique features of              
 the state.  He pointed out that approximately 170 million acres in            
 Alaska, nearly half the state, are classified as wetlands, compared           
 with the contiguous U.S. which has 95 million acres.  Put another             
 way, Alaska currently has 64 percent of all the wetlands remaining            
 in the U.S.  He said Alaska wetlands, wildlife, and migratory                 
 waterfowl are not threatened or jeopardized by use of wetlands                
 here.  Special protection of coastal areas and many inland areas,             
 such as the entire North Slope, is provided by the Alaska Coastal             
 Management Program which encompasses 34,000 miles of shoreline.  He           
 stressed that wildlife is in no way habitat-limited in Alaska.                
                                                                               
 MR. FREEMAN noted that much of Alaska is protected from development           
 and many of its wetlands will never by developed.  Much of Alaska             
 is already protected from development as federal and state parks,             
 wildlife refuges, and other conservation units.  He pointed out               
 that the options for development are limited, and most industries             
 that utilize Alaska's wetlands, including but not limited to                  
 tourism, hunting, commercial and sport fishing, agriculture,                  
 recreation, oil and gas, mining and forest products, all have a               
 stake in what happens to the wetlands regulatory climate in Alaska.           
                                                                               
 MR. FREEMAN stated many nondevelopment groups look at the Corps of            
 Engineers statistics to demonstrate that administration of Section            
 404 is already more flexible in Alaska than the Lower 48.  He                 
 pointed out what is not taken into consideration is the number of             
 permits withdrawn, how many projects are delayed at tremendous                
 costs, how many permits were accepted only after mitigation took              
 place with other regulatory agencies and was not accounted for in             
 the official process.                                                         
                                                                               
 MR. FREEMAN told committee members the Section 404 program needs to           
 be significantly reformed to address the problems experienced by              
 public and private landowners in Alaska.  Alaska will likely never            
 face many of the wetlands problems seen in the contiguous U.S.  He            
 said Alaskans have been excellent stewards of the state's land and            
 resources and should not be penalized for its outstanding                     
 conservation record.  He stressed HJR 27 sends a clear signal to              
 the Administration and lawmakers in Washington, D.C. that Alaska              
 needs a current wetlands regulation tailored to provide flexibility           
 in Alaska wetland permitting commensurate with the vast amount of             
 wetlands in Alaska, the large amount of wetlands set aside in                 
 Alaska and the low historic loss of wetlands in Alaska.                       
                                                                               
 MR. FREEMAN said RDC supports HJR 27 because it is directed at                
 stimulating policy that is balanced and driven by reason.  He                 
 stated RDC hopes the House Resources committee will move HJR 27               
 expeditiously and that the Alaska Legislature passes the                      
 resolution.                                                                   
                                                                               
 Number 122                                                                    
                                                                               
 REPRESENTATIVE ALAN AUSTERMAN clarified that 45 percent of Alaska's           
 surface area is wetlands and 55 percent is not wetlands.                      
                                                                               
 MR. FREEMAN responded that is correct and added that 55 percent is            
 not wetlands or is mountainous regions.                                       
                                                                               
 REPRESENTATIVE AUSTERMAN asked how much of the 45 percent is tied             
 up by federal/state and how much is available for development.                
                                                                               
 MR. FREEMAN said he did not have a specific number in front of him            
 but would be happy to get that information to him.                            
                                                                               
 CO-CHAIRMAN JOE GREEN asked if that figure includes permafrost,               
 which is designated by the Corps of Engineers as wetlands.                    
                                                                               
 MR. FREEMAN replied permafrost is considered wetlands and is                  
 included in the 45 percent figure.                                            
                                                                               
 CO-CHAIRMAN GREEN noted for the record that Representative Nicholia           
 joined the committee.                                                         
                                                                               
 MR. FREEMAN stated 87 percent of the state is in public ownership             
 and 59 percent is under federal jurisdiction.  He said there are              
 differing amounts of wetlands set aside.  He added that over 57               
 million acres (the size of Utah) is in wilderness status.  He noted           
 that other lands in federal jurisdiction may or may not be open to            
 wetlands regulations depending on the designation.                            
                                                                               
 CO-CHAIRMAN GREEN noted for the record that Representative Williams           
 had joined the committee.                                                     
                                                                               
 Number 165                                                                    
                                                                               
 REPRESENTATIVE IRENE NICHOLIA referring to line 10, page 1,                   
 "prohibit the discharge of dredged and fill material...", stated              
 there is a permitting process with the Corps of Engineers for that.           
 She felt an amendment is needed because the discharge is not                  
 totally prohibited.                                                           
                                                                               
 CO-CHAIRMAN GREEN said perhaps the words "to restrict the                     
 discharge" would be better.                                                   
                                                                               
 REPRESENTATIVE NICHOLIA made a MOTION to AMEND HJR 27, page 1, line           
 10, to change the word "prohibit" to the word "restrict".                     
                                                                               
 REPRESENTATIVE AUSTERMAN said as currently written, it reads that             
 in 1975 the wetlands regulations were expanded to prohibit the                
 discharge rather than allow.                                                  
                                                                               
 CO-CHAIRMAN GREEN agreed.  He said currently the Corps of Engineers           
 does allow some very restrictive fill but noted this Whereas refers           
 to 1975 action.  Therefore, the whereas is correct as written.                
                                                                               
 REPRESENTATIVE NICHOLIA felt the statement is misleading because if           
 people do not know there is a permitting process, they will think             
 it is totally prohibited when reading this Whereas.                           
                                                                               
 CO-CHAIRMAN GREEN asked Representative Nicholia if she had any                
 suggestions for changing the wording.                                         
                                                                               
 REPRESENTATIVE NICHOLIA wondered if the resolution could be held              
 until the next meeting.                                                       
                                                                               
 CO-CHAIRMAN GREEN responded that timing was such that if the                  
 resolution is delayed, the legislature will miss the impact it will           
 have in helping Senator Stevens.                                              
                                                                               
 REPRESENTATIVE NICHOLIA WITHDREW her MOTION.                                  
                                                                               
 REPRESENTATIVE SCOTT OGAN clarified that the statement contained in           
 the Whereas, "the United States Army Corps of Engineers expanded              
 wetlands regulations to prohibit the discharge..." is factual.                
                                                                               
 CO-CHAIRMAN GREEN responded in 1975.                                          
                                                                               
 REPRESENTATIVE AUSTERMAN clarified there is a process which allows            
 people, through a permit process, to actually discharge into the              
 wetlands.                                                                     
                                                                               
 CO-CHAIRMAN GREEN replied that is correct.                                    
                                                                               
 REPRESENTATIVE AUSTERMAN agreed with Representative Nicholia that             
 the Whereas needs to be rewritten.                                            
                                                                               
 MR. FREEMAN said Senator Stevens bill goes over the 1975 change and           
 he indicated how the expansion of the regulation is designated in             
 that bill.  In 1975, a U.S. District Court ordered the Corps of               
 Engineers to publish revised regulations concerning the scope of              
 the Section 404 program; regulations that expanded the scope of the           
 program to include the discharge of dredged and fill material into            
 wetlands.  He thought perhaps a suggested change would be "Whereas,           
 in 1975, the United States Army Corps of Engineers expanded                   
 wetlands regulations to include the discharge of dredged and fill             
 material into wetlands;".                                                     
                                                                               
 REPRESENTATIVE NICHOLIA made a MOTION to AMEND HJR 27 page 1, line            
 10, to eliminate the word "prohibit" and replace it with the word             
 "include".                                                                    
                                                                               
 CO-CHAIRMAN GREEN suggested as a FRIENDLY AMENDMENT to the                    
 AMENDMENT, to include the word "restricted".  He said the discharge           
 is permitted but it is very restrictive and scrutinized.                      
                                                                               
 REPRESENTATIVE NICHOLIA accepted the friendly amendment.                      
                                                                               
 REPRESENTATIVE AUSTERMAN asked for the amendment to be read.                  
                                                                               
 CO-CHAIRMAN GREEN replied it would read, "Whereas, in 1975, the               
 United States Army Corps of Engineers expanded wetlands regulations           
 to include restricted discharge of dredged and fill material into             
 wetlands;"                                                                    
                                                                               
 CO-CHAIRMAN GREEN asked if there were any objections.  Hearing                
 none, the MOTION PASSED.                                                      
                                                                               
 REPRESENTATIVE OGAN made a MOTION to MOVE HJR 27 AS AMENDED out of            
 committee, with accompanying zero fiscal note, and asked for                  
 unanimous consent.                                                            
                                                                               
 CO-CHAIRMAN GREEN asked if there were any objections.  Hearing                
 none, the MOTION PASSED.                                                      
 HRES - 02/13/95                                                               
 CONFIRMATION OF VIRGIL UMPHENOUR TO THE BOARD OF FISHERIES                  
                                                                               
 Number 320                                                                    
                                                                               
 VIRGIL UMPHENOUR, APPOINTEE, BOARD OF FISHERIES, testified via                
 teleconference and said he has lived in the North Pole since 1971.            
 He stated he owns a commercial fish wheel permit for the upper                
 Yukon River, fishes on the Tanana River, has a small processing               
 facility in Fairbanks, is a registered hunting guide, has been                
 associated with several boards and associations, and is a sport               
 fisherman.                                                                    
                                                                               
 REPRESENTATIVE NICHOLIA asked who should bear the burden of                   
 conservation when individual river systems are not meeting                    
 escapement goals over a period of time.                                       
                                                                               
 MR. UMPHENOUR replied when individual river systems are not meeting           
 escapement goals over a long period of time, they become what is              
 known as a conservation crisis.  He said whenever a system has a              
 conservation crisis something has to be done.  First, the migration           
 route of that stock of fish has to be identified.  Once that is               
 done, then the catch rate throughout the entire migration route has           
 to be lowered so as to allow the fish to get to the spawning                  
 grounds and perpetuate the fish stock, which is mandated by the               
 constitution of the state for sustained yield.                                
                                                                               
 Number 360                                                                    
                                                                               
 REPRESENTATIVE NICHOLIA asked Mr. Umphenour, with his appointment,            
 how he feels about the balance of interests on the Board of                   
 Fisheries.  Everyone knows not every gear group within each                   
 geographical area can be represented.  With the present makeup of             
 the board, she asked if he feels the major fishing interests are              
 represented.                                                                  
                                                                               
 (Fairbanks dropped off line due to a power outage.)                           
                                                                               
 CO-CHAIRMAN GREEN noted for the record that Representative Barnes             
 had joined the committee at 8:30 a.m.                                         
                                                                               
 DEAN PADDOCK, JUNEAU, said he has been an Alaskan for almost 39               
 years and during that period, he has been intimately connected with           
 the board process every year with very few exceptions.  He stated             
 the business at hand is very serious--the management of the state's           
 wildlife resources, which is what makes Alaska unique.  He pointed            
 out that legislators have the ultimate responsibility for assuring            
 this management is carried out in the best possible manner and                
 added they have delegated this authority to the Boards of Fisheries           
 and Game.                                                                     
                                                                               
 MR. PADDOCK believed the state is still operating under the                   
 original statutes which described how these boards would be                   
 appointed.  These statutes were drafted in accordance with the                
 intent of the formers of the state constitution and speak of                  
 appointments to these boards without regard to political                      
 affiliation or regional interest.  He noted the Board of Fisheries            
 is a so-called lay board and includes people who are not involved             
 as professionals.  He felt that everyone was aware that                       
 appointments have been made by Governors according to region, even            
 though that is difficult to do because the state is so diverse.               
                                                                               
 MR. PADDOCK stated the Board of Fisheries has successfully managed            
 the state's resources fairly.  He said it is not a perfect process            
 but is only as good as the people who serve on the board.  He                 
 stressed he supports the confirmation of Virgil Umphenour.  He                
 pointed out there will probably be opposition to Mr. Umphenour's              
 confirmation and noted that opposition will probably be regionally            
 based.  He felt that opposition is understandable because there is            
 not a region in the state not desiring to maintain the                        
 representation which they may have previously had.                            
                                                                               
 MR. PADDOCK said the state has not always had representation from             
 the Interior on the board.  He recalled several people from the               
 Interior who had served on the board.  He felt it is time the                 
 Interior have a representative on the Board of Fisheries.  He                 
 pointed out for many years (especially earlier years), the                    
 questions involving the Yukon River and the rivers in Northwest               
 Alaska were not of vital importance but today they are.  The                  
 overall welfare of the salmon fisheries is looked at and everyone             
 is proud of those fisheries.  He stated unfortunately the state has           
 a soft under belly just as the fisheries on the Columbia River,               
 which is now known as an endangered species and has shut down                 
 commercial fishing off the coasts of Washington and Oregon.                   
                                                                               
 MR. PADDOCK stressed everyone needs to be aware that for years the            
 state has been guilty of overlooking what has now become the soft             
 under belly of the Alaskan fisheries picture--the rivers in the               
 Northwest and Interior.  He stated he has known Mr. Umphenour for             
 many years through his involvement in the process.  He felt Mr.               
 Umphenour is a knowledgeable, intelligent and well-informed man and           
 urged the committee to confirm him to the Board of Fisheries.                 
                                                                               
 Number 563                                                                    
                                                                               
 REPRESENTATIVE NICHOLIA asked Mr. Umphenour, in connection with his           
 appointment, how he felt about the balance of interests on the                
 Board of Fisheries.  It is known that not every gear group within             
 each geographical area can be represented.  However, with the                 
 present makeup of the board, does he feel the major fishing                   
 interests are represented.                                                    
                                                                               
 MR. UMPHENOUR felt that all major fishing interests are represented           
 on the board.  He said he has a lot of knowledge on the fisheries             
 in Northwest Alaska and the Interior where there is a conservation            
 crisis.  He stated his background and association with the sport              
 fishing community and with the subsistence community is quite                 
 different than any other board member's.  He pointed out he has               
 been associated with the in-river fisheries for a number of years             
 in the Yukon River, and with many of the terminal fishers in                  
 Northwest Alaska.                                                             
                                                                               
 Number 645                                                                    
                                                                               
 BRUCE SCHACTLER, KODIAK, testified via teleconference and wondered            
 if Mr. Umphenour had been a member of the Coastal In-Rivers                   
 Fisheries Organization or the Yukon River Drainage Fisherman's                
 Association.  He expressed opposition to Mr. Umphenour's                      
 confirmation.  He said his opposition is not based on a regional              
 problem but rather he felt there is no balance of knowledge on the            
 Board of Fisheries.  He stated Mr. Umphenour is a one fishery type            
 of person and the only experience he has with fish is in a river.             
 He noted the only migratory patterns Mr. Umphenour knows about is             
 what happens in the river with the fish wheel.                                
                                                                               
 MR. SCHACTLER felt what is needed on the Board of Fisheries are               
 people who are able to relate to the management of all fisheries of           
 Alaska, whether it is cod fishing in the Bering Sea or sea cucumber           
 diving in Southeast Alaska.  He felt Mr. Umphenour does not possess           
 the broad based experience and knowledge necessary.  He expressed             
 concern that with continued appointments such as Mr. Umphenour's,             
 the Board of Fisheries is getting more and more out of balance and            
 lacks the knowledge needed to make proper and good decisions.  He             
 felt decisions were being made based on special interests and not             
 based on what is good for the state.                                          
                                                                               
 TAPE 95-13, SIDE B                                                            
 Number 000                                                                    
                                                                               
 MR. SCHACTLER felt with the latest appointments, everyone is buying           
 in to the destruction of the board which seems to be the agenda of            
 the Southcentral legislators.  He urged the committee not to                  
 confirm Mr. Umphenour.                                                        
                                                                               
 REPRESENTATIVE RAMONA BARNES asked Mr. Schactler to comment on his            
 background.                                                                   
                                                                               
 MR. SCHACTLER responded he has been in Alaska since he was 18 years           
 old, 23 years ago and has been a commercial fisherman since 1975.             
 He said he has fished about everything there is to fish except he             
 has not done any trawling.                                                    
                                                                               
 REPRESENTATIVE BARNES recalled that Mr. Schactler talked about the            
 Board of Fisheries being out of balance.  She said the Board of               
 Fisheries has been out of balance for many years in favor of                  
 commercial fishermen.  She stressed the board has been so skewed              
 that there was little, if any fish left for sport fishermen to                
 catch.                                                                        
                                                                               
 Number 035                                                                    
                                                                               
 ART NELSON, FISHERIES SPECIALIST, KAWERAK, INC., testified via                
 teleconference and said his organization represents 20 villages in            
 the Norton Sound and Bering Straits region.  He stressed his                  
 organization supports the confirmation of Virgil Umphenour to the             
 Board of Fisheries.  He said Mr. Umphenour is a fish buyer and                
 processor and is intimately familiar with the fisheries of the                
 Yukon River, Norton Sound and all across Western Alaska.  He                  
 pointed out that Mr. Umphenour knows the importance of the small              
 scale commercial fisheries and how closely they are tied to the               
 subsistence way of life.  He noted that he has seen Mr. Umphenour             
 in action at Board of Fisheries meetings and knows he can                     
 objectively look at the information and evidence before him and               
 make solid, knowledgeable decisions.                                          
                                                                               
 REPRESENTATIVE OGAN observed that commercial fishermen may have a             
 problem with Mr. Umphenour's appointment.  He noted there are                 
 resource problems.  He asked Mr. Umphenour to summarize what he               
 thinks would be a fair way to help mitigate the damage to all user            
 groups when there is a shortage of the resource.                              
                                                                               
 MR. UMPHENOUR responded the department has a biological escapement            
 goal for each system.  The department has different ways to                   
 determine whether the fish have their escapement or not.  The                 
 department calculates how many fish are going to be returning to a            
 system based on what the escapement was from the brood years and              
 works backwards.  However, some of the state's salmon travel                  
 through different regions.  Therefore, the fishing on those salmon            
 is managed by different fish managers.                                        
                                                                               
 MR. UMPHENOUR stressed that the terminal fish manager has no                  
 control over how many of those fish are caught in a different                 
 region.  He felt that is one of the problems causing many areas               
 from not meeting their spawning objectives.  Fish are caught in               
 fisheries where the manager is not held accountable if the fish do            
 not show up on the spawning grounds.  Therefore, what has happened            
 in the past is the terminal managers have restricted the fisheries            
 and even closed the fisheries for every type of fishing there is              
 including sport, subsistence, commercial, and personal use.  He               
 noted the Yukon River has been closed three consecutive years for             
 commercial, sport, and subsistence fishing.  He added that some               
 areas in the Norton Sound have been closed for subsistence fishing            
 for eight years and are approaching endangered species mode.                  
                                                                               
 MR. UMPHENOUR stressed the burden of conservation has to be shared            
 throughout the entire migratory route of the fish.  He said the               
 terminal fishers have been bearing the brunt of the burden of                 
 conservation.                                                                 
                                                                               
 Number 115                                                                    
                                                                               
 BILL HENRY, FAIRBANKS, testified via teleconference and said he had           
 been a resident in the area for over 40 years.  He noted he has               
 fished commercially, for personal use, subsistence and sport.  He             
 felt Mr. Umphenour is well informed and is very knowledgeable.                
                                                                               
 REPRESENTATIVE OGAN agreed with Mr. Umphenour on his analysis of              
 the terminal fisheries management.  However, commercial fisheries             
 is an important part of the state's economy.  He requested Mr.                
 Umphenour to expand on what he would like to see happen to help               
 solve the problem, without shutting down a major portion of the               
 state's economy.                                                              
                                                                               
 MR. UMPHENOUR stressed he does not advocate shutting down                     
 commercial fishing unless it has to be done biologically, which has           
 happened in the state.  He does not like to see that happen.  He              
 said if any of the state's rivers get on the endangered species               
 list, the fisheries will shut down.  He felt the weak stocks have             
 to be rebuilt and if that requires changing fishing patterns and              
 fishing management so as not to fish discreet stocks in trouble,              
 then that has to be done and he stressed it can be done.  He said             
 there are a number of things which can be done to allow a discreet            
 stock of fish to return to their spawning grounds such as time and            
 area closures, modifications to fishing gear, etc.  He stressed it            
 is important to protect the fisheries for all users of the state.             
 If the state's fisheries are depleted, everyone will suffer in the            
 long run.  He felt it was better to suffer a little to rebuild the            
 fisheries, than it is to fish them to death.                                  
                                                                               
 Number 175                                                                    
                                                                               
 PAUL KLEINSCHMIDT, NENANA, testified via teleconference and stated            
 he and his wife have fished in the Interior for 18 years.  He added           
 they have dealt with Mr. Umphenour for several years and found him            
 to be extremely knowledgeable.  He stated Mr. Umphenour knows the             
 market and fishermen and buyers have found him to be hard working.            
 He felt Mr. Umphenour would be a fair and dedicated Board of                  
 Fisheries member.  He disagreed with the testimony from Kodiak.               
                                                                               
 ANDY GOLIA, DILLINGHAM, testified via teleconference and stated he            
 was born and raised in Dillingham and is a commercial fisherman.              
 He told committee members the various fish related boards and                 
 organizations he belongs to.  He expressed support for the                    
 confirmation of Virgil Umphenour to the Board of Fisheries.  He saw           
 Mr. Umphenour in action at the board meeting in Dillingham and he             
 felt he did a good job and asked good questions.  He said there are           
 many fishermen in Bristol Bay who support Mr. Umphenour.                      
                                                                               
 PAUL GRONHOLDT, SAND POINT, testified via teleconference and felt             
 Mr. Umphenour's appointment would not be in the best interest of              
 the state.  He said it is clear that Mr. Umphenour has a pre-set              
 agenda, particularly if his comments to the Senate Resources                  
 Committee are reviewed.  He felt Mr. Umphenour will be forced to be           
 a non-voting member on many of the issues before the board.  He               
 stated what is particularly troubling is Mr. Umphenour's comments             
 about veterans in the Sand Point area in particular.  He hoped the            
 board does not get into a gridlock but felt it will when there                
 continues to be appointments like Mr. Umphenour.                              
                                                                               
 CO-CHAIRMAN GREEN asked if there was anyone else to testify on the            
 confirmation of Virgil Umphenour.  Since no one else wished to                
 testify, the committee report was signed.                                     
                                                                               
 Number 268                                                                    
 HRES - 02/13/95                                                               
 HB 20 - RIGHTS IN TIDE/SUBMERGED LAND                                       
                                                                               
 REPRESENTATIVE CARL MOSES, PRIME SPONSOR, stated there are two                
 reasons he introduced HB 20.  The Department of Natural Resources             
 (DNR) leases are cumbersome, costly to obtain and the terms of the            
 leases vary widely.  He said it is difficult to obtain general                
 obligation bonding without fee simple title or a 55 year lease on             
 the land.  He stressed HB 20 is a good bill and is supported by the           
 Alaska Municipal League and the Association of Harbormasters and              
 Port Administrators, Inc.  He told committee members he would                 
 appreciate their support on HB 20.                                            
                                                                               
 JOHN BAKER, ASSISTANT ATTORNEY GENERAL, NATURAL RESOURCES SECTION,            
 DEPARTMENT OF LAW, testified via teleconference and stated he would           
 comment on the effect of the public trust doctrine on conveyances             
 authorized under HB 20.  He said the public trust doctrine is a               
 constitutional doctrine which was first announced by the U.S.                 
 Supreme Court holding that when a state enters the Union, it takes            
 title to tidelands and submerged lands in trust for the people of             
 the state for three basic purposes--navigation, commerce, and                 
 fishing--all in the context of access to and use of tidelands and             
 submerged lands.                                                              
                                                                               
 MR. BAKER stated the Alaska Supreme Court has expressly adopted the           
 public trust doctrine.  In a 1988 case, the court held that the               
 doctrine is inherent in the common use clause of the Alaska                   
 Constitution (Article VIII, Section 3).  He said the Alaska Supreme           
 Court ruled whereas conveyances remain subject to the public trust,           
 members of the public cannot be excluded from pursuing public trust           
 uses on that land because essentially there is an easement or a               
 servitude placed on the land.  He explained grantees of tidelands             
 can still make use of the land but they may not make such use that            
 would substantially impair use by the public.                                 
                                                                               
 MR. BAKER said the standard is the tax holder can make such use of            
 the property as it will not reasonably interfere with continuing              
 access.  He added they can make use of the land but they cannot               
 prohibit, by any general attempt, to exclude the public or public             
 trust uses.  He stated DNR wants to ensure everyone is aware that             
 conveyances authorized by HB 20 would remain subject to the public            
 trust in the vast majority of cases.                                          
                                                                               
 MR. BAKER stated there are some criteria under which a legislature            
 may authorize conveyances free of the public trust in very narrow             
 circumstances.  The legislature has to clearly express that intent.           
 He said under Section 38.05.825 (d) of HB 20, conveyances                     
 authorized by HB 20 are subject to restrictions required by law               
 including AS 38.05.127 and specifically the public trust doctrine.            
 He explained it is possible that future conveyances by DNR,                   
 authorized under HB 20, could be made free of the public trust but            
 those conveyances would be in very limited circumstances.  For                
 example, there may be a conveyance of a small parcel for a specific           
 public trust purpose.  He noted that each conveyance will be looked           
 at on a case by case basis.  He pointed out if the court can                  
 construe a conveyance of tidelands or submerged lands as being                
 subject to the public trust doctrine, it will construe it that way.           
                                                                               
 Number 355                                                                    
                                                                               
 REPRESENTATIVE BARNES asked if a conveyance like this has ever been           
 done before through statute.                                                  
                                                                               
 MR. BAKER replied there is an existing preference rights statute,             
 AS 38.05.820, which for years has authorized conveyances under                
 preference rights requiring the purchase of tide and submerged                
 lands for a nominal fee.  Generally, those have been based on prior           
 occupancy of the tide and submerged lands at the time of statehood.           
 He reiterated the legislature does have the authority to make this            
 type of conveyance.  He added the Alaska Supreme Court did find               
 that conveyances under that statute are subject, in almost all                
 cases, to the public trust doctrine.                                          
                                                                               
 REPRESENTATIVE BARNES asked how much land the state has conveyed              
 under the existing statute.                                                   
                                                                               
 MR. BAKER responded he did not know the answer.  He said DNR could            
 answer the question.                                                          
                                                                               
 Number 392                                                                    
                                                                               
 MOLLY SHERMAN, REPRESENTATIVE, ALASKA ENVIRONMENTAL LOBBY (AEL),              
 stated AEL has serious concerns about HB 20.  She said HB 20                  
 contains a fatal flaw--it prohibits DNR from imposing any                     
 conditions on the conveyance of tide and submerged land other than            
 those required by law.  She noted deliberately or accidentally, HB
 20 neglects to provide for reserving mineral rights to the state              
 and prevents DNR from correcting the problem.  What this means is             
 that municipalities can get fee simple title to potentially very              
 valuable tide and submerged lands that the state could lease for              
 oil and gas in the future.  She felt this might place the state's             
 financial future in jeopardy via a loss of potential oil and gas              
 revenues.                                                                     
                                                                               
 MS. SHERMAN stated HB 20 requires DNR to convey any tide or                   
 submerged lands a municipality wants if four conditions are met.              
 Under this method, a municipality could write a land use plan or              
 amend an existing plan pursuant to this bill Section 1 (a)(3) and             
 DNR must convey.  She said in HB 20, under Section 1 conveyances,             
 there is no return to the state, although state funds will be used            
 to make the conveyances, nor any discretion on the state's part.              
 She stressed there may not even be public notice, because without             
 any dissection, it is not a discretionary decision.  Therefore, no            
 finding of whether the conveyance would be in the state's best                
 interest could be made.  She pointed out there would be little                
 point or need in notifying and consulting the general public.                 
                                                                               
 MS. SHERMAN said Section 1 (b) of HB 20 would allow DNR to convey             
 tide and submerged land out of state lands that have been                     
 designated by statute if the DNR commissioner finds that the                  
 municipalities proposed use is consistent or compatible with the              
 purpose of the designation.  She noted that designated lands                  
 include state parks, state wildlife refuges, and critical habitats,           
 among others.                                                                 
                                                                               
 Number 438                                                                    
                                                                               
 REPRESENTATIVE BARNES asked if the AEL has ever supported any oil             
 and gas leases anywhere.                                                      
                                                                               
 MS. SHERMAN said she would be happy to find out.                              
                                                                               
 CO-CHAIRMAN GREEN asked Mr. Swanson to address the transfer of                
 mineral interests with surface interests.                                     
                                                                               
 RON SWANSON, DIRECTOR, DIVISION OF LAND, DNR, testified via                   
 teleconference and recalled that Representative Barnes had asked              
 how much land had been conveyed under the former statute AS                   
 38.05.820.  He said to date, the department has conveyed 22,848               
 acres to various municipalities.  He responded in regard to the               
 other question, the department never envisioned conveying oil and             
 gas to municipalities under AS 29.65 which is the municipal land              
 act.  The department only conveys the surface estate if the oil and           
 gas has been obtained through state ownership pursuant to the                 
 statehood act.  He noted if the committee wanted to make it more              
 clear, an amendment could be made to the bill specifically stating            
 the department has no intention of conveying subsurface estates.              
                                                                               
 Number 482                                                                    
                                                                               
 WELLS WILLIAMS, PLANNING DIRECTOR, CITY AND BOROUGH OF SITKA,                 
 testified via teleconference and stated Sitka strongly supports HB
 20.  He said the reasons for HB 20 outlined in Representative                 
 Moses' sponsor statement are very clear and very succinct.  He                
 stressed the city has been pleased with the responsiveness which              
 Mr. Swanson's department has given in the past several years.  He             
 felt the reality is however, the department does not have the time            
 or the local knowledge to make local land use decisions.                      
                                                                               
 MR. WILLIAMS said since Sitka is going through a very broad based             
 planning effort involving environmental groups and developing                 
 interests as well, the city is in a better position to make those             
 decisions.  He stressed HB 20 is also very important for other                
 communities in Southeast Alaska.                                              
                                                                               
 BOB JUETTNER, ADMINISTRATOR, ALEUTIANS EAST BOROUGH (AEB),                    
 testified via teleconference and stated AEB supports HB 20.  He               
 said HB 20 balances the public trust doctrine with community needs            
 for tidelands development.  He noted AEB feels HB 20 is an                    
 equitable piece of legislation and it corrects inequities that                
 municipalities incorporated after 1964 have.  He stated that                  
 original legislation was amended on the floor of the Senate and               
 ruled out anybody but first class cities incorporated at that time.           
 Yet, it still allows the first class cities incorporated, prior to            
 1964, to go out and manage uplands and to get the fee simple title            
 to that tideland.                                                             
                                                                               
 MR. JUETTNER stated AEB wishes to keep the tidelands conveyance               
 (indiscernible) as clean as possible with nothing other than what             
 is currently in statute.  He noted that what happens in tidelands             
 leasing is the special conditions evoke general conditions that are           
 imposed upon us (indiscernible) become more and more burdensome               
 over time.  He said the AEB is in the process of doing its                    
 municipal entitlement and has to hold the state harmless from plans           
 it has had under their management, for contamination.  He stressed            
 these types of requirements go well beyond the intent of the                  
 original legislation and limits AEB's ability to move forward with            
 the development of land.                                                      
                                                                               
 MR. JUETTNER felt HB 20 would be a good piece of legislation not              
 only for the AEB but all coastal communities needing access to the            
 ownership of tides and submerged lands.                                       
                                                                               
 Number 563                                                                    
                                                                               
 CO-CHAIRMAN GREEN said there was a question raised that because               
 submerged lands are state domain and that by transferring title               
 absolute other than a lease, there might be some confusion.                   
 Referring to page 2, line 20, he wondered if the words "or sale"              
 implies that the land would no longer be subject to state                     
 ownership.                                                                    
                                                                               
 MR. SWANSON stated the DNR recommends the deletion of the words "or           
 sale" because it is public trust land and the public trust                    
 doctrine.  He said the department's concern is that if land is                
 conveyed into private ownership by the municipality to a third                
 person, while not necessarily violating the public trust doctrine             
 at the time of the sale, may violate, by its use over time, the               
 doctrine at a later date.  This puts the state in an awkward                  
 position of having to go back and sue.  He stressed on a lease                
 document the stipulations can be changed over time, even if it is             
 a long term lease.                                                            
                                                                               
 CO-CHAIRMAN GREEN clarified that eliminating the words "or sale"              
 would avoid any problems expressed earlier about subsurface mineral           
 interests.                                                                    
                                                                               
 MR. SWANSON stated that is correct.                                           
                                                                               
 CO-CHAIRMAN GREEN asked if the sponsor has any problem with the               
 suggested amendment.                                                          
                                                                               
 REPRESENTATIVE MOSES said he does not.                                        
                                                                               
 REPRESENTATIVE AUSTERMAN stated he does not agree with the proposed           
 amendment.  He said part of the problem and the reason HB 20 is               
 before the committee is due to some of the leases that DNR has put            
 out there.  He felt the department has constricted and stopped a              
 lot of the development on some of these tidelands.  In addition, it           
 has made them very expensive.  He stressed the sale should be left            
 in HB 20.  He noted that in committee member's folders there is a             
 memorandum from Tamara Cook dated February 7, 1995, and on the                
 second page of that memo there was a discussion of tightening up              
 the title to the bill.  The last paragraph indicates a tighter                
 title to read, "An Act relating to conveyance of certain tide and             
 submerged land to municipalities."  He felt that title change would           
 solve some of the problems and concerns expressed by DNR about the            
 land going to a third party.  The land would only go to a                     
 municipality.                                                                 
                                                                               
 MR. SWANSON said the department absolutely will convey the fee                
 simple to the municipalities and it will not be encumbered with the           
 stipulations contained in leases.  He stated all the stipulations             
 in the leases were basically to ensure the state was not liable.              
 He stressed once the land is admitted to the municipality, it                 
 becomes their problem.  He noted the reason the department wants              
 the words "or sale" deleted is because the department does not                
 think it is right for the municipality to be able to convey the               
 land to a third party and put the third party in jeopardy of the              
 public trust doctrine.                                                        
                                                                               
 Number 667                                                                    
                                                                               
 CO-CHAIRMAN GREEN recalled that Mr. Swanson had said the department           
 will transfer a fee simple which gets back into the situation of              
 transferring mineral interests as well.                                       
                                                                               
 MR. SWANSON said he stated fee simple but meant only for the                  
 surface estate not the subsurface estate.                                     
                                                                               
 TAPE 95-14, SIDE A                                                            
 Number 000                                                                    
                                                                               
 REPRESENTATIVE AUSTERMAN made a MOTION to AMEND HB 20 by changing             
 the title to read, "An Act relating to conveyance of certain tide             
 and submerged land to municipalities."                                        
                                                                               
 CO-CHAIRMAN GREEN asked Mr. Swanson if he has any problems with the           
 title change.                                                                 
                                                                               
 MR. SWANSON said the change is good.                                          
                                                                               
 REPRESENTATIVE MOSES said the change is fine and added that he was            
 going to recommend the change.                                                
                                                                               
 CO-CHAIRMAN GREEN asked if there were any objections to the motion.           
 Hearing none, the MOTION PASSED.                                              
                                                                               
 CO-CHAIRMAN GREEN made a MOTION to AMEND HB 20 to delete the words            
 "or sale" on page 2, line 20.                                                 
                                                                               
 REPRESENTATIVE AUSTERMAN OBJECTED.                                            
                                                                               
 REPRESENTATIVE BARNES asked Co-Chairman Green to speak to his                 
 motion.                                                                       
                                                                               
 CO-CHAIRMAN GREEN said the concern is if the words "or sale" is               
 included in that line and the municipality ultimately makes a sale            
 of that land to a third party, the third party then is in jeopardy            
 of being sued by the state as an innocent third party because tide            
 and submerged lands were conveyed to the state under sovereignty.             
                                                                               
 REPRESENTATIVE BARNES wondered if the state normally sells land               
 which has been held in public trust.                                          
                                                                               
 MR. SWANSON responded the state does not sell tide shore submerged            
 lands.  The department is prohibited from doing so in Title 38.               
                                                                               
 REPRESENTATIVE BARNES clarified the department is also prohibited             
 under the Statehood Act and the state constitution from selling any           
 subsurface rights.                                                            
                                                                               
 MR. SWANSON said that is correct.                                             
                                                                               
 REPRESENTATIVE BARNES clarified even if the department conveyed or            
 sold this land, the public trust doctrine, under the constitution             
 and the fact the department cannot sell these rights would not                
 apply.                                                                        
                                                                               
 MR. SWANSON said under no cases would the department alienate the             
 subsurface which would be retained by the state.  On the surface              
 estate for tide shore submerged lands, the department is also                 
 currently prohibited from selling those.  The department does lease           
 them.  The department is recommending that the same basic rules               
 apply to municipalities.                                                      
                                                                               
 REPRESENTATIVE AUSTERMAN said with the passage of HB 20, the state            
 would be able to sell the surface rights of the properties to the             
 municipalities but the subsurface would be held by the state.                 
                                                                               
 REPRESENTATIVE BARNES clarified the concern is the department would           
 not lease the property to municipalities under the same terms they            
 would sell it to them.  She wondered if there was some concern that           
 the department is going to continue to tie up the land.                       
                                                                               
 REPRESENTATIVE AUSTERMAN stated the concerns which have been                  
 expressed to him by municipalities is the form of the lease has               
 been very restrictive to municipalities as far as how the lease is            
 written and the cost of that lease.  He said if he could be assured           
 it would be just a straight lease of the land rather than include             
 restrictions on the municipalities and how they can lease the land,           
 he would be more comfortable.                                                 
                                                                               
 CO-CHAIRMAN GREEN pointed out that Mr. Swanson has given a                    
 commitment.  He clarified that Mr. Swanson said the department                
 would be transferring the surface estate fee simple.                          
                                                                               
 MR. SWANSON said that is correct.  He stated the department does              
 not think it is good that the municipality can also convey in fee             
 to a third party.                                                             
                                                                               
 REPRESENTATIVE BARNES asked Representative Moses why the words                
 "lease or sale" are in HB 20 on page 2, line 20.                              
                                                                               
 REPRESENTATIVE MOSES felt the municipalities should not be                    
 restricted in any way.  He said if the department is going to                 
 convey the tidelands to the municipalities, they should also have             
 the privilege of selling the land in the future.  He noted he                 
 cannot imagine why a municipality would want to sell the tidelands            
 nor could he imagine anyone wanting to buy the tidelands with the             
 public trust doctrine in place.                                               
                                                                               
 CO-CHAIRMAN GREEN asked for a roll call vote on the motion.  Voting           
 in favor of the motion were Representatives Ogan, Nicholia, and               
 Green.  Voting against the motion were Representatives Barnes,                
 Austerman, and Williams.  The MOTION FAILED.                                  
                                                                               
 REPRESENTATIVE BARNES made a MOTION to MOVE HB 20 as amended, with            
 accompanying fiscal notes, with individual recommendations.                   
                                                                               
 CO-CHAIRMAN GREEN asked if there were any objections.  Hearing                
 none, the MOTION PASSED.                                                      
 HRES - 02/13/95                                                               
 HB 79 - MUNICIPAL LAND ERROR CORRECTIONS                                    
                                                                               
 Number 117                                                                    
                                                                               
 REPRESENTATIVE JERRY MACKIE, PRIME SPONSOR, said he introduced HB
 79 at the request of the city of Skagway to correct a longstanding            
 land ownership problem in Skagway.  Fifty years ago, a dike was               
 constructed along the Skagway River to protect the town from                  
 flooding.  Over the years, the area between the original river bank           
 and the dike has been reclaimed and subdivided by the city with               
 lots sold and built upon.  He noted even the high school is located           
 in the area.                                                                  
                                                                               
 REPRESENTATIVE MACKIE stated the problem is the city did not have             
 clear title to this land from the beginning.  Hence, the title for            
 subsequent private property owners is also clouded.  Not only are             
 the owners' investments and improvements at risk, but bank                    
 financing for further improvements or sales is foreclosed.  He                
 pointed out that in the past several years, the city and DNR have             
 unsuccessfully sought an administrative remedy for the problem.               
 While current statute allows DNR administrative discretion in                 
 resolving land ownership errors and omissions for individual                  
 citizens under AS 38.05.035(b)(2) and (b) (3), there is no similar            
 provision for errors and omissions of a municipality.                         
                                                                               
 REPRESENTATIVE MACKIE explained HB 79 would add such a provision.             
 The new proposed subsection AS 35.05.035(b) (11), allows the                  
 director of the division of lands the discretion to quitclaim land            
 to a municipality to correct past errors and omissions.  The                  
 director may also set any terms or conditions that is deemed                  
 appropriate for the transaction.  He stressed that land title                 
 transferred to a municipality in this manner is counted against the           
 municipality's general land grant entitlement from the state.                 
                                                                               
 REPRESENTATIVE MACKIE stated section 2 provides a January 1, 1998,            
 repeal of AS 35.05.035(b) (11).  Thus, the opportunity to correct             
 municipal land ownership errors is limited to a two and one-half              
 year period.  He noted this bill was introduced in the last                   
 session.  It progressed through the House and Senate until it died            
 in the Senate Rules committee.  He told committee members that in             
 their folders there is a map (may be found in the House Resources             
 Committee Room, Capitol Room 124, and after adjournment of the                
 second session of the 19th Alaska State Legislature, in the                   
 Legislative Reference Library) showing the area being discussed               
 which he reviewed.  He said the property affected always has                  
 clouded title problems.  He mentioned that DNR is very supportive             
 of HB 79.                                                                     
                                                                               
 REPRESENTATIVE BARNES made a MOTION to MOVE HB 79 out of committee,           
 with accompanying fiscal notes, with individual recommendations.              
                                                                               
 CO-CHAIRMAN GREEN asked if there were any objections.  Hearing                
 none, the MOTION PASSED.                                                      
                                                                               
 ADJOURNMENT                                                                   
                                                                               
 There being no further business to come before the House Resources            
 Committee, Co-Chairman Green adjourned the meeting at 9:50 a.m.               
                                                                               

Document Name Date/Time Subjects