Legislature(1995 - 1996)
02/13/1995 08:07 AM House RES
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
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.
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