Legislature(2001 - 2002)
03/04/2002 01:07 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
March 4, 2002
1:07 p.m.
MEMBERS PRESENT
Representative Drew Scalzi, Co-Chair
Representative Hugh Fate, Vice Chair
Representative Joe Green
Representative Mike Chenault
Representative Lesil McGuire
Representative Gary Stevens
Representative Mary Kapsner
Representative Beth Kerttula
MEMBERS ABSENT
Representative Beverly Masek, Co-Chair
COMMITTEE CALENDAR
HOUSE BILL NO. 439
"An Act removing provisions providing an opportunity to petition
for review of proposed consistency determinations under the
Alaska coastal zone management program."
- MOVED CSHB 439(RES) OUT OF COMMITTEE
HOUSE BILL NO. 376
"An Act relating to management of fish and game in and on the
navigable waters and submerged lands of Alaska."
- FAILED TO MOVE HB 376 OUT OF COMMITTEE
HOUSE BILL NO. 232
"An Act permitting state residents to purchase remote
recreational cabin sites."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 439
SHORT TITLE:COASTAL ZONE MANAGEMENT PROGRAMS & PETITIONS
SPONSOR(S): OIL & GAS
Jrn-Date Jrn-Page Action
02/15/02 2287 (H) STA, RES
02/15/02 2287 (H) READ THE FIRST TIME -
REFERRALS
02/19/02 2321 (H) STA REFERRAL REMOVED
02/19/02 2321 (H) O&G REFERRAL ADDED BEFORE RES
02/21/02 (H) O&G AT 10:00 AM CAPITOL 124
02/21/02 (H) Heard & Held
02/26/02 (H) O&G AT 10:00 AM CAPITOL 124
02/26/02 (H) Moved Out of Committee
02/27/02 2406 (H) O&G RPT 7DP
02/27/02 2406 (H) DP: KOHRING, DYSON, CHENAULT,
GUESS,
02/27/02 2406 (H) FATE, JOULE, OGAN
02/27/02 2406 (H) FN1: ZERO(GOV)
03/04/02 (H) RES AT 1:00 PM CAPITOL 124
BILL: HB 376
SHORT TITLE:FISH & GAME IN NAVIGABLE WATERS
SPONSOR(S): REPRESENTATIVE(S)OGAN
Jrn-Date Jrn-Page Action
02/01/02 2121 (H) READ THE FIRST TIME -
REFERRALS
02/01/02 2121 (H) RES, JUD
03/01/02 (H) RES AT 1:00 PM CAPITOL 124
03/01/02 (H) Heard & Held
03/04/02 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE SCOTT OGAN
Alaska State Legislature
Capitol Building, Room 108
Juneau, Alaska 99801-1182
POSITION STATEMENT: Presented HB 439 as chair of the House
Special Committee on Oil and Gas, sponsor; testified as sponsor
of HB 376.
KEN DONAJKOWSKI, Permitting Manager
Phillips Alaska, Inc.
P.O. Box 100360
Anchorage, Alaska 99510
POSITION STATEMENT: Testified that Phillips Alaska, Inc.,
supports HB 439 because the current petition process enables an
individual to easily hamper responsible oil and gas development.
PATRICK GALVIN, Director
Division of Governmental Coordination (DGC)
Office of the Governor
P.O. Box 110030
Juneau, Alaska 99811-0030
POSITION STATEMENT: Testified on HB 439, indicating DGC doesn't
oppose eliminating the [AS 46.40.100](b)(1) petitions because of
problems that have occurred.
JUDY BRADY, Executive Director
Alaska Oil and Gas Association (AOGA)
121 West Fireweed Lane
Anchorage, Alaska 99503
POSITION STATEMENT: Testified in support of HB 439.
NANCY WAINWRIGHT, Attorney
13030 Back Road, Suite 555
Anchorage, Alaska 99515
POSITION STATEMENT: Testified in support of HB 439, indicating
the solution worked out in 1994 was wrong and that the petition
process doesn't work.
DALE BONDURANT
31864 Moonshine Drive
Soldotna, Alaska 99669
POSITION STATEMENT: Testified in support of HB 376.
ACTION NARRATIVE
TAPE 02-14, SIDE A
Number 0001
CO-CHAIR DREW SCALZI called the House Resources Standing
Committee meeting to order at 1:07 p.m. Representatives Scalzi,
Fate, Chenault, McGuire, Green, and Kerttula were present at the
call to order. Representatives Kapsner, and Stevens arrived as
the meeting was in progress.
HB 439-COASTAL ZONE MANAGEMENT PROGRAMS & PETITIONS
CO-CHAIR SCALZI announced the first order of business, HOUSE
BILL NO. 439, "An Act removing provisions providing an
opportunity to petition for review of proposed consistency
determinations under the Alaska coastal zone management
program."
Number 0168
REPRESENTATIVE SCOTT OGAN, Alaska State Legislature, presented
HB 439 as chair of the House Special Committee on Oil and Gas,
sponsor. He explained that the bill would eliminate the
petition process in the Alaska Coastal Management Program
(ACMP). He mentioned that there had been no opposition to HB
439 in a previous House Special Committee on Oil and Gas
meeting, although he'd been prepared for some serious
opposition.
REPRESENTATIVE OGAN said the system is so "broken" that the
Division of Governmental Coordination (DGC) had testified that
it didn't oppose the bill, but didn't necessarily support it.
He offered his opinion that the petition process is being used
as a 30-day delay tactic by those who [oppose] development. He
suggested the drilling season on the North Slope, with its
tundra and ice, has become shorter due to the warmer climate in
recent years. He said 30 days is a significant amount of time
to delay [the development] process. He said although the bill
does eliminate the petition process, it does not affect the
ability of people to testify or be involved in the coastal zone
management process.
Number 0399
REPRESENTATIVE KERTTULA clarified that HB 439 would not
eliminate the entire petition process, because the district
management program would be left in place. She asked
Representative Ogan if the bill would eliminate an appeal
process for a third party.
REPRESENTATIVE OGAN answered in the affirmative.
Number 0491
KEN DONAJKOWSKI, Permitting Manager, Phillips Alaska, Inc.
("Phillips"), testified before the committee. He explained that
Phillips supports HB 439 because the Alaska coastal zone
petition process had significantly delayed five consistency
determinations during December and January. He remarked that
the petition process enables an individual to easily hamper
responsible oil and gas development. He said HB 439
appropriately removes this needless component from the overall
ACMP process.
MR. DONAJKOWSKI said the ACMP program project-approval process
is too complex to discuss fully in the short time allowed for
testimony. He highlighted Phillip's specific concerns: The
ACMP, primarily a procedural and not a substantive process, is
set out in Title 46, Chapter 40; its implementing regulations
appear at 6 AAC 50. For most projects, the DGC is charged with
coordinating, on behalf of the state, the determination of
whether a proposed project in and around the state's coastal
areas is "consistent" - in compliance - with the applicable
standards of the ACMP set forth in 6 AAC 80 and the standards of
the applicable coastal district. During the coordinated review
process, each local, state, and federal agency not only is
involved in helping DGC make the consistency determination, but
also is responsible for reviewing, analyzing, and issuing its
own numerous permits and authorizations. Moreover, the public
has an opportunity to be involved in and comment on the ACMP
consistency review and each of the agency permits.
Number 0712
MR. DONAJKOWSKI offered his belief that this is where the
petition process is being manipulated and misused. If a single
individual living in the district where the project is proposed
submits comments to DGC during the public comment period, and if
the agency subsequently issues a proposed determination that the
project is "consistent," then the individual has the right to
notify DGC of his/her intent to petition the Alaska Coastal
Policy Council (CPC); this automatically extends the consistency
review period by up to 50 total days, which includes 20 days for
the petitioner to draft the formal petition and then, if
submitted, another 30 days for the CPC to convene and make its
decision. Neither DGC nor the CPC gets to review the merits of
the notice of petition or the petition itself.
MR. DONAJKOWSKI continued, noting that if the petitioner meets
certain basic requirements - such as being a citizen in the
district and having submitted comments - then, regardless of the
merit of the comments, the right to petition is automatically
granted. Conversely, removal of the petition process would not
decrease the right of the public to provide comments on a
project. It would simply eliminate the right to needlessly
delay a project. He said the specific responsibility of the CPC
is solely to answer the following question: "Did DGC fairly
consider the comments made by the petitioner during the public
process?" The CPC does not review or address the merits of the
petitioner's comments, only whether the comment was considered.
Number 0846
MR. DONAJKOWSKI said a Kuparuk field development project known
as "drill site 3S" was delayed through the aforementioned
process for 35 days. Phillips, an outside attorney, a
representative from the North Slope Borough, numerous agency
personnel, and the entire CPC had shown up at the scheduled
hearing only to discover that the petitioner had withdrawn the
petition minutes before the hearing was scheduled to begin. He
said in addition to needless delay of the project, this action
resulted in several hundred hours of wasted preparatory work
done by DGC employees as well as Phillips employees.
Furthermore, an entirely unrelated project package was also
impacted for 15 days because DGC staff needed to prepare for the
CPC hearing.
MR. DONAJKOWSKI said it was almost a dual project impact
[because] four of Phillips' exploration-permitting packages,
which also received proposed consistency determinations, were
similarly petitioned. In one case, the petitioner appeared by
telephone to present the petition, which CPC unanimously
dismissed. Two of the remaining three petitions were withdrawn
by the petitioner, and the last one was dismissed because the
actual petition was submitted after the 20-day period had
expired. A project that met the state's test for consistency
was delayed 20 days through the submittal of comments and a
notice that a petition would be filed.
MR. DONAJKOWSKI said exploratory drilling on the North Slope is
conducted during the few winter months when ice roads can be
used to mitigate impacts on the tundra; because of weather
conditions, this can be a relatively short, uncertain period of
time to drill a well, so a 10- to 15-day delay can be
significant. Consequently, delays brought about by this
petition process can result in abandoning an otherwise viable
drilling program.
MR. DONAJKOWSKI reiterated that the ACMP process and the various
agency permits required offer the public a significant
opportunity to raise substantive concerns. He offered his view
that this particular petition process has no constructive
application. He said its only use is as a tool to hold hostage
responsible projects that would develop the state's resources;
consequently, HB 439 appropriately does away with this tool.
Number 1083
REPRESENTATIVE GREEN asked how long the process involving
"frivolous delay" requests had been going on.
MR. DONAJKOWSKI answered that this year [2002] was Phillips'
first experience with this particular process.
REPRESENTATIVE KERTTULA asked whether the delay was problematic
or if it was the administrative review itself.
MR. DONAJKOWSKI answered that it was the delay; the project was
deemed consistent, but no action could be taken until the
[petition] process was completed.
REPRESENTATIVE KERTTULA asked if the 30-day requirement was in
statute or [regulations]. She also asked whether changing the
statute to require immediate review of the record [would be a
sufficient alternative].
MR. DONAJKOWSKI said he didn't know and would have to give it
some thought. He questioned the basis for the [petition]
process, given all of the other avenues for the public to
participate.
REPRESENTATIVE KERTTULA mentioned the complexities and costs of
litigation. She asked what the avenue would be if the right to
petition were removed [from statute] for a person who had a
[legitimate] comment that the state did not consider.
MR. DONAJKOWSKI said he didn't have a response. He reiterated
that there is an opportunity [to participate in the process] and
that the issue is not whether the comments had substance, but
whether DGC had considered those comments.
Number 1225
REPRESENTATIVE KERTTULA said it's a low standard of review; it's
looking to see whether something was considered, not whether it
was right or wrong, so the [petitioner] isn't asking for much.
MR. DONAJKOWSKI said the tool was there, it was used, and all it
amounted to was the delay of projects and the potential
abandonment of those projects. Furthermore, if there is
interest in finding some other mechanism of benefit, there's
opportunity to do that. He reiterated his belief that the
public has plenty of opportunity [to participate] through
numerous agency permits and the coastal process itself. He
recounted a comment made by the director of DGC that the process
hadn't historically shown much value in terms of being utilized
in the past. He questioned the merits of [the process] on the
basis of its record and on the basis of how he believed it was
used against Phillips this recent season.
REPRESENTATIVE KERTTULA asked what administrative appeals
process [Phillips] was under for leases with the Department of
Natural Resources (DNR) and what appeal rights were provided.
MR. DONAJKOWSKI said he didn't know.
Number 1327
REPRESENTATIVE STEVENS remarked that it must be terribly
frustrating and expensive to have to prepare for a hearing, only
to find out at the last minute that the petition was withdrawn.
He asked why the petition was withdrawn at the last minute.
MR. DONAJKOWSKI said he didn't know, and that [the information]
was between the petitioner and the petitioner's lawyers, which
[Phillips] was not privy to.
Number 1380
PATRICK GALVIN, Director, Division of Governmental Coordination
(DGC), Office of the Governor, explained that the ACMP is the
state's response to the federal Coastal Zone Management Act that
Congress passed in 1972. He said the Act was offered as a deal
to coastal states: if the state developed a plan for managing
activities within its coastal zone that met certain federal
requirements, then the federal government would basically give
up some of its sovereign immunity and agree to abide by that
plan in its own activities and permitting decisions; also, the
federal government would provide money to the state for
implementing and developing that plan.
Number 1504
MR. GALVIN said the state developed a coastal management program
in the late 1970s and specifically designed the program to be
decentralized. Moreover, a centralized plan based upon the
state agencies' perspective was defeated, and the legislature
developed a plan to give power, to a large extent, to the local
areas. He said local districts are provided the opportunity to
develop their own plans; although those plans have to meet state
requirements, the state doesn't write the plans for them.
MR. GALVIN further reported that in order to comply with federal
requirements, the state had to ensure, while it was being
implemented throughout the state, that there was some control
over that, and [ensure] some guarantee that it was being done
properly. He said the state put into place a petition process,
so that somebody who felt a local plan wasn't being implemented
could seek redress with the CPC, which is a body made up of both
state officials and a majority of elected officials from the
local governments around the coast of the state.
MR. GALVIN continued, saying that when the program was first
developed, [the state had] no singular process for deciding
whether a project was consistent with the program. It was
designed with the idea that each agency which issued its own
respective permit would decide consistency in conjunction with
its permitting decision. In a short time, however, it was
recognized as a problem. State agencies came up with
conflicting decisions on the same issues, and it was recognized
that there needed to be a more unified, singular process.
[Co-Chair Scalzi turned the gavel over to Vice Chair Fate.]
Number 1609
MR. GALVIN reported that in the mid-1980s, a process was
developed for deciding consistency that would involve in that
process all state agencies that had permits and the local
governments. Also, it would provide an opportunity for the
public to participate in the decision. With that process, the
ability to seek some administrative appeal was limited to state
agencies, local governments, and the applicant, if the applicant
was unhappy with the decision. There was no petition to the CPC
built into the process. It wasn't until a few years later that
the petition process, which remained in the statute from when
the program was originally developed, began being used for
individual project reviews. However, it wasn't something built
into the structure, and it presented problems
Number 1680
MR. GALVIN explained that some problems had to do with legal
issues concerning due process and other [issues] brought up when
the commissioners were involved in both substantive issues and
review "as a member of the CPC." There also were issues with
regard to the process: there was no petition process in place,
which created a lot of internal conflict with all other
permitting processes involved. In 1994, the legislature took up
the issue, and a workgroup was formed consisting of members of
industry, members of state agencies, staff, and members of the
public who were interested in the [process].
MR. GALVIN related that the [workgroup] had come up with an
experiment to deal with the issue of the appeal to the CPC. It
allowed an avenue for a citizen of an affected district to go to
the CPC, but established a standard much lower than looking at
whether the decision was correct. Instead, the issue was
whether the comments of that person were fairly considered. It
was designed to be a "check" on the process to determine whether
the process was fair [and whether the petitioner] had received a
hearing among the agencies making the decision on the issue.
MR. GALVIN told members that current law provides two
opportunities to get to the CPC for petitions. He mentioned the
project-specific request to review whether the comments on a
particular project review were fairly considered. Mr. Galvin
noted that still retained in the 1994 law was [AS
46.40.100](b)(2), the second part of the petition process, which
is a request that the CPC look, in general, at whether a
district plan was being implemented. He characterized the
distinction between the two as follows: the [project-specific
request] is a reactive look at a previous decision and whether
the process was fair, whereas the [process under] (b)(2) is a
more prospective way of looking at what had been done in the
past with regard to the district plan, and if it hadn't been
done properly, what could be required in the future to ensure
the plans are properly implemented. He said it's not
necessarily to go back and do something over again; rather, it's
from this point on, do it differently.
Number 1885
MR. GALVIN offered that the project-specific procedure has
proven unsatisfactory to basically all participants.
Petitioners come to the table before the CPC, seeking to have
the decision overturned because of disagreeing with it; however,
the issue being addressed before the CPC is whether the
[petitioner's] comments were fairly considered. At that
participation level and afterwards, the petitioner expresses
frustration that there wasn't a full hearing on the issues.
Moreover, applicants feel they are stuck in the process and have
to delay their permits. Furthermore, agency staff who prepare
for the hearings feel they are doing a tremendous amount of work
for a decision that is not at a very high level. And the CPC is
frustrated about being brought to a decision at a late date,
dealing with a very small part of the decision, and not being
able to work on the true issue before them in regard to the
project.
MR. GALVIN said the (b)(1) petition process doesn't work, and
that DGC would respond by getting the people involved to come
together to try to find a better solution regarding the issues.
He said [DGC] doesn't oppose eliminating the (b)(1) petitions
because of the problems that have occurred. For example, in the
beginning of the 2000 fiscal year, regulations were put into
place to help get the petitions through the process and work on
how [the process] would be handled. From that point forward,
there were 17 notices of petition, all [from] citizens of an
affected district; of those, 9 were rejected by staff because
they didn't meet the technical requirements of being able to
file a petition; of the remaining 8, 3 were withdrawn this year
before the CPC hearing; the remaining 5 were dismissed by the
CPC's finding that the comments were fairly considered.
Number 2072
MR. GALVIN concluded by saying the experience has been that the
process doesn't result in a change in the decision or anything
other than extending the process and allowing people to
participate in a procedure that frustrates most participants.
He reiterated that [DGC] does not oppose eliminating the (b)(1)
petitions.
Number 2096
REPRESENTATIVE GREEN asked how long a project could be held up
in the event of multiple [petitions] filed simultaneously.
MR. GALVIN said it raises the question of whether the petitions
could be heard in succession or could all be heard at the same
time. He said there is a proposed decision that goes out and
provides people five days to decide whether to file a notice of
petition. If simultaneous notices of petition were filed, DGC
would have to decide whether they could all be heard at the same
time, and would make every attempt to do that because of the
logistics of the bringing together the CPC. The petitions would
probably be heard simultaneously; however, it should be
recognized that if a petition was successful and the decision
was remanded to the agency to decide, then another proposal
would be sent out that would provide an opportunity to petition.
Moreover, successful petitions could potentially delay the
process; however, if petitions were not successful, then a final
decision would be issued. He said it is a matter of the issues
presented by all of those petitions.
REPRESENTATIVE GREEN asked how long the [petition process] had
been problematic and whether other operators have had the same
experience.
MR. GALVIN said the frustration level that currently exists is
not new. He explained that the statute was changed in 1994 to
create a dual opportunity, and a fairly considered plan had been
established for project petitions. But from the outset there
had been frustration and unhappiness with the process. He
remarked that it had been occurring for 7-8 years.
REPRESENTATIVE GREEN said he assumed that other operators had
experienced [frivolous petitions].
MR. GALVIN said [2002] was the first year that petitions had
been withdrawn prior to the hearing. He said the petitioner had
claimed the withdrawal was being made at the request of the
company, but the timing was the [decision] of the petitioner.
Number 2299
REPRESENTATIVE KERTTULA asked Mr. Galvin to elaborate on the
petitioner's claim.
MR. GALVIN answered that the petitioner said Phillips had
requested that the petition be withdrawn, so [the petitioner]
was withdrawing the petition at [Phillips'] request.
REPRESENTATIVE KERTTULA asked Mr. Galvin to explain why the
program needs to be certified by the OCRM [Office of Ocean and
Coastal Resource Management], the importance of that, and the
fact that OCRM has said this won't affect the certification.
MR. GALVIN said the OCRM is a federal office within NOAA
[National Oceanic and Atmospheric Administration] with the U.S.
Department of Commerce; it oversees the Coastal Zone Management
Act and makes the decisions about whether the state's plan meets
the requirements of federal law in order to qualify for both the
federal deference to the local law as well as the funding. If
the program were to be changed and fall out of compliance, then
the federal government would no longer be obligated to comply,
and the [state] would no longer be eligible for funding it
receives.
MR. GALVIN explained that any change made [by the state] must be
reviewed by [OCRM] to see if it drops [the state] out of
compliance. At this point, there have been informal discussions
about the changes in this bill, which [OCRM] has indicated it
wouldn't have a problem with.
Number 2400
REPRESENTATIVE KERTTULA asked Mr. Galvin if any (b)(2) petitions
had been [submitted] or if there had been any implementations of
the [coastal] district petitions.
MR. GALVIN answered that there hadn't been any (b)(2) petitions
submitted since 1994. Prior to that, when there was only a
singular petition process, all of those petitions were project-
specific, dealing with individual projects.
Number 2424
REPRESENTATIVE KERTTULA asked if there had been any discussion
about resolving the frustration and creating a more meaningful
level of review, or about consolidating agency appeals. She
also asked if there is a commitment to finding a better
[process], so that there is a more meaningful petition in place,
rather than just going straight to court.
MR. GALVIN said he thought the general community involved in
coastal management and permitting recognizes a need for a
comprehensive look at how everything works and fits together.
He said that there wasn't time to deal with it [during this
legislative session], but that the need exists and [HB 439] only
fixes one aspect.
Number 2504
VICE CHAIR FATE mentioned streamlining of the program and asked
if there would be a cost savings in both efficiency and
management of resources.
MR. GALVIN said there wouldn't necessarily be a cost savings
because DGC hasn't hired new staff to deal with [petitions].
However, staff would be able to direct attention toward more
appropriate things if this were no longer an obligation.
Number 2552
JUDY BRADY, Executive Director, Alaska Oil and Gas Association
(AOGA), testified via teleconference. Ms. Brady mentioned that
AOGA is a trade association and that most [oil and gas]
companies operating in Alaska are members. She said AOGA
supports [HB 439]; she referenced testimony submitted to the
committee. She said [HB 439] is "one small step" in a much
longer-range project.
REPRESENTATIVE KERTTULA asked Ms. Brady if that step is part of
a process that involves coming back and trying to rethink the
petition process so it is meaningful.
MS. BRADY said the whole [process] needs to be looked at, which
AOGA is committed to doing. She said everybody that has been
involved in the process since the beginning, including the CPC,
has tried to have a process that works, rather than one that
doesn't give individuals a good ability to comment and is
frustrating for everybody else.
NUMBER 2688
NANCY WAINWRIGHT, Attorney, testified via teleconference. Ms.
Wainwright told the committee she had participated with Ms.
Brady in trying to work out a solution, working on behalf of
coastal districts and the public to let people have a voice in
decisions about their property and coastal districts. She
suggested that the solution worked out in 1994 was wrong and
that the petition process doesn't work. She said for that
reason she supports [HB 439].
MS. WAINWRIGHT agreed regarding the result being sought, but
disagreed regarding the rationale. She said the legislature has
had to fix DGC procedural problems for the past ten years;
furthermore, it took DGC about ten years to get its regulations
on petitions in place. She indicated the regulations are
difficult to understand. She said the people who are supposed
to file petitions and understand the "obtuse" regulations, and
who are most impacted by DGC decisions, are private landowners
or citizens. She said that as the public process is stripped
away, the public is left with no options.
MS. WAINWRIGHT offered some history. Initially, there was a
full petition process: anyone statewide could petition and get
a hearing. After the village of Kaktovik filed a petition and
the Kodiak Island Borough and certain districts began to use
their voices, however, that part was stripped away and the
petition process was limited to the fair-consideration rule.
After that, public interest groups couldn't petition because of
worry that those groups would [make things difficult]. Finally,
the [petition process] was limited to a single individual who
lived within the district, [met all of DGC's requirements], and
identified the proper policies; that individual might be able to
petition if DGC accepted it.
MS. WAINWRIGHT said the petitioners who are being blamed [her
clients who had filed the petitions that affected Phillips] are
not opposed to these projects or to onshore oil development. In
the past, these [particular] petitioners had granted Phillips
rights-of-way across their land to do projects, but had run into
some problems. One problem was the water use in the area
appeared to be depleting the fish resources and affecting [the
petitioners'] subsistence uses. She said because the
legislature had done away with notice of water projects, the
only input [the petitioners] had was through the coastal
management review. She said the [petitioners] had contacted
Phillips with their concerns. Ms. Wainwright remarked that she
was surprised to hear Mr. Donajkowski say that he didn't know
why the petition was withdrawn.
Number 2847
MS. WAINWRIGHT explained that Phillips had flown the petitioners
to Anchorage and held extensive meetings; at Phillips' request,
the [petitioners] withdrew the petition. She said the petition
was not withdrawn minutes before the hearing as Mr. Donajkowski
represented; it was two hours before the hearing. She remarked,
"As often happens, things settle on the courthouse steps." She
said the mystery is why DGC proceeded to call [the CPC] to hold
a hearing after it had already received notice that the
petitioners had withdrawn the petition. She said it seemed to
be a public relations ploy on the part of Phillips because it
was not happy with the petitioners.
MS. WAINWRIGHT, continuing with the same instance, said the
property that the petitioners were trying to protect is private
property; furthermore, it is on the National Register of
Historic Places. Used by Inupiat and Eskimo people from Siberia
to Canada as a gathering site [for celebrations] for thousands
of years, the site has been extensively researched and
documented by archeologists as authentic. There were concerns
because past seismic work caused destruction to some of the
property, including damage to the gravestone of the
[petitioners'] grandfather; the [petitioners] had wanted their
concerns to be heard. She said the ACMP protects archeological
sites and is supposed to protect water use.
Number 2922
MS. WAINWRIGHT continued with the same instance. She said the
petitioners went through the process, and toward the end
experienced significant pressure to withdraw their petitions;
consequently, they withdrew all of the petitions with the
exception of one. She said the [petitioners] weren't satisfied
with the process - nor was Phillips or anybody else involved.
She said she thought a solution needed to be found, but that a
solution which cuts the public out at every level isn't going to
work.
MS. WAINWRIGHT mentioned [pending] legislation that would hold
the government accountable for its actions that harm property
owners. She said the owner of the aforementioned property is
now bearing the expense of the state's action and the wrath of
the oil industry. She said her [clients] incurred harm to their
land and to their cultural gravesite, and perhaps the only
alternative left is to go forward with some [form] of unlawful-
takings action. She said lawsuits never solve problems; they
cost a lot of money, and they don't provide people with a
meaningful or satisfactory result.
TAPE 02-14, SIDE B
Number 2980
REPRESENTATIVE KERTTULA remarked that it is dismaying to see the
demise of the [petition] process. She asked Ms. Wainwright if
the [petition process] should be eliminated, rather than keeping
a vestige [of the process] in place and then rebuilding.
MS. WAINWRIGHT answered that part of the problem is the public's
perception that if a petition is filed and has an impact on a
project decision, then that process will be eliminated. She
said Phillips has indicated this is a result of a delay;
however, last year her clients had tried to participate in the
process and were completely shut out. She said Phillips didn't
get its permits until February; furthermore, [the petitioners']
comments were rejected, and there was no petition.
MS. WAINWRIGHT said part of the responsibility is that the
people who want to get a project through need to come in early
enough to allow for an effective public participation. She
indicated delaying the permitting application process until it
is critical to the project doesn't allow the public a fair
chance to evaluate projects. She said the solution has to
contemplate that any public process should allow a certain lead-
time; that has to be respected so that the public process can
finish. This petition process doesn't work, so why have
something on the books that doesn't work? She said there needs
to be a fair process and a substantive review of these decisions
short of court litigation, if the state and the public don't
want to bear that expensive burden.
REPRESENTATIVE KERTTULA asked Ms. Wainwright if the reason DNR's
appeal process wasn't used was because there weren't any DNR
appeal issues.
MS. WAINWRIGHT answered that her clients had tried to obtain
some documents from DNR relating to some of the issues, but DNR
wanted to charge them $53 just to look at them. She said her
[clients] live on the North Slope and didn't have a way to
obtain the documents, so they never got the documents.
MS. WAINWRIGHT mentioned that DNR has a process that requires an
administrative appeal; in regard to water permits, for example,
the public isn't given notice of water permitting
[applications], and without notice is not aware of the ability
to administratively appeal. She mentioned that the legislature
had done away with temporary water permits, and that people have
no idea that water is possibly being taken from their land. She
surmised that people cannot administratively appeal if they
don't know what's happening. She said [the state] can't keep
disallowing public participation without some kind of reaction.
She commented that maybe a solution will be found, now that
there is no opportunity.
Number 2780
REPRESENTATIVE OGAN offered an amendment that read [original
punctuation provided]:
Page 2, line 12-13 delete bold, underlined text and
replace with ...a petition filed under this section
may not seek review of a proposed or final consistency
determination regarding a specific project.
Page 3, line 5 add ...program, except that the council
may not order that the coastal resource district or a
state agency take any action with respect to a project
for which a proposed or final consistency
determination has been made.
Number 2732
REPRESENTATIVE McGUIRE made a motion to adopt the foregoing as
Amendment 1.
REPRESENTATIVE OGAN explained that amending page 2, lines 12-13,
makes the language less ambiguous; he offered his view that it
is a technical amendment. He said amending page 3, line 5, adds
wording that clarifies the petition language.
Number 2682
VICE CHAIR FATE announced that he was bifurcating the written
amendment, with Amendment 1 being only the first portion,
amending page 2, line 12-13. The wording it deletes and
replaces is "a petition seeking review of a consistency
determination may not be filed under this subsection."
VICE CHAIR FATE asked if there was any objection to Amendment 1.
There being no objection, Amendment 1 was adopted.
VICE CHAIR FATE labeled the second portion of the written
amendment as Amendment 2. He explained that the new language
would be on page 3, line 5, following "program".
Number 2673
REPRESENTATIVE GREEN objected for discussion purposes. He
requested clarification.
REPRESENTATIVE OGAN said [Amendment 2] is consistent with the
rest of the paragraph; furthermore, page 3, line 3, talks about
a coastal resource district or state agency. He said he'd been
advised that the language was a clarification of existing policy
that "we're" trying to pass with this legislation.
REPRESENTATIVE GREEN expressed concern about the possibility of
an exception being [included in Amendment 2]. He said he
wouldn't have a problem with [Amendment 2] if there were
assurance that it wouldn't be "cross-threading" with any other
state agency.
REPRESENTATIVE KERTTULA asked Mr. Galvin if the coastal
petitions were going to look prospectively [at whether the
program is implemented properly], rather than being project-
specific. She asked if there was a possibility that an old
project might be affected [by the amended language], which would
lead her to think this language is overly broad.
MR. GALVIN requested clarification.
REPRESENTATIVE KERTTULA inquired: If an old project has been
"completed" but still is ongoing, and a petition is brought
forward that the coastal district program isn't being
implemented properly, could [the amendment] affect the project
and therefore not merely be technical? The original intent was
simply for the coastal management program to be implemented, she
noted, but the implementation might impact the project.
Number 2456
MR. GALVIN said the reason there had been no example seen is
that, unfortunately, enforcement isn't very strong in the
program. He then said the purpose of the amendment is to get at
a subsequent review of the determination itself; there shouldn't
be the ability, through the petition process, to get the CPC to
take an action to require an amendment to the consistency
determination. However, it's written to not take an action with
regard to a project for which a consistency determination has
been issued. He said that may hamper enforcement action if
there's a feeling that a district or state agency isn't
enforcing the program with regard to a project that may be
blatantly ignoring a requirement of the program. He said
[Representative Kerttula's] may be an accurate characterization.
Number 2376
REPRESENTATIVE KERTTULA, still discussing Amendment 2, said she
didn't think there had been an example of where it had been a
problem. She said she had a problem with changing the language
because she hadn't had time to think about it. She suggested
that mixing consistency determinations with other petitions may
be a mistake.
REPRESENTATIVE STEVENS asked Representative Ogan what he felt
the impact would be of eliminating [Amendment 2].
REPRESENTATIVE OGAN suggested striking "proposed" or "proposed
or", as a compromise, unless there is a final consistency
determination. He said [if] it has been through a fair public
process, why open it up for more delaying tactics.
REPRESENTATIVE KERTTULA explained that the problem is that
[Amendment 2] would preclude a state agency from taking any
action with respect to a project, and every project that affects
the coastal zone would not be [enforceable] because everything
has a coastal determination or is part of the "ABC list." She
said [Amendment 2] could have some really broad ramifications.
Number 2213
REPRESENTATIVE McGUIRE asked Representative Ogan if he was
[suggesting the aforementioned language change] as a friendly
amendment [to Amendment 2].
REPRESENTATIVE OGAN offered that if the amendment is [adopted],
once the final consistency determination has been made the
petition process is over. He referred to AS.46.40.096(e) and
said subsection (e) is repealed in the bill.
REPRESENTATIVE GREEN expressed concern that [the proposed
amendment] might go beyond the powers of the committee and
affect the Alaska Department of Fish and Game (ADF&G) and other
agencies. He indicated he was uncomfortable amending language
involving state agencies without carefully researching the
outcome beforehand.
REPRESENTATIVE McGUIRE offered her understanding that attorneys
had reviewed the aforementioned language. She said the idea was
to make it absolutely clear that once the final consistency
determination is made, there is no way to circumvent that
process.
REPRESENTATIVE GREEN indicated the focus of the discussion had
gone from nuisance objections to state agencies.
REPRESENTATIVE OGAN mentioned that the purpose of the amendment
was to ensure that the final consistency determination is a
final one, and that the council cannot order a coastal resource
district or state agency to take any more action on it.
Number 1976
REPRESENTATIVE McGUIRE moved to amend Amendment 2 by deleting
the language "proposed or".
Number 1970
REPRESENTATIVE KERTTULA objected for purposes of discussion.
She indicated the purpose of the amendment is to eliminate
interaction within the consistency determination process. She
suggested changing the language of the amendment to remove
reference to the "project" to make it clear that a consistency
determination is not an issue in these types of petitions. She
expressed concern that the current language could have an
unintended effect and be problematic.
VICE CHAIR FATE called an at-ease from 2:16 p.m. to 2:18 p.m.
Number 1849
REPRESENTATIVE McGUIRE moved to [instead amend Amendment 2] by
eliminating the language "a project for which" on line 3.
Number 1805
REPRESENTATIVE KERTTULA said the amendment would also eliminate
the language "has been made" from line 4.
VICE CHAIR FATE called an at-ease from 2:20 p.m. to 2:21 p.m.
Number 1781
REPRESENTATIVE McGUIRE clarified that with the amended language,
Amendment 2 would read:
Insert except that the council may not order that
the coastal resource district or a state agency take
any action with respect to a proposed or final
consistency determination.
Number 1742
VICE CHAIR FATE asked if there was any objection to the
amendment to [Amendment 2]. There being no objection, the
amendment to Amendment 2 was adopted.
Number 1733
VICE CHAIR FATE asked if there was any objection to [Amendment
2, as amended]. There being no objection, Amendment 2, as
amended, was adopted.
Number 1720
REPRESENTATIVE McGUIRE moved to report CSHB 439 [HB 439, as
amended] out of committee with individual recommendations and
the accompanying zero fiscal note. There being no objection,
CSHB 439(RES) was moved out of the House Resources Standing
Committee.
VICE CHAIR FATE called an at-ease from 2:23 p.m. to 2:26 p.m.
HB 376-FISH & GAME IN NAVIGABLE WATERS
VICE CHAIR FATE announced the final order of business, HOUSE
BILL NO. 376, "An Act relating to management of fish and game in
and on the navigable waters and submerged lands of Alaska."
Number 1653
REPRESENTATIVE SCOTT OGAN, Alaska State Legislature, sponsor of
HB 376, reminded members that the bill was heard extensively in
a previous committee meeting. He said he was available for
questions.
Number 1631
DALE BONDURANT, Alaska Constitutional Legal Defense Conservation
Fund, testified via teleconference. Mr. Bondurant told the
committee that he supports HB 376. He said he had been very
active in the issues on navigable waters for many years. He
offered the following history: In 1977, Alaska Public Easement
Defense Fund v. Andrus, "we" won reasonable access to all public
waters of the state, and [legislation] was passed that included
all surface waters. In 1987, "we" backed the state into the
Gulkana decision [Alaska v. Ahtna, Inc., 891 F.2d 1401 (9th Cir.
1989)], which resulted in winning 30 million acres of submerged
lands and 187,000 miles of navigable waters. He said the
governor has failed to fight for [state rights]. Mr. Bondurant
spoke about plants, waters, and nonrenewable resources such as
gas and oil. He also spoke about renewable [resources] such as
fish and marine animal life in the aforementioned waters. He
referred to a paragraph in the Submerged Lands Act that allows
the state control all [surface] and ground waters.
MR. BONDURANT recounted details of meetings and events that led
up to the initiation of the Gulkana decision, in which he said
he'd had a large role. He mentioned an ad hoc committee, John
Shively, and Sam McDowell. He concluded, "So our names weren't
on that suit, but we're the ones that carried the battle
through." He agreed that the federal government is using the
reserved water rights to take away the state's rights to manage
its resources in navigable waters. He said the federal
government has a responsibility to protect the fish and wildlife
and other uses, including recreation. He said the taking that
exists, which comes under "users," is the state's responsibility
under [the Tenth Amendment].
MR. BONDURANT said the reserved water rights have a different
intent - to ensure quantity and quality. Moreover, Alaska is
one of the states that has an article [in its constitution]
about water rights; it says there is a general reservation for
fish and wildlife. He said the "McCarran Act" says the states
know more about their water, so these [issues] should be handled
in state courts, but also recognizes that the federal government
might have some concern, so a writ of certiorari to the Supreme
Court was allowed in case of that. He said the biggest trouble
is that these cases are won but aren't enforced, which is why
[the state] is back in court to say "we" have a right to
represent the state, since "they" aren't doing a very good job
representing the citizenship of the country. He concluded, "I
would like to see this passed, [to] give us a little more
leverage, but I'd also like to see the legislature join our
suit, and we're fighting - ourselves - on."
Number 1213
REPRESENTATIVE OGAN referenced United States v. Alaska, [117
S.Ct. 1888, 138 L.Ed.2d 231 (1997)]. He said Alaska lost the
case, which was about whether or not the federal government
intended to reserve the offshore islands on the North Slope. It
was a royalty dispute case; moreover, Alaska lost millions of
dollars in potential revenues over that case. He told members,
"In the majority opinion, [U.S. Supreme Court] Justice O'Connor
said that several general principles governed our analysis of
the parties' claims. Ownership of submerged lands, which
carries with it the power to control navigation, fishing, and
other public uses of water, is an essential attribute of
sovereignty."
REPRESENTATIVE OGAN said [the purpose] of this bill is to stay
consistent with the sovereign rights of the State of Alaska to
manage its resources. He offered his view that [the bill] gives
adequate protections for "them" to comment, keep an eye on the
resources, and work with the federal government as far as what
the state's positions are; moreover, [the bill] is stating in
law that [Alaska] doesn't assent to [federal] control of [its]
submerged lands.
Number 1110
REPRESENTATIVE KAPSNER asked if [passing HB 376] would cause the
federal government to [convey control of submerged lands back to
Alaska].
REPRESENTATIVE OGAN said no.
REPRESENTATIVE KAPSNER asked, "What is the point? Doesn't this
seem futile if they're not going to pull out?"
REPRESENTATIVE OGAN replied, "I think the point is, we can do
all we can do - what I believe is our duty as trustees of the
public trust to defend our sovereign rights to manage our
resources." He offered his opinion that the best way to get
closure would be to have the case litigated, but said, "That's
water under the bridge. The governor chose not to do it, and we
don't have much left, other than maybe Mr. Bondurant [and other]
private citizens who are willing to step up to the plate." He
talked about [Alaska's] history of not assenting to federal
control, such as in the Glacier Bay issue. He offered his
belief that putting it into statute is as appropriate now as
when "we" did it for Glacier Bay.
Number 0989
REPRESENTATIVE KAPSNER said she thinks there can be closure
through the legislative process that is probably more meaningful
[than through litigation]. She asked what would happen to [HB
376] on the books once the issue is resolved. She recalled
previous testimony this day by Nancy Wainwright [during the
hearing on HB 439] that lawsuits do not generate meaningful
resolutions for problems.
REPRESENTATIVE OGAN remarked that he thought it was speculative
as to how [the issue] would be resolved. He mentioned that the
issue of a constitutional amendment [to add a rural preference
for subsistence] has been [before the state legislature] for 20
years. He said, "I suppose we can cross that bridge when it
happens." He suggested that once the constitution is amended to
conform to federal law, "we" have assented to it.
REPRESENTATIVE OGAN said he didn't think [Alaska] was going to
get state management back. He said [Alaska] would have to
enshrine the federal law into its constitution, statutes, and
regulations. He added, "We can call it state management, but
it's federal management with a gun to our head." He mentioned
that the legislature doesn't have a constitutional amendment
before it; nor has it been placed before the voters. He
remarked that he thought [legislators] should take this measure.
Number 0854
REPRESENTATIVE McGUIRE moved to report HB 376 out of committee
with individual recommendations and the accompanying zero fiscal
note.
Number 0837
REPRESENTATIVE KAPSNER objected.
[A few seconds of the tape is blank due to a technical
difficulty.]
Number 0808
REPRESENTATIVE KERTTULA explained, "I just see this as cutting
off our nose to spite our face." She mentioned that under this,
there may be a risk of possibly getting some information from
the federal subsistence board that might be useful after the
issue is resolved. She said, "This is neither here nor there;
it's just sort of another shot, and I just don't think it's very
productive."
Number 0786
REPRESENTATIVE GREEN recounted earlier discussion that
litigation is not a good way to solve an issue. However, the
whole judicial system is based on that: if "we" can't mediate,
"we" have to go to court. He said he agreed with the sponsor.
He said he thought the only way [the issue would be resolved]
would [be through] the courts.
VICE CHAIR FATE said the final court of the land does certainly
settle issues.
REPRESENTATIVE OGAN offered his view that there wouldn't be
closure [on the issue] regardless of what happens. He said even
if the [state] constitution were amended to give a rural
priority [for subsistence, to conform to federal law], the
lawsuit in process now isn't necessarily based on submerged
lands and the water rights doctrine; rather, it's a Fourteenth
Amendment issue of equal protection and due process. He
suggested that [the issue] would be carried forward regardless
of whether it relates to an arbitrary class of discrimination
based on residency and whether it passes the rational-basis
test. He continued:
Really, the only way to get closure and get all of
this behind us is ... - and [U.S.] Senator Murkowski
alluded to it - that we need the issue ruled on so we
can figure out where we're at. And it's unfortunate
that the governor chose, in my opinion, the actions he
did. And I can't change that. This is all I can do.
Number 0686
A roll call vote was taken. Representatives Fate, Chenault,
Green, and McGuire voted to move HB 376 out of committee.
Representatives Stevens, Kapsner, and Kerttula voted against it.
Therefore [because a majority of the nine-member committee
didn't vote to move the bill from committee], HB 376 failed to
move out of the House Resources Standing Committee by a vote of
4-3.
[There was a motion by Representative McGuire to reconsider her
vote "for a later date," which Vice Chair Fate acknowledged,
although that particular motion technically doesn't apply to
moving a bill from committee.]
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 2:40 p.m.
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