Legislature(1997 - 1998)
04/28/1997 03:58 PM Senate RES
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SENATE RESOURCES COMMITTEE
April 28,1997
3:58 P.M.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Lyda Green, Vice Chairman
Senator Loren Leman
Senator Bert Sharp
Senator Robin Taylor
Senator John Torgerson
MEMBERS ABSENT
Senate Georgianna Lincoln
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 22
Relating to the maritime boundary between Alaska and the former
Union of Soviet Socialist Republics.
- WAIVED OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 17(RES)
"An Act establishing the Department of Natural Resources as the
platting authority in certain areas of the state; relating to
subdivisions and dedications; and providing for an effective date."
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 34
Relating to proposed regulations of the North Pacific Fishery
Management Council creating a new discriminatory halibut fishery in
Alaska.
- MOVED HJR 34 OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
HJR 22 - See Resources minutes dated 4/25/97.
HB 17 - See Resource Committee minutes dated 4/23/97 and 4/25/97.
HJR 34 - See Resource Committee minutes dated 4/25/97.
WITNESS REGISTER
Mr. Walt Wilcox, Staff
Representative Jeannette James
State Capitol Bldg.
Juneau AK 99801-1182
POSITION STATEMENT: Staff to sponsor of HB 17.
Mr. Craig Savage
ANS
723 W 6th Ave.
Anchorage AK 99501
POSITION STATEMENT: Commented on HB 17.
Mr. Pat Kalan
Alaska Society for Professional Land Surveyors
1041 Chena Ridge Rd.
Fairbanks AK 99709
POSITION STATEMENT: Commented on HB 17.
Ms. Jane Angvik, Director
Division of Lands
Department of Natural Resources
3601 C Street
Anchorage AK 99503-5947
POSITION STATEMENT: Commented on HB 17.
Mr. Gerald Hayes, Chief Surveyor
Department of Natural Resources
3601 C Street
Anchorage AK 99503-5947
POSITION STATEMENT: Commented on HB 17.
Mr. Dick Bishop, Executive Director
Alaska Outdoor Council
Territorial Sportsmen of Juneau, Inc.
211 4th St., #302A
Juneau AK 99801
POSITION STATEMENT: Supported HJR 34.
Mr. Rick Lauber, President
North Pacific Fisheries Management Council
321 Highland Dr.
Juneau AK 99801
POSITION STATEMENT: Commented on HJR 34.
Representative Alan Austerman
State Capitol Bldg.
Juneau AK 99801-1182
POSITION STATEMENT: Sponsor of HJR 34.
Mr. Ron Sommerville
Senate and House Leadership
State Capitol Bldg.
Juneau AK 99801-1182
POSITION STATEMENT: Supported HJR 34.
ACTION NARRATIVE
TAPE 97-29, SIDE A
Number 001
HJR 22 ALASKA/RUSSIA MARITIME BOUNDARY
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:58 p.m. and stated the committee had waived HJR 22 from
committee.
HB 17 DNR APPROVE PLATS IN UNORG.BOROUGH
CHAIRMAN HALFORD announced CS HB 17(RES) to be up for considerati
MR. WALT WILCOX, Staff to Representative James, sponsor, said HB 17
brings all of the unorganized borough under DNR's purview for
platting of real estate. It also clarifies the meaning of
subdivision and makes it standard throughout the statutes. It is
supported by the surveyors and DNR.
MR. WILCOX asked Mr. Savage to explain the first part of the
proposed amendment.
MR. CRAIG SAVAGE responded that he interpreted that to mean the
State would not be charging itself for review of plats of its own
land.
MR. WILCOX reviewed the remaining three amendments.
SENATOR TAYLOR asked Mr. Savage to explain the purpose of the last
amendment which deletes all references to State plats.
MR. SAVAGE responded that that is one of the reasons they have been
working so hard to get a definition of subdivision - to make sure
that it refers to the actual division of a piece of land rather
than any survey. If you exclude open-to-entry that are done by the
State or on behalf of the State, that opens up a tremendous amount
of area that really isn't subdivision so much as it is boundary
delineation.
CHAIRMAN HALFORD asked if the amendment is adopted, does that mean
open-to-entry, remote parcel, or homestead plats are, in fact, not
subdivisions and it's clear in the bill they do not have to go
through that review process. MR. SAVAGE replied that it was the
contrary. (B) is an exclusion from the definition of subdivision
and if they remove open-to-entry plats and other State parcels,
they become included in the definition of subdivision.
CHAIRMAN HALFORD commented that the remote parcel program, the
homestead program, and the old OTE program, although surveyed long
ago, were subdivisions of State land within State land and those
already go through the DNR process. The surveys have to be done
according to the survey instructions and everything that came with
whatever program they came from. Why should that be dealt with in
this bill, he asked.
MR. WILCOX responded that it would be deleted from being dealt with
in this bill under the amendment. MR. SAVAGE said the reason the
open-to-entry plats or remote parcel plats were originally excluded
from subdivisions in part was in response to some of the
requirements that were placed on them by DEC, like soils testing,
and that sort of thing, on extremely large parcels in extremely
remote areas. And one of the things they are trying to do in this
bill is standardize the word subdivision throughout the State
statutes. Senator Halford is correct in that the open-to-entry and
remote parcel plats are already under the supervision of DNR, but
throughout State statutes there's a difference between the open-to-
entry and remote parcels and subdivisions.
MR. PAT KALAN, Alaska Society of Professional Land Surveyors, sa
the open-to-entry program is very obsolete. There hasn't been one
for 12 or 14 years and the State indicated there was a single
remote parcel left which could be dealt with. He said the
amendment clarifying the definition of the word subdivision was
good.
Number 210
MS. JANE ANGVIK, Director, Division of Lands, asked if they
intended to exclude cadastral plats that are created by the State.
MR. KALAN said they already do that; they go to the municipalities.
A control plat doesn't create a boundary so he couldn't see that
there was any affect.
SENATOR TAYLOR asked if this legislation was an attempt to bring
under the control of the Department of Natural Resources any
subdivision occurring in a remote parcel which is not encompassed
within the boundaries of a borough or city. CHAIRMAN HALFORD
answered yes. He said there was an existing statute saying that
DNR is the platting authority for the unorganized borough. He
didn't know if that meant a filing authority or an approval
authority.
MR. GERALD HAYES, Chief Surveyor, responded that currently DNR has
platting authority only for vacation of easements and changing of
existing boundaries within the unorganized borough. The change
under this bill would place creation of new parcels within existing
surveys under a platting authority. Apparently, they don't have to
be approved by any authority. MR. WILCOX explained the reason this
came up in the area of unorganized portions is that the University
was subdividing land with no access and no oversite. They are
required to abide by State law, but there is no one to enforce that
in unorganized boroughs.
SENATOR TAYLOR asked if it became revenue neutral by charging fees.
MR. WILCOX replied yes.
CHAIRMAN HALFORD asked if the sponsor considered a statutory
requirement amplifying the existing easement availability instead
of creating a new platting authority, because he agrees with the
thing she is trying to stop, but he worries about creating a new
approval authority that, if the budget isn't what somebody wants,
they stop approving. It increases the user fee and he's not sure
what the net result is. He agrees there should be buildable,
physical access to property.
MR. WILCOX said that Mr. Kalan has some horror stories of
subdivisions that weren't recorded and subsequently a portion of
them financed and people were disenfranchised of their rights to
the property. He asked Mr. Kalan to comment on some of the
problems occurring from not having oversite.
MR. KALAN said the biggest one is that people could create lots
without provision for a legal access. When there was the idea to
give DNR some power to file plats, they wanted to keep it real
simple and make some rules so that it didn't get out of hand.
MR. WILCOX said that Representative James shares the Chairman's
concern about giving any more authority to DNR, but couldn't come
up with another way to deal with this issue.
SENATOR TAYLOR asked if the primary purpose was one of access or
designing lots that comply with somebody's preconceived notion of
what a lot should be.
MR. WILCOX responded that last year the legislature took away the
DEC's platting review authority and this isn't someone's idea of
what a subdivision should be. The legislature's statutes and
subsequent regulations promulgated by the agency would drive the
requirements.
MR. KALAN said he heard them mention the idea of standards and they
specifically forbid DNR coming up with engineering standards, but
rely on the judgement of the surveyor. They don't have any one set
of rules. This covers airports and rights-of way for anything that
would involve making a road or airport foundry and they expect
there would be quite a few of the parcels created.
CHAIRMAN HALFORD said the 45 day approval requirement is good. The
question is how that actually works, but they would work with the
sponsor to try to understand and incorporate the amendment and see
if there is any simple self enforcing way to make it either
approved or not in case there is a budget shortfall and DNR can't
review them and they are approved automatically.
HJR 34 NPFMC PROPOSED REGS FOR HALIBUT FISHERY
CHAIRMAN HALFORD announced HJR 34 to be up for consideration.
REPRESENTATIVE ALAN AUSTERMAN said that this resolution was
introduced because of the actions the North Pacific Fisheries
Management Council (NPFMC) was taking to create a halibut
subsistence program. A number of them felt a program wasn't needed
and they are asking them not to implement it. The criteria in
their first proposal is quite discriminatory and bringing the
subject up now and creating regulations referenced to subsistence
halibut would create more of a gridlock in trying to solve the
current subsistence problems.
CHAIRMAN HALFORD said the background is that someone was a little
overzealous in enforcement. REPRESENTATIVE AUSTERMAN agreed and
added that a native group requested the Council to put together
subsistence regulations for halibut.
CHAIRMAN HALFORD asked if there wasn't another way to handle this
without creating all these problems. He didn't think they said
enough in the resolution about other ways to do it.
REPRESENTATIVE AUSTERMAN said the Council put a subcommittee
together to come up with this proposal. SENATOR TAYLOR wondered
what basis they used for the numbers.
Number 444
MR. DICK BISHOP, Executive Director, Alaska Outdoor Council and
Territorial Sportsmen of Juneau, Inc., supported HJR 34 which
addresses many of the most objectionable parts of the proposed
halibut subsistence proposal soon to be considered by the North
Pacific Management Council. Some of these include discrimination
on racial grounds, or on the basis of zip code, and adopting the
unlimited catch of halibut under subsistence regardless of size,
etc. - very much like ANILCA's undefined customary and traditional
use priority. It is reopening the door to commercial sale of
another so called subsistence resource. Federal courts have
already established under ANILCA that sales of subsistence fish for
tens of thousands of dollars are o.k., and although this is a
different matter, the precedents that have been established in
federal court are likely to be significant.
Furthermore, it provides for a new fishery that is bound to compete
with existing fisheries, but on a discriminatory basis; and finally
the same strategy could be easily proposed for other marine
resources such as crabs.
MR. BISHOP said it is important to recognize that these proposed
regulations, looking at the table of catches, are not about
obtaining food by customary and traditional means. Instead they
are yet another ploy to expand political and institutional approval
of special privileges for a racially defined group of people.
He read a quote from the committee's report on dealing with non-
tribal Alaskans: "The committee discussed a proposal to include
`other rural residents in areas of Alaska with halibut uses.' The
committee discussed the opportunities for non-tribal Alaskans to
harvest halibut and concluded that the two fish per day sport fish
limit would meet their needs for supplying their families with
halibut for food. The determining factor in this conclusion was
the stated need to recognize existing traditional practice at
current levels of halibut removals. The management plan for
halibut subsistence programs should legalize the current halibut
removals and fishing practices by tribal members. Expansion of
subsistence harvest to nontraditional users may create resource
concerns within the IPHC regarding increased levels of halibut
removals and localized depletions in some rural and urban
communities."
MR. BISHOP said that it's apparent that the committee felt that for
non-tribal people the standard of sport fishing was adequate, but
for tribal members it was not. This State is already being
socially shredded by controversy over subsistence and Indian
country and we don't need another discriminatory rule relating to
the use of fish and game. He said they would support changes in
the personal use or sport fishing rules rather than establishing a
new fishery.
Number 493
SENATOR TAYLOR agreed with his comments and said many of them have
been frustrated for years about the personal use aspect of halibut
on the grounds that a boat out there fishing for them can't take an
undersized fish that's dead or dying and utilize it for their own
consumption without running serious risks of prosecution. He asked
if the NPFMC believe they are mandated by federal law (ANILCA) to
bring about this change. MR. BISHOP said he couldn't answer that,
but was sure it didn't fall under the requirements of ANILCA.
SENATOR TAYLOR asked if this wouldn't be an extension of ANILCA
even into waters beyond federal jurisdiction. MR. BISHOP replied
that his understanding is that it does not fall within the purview
of ANILCA.
Number 519
MR. RON SOMMERVILLE, Senate and House leadership, said that ANILCA
specifically excludes the Magnuson Act; it specifically limited the
impacts of ANILCA to mean high tide although the advance notice of
rule making indicates that the secretary might be able to extend
their jurisdiction into adjacent State waters if there was an
impact on subsistence.
MR. SOMMERVILLE pointed out that two cases led to this; one at
Toksook Bay and the use of skates by a resident of Angoon for
taking halibut for personal use in May (for drying). Before IFQs
were distributed this was the practice. Speaker Phillips requested
that they look at existing regulatory structure to accommodate some
of those uses and one suggestion was to legally allow for the
retention of undersized halibut to 4E, a specific area of the State
where it has been a consistent problem. They could also allow the
use of one skate of a certain size for taking of personal use in
May in specific areas of the State. He's note advocating this, but
it is conceivable. The commercial people on the Council expressed
real concerns about that.
The Council agreed to go forward with the two options of doing
nothing and what is in their packet. A third alternative was a
result of Speaker Phillips request. These will be analyzed in
preparation for the June 14 meeting in Kodiak.
MR. SOMMERVILLE said they are hoping to have an opinion as to
whether the Council has the authority to discriminate based on
race.
Number 569
CHAIRMAN HALFORD asked how the State would enforce it with our
Constitution, if they choose to define a violation of law racially.
MR. SOMMERVILLE replied that the International Treaty on Halibut
preempted the State on halibut. He said their legal opinion would
be as good as his and it doesn't appear that the State could.
CHAIRMAN HALFORD said that apparently the Council feels obligated
to go forward with something and asked what is the best message to
put the most reasonableness into whatever approach is taken. MR.
SOMMERVILLE responded that he couldn't suggest any wording changes
to the resolution and he would pass it out as it is.
SENATOR TAYLOR said he was surprised that no one was here to oppose
the resolution.
TAPE 97-29, SIDE B
MR. SOMMERVILLE said they have a letter from Toksook Bay opposing
SJR 34.
MR. RICK LAUBER, President, NPFMC, commented that the letter from
Speaker Phillips and President Miller had some impact on the
Council; and the attorneys are working on the answers to the legal
questions. At this stage the public has not had an opportunity to
comment on this issue formally and it is their practice to allow
that. At their meeting in June in Kodiak the Council could do any
one of the things or a combination of the alternatives or options.
They cannot expand beyond what was analyzed.
SENATOR LEMAN moved to pass HJR 34 with individual recommendations.
There were no objections and it was so ordered.
CHAIRMAN HALFORD adjourned the meeting at 4:49 p.m.
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