02/13/2017 03:30 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| SB6 | |
| Overview: Alaska National Interest Lands Conservation Act | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 6 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
February 13, 2017
3:30 p.m.
MEMBERS PRESENT
Senator Cathy Giessel, Chair
Senator John Coghill, Vice Chair
Senator Natasha von Imhof
Senator Bert Stedman
Senator Shelley Hughes
Senator Kevin Meyer
Senator Bill Wielechowski
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 6
"An Act relating to industrial hemp; and relating to controlled
substances."
- HEARD & HELD
OVERVIEW: ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT
(ANILCA)
- HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 6
SHORT TITLE: INDUSTRIAL HEMP PRODUCTION
SPONSOR(s): SENATOR(s) HUGHES
01/09/17 (S) PREFILE RELEASED 1/9/17
01/18/17 (S) READ THE FIRST TIME - REFERRALS
01/18/17 (S) RES, JUD
02/08/17 (S) RES AT 3:30 PM BUTROVICH 205
02/08/17 (S) Heard & Held
02/08/17 (S) MINUTE(RES)
02/13/17 (S) RES AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
AKIS GIALOPSOS, Staff to Senator Giessel and
Senate Resources Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Reviewed the changes in SB 6 from version A
to version U.
BUDDY WHITT, Staff to Senator Hughes
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Commented on SB 6 for the sponsor.
ROB CARTER, Manager
Alaska Plant Material Center
Division of Agriculture
Anchorage, Alaska
POSITION STATEMENT: Supported SB 6.
ARTHUR KEYES, Director
Division of Agriculture
Department of Natural Resources (DNR)
Anchorage, Alaska
POSITION STATEMENT: Agreed with Mr. Carter's comments SB 6.
SUE MAGEE
ANILCA Program Coordinator
Department of Natural Resources (DNR)
Anchorage, Alaska
POSITION STATEMENT: Provided an Overview of Alaska National
Interest Lands Conservation Act (ANILCA).
BRAD PALACH, Program Manager
ANILCA and Access Defense Programs
Alaska Department of Fish and Game (ADF&G)
POSITION STATEMENT: Provided an overview of Alaska National
Interest Lands Conservation Act (ANILCA).
ACTION NARRATIVE
3:30:11 PM
CHAIR CATHY GIESSEL called the Senate Resources Standing
Committee meeting to order at 3:30 p.m. Present at the call to
order were Senators Von Imhof, Stedman, Wielechowski, Coghill,
Meyer, Hughes, and Chair Giessel.
SB 6-INDUSTRIAL HEMP PRODUCTION
3:30:42 PM
CHAIR GIESSEL announced consideration of SB 6, sponsored by
Senator Hughes. In the last meeting the sponsor and her staff
pointed out that the bill would need some changes in order to
more formally comply with recent changes in federal law.
3:31:27 PM
SENATOR COGHILL moved to adopt CSSB 6, labeled 30\LS0173\U, as
the working document.
CHAIR GIESSEL objected for purposes of explanation and
discussion.
3:31:54 PM
AKIS GIALOPSOS, staff to Senator Giessel and the Senate
Resources Committee, Alaska State Legislature, Juneau, Alaska,
said he would review the explanation of changes in Committee
Substitute (CS) for SB 6 from version A to version U.
3:32:34 PM
The first change is in the title on page 1, lines 1-4:
The bill title is revised to more clearly define the
intent and the subject matter addressed in the
previous hearing that includes adding in the titles
for the appropriate sections that are discussed by Mr.
Whitt, particularly those related to the establishment
of pilot programs, separating the definition and
change in statutes for industrial hemp from marijuana,
and also clarifying that adding industrial hemp to
food does not adulterate that food.
The second change is still on page 1, lines 6-14, and all of
page 2:
Adds industrial hemp as an agricultural product to
Title 3. It further establishes the Division of
Agriculture within the DNR as the regulatory authority
for industrial hemp, lays out minimum registration
guidelines, and establishes guidelines for seed, plant
and record retention by registered growers.
3:33:43 PM
The third change is found on page 3, lines 1-8:
Adds language establishing industrial hemp growth as a
pilot program that only those who have registered at
an institution of higher learning may participate in
(federal statutes Mr. Whitt referenced in the February
8th hearing). This additional language is added in
order to be in line with Section 7606 of the
Agricultural Act of 2014.
3:34:13 PM
The next change on version U is found on page 3, lines 9-11:
Places the definition of industrial hemp under Title 3
instead of under Title 11 as it was in the original
bill (version A). The definition itself is unchanged
and matches the definition in Section 7606 of the
Agricultural Act of 2014.
Page 3, lines 12-21:
Language added to the bill specifies that under AS
11.71.900, industrial hemp is not marijuana, thereby
removing industrial hemp from the list of controlled
substances.
The next change is also on page 3, lines 22-24:
Adds language to exclude food containing industrial
hemp from adulterated foods under Title 17.
3:34:54 PM
The final explanation for the changes can be found on page 3,
lines 25-31, and on page 4, lines 1-2:
At an earlier explanation of changes he forgot a line:
language is added to further to exclude industrial
hemp from marijuana definitions under Title 17.
3:35:57 PM
BUDDY WHITT, Staff to Senator Hughes, Alaska State Legislature,
Juneau, Alaska, recapped that in an earlier hearing the first
version of the bill needed to be changed in order to comply with
federal law and that has been done with the CS.
SENATOR WIELECHOWSKI said this is a "pretty dramatic change"
from the first version and that Alaska doesn't comply with
federal law on marijuana now, and asked why we are worried about
doing it with hemp.
MR. WHITT answered that there is a federal law and it is pretty
clear what actually has to be in statute in order to comply with
it. That is the blueprint he followed in order to develop this
piece of legislation. The sponsor tried to draft legislation
that will be successful while complying with federal law.
SENATOR WIELECHOWSKI said it is pretty onerous to have to
register, list global positioning coordinates, and pay fees
every year to cover the regulatory costs. This entire industry
could be killed by setting the costs so high that it would drive
these small businesses out of business. It requires them to keep
records of hemp transfers for three years, which sounds like big
government to him. He asked what it will cost the Division of
Agriculture to administer it.
3:38:45 PM
MR. WHITT answered that a lot of the information that is within
this CS and the reason it was put together has to do with
Federal Register, Volume 81, 156, which was produced on August
12, 2016 by the U.S. Department of Agriculture, which
specifically laid out the items that any state would have to do
in order to comply with federal law. It's not for him to judge
how onerous the legislation is, but it is very clear that the
Division of Agriculture would have to be the regulatory
authority and have the powers to set those regulations in order
to keep tabs on this new growth industry. He deferred the second
part of Senator Wielechowski's question to Mr. Carter.
3:40:00 PM
ROB CARTER, Manager, Alaska Plant Material Center, Division of
Agriculture, Anchorage, Alaska, supported SB 6. Even though
there may be fees and the bill may be onerous, he really
supports it professionally, because sticking to federal
guidelines provides longevity and sustainability to the
industrial hemp in Alaska. The fees are $25-50/annually across
the country and there is no intent to hurt industry in terms of
fees. The division plans on making this registration a simple
process, an application that is designed by the industry so a
database can be maintained that is more or less for consumer
protection and protection of the farmers, so that when someone
drives by and sees an industrial hemp field, claims it is a
recreational or medical marijuana grow, and calls law
enforcement, the department has registered industrial hemp
locations.
He believes that the division can take this workload on and
maintain it without any additional money at this time. They
really can't say what the fee will be without knowing how many
individuals are actually going to partake, but probably it will
be somewhere between $25-50, just like grass and grain fees, and
have a certification process very similar to the one for
potatoes. Their goal is to educate before they regulate these
folks and make sure the state can have a sustainable industrial
hemp industry.
SENATOR WIELECHOWSKI asked if he anticipates any new hires as a
result of this legislation.
MR. CARTER answered no; they plan to take this additional
workload on with current staff. They will build an online
application as well as a printable one that can be sent in with
the payment. A database will be built in the first year and be
evaluated on a year by year basis. They want this industry to be
able to take off in the state with a potential for export. A few
things in federal regulation allow hemp products to be exported
to other states and worldwide.
SENATOR WIELECHOWSKI asked the penalty for non-compliance if a
person doesn't register, pay the fee, or keep appropriate
records.
MR. CARTER answered at this time Section 1 (f) says the
department may issue a stop-sell order or a violation notice to
a person who is producing industrial hemp without a current
registration. This is how the division currently responds to
certification issues with potato, grass and grains. They can
issue a stop sell order that has no penalty, because it is a
direct order. If someone does not comply, it is a civil Class 3
misdemeanor and a $500 fine.
3:44:28 PM
SENATOR WIELECHOWSKI asked what if a person growing industrial
hemp keeps records of who he sells it to, then that person
transfers it or sells it, are they allow to do that or do they
have to keep records as well?
MR. CARTER answered at this time they are just looking for the
initial transaction. Normally, agricultural products have one
buyer and after that it is considered a post-harvest, processed
product.
SENATOR WIELECHOWSKI asked how these requirements compare to the
requirements for people who grow marijuana. Are they required to
register and have a GPS and keep track of all the transfers of
their marijuana products?
MR. CARTER answered that industrial hemp regulations are very
burdensome from an agricultural production standpoint; the fees
are high and borough or municipal approval is needed, but this
process is simplified and is pretty standardized for industrial
hemp nationwide.
3:46:23 PM
SENATOR WIELECHOWSKI asked if someone would be able to grow
industrial hemp in their backyard under this legislation.
MR. CARTER answered yes.
SENATOR MEYER agreed with Senator Wielechowski that this
industry has potential and has a lot of good uses, but he
wonders if a pilot program can be done with a zero fiscal note.
It seems that it would cost something. He asked what a fee
structure would look like and if it would be by application or
based on the quantity produced.
MR. WHITT answered the Division of Agriculture can decide how
many registrants it can handle with a zero fiscal note, if they
choose to go that way. In the future, language says they "shall
be able to charge a registration fee." If this becomes a growth
industry, managing it might incur more costs than can be handled
internally.
3:48:54 PM
MR. CARTER said he knows it is very unique for a state agency to
say it can do something without a fiscal note, but the Plant
Material Center works with agricultural industries of all types
and its mission is to support and encourage agricultural
development in Alaska. They could take on a registration process
with current staffing, but if the industry becomes the next
biggest thing out of Alaska years from now that won't be true.
"Hobbling the industry with high fees and lots of regulation is
definitely not the way to get something up and growing."
SENATOR MEYER said Mr. Carter commented that this product could
be exported and asked if federal regulations allow export
currently.
MR. CARTER answered the 2014 Farm Bill, Section 7606, allows the
production and the trial by state agricultural agencies and
universities. It legalized the production but the biggest
difficulty is what to do with the product, and the Farm Bill
didn't authorize the interstate travel of industrial hemp
products. But then there is a little known "slip-through" within
the Omnibus Appropriations Act of 2016, Section 736, that
states:
No federal funds made available by that act or any
other act may be used to prohibit or transfer
processing sales of industrial hemp that is grown or
cultivated in accordance with 7606 of the Agricultural
Act of 2014 within or outside the state in which the
industrial hemp is grown.
So, without the federal government really stepping in and saying
industrial hemp can be grown; it can be used and processed and
it can be shipped interstate, this really provides legal
protections by proxy for allowing Alaska (and not allowing the
feds to prosecute or use any funds to prosecute) to produce,
process or sell industrial hemp products. That is how the other
states - Kentucky, Colorado, Maine, Vermont, and Idaho - are
using interstate commerce for their industrial hemp products.
3:52:36 PM
SENATOR MEYER said that the industrial hemp producers are
required to have their hemp tested for THC content and asked
where that is to be done. Alaska has only two testing centers.
MR. CARTER answered that is correct and one of the good things
about legalizing recreational marijuana is that that industry
paved the way for testing. So, for a nominal fee through one of
these private agencies any individual that is growing a cannabis
sativa plant can have it tested for multiple cannabinoids
including THC, CVA, CVD, and CVNs.
SENATOR MEYER asked if the state crime lab could be used for
testing, as well, if these other two are busy with the
recreational hemp.
MR. CARTER answered to his knowledge they have the equipment - a
mass spectrometer and a gas chromatographer - that could do the
work, but he didn't know about their workload and the
availability of employees.
SENATOR MEYER asked if the University of Alaska is or could they
be involved.
MR. CARTER replied that he couldn't speak to the University's
motives and practices and didn't have any contact about
industrial hemp, but the 2014 Farm Bill allows them to take
part. However, in the past, some universities have steered clear
of anything with cannabis not wanting to jeopardize the amount
of federal funding that they do get just to help one industry.
3:55:12 PM
SENATOR WIELECHOWSKI said his concern is that the industry would
be so successful in the future that more employees would be
needed and asked if he would be willing to cap fees at $500 to
protect against over-charges and growing government.
MR. WHITT said that the Judiciary Committee would be a great
place for that discussion.
3:56:37 PM
SENATOR COGHILL asked in following federal rules, if people
would be eligible for the federal or state revolving loan funds.
3:57:20 PM
MR. WHITT said he would look into that for him.
MR. CARTER added that the agricultural revolving loan fund that
is administered through the Division of Agriculture has no
limitations at this time. It is administered by the Board of
Agriculture and Conservation, but a cannabis application has not
been submitted.
CHAIR GIESSEL asked Mr. Keyes if he had any comments.
3:58:05 PM
ARTHUR KEYES, Director, Division of Agriculture, Department of
Natural Resources (DNR), Anchorage, Alaska, replied Mr. Carter
has said what needs to be said.
SENATOR HUGHES said the state is required to have a database and
she tried to keep it as simple as possible and pointed out that
charging fees says "may" and she was open to putting in a limit.
She just wants to give farmers one more economic opportunity.
4:00:53 PM
CHAIR GIESSEL removed her objection and CSSB 6 was adopted. She
said she would hold SB 6 in committee with public testimony open
to allow time for the fiscal notes to be updated.
^Overview: Alaska National Interest Lands Conservation Act
Overview: Alaska National Interest Lands Conservation Act
4:01:38 PM
CHAIR GIESSEL announced the overview of the Alaska National
Interest Lands Conservation Act (ANILCA): how it was created and
when it was created, and build the public record recognizing its
significance to our state and to our country. It was passed in
1980 in the last stages of President Jimmy Carter's
administration. It was another in the last of the grand
compromises of Alaska's entrance into the United States as a
full-fledged member of the Union. If there was one word to
encapsulate the purpose of ANILCA it was balance, a balance
between conservation and development, national and state
interests, and rural and urban access to our lands, streams,
fish, and game.
It was a carefully crafted law and as its name suggests,
embedded a promise. It was the national interest that the
development of Alaska and the conservation efforts find an
equilibrium. This committee will hear from the in-house
expertise of the Department of Natural Resources (DNR) as well
as the Alaska Department of Fish and Game (ADF&G) about it. One
of the tenets of ANILCA is how our state agencies,
constitutionally mandated to be stewards of our lands, fish, and
wildlife for generations now and to come were empowered to
effectively use those management techniques. Over time that
intent has been tested and some would argue eroded. She welcomed
Sue Magee and Brad Palach to the table.
4:03:31 PM
SUE MAGEE, ANILCA Program Coordinator, Department of Natural
Resources (DNR), Anchorage, Alaska, said she coordinates state
agency reviews of federal actions that affect Alaska's
conservation system units (CSU).
4:03:46 PM
BRAD PALACH, Program Manager, ANILCA and Access Defense
Programs, Alaska Department of Fish and Game (ADF&G), said he
mirrors Ms. Magee, but within the ADF&G.
4:04:08 PM
MS. MAGEE started with some background information leading up to
the passage of ANILCA. In 1958, the Alaska Statehood Act was
passed and it included a 103-million acre land grant to the
state. In 1971, the Alaska Native Claims Settlement Act (ANCSA)
established and granted surface and subsurface estate to Alaska
Native village and regional corporations. In response to this
massive transfer of lands out of federal ownership, a provision
was put in ANCSA that called for a reservation of up to 80
million acres for study as future conservation areas in the
state. This resulted in a very public and contentious debate
among environmental groups, development proponents, the State of
Alaska, and rural residents.
During the 70s, several bills were introduced proposing various
conservation designations in the state. One in particular, HR
39, was introduced in 1977 that proposed 145 million acres of
instantly designated wilderness. That shifted the discussion in
Congress to look at special provisions for the State of Alaska
that would accommodate its special circumstances, one of them
being a new state that would be dependent on resource
development. A lot of the state is very remote and many people
lived in the areas affected by these designations.
In 1978, a bill had not yet passed and the D-2 withdrawals were
due to expire. So, President Carter invoked the Antiquities Act
to create 56 million acres of conservation areas and 17
individual national monuments.
4:06:37 PM
In response, Governor Hammond and the Alaska Legislature worked
with a variety of constituent groups to identify seven consensus
points that would be the state's formal position on resolving
the lands issue. These points were all addressed in the
resolution in one way or another and they:
1. Wanted all of the 1978 monuments and executive
withdrawals revoked.
2. Wanted the state and the Native corporations to
receive their full land entitlement.
3. Wanted access across federal lands to state and
private lands.
4. Wanted to confirm state management of fish and game
on all lands.
5. Wanted to ensure that the conservation boundaries
did not include economically important natural
resources.
6. Wanted to continue traditional land uses on all
lands, and
7. Wanted to preclude administrative expansion of
conservation system units.
4:09:02 PM
In 1980, ANILCA (often referred to as The Great Compromise) was
passed and states the congressional intent in the very beginning
of the act that they were to have balanced the national
conservation interests with the social and economic needs of
Alaska and its citizens. This was done by designating very large
conservation system units (CSU) of unprecedented size, the
intent being to encompass whole ecosystems. Then similarly,
unprecedented provisions were included for access and use. It
actually added over 100 million acres of conservation system
units and predesignated some existing units that resulted in 15
national parks, preserves, and national monuments that are
managed by the National Park Service, 16 National Wildlife
Refuges that are managed by the Fish and Wildlife Service, 25
Wild and Scenic Rivers, and 43 designated wilderness areas that
are located within wildlife refuges, national parks, and
national forests. It also added some other non-CSU areas, one
national conservation, a national recreation, and two wilderness
study areas - one in the Chugach National Forest and one in the
Central Arctic Management Area - on the North Slope.
CHAIR GIESSEL asked if other states have this degree of
patchwork in terms of authority over different land pieces.
MS. MAGEE answered that she was sure some states have some
conservation system units, but nothing that equals Alaska's.
4:10:43 PM
She next covered some key ANILCA provisions that were very
important to the State of Alaska:
• "No more" Clauses: There are several - 101-D (the statement
that Congress made that they balanced the national conservation
interests with the social and economic needs of Alaska). This is
a really strong statement of intent, but it doesn't prohibit a
future action of Congress, which is reflected in a lot of the
other "no more" clauses. She noted concerns over some of the
administrative actions the federal agencies are taking, shifting
the balance away from the state's interests.
4:12:08 PM
A second "no more" clause is Section 1326(a), which precludes
the future large administrative withdrawals without
congressional approval (something like the Antiquities Act). So
if a federal agency wants to withdraw more than 5,000 acres in
the aggregate, they have to get congressional approval.
Section 1326(b) prohibits future studies of new conservation
areas absent congressional direction. Some language refers to a
single purpose study and that has turned into somewhat of a
loophole in that some agencies have been conducting Wilderness
and Wild and Scenic River studies in their management plans
feeling that no longer makes it a single purpose study.
4:13:30 PM
Section 7804 prohibits further statewide roadless area reviews
for the purpose of recommending additional designated wilderness
without congressional direction. The key word is "statewide," so
it's not very useful, because Alaska has two national forests
and they could do them separately. The Department of law would
talk about the roadless rule on Wednesday.
4:14:02 PM
Several access provisions apply: one is Section 1110(a) for
general public use for snow machines, motorboats, airplanes, and
non-motorized methods of transportation for traditional
activities that applies to all the CSUs including designated
Wilderness and Wild and Scenic Rivers. This is a very important
provision for providing access to and within these areas, many
of which are very remote and not on a road system.
4:14:44 PM
Section 11 is a similar provision, but just for subsistence
access. This allows snow machines, motor boats, and other means
of surface transportation traditionally employed for subsistence
use (typically an all-terrain vehicle).
MS. MAGEE said both Sections 11 and 1110 are subject to
reasonable regulations. This means the federal agencies can
manage the use, which the state doesn't dispute, but the
disagreements come over the justification for restrictions or
closures. She explained that the Park Service and Fish and
Wildlife Service have regulations that have been in place since
the early 80s and they require site-specific justification and a
public process so that people that are affected by any
restrictions or closures have a chance to communicate with the
federal agencies and hopefully work with them on coming up with
other ways to address the resource concerns without restricting
access.
4:16:06 PM
She said in-holder access is in Section 1110(b) and establishes
a guaranteed right of access to state and private in-holdings
within CSUs, specifically for economic and other purposes. So,
if you have an in-holding you should be able to have a business
on your in-holding and should be able to develop resources. It
is a very important and strong provision in ANILCA.
In response to then governor, Murkowski, in the mid-2000s the
DNR worked with the Park Service on getting some guidance in
place to help in-holders to secure their access. This was most
important in the Wrangell - St. Elias National Park and Preserve
because it has a lot of in-holdings.
Section 1323 is a similar provision to 1110(b), but it applies
to non-CSU BLM and Forest Service land. It assures access but it
is not as strong a right. Probably, Congress didn't anticipate
problems with multiple-use lands, which is what BLM and the
Forest Service management is.
4:17:59 PM
Another very important provision in Title 1101-1107 - the
Transportation and Utility System process in ANILCA - ensures
that federal agencies will consider a transportation or utility
system project that occurs on CSUs. It doesn't guarantee an
answer, but it ensures that they can't just turn a proponent
away, or the state, for that matter. There is very strong intent
language that Alaska is a young state and needs to be able to
develop its infrastructure, and that's why they developed a
process. But the process, itself, is a little out of date; the
timelines are out of sync with how long it takes to do an
environmental document in today's world, but extensions are
possible. However, it has some procedural problems with it, as
well.
4:19:06 PM
MS. MAGEE said she has heard that industry doesn't think this
process works well. It has been used for small projects, but it
is problematic for larger ones. In all honesty, the federal
agencies are in charge of the process and their first instinct
is to protect and avoid a CSU, which is generally the outcome,
and that's where the problem lies.
4:19:50 PM
CHAIR GIESSEL asked if the management plan for the Wrangell -
St. Elias 1110(b) area is complying with or eroding Alaskans
access through ANILCA.
MS. MAGEE said the plan the Park Service has for Wrangell - St.
Elias is still in the works, but it is a back country wilderness
stewardship plan, and primarily deals with access. It's more
about the 1110(a) public methods of access for traditional
activities (not subsistence access), snow machines in
particular.
CHAIR GIESSEL said she hears some concerns that the plan is
eroding access.
MS. MAGEE said the plan is in its early stages, and snow
machines are still an issue with that plan. So, she will be
watching it closely.
4:21:39 PM
SENATOR STEDMAN asked if the department tracks all these plans
the federal government puts forward and automatically responds
to the statutory rights Alaska has, and if they are ignored,
what the department does to make sure we have these rights for
access.
MS. MAGEE answered she is the state coordinator and when a
federal agency releases a plan, policy or regulation that
affects one of these units, the state reviews it, and she works
with any state agency that has an interest in it. Then they
prepare written comments if it's a formal public comment period,
but they also try to talk and work with the federal agencies as
the plans are being developed. ANILCA has provisions that
require that they consult and cooperate with the state on
different things and planning is one of those areas.
4:23:35 PM
SENATOR STEDMAN remarked that sometimes it seems like the feds
just ignore the state's statutory rights versus recognizing they
even exist, particularly in the Tongass.
MS. MAGEE responded that the state has been struggling with this
over the last few years. It has always monitored the
implementation of ANILCA very closely, but they have been
frustrated in the last few years. The federal agencies will go
so far and recognize that 1110(a) applies to these units, but
they often disagree on the justification for a restriction or a
closure. Sometimes legal challenges are a result.
SENATOR STEDMAN said he wanted to look at the road easements
through the Tongass that were granted a few years ago, because
some of them haven't been cleared.
4:26:11 PM
SENATOR COGHILL commented he was glad to hear the state tries to
get in on the planning process, because the disappointing thing
to many of them is that they have invited non-government
agencies into the planning processes way ahead of the state, and
yet ANILCA contemplated the state being at the table through the
Land Use Planning Council. He asked if there had been some
conversation within the state and federal government about
looking at a reconstituted Land Use Planning Council.
MS. MAGEE said she didn't speak for the state and didn't know if
it is supportive of that right now, but it would be helpful to
have that forum for productive conversations.
SENATOR COGHILL remarked that in his neck of the woods, the
areas of critical environmental concern "just drive me crazy"
and "no clauses" are kind of "in your face right now" in both
the central and the eastern planning units. The state has to
assert this law. It is unique between the federal government and
a state among the states that is almost akin to the Louisiana
Purchase and it should be held accordingly. This law becomes a
tool that if the state does not use, then it looks like the
federal agencies continually go to the Federal Land Policy Act
instead of ANILCA, and it's up to the state to reassert on every
occasion.
4:28:54 PM
MS. PALACH said when ANILCA was being discussed in Congress,
management and use of fish and wildlife was a very significant
topic, and ANILCA addressed it in several different places.
Section 804 discussed establishing a priority for subsistence
use of fish and wildlife over other uses when it was determined
necessary to restrict a take of fish or wildlife.
Section 1314 confirmed a very important part, which was that the
state would retain management of fish and wildlife on all lands.
Section 1316 considered existing uses on federal land, so they
discussed an allowance for existing uses and future
establishment of temporary facilities, camp sites, tent
platforms, and shelters that were related to taking fish and
wildlife. These are important not only for the general public
but for guided commercial use, as well.
4:30:05 PM
MR. PALACH noted that they had just talked about state/federal
cooperation, and Title 12 of ANILCA addressed the Alaska Land
Use Council. It was a joint federal/state/Native corporation
forum that was charged with making recommendations on ANILCA
implementation including a required plan, studies, and
regulations. So when the Fish and Wildlife Service did a
comprehensive conservation plan or the National Park Service did
a general management plan, the Land Use Council, which included
the governor and the head of the federal agencies in Alaska,
would meet and consider those plans. They would discuss the pros
and cons and how they thought it addressed ANILCA and whether
they thought the plans were sufficient, or in some cases, with
the first round of National Park Service Plans, whether they
were deficient and needed to be redone, which did happen in the
first round of general management plans for the National Park
Service, which were returned and revised significantly over
concerns that the Alaska Land Use Council provided.
4:31:19 PM
He said the Council, itself, had a sunset and he recommended a
congressional reauthorization, but that didn't go forward. So,
the Land Use Council went away in 1990.
Other ANILCA amendments have passed since 1980; it isn't a
stagnant law. Some examples are the Tongass Timber Reform Act in
1990 that eliminated the mandatory large timber sales and
related subsidies. It also designated additional wilderness
areas and 12 new land use designations on the Tongass National
Forest. And the Submerged Lands Act of 1988 amended ANILCA,
Section 901, to exclude major waterways from ANCSA conveyances,
which sped up the Native Corporation and state land conveyance
processes. Basically, if you were conveying land, you could come
up to a major water body and instead of having to figure out
what to do with it, you could just exclude it - it didn't count
either as state or Native corporation land in the entitlements
the state got under the Statehood Act or under ANCSA.
4:33:11 PM
MS. MAGEE took up implementation challenges and said many
provisions in ANILCA require federal agencies to consult or
coordinate with the state in addition to Title 12. It is
interesting that an entire title is devoted to state/federal
cooperation, but that is not the only place it says we're
supposed to cooperate.
She said that lately they are experiencing different
interpretations of what constitutes "meaningful" consultation
and coordination. There is a difference between informing
somebody of what you are doing and having a good
dialogue/exchange of information. The state is looking for an
opportunity to having the dialogue and an opportunity to share
information and look for solutions, because often there is more
than one way to solve a problem.
4:34:46 PM
MS. MAGEE said another issue with national policies and
regulations is that they often don't reflect or recognize ANILCA
or Alaska's unique context. So, the state frequently recommends
regional guidance to local Alaska regional offices, and
sometimes they are heard and sometimes not. In 2005, the Forest
Service had a national access and travel management regulation
go into effect that was inconsistent with ANILCA's open-until-
closed provisions on access. It took a while to get the Forest
Service's attention, but then they agreed to do some regional
guidance that allowed the district plans to be implemented in a
manner that was consistent with ANILCA.
MS. MAGEE said that they been talking to the Bureau of Land
Management to put together some regional guidance for Alaska,
because they are a multiple-use agency and don't have all of the
same implementing regulations that the Parks Service and the
Fish and Wildlife Service have that were promulgated in the
early 80s.
4:36:39 PM
The Department of Interior has Title 11 access regulations, but
they have introduced some new policies like the Wildlands Policy
in around 2010 that requires their lands to be inventoried for
wilderness character and to manage to protect that. It wasn't a
real designation by Congress, so a lot of states objected to it.
Some changes were made, and now they don't actually designate
"wildlands" any more, but they are still implementing the policy
and it's at odds with a lot of the access and special provisions
in ANILCA that apply to designated wilderness. This is just an
example of where the state would like to have some regional
guidance that would speak to all the staff that are working on
the three plans now, so the department doesn't have to
continually make the same comments over and over again.
Unfortunately, no progress has been made there. Unfortunately,
when federal decisions conflict with ANILCA, it leads to
unnecessary conflicts and litigation.
Another challenge is that plans are thousands of pages long. But
the departments are looking to public access for traditional
activities: hunting, fishing, trapping, and camping. They want
to promote state-managed access to and along state waterways and
protect access and development opportunities for natural
resources located on in-holdings and adjacent non-federal lands;
they want to encourage appropriate opportunities to provide
tourism and visitor services and support recreational uses on
the public lands and benefit the local economies that are
affected by these areas. They also want to ensure state
management of fish and wildlife on all lands.
ANILCA often affects multiple state agency interests and
mandates and that is why the coordinated state agency review is
done. It allows the state to speak more powerfully with one
voice and helps to facilitate more effective consultation prior
to the final decision, which is an important aspect of their
work.
4:40:28 PM
MS. MAGEE said the final challenge for state agencies and
primarily federal agencies because it is a federal law, is that
their knowledge of ANILCA is diminished by turnover, whether
someone is being transferred out of the state after being here
for a while, which is the routine that federal agencies go
through with their employees, or some long-term knowledgeable
people who are retiring. You're just losing institutional memory
of ANILCA.
CHAIR GIESSEL said she was pleased to hear about the coordinated
state agency reviews, and at the same time they are saddened to
lose the Citizens' Advisory Commission on Federal Areas (CACFA),
which kept the legislature pretty well apprised.
SENATOR COGHILL thanked them for their day-to-day work in wading
through thousands of documents. One of the things legislators
need to continually be made aware of, just like they have to
continually instruct the federal government, is they have to
also continually instruct where the state fits in the Statehood
Act and the Alaska Native Land Claims Settlement Act (ANILCA)
that are its forming documents. The trouble is that one can
literally change the whole agreement for statehood based on a
regulation. But the other part of the context is there was a
Tongass Act prior to this and yet it's poorly understood how the
Endangered Species Act, the Clean Water Act, and NEPA all
happened after this act, which has had a huge impact on how the
state can manage conservation units. He asked how ANILCA helps
us cut through these acts or does it add complexity that makes
it harder.
4:44:08 PM
MS. MAGEE answered in referring to the other environmental laws
and regulations that are in effect today, she primarily thinks
about the plans that affect multiple-use lands as opposed to the
conservation system units. This is an issue for them in the
context of the Eastern Interior Resource Management Plan that
was recently finalized, because they feel there are existing
environmental laws and regulatory authorities that protect
resources that didn't exist back in the late 70s. Some of these
administrative designations - the areas of critical
environmental concern and riparian conservation areas are a few
- they had never seen before. There was no acknowledgement that
other regulations existed that would protect the resources, and
so, that is why they are really looking at the justification for
that designation and if they are necessary.
SENATOR COGHILL said he is still appalled and asked who we
appeal to, Congress? And go past the regulators? Is the
administration alarmed at anything in this?
4:46:16 PM
MS. MAGEE said the state is looking at all of its options on
that particular plan, and litigation is a possibility. Part of
the issue with BLM plans right now is this new planning role
that they have recently finalized called "Planning 2.0" that
seeks connectivity within ecosystems. In Alaska, that ends up
being buffers for the many conservation system units that
already exist in the state. So, BLM lands that are still
multiple use lands are being managed primarily for resource
protection under that new planning rule. There lies a cause for
concern. She knows Congress is looking at whether or not that
rule can be repealed under the Congressional Review Act.
4:47:40 PM
CHAIR GIESSEL thanked them for their presentation and said she
felt obligated to point out that as one of the three Territorial
kids sitting at the table - Senator Stedman, Senator Coghill,
and herself - that Alaska became a state because of the
discovery of oil at Swanson River and ANSCA was actually the
result of the desire to build the TransAlaska Pipeline System
(TAPS), once again about Alaska's petroleum hydrocarbon
resources.
SENATOR STEDMAN remarked that one of the reasons Southeast
Alaska wanted to become a state was to close down the fish
traps, a different type of oil.
CHAIR GIESSEL asked if they could provide a list in written form
of the various provisions in ANILCA that they had called out.
SENATOR COGHILL said one of the last acts of CACFA was an ANILCA
review and it might contain some documentation of the changes
the departments have had to deal with as a matter of course.
CHAIR GIESSEL said that the Department of Law has provided her
with a chart of potential conflicts with the federal government
on these kinds of issues that she would provide the committee
members and they can ask the department about them at the next
committee meeting.
4:50:51 PM
CHAIR GIESSEL adjourned the Senate Resources Committee meeting
at 4:50 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 6-Version U.pdf |
SRES 2/13/2017 3:30:00 PM |
SB 6 |
| SB 6 -Sponsor Statement Version U.pdf |
SRES 2/13/2017 3:30:00 PM |
SB 6 |
| SB 6 - Sectional Analysis Version U.pdf |
SRES 2/13/2017 3:30:00 PM |
SB 6 |
| SB 6- Support- Colorado Dept of Agriculture Hemp Program Overview.pdf |
SRES 2/13/2017 3:30:00 PM |
SB 6 |
| SB 6- Support- Colorado Dept of Agriculture Hemp Regulations.pdf |
SRES 2/13/2017 3:30:00 PM |
SB 6 |
| SB 6- Explanation of Changes-Version U.pdf |
SRES 2/13/2017 3:30:00 PM |
SB 6 |
| SRES-ANILCA Presentation-DNR-DFG-2-13-17.pdf |
SRES 2/13/2017 3:30:00 PM |
ANILCA |
| SB 6- Support-Fredenberg-2-13-17.pdf |
SRES 2/13/2017 3:30:00 PM |
SB 6 |
| SRES-CACFA Memo on ANILCA Sections.pdf |
SRES 2/13/2017 3:30:00 PM |
ANILCA |