Legislature(1995 - 1996)
03/06/1995 04:00 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE RESOURCES COMMITTEE March 6, 1995 4:00 p.m. MEMBERS PRESENT Senator Loren Leman, Chairman Senator Drue Pearce, Vice Chairman Senator Steve Frank Senator Georgianna Lincoln Senator Lyman Hoffman COMMITTEE MEMBERS ABSENT Senator Rick Halford Senator Robin Taylor COMMITTEE CALENDAR SENATE BILL NO. 56 "An Act relating to rights in certain tide and submerged land." SENATE BILL NO. 49 - SCHEDULED BUT NOT HEARD "An Act relating to the Board of Fisheries; and providing for an effective date." PREVIOUS ACTION SB 56 - See Community & Regional Affairs minutes dated 2/20/95. SB 49 - See Resources minutes dated 2/20/95 and Resources Subcommittee minutes dated 2/24/95 and 2/25/95. WITNESS REGISTER Senator Fred Zharoff Alaska State Capitol Juneau, Alaska 99811 POSITION STATEMENT: Testified in support of SB 56 Richard LeFebvre Deputy Director, Operations Division of Land Dept. of Natural Resources 3601 C St., Suite 800 Anchorage, AK 99503-5947 POSITION STATEMENT: Answered questions on CSSB 56(CRA) Annette Kreitzer Senate Resources Committee Aide Alaska State Capitol Juneau, Alaska 99811 POSITION STATEMENT: Testified for sponsor of SB 56 Geron Bruce Legislative Liaison Dept. of Fish and Game P.O. Box 25526 Juneau, AK 99802-5526 POSITION STATEMENT: Answered questions on SB 56 Sara Hannan Alaska Environmental Lobby P.O. Box 22151 Juneau, Alaska 99801 POSITION STATEMENT: Testified on SB 56 ACTION NARRATIVE TAPE 95- 20, SIDE A Number 001 SL&C - 3/6/95 CHAIRMAN LEMAN called the Senate Resources Committee meeting to order at 4:00 p.m. The first order of business was SB 56, sponsored by Senator Leman. He noted SB 56 has been reviewed by the Community and Regional Affairs Committee, and a similar measure was introduced last year. ANNETTE KREITZER, committee aide, read a sponsor statement to the committee. She made the following comments. SB 56 was introduced at the request of the Aleutians East Borough. It allows all municipalities, home rule, first, and second class cities and boroughs, to apply for conveyance of tide and submerged lands if four conditions are met by the municipalities. Those conditions are: a lack of unreasonable interference with public access resulting from proposed use; an application must be submitted for conveyance; compatibility of proposed use and land classification or land use plan for the area must exist; and a need for land development. Land conveyed under SB 56 would be subject to the Public Trust Doctrine. Title to land conveyed under SB 56 would revert to the state if the municipality is dissolved. SB 56 would not affect municipal land entitlements provided by AS 29.65. Number 055 SENATOR HOFFMAN asked for an explanation of the committee substitute. MS. KREITZER explained the Community and Regional Affairs committee substitute (offered 2/21/95) added language which is included in a companion bill on the House side. Under Section 1, subsection (a), the phrase, "Unless the commissioner finds that the public interest in retaining state ownership of the land clearly outweighs the municipality's interest in obtaining the land,..." was inserted. The new committee substitute, dated 3/6/95, adds a provision that would deal with problems associated with the City of Skagway. SENATOR PEARCE moved the adoption of the committee substitute, dated 3/6/95, as the working document. There being no objection, the motion carried. Number 095 SENATOR ZHAROFF explained the committee substitute adds a provision that makes it possible for the Department of Natural Resources (DNR) to transfer land in question to municipalities. Current practice allows DNR to transfer land to individuals but not to municipalities. In the City of Skagway a dike was constructed approximately 50 years ago to divert the river. At that time the land that was reclaimed was between the new river course and the old river bank. A number of developments have occurred on that land, including a school, however financing has been difficult to obtain because of the question of title. An identical bill passed through the committee process last year but was lost during the final hours of the session. SENATOR LEMAN asked if a municipality has already taken its entitlement, whether CSSB 56 would allow for additional entitlements. SENATOR ZHAROFF deferred the question to the DNR. Number 146 DICK LeFABVRE, DNR, replied that if a municipality had already fulfilled its requirement it would not be eligible for an additional entitlement, however there are other methods that could be used. SENATOR LEMAN explained a proposed amendment that would remove language inserted by the Community and Regional Affairs Committee. Number 170 SENATOR LINCOLN asked what the intent of including that language was. SENATOR PEARCE moved the adoption of the amendment. DICK LeFEBVRE explained the language, which is contained in HB 20, gives the Commissioner the discretion to object to municipal selections outside of designated areas included in Section B, if there is a greater public interest. He cited the TransAlaska terminal facility in the City of Valdez as an example, and explained under SB 56, DNR would not have had the discretion to deny applications submitted by the City of Valdez. Number 202 SENATOR LEMAN asked if the Anderson Bay property met the requirements under CSSB 56(CRA), lines 5-10. MR. LeFEBVRE replied that property would not have met those requirements. He discussed future scenarios in which conveyance applications might meet those requirements but the overall public interest would not be served. SENATOR LEMAN clarified the question as whether to place trust in the municipalities or the Commissioner. SENATOR LINCOLN asked whether the recommendations included in the Department of Fish and Game's (F&G) fiscal note were considered or included in CSSB 56. SENATOR LEMAN noted the discussion was limited to the amendment. SENATOR HOFFMAN discussed his concern that, as a fall-back, there should be a best interest findings provision on behalf of the state. Number 257 SENATOR FRANK clarified that if the amendment is adopted, DNR would be mandated to convey the land if the three criteria on page 2, lines 5-10 are met, and if the amendment is rejected, the Commissioner may reject the application if it is in the state's best interest. SENATOR LEMAN responded affirmatively. Number 267 SENATOR FRANK questioned whether "best interest findings" are subject to litigation. SENATOR LEMAN commented that "best interest findings" are litigated all of the time. MR. LeFEBVRE agreed. SENATOR HOFFMAN did not remove his objection to the motion to adopt the amendment. A roll call vote was taken with the following results: Senators Leman, Pearce and Lincoln voted "Yea," and Senators Hoffman and Frank voted "Nay." The motion carried. Number 300 SENATOR LINCOLN restated her question regarding ADF&G's position paper. She asked if the two recommendations were accommodated. GERON BRUCE, representing ADF&G, informed the committee that the provision does allow the DNR Commissioner to deny a request for land in a legislatively designated area if the use is incompatible with the purpose of the statutory designations, but it does not explicitly address the recommendation. SENATOR LINCOLN asked whether ADF&G's first recommendation was accommodated. MR. BRUCE responded it is addressed on page 4, line 15. SENATOR LINCOLN asked if the committee substitute satisfies ADF&G's concerns. MR. BRUCE stated he did not feel the second concern has been explicitly addressed; ADF&G staff recommended that legislatively designated areas not be conveyed. SENATOR LEMAN clarified that the DNR Commissioner could not convey those lands unless he/she determines that the proposed use is consistent or compatible with the purpose of the statutory designations. He felt the legislatively designated areas would be covered. Number 345 MR. BRUCE noted the DNR, not ADF&G, would make that determination. SENATOR LINCOLN questioned the fiscal note. MR. BRUCE explained the fiscal note speaks to the need to examine lands that would be conveyed, and to advise DNR on the impact of the uses of those lands on fish and game habitat. SENATOR LINCOLN asked if the fiscal note would apply to the amended version of CSSB 56. MR. BRUCE answered it would as it applies to the question of the legislatively designated areas, but if the land has already been classified for waterfront development, those considerations would have been examined in the fiscal note prior to the new committee substitute. Number 375 SENATOR LEMAN asked if the half-time biologist position included in the fiscal note would be a new or existing position. MR. BRUCE responded it would be ADF&G's preference to have a part-time person assigned to these responsibilities, as any additional workload would be difficult to accomplish with existing staff. He commented the Habitat Division is struggling to meet the requirements of legislation passed last year to establish tax credits on the Kenai River. SENATOR LEMAN commented CSSB 56(am) should not tie up one employee half-time for an entire year as only a handful of applications are likely to be submitted. He added he would prefer to see a seasoned staff person do the job as they would not need to be trained. Number 398 SENATOR LEMAN announced CSSB 56(am) would be held until Wednesday, March 8, to review an updated ADF&G fiscal note. SARA HANNAN, representing the Alaska Environmental Lobby (AEL), testified. She noted the AEL has serious concerns about CSSB 56(am) as there are times when the state may have an overriding interest in retaining ownership of land. She commented some discretion to the State must be reserved to prevent future conflicts when projects such as ferry terminals, or pipeline terminals, are required. She explained with no discretion reserved for the state, the State must transfer the land whenever the application meets the 3 criteria. The Community and Regional Affairs version of SB 56 gives DNR the discretion to reject the application if there is an overriding public concern and the burden of proof remains with the State. She added CSSB 56(am) would change public access to tidelands which are owned by the state since new municipalities could be granted rights to tidelands. SENATOR LEMAN commented the bill transfers tideland conveyance from one public entity to another and the Public Trust Doctrine would hold for the municipality. MS. HANNAN replied the municipality would apply for the land because they have a development plan for it and the public use will shift. MS. HANNAN stated long into the future the state may want to develop a deep water port. She reiterated her concern that the State should retain the ability to deny a permit based on overriding public concern. She added under CSSB 56(am), the state would automatically have to transfer lands that meet the criteria and the municipality could sell that land to a third party. Number 485 SENATOR FRANK questioned whether the municipality could sell the tidelands to a private party. SENATOR LEMAN responded affirmatively. SENATOR FRANK asked if the State could do the same thing. DICK LeFEBVRE responded negatively. SENATOR FRANK asked if the prohibition against the state was constitutional or statutory. MR. LeFEBVRE replied it is covered under statute. SENATOR FRANK questioned whether there was a constitutional provision, similar to that with regard to mineral rights. MR. LeFEBVRE replied, "Not directly, no." SL&C - 3/6/95 There being no further testimony on CSSB 56(am), SENATOR LEMAN announced the Subcommittee hearing on SB 49 would be postponed. He adjourned the meeting at 4:40 p.m.