Legislature(2019 - 2020)BUTROVICH 205
03/27/2019 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB51 | |
| SB42 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 51 | TELECONFERENCED | |
| *+ | SB 42 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
March 27, 2019
3:30 p.m.
MEMBERS PRESENT
Senator Chris Birch, Chair
Senator John Coghill, Vice Chair
Senator Cathy Giessel
Senator Lora Reinbold
Senator Click Bishop
Senator Scott Kawasaki
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 51
"An Act requiring the designation of state water as outstanding
national resource water to occur by law; relating to the
authority of the Department of Environmental Conservation, the
Department of Fish and Game, and the Department of Natural
Resources to nominate water for designation as outstanding
national resource water; relating to management of outstanding
national resource water by the Department of Environmental
Conservation; and providing for an effective date."
- HEARD & HELD
SENATE BILL NO. 42
"An Act requiring the state to quitclaim to the federal
government land or an interest in land after a determination
that the land or interest was wrongfully or erroneously conveyed
to the state."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 51
SHORT TITLE: NATL. RES. WATER NOMINATION/DESIGNATION
SPONSOR(s): RESOURCES
02/11/19 (S) READ THE FIRST TIME - REFERRALS
02/11/19 (S) RES, FIN
03/15/19 (S) RES AT 3:30 PM BUTROVICH 205
03/15/19 (S) Heard & Held
03/15/19 (S) MINUTE(RES)
03/20/19 (S) RES AT 3:30 PM BUTROVICH 205
03/20/19 (S) Heard & Held
03/20/19 (S) MINUTE(RES)
03/27/19 (S) RES AT 3:30 PM BUTROVICH 205
BILL: SB 42
SHORT TITLE: QUITCLAIM LAND TO UNITED STATES
SPONSOR(s): COGHILL
02/01/19 (S) READ THE FIRST TIME - REFERRALS
02/01/19 (S) RES
03/27/19 (S) RES AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
TREVOR FULTON, Staff
Senator Birch
Alaska State Legislature
POSITION STATEMENT: Provided an overview of changes from Version
K to Version R committee substitutes for SB 51.
EMILY NAUMAN, Legislative Counsel
Division of Legal and Research Services
Legislative Affairs Agency
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding SB 51.
JENNIFER CURRIE, Assistant Attorney General
Alaska Department of Law
Juneau, Alaska
POSITION STATEMENT: Addressed questions regarding SB 51.
ANDREW SAYERS-FAY, Director
Division of Water
Alaska Department of Environmental Conservation
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding SB 51.
RYNNIEVA MOSS, Staff
Senator Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided an overview of SB 42.
DESIREE DUNCAN, Native Lands Manager
Central Council Tlingit and Haida Indian Tribes of Alaska
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 42.
SHEILA NEKETA, Staff
Land Management Services
Bristol Bay Native Association
Dillingham, Alaska
POSITION STATEMENT: Testified in support of SB 42.
ROBERT BREAN, Allotment Claimant
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 42.
MITCHELL ALLAN, Allotment Claimant
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of SB 42.
MURRAY CLAYTON, Allotment Claimant
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of SB 42.
MARTY PARSONS, Director
Division of Mining, Land and Water
Alaska Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Discussed the division's work pertaining to
SB 42.
ACTION NARRATIVE
3:30:30 PM
CHAIR CHRIS BIRCH called the Senate Resources Standing Committee
meeting to order at 3:30 p.m. Present at the call to order were
Senators Kawasaki, Coghill, Giessel, Kiehl, Reinbold, and Chair
Birch.
SB 51-NATL. RES. WATER NOMINATION/DESIGNATION
3:31:16 PM
CHAIR BIRCH announced the consideration of Senate Bill 51 (SB
51). He said his intent is to adopt a committee substitute (CS)
and report the bill on to the next committee of referral.
3:31:51 PM
SENATOR COGHILL moved to adopt the proposed CS for SB 51,
labeled 31-LS0375\R, as the working document of the committee.
SENATOR GIESSEL objected for discussion purposes.
3:32:14 PM
TREVOR FULTON, Staff, Senator Birch, Alaska State Legislature,
Juneau, Alaska, explained that there are two changes in the
Version R CS for SB 51. He said the first change is cleanup
recommended by Legislative Legal. On page 1, line 11, delete
"and this section," which was a vestige from a previous draft of
the bill.
He explained that the second, more substantive, change begins on
page 1, line 12, and encompasses the entire subsection (b). The
change was in response to concern that the old subsection (b)
may have diluted the sponsor's intent that the legislature has
the final decision as to whether to designate an outstanding
national resource water. The old subsection (b) required the
Alaska Department of Environmental Conservation (DEC), Alaska
Department of Natural Resources (DNR), and the Alaska Department
of Fish and Game (ADFG) to unanimously agree on a nomination
prior to forwarding it to the legislature; however, a decision
by the departments not to forward a nomination could be
construed as precluding a decision by the legislature which was
not the intent of the bill. The new subsection (b) requires that
all nominations be forwarded, not just those recommendations by
the departments, in an annual report to the legislature. The
annual report does not constitute an appealable, final agency
decision.
3:32:36 PM
SENATOR BISHOP joined the committee meeting.
MR. FULTON summarized that the intent of the CS is to maintain
the benefit of having the three resource departments lend a
minimum level of scientific review and subject matter expertise
to Tier 3 water nominations while reinforcing the final
authority for Tier 3 designation lies in the hands of the
legislature.
CHAIR BIRCH asked Senator Giessel if she maintains her
objection.
3:34:14 PM
SENATOR GIESSEL removed her objection.
CHAIR BIRCH announced that that the Version R CS for SB 51 is
adopted.
SENATOR GIESSEL said she had requested that the Legislative
Legal bill drafter and the Department of Law be available during
the committee meeting. She explained that she has four areas of
questions.
She asked Emily Nauman with Legal Services to address the CS for
SB 51. She said the CS does not reference the legislature as the
body that would make the determination. The CS only says on page
1, line 11, "only by law." She said her understanding of "by
law" would mean a bill passed by the legislature and signed by
the governor or it could mean "by initiative." She added that
her understanding is the Alaska Constitution disallows
initiatives that appropriate. She said she believes SB 51 is
appropriating a resource of the state. She asked if a
designation of water constitutes an appropriation per the
constitution and therefore would be ineligible to be made by
initiative.
3:36:03 PM
EMILY NAUMAN, Legislative Counsel, Legal Services, Division of
Legal and Research Services, Legislative Affairs Agency, Alaska
State Legislature, Juneau, Alaska, answered that Senator Giessel
is correct; by law the designation encompasses both an act
passed by the legislature, signed by the governor and an
initiative. She said she will follow up, but her initial
reaction is the bill is not an appropriation because the
legislature is not giving the land to someone or making an
allocation of an asset. The legislature is just submitting to
more stringent water quality standards.
SENATOR GIESSEL countered that the designation of the water
changes the ability of the land that is adjacent to that water
body to be utilized in certain ways, thereby appropriating the
land.
MS. NAUMAN replied that she does not see the bill as an
appropriation but will look further into the issue.
SENATOR GIESSEL asked to hear from the Department of Law on the
subject.
3:38:01 PM
JENNIFER CURRIE, Assistant Attorney General, Alaska Department
of Law, Juneau, Alaska, said she will have to do some additional
research to make a determination because she is not sure.
SENATOR GIESSEL emphasized that the committee needs to be aware
of the appropriation issue.
She asked Ms. Nauman to address on line 11 in the bill, the word
"law" within the phrase "only by law". She noted that
regulations have the force of law and asked if the phrase could
be interpreted to mean the Department of Environmental
Conservation (DEC) could pass regulations that would put in
place a designation of Tier 3 waters and thereby have a force of
law.
MS. NAUMAN responded that she would have to take a moment to
process the question prior to answering.
SENATOR COGHILL suggested that the committee look at art. XII,
sec. 11 of the Alaska Constitution because an initiative is
allowed. He added that there was also a court case where the
intent was to give land to the university, but the land was an
appropriation which barred the transaction.
MS. NAUMAN answered that Senator Giessel is correct that
regulations commonly are described as law and she will get back
to the committee on the effect of "only by law" and whether the
section could be interpreted as the department adopting
regulations.
3:40:17 PM
SENATOR GIESSEL directed attention to page 1, line 12 that says,
"The department may accept an application for a nomination." She
said the original version of SB 51 said the department shall
accept nominations, whereas the CS says the department is
accepting applications for nominations. She asked Ms. Nauman
what the difference is between the application and the
nomination because it sounds like another step.
MS. NAUMAN replied that she does not see the application for
nomination as another step other than to possibly differentiate
the fact that there might need to be some paperwork filled out
or some minimum requirement for a nomination to become complete
and therefore that would become sort of an application.
SENATOR GIESSEL asked if the department would therefore have to
approve an application for a designation to become a nomination.
MS. NAUMAN replied that inquiry is not specified in the bill.
SENATOR GIESSEL remarked that there was a gap. She said the CS
requires the department to make a recommendation about the
nominations. Page 2, line 3 says, "The report must provide a
recommendation regarding whether each nominated water should be
designated as outstanding national resource water." She asked if
"no recommendation" is among the options for the department.
MS. NAUMAN answered that the bill states that the report must
provide a recommendation so the department could provide "no
recommendation" and not be in a substantial violation of the
section; that response would be based on the department's
interpretation that they must provide a recommendation and
whether or not no recommendation was actually some sort of form
of not having an opinion either way.
3:42:46 PM
SENATOR GIESSEL asked what the legal significance of a
recommendation is and if it is appealable. She inquired what
would happen if the department recommend" and the legislature
takes an opposite action.
MS. NAUMAN answered that the recommendation she envisions is the
department provides a possible supported, researched opinion
about whether the water qualifies for the Tier 3 designation or
whether it is worthy of the Tier 3 designation. The legislature
is free to disregard a recommendation or follow a
recommendation. The recommendation by the department does not
bind the legislature in any way. In fact, the legislature could
consider any body of water for a Tier 3 designation regardless
of whether a recommendation was passed on from the department.
She said regarding the question about whether the recommendation
is a final decision, the language on page 2, lines 7-10 says,
"The preparation and delivery of a report under this subsection
does not constitute a final agency decision or action, and the
recommendation is not subject to appeal, including appeal or
review under AS 44.62 (Administrative Procedure Act)." attempted
to foreclose that. It clarifies that it is not the opinion of
the legislature that the recommendation is the final action on a
decision whether to designate a body of water as outstanding
national resource water. That decision is actually being taken
up by the legislature.
3:44:22 PM
SENATOR GIESSEL read the language on page 2, line 9, "the
recommendation is not subject to appeal, including appeal or
review under AS 44.62 (Administrative Procedure Act)." She said
the question is what is the legal significance of
"recommendation." She inquired if someone can protest or sue if
the legislature were to refuse to take up the bill or to reach a
conclusion that was different than the report's recommendation.
MS. NAUMAN replied that people sue all of time about almost
everything, it's why most of the world's lawyers are employed,
but to the extent that the legislature takes up or does not take
up any matter is a matter of the legislature's prerogative and
that argument can be made about any action of the legislature.
The legislative powers are a constitutional one that is inherent
in the body's ability to pass or not pass any piece of
legislation. She opined that she does not see a successful
lawsuit of someone suing over the legislature's decision on the
department's recommendation.
SENATOR GIESSEL asked Ms. Currie for her thoughts on the legal
significance of a recommendation.
MS. CURRIE answered that she agreed with Ms. Nauman that a
recommendation is merely the opinion given by the different
resource agencies and that the legislature is free to use or not
use the departmental recommendations to make its decision.
3:46:23 PM
SENATOR GIESSEL asked Ms. Currie to confirm that the
recommendation would not hold legal binding status.
MS. CURRIE answered no, especially with the wording regarding it
not being an appealable decision. She noted that the original
legislation stated that if the resource agencies had a negative
recommendation that it would not go any further; however, the
goal was to make sure the legislature makes that decision and
not the resource agencies, so that language was taken out so
that all recommendations have to be forwarded to the legislative
body.
SENATOR GIESSEL said her fourth topic has to do with the
permanence of the designation. A similar bill was heard in 2016
and at that time the Senate Resources Committee questioned DEC
as to the question of "permanence." She said she inquired if the
declaration of Tier 3 waters is a permanent designation in
perpetuity. She noted the committee's letter back from the
commissioner stated that he did not think the designation is
permanent and yet at the same time the EPA itself could not give
a clear answer on the designation. She asked if the legislature
could repeal the designation by repealing the law and what would
the options be for the EPA in the future if they were to contest
the state's decision and even go so far as repealing Alaska's
primacy over waters. She inquired if the Department of Law has
experience with the EPA regarding the declaration of Tier 3
waters and its permanency.
MS. CURRIE replied that the Department of Law is aware of two
states that currently have regulations that allow a de-
designation of a Tier 3 water; however, the department does not
know whether the de-designation has ever been attempted. She
said she does not think that categorially the EPA has said there
is no process for de-designation because they would have had to
approve those regulations. She deferred to Andrew Sayers-Fay
with DEC to talk about EPA's role in de-designating if the state
were to designate a water.
3:49:50 PM
ANDREW SAYERS-FAY, Director, Division of Water, Alaska
Department of Environmental Conservation, Juneau, Alaska,
explained that since 2016, the division has had some follow-up
conversations with the EPA about the ability to de-designate a
Tier 3 or an outstanding national resource water body. The EPA
conveyed that they do not see anything that prohibits a state
from taking the de-designation action. The division has not
gotten into the nuances of how the de-designation process would
work or what role the EPA may or may not play if the state took
a de-designation action.
SENATOR GIESSEL asked Mr. Sayers-Fay if the communication with
the EPA is in writing.
MR. SAYERS-FAY replied that there is one email that he has
received from a staff member at EPA Region 10 about the de-
designation topic. He explained that the EPA staff member
referenced what other states have done. He said he does not have
the follow-up email to verify that the division has received
further information.
SENATOR GIESSEL said she appreciates the fact that the committee
has an email from a staffer at DEC, but she is not consoled by
the email. She stated that she would be interested to know if
DEC could get a letter from the head person from the EPA
indicating whether the designation was in fact revocable.
3:51:35 PM
SENATOR BISHOP said he would have more comfort with a law passed
by Congress that addressed a designation's revocability. He
remarked that he does not care what the EPA director says
because of the changes a new administration can make with a new
director and a new directive.
SENATOR GIESSEL said she has concern about the cost associated
with the bill. She assumed that the three resource departments
would have to do some analysis before a recommendation is made.
She inquired if DEC has any estimate on what an analysis would
cost before the department would make a recommendation.
MR. SAYERS-FAY replied that the bill, as written, envisions the
departments' analysis is done for the benefit of the legislature
to make a decision about a nomination and so the depth and
direction of what is being asked for by the legislature would
determine the level of cost and if there was an actual bill that
raised Tier 3 issue, the legislature could provide further
direction on what issues needed to be looked at or to what
degree.
3:54:03 PM
SENATOR GIESSEL asked him to confirm that DEC would make a
recommendation not knowing the degree of pristineness, not
knowing what kind of work is going on upstream, what kind of
uses of the water. She inquired if the work she previously noted
would have to be done before DEC makes a recommendation to
establish a Tier 3 water.
MR. SAYERS-FAY replied that there is more than one path to
answer the recommendation process. In a previous version of
proposed regulation, DEC enumerated several things the
department thought worthy of consideration. If SB 51 were to
pass, DEC would look into whether or not there is a need to
establish regulations again and the department would probably
answer those types of questions because those issues were raised
due to the impact that Tier 3 designation has for water quality
and then for any discharges to that water body and the potential
to impact tributaries flowing into that water body, there are a
number of questions that would naturally exist about what are
the uses and what are the potential impacts, DEC would
definitely start down that path. He said he previously addressed
in a previously proposed bill that the possibility that the
legislature could also provide additional direction for DEC to
look at specific issues.
MR. FULTON addressed Senator Giessel's question on the sponsor's
intent as far as who bears the cost of application or
nomination. He specified that the sponsor's intent in drafting
the bill is that the applicant will bear most of the cost as
clearly reflected in the department's zero fiscal note. Most of
the departmental costs would probably be associated with
collecting a certain level of water quality data proving there
is stakeholder and community support for the Tier 3 nomination,
and then whatever else is needed to prove.
3:57:05 PM
At ease.
3:57:20 PM
CHAIR BIRCH called the committee back to order.
MR. FULTON continued that the departmental costs will include
anything else required to prove that a water body is
ecologically and or recreationally significant, which is the
definition of a Tier 3 water body by the EPA. He reiterated that
the costs will be borne by the applicant as reflected in the
zero fiscal note presented by the department.
SENATOR GIESSEL remarked that one of the things that Congress
has realized is the fact that they abdicate their responsibility
when they write something very broadly and then expect the
departments to write regulations. She admitted that often the
Alaska Legislature has also written regulations that do not
reflect a bill's intent by not being specific. She said her
concern is leaving the decision to a departmental commissioner
or whoever happens to be the regulation writer at the time.
SENATOR KAWASAKI noted that the bill changed a lot between the
Version K and the version R. He pointed out that the original
fiscal note says, "The department shall accept nominations and
the department may forward those nominations to the
legislature." Version R says, "The department may accept an
application, that they shall prepare a report." He opined that
the two versions are very different, and the fiscal note ought
to reflect the change. He asked for an explanation of the
change.
3:59:55 PM
MR. SAYERS-FAY answered that the original language was the
department shall accept a nomination. The only significance in
the change in language is that if there was further direction
from the legislature or regulations that indicated a minimum
amount of information that was needed and that was not submitted
with the nomination, that that might provide a basis with the
new language for the department to not accept that nomination;
but, absent that the language is fairly similar in its intent
for the department to receive a nomination, reviews it, and
provides a report.
MR. FULTON addressed Senator Kawasaki and said as to the
question regarding "may" versus "shall," he noted that he had a
conversation with the legislature's attorney about the exact
subject regarding when the department "shall" accept a
nomination, that "shall" leaves the form of a nomination to be
very broadly interpreted, but "may" gives a department some
level of discretion as to whether or not the package fulfills a
certain criteria that the sponsor is looking for in a proper
nomination.
SENATOR COGHILL asked if the first thing that would be looked at
is the federal register on what the requirements of Tier 3.
MR. FULTON deferred the question to the department. He noted
that the federal register is vague in terms of what constitutes
an outstanding national resource water and his thought is the
register just says the water must be recreationally and
ecologically significant.
4:02:40 PM
SENATOR COGHILL remarked that looking at the register first
might make a difference to the legislature. He noted in a
footnote under are. XI, sec. 7 of the Alaska constitution that
says, "If it infringes on the legislature's ability to allocate
resources among competing uses, then it fails to ensure that the
legislature and only the legislature retains control over the
allocation." He opined that there is some case law that is
beginning to show that if the state restricts uses there may be
a significant issue between Alaska and the federal government.
He said the legislature needs to make sure that the tension is
properly described.
CHAIR BIRCH noted that there was testimony earlier in the
regarding the fact that DEC has adopted water quality standards
that relate to how the proposed legislation will be executed.
The regulatory package speaks to the Tier 3 analysis process for
the protection of water quality and outstanding natural resource
water.
SENATOR BISHOP noted that Senator Kawasaki addressed the fiscal
notes for the Version K and the Version R. He said common sense
dictates that there is an application process where nomination
is set at a high bar that is backed with science. He opined that
even though the study is paid for by the applicant, there needs
to be a number associated with the fiscal notes.
4:05:02 PM
SENATOR KIEHL said the phrase that reoccurs in statute when
talking about the quality of an application is "shall accept" as
opposed to "may accept." He asked why the sponsor settled on
"may accept" instead of letting the department say what quality
standards need to be met in the application.
MR. FULTON replied that the discussion did not go beyond what
has already been explained.
SENATOR KIEHL said he is still not clear on what standards the
department will use to evaluate the recommendations. He said he
appreciates the proposed anti-degradation regulation but
continues to question what standards the legislature will use to
tell the three commissioners to apply when they make a
recommendation to the legislature for designation.
MR. FULTON answered that that the regulation package does not
describe those standards and that is something the legislature
may not want to prescribe in law because the department would be
fully capable of doing so in regulation. He explained that part
of the reason why the sponsor wants the three departments
involved in the designation process is for a certain level of
scientific review in subject matter expertise. He said the
sponsor is more comfortable deferring review to the departments
for recommendation only, not for the final decision which will
continue to be made by the legislature.
4:08:01 PM
CHAIR BIRCH read the following:
We did not receive amendments prior to yesterday's
deadline, I would remind members as per the discussion
any amendments, sponsor substitutes, blank committee
substitutes, handouts or other documents you list,
placed before the committee need to be delivered no
less than 24 hours prior to the scheduled hearing
discussed in advance.
He said he did not see any additional amendments, questions or
comments and asked if the committee is ready for a motion.
SENATOR KAWASAKI asked if the committee will have discussion
time. He pointed out that the previously noted amendment policy
says amendments "should be submitted" and questioned the limited
time for offering amendments based on the recent bill revision.
He said he has lots of concerns with the legislation and noted
that the Senate Resources Committee is the substantive policy
committee versus the Senate Finance Committee. He remarked that
he feels uncomfortable moving the bill without having more
discussions on some of the concerns addressed during the
hearing. He noted that he has an amendment packet for the bill.
4:10:35 PM
SENATOR GIESSEL said she had questions for the Department of
Law, DEC, and the drafter. She noted that questions about the
cost to apply the regulations that have been drafted have not
been answered. Also, some attorneys do not think there is an
allocation issue but earlier testimony indicated this is similar
to designating parks, which removes land from use. She said she
understands that the goal of the legislation is to put a process
in place to satisfy the EPA. She said she would argue that the
EPA is out of line in commandeering the state and requiring
something, but that is another issue. She said she believes that
a much simpler version of the bill would meet the EPA's
requirement that the state have a policy in place.
4:11:54 PM
SENATOR GIESSEL offered Conceptual Amendment 1 as follows:
My conceptual amendment is simple, it would take on
page 1, line 11, it would cross out the word "law" and
it would substitute two words, "the legislature." The
line would read, "regulation, only by the
legislature."
Then, my conceptual amendment would go forward to
delete, page 1 lines 12-13, and page 2 lines 1-10,
leaving in place only subsection (c), "Water of the
state may not be managed as outstanding national
resource waster unless the water has been designated
as outstanding national resource way under (a) of this
section." and leaving in place section 2.
The conceptual amendment would clearly define that the
process will go through the legislature, but all the
other details, we need a more substantive discussion
and more legal information.
4:13:01 PM
At ease.
4:13:30 PM
CHAIR BIRCH called the committee back to order.
SENATOR COGHILL objected to Conceptual Amendment 1. He explained
that the amendment is substantive and should be introduced in
writing for further debate. He said he tended to agree with the
amendment, but the committee needs the written version as well
as giving other amendments a chance to come up for debate.
CHAIR BIRCH concurred with Senator Coghill.
SENATOR GIESSEL requested a written opinion from both the
Department of Law and Legislative Legal regarding whether the
bill is an allocation of state resources, an allocation of land,
and whether the process could be in fact done by regulation. She
asked that in addition to the written opinion that the
ramification from a "no recommendation" or a negative action
from the legislature saying no be explained as well.
4:14:38 PM
SENATOR GIESSEL withdrew Conceptual Amendment 1.
CHAIR BIRCH added that the committee will have an opportunity to
look at how the current water quality regulations are to be
integrated with the legislation.
SENATOR REINBOLD concurred with Senator Giessel that the
legislation is an appropriation.
4:15:16 PM
CHAIR BIRCH held SB 51 in committee.
SB 42-QUITCLAIM LAND TO UNITED STATES
4:15:30 PM
CHAIR BIRCH announced the consideration of Senate Bill 42 (SB
42).
4:15:53 PM
SENATOR COGHILL, sponsor of SB 42, provided an overview of the
bill. He opined that Native allotments have been a significant
issue for about 100 years and he considers it unfinished
business. He said unfortunately, the federal government has
conveyed land to Alaska that had a prior claim on it. The intent
of the legislation is to address the prior claim.
He said committee members will probably hear from the Department
of Natural Resources (DNR) that following the reconveyance
requirement exactly is hard. However, the requirement must be
addressed and if following the process cannot be done then what
is the first next step.
He explained that the bill starts with the fact that there was a
prior right supported by court cases. He noted that his staff,
Rynnieva Moss, will provide committee members with additional
details. He said the allotment issue came to him mainly because
he started researching the Homestead Act as a means of getting
more land into private hands. He continued as follows:
Many people got homesteads in Alaska and we tried to
say, "We should also do it as a state," they got 160
acres or whatever it was and at the same time we had
Native allotments; funny thing about that was Native
allotments were based on "already usage" in an area
and the Homestead Act was you've got to go "prove up"
in that area. All the Homestead Acts got approved and
very few of the Native allotments got approved, and it
was a BLM issue but then along comes the state. We get
statehood, we get selected lands, we selected, they
transferred them, and then oops, we've got a Native
allotment of a prior right on it. That's kind of where
we are at, that doesn't describe all the Native
allotments, but this is trying to right that the best
we know how, that's the general reason why.
4:18:11 PM
RYNNIEVA MOSS, Staff, Senator Coghill, Alaska State Legislature,
Juneau, Alaska, provided the sectional analysis for SB 42 as
follows:
• Section 1:
Powers and duties of the director of the Division of Lands
by mandating he or she quitclaim deeds "land or an interest
in land to the federal government after a determination
that the land or the interest in land was wrongfully or
erroneously conveyed by the federal government to the
state." Currently that director has permissive authority to
do so when land was wrongfully or erroneously conveyed to
the state.
• Section 2:
Exempts lands quitclaimed under Section 1 from AS
38.05.125, reservation of subsurface resource rights to the
State of Alaska. This would allow for mineral rights to
titled owners of Native allotments.
• Section 3:
Exempts the new provision pertaining to quitclaim deed to
the federal government from AS 38.05.125, restriction on
sale, lease or other disposals of agricultural land. This
eliminates the limitation on use of such land to
agricultural use.
• Section 4:
AS 38.05.035 makes quitclaim deeds to the federal
government when the land was wrongfully or erroneously
conveyed to the state a permissive actions. This statute is
repealed, and the quitclaim deed becomes mandatory under
Section 1.
MS. MOSS summarized that Section 1 requires the DNR to give a
quitclaim deed to the Bureau of Land Management (BLM) for lands
that were selected as Native allotments so that BLM can deed
that land to the rightful owner. The reason for the provision in
Section 1 is for the DNR to keep track of the fact that the
state is losing land selections amounting to 103 million acres;
so, the legislation would subtract those entitlements from the
103 million acres. She added that the state has actually over
selected by 25 percent and that allows for the changes proposed
by the legislation.
She detailed that section 2 reserves subsurface rights to the
original owner, the Native entitlement.
She explained that section 3 makes sure that the land from the
quitclaim deed is not used as agricultural land, that it is fee
simple land with all rights reserved.
She said section 4 repeals the current statute that says that
the department "may" and will be changed to "shall."
4:19:41 PM
She explained that the federal court decision in Aguilar v.
United States basically said that there was already a
preexisting title or right to that land when the BLM gave it to
the state under state selections. She said BLM should recover
and give that land to the rightful owner and if it takes
adjudication, BLM should sue the state to get that land back.
The federal court decision is very plain.
She said the committee will hear from DNR that there are
exceptions because some of the allotments are in the Trans
Alaska Pipeline System (TAPS) right-of-way. She noted that BLM
and DNR have signed a memorandum of understanding (MOU) that
would allow for land swaps with the allotment owners upon the
approval of the owner. However, in 1971 when the Alaska Native
Claims Settlement Act (ANCSA) was passed that repealed the 1906
Native Land Allotment Act there were 10,000 applicants with
16,000 parcels ranging from 40 to 160 acres. Currently, about
300 allotments are still pending.
MS. MOSS said DNR currently is transferring six to eight parcels
a year and the sponsor feels that the state can do a lot better.
4:21:21 PM
SENATOR COGHILL emphasized that the legislation is not to pick
on DNR; the intent is to "put the heat" under an issue because
the process has taken over 100 years. As a result, progeny from
15 different family groups have a claim on an allotment and the
members have a hard time even agreeing among themselves. He said
the state should facilitate an immediate allocation for the
family groups that can agree. He conceded that there are
subsurface rights on some allotments, but the rights would be
retained to those who would have it. He noted that there is
concern that the allotment involves Indian country. However, the
process is really a private land allotment that belongs to the
owners.
SENATOR KIEHL asked how the subsurface rights piece works in the
bill.
MS. MOSS explained that when the people claimed the land, they
had subsurface rights, whereas the state retains subsurface
rights when it owns the land. The bill lays out a process that
would allow the state to quitclaim deed the property back to the
federal government with subsurface rights. That acreage gets
written off the 103 million acres and BLM would title the land
to the original owner with all subsurface rights.
4:23:27 PM
SENATOR BISHOP asked her to clarify that the state's 103 million
acres stays whole and the allotment comes out of the
government's acreage.
MS. MOSS answered that is correct.
SENATOR KAWASAKI asked why the bill is needed. He opined that
the allotment should have already been done by DNR.
MS. MOSS answered that the law says that the allotment is
permissive, not mandatory. The bill says the allotment is
mandatory.
SENATOR KAWASAKI said the bill instructs DNR to do the
allotment, but he was unclear about the directive to the BLM.
MS. MOSS explained that the Aguilar court case said, "Not only
do you need to give this land back to the original owner, if you
can't get the state to do it you should go to court and sue the
state; they ruled that they should adjudicate this."
4:24:36 PM
CHAIR BIRCH opened invited testimony.
4:24:57 PM
DESIREE DUNCAN, Native Lands Manager, Central Council Tlingit
and Haida Indian Tribes of Alaska, Juneau, Alaska, testified in
support of SB 42. She detailed that Tlingit and Haida provides
Native Alaska trust services to 11 communities in Southeast
Alaska. They currently have approximately 20 title recovery
cases which includes villages that are not served by the Central
Council. The Native Alaskan applicants have been waiting for
over 50 years to get title to their land and most are deceased,
and their heirs are now waiting for what is rightfully theirs.
Right away the Homestead Act gave the land to non-Natives. SB 42
is a very important bill that will allow Native allotment
applicants to get the land that their ancestors applied for many
years ago.
4:27:02 PM
SHEILA NEKETA, Staff, Land Management Services, Bristol Bay
Native Association, Dillingham, Alaska, testified in support of
SB 42. She detailed that the Bristol Bay Native Association is
working on 36 pending Native allotments located on state
selected land, allotments that were determined valid by the BLM
but were erroneously and wrongfully conveyed to the state. She
asserted that the state refuses to reconvey the identified lands
back to BLM. She noted previous public testimony for similar
legislation from Bristol Bay participants in 2014 and asked that
the testimonies be included in support of SB 42. She said SB 42
is very important to the people in the Bristol Bay service-
provider area for what it means to themselves, their relatives,
and their subsistence lifestyle.
4:30:51 PM
ROBERT BREAN, Allotment Claimant, Anchorage, Alaska, testified
in support of SB 42. He explained that his mother is a recipient
of authorization from the federal government for a Native
allotment that she applied for in the mid-1960s. He opined that
a lot of the land was expedited in the interest of developing
the oil fields and getting a pipeline built. He said what the
federal government did not do was actively pursue surveying of
Native allotment parcels and finalizing the paperwork to
transfer Native allotment parcels to individuals. He summarized
that SB 42 will provide DNR with the leverage and legality to do
the right thing for Native allotments.
4:36:08 PM
MITCHELL ALLAN, Allotment Claimant, Fairbanks, Alaska, testified
in support of SB 42. He quoted a Native rights booklet that
leaned towards a positive action on Native allotments by saying,
"There is an immediate need for a fair and just settlement of
all claims by Natives and Native groups in Alaska." He added
that the booklet also says, "The settlement should be
accomplished rapidly with certainty without litigation." He
disclosed that he has been dealing with his Native allotment
claim since 1971, shortly before the law was repealed. He said
SB 42 will resolve his Native allotment issue.
SENATOR COGHILL commented that he hopes Mr. Allan ultimately
receives his allotment.
4:39:12 PM
MURRAY CLAYTON, Allotment Claimant, Fairbanks, Alaska, testified
in support of SB 42. He disclosed that BLM has determined that
his allotment application is valid, and BLM has asked the state
to reconvey his allotment to him. He said after 48 years his
hope is that for his allotment to come to a satisfactory
conclusion.
4:41:20 PM
MARTY PARSONS, Director, Division of Mining, Land and Water,
Alaska Department of Natural Resources, Anchorage, Alaska,
stated that the division is making a sincere effort to reconvey
lands to BLM for the purposes of certificating lands to the
noted Native allottees. He said previous testimony has made it
clear that reconveyance is important to the Native community of
Alaska. The division understands how important reconveyance is,
and the division takes the matter extremely seriously. The
division has taken some important steps to resolve the
conveyance transfers. The division recently entered into a
cooperative agreement with BLM to hire a dedicated staff whose
sole purpose is to focus on working on reviewing the conveyance
requests from BLM to reconvey lands and to help fulfill the
state's obligation under the federal program.
MR. PARSONS explained that the division is actively reviewing 12
files to see if they can be reconveyed. The division has 70
files where the division is waiting for additional information
from BLM before the division can continue its review. The
division has already reconveyed 282 parcels to the BLM for
certification to the allottees.
He said to provide the best opportunity for allottees to receive
the land that they have historically used, the division has
reopened over 100 cases that were previously closed or denied
for reconveyance. Many of the allotment files have been closed
because they were for lands that were affected by state pipeline
projects or because the lands were located within legislatively
designated areas (LDA). Earlier decisions were based on the
position that lands inside the LDAs were removed from the public
domain and cannot be made subject to the allotment application.
Through further and more detailed review of the enabling
language, the division found that such a strict interpretation
of LDAs may have been an error, so if the division reapplies
what is known as the "Relates Back Doctrine" which means if the
allottee had claimed the land prior to the LDA being put into
place, that provides the division with an opportunity to remove
the noted obstacles for reconveyance so that many of the
previously denied allotment applications are currently under
review for potential reconveyance. Similarly, a better
definition of the Alaska Natural Gas Pipeline Project also
allowed the division to remove other obstacles for reconveyance.
He disclosed that all reconveyances are subject to the public
process for the disposal of the state interest as indicated
under Article 8, Section 10 of the Alaska Constitution.
4:44:51 PM
He said the division has reviewed the current language of SB 42
and has prepared an indeterminate fiscal note. When the division
considers whether to approved BLM's request to reconvey parcels,
the division does a thorough review to see if there are any
third-party interest in the land, if it contains constructed
state infrastructure, or if it provides access to mineral or oil
and gas deposits.
He explained that an outcome of the Supreme Court's 1979
decision in Aguilar v. United States, currently the state can
enter into a settlement release agreement with the allottees to
make the conveyance subject to these interests. As written, SB
42 would change the law so that the only criteria necessary for
mandating that the state must reconvey parcels of land is
whether the conveyance to the state was made in error. Parcels
reconveyed under such criteria cannot be made subject to roads,
pipelines, transmission lines, historic access routes, or
recreational facilities constructed by the state, or other
easements required by law; if this infrastructure cannot be
protected, the state would have to provide a lease or right-of-
way from the allottee or the state would have to get the land
back from the allottee either by buying it or condemning it
through an eminent domain process. In addition, land sold
through auction or conveyed to the University of Alaska, Mental
Health Trust, or municipalities would need to be reacquired in
order to fulfill the request for conveyance. Under the current
SB 42, if a parcel was found to have been conveyed in error then
not only would the land itself but the subsurface mineral estate
would also be reconveyed back to the federal government. If the
mineral estate was found to contain "leaseables" or
"locatables," things like gold, coal, or oil and gas, the estate
would be split between the allottee and the federal government,
and the federal government would retain the mineral rights; this
would deprive the state with an opportunity for revenues that
would otherwise be retained by working with the surface
landowner under the current statute.
4:47:13 PM
MR. PARSONS explained that in addition to potential fiscal
concerns with HB 42 as written, there are concerns that the
passage of the bill will not significantly increase the speed of
which allottees receive their allotment certifications. BLM is
currently processing only five or six quitclaim deeds a year due
in large part because all the allotments require to have a field
inspection before BLM accepts the quitclaim deed. If the field
inspection shows that the parcel is contaminated, then
regardless of source, whether it is from the allottee or someone
trespassing on the allotment, BLM will reject the quitclaim deed
and the allotment will not be certificated. At the current rate
of five to six certifications a year, certification would take
more than three decades based on BLM's current inventory of
allotments to the allottees. He emphasized that the state of
Alaska and the division consider the reconveyance of the Native
allotments as a serious and important undertaking.
He summarized that the division has attained agreement with BLM
to provide funding for a position within the division's realty
services section that is dedicated to the review of active and
previously closed allotment cases as well as to reinterpret
previous impediments to the reconveyance of allotment parcels.
The division's staff is largely engaged with multiple service
providers to discuss difficult cases with the intent to find
resolutions that includes reconfiguring a parcel, to remove a
parcel from a potential piece of state infrastructure like the
Alaska Highway, or help identify a substitute parcel from the
state's selected lands. The division believes its allotment work
is a clear indication that the state is actively seeking to
increase the number of parcels to be conveyed and to fulfill the
federal commitment.
MR. PARSONS said another way the division can help to complete
conveyances of Native allotments is for the state to continue to
increase the land available for selections as substitute
parcels. As the ANCSA corporations complete their land
entitlement, more land identified by the state converts from
what's known as "top filing" or "future interest of the state,"
to "selected status" that becomes available for the state to
receive under its entitlement. Lands which are not identified
for the final 5.5 million acres of state land entitlement can be
made available for Native allottees to select as a substitute
parcel if the original parcels cannot be conveyed.
4:50:03 PM
He explained that there is 7.8 million acres of substitute
parcel land that the division has identified. The division
realizes that some of the substitute land is less than desirable
due to topography or lack of infrastructure, but as more lands
are converted into "selected status," the division is seeing an
increase in the pool of land that is desirable for the
allottees.
He reiterated that the state takes completion of the allotment
program very seriously and the division looks forward to working
with the sponsor to craft a path forward with respect to the
rights of the Alaska Natives so they can obtain their allotments
and to fulfill the federal allotment program as well as to
protect the state's interest.
SENATOR COGHILL thanked Mr. Parsons for providing the committee
with a clear idea of what is happening as well as detailing some
of the complexities of how the state must deal with
reconveyance. He said Aguilar v. United States probably came up
with a clear criteria and asked Mr. Parsons if the bill should
mirror the court decision's criteria.
MR. PARSONS answered that Aguilar v. United States provides a
process as well as a "thick book" that provides all the steps
necessary. He said the bill can mirror the case; however, the
division is actively working under the "may" language for
reconveyance to the federal government where the division has no
control over allotment cases reconveyed to the federal
government where cases may take years to certificate to the
allottees.
SENATOR COGHILL agreed that the state cannot make the federal
government do anything. He said he will work with the division
to find a better pathway forward with the bill's language. He
specified that his intent was to show the committee the
complexity with allotment as well as honoring the "prior right."
4:53:19 PM
SENATOR BISHOP asked if Mr. Parsons said it could take BLM 30
years to reconvey.
MR. PARSONS answered yes, at BLM's current rate of certifying
five to six allotments a year. He detailed that the division is
waiting for additional information on 70 parcels. He added that
the 12 parcels the division is actively reconveying will take a
couple of years. He said unfortunately because of the work
required by BLM before they can accept the state's quitclaim
deed, field research and time is required before land can be
reconveyed to the allottees.
SENATOR BISHOP said he will talk to Senator Coghill to address
the reconveyance.
SENATOR KIEHL asked how unresolved Native allotment land could
have ended up with state infrastructure and state easements. He
said his experience is that DNR does not let anybody do anything
on state land with a question mark on it.
MR. PARSONS answered that when ANCSA was passed, the allotment
program was closed, and many applications were passed to the
Bureau of Indian Affairs (BIA) or other agencies and then lost.
Lands continued to be conveyed to the state between the time
that the allotment program was closed, and Aguilar v. United
States was adjudicated. The allotments the division is working
on came to light, in many cases, after the state had already
received title but before the state knew that there was an
underlying allotment claim on the land.
4:56:38 PM
SENATOR GIESSEL referenced an allotment spreadsheet that Ms.
Moss provided to the committee. She noted that many of the
allotments are in national parks, national forests, and national
wildlife refuges. She asked Ms. Moss if the allotments in
federal park land makes the process more complicated.
MS. MOSS answered that she did not know. She opined there could
be an issue and noted that Congress just passed a Vietnam
veterans' allotment that listed exceptions to where lands could
not be selected that included the Arctic National Wildlife
Refuge (ANWR), national forest system land designated as
wilderness by Congress, military land, and inner-outer corridors
of right-of-ways such as TAPS.
SENATOR COGHILL opined that what the federal government said and
what Aguilar v. United States says, might give the state
instruction on how to create a way forward for the allottees who
may never be able to get the land based on some of the criteria,
but the allottees should get the opportunity to get some land.
He admitted that some of the allottees that he has spoken with
have indicated that they are not interested in a swap at the
beginning; however, if the allotment cannot be physically done,
there must be a pathway forward.
He summarized that he will work with DNR and some of the legal
teams that have talked about the legal structure under Aguilar
v. United States to figure out how allotments can be transferred
and creating a pathway with BLM to separate allotments that
there is no practical way to process.
MS. MOSS noted that Mr. Parsons described about 100 parcels that
have been denied in the past that would fall under the public
lands that are currently being reviewed for possible approval.
4:59:03 PM
CHAIR BIRCH held SB 42 in committee.
4:59:35 PM
There being no further business to come before the committee,
Chair Birch adjourned the Senate Resources Standing Committee
meeting at 4:59 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB42 Aguilar Cases in Alaska 2014.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Fiscal Note DNR-MLW 3.22.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Sectional Analysis Version A.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Sponsor Statement.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Tanana Chiefs Letter 3.22.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Version A.PDF |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB42 Aguilar v. U.S..pdf |
SRES 3/27/2019 3:30:00 PM |
SB 42 |
| SB 51 Version R 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Changes Version K to Version R.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 18 AAC 70.016.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 AFA Resolution 3.12.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Brenda Jones Letter 3.19.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Gerald Lapp Email 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Jessie Badger Letter 3.19.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Jim Clark Testimony 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Laura Stats Email 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Mickael Mackowiak Letter 3.19.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 SEACC Guy Archibald Testimony 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 SEACC Petition 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 SEACC Sarah Davidson Testimony 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 SEAFA Letter 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |
| SB51 Steve Winker Email 3.20.19.pdf |
SRES 3/27/2019 3:30:00 PM |
SB 51 |