04/01/2004 01:35 PM Senate TRA
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ALASKA STATE LEGISLATURE
SENATE TRANSPORTATION STANDING COMMITTEE
April 1, 2004
1:35 p.m.
TAPE(S) 04-14, 15
MEMBERS PRESENT
Senator John Cowdery, Co-Chair
Senator Thomas Wagoner, Co-Chair
Senator Gene Therriault
Senator Georgianna Lincoln
Senator Donny Olson
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 93(FIN)
"An Act relating to boating safety, registration, and numbering;
extending the sunset date of changes in ch. 28, SLA 2000; and
providing for an effective date."
MOVED SCSCSHB 93(TRA) OUT OF COMMITTEE
SENATE BILL NO. 382
"An Act relating to replat approval; relating to the platting of
right-of-way acquired through eminent domain proceedings; and
providing for an effective date."
MOVED CSSB 382(TRA) OUT OF COMMITTEE
SENATE BILL NO. 371
"An Act relating to the powers and duties of the Department of
Transportation and Public Facilities; relating to a long-range
program for highway construction and maintenance; repealing a
requirement that public facilities comply with energy standards
adopted by the Department of Transportation and Public
Facilities; and providing for an effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 93
SHORT TITLE: BOATING SAFETY, REGISTRATION, NUMBERING
SPONSOR(s): REPRESENTATIVE(s) WEYHRAUCH
02/12/03 (H) READ THE FIRST TIME - REFERRALS
02/12/03 (H) TRA, STA
02/18/03 (H) TRA AT 1:30 PM CAPITOL 17
02/18/03 (H) -- Meeting Canceled --
02/25/03 (H) TRA AT 1:30 PM CAPITOL 17
02/25/03 (H) Heard & Held
02/25/03 (H) MINUTE(TRA)
03/27/03 (H) TRA AT 1:30 PM CAPITOL 17
03/27/03 (H) Scheduled But Not Heard
04/01/03 (H) TRA AT 1:30 PM CAPITOL 17
04/01/03 (H) Moved CSHB 93(TRA) Out of Committee
04/01/03 (H) MINUTE(TRA)
04/02/03 (H) TRA RPT CS(TRA) NT 1DP 2DNP 2NR
04/02/03 (H) DP: HOLM; DNP: KOHRING, MASEK;
04/02/03 (H) NR: OGG, FATE
04/03/03 (H) STA AT 8:00 AM CAPITOL 102
04/03/03 (H) Heard & Held
04/03/03 (H) MINUTE(STA)
04/08/03 (H) STA AT 8:00 AM CAPITOL 102
04/08/03 (H) Moved CSHB 93(TRA) Out of Committee
04/08/03 (H) MINUTE(STA)
04/09/03 (H) STA RPT CS(TRA) NT 6DP
04/09/03 (H) DP: SEATON, GRUENBERG, HOLM, LYNN,
04/09/03 (H) DAHLSTROM, WEYHRAUCH
04/09/03 (H) FIN REFERRAL ADDED BEFORE RLS
04/14/03 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/14/03 (H) Heard & Held
04/14/03 (H) MINUTE(FIN)
01/22/04 (H) FIN AT 1:30 PM HOUSE FINANCE 519
01/22/04 (H) Heard & Held
01/22/04 (H) MINUTE(FIN)
01/29/04 (H) FIN AT 1:30 PM HOUSE FINANCE 519
01/29/04 (H) Moved CSHB 93(FIN) Out of Committee
01/29/04 (H) MINUTE(FIN)
02/02/04 (H) FIN RPT CS(FIN) NT 4DP 6NR
02/02/04 (H) DP: MEYER, FATE, FOSTER, WILLIAMS;
02/02/04 (H) NR: HAWKER, STOLTZE, JOULE, CROFT,
02/02/04 (H) CHENAULT, HARRIS
02/04/04 (H) TRANSMITTED TO (S)
02/04/04 (H) VERSION: CSHB 93(FIN)
02/06/04 (S) READ THE FIRST TIME - REFERRALS
02/06/04 (S) TRA, STA, FIN
03/25/04 (S) TRA AT 1:30 PM CAPITOL 17
03/25/04 (S) -- Meeting Postponed to 4/1/04 --
04/01/04 (S) TRA AT 1:30 PM CAPITOL 17
BILL: SB 382
SHORT TITLE: EMINENT DOMAIN/REPLAT OF BOUNDARY CHANGES
SPONSOR(s): TRANSPORTATION
03/31/04 (S) READ THE FIRST TIME - REFERRALS
03/31/04 (S) TRA, CRA
04/01/04 (S) TRA AT 1:30 PM CAPITOL 17
BILL: SB 371
SHORT TITLE: POWERS/DUTIES DOTPF
SPONSOR(s): STATE AFFAIRS
03/19/04 (S) READ THE FIRST TIME - REFERRALS
03/19/04 (S) TRA, FIN
03/30/04 (S) TRA AT 1:30 PM CAPITOL 17
03/30/04 (S) Senate Bill:
04/01/04 (S) TRA AT 1:30 PM CAPITOL 17
WITNESS REGISTER
Ms. Linda Sylvester
Staff to Representative Weyhrauch
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on HB 93 for the sponsor.
Ms. Sue Hargus
Coast Guard
Juneau AK
POSITION STATEMENT: Commented on HB 93.
Mr. Jeff Ottesen
Department of Transportation &
Public Facilities
3132 Channel Dr.
Juneau, AK 99801-7898
POSITION STATEMENT: Supports SB 382 and SB 371.
Mr. Peter Putzier
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 382.
Senator Gary Stevens
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 371.
Ms. Susan Yurig
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 371.
Mr. Mark Hickey
Lake Peninsula Borough
Juneau AK
POSITION STATEMENT: Supports SB 371.
ACTION NARRATIVE
TAPE 04-14, SIDE A
CO-CHAIR THOMAS WAGONER called the Senate Transportation
Standing Committee meeting to order at 1:35 p.m. Present were
Co-Chairs Cowdery and Wagoner, Senators Olson and Lincoln.
Senator Therriault arrived at 1:45. The first order of business
to come before the committee was CSHB 93(FIN).
CSHB 93(FIN)-BOATING SAFETY, REGISTRATION, NUMBERING
REPRESENTATIVE BRUCE WEYHRAUCH, sponsor, asked the committee to
reject the two amendments that were proposed at the last hearing
saying that adhesian of the sticker could be dealt with
technically and the other amendment with another exemption
really wasn't necessary.
1:40 - 1:44 - at ease
CO-CHAIR COWDERY moved to adopt Amendment 1.
23-LS0230\S.2
Luckhaupt
12/14/04
A M E N D M E N T 1
OFFERED IN THE SENATE
TO: CSHB 93(FIN)
Page 2, line 12, following "boat":
Insert "operated on the freshwater lakes and inland
waterways of the state that is under 17 feet in length and"
SENATOR OLSON said Amendment 1 addresses the Coast Guard's
concern about motorized vehicles, but wanted to know why it
addressed fresh water lakes only. He said this amendment relates
to hand-crafted umiaqs with walrus skin coverings and, "Between
Diomede and Wales, you're not going to be up there rowing with a
current at 3 to 5 knots."
CO-CHAIR WAGONER asked for a roll call. Senator Olson, Co-Chair
Cowdery and Co-Chair Wagoner voted yea; Senator Lincoln voted
nay.
CO-CHAIR COWDERY moved to rescind the vote, as Senator
Therriault just arrived.
CO-CHAIR WAGONER noted for him that the sponsor's statement said
Amendment 1 wasn't necessary.
CO-CHAIR COWDERY moved Amendment 1 again.
SENATOR OLSON said his main concern is that:
I want to make sure that if someone has a canoe out
there that - maybe they use it only once in the last
10 years, but I want to make sure they have the
liberty to go ahead and use that for whatever
necessary.... If something starts to drift away and
they have an emergency on their hands... and someone
comes up and says that you've got a canoe that's not
registered. I've got a problem with that.
SENATOR LINCOLN directed the committee to page 2, line 12, which
exempts boats that are not equipped with mechanical propulsion.
Adding the amendment might make the language more cumbersome.
CO-CHAIR WAGONER asked for the roll call vote. Senators Olson,
Therriault, Lincoln and Co-Chair Wagoner voted no; Co-Chair
Cowdery voted yea; and Amendment 1 failed.
SENATOR OLSON moved Amendment 2. He thought putting decals on
umiaqs was shortsighted. That is why he asks that all native
crafts with animal hide coverings be exempt.
23-LS0230\S.1
Luckhaupt
12/14/04
A M E N D M E N T 2
OFFERED IN THE SENATE BY SENATOR OLSON
TO: CSHB 93(FIN)
Page 2, line 21, following "government":
Insert ";
(6) a handmade umiaq with a walrus or sealskin
covering"
SENATOR LINCOLN said she strongly supported Amendment 2.
MS. LINDA SYLVESTER, staff to Representative Weyhrauch, said the
problem with the amendment is that currently the federal
standard is that any boat equipped with motorized propulsion has
to be registered. Amendment 2 would be violating the federal
standard; Alaska would lose motor fuel taxes coming into the
state and its boater safety program that they fund.
SENATOR LINCOLN asked if she knows for sure that the state would
lose the boater safety funding with that single exemption.
MS. SUE HARGUS, Coast Guard, explained that one of the few
federal requirements is that within the boating safety program
the state provide for registration. This has been very
contentious for some reason in Alaska. Registering umiaqs with
motors is still required under federal law even if state law
exempts them. The intention of the law is that if the umiaq
washes up on some shore a hundred miles away, the Coast Guard
knows who to look for.
SENATOR THERRIAULT explained the reason to have a registration
attached to a vessel is because motorized vessels can travel a
great distance. He asked how many search and rescue efforts the
Coast Guard performs in western and northern Alaska.
MS. HARGUS replied since 1990, the Coast Guard has spent a
couple of million dollars searching for boats on the northwest
coast.
SENATOR OLSON asked if the state would lose all of the
approximately $350,000 for an exemption like this.
MS. SYLVESTER answered that the program has to match the federal
minimum requirements. She related an anecdotal story about how
this situation happened in Montana.
SENATOR OLSON said he found it hard to rationalize that people
have been paying a gas tax of three to four percent to fund that
program and then the federal government puts stipulations on
getting the money back. He also noted that they are just
discussing extending a sunset, not passing a new law.
MS. SYLVESTER explained that they are changing existing law that
includes all paddleboats that are over 10 ft. The first uprising
about this bill came from Fairbanks where it didn't make sense
to register paddleboats.
SENATOR LINCOLN asked if there isn't a federal helmet law and
Alaska was threatened for years if it didn't pass a helmet law
it would lose some DOTPF federal dollars.
SENATOR THERRIAULT responded that Alaska is in compliance with
that federal requirement where a passenger on a motorcycle is
required to have a helmet. The federal law doesn't require a
driver to have one.
SENATOR LINCOLN pointed out that the umiaq is unique to Alaska
and that just because the federal government requires it doesn't
mean that Alaska needs to jump.
CO-CHAIR WAGONER responded that the helmet law was passed and it
requires anybody 18 years old or under who is riding a
motorcycle to wear a helmet. Once you get to be 18, you can take
your chances. Secondly, a bill just passed on seatbelt
requirements with the same stipulation. He personally has a 26
ft. fiberglass boat that looks like an umiaq and he is required
to have identification on it if he uses it on the water.
It is very important for the Coast Guard to have the
ability to either track or identify floating debris or
an abandoned vessel or a sunken vessel. In my case
they do it electronically with a beeper. I don't know
why it is so important that you don't put an
identification plaque on the seat....
SENATOR OLSON said the people who are sitting in an umiaq are
not sitting on seats that are attached to the frame of the boat.
"They are sitting on cans and things like that because it's cold
and wet." Putting a sticker onto something like fiberglass will
stick, but putting a sticker onto a skin that is not completely
cured - which they aren't so that the oil provides waterproofing
- it's going to shed the decal. He suggested a conceptual
amendment to Amendment 2 to add "nonmotorized umiaqs".
MS. HARGUS said that would be acceptable to the Coast Guard.
CO-CHAIR WAGONER said it would be okay with him.
SENATOR OLSON formally moved the conceptual amendment to
Amendment 2. There were no objections and it was amended.
CO-CHAIR WAGONER asked if there were any further objections to
Amendment 2 am. There were none and it was adopted.
CO-CHAIR COWDERY moved to pass SCS CSHB 93(TRA) from committee
with individual recommendations. There were no objections and it
was so ordered.
SB 382-EMINENT DOMAIN/REPLAT OF BOUNDARY CHANGES
CO-CHAIR WAGONER announced SB 382 to be up for consideration.
2:15 - 2:17 - at ease
CO-CHAIR COWDERY moved to adopt the CS to SB 382, version /D.
There were no objections and it was so ordered.
MR. JEFF OTTESEN, Department of Transportation and Public
Facilities (DOTPF), said that two lawsuits have erupted using
the same legal argument, both regarding bonded projects that
voters approved two years ago. If the lawsuits are upheld by the
courts, it has the potential to shut down and delay projects all
across the state.
The issue before you is a statute that has been on the
books for a long time - since '75. It's never been
litigated before until now. AS 09.55.275 requires the
platting authority, which is basically borough or city
governments, to require the state, on a condemnation
related lawsuit, to go through that plat as if it were
a private landowner. Inherently, a replat involving
condemnation is going to be different than a replat
that's done voluntarily... By it's very nature
condemnation is not a voluntary act. You can't get the
landowners to put a signature on the application for
replat. They are simply not ready to do that; they're
in no mood to do that. The argument being held up in
the courts is that we have to go through exactly the
same procedure as a voluntary subdivision.
To give you some idea of the magnitude of the problem
- the project at Kenai River, Soldotna, that is slated
to go to construction this summer - is now in
litigation. We think it will be held up. The C Street
extension in Anchorage would also be held up; it's in
litigation. The North Pole interchange in Fairbanks,
our right-of-way staff believe is at risk. Even a
project in Bethel - about a year ago the city attorney
saw this conflict and had the Bethel City Counsel pass
an ordinance that exempted that particular project...
so this can be a rural problem as well.
SENATOR LINCOLN asked how the CS is different from the original
bill and how does it prevent further litigation.
CO-CHAIR COWDERY explained the original bill was just a
beginning and that further DOT research provided the update.
MR. OTTESEN said the intent of the earlier draft has not
changed, but the language is better.
MR. PETER PUTZIER, Department of Law (DOL), said that most of
the changes were in style and he reviewed those.
In a real nutshell, AS 09.55.275 has a sentence that
says that the platting authority typically in a
municipality shall apply the standards in the same
manner between DOTPF and private landowners. The
conflict or the problem is what "in the same manner"
means. The argument is being made in court that
essentially in '75 there's a legislative intent to put
what I would describe as a legislative straight jacket
on municipalities to require a particular
procedure.... For instance someone who wants to
subdivide property and a right-of-way acquisition -
the two proceedings as Mr. Ottesen pointed out - a
right-of-way acquisition is quite a different animal
than what goes on with respect to your typical
subdivision....
SENATOR THERRIAULT asked if the 1975 language actually said
there would be one uniform standard.
If we fix this problem for DOTPF, do the
municipalities still have a problem that they've got a
variety of standards... or are we fixing it for DOTPF
and the municipalities at the same time?
MR. PUTZIER explained that the fix intends to say that
municipalities can apply a variety of standards in their
discretion to how they want to treat the requests for replat
approval. The legislature is not demanding a particular process,
but is giving local governments discretion to deal with it in a
variety of ways.
SENATOR THERRIAULT asked if the state and a private landowner
have to go through the same process to subdivide and sell under
this bill.
MR. PUTZIER said that would be a different analysis. Section 3
only applies this bill to right-of-way acquisitions only.
TAPE 04-14, SIDE B
CO-CHAIR WAGONER asked if these projects had been on the books
for 10 years or more and if someone is trying to obstruct them.
MR. PUTZIER replied with an explanation of the process. When
DOTPF is unable to come to an agreement with a particular
landowner, the project will file a condemnation action. The
landowner then has the right to file an authority and necessity
challenge, which says the DOT didn't follow the steps it was
supposed to and, therefore, can't take the property.
SENATOR LINCOLN asked if this legislation is retroactive, would
that help communities go forward with their projects.
MR. PETZIER replied that both cases are in Superior Court now.
One has an oral argument scheduled for next week and a decision
could come out at any time; the other one has yet to be
scheduled for briefing and argument. This legislative
clarification would be presented to the court as additional
evidence as to what legislative intent was. "Our hopes is that
both of the lawsuits would be defused...."
SENATOR OLSON asked if this bill passes, how will the public be
protected from the government acting as a bully to go ahead and
take property that may have been in a family for centuries or
property that most people would want to stay were it is.
MR. PUTZIER answered that the eminent domain process has stood
on its own for years. It has a myriad of restrictions and hoops
that DOTPF always has to jump through - a design process with
public notice and an environmental process with public notice.
The municipal role is to have input. "This isn't in any way
diminishing existing eminent domain rights that are already on
the books and followed by DOTPF."
SENATOR OLSON wanted to make sure that a public individual who
has to hire an attorney to represent him is protected against
eminent domain proceedings that may being used unduly against
him.
MR. OTTESEN reiterated that eminent domain is a very heavy-
handed power of government. Consequently, both state and federal
law heavily regulate the application of that power. He spoke
with the right-of-way chief in the northern region who was in
the department when this was passed in 1975 who said that DOT
was being heavy handed with its replats at that time. It was
taking property; it wasn't filing the paperwork with local
governments or replacing monuments and property stakes that were
officially installed by registered land surveyors. The analysis
was a reaction to the wrongs of the department 30 years ago. "We
don't want to do away with those protections...."
SENATOR OLSON said his last concern is if there is any
resistance from the municipalities on the proposed legislation.
MR. OTTESEN replied that this legislation literally started 10
days ago and this is its first public hearing.
CO-CHAIR COWDERY moved to pass CSSB 382(TRA) from committee with
individual recommendations and accompanying fiscal note and
asked for unanimous consent. There were no objections and it was
so ordered.
2:45 - 2:47 - at ease
SB 371-POWERS/DUTIES DOTPF
CO-CHAIR WAGONER announced SB 371 to be up for consideration.
SENATOR GARY STEVENS, sponsor, said this bill cleans up an
obsolete statute at the request of the DOTPF and Attorney
General. An Executive Order (EO) created an Alaska
Transportation Council in the 1970s, which directed the DOT
commissioner to consult with the council on all transportation
projects, but the council never was appointed. The state is not
complying with this old statute and it could be the basis for
litigation. SB 371 amends the statute and makes it retroactive
as well. Other changes allow the commissioner to study
alternative fuels for use in state vehicles and changes annual
requirements to periodic, which will allows the commissioner
discretion in choosing sensible times.
SENATOR LINCOLN asked what projects are being held up because of
litigation on this issue.
SENATOR GARY STEVENS answered the Iliamna bridge project is
being held up for one.
MR. OTTESEN elaborated that the EO became law years ago when the
legislature did not take action to keep it from becoming law -
by default. It never underwent an approval process. The bridge
lawsuit has three issues: the council was not formed, DOTPF
didn't consider cost and benefits at the time the project was
selected and that the project was baselined [this project was
treated as on-going in the Southwest Alaska Transportation Plan
and it shouldn't be subject to additional planning]. The court
found in favor for the state on two of those arguments - having
no council and baselining, but the cost and benefits had to be
fully evaluated. He explained that the department didn't feel at
that time that rural projects would ever measure up to urban
projects if they were measured by the same test, simply because
rural projects serve far fewer people. Rural and urban projects
didn't have the same set of questions on the department's
scoring criteria. This is the fault the court found.
The department is backing up in its Southwest Transportation
Plan and selecting this bridge and one other that was also under
construction. It is reconsidering costs and benefits for both
projects, which will cost about $50,000.
Our fear is that this particular legal theory, which
now has been upheld by the courts, can be used on many
other projects, including projects that are under
construction right now, projects that are in the
design pipeline and will soon be under construction.
He explained that his major concern was that selecting only the
most cost effective projects would leave out all rural projects
and would make 40 percent of Alaska's population transportation
orphans.
SENATOR LINCOLN said she didn't want to see the state without
performance standards for rural Alaska facilities in reference
to language on page 3, line 24.
MR. OTTESEN answered that years ago the department was the
architect of school district facilities in rural Alaska, but
authority was transferred typically to the local governments,
rural education attendance areas or boroughs 15 years ago.
SENATOR LINCOLN said that thankfully there were not a lot of
boroughs out there, but she didn't know if anyone was identified
as the responsible party to accomplish what the bill is
deleting.
MR. OTTESEN replied that he understood her concern, but the bill
before the committee is truly housekeeping and isn't at the
heart of what the department is doing to try to save rural
transportation projects. "We're really concerned about the cost
and benefit language and how that may be applied to projects all
across the state."
SENATOR THERRIAULT asked if the same result could be
accomplished by just passing a letter of intent with the
legislation.
MS. SUSAN YURIG, Department of Law (DOL), said that the language
in the bill protected regulations from being exposed.
SENATOR LINCOLN moved Amendment 1 to reinsert the deleted
section on page 3, line 24, through page 4, line 19. The sponsor
didn't object. There were no objections and it was so ordered.
MR. MARK HICKEY, representing the Lake and Peninsula Borough,
supported SB 371 and said the focus of the lawsuit is on a
project that has been this borough's number one priority for
over 10 years. It completes a road connection between three
communities that has tremendous benefits in terms of saving
transportation costs and lives. He said the goal of the
Executive Order was to give DOT a strong presence working on
public facilities. After the change in planning authority, the
department has not had the facilities technical expertise for
the last 15 years. It has had all federally funded and no state
funded projects.
CO-CHAIR WAGONER commented that often the cost benefit analysis
overshadows issues of loss of life and safety and the socio-
economic impact of a project. "I think that should have just as
much weight as the cost benefit analysis in some cases."
MR. JEFF PARKER, representing Bob Gillam and Trout Unlimited
presented the other side of the issue, which is whether a cost
benefit analysis needs to be present in statute for all projects
or amended. He said this legislation would not block every
project under construction, because the requirement to consider
cost and benefits applies only to new projects.
The second issue is that the current statute does not require a
positive cost benefit ratio; it only requires the department to
consider it. He referenced attachment D in his letter, the
Southwest Regional Transportation Plan that gives the cost
effectiveness data on five proposed projects in the Lake and
Peninsula Borough, and it shows the Williams Port to Pyle Bay
road coming out as paying for itself. He asked the committee why
a project like Iliamna Nondalton should be funded, with a cost
benefit ratio of 0.26 instead of a project that comes out with a
favorable cost benefit ratio.
He said there has been only one reported fatality in the last 15
years of someone drowning in the Nondalton area. The state
trooper's report on that fatality says a snow machine went
through the ice and the driver was inebriated. There is no
evidence that the person was trying to cross the river from
Nondalton to Iliamna. Mr. Ottesen conceded that was the only
death. A much more effective use of dollars from a safety point
of view would be to build a bridge between old and new Naknek.
I am convinced you will end up funding projects that
will not be well justified if you abandon this
requirement from state law. It simply makes sense,
particularly in times of budgetary constraint....
He referred the committee to section (1)(b) of the bill that
affirms the validity of the State Transportation Planning
process and asked, "Affirmed with respect to what?" He didn't
think that question was answered at all. Further, he pointed out
that Mr. Hickey was commissioner when portions of that money was
spent, but the project didn't get completed before his successor
found that it was economically unjustified. "If you want to
continue that process of wasting money on poorly justified
projects, then go for the bill."
TAPE 04-15, SIDE A
MR. PARKER noted copies of cost benefit analysis that he had
sent the committee and asked if it didn't make sense for the
department to have that kind of information.
CO-CHAIR WAGONER said he just received the information today and
wanted to hold the bill for further review. There being no
further business to come before the committee, he adjourned the
meeting at 3:35 p.m.
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