Legislature(2013 - 2014)BUTROVICH 205
03/11/2014 01:30 PM Senate TRANSPORTATION
| Audio | Topic |
|---|---|
| Start | |
| SB211 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 211 | TELECONFERENCED | |
| += | SB 178 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE TRANSPORTATION STANDING COMMITTEE
March 11, 2014
1:36 p.m.
MEMBERS PRESENT
Senator Dennis Egan, Chair
Senator Fred Dyson, Vice Chair
Senator Anna Fairclough
Senator Click Bishop
Senator Hollis French
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 211
"An Act providing for the Department of Transportation and
Public Facilities to hold the surface estate of certain state
land; relating to the transfer of certain state land and
materials; relating to the lease, sale, or disposal by the
Department of Transportation and Public Facilities of rights-of-
way, property interests, or improvements; relating to the grant
of certain easements over submerged state land to the federal
government; relating to the conveyance of land for right-of-way
purposes from the Alaska Railroad Corporation to the Department
of Transportation and Public Facilities; and providing for an
effective date."
- HEARD & HELD
SENATE BILL NO. 178
"An Act relating to the application of the passenger vehicle
rental tax; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 211
SHORT TITLE: STATE LAND AND MATERIALS
SPONSOR(s): TRANSPORTATION
03/07/14 (S) READ THE FIRST TIME - REFERRALS
03/07/14 (S) TRA
03/11/14 (S) TRA AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
DANA OWEN, staff to the Senate Transportation Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 211.
JOHN BENNET, Chief
Northern Region Right of Way
Department of Transportation and Public Facilities (DOTPF)
Juneau, Alaska
POSITION STATEMENT: Answered questions about SB 211.
SEAN LYNCH, Attorney
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Answered question about SB 211.
DICK MYLIUS, representing himself
Anchorage, Alaska
POSITION STATEMENT: Urged the committee to reject or
significantly revise SB 211 as this legislation does not protect
the public interest on state lands.
ACTION NARRATIVE
1:36:29 PM
CHAIR DENNIS EGAN called the Senate Transportation Standing
Committee meeting to order at 1:36 p.m. Present at the call to
order were Senators Dyson, Fairclough, Bishop, French, and Chair
Egan.
SB 211-STATE LAND AND MATERIALS
1:36:41 PM
CHAIR EGAN announced SB 211 to be up for consideration.
1:37:16 PM
DANA OWEN, staff to the Senate Transportation Committee, Alaska
State Legislature, Juneau, Alaska, explained that they were
asked by the Department of Transportation and Public Facilities
(DOTPF) and Department of Natural Resources (DNR) to introduce a
bill to clarify ambiguity in AS 02, AS 35, and AS 38. The first
two put DOTPF in charge of state lands for transportation
infrastructure and public facilities; Title 38 puts DNR in
charge of state lands generally.
He said this bill intends to clear up perceived conflicts
between the different titles and to improve efficiency without
sacrificing any public input. It also clarifies the rules for
disposals when DOTPF no longer needs a piece of land for public
purposes. The map he passed out to each of them was the map
reference in the SAFT-LU Act of 2005, which details all of the
parcels affected by section 16 of this bill.
1:39:15 PM
JOHN BENNET, Chief, Northern Region Right of Way, Department of
Transportation and Public Facilities (DOTPF), Juneau, Alaska,
explained that SB 211 changes the relationship between the DOTPF
and the DNR with respect to the acquisition, management and
disposal of lands they require for airports, highways, and
public facilities. Considering that 30 percent of the land in
Alaska is owned by the state, one can imagine that they often
need to acquire them for the materials for building public
facilities and other projects. He said the bill repeats itself
three times because they are essentially applying the same three
primary provisions to all of their authorities.
Essentially the first major provision clarifies that the DOT
holds the primary authority to manage the surface estate of its
facilities. This relates to the existing rights-of-way for
highways, airports and public facilities, which clears up an
ambiguity in the law that broadened the question sometimes: who
had the lead management role of Alaska lands: the DOTPF or DNR.
The second primary provision of the bill is that three separate
statutes across their authorities deal with the disposal of
lands that have been deemed excess to the department's needs,
but they all have slightly different language and in some cases
result in unintended consequences. So, this bill will provide
uniform language across the three different authorities.
He explained that the combination of the first two provisions,
the disposals and the one that vests surface estate in DOTPF,
will actually go to solve some problems that adjoining land
owners have had when they have accidentally encroached into the
state's right-of-way. For example, some structure was built in a
highway easement that DOTPF manages and owns; so they said it
could be resolved by vacating the easement, but then they found
out that DNR owns the underlying fee estate. So, effectively all
they have done is transfer the problem to DNR, and sometimes
their rules make it difficult to resolve. With the two
provisions, DOTPF would be able to unilaterally deal with
resolving these types of problems.
1:42:21 PM
The third general provision goes to the acquisition of new lands
from DNR for airports, highways, and public facilities. This is
modeled on their exiting procedure for acquisition of federal
lands (BLM and Forest Service lands) for the state's federal aid
highway projects. The process provides that Federal Highways has
the authority to appropriate BLM and Forest Service lands that
are necessary for these projects. They give the agencies four
months to comment, and if they haven't made the transfer in that
time they will execute the deed to the state of Alaska, a very
efficient process for acquisition of lands. That is what they
want their relationship with DNR to be.
Beyond that there is another DNR provision in that they also
need to acquire materials (sand and gravel) for virtually all of
their projects. The process now is complex in that the DOTPF
contracts with DNR to acquire the materials (paying for them)
currently. The contracts have limited terms and limited
quantities; the result is that they are constantly lapsing,
requiring reauthorizations that delay their projects. This new
provision will recognize that the state-owned materials are
appropriate to be used on state-owned infrastructure by a state-
owned entity like DOTPF. It makes sense to allow DOTPF to access
these state material sites without going through the contracting
process.
1:44:33 PM
MR. BENNET said the bill has a few other provisions; one has to
do with the Alaska Railroad (ARRC). From time to time, primarily
on large capital improvement projects (CIP), DOTPT needs to
acquire a piece of land from the ARRC and they need to acquire
it in fee. It cannot transfer title without legislative
approval. They believe this to be an unintended consequence in
that while the legislature may have wanted to have controls on
the Railroad divesting its interests, they did not intend to
delay public projects by having a transfer to DOTPF fall under
the same umbrella. So, this provision would just allow this
transfer of title from the Railroad to DOTPF for public
transportation projects and would not require approval of the
legislature for that transfer.
1:45:40 PM
Another section transfers the Happy Valley and Franklin Bluffs
Camps, the old TAPS properties from DNR to DOTPF. DOTPF applied
for these sites 20 years ago recognizing they were needed for
the maintenance and operations of the Dalton Highway and in
anticipation of enhanced resource development and construction
of the gas pipeline. They have been unsuccessful in obtaining
the transfer of these lands because they were also selected by
the North Slope Borough as part of the Municipal Entitlement
Program. But because of competing interests, neither party has
received title to the lands.
Their point of view is that these lands are public lands
necessary for public purposes, and that should have priority
over competing municipal entitlements. He estimated a third to a
half of the municipal entitlement lands will remain available
for transfer to the North Slope Borough.
1:47:13 PM
The final provisions have to do with reciprocal easements
between the State of Alaska and the Forest Service in Southeast.
1:47:27 PM
SEAN LYNCH, Attorney, Department of Law (DOL), Juneau, Alaska,
explained that the reciprocal easements in the two federal
highway bills back Section 44.07 of SAFT-LU enacts a reciprocal
exchange of easements: the State of Alaska received 19 highway
and utility easements across the Tongass National Forest and in
exchange the federal government received just over 100 submerged
land easements for log transfer facilities, to their
recreational sites and trail heads. The state and federal
government have since exchanged easements, but because of DNR's
present regulations, the state easements that were transferred
to the federal government have a 55-year limitation. So, the
Forest Service has placed a 55-year limitation on the state's
highway and utility easements. The state is preparing to
develop, and some are close to construction, and the Forest
Service has assured us if we removed our 55-year limitation on
their state easement over submerged lands they will do the same.
So, Section 16 would allow the DNR commissioner to remove the
55-year limitation upon his finding that it's in the best
interests of the state.
SENATOR DYSON asked what questions he anticipates critics could
raise about this.
1:50:29 PM
MR. BENNET answered the one provision that had the most concern
was the one to transfer the Happy Valley and Franklin Bluffs
sites to DOTPF, even though he believes strongly that it is most
important they are reserved for public purposes. Clearly they
are competing with the North Slope Borough for those lands and
so, he would expect some concern on their part.
Also, the focus of bill is on relationship with DNR. He had a
hard time understanding why they have such a complex process
that allows the state to use state-owned property for state-
owned facilities. He wasn't sure where they would get criticism
for creating efficiency.
SENATOR DYSON said folks think of DNR as the steward of a lot of
public land and public resources and here they are transferring
land to the organization that builds things. So, they perhaps
taking land from a more protected source and putting it into the
exploiters and that it is a backdoor way to getting at mining a
lot of gravel and a lot of the public process gets missed. And
who knows if the feds will reciprocate on the 55-year deal.
Somebody will think their ox got gored, and where was the public
hearing process. In streamlining, you've cut the public out of
the deal. Does the North Slope Borough know this bill is going
through?
MR. BENNET answered he didn't think so.
SENATOR DYSON said it would seem that they would be interested.
MR. LYNCH said the reason this bill was introduced so late is
because they worked through every possible angle with DNR. He
was right that DNR at its heart is a conservation department,
and its decision to do nothing is a safe decision. But for one
thing this bill only addresses the transfer of public domain
land - the general multi-purpose lands of the State of Alaska.
DNR also manages school lands, Mental Health Trust lands,
preserves, critical habitat areas, all of which are single
purpose government sites, and none of those lands are affected
and none of them could be transferred under this bill. This bill
would only transfer the multiple use sites.
Most of DOTPF's work is modifying existing facilities:
lengthening airports, straightening curves on roads, and that
type of thing. Most of the acquisitions are small strips of
land, including most of its disposals. When they are done
lengthening an airport and need to dispose the other end of the
airport, there are small parcel disposals.
People might be concerned about the large projects like the road
to Nome. In large parcels this act only exempts DOTPF from the
Alaska Lands Act, 38.05, provisions. DNR does its land
classifications through 38.04. So, any type of new designation -
the road to Nome is a great example - if the DOTPF wants to plan
a road to Nome it has to go through that land classification
with DNR. So, there is still an entire public process in that
classification to set up that right-of-way. Once the legislature
has funded construction is when they can go through this
acquisition process. Even the exchange of land under this bill,
the four-month exchange does have a public notice provision. It
becomes a DOTPF engineering decision; they basically set the
center line of their ports or highways and the right-of-way
parameters are set by regulation or law. DOTPF posts that on the
public notice system, like any other state decision and it's
open to challenge. These aren't secret no public process deals.
1:57:08 PM
SENATOR FRENCH asked if this bill changes any permitting
requirements for activities to take place on the involved land.
MR. BENNET asked if he was referring to the case of the Happy
Valley and the Franklin Bluff transfer where there are existing
leases and permits.
SENATOR FRENCH answered that he meant more globally.
SENATOR DYSON interrupted to clarify his point saying that
permitting for DNR is pretty tough. The land and the
responsibility come to DOTPF and their reduced permitting
process.
SENATOR FRENCH said this bill became controversial because it
has a huge effect on permitting and they are being sensitive to
that. Are there some lurking issues around permitting?
1:58:53 PM
MR. BENNET said it's different. All the permitting regulations
and statutes that DNR operate under once they transfer the land
won't apply to DOTPF, because DOTPF has its own authorities for
permitting within highways and airports and such, and in most
respects, those permitting constraints are through the federal
funding agencies and they really crack the whip with compliance.
Permitting processes are available for those for different types
of things: in highways it may be signs and driveways, at certain
encroachments. DOTPF has permitting processes but they are just
different.
MR. LYNCH said Mr. Bennet just explained the DOTPF permitting;
the DNR permitting (addressed in section 1, the airport
provision that repeats itself in highways and public facilities
in sections 6 and 9. Page 2, line 3, clearly states that DNR
retains its entire permitting authority upon the terms and
conditions of DOTPF. So, if there is a mineral exploration or an
oil and gas exploration lease and it goes for an entire tract
that includes part of the airport, that permit will stay.
Nothing in this Act would change that permit, but if they wanted
to drill at the end of the runway, under this Act, now DOTPF has
primary authority for the end of the runway, so they need DOTPF
height restrictions for operations of the airport, and DOTPF
would condition the permit in that way.
2:01:16 PM
SENATOR BISHOP said they have to permit highways with federal
funds the same way as always and there are over 40 permits, both
federal and state, that DOTPF has to jump through before they
can execute the project. So, that's a load right there. It's
interesting that we are copying federal law for a change. The
TAPS corridor material sites will have to be extended, and this
bill would streamline that?
MR. BENNET answered yes; this bill would streamline the process
for material sites on DNR lands.
2:03:34 PM
SENATOR BISHOP said he was familiar with Happy Valley and
Franklin Bluffs and he knew there were operators working out of
there with aircraft and guide pack horses and would they be
afforded the same courtesies they have now?
MR. BENNET answered yes; they recognize the existing DNR permits
and leases there and the bill provides that those will be
transferred over to the airport leasing program who are very
familiar with permitting those types of activities.
2:04:32 PM
DICK MYLIUS, representing himself, Anchorage, Alaska, urged the
committee to reject or significantly revise SB 211 as this
legislation does not protect the public interest on state lands
and section 16 may be unconstitutional. As background he said he
had worked in the DNR's Division of Mining, Land and Water for
29 years where he dealt with many of the issues in this bill and
agreed that state land should be used whenever possible to meet
the transportation facility needs of Alaskans and that the
process to transfer state land from DNR to DOTPF is sometimes
cumbersome. He was also aware that DOTPF is sometimes troubled
by DNR decisions regarding land and the conditions DNR may
attach to the land.
However, this legislation removes any discretionary ability by
DNR to address public concerns, competing resource interests,
and even some valid claims by other parties to the land in
question. The bill says what DOTPF wants DOTPF gets: if DOTPF
asks the commissioner of DNR to transfer a parcel of state land
for an airport, road, gravel pit, or other use, DNR will
transfer the land within four months. The language in Sec. 3, 5
and 8 all say DNR "shall" transfer these lands that are selected
by DOTPF. This includes gravel or other materials on state land.
This a problem because state land isn't just for transportation
uses, and sometimes sites selected by DOTPF have prior competing
land claims or public interests.
MR. MYLIUS said the North Slope Borough has existing selections
at Happy Valley and Franklin Bluffs and existing selections on
gravel pits near the airport at Dead Horse. The legislation
directs DNR to transfer these parcels to DOTPF if they ask for
them. Even if the intent of DNR or the legislature is to reject
those municipal selections of these lands, four months (in the
bill) is not adequate time for DNR to issue a decision to reject
the North Slope Borough selection, allow for the required public
notice and comment, and resolve likely appeals from the
municipal government. The state has obligations to fulfill
municipal entitlements of other municipalities as well,
including some that have interests in lands that DOTPF has an
interest in. For example, the Municipality of Anchorage has
outstanding rights to certain state lands in an agreement that
was reached between DNR and the Municipality many years ago.
Some of these parcels are adjacent to the Anchorage
International Airport that are not currently available to the
Municipality but someday could be. This bill could potentially
override some of those provisions.
In addition to these concerns, under the existing process DNR
looks at adjacent land uses and access concerns prior to
transferring land to DOTPF. This bill would eliminate this
process. For example DOTPF applied to DNR for a gravel pit at
Coldfoot that was adjacent to a residential area, and DNR worked
with them to either find a better site or had the option of
conditioning the use of the gravel pits by requiring DOTPF to
retain buffers or restrict hours of use for the site. DOTPF was
not particularly receptive to these concerns, but because DNR
was the land manager and had to go through a public process, it
was able to deal with the local resident's concerns.
Under the existing process, DNR can reserve easements for public
use through DOTPF sites to ensure that access is not blocked by
public facilities or even condition transfers to DOTPF with the
requirement to provide alternative access. Under SB 211 it is
doubtful that DNR could attach such conditions to the land
transfer.
2:08:47 PM
Finally, section 16 requires special attention by the committee.
Mr. Mylius said the reciprocal easements referred to stem from a
little-known provision in the SAFT-LU bill Section 16 referred
to MAP 92337; this map shows approximately 135 public access and
log transfer sites on state tidelands that were to be
transferred to the Forest Service in return for a number of
transportation and corridor easements across Tongass National
Forest lands. Several years ago, DNR, DOTPF, and the Forest
Service agreed on a public process to establish the easements
that would be transferred from the state to the Forest Service.
To date, according to DNR 66 of the 135 sites have been approved
but another 67 have not.
Many of these easements that have not been processed are
potential facilities, and some of these are important public
access sites that should remain in the state's hands and have
Forest Service management. Also, the process required the Forest
Service to submit an actual application to DNR to better define
the area they wanted as MAP 92337, and they have not applied to
DNR for these 67 unprocessed sites. His concern about the
constitutionality is that this legislation appears to transfer
those remaining 67 sites to the Forest Service with no public
notice as required by Article 8, Section 10 of the Constitution.
2:10:04 PM
Finally, Mr. Mylius said this legislation has two zero fiscal
notes but it is hard to believe there is no cost to issue these
envisioned land transfers, especially the easements under
Section 16. DNR has been trying to reduce its backlog of work
and this adds a bunch of work with no additional resources to
address it.
2:11:04 PM
SENATOR DYSON said he was in favor or what he was trying to do
and guessed that Mr. Bennet would have some good answers.
2:12:13 PM
MR. BENNET responded that this bill protects all valid existing
rights with regard to existing permits, leases, and existing
rights issued by DNR. With regard to reducing the administrative
overhead, they are saying that DNR by virtue of transferring
these public domain lands to single purpose government purposes
- these transportation uses - they are not required to go
through this multiple use management process, and this is the
point he differed from Mr. Mylius on.
MR. LYNCH pointed out that section 3 on page 2, lines 29-30,
states the title that is being transferred from DNR to DOTPF is
subject to valid existing rights, and that is repeated in the
other sections.
On the constitutionality issue of the easements or the workload
of the easement transfers, DNR representatives could talk to the
easements that have been issued, but Mr. Lynch said he
understood that the easements that were transferred with the log
transfer facilities required a written recorded easement, but a
DNR determination was made years back that trailheads and cabins
were public access easements and the Forest Service needed to
record an easement for them. That's why half are recorded and
half are not. So, the exchange of easements has actually been
completed and this would allow the DNR commissioner to remove
the 55-year limitation.
CHAIR EGAN found no questions for Ed Fogels.
SENATOR FAIRCLOUGH asked why the state put a 55-year limitation
and why it is not valid today.
MR. LYNCH explained that the Alaska Lands Act envisions the
transfer of interests from the state to a third party, which is
really this bill's broader purpose, and the Alaska Lands Act is
a poor fit for interagency land transfers. That 55-year
limitation is so the state does not divest its interest, because
there may be another future use that is required under the
sustainable yield concept in the Constitution. The reason it
does not work in this instance is because of the limitation it
puts on the state. If we build roads and utility lines
connecting Ketchikan to Shelter Cove, the life of the road could
exceed 55 years, so a longer interest is needed for those
infrastructure improvements.
2:16:48 PM
SENATOR FAIRCLOUGH said another piece of legislation was
circling that had to do with Native land allotments - so,
subject to "valid existing rights" - page 2, line 29 & 30. She
was an amend on that bill because it says "all" and she was
worried about mandating something they couldn't follow through
on and this is just another layer on top of those transfers.
SENATOR DYSON said regarding the 55-year provisions on easements
that DNR is working on establishing historic trails and he hears
anecdotally but consistently that it is the state's burden to
prove to the feds that those existing right-of-ways are there.
The feds seem to not be sympathetic in granting them and are
more than zealous in forcing the state to go a long ways in
establishing them. Do any of these easements fall into that
category?
MR. LYNCH answered the easements on the map in their packets
have been enacted by Congress. The odd quirk is they told the
Forest Service you "shall" give these easements to the state and
Congress did not place a 55 year limitation on them. The
reciprocal easement was a Forest Service determination based on
what Congress granted. But the state's answer is no.
2:19:59 PM
SENATOR FRENCH asked why just exempt just DOTPF in section 14,
the Railroad provision that exempts DOTPF from needing
legislative approval of land transfers.
MR. LYNCH explained that the purpose of this provision is when
the legislature directs DOTPF to improve the Fairbanks airport,
for instance, there is an appropriation and a direction tied to
it. And DOTPF requires fee title because of the FAA's security
requirements. DOTPF had to purchase it from the Railroad and the
Railroad had to come to the legislature and get that conveyance
of land authorized. He didn't know of another other state agency
that is in the same position with the legislature directing them
to deliver a project.
SB 211 was held in committee.
2:22:15 PM
CHAIR EGAN thanked everyone for their work and adjourned the
Senate Transportation Standing Committee at 2:22 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB211-DOT-SWDES-3-8-14.pdf |
STRA 3/11/2014 1:30:00 PM |
SB 211 |
| SB211-DNR-MLW-3-8-14.pdf |
STRA 3/11/2014 1:30:00 PM |
SB 211 |
| SB 211 Bill Summary.pdf |
STRA 3/11/2014 1:30:00 PM |
SB 211 |
| SB 211 Glenn MP 118 N ROW Plans.pdf |
STRA 3/11/2014 1:30:00 PM |
SB 211 |
| SB 211 Old Glenn Hwy.pdf |
STRA 3/11/2014 1:30:00 PM |
SB 211 |
| SB 211 Sectional Analysis.pdf |
STRA 3/11/2014 1:30:00 PM |
SB 211 |
| SB 211 Sponsor Statement Letterhead.pdf |
STRA 3/11/2014 1:30:00 PM |
SB 211 |
| SB 211 Comments - Milles 031214.pdf |
STRA 3/11/2014 1:30:00 PM |
SB 211 |
| SB 211 Comments andTestimony - Mylius 031114.pdf |
STRA 3/11/2014 1:30:00 PM |
SB 211 |