HOUSE RESOURCES STANDING COMMITTEE February 13, 1995 8:07 a.m. MEMBERS PRESENT Representative Joe Green, Co-Chairman Representative Bill Williams, Co-Chairman Representative Scott Ogan, Vice Chairman Representative Alan Austerman Representative Ramona Barnes Representative Irene Nicholia MEMBERS ABSENT Representative John Davies Representative Pete Kott Representative Eileen MacLean OTHER LEGISLATORS PRESENT Representative Ivan COMMITTEE CALENDAR *HJR 27Requesting the United States Congress to accommodate Alaska's wetlands circumstances in the federal Clean Water Act reauthorization by increasing statutory flexibility on wetlands use in Alaska, and to recognize Alaska's unique and outstanding history of wetlands conservation. CSHJR 27(RES) PASSED OUT OF COMMITTEE Confirmation of Virgil Umphenour to Board of Fisheries ADVANCED HB 20"An Act relating to rights in certain tide and submerged land." CSHB 20(RES) PASSED OUT OF COMMITTEE HB 79"An Act allowing the Department of Natural Resources to quitclaim land or interests in land, including submerged or shore land, to a municipality to correct errors or omissions of the municipality when inequitable detriment would result to a person due to that person's reliance upon the errors or omissions of the municipality." PASSED OUT OF COMMITTEE (* First public hearing) WITNESS REGISTER JEFF LOGAN, Legislative Assistant Representative Joe Green State Capitol, Room 24 Juneau, AK 99801 Phone: 465-4931 POSITION STATEMENT: Provided Sponsor Statement for HJR 27 CARL PORTMAN, Communications Director Resource Development Council 121 W. Fireweed, #250 Anchorage, AK 99503 Phone: 276-0700 POSITION STATEMENT: Supported HJR 27 KEN FREEMAN, Projects Coordinator Resource Development Council 121 W. Fireweed, #250 Anchorage, AK 99503 Phone: 276-0700 POSITION STATEMENT: Supported HJR 27 VIRGIL UMPHENOUR, Appointee Board of Fisheries 878 Lynnwood Way North Pole, AK 99705 Phone: 488-3885 POSITION STATEMENT: Provided an overview on his background and answered questions DEAN PADDOCK P.O. Box 20312 Juneau, AK 99802 Phone: 789-4231 POSITION STATEMENT: Supported confirmation of Virgil Umphenour BRUCE SCHACTLER P.O. Box 2254 Kodiak, AK 99615 Phone: 486-4686 POSITION STATEMENT: Opposed confirmation of Virgil Umphenour ART NELSON, Fisheries Specialist Kawerak, Inc. P.O. Box 948 Nome, AK 99762 Phone: 443-4278 POSITION STATEMENT: Supported confirmation of Virgil Umphenour BILL HENRY 1081 Duck Pond Road North Pole, AK 99705 Phone: 488-6800 POSITION STATEMENT: Supported confirmation of Virgil Umphenour PAUL KLEINSCHMIDT Nenana, AK 99760 Phone: 832-1080 POSITION STATEMENT: Supported confirmation of Virgil Umphenour ANDY GOLIA P.O. Box 663 Dillingham, AK 99576 Phone: 842-5307 POSITION STATEMENT: Supported confirmation of Virgil Umphenour PAUL GRONHOLDT Sand Point, AK 99661 POSITION STATEMENT: Opposed confirmation of Virgil Umphenour REPRESENTATIVE CARL MOSES Alaska State Legislature State Capitol, Room 204 Juneau, AK 99801 Phone: 465-4451 POSITION STATEMENT: Prime Sponsor HB 20 JOHN BAKER, Assistant Attorney General Natural Resources Section Department of Law 1031 W. 4th, Ste. 200 Anchorage, AK 99501 Phone: 269-5100 POSITION STATEMENT: Commented on the effect of the public trust doctrine on conveyances authorized under HB 20 MOLLY SHERMAN, Representative Alaska Environmental Lobby P.O. Box 22151 Juneau, AK 99802 Phone: 463-3366 POSITION STATEMENT: Opposed HB 20 RON SWANSON, Director Division of Land Department of Natural Resources P.O. Box 107005 Anchorage, AK 99510 Phone: 762-2692 POSITION STATEMENT: Answered questions on HB 20 WELLS WILLIAMS, Planning Director City and Borough of Sitka 100 Lincoln Street Sitka, AK 99835 Phone: 747-1824 POSITION STATEMENT: Supported HB 20 BOB JUETTNER, Administrator Aleutians East Borough 1800 A Street, Ste. 103 Anchorage, AK 99501 Phone: 274-7555 POSITION STATEMENT: Supported HB 20 REPRESENTATIVE JERRY MACKIE Alaska State Legislature State Capitol, Room 404 Juneau, AK 99801 Phone: 465-4925 POSITION STATEMENT: Prime Sponsor HB 79 PREVIOUS ACTION  BILL: HJR 27 SHORT TITLE: EXEMPT ALASKA FROM FED CLEAN WATER ACT SPONSOR(S): REPRESENTATIVE(S) GREEN,Phillips JRN-DATE JRN-PG ACTION 02/03/95 234 (H) READ THE FIRST TIME - REFERRAL(S) 02/03/95 234 (H) RESOURCES 02/13/95 (H) RES AT 08:00 AM CAPITOL 124 BILL: HB 20 SHORT TITLE: RIGHTS IN TIDE/SUBMERGED LAND SPONSOR(S): REPRESENTATIVE(S) MOSES,Kubina JRN-DATE JRN-PG DATE 01/06/95 25 (H) PREFILE RELEASED 01/16/95 25 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 26 (H) CRA, RES, FIN 01/19/95 88 (H) COSPONSOR(S): KUBINA 02/02/95 (H) CRA AT 01:00 PM CAPITOL 124 02/03/95 225 (H) CRA RPT 1DP 3NR 02/03/95 225 (H) DP: IVAN 02/03/95 225 (H) DP: ELTON, AUSTERMAN, NICHOLIA 02/03/95 226 (H) FISCAL NOTES (2-DNR) 2/3/95 02/03/95 226 (H) ZERO FISCAL NOTE (DCRA) 2/3/95 02/13/95 (H) RES AT 08:00 AM CAPITOL 124  BILL: HB 79 SHORT TITLE: MUNICIPAL LAND ERROR CORRECTIONS SPONSOR(S): REPRESENTATIVE(S) MACKIE JRN-DATE JRN-PG ACTION 01/13/95 41 (H) PREFILE RELEASED 01/16/95 41 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 41 (H) CRA, RES, FIN 02/02/95 (H) CRA AT 01:00 PM CAPITOL 124 02/03/95 229 (H) CRA RPT 4DP 2NR 02/03/95 229 (H) DP: MACKIE, ELTON, VEZEY, IVAN 02/03/95 230 (H) NR: AUSTERMAN, NICHOLIA 02/03/95 230 (H) 2 ZERO FISCAL NOTES (DNR, DCRA) 2/3/95 02/13/95 (H) RES AT 08:00 AM CAPITOL 124 ACTION NARRATIVE TAPE 95-13, SIDE A Number 000 The House Resources Committee was called to order by Co-Chairman Green at 8:07 a.m. Members present at the call to order were Representatives Ogan, Austerman and Green. Members absent were Representatives Williams, Barnes, Davies, Kott, MacLean and Nicholia. HRES - 02/13/95 HJR 27 - EXEMPT ALASKA FROM FEDERAL CLEAN WATER ACT JEFF LOGAN, LEGISLATIVE ASSISTANT, REPRESENTATIVE JOE GREEN, PRIME SPONSOR, said in 1989, the National Wetlands Policy Forum recommended a greater role for state and local governments in managing wetlands under Section 404 of the federal Clean Water Act. He stated since that time, the Environmental Protection Agency (EPA), through the state wetlands protection development grants and the Corps of Engineers, through the programmatic general permits, have been working to shift regulatory responsibility back to the states. MR. LOGAN noted that unfortunately, Alaska has not been a beneficiary of this trend. He said for the last several years, Alaskans have been seeking administrative remedies to the problems caused by strict adherence to the federal wetlands policy including the no net loss provision. These efforts have been largely unsuccessful. He pointed out that now with Alaska's congressional delegation in leadership positions, it appears likely that a legislative remedy may be possible. He stated HJR 27 puts the 19th Alaska Legislature on record in support of modifications to the federal wetlands management program. MR. LOGAN told committee members that the sponsor's staff has worked with staff members of the congressional delegation to craft language which can be used as a tool by the congressional delegation as they attempt to amend the federal Clean Water Act to more appropriately meet Alaska's needs. He said HJR 27 is a statement from the 19th Alaska Legislature that Alaskans from Kotzebue to Ketchikan and from Dutch Harbor to Deadhorse are best equipped to decide if, when, and how wetlands should be developed. He noted that committee work on S.49, the legislation introduced by Senator Stevens, is scheduled to begin this week. Committee work on the House version of the Clean Water Act amendments are scheduled to begin in a few weeks. He stressed it is important the legislature make a statement for the record in support of the Congressional delegation's efforts on the state's behalf. Number 067 CARL PORTMAN, COMMUNICATIONS DIRECTOR, RESOURCE DEVELOPMENT COUNCIL (RDC), said RDC spearheads the Alaska Wetlands Coalition, an organization formed to work on current wetland regulations. The Coalition brings a community perspective and balance to the debate and helps guide the overall national policy decision on wetlands. He noted the Coalition includes many Alaska communities including Anchorage, Bethel, Juneau, Sitka, Ketchikan, Cordova, Barrow, and other communities. He stated over the past several years, the Coalition has sponsored a number of tours of Alaska wetlands, bringing up key congressional aides to see first hand the problems faced in Alaska regarding wetlands regulations. These congressional tours involve key staffers who have jurisdiction over the issue and these visits have taken on an increasing importance now that major legislation is being considered in Washington, D.C. on the issue. He pointed out the visits have helped advance the staff's learning curve on the issue, have brought them up to date on Alaska's issues and have shown them there is a big difference between rural Kansas and rural Alaska. MR. PORTMAN stated RDC and the broad-based membership of the Alaska Wetlands Coalition supports S.49, the Alaska Wetlands Conservation Credit Procedures Act., sponsored by Senator Ted Stevens. RDC believes this landmark legislation will go a long way in resolving many of the problems in Alaska posed by the unworkable no net loss policy. Number 091 KEN FREEMAN, PROJECTS COORDINATOR, RDC, stated the regulation of Alaska's wetlands needs to be tailored to the unique features of the state. He pointed out that approximately 170 million acres in Alaska, nearly half the state, are classified as wetlands, compared with the contiguous U.S. which has 95 million acres. Put another way, Alaska currently has 64 percent of all the wetlands remaining in the U.S. He said Alaska wetlands, wildlife, and migratory waterfowl are not threatened or jeopardized by use of wetlands here. Special protection of coastal areas and many inland areas, such as the entire North Slope, is provided by the Alaska Coastal Management Program which encompasses 34,000 miles of shoreline. He stressed that wildlife is in no way habitat-limited in Alaska. MR. FREEMAN noted that much of Alaska is protected from development and many of its wetlands will never by developed. Much of Alaska is already protected from development as federal and state parks, wildlife refuges, and other conservation units. He pointed out that the options for development are limited, and most industries that utilize Alaska's wetlands, including but not limited to tourism, hunting, commercial and sport fishing, agriculture, recreation, oil and gas, mining and forest products, all have a stake in what happens to the wetlands regulatory climate in Alaska. MR. FREEMAN stated many nondevelopment groups look at the Corps of Engineers statistics to demonstrate that administration of Section 404 is already more flexible in Alaska than the Lower 48. He pointed out what is not taken into consideration is the number of permits withdrawn, how many projects are delayed at tremendous costs, how many permits were accepted only after mitigation took place with other regulatory agencies and was not accounted for in the official process. MR. FREEMAN told committee members the Section 404 program needs to be significantly reformed to address the problems experienced by public and private landowners in Alaska. Alaska will likely never face many of the wetlands problems seen in the contiguous U.S. He said Alaskans have been excellent stewards of the state's land and resources and should not be penalized for its outstanding conservation record. He stressed HJR 27 sends a clear signal to the Administration and lawmakers in Washington, D.C. that Alaska needs a current wetlands regulation tailored to provide flexibility in Alaska wetland permitting commensurate with the vast amount of wetlands in Alaska, the large amount of wetlands set aside in Alaska and the low historic loss of wetlands in Alaska. MR. FREEMAN said RDC supports HJR 27 because it is directed at stimulating policy that is balanced and driven by reason. He stated RDC hopes the House Resources committee will move HJR 27 expeditiously and that the Alaska Legislature passes the resolution. Number 122 REPRESENTATIVE ALAN AUSTERMAN clarified that 45 percent of Alaska's surface area is wetlands and 55 percent is not wetlands. MR. FREEMAN responded that is correct and added that 55 percent is not wetlands or is mountainous regions. REPRESENTATIVE AUSTERMAN asked how much of the 45 percent is tied up by federal/state and how much is available for development. MR. FREEMAN said he did not have a specific number in front of him but would be happy to get that information to him. CO-CHAIRMAN JOE GREEN asked if that figure includes permafrost, which is designated by the Corps of Engineers as wetlands. MR. FREEMAN replied permafrost is considered wetlands and is included in the 45 percent figure. CO-CHAIRMAN GREEN noted for the record that Representative Nicholia joined the committee. MR. FREEMAN stated 87 percent of the state is in public ownership and 59 percent is under federal jurisdiction. He said there are differing amounts of wetlands set aside. He added that over 57 million acres (the size of Utah) is in wilderness status. He noted that other lands in federal jurisdiction may or may not be open to wetlands regulations depending on the designation. CO-CHAIRMAN GREEN noted for the record that Representative Williams had joined the committee. Number 165 REPRESENTATIVE IRENE NICHOLIA referring to line 10, page 1, "prohibit the discharge of dredged and fill material...", stated there is a permitting process with the Corps of Engineers for that. She felt an amendment is needed because the discharge is not totally prohibited. CO-CHAIRMAN GREEN said perhaps the words "to restrict the discharge" would be better. REPRESENTATIVE NICHOLIA made a MOTION to AMEND HJR 27, page 1, line 10, to change the word "prohibit" to the word "restrict". REPRESENTATIVE AUSTERMAN said as currently written, it reads that in 1975 the wetlands regulations were expanded to prohibit the discharge rather than allow. CO-CHAIRMAN GREEN agreed. He said currently the Corps of Engineers does allow some very restrictive fill but noted this Whereas refers to 1975 action. Therefore, the whereas is correct as written. REPRESENTATIVE NICHOLIA felt the statement is misleading because if people do not know there is a permitting process, they will think it is totally prohibited when reading this Whereas. CO-CHAIRMAN GREEN asked Representative Nicholia if she had any suggestions for changing the wording. REPRESENTATIVE NICHOLIA wondered if the resolution could be held until the next meeting. CO-CHAIRMAN GREEN responded that timing was such that if the resolution is delayed, the legislature will miss the impact it will have in helping Senator Stevens. REPRESENTATIVE NICHOLIA WITHDREW her MOTION. REPRESENTATIVE SCOTT OGAN clarified that the statement contained in the Whereas, "the United States Army Corps of Engineers expanded wetlands regulations to prohibit the discharge..." is factual. CO-CHAIRMAN GREEN responded in 1975. REPRESENTATIVE AUSTERMAN clarified there is a process which allows people, through a permit process, to actually discharge into the wetlands. CO-CHAIRMAN GREEN replied that is correct. REPRESENTATIVE AUSTERMAN agreed with Representative Nicholia that the Whereas needs to be rewritten. MR. FREEMAN said Senator Stevens bill goes over the 1975 change and he indicated how the expansion of the regulation is designated in that bill. In 1975, a U.S. District Court ordered the Corps of Engineers to publish revised regulations concerning the scope of the Section 404 program; regulations that expanded the scope of the program to include the discharge of dredged and fill material into wetlands. He thought perhaps a suggested change would be "Whereas, in 1975, the United States Army Corps of Engineers expanded wetlands regulations to include the discharge of dredged and fill material into wetlands;". REPRESENTATIVE NICHOLIA made a MOTION to AMEND HJR 27 page 1, line 10, to eliminate the word "prohibit" and replace it with the word "include". CO-CHAIRMAN GREEN suggested as a FRIENDLY AMENDMENT to the AMENDMENT, to include the word "restricted". He said the discharge is permitted but it is very restrictive and scrutinized. REPRESENTATIVE NICHOLIA accepted the friendly amendment. REPRESENTATIVE AUSTERMAN asked for the amendment to be read. CO-CHAIRMAN GREEN replied it would read, "Whereas, in 1975, the United States Army Corps of Engineers expanded wetlands regulations to include restricted discharge of dredged and fill material into wetlands;" CO-CHAIRMAN GREEN asked if there were any objections. Hearing none, the MOTION PASSED. REPRESENTATIVE OGAN made a MOTION to MOVE HJR 27 AS AMENDED out of committee, with accompanying zero fiscal note, and asked for unanimous consent. CO-CHAIRMAN GREEN asked if there were any objections. Hearing none, the MOTION PASSED. HRES - 02/13/95 CONFIRMATION OF VIRGIL UMPHENOUR TO THE BOARD OF FISHERIES Number 320 VIRGIL UMPHENOUR, APPOINTEE, BOARD OF FISHERIES, testified via teleconference and said he has lived in the North Pole since 1971. He stated he owns a commercial fish wheel permit for the upper Yukon River, fishes on the Tanana River, has a small processing facility in Fairbanks, is a registered hunting guide, has been associated with several boards and associations, and is a sport fisherman. REPRESENTATIVE NICHOLIA asked who should bear the burden of conservation when individual river systems are not meeting escapement goals over a period of time. MR. UMPHENOUR replied when individual river systems are not meeting escapement goals over a long period of time, they become what is known as a conservation crisis. He said whenever a system has a conservation crisis something has to be done. First, the migration route of that stock of fish has to be identified. Once that is done, then the catch rate throughout the entire migration route has to be lowered so as to allow the fish to get to the spawning grounds and perpetuate the fish stock, which is mandated by the constitution of the state for sustained yield. Number 360 REPRESENTATIVE NICHOLIA asked Mr. Umphenour, with his appointment, how he feels about the balance of interests on the Board of Fisheries. Everyone knows not every gear group within each geographical area can be represented. With the present makeup of the board, she asked if he feels the major fishing interests are represented. (Fairbanks dropped off line due to a power outage.) CO-CHAIRMAN GREEN noted for the record that Representative Barnes had joined the committee at 8:30 a.m. DEAN PADDOCK, JUNEAU, said he has been an Alaskan for almost 39 years and during that period, he has been intimately connected with the board process every year with very few exceptions. He stated the business at hand is very serious--the management of the state's wildlife resources, which is what makes Alaska unique. He pointed out that legislators have the ultimate responsibility for assuring this management is carried out in the best possible manner and added they have delegated this authority to the Boards of Fisheries and Game. MR. PADDOCK believed the state is still operating under the original statutes which described how these boards would be appointed. These statutes were drafted in accordance with the intent of the formers of the state constitution and speak of appointments to these boards without regard to political affiliation or regional interest. He noted the Board of Fisheries is a so-called lay board and includes people who are not involved as professionals. He felt that everyone was aware that appointments have been made by Governors according to region, even though that is difficult to do because the state is so diverse. MR. PADDOCK stated the Board of Fisheries has successfully managed the state's resources fairly. He said it is not a perfect process but is only as good as the people who serve on the board. He stressed he supports the confirmation of Virgil Umphenour. He pointed out there will probably be opposition to Mr. Umphenour's confirmation and noted that opposition will probably be regionally based. He felt that opposition is understandable because there is not a region in the state not desiring to maintain the representation which they may have previously had. MR. PADDOCK said the state has not always had representation from the Interior on the board. He recalled several people from the Interior who had served on the board. He felt it is time the Interior have a representative on the Board of Fisheries. He pointed out for many years (especially earlier years), the questions involving the Yukon River and the rivers in Northwest Alaska were not of vital importance but today they are. The overall welfare of the salmon fisheries is looked at and everyone is proud of those fisheries. He stated unfortunately the state has a soft under belly just as the fisheries on the Columbia River, which is now known as an endangered species and has shut down commercial fishing off the coasts of Washington and Oregon. MR. PADDOCK stressed everyone needs to be aware that for years the state has been guilty of overlooking what has now become the soft under belly of the Alaskan fisheries picture--the rivers in the Northwest and Interior. He stated he has known Mr. Umphenour for many years through his involvement in the process. He felt Mr. Umphenour is a knowledgeable, intelligent and well-informed man and urged the committee to confirm him to the Board of Fisheries. Number 563 REPRESENTATIVE NICHOLIA asked Mr. Umphenour, in connection with his appointment, how he felt about the balance of interests on the Board of Fisheries. It is known that not every gear group within each geographical area can be represented. However, with the present makeup of the board, does he feel the major fishing interests are represented. MR. UMPHENOUR felt that all major fishing interests are represented on the board. He said he has a lot of knowledge on the fisheries in Northwest Alaska and the Interior where there is a conservation crisis. He stated his background and association with the sport fishing community and with the subsistence community is quite different than any other board member's. He pointed out he has been associated with the in-river fisheries for a number of years in the Yukon River, and with many of the terminal fishers in Northwest Alaska. Number 645 BRUCE SCHACTLER, KODIAK, testified via teleconference and wondered if Mr. Umphenour had been a member of the Coastal In-Rivers Fisheries Organization or the Yukon River Drainage Fisherman's Association. He expressed opposition to Mr. Umphenour's confirmation. He said his opposition is not based on a regional problem but rather he felt there is no balance of knowledge on the Board of Fisheries. He stated Mr. Umphenour is a one fishery type of person and the only experience he has with fish is in a river. He noted the only migratory patterns Mr. Umphenour knows about is what happens in the river with the fish wheel. MR. SCHACTLER felt what is needed on the Board of Fisheries are people who are able to relate to the management of all fisheries of Alaska, whether it is cod fishing in the Bering Sea or sea cucumber diving in Southeast Alaska. He felt Mr. Umphenour does not possess the broad based experience and knowledge necessary. He expressed concern that with continued appointments such as Mr. Umphenour's, the Board of Fisheries is getting more and more out of balance and lacks the knowledge needed to make proper and good decisions. He felt decisions were being made based on special interests and not based on what is good for the state. TAPE 95-13, SIDE B Number 000 MR. SCHACTLER felt with the latest appointments, everyone is buying in to the destruction of the board which seems to be the agenda of the Southcentral legislators. He urged the committee not to confirm Mr. Umphenour. REPRESENTATIVE RAMONA BARNES asked Mr. Schactler to comment on his background. MR. SCHACTLER responded he has been in Alaska since he was 18 years old, 23 years ago and has been a commercial fisherman since 1975. He said he has fished about everything there is to fish except he has not done any trawling. REPRESENTATIVE BARNES recalled that Mr. Schactler talked about the Board of Fisheries being out of balance. She said the Board of Fisheries has been out of balance for many years in favor of commercial fishermen. She stressed the board has been so skewed that there was little, if any fish left for sport fishermen to catch. Number 035 ART NELSON, FISHERIES SPECIALIST, KAWERAK, INC., testified via teleconference and said his organization represents 20 villages in the Norton Sound and Bering Straits region. He stressed his organization supports the confirmation of Virgil Umphenour to the Board of Fisheries. He said Mr. Umphenour is a fish buyer and processor and is intimately familiar with the fisheries of the Yukon River, Norton Sound and all across Western Alaska. He pointed out that Mr. Umphenour knows the importance of the small scale commercial fisheries and how closely they are tied to the subsistence way of life. He noted that he has seen Mr. Umphenour in action at Board of Fisheries meetings and knows he can objectively look at the information and evidence before him and make solid, knowledgeable decisions. REPRESENTATIVE OGAN observed that commercial fishermen may have a problem with Mr. Umphenour's appointment. He noted there are resource problems. He asked Mr. Umphenour to summarize what he thinks would be a fair way to help mitigate the damage to all user groups when there is a shortage of the resource. MR. UMPHENOUR responded the department has a biological escapement goal for each system. The department has different ways to determine whether the fish have their escapement or not. The department calculates how many fish are going to be returning to a system based on what the escapement was from the brood years and works backwards. However, some of the state's salmon travel through different regions. Therefore, the fishing on those salmon is managed by different fish managers. MR. UMPHENOUR stressed that the terminal fish manager has no control over how many of those fish are caught in a different region. He felt that is one of the problems causing many areas from not meeting their spawning objectives. Fish are caught in fisheries where the manager is not held accountable if the fish do not show up on the spawning grounds. Therefore, what has happened in the past is the terminal managers have restricted the fisheries and even closed the fisheries for every type of fishing there is including sport, subsistence, commercial, and personal use. He noted the Yukon River has been closed three consecutive years for commercial, sport, and subsistence fishing. He added that some areas in the Norton Sound have been closed for subsistence fishing for eight years and are approaching endangered species mode. MR. UMPHENOUR stressed the burden of conservation has to be shared throughout the entire migratory route of the fish. He said the terminal fishers have been bearing the brunt of the burden of conservation. Number 115 BILL HENRY, FAIRBANKS, testified via teleconference and said he had been a resident in the area for over 40 years. He noted he has fished commercially, for personal use, subsistence and sport. He felt Mr. Umphenour is well informed and is very knowledgeable. REPRESENTATIVE OGAN agreed with Mr. Umphenour on his analysis of the terminal fisheries management. However, commercial fisheries is an important part of the state's economy. He requested Mr. Umphenour to expand on what he would like to see happen to help solve the problem, without shutting down a major portion of the state's economy. MR. UMPHENOUR stressed he does not advocate shutting down commercial fishing unless it has to be done biologically, which has happened in the state. He does not like to see that happen. He said if any of the state's rivers get on the endangered species list, the fisheries will shut down. He felt the weak stocks have to be rebuilt and if that requires changing fishing patterns and fishing management so as not to fish discreet stocks in trouble, then that has to be done and he stressed it can be done. He said there are a number of things which can be done to allow a discreet stock of fish to return to their spawning grounds such as time and area closures, modifications to fishing gear, etc. He stressed it is important to protect the fisheries for all users of the state. If the state's fisheries are depleted, everyone will suffer in the long run. He felt it was better to suffer a little to rebuild the fisheries, than it is to fish them to death. Number 175 PAUL KLEINSCHMIDT, NENANA, testified via teleconference and stated he and his wife have fished in the Interior for 18 years. He added they have dealt with Mr. Umphenour for several years and found him to be extremely knowledgeable. He stated Mr. Umphenour knows the market and fishermen and buyers have found him to be hard working. He felt Mr. Umphenour would be a fair and dedicated Board of Fisheries member. He disagreed with the testimony from Kodiak. ANDY GOLIA, DILLINGHAM, testified via teleconference and stated he was born and raised in Dillingham and is a commercial fisherman. He told committee members the various fish related boards and organizations he belongs to. He expressed support for the confirmation of Virgil Umphenour to the Board of Fisheries. He saw Mr. Umphenour in action at the board meeting in Dillingham and he felt he did a good job and asked good questions. He said there are many fishermen in Bristol Bay who support Mr. Umphenour. PAUL GRONHOLDT, SAND POINT, testified via teleconference and felt Mr. Umphenour's appointment would not be in the best interest of the state. He said it is clear that Mr. Umphenour has a pre-set agenda, particularly if his comments to the Senate Resources Committee are reviewed. He felt Mr. Umphenour will be forced to be a non-voting member on many of the issues before the board. He stated what is particularly troubling is Mr. Umphenour's comments about veterans in the Sand Point area in particular. He hoped the board does not get into a gridlock but felt it will when there continues to be appointments like Mr. Umphenour. CO-CHAIRMAN GREEN asked if there was anyone else to testify on the confirmation of Virgil Umphenour. Since no one else wished to testify, the committee report was signed. Number 268 HRES - 02/13/95 HB 20 - RIGHTS IN TIDE/SUBMERGED LAND REPRESENTATIVE CARL MOSES, PRIME SPONSOR, stated there are two reasons he introduced HB 20. The Department of Natural Resources (DNR) leases are cumbersome, costly to obtain and the terms of the leases vary widely. He said it is difficult to obtain general obligation bonding without fee simple title or a 55 year lease on the land. He stressed HB 20 is a good bill and is supported by the Alaska Municipal League and the Association of Harbormasters and Port Administrators, Inc. He told committee members he would appreciate their support on HB 20. JOHN BAKER, ASSISTANT ATTORNEY GENERAL, NATURAL RESOURCES SECTION, DEPARTMENT OF LAW, testified via teleconference and stated he would comment on the effect of the public trust doctrine on conveyances authorized under HB 20. He said the public trust doctrine is a constitutional doctrine which was first announced by the U.S. Supreme Court holding that when a state enters the Union, it takes title to tidelands and submerged lands in trust for the people of the state for three basic purposes--navigation, commerce, and fishing--all in the context of access to and use of tidelands and submerged lands. MR. BAKER stated the Alaska Supreme Court has expressly adopted the public trust doctrine. In a 1988 case, the court held that the doctrine is inherent in the common use clause of the Alaska Constitution (Article VIII, Section 3). He said the Alaska Supreme Court ruled whereas conveyances remain subject to the public trust, members of the public cannot be excluded from pursuing public trust uses on that land because essentially there is an easement or a servitude placed on the land. He explained grantees of tidelands can still make use of the land but they may not make such use that would substantially impair use by the public. MR. BAKER said the standard is the tax holder can make such use of the property as it will not reasonably interfere with continuing access. He added they can make use of the land but they cannot prohibit, by any general attempt, to exclude the public or public trust uses. He stated DNR wants to ensure everyone is aware that conveyances authorized by HB 20 would remain subject to the public trust in the vast majority of cases. MR. BAKER stated there are some criteria under which a legislature may authorize conveyances free of the public trust in very narrow circumstances. The legislature has to clearly express that intent. He said under Section 38.05.825 (d) of HB 20, conveyances authorized by HB 20 are subject to restrictions required by law including AS 38.05.127 and specifically the public trust doctrine. He explained it is possible that future conveyances by DNR, authorized under HB 20, could be made free of the public trust but those conveyances would be in very limited circumstances. For example, there may be a conveyance of a small parcel for a specific public trust purpose. He noted that each conveyance will be looked at on a case by case basis. He pointed out if the court can construe a conveyance of tidelands or submerged lands as being subject to the public trust doctrine, it will construe it that way. Number 355 REPRESENTATIVE BARNES asked if a conveyance like this has ever been done before through statute. MR. BAKER replied there is an existing preference rights statute, AS 38.05.820, which for years has authorized conveyances under preference rights requiring the purchase of tide and submerged lands for a nominal fee. Generally, those have been based on prior occupancy of the tide and submerged lands at the time of statehood. He reiterated the legislature does have the authority to make this type of conveyance. He added the Alaska Supreme Court did find that conveyances under that statute are subject, in almost all cases, to the public trust doctrine. REPRESENTATIVE BARNES asked how much land the state has conveyed under the existing statute. MR. BAKER responded he did not know the answer. He said DNR could answer the question. Number 392 MOLLY SHERMAN, REPRESENTATIVE, ALASKA ENVIRONMENTAL LOBBY (AEL), stated AEL has serious concerns about HB 20. She said HB 20 contains a fatal flaw--it prohibits DNR from imposing any conditions on the conveyance of tide and submerged land other than those required by law. She noted deliberately or accidentally, HB 20 neglects to provide for reserving mineral rights to the state and prevents DNR from correcting the problem. What this means is that municipalities can get fee simple title to potentially very valuable tide and submerged lands that the state could lease for oil and gas in the future. She felt this might place the state's financial future in jeopardy via a loss of potential oil and gas revenues. MS. SHERMAN stated HB 20 requires DNR to convey any tide or submerged lands a municipality wants if four conditions are met. Under this method, a municipality could write a land use plan or amend an existing plan pursuant to this bill Section 1 (a)(3) and DNR must convey. She said in HB 20, under Section 1 conveyances, there is no return to the state, although state funds will be used to make the conveyances, nor any discretion on the state's part. She stressed there may not even be public notice, because without any dissection, it is not a discretionary decision. Therefore, no finding of whether the conveyance would be in the state's best interest could be made. She pointed out there would be little point or need in notifying and consulting the general public. MS. SHERMAN said Section 1 (b) of HB 20 would allow DNR to convey tide and submerged land out of state lands that have been designated by statute if the DNR commissioner finds that the municipalities proposed use is consistent or compatible with the purpose of the designation. She noted that designated lands include state parks, state wildlife refuges, and critical habitats, among others. Number 438 REPRESENTATIVE BARNES asked if the AEL has ever supported any oil and gas leases anywhere. MS. SHERMAN said she would be happy to find out. CO-CHAIRMAN GREEN asked Mr. Swanson to address the transfer of mineral interests with surface interests. RON SWANSON, DIRECTOR, DIVISION OF LAND, DNR, testified via teleconference and recalled that Representative Barnes had asked how much land had been conveyed under the former statute AS 38.05.820. He said to date, the department has conveyed 22,848 acres to various municipalities. He responded in regard to the other question, the department never envisioned conveying oil and gas to municipalities under AS 29.65 which is the municipal land act. The department only conveys the surface estate if the oil and gas has been obtained through state ownership pursuant to the statehood act. He noted if the committee wanted to make it more clear, an amendment could be made to the bill specifically stating the department has no intention of conveying subsurface estates. Number 482 WELLS WILLIAMS, PLANNING DIRECTOR, CITY AND BOROUGH OF SITKA, testified via teleconference and stated Sitka strongly supports HB 20. He said the reasons for HB 20 outlined in Representative Moses' sponsor statement are very clear and very succinct. He stressed the city has been pleased with the responsiveness which Mr. Swanson's department has given in the past several years. He felt the reality is however, the department does not have the time or the local knowledge to make local land use decisions. MR. WILLIAMS said since Sitka is going through a very broad based planning effort involving environmental groups and developing interests as well, the city is in a better position to make those decisions. He stressed HB 20 is also very important for other communities in Southeast Alaska. BOB JUETTNER, ADMINISTRATOR, ALEUTIANS EAST BOROUGH (AEB), testified via teleconference and stated AEB supports HB 20. He said HB 20 balances the public trust doctrine with community needs for tidelands development. He noted AEB feels HB 20 is an equitable piece of legislation and it corrects inequities that municipalities incorporated after 1964 have. He stated that original legislation was amended on the floor of the Senate and ruled out anybody but first class cities incorporated at that time. Yet, it still allows the first class cities incorporated, prior to 1964, to go out and manage uplands and to get the fee simple title to that tideland. MR. JUETTNER stated AEB wishes to keep the tidelands conveyance (indiscernible) as clean as possible with nothing other than what is currently in statute. He noted that what happens in tidelands leasing is the special conditions evoke general conditions that are imposed upon us (indiscernible) become more and more burdensome over time. He said the AEB is in the process of doing its municipal entitlement and has to hold the state harmless from plans it has had under their management, for contamination. He stressed these types of requirements go well beyond the intent of the original legislation and limits AEB's ability to move forward with the development of land. MR. JUETTNER felt HB 20 would be a good piece of legislation not only for the AEB but all coastal communities needing access to the ownership of tides and submerged lands. Number 563 CO-CHAIRMAN GREEN said there was a question raised that because submerged lands are state domain and that by transferring title absolute other than a lease, there might be some confusion. Referring to page 2, line 20, he wondered if the words "or sale" implies that the land would no longer be subject to state ownership. MR. SWANSON stated the DNR recommends the deletion of the words "or sale" because it is public trust land and the public trust doctrine. He said the department's concern is that if land is conveyed into private ownership by the municipality to a third person, while not necessarily violating the public trust doctrine at the time of the sale, may violate, by its use over time, the doctrine at a later date. This puts the state in an awkward position of having to go back and sue. He stressed on a lease document the stipulations can be changed over time, even if it is a long term lease. CO-CHAIRMAN GREEN clarified that eliminating the words "or sale" would avoid any problems expressed earlier about subsurface mineral interests. MR. SWANSON stated that is correct. CO-CHAIRMAN GREEN asked if the sponsor has any problem with the suggested amendment. REPRESENTATIVE MOSES said he does not. REPRESENTATIVE AUSTERMAN stated he does not agree with the proposed amendment. He said part of the problem and the reason HB 20 is before the committee is due to some of the leases that DNR has put out there. He felt the department has constricted and stopped a lot of the development on some of these tidelands. In addition, it has made them very expensive. He stressed the sale should be left in HB 20. He noted that in committee member's folders there is a memorandum from Tamara Cook dated February 7, 1995, and on the second page of that memo there was a discussion of tightening up the title to the bill. The last paragraph indicates a tighter title to read, "An Act relating to conveyance of certain tide and submerged land to municipalities." He felt that title change would solve some of the problems and concerns expressed by DNR about the land going to a third party. The land would only go to a municipality. MR. SWANSON said the department absolutely will convey the fee simple to the municipalities and it will not be encumbered with the stipulations contained in leases. He stated all the stipulations in the leases were basically to ensure the state was not liable. He stressed once the land is admitted to the municipality, it becomes their problem. He noted the reason the department wants the words "or sale" deleted is because the department does not think it is right for the municipality to be able to convey the land to a third party and put the third party in jeopardy of the public trust doctrine. Number 667 CO-CHAIRMAN GREEN recalled that Mr. Swanson had said the department will transfer a fee simple which gets back into the situation of transferring mineral interests as well. MR. SWANSON said he stated fee simple but meant only for the surface estate not the subsurface estate. TAPE 95-14, SIDE A Number 000 REPRESENTATIVE AUSTERMAN made a MOTION to AMEND HB 20 by changing the title to read, "An Act relating to conveyance of certain tide and submerged land to municipalities." CO-CHAIRMAN GREEN asked Mr. Swanson if he has any problems with the title change. MR. SWANSON said the change is good. REPRESENTATIVE MOSES said the change is fine and added that he was going to recommend the change. CO-CHAIRMAN GREEN asked if there were any objections to the motion. Hearing none, the MOTION PASSED. CO-CHAIRMAN GREEN made a MOTION to AMEND HB 20 to delete the words "or sale" on page 2, line 20. REPRESENTATIVE AUSTERMAN OBJECTED. REPRESENTATIVE BARNES asked Co-Chairman Green to speak to his motion. CO-CHAIRMAN GREEN said the concern is if the words "or sale" is included in that line and the municipality ultimately makes a sale of that land to a third party, the third party then is in jeopardy of being sued by the state as an innocent third party because tide and submerged lands were conveyed to the state under sovereignty. REPRESENTATIVE BARNES wondered if the state normally sells land which has been held in public trust. MR. SWANSON responded the state does not sell tide shore submerged lands. The department is prohibited from doing so in Title 38. REPRESENTATIVE BARNES clarified the department is also prohibited under the Statehood Act and the state constitution from selling any subsurface rights. MR. SWANSON said that is correct. REPRESENTATIVE BARNES clarified even if the department conveyed or sold this land, the public trust doctrine, under the constitution and the fact the department cannot sell these rights would not apply. MR. SWANSON said under no cases would the department alienate the subsurface which would be retained by the state. On the surface estate for tide shore submerged lands, the department is also currently prohibited from selling those. The department does lease them. The department is recommending that the same basic rules apply to municipalities. REPRESENTATIVE AUSTERMAN said with the passage of HB 20, the state would be able to sell the surface rights of the properties to the municipalities but the subsurface would be held by the state. REPRESENTATIVE BARNES clarified the concern is the department would not lease the property to municipalities under the same terms they would sell it to them. She wondered if there was some concern that the department is going to continue to tie up the land. REPRESENTATIVE AUSTERMAN stated the concerns which have been expressed to him by municipalities is the form of the lease has been very restrictive to municipalities as far as how the lease is written and the cost of that lease. He said if he could be assured it would be just a straight lease of the land rather than include restrictions on the municipalities and how they can lease the land, he would be more comfortable. CO-CHAIRMAN GREEN pointed out that Mr. Swanson has given a commitment. He clarified that Mr. Swanson said the department would be transferring the surface estate fee simple. MR. SWANSON said that is correct. He stated the department does not think it is good that the municipality can also convey in fee to a third party. REPRESENTATIVE BARNES asked Representative Moses why the words "lease or sale" are in HB 20 on page 2, line 20. REPRESENTATIVE MOSES felt the municipalities should not be restricted in any way. He said if the department is going to convey the tidelands to the municipalities, they should also have the privilege of selling the land in the future. He noted he cannot imagine why a municipality would want to sell the tidelands nor could he imagine anyone wanting to buy the tidelands with the public trust doctrine in place. CO-CHAIRMAN GREEN asked for a roll call vote on the motion. Voting in favor of the motion were Representatives Ogan, Nicholia, and Green. Voting against the motion were Representatives Barnes, Austerman, and Williams. The MOTION FAILED. REPRESENTATIVE BARNES made a MOTION to MOVE HB 20 as amended, with accompanying fiscal notes, with individual recommendations. CO-CHAIRMAN GREEN asked if there were any objections. Hearing none, the MOTION PASSED. HRES - 02/13/95 HB 79 - MUNICIPAL LAND ERROR CORRECTIONS Number 117 REPRESENTATIVE JERRY MACKIE, PRIME SPONSOR, said he introduced HB 79 at the request of the city of Skagway to correct a longstanding land ownership problem in Skagway. Fifty years ago, a dike was constructed along the Skagway River to protect the town from flooding. Over the years, the area between the original river bank and the dike has been reclaimed and subdivided by the city with lots sold and built upon. He noted even the high school is located in the area. REPRESENTATIVE MACKIE stated the problem is the city did not have clear title to this land from the beginning. Hence, the title for subsequent private property owners is also clouded. Not only are the owners' investments and improvements at risk, but bank financing for further improvements or sales is foreclosed. He pointed out that in the past several years, the city and DNR have unsuccessfully sought an administrative remedy for the problem. While current statute allows DNR administrative discretion in resolving land ownership errors and omissions for individual citizens under AS 38.05.035(b)(2) and (b) (3), there is no similar provision for errors and omissions of a municipality. REPRESENTATIVE MACKIE explained HB 79 would add such a provision. The new proposed subsection AS 35.05.035(b) (11), allows the director of the division of lands the discretion to quitclaim land to a municipality to correct past errors and omissions. The director may also set any terms or conditions that is deemed appropriate for the transaction. He stressed that land title transferred to a municipality in this manner is counted against the municipality's general land grant entitlement from the state. REPRESENTATIVE MACKIE stated section 2 provides a January 1, 1998, repeal of AS 35.05.035(b) (11). Thus, the opportunity to correct municipal land ownership errors is limited to a two and one-half year period. He noted this bill was introduced in the last session. It progressed through the House and Senate until it died in the Senate Rules committee. He told committee members that in their folders there is a map (may be found in the House Resources Committee Room, Capitol Room 124, and after adjournment of the second session of the 19th Alaska State Legislature, in the Legislative Reference Library) showing the area being discussed which he reviewed. He said the property affected always has clouded title problems. He mentioned that DNR is very supportive of HB 79. REPRESENTATIVE BARNES made a MOTION to MOVE HB 79 out of committee, with accompanying fiscal notes, with individual recommendations. CO-CHAIRMAN GREEN asked if there were any objections. Hearing none, the MOTION PASSED. ADJOURNMENT There being no further business to come before the House Resources Committee, Co-Chairman Green adjourned the meeting at 9:50 a.m.