Legislature(2017 - 2018)GRUENBERG 120
01/31/2017 10:00 AM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| HB14 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 14 | TELECONFERENCED | |
HB 14-LEG. APPROVAL OF BRISTOL BAY SULFIDE MINE
10:01:44 AM
CHAIR STUTES announced that the only order of business would be
HOUSE BILL NO. 14, "An Act relating to the Bristol Bay Fisheries
Reserve; and providing for an effective date."
10:03:09 AM
REPRESENTATIVE FANSLER moved to adopt the proposed committee
substitute (CS) for HB 14, Version 30-LS0161\D, Shutts/Bullard,
1/27/17, as the working document.
10:03:31 AM
CHAIR STUTES objected for discussion.
10:03:37 AM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature,
presented the changes contained in the proposed CS for HB 14, to
wit: page 1, line 11, inserted " wildlife"; page 2, line 8,
inserted " modifications"; [page 2], line 22, inserted
"wildlife"; and page 3, line 8 inserted "wildlife". He referred
to the committee packet and the handout titled, "SUMMARY OF
CHANGES," to paraphrase the statement, which read as follows
[original punctuation provided with some formatting changes]:
There are three changes to the original version of the
House Bill 14 that occur in the Committee Substitute.
First, the original version protected the "fisheries"
of the Bristol Bay Fisheries Reserve. The term
'fisheries' was defined within the bill as meaning
"subsistence, personal use, sport, or commercial
fisheries as (they are defined in existing statute.)"
This definition read only to include those species and
habitats as they relate to human use. The Committee
Substitute has added in the terms 'fish' and
'wildlife' to offer more broad protections to life
within the Reserve, not just those species and areas
used by humans. These terms are inserted into other
areas of the bill where appropriate.
Further, the geographic area described in the original
bill was the Bristol Bay Fisheries Reserve which is a
distinct area delineated in statute and administrative
regulations. The Committee Substitute expands this
area to include the entire watershed of the Reserve, a
significantly larger scope. The definition of
watershed can be found in state and common law
jurisprudence.
Finally, the term 'modification' was inserted under
the definition of 'permits and authorizations' to
increase specificity.
REPRESENTATIVE JOSEPHSON pointed out that wherever Reserve
appears it refers to the Bristol Bay Fisheries Reserve (BBFR) as
established by Governor Jay Hammond, 1972.
10:06:28 AM
CHAIR STUTES removed her objection, and without further
objection Version D was before the committee.
10:06:41 AM
REPRESENTATIVE JOSEPHSON said the context of the bill was
derived from the voter initiative passed in 2014. The intent of
HB 14, he said, is to strengthen and broaden the scope of the
initiative and communicate a clear message to mine developers
that the tough standards, which they themselves purport to
deliver, will be expected by the state and upheld in statute for
the protection of fisheries by requiring best scientific
practices, including peer review. The proposed standard does
not yet exist, and it will provide the legislature with a degree
of confidence beyond what is currently held, as the permitting
process does not require a high level of scrutiny. The bill
requires that the commissioners of the three land agencies,
Department of Natural Resources (DNR), Department of
Environmental Conservation (DEC), and the Alaska Department of
Fish & Game (ADF&G), must have independently reviewed, inter-
agency, peer reviewed studies prepared. The initiative focused
on having the legislature be the deciding body whether or not a
large-scale, metallic, sulfide mining operation should be
allowed to locate within the watershed of the Bristol Bay
Fisheries Reserve. By having the three department commissioners
endorse the science behind the proposal, the legislature could
confidently approve the operation. He expressed a definite,
personal lack of confidence in the current process. As an
example, he said, having posed a question to discover actionable
outcomes of permit approvals and denials, the response showed
that the Division of Mining, Land, and Water has only rejected
108, of 7,971 received and considered [during the ten year
period of 2003-2013]. Also, criticism of the initiative and the
bill has focused on a certain part of the state being targeted
for this legislation. However, the Alaska Supreme Court, in
Hughes v. Treadwell, No.S-15468, (2015) allows for the action,
and referred to the case law opinion to paraphrase language,
which read as follows [original punctuation provided]:
According to a report prepared by the University of
Alaska Anchorage's Institute of Social and Economic
Research titled "The Economic Importance of Bristol
Bay Salmon Industry," the Bristol Bay sockeye fishery
"is the world's most valuable wild salmon fishery, and
typically supplies almost half of the world's wild
sockeye salmon."
We conclude that Bristol Bay's unique and significant
biological and economic characteristics are of great
interest not just to the Bristol Bay region but to the
state as a whole. We also conclude that 12BBAY's
purpose - to protect "Bristol Bay wild salmon and
waters" - is legitimate. And we conclude that 12BBAY
bears a fair and substantial relationship to the
initiative's legitimate purpose.
The sponsors of 12BBAY certainly could have proposed
an initiative of statewide application, but instead
they chose to focus on a very important fishery in a
single region. As we explained in Pebble Limited
Partnership, however, "legislatures routinely must
draw lines and create classifications."
10:12:15 AM
REPRESENTATIVE JOSEPHSON said the Supreme Court has affirmed
that targeting the Bristol Bay area is a legitimate action, and
applying the standard throughout the state is the legislature's
prerogative. The bill lays out that the interagency, peer
reviewed, reports will be conducted and if there is any
significant change made to the original plan, the findings must
be revisited before the matter would be presented to the
legislature. He noted that the standard of reasonable doubt may
seem odd, however, other states, such as Washington, have
imposed this requirement in forestry laws. Also, the
Commonwealth of Pennsylvania, a major mining state that hosts a
high level of fracking, imposes a rigorous standard through the
application of Pennsylvania Code §86.10(12), which he
paraphrased in order to stress the reasonable doubt standard.
He directed attention to the committee packet and the abundance
of support letters for the bill. Finally, he cautioned that
given the focus of the new federal administration, the
protective onus for Alaska is on the residents and the
legislature.
10:16:36 AM
REPRESENTATIVE EASTMAN asked whether Bristol Bay is singled out
because it merits an increased level of scrutiny or is it being
used as the locale for a pilot project prior to application to
the remainder of the state.
REPRESENTATIVE JOSEPHSON responded that a culture exists to make
Alaska a "salmon first state." The Supreme Court has indicated
that it is not unreasonable for the state to consider Bristol
Bay as an area that requires extra protection. The high
standard could certainly be applied to anywhere in Alaska.
However, Bristol Bay hosts the greatest sockeye salmon fishery
in the world and imposing a high standard is entirely
appropriate, he stressed
10:18:47 AM
REPRESENTATIVE NEUMAN referred to the bill, page 2, section 2,
that stipulates the role of the commissioners prior to
legislative recommendations being made, and said it may require
the promulgation of a tremendous number of regulations. He
asked what the sponsor envisions in this regard.
REPRESENTATIVE JOSEPHSON responded that the bill requires a
number of findings, and the department would need to consider
any additional regulations in order to comply. He opined that
this measure is the most important environmental, fisheries
decision in Alaska history, and it may require some effort.
REPRESENTATIVE NEUMAN asked for clarity regarding the federal v.
state purview for the area in question.
REPRESENTATIVE JOSEPHSON explained that the area encompasses
both state and federal lands, and the proposed mining
developments are located in a mixed use area.
REPRESENTATIVE NEUMAN directed attention to page 1, line 11, and
noted the addition of "fisheries, fish, or wildlife," and asked
whether the use of the term "fish" could be construed to mean an
individual fish.
REPRESENTATIVE JOSEPHSON conjectured how the language might be
read by a lawyer and the term could be considered singular or
plural.
REPRESENTATIVE NEUMAN said it would be helpful to clarify the
use of the term in keeping with the intent of the bill.
10:23:43 AM
REPRESENTATIVE JOSEPHSON said the bill is not just about the
Pebble Partnership, and pointed out that 11 other claims exist
in the region, and pointed out that the Donlin Gold mine falls
outside of the area, along with other mining threats that effect
the Bristol Bay area. The intent is to mirror a bill addressing
sulfide mining with the law that prohibits oil exploration in
the same area. At an April, 2015, meeting, the Board of
Fisheries (BOF) wanted to take a precautionary approach, under
Title 5, for managing sustainable salmon fisheries, and the bill
safeguards that concern along with placing a burden on mining
companies. The mining companies are poised to effect a
permanent change to the Southwest culture of Alaska, and thus,
the bill represents a reasonable standard to apply, he
maintained.
10:26:09 AM
REPRESENTATIVE CHENAULT asked for a walk-through of how a
proposed change to a previously approved permitting requirement
might be handled. He asked: what vote requirement would be
needed for approval on the floor of the legislature; will there
be added costs assumed by the legislature, lacking technical
staff; and whether any change to a permit would require
additional legislative approval prior to a project continuing
through the permitting process.
REPRESENTATIVE JOSEPHSON said changes to the permit would not
create an impedance to the process, and interagency peer review
would be considered dispositive; modifications as defined on
page 2, lines 7-13. A permit would be brought to each body only
once for a majority vote, based on the facts provided at the
time. Given the rigorous standards, he maintained that the
question would be one of trust. If the test applies, litigation
would be dispensed with based on the standard of compliance as
attained by the developers. He directed attention to the fiscal
notes contained in the committee packet, several of which are
zero, as some expenses are absorbed via designated departmental
funds, and said developers may also be responsible for some
agency costs. He referred to, and paraphrased from, a report
[Institute of Social and Economic Research (ISER) in the College
of Business and Public Policy at the University of Alaska,
titled, "The Economic Importance of the Bristol Bay Salmon
Industry," prepared for the Bristol Bay Regional Seafood
Development Association by Gunnar Knapp, Mouhcine Guetttabi, and
Scott Goldsmith, Executive Summary, page 1, 4/13], which read as
follows:
In 2010, harvesting, processing, and retailing Bristol
Bay salmon and the multiplier effects of these
activities created $1.5 billion in output or sales
value across the United States.
REPRESENTATIVE JOSEPHSON argued that given the documented,
economic value of the fishery, it would be cost effective for
the legislature to allocate a few hundred thousand dollars to
ensure the preservation of an industry worth $1.5 billion.
Future generations, he predicted, will certainly be appreciative
of the effort.
REPRESENTATIVE CHENAULT said it would be appropriate to hear
directly from the departments involved in issuing permits to
confirm that costs associated with HB 14 can be absorbed within
budgetary constraints. Further, if funding is being set aside
by any agency, it should be disclosed to the legislature.
10:32:07 AM
REPRESENTATIVE NEUMAN reiterated interest in hearing from the
departments. He opined that the existing standards are
considered to be highly effective, and perhaps nothing further
is necessary.
10:33:00 AM
CHAIR STUTES opened public testimony.
10:33:59 AM
DEANTHA CROCKETT, Executive Director, Alaska Miners Association
(AMA), commented on HB 14, paraphrasing from a prepared
statement, which read as follows [original punctuation
provided]:
The Alaska Miners Association (AMA) is the
professional trade association for Alaska's mineral
industry, including small family run placer mines;
large-scale mines and projects, and the contracting
sector that supports Alaska's mines. We're
represented in eight statewide branches: Anchorage,
Denali, Fairbanks, Haines, Juneau, Kenai,
Ketchikan/Prince of Wales, and Nome.
I'm here today to provide comment on HB 14, which
suggests amendments to the Bristol Bay Forever ballot
initiative passed by voters in 2014.
At the time the citizen's initiative titled the
Bristol Bay Fisheries Reserve was before voters, we
heard from proponents that it would strengthen
environmental protection and enhancement for the
Bristol Bay region by requiring the Alaska Legislature
to take action for final authorization of a mine
within the watershed. The bill is written so that
such action would take place after the mine had
obtained the dozens of state, local, and federal
permits required to move forward with mine
development.
AMA didn't choose to engage in opposition to the 2014
Bristol Bay Forever initiative because the law is
clearly unconstitutional. It violates the separation
of powers doctrine, which specifies that the
legislature enacts laws and the executive branch
implements and executes laws. It created laws via
ballot box resource management, and not through
deliberate, technical consideration. The Legislature
must now review and approve permits after they are
issued by the executive branch, and after the
technical experts at our regulatory permitting
agencies have evaluated and approved them. This
process is called "legislative veto" and the Alaska
Supreme Court has repeatedly said that a legislative
veto is unconstitutional. Additionally, as lawmakers
I ask you: Does the legislature have the technical
staff necessary to evaluate the complexities inherent
in permitting decisions? Do you even have the time,
especially in a 90-day session, to thoroughly evaluate
this type of decision?
To add to the flagrant legal issues, the initiative
created what is clearly special and local legislation.
Why single out a resource project in Bristol Bay? Why
not have the same legislative authority and approval
for projects located in the Cook Inlet drainage, the
Yukon-Kuskokwim drainage, the North Slope, the
Aleutians, and the Copper River drainage? Why would
we guide permitting decisions in Alaska by making one
set of rules for decisions in the Bristol Bay region
while we have a different set of rules governing
permitting requirements in the rest of the state? The
bill sponsor notes that a legal opinion expresses no
conflicts, but I caution you that should HB 14
proceed, I would expect to see formal legal
challenges.
Amending the initiative via this bill, HB 14, is only
making bad policy worse, and we urge you undergo
significant legal review prior to adopting
legislation. It politicizes Alaska's resource
permitting process by having state agency decisions
subject to review and approval by politicians rather
than professional technical agency staff with the
expertise to truly examine a proposed project.
Some may be surprised to learn that the law is
actually less protective than existing statutes
because it removes judicial scrutiny. Administrative
actions by agencies in the permitting processes are
governed by clear legal standards and subject to legal
review in the court system. The judicial branch
serves as an important check and balance to assure all
interested parties of a lawful and careful process.
In contrast, this bill requires the legislature to
make a finding and pass a statute to approve a
project. But any vote of the legislature is
inherently a political decision, and such a vote would
typically be immune from legal challenge.
To conclude, I assure you that this type of
legislation sends an alarmingly negative message to
the investment community that Alaska is unstable when
it comes to permitting. It could impact future
investment and job opportunities for all Alaskans, at
a time when we so desperately need economic diversity.
We urge you to consider that Alaska has a stringent,
robust environmental permitting and oversight
structure, and development projects in the state, no
matter where they are located, should be evaluated
through that process. HB 14 is bad policy and should
not be passed from this Committee.
10:36:33 AM
REPRESENTATIVE TARR asked if the constitutionality of the
initiative has been challenged following the public vote.
MS. CROCKETT said no opposition campaign occurred during the
initiative process; however, post vote, a group challenge was
lodged, with an unsuccessful outcome. However, should the bill
pass, more legal challenges may arise, she anticipated. To a
follow-up question she agreed to provide further information
regarding the disposition of the defeated court case.
10:39:27 AM
NELLI WILLIAMS, Alaska Director, Trout Unlimited, stated support
for HB 14, paraphrasing from a prepared statement, which read as
follows [original punctuation provided]:
I am the Alaska Director for Trout Unlimited and here
to testify in support of HB 14 on behalf of our 1,000
members and the dozens of sport fishing businesses who
operate in Bristol Bay.
The threat of large scale hard-rock mines like Pebble
is nothing new. Alaskans have been living in the
shadow of Pebble and their empty promises for over a
decade. That is a very real threat to the 14,000 jobs
and $1.6 billion economy that is currently out there.
Over the past many years Alaskans, led by local tribes
and fishermen have repeatedly opposed Pebble and asked
for protections for Bristol Bay. That concern grew
even more when Alaskans watched the tailings dam break
at the Mt. Polley mine [British Columbia] and the
subsequent impact to fishery jobs and culture there.
The same company who built the failed dam designed the
dams in Pebbles plans.
Recently notable is that 65 percent of Alaskans
(including a majority in every precinct of the state)
voted for increased protections for Bristol Bay. Our
current laws are not enough.
I am a mother of two young kids. Like many Alaskan
families some of our happiest moments are in a boat or
along a river bank.
We, all of us, have a responsibility to make sure
Alaskan families now and in the future have clean fish
filled rivers to use and enjoy.
We cannot afford to sit back and let a foreign mining
company call the shots.
I urge our state leaders to listen to [and] stand up
for Alaskan families and businesses and do everything
in your power to protect Bristol Bay's salmon and
jobs.
10:41:44 AM
ABE WILLIAMS, Representative, Pebble Partnership, stated
opposition to HB 14 and said it politicizes an established
process for permitting projects throughout Alaska. The
economics of the region are reliant on the stability of the
process that's in place. Separation of power issues are a
concern, he said, as well as the additional layers of
bureaucracy that the bill would institute. It is important to
protect and support the fisheries in a meaningful manner, but
resource development is also necessary.
10:44:05 AM
REPRESENTATIVE TARR questioned whether he supported the original
initiative.
MR. WILLIAMS replied, "No."
10:44:51 AM
REPRESENTATIVE EASTMAN asked if he plans to continue as a fourth
generation fisherman.
MR. WILLIAMS replied, "Yes." He said a large portion of the
$1.4 billion fishing industry benefits outside interests and the
majority of the 14,000 reported jobs are not held by Alaskans;
however, his three boys have, or are, also entering the
industry.
10:46:20 AM
CHAIR STUTES asked whether he is affiliated with the Bristol Bay
Fisheries Association, which has submitted a letter of support
for HB 14.
MR. WILLIAMS answered, "No."
10:47:09 AM
MIKE HEATWOLE, Representative, Pebble Partnership, cited the
unresolved constitutionality of the initiative and the questions
that remain, as previously testified to by Ms. Crockett. He
said HB 14 essentially creates a legislative veto; turning law
on its head. The bill creates a bureaucratic level to the
entire permitting process by requiring legislative review;
inclusive of modifications and extensions. He predicted that,
given the circumstances of the process, the legislature would be
required to review project permits on an annual basis.
Investors may find it difficult to retain confidence for
supporting development in any region, as the bill politicizes
the heretofore stable, predictable permit process.
REPRESENTATIVE FANSLER noted that the constitutionality
questions have been taken to the Alaska Supreme Court.
MR. HEATWOLE said the issue of special or multiple legislation
was addressed prior to the initiative vote, but the separation
of powers was not ruled upon and remains ripe for litigation.
To a follow-up question, he offered to provide further
information.
10:52:07 AM
LISA REIMERS, Member, Iliamna Village Corporation, stated
opposition to HB 14, and said many of the villagers sold their
permits when fishing was on a downturn, and now the jobs that
Pebble might provide are needed, with the families of the area
being torn apart, lacking an economic base. Politicians should
not be making the decisions, she stressed.
10:54:46 AM
CHAIR STUTES announced HB 14 as held.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB014 Sponsor Statement.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 vers D.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 vers A.PDF |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Summary of Changes A to D.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Fiscal Note DFG-DCF-01-27-2017.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Fiscal Note DFG-DSF-01-27-2017.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Fiscal Note DFG-SUB-01-27-2017.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support BBFA.PDF |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support Erickson.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support Sabo.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support Oberlatz.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support Weis.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support Hohl.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support Ekwok.PDF |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Supporting Document EPA.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support Form Letter.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Oppose Pease.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support Trout Unlimited.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support United Tribes of Bristol Bay Pebble Inspection Summary Report.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support United Tribes of Bristol Bay PEBBLE DRILL HOLE RECLAMATION.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support Kviteng.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support Sheridan.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 EPA Map of BB Watershed.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Supporting Document Ballot Measure 14 2014.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Support Thompson.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Oppose AMA Testimony 1.31.17.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Oppose AMA BBF Initiative & HB 14 Memo.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |
| HB014 Oppose CAP.pdf |
HFSH 1/31/2017 10:00:00 AM |
HB 14 |