Legislature(2011 - 2012)
05/14/2011 10:06 AM Joint HB106
| Audio | Topic |
|---|---|
| Start | |
| HB106 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 106-COASTAL MANAGEMENT PROGRAM
CHAIR JOHNSON announced that the only order of business would be
HOUSE BILL NO. 106, "An Act extending the termination date of
the Alaska coastal management program and relating to the
extension; relating to the review of activities of the Alaska
coastal management program; providing for an effective date by
amending the effective date of sec. 22, ch. 31, SLA 2005; and
providing for an effective date."
10:07:20 AM
CHAIR OLSON moved to adopt CSHB 106(FIN).
CHAIR JOHNSON objected.
A roll call vote was taken. Representatives Kerttula, Herron,
and Johnson voted in opposition to adopting CSHB 106(FIN).
Senators Wielechowski, Kookesh, and Olson voted against it.
Therefore, by a vote of 0-3 of the House members and 0-3 of the
Senate members, CSHB 106(FIN) failed to be adopted.
10:07:59 AM
CHAIR OLSON moved to adopt SCS CSHB 106(FIN).
CHAIR JOHNSON objected.
A roll call vote was taken. Representative Kerttula voted in
favor of adopting SCS CSHB 106(FIN). Representatives Herron and
Johnson voted against it. Senators Wielechowski, Kookesh, and
Olson voted for it. Therefore, by a vote of 1-2 of the House
members and 3-0 of the Senate members, SCS CSHB 106(FIN) failed
to be adopted.
10:09:12 AM
RENA DELBRIDGE, Staff, Representative Mike Hawker, Alaska State
Legislature, directed the committee's attention to Legislative
Legal and Research Services red- and blue-lined summary of
changes between CSHB 106(FIN) and SCS CSHB 106(FIN). The first
change is the clarifying language located on page 3, line 4,
which specifies that one alternate member will be appointed from
each of the specific regions. The language on page 3, lines 13-
14, restructures the language describing part of the Southwest
Alaska region. She then directed attention to the language on
page 3, lines 28 through page 4, line 10. The House version
allowed that the members of the Coastal Policy Board serve at
the will of the governor, while the Senate version allowed
members of the board to be removed for cause and adds language
outlining the process of removal of a member for cause. The
process requires written notice of the charges for cause to the
member and provides the member an opportunity to be heard. The
Senate language also establishes a process by which the
alternate member replaces the removed member and the alternate
is replaced. The Senate language defines the term "for cause".
On page 4, line 19, the Senate language clarifies that
alternates appointed as department [staff] will be appointed as
deputy commissioners, not merely deputies or designees. Page 8,
Section 8 of the House version included six factors that would
be considered when determining whether a policy uses the least
restrictive means to accomplish its objectives. The Senate
version splits the factors into two groups of three factors
each, the first group of which "shall be considered" and the
second group "may" be required. Ms. Delbridge then moved on to
the next change on page 10, lines 12-16. The House version,
CSHB 106(FIN), allowed that the department can require
additional action by the districts, when considering whether to
approve the plan or portions of the plan. The House version
requires that "any other action be taken by the coastal
district", while the Senate version allows the department to
require the coastal district to submit additional information
only if the department determines that additional information is
necessary for the department to approve the plan or portions of
the plan. The next change can be found on page 12, lines 10-13,
such that the Senate version adds a new subsection that
prohibits the department from requiring coastal districts to
designate areas for the purpose of developing enforceable
policies. On page 12, lines 18-19, there is a language change
such that the language "commissioner's designee" is changed to
"deputy commissioner". The aforementioned change, that the
commissioner's alternates will be deputy commissioners, is also
made on page 13, lines 6 and 13 as well as on page 14, lines 8-
9, and 31. On page 15 of the House version, CSHB 106(FIN)
created definitions for "local knowledge" and "scientific
evidence", whereas the Senate version, SCS CSHB 106(FIN) deletes
those definitions. The Senate language on page 15, lines 29-31,
specifies that the names considered by the governor to create
this policy board are also going to require three alternate
members. She referred to the aforementioned as a clarification.
Page 16 includes technical language changes such that the
"alternate member" is added throughout and the term "Act" is
replaced with "section". On page 16, Section 25 of the Senate
version language is added to require an additional reporting and
review requirement such that the board would be required to
report to the governor and the legislature as to the
effectiveness of the entire coastal management statutes.
Continuing on to page 17, lines 8-13 have conforming technical
language changes. On page 17, beginning on line 22 the House
version contained older language related to effective dates
contingent on 2006 actions that were no longer necessary, while
the Senate version deleted that reference. The remainder of the
changes on page 18, lines 18-21, is conforming changes.
10:18:05 AM
CHAIR JOHNSON requested an explanation of the Senate version,
SCS CSHB 106(FIN).
10:18:23 AM
DAVID GRAY, Staff, Senator Lyman Hoffman, Alaska State
Legislature, informed the committee that in the Senate Finance
Committee there were many discussions with the administration
and members of the House regarding the Senate's desired changes
to HB 106. In many cases, the administration responded with
language changes that accommodated the Senate. However, there
were some issues about which the administration maintained its
concern. He recalled that only about seven issues were taken
up, including the minor issue of the change in language from
"deputies" to "deputy commissioners". There are a couple of
outstanding issues that remain, he remarked.
10:19:55 AM
CHAIR OLSON inquired as to the reason for the filing of an
additional report as required on page 16, line 31, of the red-
and blue-lined legislation.
MR. GRAY explained that the Department of Environmental
Conservation (DEC) carveout in the House version practically
eliminates DEC permits from involvement with the coastal
planning commission. The Senate thought there should be an
incentive in order to have serious consideration regarding the
DEC carveout and whether it should be modified. He pointed out
that one of the iterations of HB 106, once in the Senate, was to
repeal the carveout two years from now and thus it would follow
the report from the new policy board. The aforementioned wasn't
well received. He further related that the Senate was
interested in the board returning four years from now with
recommendations regarding how the entire program was working.
10:23:14 AM
REPRESENTATIVE HERRON recalled that during discussions with the
attorney general regarding the DEC carveout sunset that Senator
Hoffman wanted there was a suggestion of a compromise. He asked
if the blue-lined language on page 16, line 31 through page 17,
line 1, was the language the attorney general brought to the
Senate.
MR. GRAY replied yes, adding that the language was from the
attorney general and was also discussed with Representative
Herron.
10:24:28 AM
CHAIR OLSON, referring to page 15 of the red- and blue-lined
legislation, inquired as to the rationale behind eliminating the
definitions for "local knowledge" and "scientific evidence".
MR. GRAY explained that the definition of "local knowledge"
[utilized in the House version] includes what has always been
accepted and used in the regulations plus the following new
language: "not contradicted by scientific evidence". The
definition of "scientific evidence" that is utilized in the
House version could be presented to contradict local knowledge
and that definition also exists in current regulations. Some
felt that there should be a higher standard when local knowledge
can't be brought forward. The new provision of the definition
of "local knowledge" that requires local knowledge can't be
contradicted by scientific evidence constrained local knowledge
such that it couldn't be considered in the processes.
Therefore, there was a desire to make a higher standard for the
elimination of local knowledge, which resulted in suggestions to
require a preponderance of scientific evidence or clear and
convincing evidence. The aforementioned suggestions weren't
accepted by some in the Senate, which resulted in deleting the
definitions from the legislation and leaving the definitions in
regulation as they are currently. If there was a need for some
qualification of local knowledge, then the Department of Natural
Resources (DNR) could promulgate regulations. Mr. Gray related
that the Senate felt that deletion of the definitions of "local
knowledge" and "scientific evidence" would allow more
flexibility in dealing with the two.
10:28:37 AM
SENATOR WIELECHOWSKI related his understanding that the House
legislation, CSHB 106(FIN), included the definitions of "local
knowledge" and "scientific evidence" as they are in existing
regulations and placed them in statute.
MR. GRAY replied yes.
SENATOR WIELECHOWSKI highlighted that essentially the only
change from those definitions in regulations was the addition
under "local knowledge" of subparagraph (C). He then inquired
as to how the addition of subparagraph (C) impacts HB 106.
MR. GRAY said that he couldn't answer that question.
SENATOR WIELECHOWSKI then related his understanding that
although the addition of subparagraph (C) allows local
knowledge, a junior scientist who documents the site with
journal entries and a photograph could overrule thousands of
years of local knowledge. He asked if that's Mr. Gray's
understanding of the provision as well.
MR. GRAY opined that it's a possibility. He related that the
Senate received concern from districts regarding what
[subparagraph (C)] meant and whether it was necessary.
10:32:07 AM
CHAIR JOHNSON remarked that the term "junior scientist" is
inappropriate since the definition for scientific evidence sets
a fairly high bar for the scientific evidence, including being
peer reviewed.
10:32:51 AM
SENATOR WIELECHOWSKI stated that although that may be the
intent, that's not what the language of [CSHB 106(FIN)] says.
He directed attention specifically to the language of Section
20(17)(C)(i)-(ii) of CSHB 106(FIN). The aforementioned language
could result in a professional junior scientist coming to Alaska
for the summer, issuing an opinion, and overruling thousands of
years of local knowledge. If there is a different
interpretation of this proposed statute, then perhaps the
language needs to be clarified because the existing proposed
language of Section 20(17)(C)(i)-(ii) of CSHB 106(FIN) does not
impose a high bar for scientific evidence.
10:33:58 AM
REPRESENTATIVE KERTTULA said that she read the language the same
as Senator Wielechowski, and thus the language needs to be
clarified.
10:34:26 AM
REPRESENTATIVE KERTTULA informed the committee that she reviewed
the legislation regarding how local knowledge is used and only
found three places other than the definition in which the
legislation references local knowledge.
MR. GRAY concurred.
REPRESENTATIVE KERTTULA pointed out that in each of the areas in
which local knowledge is used, the state maintains the final
say. In fact, in one of the sections the state is the entity
that uses local knowledge to overturn a district decision. She
asked if Mr. Gray has the same understanding, that the state
always holds the final trump card in terms of decisions
regarding local knowledge.
MR. GRAY mentioned that there had been questioning as to where
the problem is that [subparagraph (C)] addresses.
10:35:54 AM
REPRESENTATIVE KERTTULA interpreted the language in subparagraph
(C), "not contradicted by scientific evidence", to mean that
local knowledge can't be contradicted by any scientific
evidence, no matter how minimal.
MR. GRAY related his understanding that the feeling was that DNR
has a considerable amount of say with regard to how things can
work out. He reiterated that the question remains: Why the
need?
10:37:23 AM
CHAIR JOHNSON said that it's necessary to have the definitions
[of local knowledge and scientific evidence] in statute rather
than regulation. However, he acknowledged that there could be
reason to debate whether the definition is proper. He then
stated his opposition to striking the [definitions] entirely.
10:38:05 AM
CHAIR OLSON asked if Chair Johnson would entertain a motion to
strike subparagraph (C) and reinsert paragraphs (16) and (17).
CHAIR JOHNSON responded not at this time.
10:39:10 AM
LARRY HARTIG, Commissioner, Department of Environmental
Conservation, began by explaining that he is present today
because he was part of the administration's team that was
involved in negotiations regarding the Alaska Coastal Management
Program (ACMP). He then related the administration's thanks for
all the hard work done on the ACMP. At the beginning of the
legislative session, the administration made clear what it saw
as the guiding principles in trying to craft a new ACMP that
moves from the years of constant turmoil and litigation. The
four principles are as follows:
1) There needs to be a predictable ACMP process;
2) Community input needs to be valued;
3) There must be objective and predictable standards,
enforceable policies; and
4) There must be no local veto over proposed projects.
COMMISSIONER HARTIG opined that the compromise struck in CSHB
106(FIN) adheres to those principles and allows dialogue and
issue resolution rather than litigation. The governor's May 12
letter to Senator Hoffman and both bodies attempts to address
the concern that SCS CSHB 106(FIN) interrupts the balance
achieved by the four principles. He emphasized that the
aforementioned was after months of [discussions] back and forth
that was preceded by many years of [discussions] back and forth.
Many people put a lot of effort into crafting the language in
CSHB 106(FIN) and it didn't take much to upset the balance.
Commissioner Hartig related that upon receipt of Senator
Hoffman's seven concerns the administration tried to review them
with an open mind. During that review, as Mr. Gray indicated,
suggested language was proposed. However, at the onset of the
discussion [the administration] identified that the DEC carveout
and definitions couldn't be changed.
10:43:47 AM
COMMISSIONER HARTIG then turned to the definitions of "local
knowledge" and "scientific evidence". He pointed out that the
aforementioned definitions first appear in Section 7 of [CSHB
106(FIN)] where "local knowledge" is used to support the
identification of a need of an enforceable policy. Prior to HB
106 local knowledge was used primarily to designate subsistence
use, not to justify the establishment of enforceable policies or
define what those policies look like. The aforementioned was a
major shift, he remarked. When the administration reviewed
local knowledge in terms of how to expand the voice of local
districts, other uses of local knowledge beyond its primary uses
by DNR were included.
10:45:27 AM
REPRESENTATIVE KERTTULA clarified that Commissioner Hartig is
correct in terms of the current program, but under the previous
program local knowledge was accepted as evidence and information
when the agencies made decisions. In fact, local knowledge
played a large role in the Good News Bay case.
10:46:03 AM
COMMISSIONER HARTIG noted that he was speaking to the change
from the status quo. He then stated that the four principles
illustrate that the administration was seriously trying to
expand the use of local knowledge and its use in justifying the
need for additional enforceable polices and crafting those. He
directed attention to AS 46.40.030 and pages 7-8 of the red- and
blue-lined version of HB 106, which list the four requirements
of an enforceable policy. One of the requirements is to
"address a coastal use or resource of concern to the residents"
and local knowledge can be used to establish the aforementioned.
10:47:10 AM
CHAIR OLSON pointed out that this discussion regarding "local
knowledge" assumes there is a coastal management plan in place
and approved by DNR. However, the majority of the coastal
management plans haven't been approved and thus there's no place
at the table for folks to express their concerns.
CHAIR JOHNSON recalled that of the 23-24 coastal zone districts,
only 3 haven't been approved.
COMMISSIONER HARTIG related his belief that Chair Johnson is
correct, but mentioned that DNR could verify the numbers.
CHAIR OLSON maintained his understanding that the frustration
was in regard to the coastal management plans that weren't
approved, which he understood to be more than just three.
CHAIR JOHNSON said he would like the aforementioned clarified.
10:48:15 AM
COMMISSIONER HARTIG pointed out that AS 46.40.030 addresses the
development of district coastal management plans, and therefore
what he is discussing is applicable to the approval of those
plans. The hope would be that those coastal districts with
unapproved plans will be approved whatever the legislation looks
like. The intent, he emphasized, is for the coastal districts
to have a voice, which is achieved via an [approved] coastal
management plan.
10:48:51 AM
COMMISSIONER HARTIG referred to Section 7(b)(4) of both CSHB
106(FIN) and SCS CSHB 106(FIN), which read: "employ the least
restrictive means to achieve the objective of the enforceable
policy"; the key phrase of which is the "least restrictive
means". He then pointed out that under Section 8(c)(2) "local
knowledge" or "scientific evidence" can be used to support an
alternative method. For example, a community that relies on a
caribou herd for subsistence would want to ensure any proposed
development/activity in the coastal area doesn't negatively
impact the caribou herd. In such a case, local knowledge can be
used to establish an enforceable policy. If local knowledge is
used to establish an enforceable policy, then that area can be
protected. However, the question arises as to whether the
enforceable policy applies to the entire [coastal district] area
or specific designated areas. The thought was that if [coastal
districts] aren't required upfront to have designated areas, the
requirement to utilize the least restrictive means would provide
[boundaries]. Local knowledge or scientific evidence could be
used to establish the boundaries. Although the limits of local
knowledge could be reached in cases when the proposed activity
hasn't occurred in the area before, scientific evidence could be
used to fill in the gaps. Commissioner Hartig emphasized that
the idea is for "local knowledge" and "scientific evidence" to
work harmoniously as is the case most of the time, as was
mentioned in Mayor Itta's letter. Therefore, although he wasn't
anticipating many conflicts, there will be limits to both and
there may reach a point of conflict. [In times of conflict] the
definition is more important in terms of providing
predictability and avoiding conflicts. To achieve the
aforementioned in the legislation, the language is such that
"scientific evidence" trumps "local knowledge" while making sure
that the definition of scientific evidence is very robust.
Commissioner Hartig noted his agreement with Chair Johnson that
"scientific evidence" isn't a junior scientist waving a
photograph.
10:54:56 AM
REPRESENTATIVE KERTTULA pointed out that under Section 8 (d)(3)
the department may require "any other relevant factors" to
determine whether an enforceable policy employs the least
restrictive means. She asked if that's a correct
interpretation.
COMMISSIONER HARTIG said that the idea is to provide guidance in
statute in order to avoid debate and uncertainty later. The
factors in Section 8(c)(1)-(3) are factors that most coastal
districts can provide. However, the additional factors under
Section 8(d)(1)-(3) are more costly factors the department may
or may not require. Therefore, the "may" language provides
flexibility such that the Section 8(d)(1)-(3) factors aren't
required of a coastal district in every instance. Furthermore,
Section 8(d)(3) is intended as a catchall, although DNR would
have to determine that it's something that could reasonably be
produced by the coastal district and is relevant to the
decision, which is the least restrict alternative.
REPRESENTATIVE KERTTULA maintained that the department could
still require any other relevant information. She surmised that
it doesn't really depend upon the contradicting power of
"scientific evidence" over "local knowledge" because the
department can still trump [the situation] because it can
require any other relevant information.
COMMISSIONER HARTIG reminded the committee that these provisions
refer to the approvability of the plans and the enforceable
policies that are part of the plans. He said he hasn't heard a
complaint in the past. Commissioner Hartig explained that first
there would need to be a reason to evaluate the alternatives.
Therefore, the test of relevancy would protect the coastal
districts. Furthermore, there are portions of the act that
require DNR to assist coastal districts. He opined that it's
difficult to respond to the real risk without a real example,
particularly since that concern wasn't expressed during
negotiations.
10:58:57 AM
REPRESENTATIVE KERTTULA returned to Commissioner Hartig's
earlier caribou example and posed that local knowledge says that
caribou are in a particular area whereas scientific knowledge
says the caribou are in another area. Representative Kerttula
said that she didn't understand why it would be necessary to
undercut the existing [regulatory] definition of "local
knowledge" with the requirement found in CSHB 106(FIN) that
local knowledge isn't contradicted by scientific evidence,
particularly since local knowledge can ultimately be trumped by
the department. In Section 8 the aforementioned is accomplished
by the following requirement: "any other relevant factors."
Ultimately, the department maintains authority over these
decisions and local knowledge is merely one factor to review.
COMMISSIONER HARTIG, continuing with the caribou example, said
there may be local knowledge that the caribou utilize a certain
migratory route, although there may be no scientific evidence of
that at the time. If that local knowledge met the definition in
CSHB 106(FIN) such that the local knowledge is based on local
observations and is consistently accepted by members of the
community, then "it's in." However, there could be concern that
the aforementioned could cause a certain area of the coastal
district to become off limits to some activity in the future,
and may desire further testing of that local knowledge. A study
could be performed, although it would have to meet the test of
scientific evidence. If that scientific evidence was produced,
then there would have to be review as to whether there is truly
a conflict between the local knowledge and the scientific
evidence. Commissioner Hartig said, "There is a path there, ...
people know that absent ... truly contradicting scientific
evidence, the local knowledge is going to be used." The balance
is that scientific evidence has to have what he regarded as a
high hurdle.
11:03:08 AM
CHAIR OLSON pointed out that there are studies that contradict
each other. Therefore, he questioned how the department will
decide which study carries more weight and prevails.
COMMISSINER HARTIG said that although he's not the commissioner
of DNR, he deals with the matter [of conflicting studies]
regularly] in the environmental arena. He highlighted that
before "scientific evidence" can be considered it must meet the
definition set out in proposed Section 20(17)(A)-(C)(1)-(3). In
regard to the earlier mention of a junior scientist producing a
photograph for scientific evidence, that photograph must meet
the requirements specified in the aforementioned section. The
idea with the requirements of Section 20(17)(A)-(C)(1)-(3) is to
narrow the scope in hopes of eliminating the competing science.
Practically speaking, it would be left to DNR to bring in the
expertise of other agencies and experts and have the parties
bring in their own experts for review through the permitting or
ACMP process to determine the best science. If the
aforementioned can't be accomplished, then more studies can be
required.
11:06:40 AM
CHAIR JOHNSON inquired as to the process when there is
conflicting local knowledge.
COMMISSIONER HARTIG indicated he would answer [upon
reconvening].
11:08:15 AM
CHAIR JOHNSON recessed to the call of the chair at 11:08 a.m.
12:41:01 PM
CHAIR JOHNSON reconvened the hearing at 12:41 p.m.
12:41:17 PM
REPRESENTATIVE HERRON inquired as to why it's so important to
include the language of Section 20(16)(c) in the definition of
"local knowledge" when clearly the state has the advantage, as
illustrated in AS 46.40.030 and AS 46.40.
COMMISSIONER HARTIG directed attention to proposed Section
15(a)(2)(B), which relates to situations in which the coastal
district wants to adopt an enforceable policy that is otherwise
within the jurisdiction of a federal or state agency to set.
The aforementioned applies to agencies other than DEC because of
the DEC carveout. He then highlighted the language of Section
15(b)(1)(A), which is strong language that addresses those
situations in which there is a proposed enforceable policy
that's within a federal or state agency's authority to set as a
standard. Therefore, it's not "in the full field" that he
discussed earlier regarding the use of local knowledge, but
rather is a subset of that.
12:45:08 PM
REPRESENTATIVE HERRON opined that for him and his constituents
the terms "local knowledge" and "scientific evidence" in CSHB
106(FIN) are necessary. However, the language "not
contradicted" in Section 20(16)(C) is of concern. He informed
the committee that he had discussed replacing the "not
contradicted" language with "non contradicted" and "supported
by".
COMMISSIONER HARTIG mentioned that during discussions with the
Senate regarding CSHB 106(FIN), the Senate was told that the
definitions and the DEC carveout were "must-haves."
Furthermore, there were no such discussions with the House
[regarding potential language changes to the definitions and the
DEC carveout]. Commissioner Hartig said he isn't prepared nor
authorized to negotiate such language changes [to the
definitions].
REPRESENTATIVE HERRON recalled that the commissioner had
characterized the language "not contradicted" as clumsy. If the
language is the crux of the legislation, then he opined that
it's the responsibility of the committee to work on developing
language that will work for both bodies.
12:48:48 PM
SENATOR WIELECHOWSKI inquired as to the impact to the state if
HB 106 doesn't pass and the ACMP lapses. He further inquired as
to whether the aforementioned is something the Parnell
Administration supports.
COMMISSIONER HARTIG clarified that the governor wants to have
the ACMP in place. What began as a simple extension has gone
through months of negotiations and much effort. Commissioner
Hartig felt that the ACMP has value in terms of providing
federal funds to the state, which results in jobs and additional
planning funds. He estimated that about $1.2 million goes to
various communities for planning. Through the ACMP there's also
the opportunity to involve people in the process early on,
although there are other ways to do so. Furthermore, there are
federal activities in federal waters that must show [compliance]
with the ACMP. Due to the DEC carve, DEC's spill prevention
standards are the state's enforceable policies for spill
prevention. Therefore, Outer Continental Shelf (OCS) activities
are reviewed for consistency with DEC spill prevention
standards, which are in most cases more rigorous than federal
standards. The aforementioned provides a layer of protection
and a voice in the process. Commissioner Hartig offered that
without ACMP some of those primary benefits could be replicated
by the state while others couldn't be replicated.
12:51:34 PM
CHAIR OLSON inquired as to whether the governor will veto
coastal management legislation that's similar to SCS CSHB
106(FIN). If the commissioner is unable to answer the
aforementioned, he inquired as to what Commissioner Hartig would
recommend to the governor.
COMMISSIONER HARTIG opined that the governor's position was
fairly clear in the letter he sent to Senator Hoffman and which
was forwarded to the entire body. Commissioner Hartig expressed
concern that there will be focus on one item rather than
considering [the legislation] on balance. The letter, he
further opined, provides clear guidance with regard to the
definitions.
CHAIR OLSON acknowledged that there have been a lot of
negotiations with the governor over the last several months.
However, he emphasized that [folks having been trying] to have a
voice over the last five years, which has been frustrating. The
aforementioned is likely why both sides have been fairly
determined to address key issues.
12:53:25 PM
REPRESENTATIVE KERTTULA related that she, too, wants the program
to survive, but expressed concern that the two independent
definitions from the regulations have been mixed in the manner
before the committee today. She then echoed her earlier remarks
that every time local knowledge is mentioned in the legislation,
the state retains the right to trump local knowledge when
necessary. Therefore, she questioned why it's necessary to do
this. She expressed hope that the governor and the legislature
work together to develop a compromise in the language and save
this program, albeit what's being argued about are the scraps of
the former program. Still, Representative Kerttula maintained
that there is enough left to have a robust and meaningful
program. In fact, she surmised that there will be places in
which the state agencies will want to allow local knowledge to
prevail. In conclusion, Representative Kerttula expressed hope
that there is a way to work out the language.
12:55:07 PM
CHAIR JOHNSON remarked that all the language, save the sunset
date could be deleted. He opined that the aforementioned might
be acceptable to everyone.
CHAIR OLSON noted that the governor might not be happy with
that.
12:55:34 PM
CHAIR OLSON moved that the committee adopt SCS CSHB 106(FIN).
12:55:54 PM
CHAIR JOHNSON then recessed to the call of the chair.
1:08:04 PM
CHAIR JOHNSON reconvened the meeting.
1:08:12 PM
CHAIR OLSON withdrew his motion to adopt SCS CSHB 106(FIN).
1:08:20 PM
CHAIR OLSON posed a scenario in which two scientific studies
contradict each other, but one was determined to be invalid. In
this case would the invalid study trump local knowledge, he
asked.
COMMISSIONER HARTIG said that he would have to think about that
further. The definitions are there to guide the agencies, which
can request more information and study. Commissioner Hartig
then offered that the first question would be whether both meet
the definition of scientific evidence. If that's the case,
additional study may be required. Ultimately, it's left to the
agency's discretion through a public process.
CHAIR OLSON surmised then that the answer is yes, the invalid
study would trump local knowledge.
COMMISSIONER HARTIG replied yes, but noted that there are a
number of steps prior to reaching that point, such as requiring
more studies.
1:10:21 PM
CHAIR JOHNSON, continuing to refer to Chair Olson's scenario,
inquired as to how local knowledge would marry into the
scientific studies.
COMMISSIONER HARTIG explained that first the scientific evidence
being offered would be reviewed in terms of whether it passes
the definition and if it does, that scientific evidence would be
used. Second, if local knowledge passes the definition, then it
can be used. In a scenario in which there is a conflict between
one piece of scientific knowledge and another piece of
scientific knowledge and there's a conflict between scientific
knowledge and local knowledge, there would be opportunities for
additional input, studies. However, ultimately the agency will
have to make a decision with regard to which piece of scientific
evidence is more persuasive and determine whether that's in
conflict with the local knowledge and if so, then the
[scientific evidence] could trump that.
1:12:43 PM
SENATOR WIELECHOWSKI related his understanding that the language
means that any scientific evidence, as defined by statute, that
contradicts local knowledge makes it impossible for agencies to
consider local knowledge. He highlighted the language of
Section 7(b)(3), and reiterated his understanding that if there
is science that contradicts local knowledge, then consideration
of local knowledge is essentially removed and can't legally be
considered.
COMMISSIONER HARTIG clarified that it's only when there is a
direct and substantial conflict. In the hypothetical caribou
migration situation, local knowledge would be used so long as it
passes the definition test. However, if the local knowledge
reaches a point where there is a conflict with the scientific
evidence, then the local knowledge isn't used on that particular
issue.
1:14:36 PM
REPRESENTATIVE KERTTULA said she believes that's what everyone
wants to have happen, but that's not what the statute says. She
pointed to the "not contradicted by" in the definition of "local
knowledge" in Section 20(16)(C).
1:15:05 PM
SENATOR KOOKESH told the committee that 10 years of subsistence
battles with which he was involved are similar to this. He
opined that [the legislature] wants to use local knowledge and
have local input, but he doesn't believe this administration
wants to use it. Senator Kookesh said, "For the record ... the
administration does not want to use local knowledge and will
find every way not to use it." He opined that the
aforementioned is unfortunate because those in rural Alaska want
to find a way to have local knowledge be counted as a factor and
on equal footing. However, this legislation doesn't allow it
and the administration doesn't want it to happen, he said.
1:15:54 PM
CHAIR JOHNSON interjected his belief that all Alaskans, not just
rural Alaskans, want local input in resource development. He
indicated his opposition to characterizing this as an urban
versus rural conflict.
SENATOR KOOKESH stated that this issue revolves around coastal
zones in Alaska, which are mostly populated by Native Alaskans.
CHAIR JOHNSON noted that he lives in a coastal zone in which
half the population of the state resides.
1:16:36 PM
CHAIR JOHNSON recessed to the call of the chair at 1:16 p.m.
4:52:05 PM
CHAIR JOHNSON reconvened the meeting at 4:52 p.m.
4:52:17 PM
CHAIR OLSON moved to adopt SCS CSHB 106(FIN) and insert the
language of CSHB 106(FIN) on page 14, lines 10-14 and lines 16-
29 and add the following paragraph in Section 6 as follows:
(5) in administering AS 46.40, address conflicts
between local knowledge and scientific evidence by
determining the relative strengths of the scientific
evidence and the evidence supporting the local
knowledge, and render a written decision; in this
paragraph "local knowledge" and "scientific evidence"
have the meanings given in AS 46.40.210.
There being no objection, it was so ordered.
4:54:00 PM
CHAIR JOHNSON explained that although the Conference Committee
on HB 106 doesn't have limited powers of free conference at this
time, the committee intends to act in anticipation of receiving
limited powers of free conference.
4:54:38 PM
CHAIR OLSON moved to adopt the CCS HB 106. There being no
objection, it was so ordered.
4:55:16 PM
CHAIR JOHNSON announced a brief recess.
4:56:00 PM
CHAIR OLSON made a motion to grant Legislative Legal and
Research Services the authority to make all necessary technical
and conforming changes to reflect the committee's work today.
There being no objection, it was so ordered.
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