03/13/2020 01:00 PM House RESOURCES

           HB 138-NATIONAL RESOURCE WATER DESIGNATION                                                                       
                                                                                                                                
2:18:14 PM                                                                                                                    
                                                                                                                                
CO-CHAIR LINCOLN  announced the next  order of business  would be                                                               
HOUSE BILL  NO. 138, "An  Act requiring the designation  of state                                                               
water  as  outstanding  national   resource  water  to  occur  in                                                               
statute; relating to management  of outstanding national resource                                                               
water  by  the  Department  of  Environmental  Conservation;  and                                                               
providing for an effective date."   [Before the committee was the                                                               
proposed  committee  substitute  (CS)  for  HB  138,  Version  K,                                                               
adopted  as  a  working  document  during  the  bill  hearing  on                                                               
2/10/20.]                                                                                                                       
                                                                                                                                
CO-CHAIR LINCOLN handed the gavel to Co-Chair Tarr.                                                                             
                                                                                                                                
2:18:33 PM                                                                                                                    
                                                                                                                                
The committee took an at-ease from 2:18 p.m. to 2:21 p.m.                                                                       
                                                                                                                                
2:21:25 PM                                                                                                                    
                                                                                                                                
CO-CHAIR TARR explained forthcoming amendments.                                                                                 
                                                                                                                                
2:22:13 PM                                                                                                                    
                                                                                                                                
CO-CHAIR LINCOLN moved to adopt  [Amendment 10, K.22, labeled 31-                                                               
LS0811\K.22, Marx,  3/3/20, identified on the  audio recording as                                                               
Amendment 12], which read [original punctuation provided]:                                                                      
                                                                                                                                
     Page 2, line 26:                                                                                                           
          Delete "resident of"                                                                                                  
          Insert "qualified nominator in"                                                                                       
                                                                                                                                
     Page 4, line 23:                                                                                                           
          Delete "."                                                                                                            
          Insert ";"                                                                                                            
                                                                                                                                
     Page 4, following line 23:                                                                                                 
     Insert a new paragraph to read:                                                                                            
              "(3)  "qualified nominator" includes                                                                              
               (A)  an individual who establishes residency                                                                     
     under AS 01.10.055;                                                                                                        
               (B)  a corporation, company, partnership,                                                                        
      firm, association, organization, business, trust, or                                                                      
      society organized, incorporated, or headquartered in                                                                      
     the state;                                                                                                                 
               (C)  a federally recognized tribe or tribal                                                                      
     entity in the state;                                                                                                       
               (D)  a municipality, an unincorporated                                                                           
      village, or another unit of local government in the                                                                       
     state."                                                                                                                    
                                                                                                                                
CO-CHAIR TARR objected for discussion purposes.                                                                                 
                                                                                                                                
CO-CHAIR  LINCOLN  explained  [Amendment 10,  K.22]  expands  and                                                               
clarifies who could nominate a  waterbody for Tier 3 designation.                                                               
The  original version  of the  bill  limited the  nominator to  a                                                               
resident of  the state; however,  the amendment would  change any                                                               
reference  to  a resident  of  the  state  to  a reference  to  a                                                               
qualified  nominator  and  defines  that  a  qualified  nominator                                                               
includes  a   resident  of   the  state,   varied  organizations,                                                               
corporations, and  other entities,  a federally  recognized tribe                                                               
or  tribal entity  in  the  state, and  a  municipality, a  local                                                               
government, or  an unincorporated village.   He noted  the length                                                               
of residency  of a nominator  was discussed but was  not included                                                               
in the amendment.                                                                                                               
                                                                                                                                
2:25:00 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CHUCK  KOPP, Alaska State Legislature,  sponsor of                                                               
HB 138, expressed support for the amendment.                                                                                    
                                                                                                                                
CO-CHAIR TARR  removed her objection  and there being  no further                                                               
objection, [Amendment 10, K.22] was adopted.                                                                                    
                                                                                                                                
2:25:40 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HANNAN  moved  to   adopt  [Amendment  11,  K.15,                                                               
labeled 31-LS0811\K.15,  Marx, 2/20/20,  identified on  the audio                                                               
recording  as  Amendment  7], which  read  [original  punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     Page 4, lines 9 - 11:                                                                                                      
          Delete "does not constitute a final agency                                                                            
      decision or action, and the recommendation or action                                                                      
      is not subject to appeal, including appeal or review                                                                      
     under AS 44.62 (Administrative Procedure Act)."                                                                            
          Insert "is a final agency decision and may be                                                                         
     appealed to the superior court under the Alaska Rules                                                                      
     of Appellate Procedure."                                                                                                   
                                                                                                                                
CO-CHAIR TARR objected for discussion purposes.                                                                                 
                                                                                                                                
REPRESENTATIVE  HANNAN  explained  the amendment  states  clearly                                                               
that a recommendation  or action of the commission,  related to a                                                               
nomination that has been submitted  to the commission, is a final                                                               
agency decision that may be  appealed to the superior court under                                                               
the  Alaska  Rules   of  Appellate  Procedure.     She  said  the                                                               
commission's  decisions  related to  a  Tier  3 water  nomination                                                               
should be subject to a high  level of scrutiny through an appeals                                                               
process.                                                                                                                        
                                                                                                                                
CO-CHAIR LINCOLN  expressed opposition  to the  amendment because                                                               
it is  clear a recommendation  of the  commission is not  a final                                                               
decision;  the designation  requires that  legislative action  be                                                               
the final decision.   He suggested the  amendment complicates the                                                               
designation  process, encourages  litigation  against the  state,                                                               
and is contrary to the purpose of  the bill, which is to have the                                                               
legislature  evaluate  and  designate  Tier  3  waters  with  the                                                               
support of the commission.                                                                                                      
                                                                                                                                
REPRESENTATIVE TUCK asked  whether there is a way  for someone to                                                               
adjudicate the designation process.                                                                                             
                                                                                                                                
2:28:11 PM                                                                                                                    
                                                                                                                                
MARIE  MARX,  attorney,  Legislative Legal  Counsel,  Legislative                                                               
Legal Services, Legislative Affairs  Agency, said the bill states                                                               
a recommendation by  the commission is not a  final agency action                                                               
subject  to  review  or  appeal,  which  is  the  intent  of  the                                                               
legislature; however,  a court can  always consider  the legality                                                               
of  a   decision.    She   restated  [the  bill]   indicates  the                                                               
recommendation should not be subject  to review except in limited                                                               
circumstances,  such  as  a  decision   or  legislation  that  is                                                               
unconstitutional, arbitrary, or capricious.                                                                                     
                                                                                                                                
REPRESENTATIVE  TUCK gave  an example  of  a designation  process                                                               
that was  followed and asked  if, after the legislature  passed a                                                               
bill introduced  by the governor,  the decision would  be subject                                                               
to review or appeal.                                                                                                            
                                                                                                                                
MS. MARX  said the  legislature has  the constitutional  power to                                                               
pass or not  pass legislation, which cannot be  infringed upon by                                                               
the court system.                                                                                                               
                                                                                                                                
CO-CHAIR  TARR  asked whether  adoption  of  the amendment  would                                                               
change the commission from an advisory commission.                                                                              
                                                                                                                                
MS. MARX restated the commission  appears to be a purely advisory                                                               
body that  lacks the  ability to enforce  or administer  law; the                                                               
commission  is  intended  to gather  information  and  provide  a                                                               
recommendation to  the governor  and the  legislature.   She said                                                               
she could  not find a  similar advisory body in  existing statute                                                               
that has a process for the  review of the opinion of the advisory                                                               
body.  Some  advisory bodies also have the ability  to enforce or                                                               
administer the  law; for  example, the  Office of  the Ombudsman,                                                               
Legislative  Agencies   and  Offices,  investigates   and  issues                                                               
recommendations  but  it is  a  different  type  of agency.    In                                                               
addition,  bodies  such  as the  Alaska  Health  Care  Commission                                                               
(defunded),  Department of  Health  and Social  Services, or  the                                                               
Alaska  Tourism   Marketing  Board  (disbanded),   Department  of                                                               
Commerce, Community  & Economic  Development, were  also advisory                                                               
and  did not  have a  mechanism in  place for  review.   Ms. MARX                                                               
explained  advisory bodies  do not  have a  mechanism for  review                                                               
because they do  not issue decisions that affect the  rights of a                                                               
person or  that governs the conduct  of the public.   In fact, if                                                               
the  commission  declines  to forward  a  recommendation  to  the                                                               
governor  or   the  legislature,  a  nominator   can  submit  its                                                               
nomination  directly  to  a  legislator.   In  this  manner,  the                                                               
commission is unique and without  precedent for review or appeal.                                                               
In further response  to Co-Chair Tarr, she agreed  if a nominator                                                               
could  not submit  a nomination  directly to  a legislator,  that                                                               
would change the nature of the commission.                                                                                      
                                                                                                                                
2:35:18 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SPOHNHOLZ  questioned whether the fact  that three                                                               
department  commissioners serve  on  the  commission affects  the                                                               
advisory manner of the commission.                                                                                              
                                                                                                                                
MS. MARX referred  to an opinion from the  attorney general dated                                                               
7/19/16  that  discussed  components  of  advisory  agencies  and                                                               
determined that  the role of  an advisory committee is  to gather                                                               
information,  make recommendations  and, in  some cases,  prepare                                                               
advisory   opinions  or   write  reports.     Further,   advisory                                                               
committees do  not administer or enforce  the law.  She  said she                                                               
would  provide   the  aforementioned   written  opinion   to  the                                                               
committee.                                                                                                                      
                                                                                                                                
REPRESENTATIVE TUCK  directed attention to  Version K on  page 4,                                                               
line 12, which read:                                                                                                            
                                                                                                                                
     If the commission recommends that  a nominated water be                                                                    
     designated as outstanding  national resource water, the                                                                    
     governor  shall prepare  and submit  a bill  consistent                                                                    
     with the recommendation of the commission.                                                                                 
                                                                                                                                
REPRESENTATIVE  TUCK   asked  whether  a  nominator   would  have                                                               
justification  for a  lawsuit should  the governor  not submit  a                                                               
bill to the legislature.                                                                                                        
                                                                                                                                
MS.  MARX opined  it  is  the duty  of  the  executive branch  to                                                               
execute the  law passed by  the legislature, therefore,  a person                                                               
could sue,  although she did  not cite  supporting case law.   In                                                               
further  response  to  Representative   Tuck,  she  said  were  a                                                               
governor  to delay  action, the  duties of  the executive  branch                                                               
would flow through to the next administration.                                                                                  
                                                                                                                                
2:40:27 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HOPKINS  directed attention  to Version K  on page                                                               
3, lines 11-13, which read [in part]:                                                                                           
                                                                                                                                
     (2) determine, by an affirmative  vote of a majority of                                                                    
     the  members of  the commission,  whether a  nomination                                                                    
     meets the  requirements established  under (1)  of this                                                                    
     subsection;                                                                                                                
                                                                                                                                
REPRESENTATIVE HOPKINS asked whether  [paragraph (2)] may warrant                                                               
an appeal by a nominator  because the commission's decision would                                                               
stop or advance a nomination.                                                                                                   
                                                                                                                                
MS. MARX remarked:                                                                                                              
                                                                                                                                
     I think  this is enough  of a grey  area that I  do not                                                                    
     know  if a  court  would find  that  decision -  either                                                                    
     saying  a nomination  is complete,  or a  nomination is                                                                    
     not complete - a final agency  action.  I think if you,                                                                    
     if the  legislature, as  a matter  of policy,  says "We                                                                    
     don't want it to be a  final agency action" a court may                                                                    
     give  deference to  that.    ...   A  court can  always                                                                    
     decide  if  the,  if  the  agency  [acts]  arbitrarily,                                                                    
     capriciously, or  didn't follow its own  laws, a person                                                                    
     could  sue and  say, "Listen,  they didn't  even follow                                                                    
     their own  statute ... make  them at least  follow, due                                                                    
     process requires  you [to] follow them,  follow the law                                                                    
     ...."                                                                                                                      
                                                                                                                                
MS. MARX  cautioned the finding is  an unknown due to  the unique                                                               
process  of  the  commission,  which  is to  vote  on  whether  a                                                               
nomination by a member of the  public is complete, and whether to                                                               
forward a nomination.                                                                                                           
                                                                                                                                
REPRESENTATIVE  HOPKINS  asked Ms.  MARX  to  explain the  Alaska                                                               
Rules of Appellate Procedure.                                                                                                   
                                                                                                                                
2:44:05 PM                                                                                                                    
                                                                                                                                
MS. MARX said there are  hundreds of Rules of Appellate Procedure                                                               
that tell the  court how to review an agency's  decision, such as                                                               
how much deference is granted to  an agency, and that set out the                                                               
procedures and standards for reviewing an agency decision.                                                                      
                                                                                                                                
CO-CHAIR  TARR gave  an example  of an  appeal and  asked whether                                                               
members   of   the   commission,  including   members   who   are                                                               
commissioners  of  departments,  would  be  named  parties  in  a                                                               
lawsuit.  She suggested individuals  may be deterred from service                                                               
on the commission.                                                                                                              
                                                                                                                                
MS. MARX  said generally the parties  to an appeal to  a decision                                                               
by an  agency are  the party  that is  appealing and  the agency;                                                               
individual members of an agency body  are not named parties in an                                                               
appeal.                                                                                                                         
                                                                                                                                
REPRESENTATIVE KOPP observed the  Alaska Judicial Council, Alaska                                                               
Court System, determines whether  a judicial nomination packet is                                                               
complete and  votes to  forward the  nomination to  the governor,                                                               
and [is  a committee  that] has  garnered litigation.   Regarding                                                               
[Amendment 11,  K.15], he said  the amendment changes  the nature                                                               
of  the advisory  commission  and pointed  out  the nominator  is                                                               
already protected  from nefarious activity by  the commission and                                                               
the commission is balanced.   He cautioned against prolonging the                                                               
designation of a  Tier 3 water by an appeal  process and said the                                                               
amendment also changes the nature of the bill.                                                                                  
                                                                                                                                
2:48:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE TUCK  opined the original  intent of the  bill was                                                               
to make  [the designation of Tier  3 water] more of  a scientific                                                               
decision  and less  of a  political  decision, and  he agreed  an                                                               
appeal through  judicial action would provide  an opportunity for                                                               
a decision based  on facts; however, he said he  did not want the                                                               
commission to  be responsible  for an  absolute decision,  and he                                                               
could not  support the amendment  because it would make  a change                                                               
to the commission and its duties.                                                                                               
                                                                                                                                
2:51:33 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HANNAN withdrew [Amendment 11, K.15].                                                                            
                                                                                                                                
2:51:52 PM                                                                                                                    
                                                                                                                                
CO-CHAIR TARR  stated Legal  Legislative Services  was authorized                                                               
to make technical  and conforming changes during  the drafting of                                                               
a committee substitute for HB 138.                                                                                              
                                                                                                                                
[HB 138 was held over.]