Legislature(2015 - 2016)BARNES 124
03/18/2016 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| HB216 | |
| HB274 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 247 | TELECONFERENCED | |
| += | HB 274 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 216 | TELECONFERENCED | |
HB 216-NAVIGABLE WATER; INTERFERENCE, DEFINITION
1:02:00 PM
CO-CHAIR TALERICO announced that the first order of business is
HOUSE BILL NO. 216, "An Act relating to obstruction or
interference with a person's free passage on or use of navigable
water; and amending the definition of 'navigable water' under
the Alaska Land Act."
[Before the committee was the proposed committee substitute (CS)
for HB 216, Version 29-LS0995\E, Bullard, 3/14/16, adopted as
the working document on 3/16/16.]
1:02:33 PM
JOSHUA BANKS, Staff, Representative David Talerico, Alaska State
Legislature, discussed the sponsor's 3/18/16 memorandum,
included in the committee packet, that details the questions
raised by members during the committee's 3/16/16 meeting. He
addressed the concern raised by Representative Seaton and
Representative Herron about whether there would be restrictions
to prevent possible harm from all-terrain vehicles (ATVs)
operating along and through anadromous streams. He said the
sponsor confirmed with the Alaska Department of Fish & Game
(ADF&G) and the Alaska Department of Natural Resources (DNR)
that the statutes currently in place would provide some
restrictions on what activities could be conducted in or around
navigable waters. He relayed that ADF&G notified the sponsor of
AS 16.05.871, which requires a person to obtain a permit to
conduct certain activities around anadromous waters and is in
place to ensure adequate protection of ADF&G resources. Mr.
Banks elaborated that AS 16.05.896 allows for a misdemeanor
offense to be issued to anyone doing material damage to salmon
spawning grounds or disrupting salmon migration. He further
explained that there are a number of statutes DNR could use to
restrict or manage the use of waters through regulation,
including determining which uses are incompatible within certain
areas. Drawing attention to Section 1 on page 1 of Version E,
he pointed out that AS 38.05.128(a) gives permission to a state
agency to obstruct the free passage of navigable waters if it is
authorized by law or permit issued by a federal or state agency.
So, he continued, a department could stop an activity causing
harm to sensitive areas if there is an authorization in the law.
MR. BANKS next addressed the concern raised by Representative
Josephson regarding whether the 1824 U.S. Supreme Court case
Gibbons v. Ogden [may cause a problem for the state's definition
of navigable water]. Mr. Banks explained that this case dealt
primarily with interstate commerce and did not deal with
navigability unless it was closely associated with interstate
commerce.
MR. BANKS lastly addressed the concern raised by several
testifiers regarding the deletion of the language "but not
limited to". He reported the deletion is being done due to a
legal preference that Legislative Legal and Research Services
has started moving toward. He explained that using the single
word "including" has the same legal meaning as "including but
not limited to", and gets the point across using less words.
1:07:35 PM
REPRESENTATIVE JOSEPHSON moved to adopt Conceptual Amendment 1,
which read:
Page 1, line 8, following "law";
Insert "or regulation,"
CO-CHAIR TALERICO objected for purposes of discussion.
REPRESENTATIVE JOHNSON requested a copy of the amendment prior
to discussion.
1:08:41 PM
The committee took a brief at-ease.
1:10:55 PM
REPRESENTATIVE JOSEPHSON explained why he is offering Conceptual
Amendment 1. He said he was advised by an attorney who is a
water rights expert that the definition in Version E could be
restrictive. He noted the Constitution of the State of Alaska,
Article VIII, Section 14, Access to Navigable Waters, states,
"Free access to the navigable or public waters of the State, as
defined by the legislature, shall not be denied any citizen of
the United States or resident of the State, except that the
legislature may by general law regulate and limit such access
for other beneficial uses or public purposes." He further noted
that Title 5 contains a huge number of ADF&G regulations, many
created by the Alaska Board of Game. In further research he
found the 3/2/01 decision for the case, Interior Alaska Airboat
Association Inc. v. State of Alaska, Board of Game, which
concerned regulations in the Nenana region and the Noatak River
and whether, for example, on a navigable waterway the Alaska
Board of Game could say an airboat or an aircraft cannot be used
in certain locations. The Supreme Court of Alaska ruled that
the Alaska Board of Game can do that, he related. He said he
wants the record to reflect that it is not necessarily a free-
for-all across Alaska's navigable waters and so he is offering
this amendment.
1:13:16 PM
REPRESENTATIVE JOHNSON brought attention to Version E, page 2,
lines [1-2], which state, "authorized by the commissioner after
reasonable public notice." He held that this is regulation and
therefore adding "or regulation" is unnecessary.
CO-CHAIR TALERICO said the legislature as a body defines the law
of the state, which engages the departments to actually create
regulations. So, since law is covered in the bill, his question
is whether it would be redundant to add "or regulation". He
opined that regulations are born via the laws provided by the
legislature.
REPRESENTATIVE SEATON offered his understanding that "law"
includes both law and regulations of the state; it is not simply
by statute, law is a broader term.
REPRESENTATIVE TARR allowed it may be accurate that the proposed
language is unnecessary, but said HB 216 would be made more
clear by including "or regulation". She suggested taking a
brief at ease in order to solicit the opinion of Legislative
Legal and Research Services.
CO-CHAIR TALERICO said he personally does not have a lot of
heartburn about adding the amendment, even though he is unsure
how necessary it is.
REPRESENTATIVE HERRON said he views the amendment as a "belt and
suspenders" amendment and agreed the amendment is redundant.
CO-CHAIR NAGEAK concurred.
1:16:40 PM
CO-CHAIR TALERICO removed his objection. There being no further
objection, Conceptual Amendment 1 was adopted.
1:17:07 PM
REPRESENTATIVE TARR offered her appreciation for the answers to
the questions, particularly the issue of sensitive areas and
protection of anadromous streams. She addressed previous
testifiers who may be listening saying that although the
definition is becoming broader, committee members care about the
state's salmon and want to avoid any unintended consequences,
while [protecting the use of] motorized vehicles.
CO-CHAIR TALERICO offered his appreciation for the questions
raised by the committee members, saying it is the committee's
responsibility to vet the bills and pursue answers.
REPRESENTATIVE SEATON referenced the definition that people have
basically unlimited access to waters of the state. He shared
his hope that the addition of methods, such as all-terrain
vehicles, snow machines, and so forth, will be further
investigated by the sponsor to ensure that adding "in any
season" is not expanding access of citizens upon private
property. He posited it would be good to clarify that expanding
the definition and what can be used will not result in invading
private property by statute that allows people access.
1:20:05 PM
CO-CHAIR NAGEAK moved to report the proposed committee
substitute (CS), Version 29-LS0995\E, Bullard, 3/14/16, as
amended, with attached fiscal notes and individual
recommendations. There being no objection, CSHB 216(RES) was
reported from the House Resources Standing Committee.