Legislature(1993 - 1994)
03/26/1993 08:00 AM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 213: LIMIT ADMINISTRATIVE LAND CLOSURES Number 464 JACK PHELPS, LEGISLATIVE AIDE TO REPRESENTATIVE PETE KOTT, PRIME SPONSOR OF HB 213, told the committee he had worked with the DNR on the amendments, and that the draft committee substitute reflected those changes. Number 474 RAGA ELIM, SPECIAL ASSISTANT TO THE COMMISSIONER OF THE DNR, related the discussions held between the prime sponsor and the DNR since the last meeting on the bill. As HB 213 was originally introduced, he explained, the DNR had wanted some amendments and hastily drafted language to address the administration's concerns. Those amendments, he said, included reference to "contiguous" acres of land, and provided a mechanism for management flexibility for the DNR to issue an order for closure effective immediately, subject to approval from the legislature. Without the legislature's approval, he explained, the order would lapse. MR. ELIM explained that the amendments would not result in any fiscal impact, as reflected in the zero fiscal note from the DNR. Number 507 REPRESENTATIVE ELDON MULDER MOVED to adopt the draft committee substitute as CSHB 213 (RES). REPRESENTATIVE JAMES asked whether he was referring to the 3/25/93 committee substitute, and whether that CS incorporated amendments A.1 through A.7. Number 513 REPRESENTATIVE MULDER explained that only amendments A.8 and A.9 were incorporated in the CS. REPRESENTATIVE JAMES then asked what would happen with amendments one through seven. CHAIRMAN WILLIAMS told Representative James that Representative Kott's office and the administration had worked together on the CS and settled on the two amendments to be incorporated into the CS. Number 527 REPRESENTATIVE DAVID FINKELSTEIN asked whether anyone from the Alaska Department of Fish and Game (ADF&G) were present at the meeting to respond to the issues raised previously regarding anadromous streams, wildlife refuges and critical habitats. MR. ELIM replied that as HB 213 was originally drafted, all mineral closing orders would have to be approved by the legislature. He explained that the ADF&G wanted to define certain types of orders for the administration to retain full authority over. That approach, he said, ran counter to the intent of the bill. Discussions with the administration regarding closures in such areas, led to the decision that closures even in those areas would be subject to legislative approval. As the CS is written, he said the DNR will be able to issue an order, effective immediately, subject to approval by the legislature. Number 547 REPRESENTATIVE FINKELSTEIN reiterated his concern that someone from the ADF&G should be present, and stated that the concerns expressed by the ADF&G at the previous meeting are still there. There still existed a potential for a critical area to be jeopardized if an order lapses due to the legislature's failure to approve it, he said, and this potential raises problems of balance of power. MR. ELIM recognized the vagaries of the committee process in the legislature, and said the department was comfortable with the fact that if they made a closure decision with compelling reasons, the legislature would acknowledge those reasons also. REPRESENTATIVE FINKELSTEIN pointed out there were plenty of examples of instances where the majority of the legislature might be in agreement, but a few individuals could hold up the process. Number 565 REPRESENTATIVE BUNDE said he was comfortable with the DNR issuing a closure and then coming to the legislature for approval, but he speculated that if an order was issued on June 1, then there would be no legislative approval until the following January and any work that was begun could not be undone. MR. ELIM clarified that the converse situation would be the case; that the order issued by the DNR would stop any use or development of land until the legislature approved or disapproved the order. Number 577 REPRESENTATIVE MULDER also explained that the DNR's commissioner would have a limited window of opportunity to address critical issues, but that legislative approval would still be necessary. He felt the CS adequately made those provisions. He also felt it was most appropriate for the legislature to be accountable to the public and have review of the closure decisions. Number 590 REPRESENTATIVE FINKELSTEIN did not believe there had been an administration prior to the current one that would have given up the power to protect public lands, especially critical habitats and wildlife refuges that were intentionally left open in enabling legislation because the administration had the power to close the lands as necessary when and if the need arose. He said that at the time the state was deciding whether to set up critical habitats and wildlife refuges and not close them to mineral entry, the argument was that it was not necessary to close them because the administration has the power to close them. Now, he said, the legislature is diminishing the power to close them and diminishing the protection of those critical habitats. REPRESENTATIVE JAMES commented regarding critical habitats. She suggested that the whole state could be considered critical habitat. The only way for the people of the state to have input into closures, she said, is if they go through the legislature. She felt the CS for HB 213 addressed that need by letting the administration make emergency closures. If the information showed that an area was indeed critical habitat, she felt confident that the legislature would recognize the need for closure. Number 615 MR. ELIM attempted to allay Representative Finkelstein's concerns regarding critical habitats. In a hypothetical situation where a closure order is issued by the DNR and went to the legislature for approval but did not pass, and the area then became open for mining, he said there were still authorities and permitting processes to assure mitigation and protection of the habitat. Title 16 and Title 38 provided safeguards, he added. Number 630 REPRESENTATIVE JOHN DAVIES shared the concern that the ADF&G should have had a representative at this meeting of the Resources Committee. He also expressed concern that the direction for HB 213 discussed at its previous hearing was very different from the approach in the CS. Specifically, using a process similar to the executive order process had been discussed at the last meeting on the bill. He felt the CS approach shifted the balance too far from what are properly administrative functions to what are appropriately legislative policy duties. REPRESENTATIVE DAVIES suggested that such a shift seems to indicate that the executive and administrative functions are unnecessary and the legislature should just expand its staff and run the government. He stressed that it is important to maintain separation of powers and that the proposed CS for HB 213 goes too far in the direction of the legislature performing the day to day functions of managing the government. Number 663 CHAIRMAN WILLIAMS noted that Representative Pete Kott, prime sponsor of HB 213, had joined the meeting. As far as the people of the state having a say in administrative decisions, the chairman said he preferred that approach. VICE CHAIRMAN BILL HUDSON commented that the committee members should recognize that the bill does not preclude the administration from closing any area, but it puts the checks and balances in the hands of the legislature. He explained that the result is the administration has to come back to the legislature to assure that a policy decision is the correct one. He also noted the exemption in HB 213 for land disposals and transportation corridors. He felt satisfied that this is good legislation. Number 679 CHAIRMAN WILLIAMS addressed the motion on the floor to adopt the committee substitute, and asked if there were any objections. Hearing none, CSHB 213 (RES) was ADOPTED. REPRESENTATIVE BUNDE shared the concerns over the ADF&G's amendments, and noted that if they still had concerns, they should be present at the meeting to defend their concerns. REPRESENTATIVE FINKELSTEIN hoped that assessment was correct, and noted that there are at times internal debates within the administration regarding legislation, and only one department might be allowed to present its point of view. TAPE 93-37, SIDE B Number 000 MR. ELIM remarked that the ADF&G had been aware of the discussions regarding HB 213, and he felt all the parties involved were comfortable with the proposal to make certain mineral closure orders subject to legislative approval. WENDY MULDER, LEGISLATIVE LIAISON FOR THE DEPARTMENT OF COMMERCE AND ECONOMIC DEVELOPMENT (DCED), commented that the DCED was also involved in the discussions, and she agreed with Mr. Elim's assessment. Number 030 REPRESENTATIVE DAVIES MOVED TO AMEND line 15 on page 2 of the Resources CS, striking the sentence on that line and replacing it with one that reads: "unless the legislature disapproves by resolution, an interim classification contained in an order transmitted under this subsection, by the 60th day of the legislative session, the order becomes permanent." REPRESENTATIVE MULDER OBJECTED to the motion. Number 064 CHAIRMAN WILLIAMS asked the legislative legal counsel, Jerry Luckhaupt, to address the language in Representative Davies' proposed amendment. JERRY LUCKHAUPT, ATTORNEY, LEGISLATIVE AFFAIRS AGENCY, DIVISION OF LEGAL SERVICES, said there is a problem with language requiring the disapproval of an action by legislative resolution or any legislative action by resolution. He explained that it would be unconstitutional, and that only a bill can be used. He said a resolution would present the same problem mentioned in the previous meeting regarding executive orders. Regulations cannot be repealed by resolution, only by an act of the legislature, which would mean by a bill. He noted that there had been a move to amend the constitution to allow the repeal of regulations by resolution. REPRESENTATIVE DAVIES asked Mr. Luckhaupt whether the language "disapproved by an act of the legislature" would be appropriate in his amendment. MR. LUCKHAUPT replied in the affirmative. Number 100 REPRESENTATIVE DAVIES offered to make that change to his amendment. The amendment now would pattern the response to the situation as nearly as possible to the executive order process while staying within the requirements of the constitution. He felt the appropriate balance would be maintained between the administrative and legislative branches. The legislature would still have the ability and the obligation to review closing orders issued by the administration, with the opportunity to disapprove. REPRESENTATIVE DAVIES explained that the disapproval requirement would represent a more balanced view of the will of the people than the situation in the current version of HB 213, which would allow one person to stand in the way of the decision being upheld. CHAIRMAN WILLIAMS asked if there were any further discussion on the amendment. Number 150 VICE CHAIRMAN HUDSON commented that the policy question is whether the governor should be able to classify lands to prevent mineral development, and present those interim classifications to close mining to the legislature within ten days, then require legislative approval. In the current version of HB 213 before the committee, he said the interim classification would expire or lapse at the end of the 90th legislative day if not approved. He paraphrased Representative Davies' proposal, stating that the DNR may do an interim classification to preclude mining and that decision would stand unless the legislature takes specific action disapproving it. He preferred the bill the way it was. Number 168 REPRESENTATIVE PETE KOTT commented that he was satisfied with the bill as written, and that he had examined the disapproval approach and had seen it as an opportunity for filibusters. CHAIRMAN WILLIAMS asked whether there were objections to Representative Davies' amendment, as amended. There were objections and a roll call vote was requested by Representative Finkelstein. Voting YEA were Representatives Carney, Davies and Finkelstein. Voting NAY were Representatives Hudson, Bunde, James, Mulder and Williams. The MOTION was DEFEATED. Number 215 REPRESENTATIVE FINKELSTEIN MOVED amendment A.7, addressing the issue of retroactivity. He asked Mr. Luckhaupt to clarify the amendment. MR. LUCKHAUPT explained that amendment A.7 clarifies for the courts that the bill's intent was that it not be applied retroactively. He suggested that in addition to the reference to 38.05.300 (a)(2), he would add 38.05.300 (c), added by sections 1 and 2 of CS HB 213 (RES). This would clarify that the entire bill is not retroactive. CHAIRMAN WILLIAMS asked whether there were objections to the motion on the amendment. There were none. Number 253 MR. ELIM brought an additional item to the committee's attention, amendment A.1. He said this amendment was also important in relation to discussions in the previous hearing regarding land exchanges. He understood that amendment was amenable to the sponsor. Number 272 REPRESENTATIVE MULDER MOVED amendment A.1. REPRESENTATIVE FINKELSTEIN noted that because of previous amendments, that amendment would be conceptual and would need to be drafted to reflect the language changes in the previous amendments. CHAIRMAN WILLIAMS asked if there were any objections to adopting amendment A.1. Hearing none, the AMENDMENT was ADOPTED. Number 281 REPRESENTATIVE DAVIES asked what the purpose was of amendment A.2. MR. ELIM noted that its purpose had been accomplished in amendment A.9, which was incorporated in the Resources CS. REPRESENTATIVE FINKELSTEIN OFFERED amendment A.3, making exceptions for critical habitat, wildlife refuges, and streambeds. REPRESENTATIVE HUDSON OBJECTED. CHAIRMAN WILLIAMS called for a roll call vote on moving amendment A.3. Voting YEA were Representatives Carney, Davies and Finkelstein. Voting NAY were Representatives Hudson, Bunde, James, Mulder, and Williams. The MOTION was DEFEATED. VICE CHAIRMAN HUDSON MOVED to pass the committee substitute as adopted and amended from committee and the zero fiscal note, with individual recommendations. He asked unanimous consent. CHAIRMAN WILLIAMS asked if there were any objections to the motion. Hearing none, the MOTION PASSED. CHAIRMAN WILLIAMS announced the next bill before the committee would be HB 140. Number 300
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