Legislature(2001 - 2002)
04/09/2001 01:15 PM House RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 60-FARM OPERATIONS:DISCLOSURE /NUISANCES [Contains discussion of HB 82, the companion bill in the House] CO-CHAIR MASEK announced that the first order of business would be CS FOR SENATE BILL NO. 60(JUD) am, "An Act relating to agricultural facilities and operations as private nuisances; and to disclosures in transfers of certain real property located within the vicinity of an agricultural facility or an agricultural operation." Number 0145 HANS NEIDIG, Staff to Senator Lyda Green, Alaska State Legislature, came before the committee to testify on behalf of Senator Green, sponsor of SB 60. He explained that SB 60 would provide better protection for Alaskan farmers, who had requested the legislation because of the belief that their farming operations are not adequately protected under current Alaska Statutes. MR. NEIDIG indicated many farmers have had some experience with an encroachment on their right to farm. As urbanization moves in, often the newcomers don't like certain aspects of agriculture such as the animals, sounds, and smells. Those who move to the country need to know what they are getting into. People in other areas of the nation, where urban sprawl is creating a bigger problem than yet experienced in Alaska, are taking action to protect existing agricultural operations and avoid unnecessary lawsuits. Mr. Neidig stated: The Right-to-Farm bill takes the reasonable and innovative approach of coupling a farmer's grandfathered right to continue agricultural activities, to the filing and maintaining of a farm conservation plan with the U.S.D.A. [United States Department of Agriculture] Soil and Water Conservation Service. In this way, SB 60 protects the rights of farmers by ensuring that farmers cannot be sued in Alaska, for simply conducting everyday farming activities. [There was a motion to adopt the Senate version for discussion purposes, but it was already before the committee.] Number 0300 REPRESENTATIVE KERTTULA asked Mr. Neidig whether the Senate version includes aquatic farming, moose, and timber operations. MR. NEIDIG replied that "moose" is listed in the definitions. Forestry was already in the legislation, and the Senate Judiciary Committee added some clarifying language. [An unidentified speaker indicated "aquatic farming" is listed on page 2, line 16, of CSSB 60(JUD) am.] REPRESENTATIVE KERTTULA asked what the new language regarding timber is going to mean. MR. NEIDIG responded that he could not speak for the Chair of the Senate Judiciary Committee. However, the language "forestry or timber harvesting" was already in the bill. He stated his belief that it was the intent of the Senate Judiciary Committee to add language to cover that more broadly, including manufacturing or processing operations. REPRESENTATIVE KERTTULA asked Mr. Neidig what "manufacturing or processing" could mean. MR. NEIDIG reiterated that, at present, he could not speak for the Senate Judiciary Committee on that matter. Number 0495 PETER FELLMAN, Staff to Representative John Harris, Alaska State Legislature, testifying via teleconference, spoke on behalf of Representative Harris, sponsor of HB 82, the companion bill in the House. He explained that the language added regarding processing clarifies language in existing statute. He read lines 23-25, on page 2 [CSSB 60(JUD) am]. He mentioned commodity and processing. He asked, "If you can harvest trees, what good is it if you can't process those trees into timber?" REPRESENTATIVE KERTTULA noted that the language looks broad enough that someone could install a huge processing plant and the bill would cover it, which she did not see as the original intent behind the bill. She asked Mr. Fellman to confirm whether she was correct. MR. FELLMAN answered that under [SB 60], if people wanted to build a large processing plant or lumber factory, they would still be required to go to [Alaska] Soil and Water Conservation [with] a viable plan to prove that they can do this without harming the environment. A small farmer who feels it is more cost-effective to harvest a tract of trees and make lumber out of them, for example, will be covered by this legislation. Number 0678 REPRESENTATIVE KERTTULA asked Mr. Fellman if all farms now in existence have soil and water conservation plans. MR. FELLMAN replied that soil and water conservation plans are a voluntary program within Alaska and, in fact, the entire U.S. He explained that if farmers go to the soil and water conservation district and request help in protecting their land, animals, and neighbors, then the district [personnel] come to their land and put together a plan they can use to farm in a safe manner. Mr. Fellman said without having the numbers in front of him, out of 13 districts in Alaska he was certain there were 500-600 soil and water conservation plans; conversely, 500- 600 other farmers didn't have plans. Number 0777 REPRESENTATIVE KERTTULA referred to her previous discussions with Mr. Fellman regarding either "having the plan" or having been in operation for three years. She asked Mr. Fellman to comment on whether he had any opposition to adding that language. She added, "I know this is the Senator's bill, so maybe I should be directing it to her aide." MR. FELLMAN replied: The problem with that is, ... in the Lower 48, the right-to-farm laws that have withstood the challenges from the [U.S.] Supreme Court had a mechanism that could show that the farmers were doing everything that they could do to farm in a safe and environmentally friendly manner. And so, if we eliminated the need - if we make it so that there's two possibilities - then the chances of the farmer who does not have their soil and water conservation plan ... being successful in protecting his crop against a nuisance lawsuit is greatly diminished. The reason the plan is there is so we can prove that this farmer is making every effort possible to be a safe and environmentally friendly farmer and is concerned about his neighbors. And that's ... part of what we're trying to do with the existing law, to give it more bite when it comes to protecting the farmer. REPRESENTATIVE KERTTULA said she agreed with that thought. However, this law has been in place for over ten years. She suggested a court could make a decision on whether or not it was going to allow it to stand, or could strike that provision of the law. She added, "So at least the farmer who's been in place for three years ... has a chance. ... Isn't that also correct?" MR. FELLMAN responded that the Right-to-Farm law has never been challenged in Alaska. If the farmer is not a nuisance at the time he or she starts farming, the farmer is not considered to be a nuisance. In the legislation, "we" struck the specific number of years out, because there was concern that Alaska has a five-year clearing requirement, which could make it possible for a farmer to sit on his or her land for four years, decide to clear it, and not be covered. MR. FELLMAN concluded that this legislation is in the best interests of all Alaskans. It will cover the farmers and save a lot of legal battles and fights among neighbors. In response to a follow-up question by Representative Kerttula, he said he was unaware of any cases in Alaska. Number 1082 REPRESENTATIVE KAPSNER referred to an amendment made on the Senate floor to the title of the bill on page 1, lines 2-3, changing "located within one mile" to "located within the vicinity of an agricultural facility or [an agricultural] operation." She asked how that changes the bill. MR. NEIDIG deferred to Mr. Fellman, who had worked on that change in the House. MR. FELLMAN explained that in the previous bill a disclosure statement said "within one mile." In "Judiciary" it was decided that the liability for disclosure in Alaska should be not on the individual who is selling the real estate or the property, but on the person who purchases the real estate. And so the purchaser now, under Megan's Law, needs to find out if there's a farm close enough that bothers him or her. If that farm is two feet from the house or twenty miles away, "if it bothers him, it bothers him." Therefore, in the vicinity, the purchaser must look around and see if there is a farm or a farm operation with which the purchaser is uncomfortable. Number 1265 WAYNE REGELIN, Director, Division of Wildlife Conservation, Alaska Department of Fish & Game (ADF&G), referred to a section of the bill that defines "livestock" [subsection (d)(3), page 3, lines 12-14] and noted that moose are included. He told the committee that moose are currently not considered livestock by Alaska law - they may not be owned by a person. MR. REGELIN said the legislature has addressed the issue of moose farming three to four times in the last ten years, each time deciding it was not in the best interest of Alaska's wildlife or hunters. Mr. Regelin said he was surprised to see [moose included in the list of livestock], and he urged the committee to remove that language, which would potentially conflict with other statutes and create great confusion in the public. Number 1349 MR. NEIDIG explained that the Senate Judiciary Committee added that language and [the sponsor] didn't consider it an unfriendly amendment at the time. He said he would "leave it at that" and deferred to Mr. Fellman for additional comment. Number 1372 MR. FELLMAN responded that at the time, in the Senate Judiciary Committee, he was unprepared to address the moose issue. He offered his opinion, which he believed to be shared by Representative Harris, that moose should be "taken out of the definition." Number 1412 LARRY DeVILBISS, testifying via teleconference, told members he is a carrot-and-beet farmer who started farming in the '50s under the federal Homestead Act. His farm has a conservation plan, although it certainly wasn't required at that time. Since the '50s, subdivisions have developed all around the farm. Mr. DeVilbiss said he lives with subdivision dogs running through the farm, as well as four-wheelers and snowmobiles. MR. DeVILBISS told listeners that when neighbors start complaining about tractors working late at night, or snow blowing off of fields and drifting across roads, they realize - from what goes on in other states - that sooner or later someone will try to get a legal answer that makes the farmer liable. He stated his belief that it is timely to have some protection in "this fastest growing part of the state." MR. DeVILBISS stated his support of [SB 60]. He called it the centerpiece and number-one priority of the Alaska Farm Borough, which supports it strongly. He added that the Matanuska/Susitna Borough unanimously supported this as well. MR. DeVILBISS recalled that the last time he testified "on this," it was amended to address the nuisance of blowing snow and to add "bison"; he believes that was when "moose" was added to the language. He said he is "pretty happy" with this." MR. DeVILBISS told members the "processing element" is necessary. Although his farm hasn't grown carrots for six months, it is still processing them and putting them on the market, which involves traffic and hired help. Mr. DeVilbiss said eventually in [the Matanuska-Susitna area] there will be a need to freeze fresh vegetables and put them on the market year- round. He continued: I think the intent of taking ... that three-year delay out of the older version was so that farms that came in with a conservation plan would be immediately covered. I believe, right now, if you bought land from either the state or the borough, you would be required to get a farm plan. And if the farm's being developed in compliance with the farm plan, it should have immediate coverage. Number 1695 CO-CHAIR MASEK remarked that moose and bison are two totally different animals. She asked Mr. Neidig - based on testimony by Mr. Regelin, Mr. Fellman, and himself regarding the addition of moose to the Senate bill - whether Senator Green would object to removing moose from the bill. Number 1700 MR. NEIDIG responded that it would be left to the discretion of the House Resources Standing Committee. Number 1745 REPRESENTATIVE KERTTULA asked Mr. Wells [waiting online] when aquatic farming was added. She also asked him to confirm that his division does not cover aquatic farming. Number 1759 ROBERT WELLS, Director, Division of Agriculture, Department of Natural Resources (DNR), testifying via teleconference, recalled that ["aquatic farming"] was in the bills from the outset, as proposed by Representative Harris and Senator Green, because it was modeled after legislation in other states. He deferred to Mr. Fellman for further comment. Number 1819 MR. FELLMAN affirmed that "aquatic farming" has been in the bill since the beginning, and said there are aquatic farmers in Alaska. He also affirmed that the language in the bill was modeled from that of other states that have had success in the "right to farm." He said "we" don't feel like limiting someone who wants to farm catfish, for instance, "where they could get protection if they do have a soil and water conservation plan." He went on to say that aquatic farming is a real industry that could be a possible industry in Alaska; therefore, it should be covered by the legislation. Number 1874 REPRESENTATIVE KERTTULA asked, "Do they get soil and water conservation district plans?" Number 1956 MR. WELLS answered that it was a good question to which he didn't know the answer. He added that the U.S.D.A. national farm statistics account for aquaculture in [agricultural] statistics. He surmised that the U.S.D.A. would be willing to work with people, although he wasn't sure its staffing would allow for that. He suggested it could be looked into. Number 1956 DOUG MECUM, Director, Division of Commercial Fisheries, Alaska Department of Fish & Game (ADF&G), came before the committee and stated that he just became aware of this issue when he came to this meeting. He pointed out that aquatic farming is governed under the Aquatic Farming Act, which has provisions to deal with impacts, changes in operations, and expansion of facilities, for example. Without talking to DNR staff in the Division of Mining, which is responsible for DNR's part of this, and to the Division of Governmental Coordination, Mr. Mecum said, he couldn't say if the present language of the bill poses conflicts with existing statutes. Number 2009 CO-CHAIR MASEK suggested a friendly amendment to remove "moose," from page 3, line 13, of the bill. She asked if there were any objections. REPRESENTATIVE KERTTULA said, "So moved." [No objections were stated.] Number 2029 REPRESENTATIVE KAPSNER noted that "blowing snow" and "making noise" were not included in HB 82. Number 2077 REPRESENTATIVE KERTTULA offered a second amendment, on page 2, lines 29-30, to delete ", manufacturing, or processing". She explained that this language was added on the [Senate] floor and is not "well intended." First, it appears the soil and water conservation boards probably won't allow this anyway. Second, the language, as-is, opens up an agricultural "right to farming" bill to something never intended - vast timber operations. Third, she expressed concern regarding what would happen in the future if there are amendments to the law. She said she is much more comfortable with the House bill, which does not contain the same language. Number 2148 MR. NEIDIG, in response to a question from Co-Chair Masek, stated his belief, based upon [comments from] the Senate Judiciary Committee and on the Senate floor, that Senate members felt strongly that this language should be included. He deferred to the committee, however. Number 2199 CO-CHAIR SCALZI asked for clarification regarding Amendment 2. He said to Representative Kerttula, "In terms of ... your father's district, where he grew up, I would think there would have been a need for that type of industry to be protected." REPRESENTATIVE KERTTULA replied, "I haven't heard from anyone who spoke to that necessity." She suggested that Mr. Wells could speak to whether there has been any problem to date. She said there has never been a challenge under the original statute. Her concern is more along the lines of seeing "the other end of the problem," which could be much larger operations, should this law subsequently be amended. She added, "I think that that was, more or less, the intent of the amendment. So I'm not comfortable with it. But, certainly, it's up to the chair whether she wants to go further to ask for more information on it." Number 2275 CO-CHAIR MASEK spoke against [Amendment 2]. She stated her belief that [SB 60] has been reviewed in Senate Judiciary Committee, and that [the language in question] is a good addition. Number 2291 REPRESENTATIVE STEVENS said he appreciated [Amendment 2] and was going to vote for it, but was frustrated that no one from the Senate was present to "defend what they have done." He said committee members had been placed in a position of voting for something that no one had defended to them. REPRESENTATIVE KERTTULA, in response to a comment by Co-Chair Masek, clarified that [Amendment 2] related to only the language "manufacturing, or processing", not the entire line. Number 2359 MR. FELLMAN commented that if person who has property with trees on it would be protected, under current law, to cut those trees down, but not to take them to a sawmill to make something useful for the farm. His concern is that people would be piling wood and burning it, instead of running it through a sawmill and using it as a "processed product." A person whose neighbor complained about sawdust on the road wouldn't be covered against a nuisance lawsuit. Mr. Fellman said it is imperative to allow people who have purchased those trees along with their land to make a useful product out of them. He offered his personal belief that the language put in by the Senate is good language that he hopes will remain. REPRESENTATIVE STEVENS expressed appreciation for Mr. Fellman's comment regarding use of timber on a person's own land. Number 2454 CO-CHAIR called a brief at-ease at 1:55 p.m. She called the meeting back to order at 2:07 p.m. A roll call vote was taken. Representatives Kapsner and Kerttula voted for Amendment 2. Representatives Chenault, McGuire, Stevens, Masek, and Scalzi voted against it. Therefore, Amendment 2 failed by a vote of 2-5. Number 2526 REPRESENTATIVE KERTTULA made a motion to adopt Amendment 3, a handwritten amendment which read [original punctuation provided]: SB 60 p.2, Line 16 delete: ", or that is used in aquatic farming" [An additional handwritten amendment on the same handout, never addressed by the committee, was to delete "(ix) aquatic farming;" from page 3, line 6, and renumber accordingly.] CO-CHAIR MASEK objected to Amendment 3. REPRESENTATIVE KERTTULA explained that fish farming is not allowed in [Alaska]. Nor is this part of anything contemplated by either [Alaska's] the original Right-to-Farm law or the right-to-farm laws she has looked at with regard to other states; she surmised it might exist in states that allow finfish farming, however. She pointed out a further complication: one addition to the law at this point is that an agricultural operation won't be a nuisance, regardless of subsequent expansion of the facility; therefore, a person could have a very small site expand into something that is "huge." Number 2584 CO-CHAIR SCALZI spoke against the amendment, noting that "we" had just gone through considerable public condemnation of expanding the aquatic farming in Kachemak Bay, and are currently dealing with a mariculture issue in Southeast [Alaska]. He said he thought it was appropriate that ["aquatic farming"] was included in the bill. CO-CHAIR SCALZI agreed finfish farming does not exist in Alaska and that salmon farming is against the law. However, he said he "tends to think" about the mariculture and shellfish farming. For example, he is aware of approximately 14 farm sites in Kachemak Bay that could use protection because of the pressure that exists to remove them. CO-CHAIR SCALZI concurred, however, with Representative Kerttula's concern about expansion. He referred to page 1, line 14, of the bill, which reads, "on the site regardless of any subsequent expansion". He said it is a sensitive issue; he added, however, that a farm could not be expanded without the concurrence of DNR and ADF&G. Number 2653 REPRESENTATIVE KERTTULA responded: I really hear those concerns, and I think that they're well taken, but this is really [an] inappropriate vehicle for them. ... They're under separate statutes, but now you're starting to call them an agricultural operation. And it really is mixing apples and oranges, not to mention fish, and trees, and things like that. So ... I'd be real open to working on that or getting legislation drafted; I just think they don't belong in this particular piece of legislation. Number 2688 CO-CHAIR SCALZI said he appreciated Representative Kerttula's remarks, and in some regards he wished there were [other legislation]. On the other hand, he stated the following: I think that mariculture is certainly an agricultural industry, and that it's a very viable one. And I can speak very clearly to the pressure that's put on ... mariculture farms in the bay right now, because there was a loud vocal majority that banned jet skis in the bay, also, and personal watercraft, and ... it was something that I thought, "This is the kind of thing that they need protection against." All of a sudden, you have an influx of individuals who say that, for no biological reason, they want to ban something; the numbers are there to boot them out. And I think that this does offer some protection to those individuals who have invested a lot of money and time in an operation that I certainly do consider along the agricultural lines. So, I respectfully disagree. Number 2735 REPRESENTATIVE McGUIRE noted that she chairs the [Administrative] Regulatory Review Committee, and aquatic farming is a central issue. She told Representative Kerttula she has high regard for her. She indicated aquatic farming is alive and well, however, and referenced the Aquatic Farming Act [not made available in committee packet]. Representative McGuire said, "We do need to start to think about them as a unit." REPRESENTATIVE McGUIRE offered her belief that [aquatic farming] is a viable part of agriculture, and that inserting it into this legislation gives that concept a strong recognition. She added that it is different from a fish farm. She spoke of potential, noting that Canada and Washington State have diversified their economies through the development of aquatic farming. She concluded that it is a "valuable part" that should be reflected in "this overarching bill relating to agriculture." Number 2820 MR. FELLMAN responded that there was a time when there was no rabbit farming or fox farming. Excluding the farming of sea urchins, for example, would cut off part of the industry. He emphasized the need to keep aquaculture in the bill. A roll call vote was taken. Representatives Kapsner and Kerttula voted for Amendment 3. Representatives Chenault, McGuire, Stevens, Masek, and Scalzi voted against it. Therefore, Amendment 3 failed by a vote of 2-5. Number 2900 REPRESENTATIVE KERTTULA offered that she had spoken with the House sponsor and knows the intent is to protect farms, whether aquatic or land-based, from encroachment now. CO-CHAIR MASEK thanked Representative Kerttula but reminded her that the bill under discussion was the Senate version. Number 2950 REPRESENTATIVE McGUIRE moved to report CSSB 60(JUD) am [as amended] out of committee with individual recommendations and the accompanying fiscal note. Number 2969 REPRESENTATIVE KERTTULA objected, explaining that [HB 82] is a "much better vehicle, more cleanly drafted"; therefore, she would prefer to see it moved. A roll call vote was taken. Representatives Chenault, McGuire, Stevens, Masek, and Scalzi voted to move out of committee CSSB 60(JUD) am [as amended]. Representatives Kapsner and Kerttula voted against it. [A small portion was not on the tape, but a written role call sheet recorded the votes.] Therefore, HCS CSSB 60(RES) was moved out of the House Resources Standing Committee by a vote of 5-2.