Legislature(1993 - 1994)
03/01/1994 08:00 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 404 - NATIVE ALLOTMENTS IN STATE PARKS Number 106 CHAIR VEZEY opened HB 404 for discussion. He announced the Sponsor for HB 404 was REPRESENTATIVE LYMAN HOFFMAN, and Co- Sponsors were REPRESENTATIVES FOSTER and WILLIAMS. Number 124 ROGER McKOWAN, STAFF, REPRESENTATIVE LYMAN HOFFMAN, gave an overview of HB 404. He said the Department of Natural Resources (DNR) and a number of Native allotment holders in state parks have recently focused on changes to Title 38. Title 38 has a technical change which would allow the state of Alaska to reconvey land back to the Bureau of Land Management (BLM), in the hopes to expedite the relocation of allotments in state parks. The Bristol Bay Native Corporation and the Bristol Bay Native Association notified REPRESENTATIVE HOFFMAN that efforts to rectify the transfer situation have halted. More than a hundred applications have been waiting for transfer for 20 years and without HB 404 they may wait much longer. MR. McKOWAN stated, for technical questions, that TOM HAWKINS, SENIOR V.P. & CEO of BRISTOL BAY NATIVE CORPORATION; CHARLIE BUNCH, ASSISTANT AREA DIRECTOR for TRUST LANDS DIVISION, BUREAU OF INDIAN AFFAIRS; and DUGAN NIELSON, REALTY OFFICER of BRISTOL BAY NATIVE ASSOCIATION, were available to testify. Number 160 CHAIR VEZEY asked if anyone was present from DNR who could familiarize the committee with Title 38. Number 165 MR. McKOWAN stated he was under the impression there would be someone present; however, TOM HAWKINS may be able to answer the committee's questions about Title 38. Number 170 CHAIR VEZEY stated there had been problems with the offnet teleconference connections. Number 185 TOM HAWKINS, SENIOR V.P. & CEO BRISTOL BAY NATIVE CORPORATION, testified in favor of HB 404. He said HB 404 would be an important tool for state land managers. By allowing them to reconvey allotments, which have been relocated to avoid public interest conflicts, litigation could be avoided, the state will save money, and it will speed up the transfer of land to private ownership. He stated the Department of the Interior projects it will be 40 years before the adjudication survey and final patents of these lands will be completed. The technical change to Title 38 allows the allottee, the state, and the federal government, if in agreement, to relocate the Native allotment and move it over to avoid public interest conflicts. He stated AS 38.05.035(b)9 then allows the commissioner to reconvey land back to the BLM, if erroneously conveyed to the state by the BLM and if the Native allotment has been validly filed. In 1991, Congress gave the BLM the flexibility to make this change, but current law inhibits the state from exercising this flexibility. He pointed out that HB 515 from the DNR has similar language as an overall Title 38 update, although it has several provisions and committee referrals. He urged the committee to support HB 404. Number 243 REPRESENTATIVE KOTT stated page 1, line 10, suggests the commissioner may establish "reasonable" procedures and adopt "reasonable" regulations. He asked MR. HAWKINS to define "reasonable," believing the word could have different meanings to different people. Number 251 CHAIR VEZEY reminded REPRESENTATIVE KOTT that page 1, line 10, was existing statute. He said the amendment regards the Administrative Procedure Act. Number 255 REPRESENTATIVE KOTT thought it might be a good time to clear up the language. Number 259 MR. HAWKINS responded that the commissioner of DNR, upon request of the BLM, has to determine that it is in the best interest of the state to reconvey land to the federal government. "Reasonable" is focused toward accomplishing this best interest claim and making sure the public and affected parties has reviewed the decision before the commissioner determines the best interest. He felt the legislation, which sets up the decision making process, was satisfactory and the term "reasonable" was not a point of controversy. Number 281 CHAIR VEZEY reiterated "reasonable" is the most litigated word in the American court system. Number 291 REPRESENTATIVE ULMER questioned the list of possible of conveyances, referencing a December 9, 1993, memo faxed from Mr. Hawkins to Mr. Ron Swanson (on file). She asked if he was familiar with it. Number 297 MR. HAWKINS did not have the document. Number 299 REPRESENTATIVE ULMER stated it listed the number of possible allotment applications in each of the park systems. She asked, of the total 150 possible applications, how many would be authorized again and become effective? Number 312 MR. HAWKINS replied it would be too difficult to make a judgement on unadjudicated claims and he would not do it. The ability to relocate and avoid conflict may not be an appropriate choice in all cases. He expected about 25 percent of the applicants would avail themselves to relocation to work with the state and federal government. He noted this was a "very ball park estimate." CHAIR VEZEY placed the teleconference sites on listen only. SHELBY STASTNY arrived to testify on CSSB 128, therefore CHAIR VEZEY paused discussion on HB 404 and opened CSSB 128 for discussion. HB 404 - NATIVE ALLOTMENTS IN STATE PARKS Number 365 DUGAN NIELSON, REALTY DEPARTMENT, BRISTOL BAY NATIVE ASSOCIATION, testified in favor of HB 404. He stated that the remaining Native allotment applications are in conflict with state land selections. He stated resolutions are found by going before the Interior Board of Land Appeals and tend to be a great expense to both parties. He said HB 404 will help avoid years of litigation and great expense. He noted HB 404 provides a mechanism of resolution in situations of land ownership uncertainty. (REPRESENTATIVE OLBERG rejoined the meeting at 9:20 a.m.) Number 387 CHAIR VEZEY asked why they restrained from making more changes to Title 38 than they did in HB 404 to really facilitate the process. Number 399 MR. NIELSON stated SB 293 had been introduced, which does take more action than HB 404, and it may expedite the process even further. (REPRESENTATIVE KOTT rejoined the meeting at 9:21 a.m.) Number 404 CHAIR VEZEY understood that the first change in Section 1 establishes the Administrative Procedure Act which will govern how the commissioner will set regulations. Number 412 MR. NIELSON agreed. Number 414 CHAIR VEZEY classified MR. NIELSON as a user of these services and asked if he endorsed this method of adopting regulations. He noted there were not many other options. Number 430 MR. NIELSON said he did not understand the question. Number 434 CHAIR VEZEY stated there is a process to adopt regulations, and the commissioner does not have to pay attention to the public input process, but failure to do so could be grounds for litigation. He asked if HB 404 was creating another source of adjudication by incorporating the Administrative Procedures Act. Number 444 MR. NIELSON thought the best-interest determination would preclude the public from expressing too much concern. Number 447 CHAIR VEZEY asked if MR. NIELSON was comfortable with this as a user. Number 448 MR. NIELSON stated he had no other options. If it does not work, it will need to be fixed again. Number 455 CHAIR VEZEY moved to the Fairbanks offnet site. Number 460 PERRY AHSOGEAK, REALTY DIRECTOR, TANANA CHIEFS CONFERENCE (TCC), testified in favor of HB 404. He said TCC provides land management services under contract to the Bureau of Indian Affairs (BIA) for Native allotment holders within the TCC region. He related that he has worked on conflict cases in the past, and resolving land conflicts requires an extensive amount of time for both the state and the BIA contractors involved. He said HB 404 would alleviate this problem by allowing allottees and the state to negotiate the location of the allotments presently within the park system. The state benefits from spending less staff time and finally resolving the conflict. The allottee benefits from obtaining their title, within their current lifetime, of lands they are entitled to under the Native Allotment Act. He said the TCC supports HB 404. Number 483 CHAIR VEZEY, feeling HB 404 had a very limited scope, asked ROGER McKOWAN, REPRESENTATIVE LYMAN HOFFMAN'S STAFF, if he would characterize it the same way. Number 490 MR. McKOWAN said he would. Number 491 CHAIR VEZEY clarified that HB 404 only deals with land in a state park or management system. Number 492 MR. McKOWAN agreed with CHAIR VEZEY. Number 493 CHAIR VEZEY understood the problem is that the Native allotment has a grant from the federal government. Number 500 MR. McKOWAN clarified the problem is due to AS 38.05.035, which precludes the state from transferring the alternative allotment outside the state park back to BLM, who in turn makes the actual switch. He described an example in which the original parcel, parcel A, would be inside the park and an alternative parcel has been selected elsewhere; the allottee then transfers their ownership from parcel A to the alternative land. Currently, the state is precluded from taking the alternative and giving it back to the BLM so they can make the switch and take the allottee out of the state park and put them on the alternative land. Number 518 REPRESENTATIVE G. DAVIS asked if the titles are designed to be under federal paperwork. He said if the alternative were on state land, the state could convey the Native allotment, but the state does not have that authority. Number 525 MR. McKOWAN believed the BLM has to make the actual transfer. He stated page 2, paragraph (B),(i), says "the occurrence of the error or omission," and these Native lands are not allotted in error, so only those allotted in error can be reconveyed. Theoretically they cannot be transferred under the statute. Number 535 CHAIR VEZEY said he understood MR. McKOWAN'S testimony, but he did not read the statute the same. He said paragraph 8 states the commissioner may "reconvey or relinquish land, or an interest in land to the federal government if the land is described in an amended application for an allotment under 43 U.S.C. 1617 and the land described in the original application for an allotment is within or otherwise managed, or subject to management, as a unit of the state park system;..." He felt the land addressed in paragraph 8, line 25, is not the same as land addressed in line 26 of the original application. Number 552 REPRESENTATIVE ULMER felt the explanation was clear. She showed the committee an analogy on the committee table with cups. She thought HB 404 should be clear to the committee and they should take action. Number 569 CHAIR VEZEY asked if the state would lose land to the federal government with HB 404. (REPRESENTATIVE ULMER left the meeting at 9:34 a.m.) Number 578 MR. McKOWAN clarified that the land is now federal land located in state parks. Number 579 CHAIR VEZEY stated the allotment is a federal land in a state park system. REPRESENTATIVE OLBERG added that the land has been selected by the state in its entirety. Number 583 CHAIR VEZEY continued that the federal government was reluctant to transfer the land to the Native allotment holder. REPRESENTATIVE OLBERG stated the federal government cannot give the Native allotment holder the alternative land, because the state is entitled to it. Number 588 CHAIR VEZEY asked what is to preclude the federal government from completing the transfer of the original Native allotment within the state management unit, and then the state and allottee could perform the swap? CHAIR VEZEY called for a brief at-ease at 9:35 a.m. to allow the teleconference operator to reconnect CHARLIE BUNCH, in Anchorage, so as he could testify. The meeting resumed at 9:37 a.m. CHAIR VEZEY asked if MR. BUNCH was present to testify. Number 602 MR. HAWKINS replied MR. BUNCH was absent. Number 616 PETE PANARESE, CHIEF OF FIELD OPERATIONS, ALASKA STATE PARKS DIVISION, DEPARTMENT OF NATURAL RESOURCES, testified in favor of HB 404 from Anchorage. He said allowing applicants to relocate the state land outside the state parks will reduce public impact and speed finalization of applications. He noted some applications have been pending for over 30 years. He clarified that the current Native allotments are on state land. He said DNR received "temporary, or T.A., to the land, with the state, then the allotment applications were filed on top of that." They want to provide a mechanism for the commissioner to move these allotments to state lands located outside the state parks. Number 637 CHAIR VEZEY asked if the state received a conveyance of the land before the allotment was granted. Number 639 MR. PANARESE responded yes, before the land was applied for. Number 641 CHAIR VEZEY felt it was not good legal sense, since the state received conveyance of the land from the federal government, then under the federal Native Allotment Act, the allotment was applied for. Number 644 MR. PANARESE replied the allotments was under the premise that their use existed prior to the establishment of the park, and prior to the state receiving the land from BLM. Number 646 CHAIR VEZEY clarified the actual application occurred after the state received conveyance. Number 647 MR. PANARESE confirmed that CHAIR VEZEY was correct. Number 648 REPRESENTATIVE OLBERG stated the applicant felt he/she had an interest prior to the state and applied on the off-chance they might get the land. He said HB 404 would provide a way to get them other land because the land does not fall under "errors and omissions." Number 651 CHAIR VEZEY commented that he liked REPRESENTATIVE OLBERG's description. CHAIR VEZEY asked the committee's pleasure. Number 656 REPRESENTATIVE OLBERG moved that HB 404 be passed from committee with individual recommendations, a zero fiscal note, and unanimous consent. Number 659 CHAIR VEZEY recognized the motion. The committee secretary called the roll. HB 404 passed unanimously from the House State Affairs Committee with individual recommendations. REPRESENTATIVES ULMER, B. DAVIS and SANDERS were absent. (REPRESENTATIVE OLBERG left the meeting at 9:45 a.m.) CHAIR VEZEY decided to move over HB 328, and opened HB 407 for discussion.