Legislature(1993 - 1994)

03/01/1994 08:00 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                                   
  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                             
  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                    
  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                                                                   
  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                                                                   
  (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                  
  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                       
  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                     
  Number 602                                                                   
  MR. HAWKINS replied MR. BUNCH was absent.                                    
  Number 616                                                                   
  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.                                                              

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