Legislature(1995 - 1996)
02/20/1995 01:35 PM Senate CRA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SCRA - 2/20/95
SB 56 RIGHTS IN TIDE/SUBMERGED LAND
Number 470
SENATOR TORGERSON brought SB 56 before the committee as the final
order of business.
SENATOR LOREN LEMAN, prime sponsor of SB 56, said the basic concept
of the legislation is to get decision making for tidelands and
submerged lands made at the local level instead of at the state
level. The bill will provide a mechanism for the Department of
Natural Resources to turn these lands over to municipalities who
identified tide and submerged lands for development. It provides
for four conditions that would have to be met before land could be
conveyed to municipalities.
Senator Leman pointed out that land conveyed under this bill is
still subject to the public trust doctrine, and if a municipality
is dissolved, the land would revert to the state. Further, it
doesn't affect the general land entitlement of a municipality
provided by AS 29.65.
Number 530
SENATOR TORGERSON opened the public hearing on SB 56.
SARAH HANNAN, Executive Director, Alaska Environmental Lobby,
stated their support for the intent of SB 56, but they are
concerned that the bill neglects to supply recourse to the state
for decisions which must be made in the best interest of the state
and the public. There is no availability for the state not to
convey the land if it meets the four criteria in the bill. She
suggested the bill should provide that if the state could prove
that its concerns outweigh the municipality, the commissioner could
recommend that the land not be transferred. Other than that, the
Lobby supports Senator Leman's attempt to help local governments
diversify their economy and develop their economies.
Number 622
JOHN BAKER, Assistant Attorney General, Natural Resources Section,
Anchorage Attorney General's office, spoke to the public trust
doctrine. He said where the Legislature authorizes conveyance of
tide and submerged lands, which it has done on a very limited basis
since statehood, except in very narrow circumstances those lands
are subject to the public trust. That means members of the public
can not be absolutely excluded from pursuing public trust uses on
those lands.
TAPE 95-4, Side A
Number 001
BOB JUETTNER, Administrator of the Aleutians East Borough (AEB),
testified in support of SB 56 and supports the municipal ownership
of tidelands for the following reasons: flood control, costs and
equity. A municipality cannot spend G.O. bonds on state-owned
lands; it must secure a minimum lease for a five-year period, which
is becoming more difficult to do. The second issue is the cost of
leasing. A current tideland lease of 4.4 acres has a modest lease
fee of $1,100 which represents only one-fifth of the total annual
costs. Additional expenses include appraisal costs and the ongoing
costs of insurance and bonding requirements. Another issue with
the municipalities is the equity issue. First class and home rule
cities incorporated prior to 1964 received the fee simple issue to
their tidelands. Not only did they receive the title to their
tidelines, but any city so incorporated can annex the tideline and
still apply for the tideland, anytime after the annexation is
approved. Finally, there is the issue of disposable tidelands. AS
38.05.820 (b)(7) states that municipalities that have been
incorporated since 1964 shall have reasonable access to public
waters.
Number 090
CLIFF EAMES, representing the Alaska Center for the Environment
(ACE), stated ACE does not support SB 56. He emphasized it is
important to retain remaining state lands in state ownership so
that all Alaskans have an opportunity to influence how that land is
managed. The municipalities have had some opportunities for
municipal entitlement and if there is a need for more lease
processors, ACE would support the providing of additional
processors. ACE does not believe this legislation is necessary
because the opportunity to lease those lands from the state exists.
He reiterated ACE's preference to continue to work with the
existing process and not transfer additional land out of state
ownership.
RON SWANSON, Director of the Division of Lands, Department of
Natural Resources (DNR), stated DNR supports SB 56 in concept but
has two concerns. DNR strongly feels some discretion should be
allowed to the Commissioner and that the burden of proof should be
put on the Department, not on the applicant, but they feel it would
be inappropriate to require the Commissioner to convey land just
because it is suitable for development.
MR. SWANSON stated DNR also recommends the deletion of the phrase
"for sale" from page 2, line 18. He pointed out that tidelands,
shorelands, and submerged lands are all managed under the Public
Trust Doctrine. This is a living doctrine that has evolved and
continues to evolve over time. Other states and the courts have
long found that the sale of these lands, while not necessarily
violating the public trust doctrine at the time of sale, may, by
its use, violate the doctrine at a later date.
SENATOR KELLY asked if DNR's second concern was in regard to the
lease, or the sale, or both. MR. SWANSON replied DNR's concern is
with the sale. He reiterated DNR supports the ability of the
municipalities to lease tide, shore and submerged lands.
Number 168
JERRY McCUNE testified on behalf of himself. He described to the
committee how a friend of his, in Cordova, after taking incorrect
survey readings, built a house. The house is situated on 1 foot of
state land so the builder cannot close his loan. SB 56 could
correct the situation by conveying that piece of land to the
municipality who would convey it to this individual. He discussed
a second situation in Cordova, in which the ferry terminal and dock
are located in ten feet of water as the result of an earthquake.
The ferry is unable to dock there. The dock is used as a launch
for fishermen and other boaters. The municipality has been trying
to get the rights to that land but is in dispute with the state.
SENATOR KELLY asked if the proposed amendment came from DNR.
SENATOR TORGERSON answered affirmatively, and added it is already
in the companion House bill. SENATOR KELLY questioned whether the
Administration might oppose SB 56 if it is not amended. MR.SWANSON
replied DNR would oppose SB 56 without the amendments.
SENATOR KELLY moved the adoption of the following amendment.
Add to Section 1(a):
Unless the commissioner finds that the public interest in
retaining state ownership of the land clearly outweighs the
municipality's interest in obtaining the land, the
commissioner shall convey to a municipality tide or submerged
land requested by the municipality that is occupied or
suitable for occupation and development if the...
SENATOR PHILLIPS objected because only one person would be making
the determination. A roll call vote was taken with the following
result: SENATORS HOFFMAN, KELLY, ZHAROFF, and TORGERSON voted
"YEA," and SENATOR PHILLIPS voted "NAY." The motion to adopt the
amendment passed.
Number 243
SENATOR ZHAROFF commented he concurs with DNR's second concern to
delete the phrase "or sale" from page 2, line 18. He moved to
amend SB 56 by deleting that phrase. SENATOR TORGERSON asked how
that would affect the homeowner in Cordova. SENATOR HOFFMAN asked
for Senator Leman's opinion. SENATOR LEMAN stated he preferred to
leave the phrase in because of recurring situations like the case
in Cordova.
SENATOR HOFFMAN noted he was the manager in Bethel for several
years, and great strides were taken to obtain public input before
land was leased, therefore he felt it is important to give the
local government as much discretion as possible.
Number 270
SENATOR ZHAROFF withdrew his amendment to delete the phrase "or
sale" from page 2, line 18, but he suggested including a letter of
intent. SENATOR LEMAN felt that in light of the fact that the
Commissioner would have the final approval, he would not have any
problem with a letter of intent. SENATOR ZHAROFF commented some
municipalities might want to work with this legislation as soon as
possible, therefore he suggested adding an immediate effective
date. After discussion, SENATOR LEMAN agreed.
SENATOR PHILLIPS moved that CSSB 56 (CRA) be passed out of
committee with individual recommendations. There being no
objection, so ordered.
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