Legislature(1995 - 1996)

02/20/1995 01:35 PM CRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 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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