Legislature(1995 - 1996)
02/20/1995 01:35 PM CRA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.