Legislature(1999 - 2000)
05/03/1999 09:10 AM Senate FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 140(RES)
"An Act relating to the powers and duties of the
Department of Natural Resources, modifying that
department's power to control and manage land within
the Hatcher Pass Public Use Area, and authorizing
municipal selection of that land, and relating to the
Alaska coastal management program; and providing for
an effective date."
BRUCE CAMPBELL, staff to Senator Randy Phillips, testified.
SB 140 was a mission alignment bill. It also changed
statutory adjustment needed to allow for the budget
allocation to the Department of Natural Resources.
The statutory adjustments for Department of Natural
Resources would make the planning and classification
process more flexible, optional or more permissive.
"Shall" was replaced with "may" in many places in the first
ten pages of the bill. This would allow flexibility in the
classifications land planning process.
The land planning process was not the only process the
department engaged in. It was one of the steps prior to
getting to a land sale. Land planning classification
usually preceded a best interest finding, which also had a
public review and public notice. It also preceded sales or
leases, each of which had its own public notice, public
hearings, findings and determinations that were generally
preformed in a specific order. This change would perhaps
lower litigation cost, according to Bruce Campbell.
The second half of the bill, beginning on page eleven,
would move the Division of Governmental Coordination and
its associated coastal management program into the
Department of Natural Resources.
[Pause on the record to determine the location of the
language in the bill.]
Bruce Campbell explained where the language defining the
Alaska Coastal Policy Council was located.
The intent was to move the process with no major policy
changes or alterations to the program that would disturb
the on-going process. The individuals themselves would not
physically move.
The Division of Governmental Coordination currently did not
have a director. Efficiencies would be realized by the
savings of eliminating this position through merging the
division with the Department of Natural Resources.
Co-Chair John Torgerson wanted to know if the witness still
anticipated a saving in the maintenance of efforts from
combining the two agencies. Would more federal funding be
captured? Bruce Campbell had spoken to the National
Oceanographic and Atmospheric Administration and was told
the funding would probably not change. The programs had
reached a funding cap. US Representative Don Young was
working on obtaining more funding, but Bruce Campbell did
not anticipate an increase in federal funding.
Current state funds allocated to the Division of
Governmental Coordination were fairly low and functioned
under the Office of Management and Budget, Office of the
Governor.
Senator Al Adams asked if the merger would create any
potential conflict with the regulation of state land use or
with activities on private or public lands. Bruce Campbell
replied that he did not see any and detailed. Federal law
expressly requested that the governing state agency have
the power to direct state land and water use planning and
regulations, which the Office of Management and Budget did
not have but the Department of Natural Resources did have.
Federal law required that the entity that operated the
coastal zone program shall have the power to approve or
disapprove, after public notice, specific permits or
actions. The Division of Governmental Coordination assumed
that through a peripheral relationship to Department of
Natural Resources, Department of Environmental Conservation
and Department of Fish and Game.
The specific mission alignments affected both the structure
in which federal code was built and in the agency's impact
on that.
Co-Chair John Torgerson wanted to know what the changes in
the proposed committee substitute would do. Bruce Campbell
replied that it added language to the provision of the
merger. It also added language in the planning process
portion to allow it to become optional. He showed where on
page two line 28 "may" was inserted, and was "shall"
deleted. This was repeated in other areas of the bill.
This stipulated that the commissioner "may" engage in a
planning process to determine among other things whether
there were sufficient funds to do the project. Currently,
statute stated that the planning process was required.
Without the change the ability to sell and lease lands
would be difficult for the department.
Co-Chair John Torgerson asked what changes were made in
Section 23. Bruce Campbell answered this was an add-on made
by the Senate Resources Committee and included the shift on
page ten lines 20, 24 and 25 that excluded specific tracts
of land that were included in municipal lease. This
amounted to 939 acres of land where there was overlap
between the Legislatively created public use area and the
contract happening in the Hatcher Pass area. This involved
an agreement to construct a ski resort.
Bruce Campbell continued with other changes made on page
eight to allow the use of electronic technologies for
public notices. This could result in savings and if
successful, the department would be expected to build upon.
The department had asked to remove a coordinating body from
the public notice provision. They felt that was not a
useful function.
Senator Gary Wilken noted the multitude of fiscal notes and
wanted to know which applied to the committee substitute.
Co-Chair John Torgerson answered that probably none applied
since the CS had not been adopted.
Senator Gary Wilken noted a Coastal Policy Council
Resolution. It was not included in the packet and he
wanted it distributed for member's consideration.
Senator Randy Phillips moved to adopt CS SB 140 Version "N"
as a Workdraft. Without objection, it was adopted.
GABRIELLE LAROCHE, Acting Director, Division of
Governmental Coordination, Office of Management and Budget,
Office of the Governor and Program Coordinator, Alaska
Coastal Management Program, testified in opposition to the
bill.
The sixteen-member policy council, who had prepared the
resolution opposing the legislation that Senator Gary
Wilken spoke of, was comprised of nine locally elected
governmental officials. Also, she noted that no one who had
testified before the Senate Resources Committee was in
favor of the bill.
The sponsor staff stated that this was a mission alignment
and efficiency bill. In response, she had three points that
disproved that. First, the missions of the two agencies
were different. Second, no savings to the state general
fund could be identified with this legislation. Finally,
previous legislative audits found the Division of
Governmental Coordination was the most appropriate agency
for administering the Alaska Coastal Management Program.
She spoke to the conflict of interest in the missions and
mandates of the Division of Governmental Coordination and
the Department of Natural Resources. One of the main
functions of the DGC was to make determinations and provide
conflict resolutions between the Department of Natural
Resources, Department of Environmental Conservation,
Department of Fish and Game, developers and other
interested parties.
The bill could result in increased start-up costs when
combining the agencies. Although there would be savings in
the elimination of the director position, it would be
offset by other costs such as position reclassifications
and hiring procedures associated with the transfer.
Short-term inefficiencies were also anticipated. A
changeover of the lead agency would require an amendment to
the federal program approval. She described the steps
required in this process. Delays or decreases in federal
funding would not only impact state agency functions, but
also pass-through dollars provided to coastal districts and
communities in the state.
Gabrielle LaRoche told the committee that the director's
position, which was proposed to be assigned to the Division
of Land, would not qualify for full federal funding since
the position would have other duties beside the coastal
management program. The difference would have to be made
up.
She repeated her argument that the Office of the Governor
was the best location for the Alaska Coastal Management
Program.
JANE ANGVIK, Director, Division of Lands, Department of
Natural Resources, testified via teleconference from
Anchorage. She opposed the bill and had two points to make.
The first was that the Division of Governmental
Coordination and the Department of Natural Resources were
very different and performed different functions.
The Division of Lands functioned as the owner of the state
lands and made decisions on how to best use the state's
resources. The Division of Governmental Coordination on the
other hand was a permitting agency that attempted to
resolve conflicts between parties whether they affected
state, federal or private lands.
Secondly, she believed the intention was to make the
planning process optional for the Division of Lands. She
disagreed that funding for the planning functions could be
eliminated since the process would no longer be required.
She also disagreed that with the elimination of the
planning positions, the functions could be taken over by
the personnel from the current Division of Governmental
Coordination. Neither of those perceptions would be
accurate because, she warned.
She talked about the language addressing the planning
requirements and explained that it still required the
division to go through a reasoning process before making
decisions. With no funding or staff to perform that
function, that could not be done.
She stressed that this legislation would not achieve the
objectives of mission alignment stated by the sponsor. She
detailed the different missions of the two agencies.
JOHN BAKER, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, testified via
teleconference from Anchorage. He addressed the
implications of Title 38. He characterized the Department
of Law's concerns with the dispersion as constitutionally
based. The department did not believe that these changes
would make the bill, as written, unconstitutional. However,
he did want to point out that there were constitutional
implications in how the courts would likely construe the
legislation. That would have a direct effect on whether
the legislation would achieve its objective to produce cost
and efficiency savings. Those comments were directed mainly
at Sections 4, 10, 11, 13 and 14 of Version "N" that made
the planning functions optional.
The court under Alaska law would construe all legislation
as avoiding a constitutional conflict whenever possible. To
do that, it would interpret the legislation with its own
view of what the constitution required. The department
believed that the court would view the constitution as
requiring some record of the decision making for all
disposals of land and other state resources in order to
make public participation in that process meaningful. The
department anticipated that the court would require the
Department of Natural Resources to continue to engage in a
process described in Title 38. The legislation could change
the name of the process.
If the goal were to reduce the workload in the planning and
classification functions, this bill would not accomplish
that.
He deferred to Gabrielle LaRoche's comments on the Coastal
Management Program implications.
Senator Al Adams had a question on the constitutionality of
the bill. Was that because the constitution specifically
stated that the government needed a reasonable approach to
land management and that the public was entitled to a due
process? John Baker replied that there were several
sections of Article 8 of the constitution that required
public notice and pointed out the linkage to the
classification and planning process. In a nutshell, the
linkage should be described as that which a record of
decision making was produced. The court required not only
public notice, but meaningful public notice that the public
was able to participate in.
JOHN DUNHAM, Planning Department, North Slope Borough.
Testified via teleconference from Barrow to the items in
the bill relating to the Coastal Management Program. He
was concerned that the move was unneeded and that there
would be no net savings. He was concerned how the Division
of Governmental Coordination activity would integrate
administratively into the Department of Natural Resources.
He talked about the change in employment status from exempt
positions and how that might affect the impartiality or the
expertise of the decision-makers.
He then referred to the land planning process. He detailed
the unfulfilled municipal entitlement situation. He noted
that the North Slope Borough was not the only municipality
in this position and felt this bill would have a larger
impact than the committee realized.
The Division of Lands and the Division of Governmental
Coordination were completely different agencies. He closed
by saying there were no simple answers.
JOHN EASTON, Program Director, Bristol Bay Coastal Resource
Service Area, testified via teleconference from Dillingham
testified against the bill. This would affect the Bristol
Bay Area Plan that included state land classifications and
designations. This plan and others had gone through a full
public process to find the best use.
The Division of Governmental Coordination served its
mission. SB 140 would remove a network system that worked
quite well.
LINDA FREED, Community Development Director, Kodiak Island
Borough testified via teleconference from Kodiak. She had
serious concerns with the state land planning functions.
She felt the bill was short sighted.
The Kodiak Island Borough was opposed to the Coastal
Management Program portions of the bill and did not see the
savings in merging the office with the Department of
Natural Resources. She did not feel that by eliminating the
director's position was advantageous. The director position
played an important part in the process, often as an
arbitrator.
BILL EASTHAM, President, Mat-Su Motor Mushers, testified
via teleconference from Mat-Su in opposition to the Senate
Resources Committee version of the bill. He felt the
Hatcher Pass community would have no control over the area.
KATHY WELLS, Creator, Hatcher Pass Management Plan,
testified via teleconference from Mat-Su in opposition to
the bill. She did not want the Mat-Su Borough to acquire
the land arguing that it did not have the capacity to
properly manage it. She was concerned with the poor public
notice process with this bill.
KAROL KOLEHMAINEN, Program Coordinator, Aleutians West
Coastal Resource Service Area, testified via teleconference
from Mat-Su. She spoke to the concerns of the CRSA with the
bill. She did not support the merging of the two agencies
or the elimination of the planning process requirement. She
also had concerns about funding for the CRSA.
ROBBIE FAGERSTROM, Co-Chair, Alaska Coastal Policy Council,
testified via teleconference from Nome. He requested the
committee members be provided with two letters to use when
making their decisions regarding this bill.
He referenced a Legislative Audit Report that found the
Division of Governmental Coordination was the most
appropriate location for the coastal policy functions.
Tape # 117 Side B 9:57 AM
Robbie Fagerstrom continued.
NANCY MICHAELSON testified via teleconference from
Anchorage regarding the Hatcher Pass Public Use Area. She
told of the area and the many recreational activities her
family and thousands of other South-central Alaskans
enjoyed there. She pointed out that the borough was not
bound by the limitation agreement and was more interested
in developing the land.
MURRAY WALSH, Planning and Development Consultant testified
in Juneau. He felt the provisions in SB 140 would not
accomplish the goals of the permitting process. The only
defense his permit applicants had was the Division of
Governmental Coordination, which served as a referee.
Co-Chair John Torgerson ordered the bill held in committee.
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