Legislature(1995 - 1996)

03/06/1995 04:00 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 SL&C - 3/6/95                                                                 
 CHAIRMAN LEMAN  called the Senate Resources Committee meeting to              
 order at 4:00 p.m.  The first order of business was SB 56,                    
 sponsored by Senator Leman.  He noted SB 56 has been reviewed by              
 the Community and Regional Affairs Committee, and a similar measure           
 was introduced last year.                                                     
 ANNETTE KREITZER, committee aide, read a sponsor statement to the             
 committee.  She made the following comments.  SB 56 was introduced            
 at the request of the Aleutians East Borough.  It allows all                  
 municipalities, home rule, first, and second class cities and                 
 boroughs, to apply for conveyance of tide and submerged lands if              
 four conditions are met by the municipalities.  Those conditions              
 are: a lack of unreasonable interference with public access                   
 resulting from proposed use;  an application must be submitted for            
 conveyance; compatibility of proposed use and land classification             
 or land use plan for the area must exist; and a need for land                 
 development.  Land conveyed under SB 56 would be subject to the               
 Public Trust Doctrine.  Title to land conveyed under SB 56 would              
 revert to the state if the municipality is dissolved.  SB 56 would            
 not affect municipal land entitlements provided by AS 29.65.                  
 Number 055                                                                    
 SENATOR HOFFMAN asked for an explanation of the committee                     
 substitute.  MS. KREITZER explained the Community and Regional                
 Affairs committee substitute (offered 2/21/95) added language which           
 is included in a companion bill on the House side.  Under Section             
 1, subsection (a), the phrase, "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,..." was inserted.  The new committee substitute, dated                  
 3/6/95, adds a provision that would deal with problems associated             
 with the City of Skagway.                                                     
 SENATOR PEARCE moved the adoption of the committee substitute,                
 dated 3/6/95, as the working document.  There being no objection,             
 the motion carried.                                                           
 Number 095                                                                    
 SENATOR ZHAROFF explained the committee substitute adds a provision           
 that makes it possible for the Department of Natural Resources                
 (DNR) to transfer land in question to municipalities.  Current                
 practice allows DNR to transfer land to individuals but not to                
 municipalities.  In the City of Skagway a dike was constructed                
 approximately 50 years ago to divert the river.  At that time the             
 land that was reclaimed was between the new river course and the              
 old river bank.  A number of developments have occurred on that               
 land, including a school, however financing has been difficult to             
 obtain because of the question of title.  An identical bill passed            
 through the committee process last year but was lost during the               
 final hours of the session.                                                   
 SENATOR LEMAN asked if a municipality has already taken its                   
 entitlement, whether CSSB 56 would allow for additional                       
 entitlements.  SENATOR ZHAROFF deferred the question to the DNR.              
 Number 146                                                                    
 DICK LeFABVRE, DNR, replied that if a municipality had already                
 fulfilled its requirement it would not be eligible for an                     
 additional entitlement, however there are other methods that could            
 be used.                                                                      
 SENATOR LEMAN explained a proposed amendment that would remove                
 language inserted by the Community and Regional Affairs Committee.            
 Number 170                                                                    
 SENATOR LINCOLN asked what the intent of including that language              
 SENATOR PEARCE moved the adoption of the amendment.                           
 DICK LeFEBVRE explained the language, which is contained in HB 20,            
 gives the Commissioner the discretion to object to municipal                  
 selections outside of designated areas included in Section B, if              
 there is a greater public interest.  He cited the TransAlaska                 
 terminal facility in the City of Valdez as an example, and                    
 explained under SB 56, DNR would not have had the discretion to               
 deny applications submitted by the City of Valdez.                            
 Number 202                                                                    
 SENATOR LEMAN asked if the Anderson Bay property met the                      
 requirements under CSSB 56(CRA), lines 5-10.  MR. LeFEBVRE replied            
 that property would not have met those requirements.  He discussed            
 future scenarios in which conveyance applications might meet those            
 requirements but the overall public interest would not be served.             
 SENATOR LEMAN clarified the question as whether to place trust in             
 the municipalities or the Commissioner.                                       
 SENATOR LINCOLN asked whether the recommendations included in the             
 Department of Fish and Game's (F&G) fiscal note were considered or            
 included in CSSB 56.  SENATOR LEMAN noted the discussion was                  
 limited to the amendment.                                                     
 SENATOR HOFFMAN discussed his concern that, as a fall-back, there             
 should be a best interest findings provision on behalf of the                 
 Number 257                                                                    
 SENATOR FRANK clarified that if the amendment is adopted, DNR would           
 be mandated to convey the land if the three criteria on page 2,               
 lines 5-10 are met, and if the amendment is rejected, the                     
 Commissioner may reject the application if it is in the state's               
 best interest.  SENATOR LEMAN responded affirmatively.                        
 Number 267                                                                    
 SENATOR FRANK questioned whether "best interest findings" are                 
 subject to litigation.  SENATOR LEMAN commented that "best interest           
 findings" are litigated all of the time.  MR. LeFEBVRE agreed.                
 SENATOR HOFFMAN did not remove his objection to the motion to adopt           
 the amendment.  A roll call vote was taken with the following                 
 results:  Senators Leman, Pearce and Lincoln voted "Yea," and                 
 Senators Hoffman and Frank voted "Nay."  The motion carried.                  
 Number 300                                                                    
 SENATOR LINCOLN restated her question regarding ADF&G's position              
 paper.  She asked if the two recommendations were accommodated.               
 GERON BRUCE, representing ADF&G, informed the committee that the              
 provision does allow the DNR Commissioner to deny a request for               
 land in a legislatively designated area if the use is incompatible            
 with the purpose of the statutory designations, but it does not               
 explicitly address the recommendation.                                        
 SENATOR LINCOLN asked whether ADF&G's first recommendation was                
 accommodated.  MR. BRUCE responded it is addressed on page 4, line            
 15.  SENATOR LINCOLN asked if the committee substitute satisfies              
 ADF&G's concerns.  MR. BRUCE stated he did not feel the second                
 concern has been explicitly addressed; ADF&G staff recommended that           
 legislatively designated areas not be conveyed.                               
 SENATOR LEMAN clarified that the DNR Commissioner could not convey            
 those lands unless he/she determines that the proposed use is                 
 consistent or compatible with the purpose of the statutory                    
 designations.  He felt the legislatively designated areas would be            
 Number 345                                                                    
 MR. BRUCE noted the DNR, not ADF&G, would make that determination.            
 SENATOR LINCOLN questioned the fiscal note.  MR. BRUCE explained              
 the fiscal note speaks to the need to examine lands that would be             
 conveyed, and to advise DNR on the impact of the uses of those                
 lands on fish and game habitat.  SENATOR LINCOLN asked if the                 
 fiscal note would apply to the amended version of CSSB 56.  MR.               
 BRUCE answered it would as it applies to the question of the                  
 legislatively designated areas, but if the land has already been              
 classified for waterfront development, those considerations would             
 have been examined in the fiscal note prior to the new committee              
 Number 375                                                                    
 SENATOR LEMAN asked if the half-time biologist position included in           
 the fiscal note would be a new or existing position.  MR. BRUCE               
 responded it would be ADF&G's preference to have a part-time person           
 assigned to these responsibilities, as any additional workload                
 would be difficult to accomplish with existing staff.  He commented           
 the Habitat Division is struggling to meet the requirements of                
 legislation passed last year to establish tax credits on the Kenai            
 SENATOR LEMAN commented CSSB 56(am) should not tie up one employee            
 half-time for an entire year as only a handful of applications are            
 likely to be submitted.  He added he would prefer to see a seasoned           
 staff person do the job as they would not need to be trained.                 
 Number 398                                                                    
 SENATOR LEMAN announced CSSB 56(am) would be held until Wednesday,            
 March 8, to review an updated ADF&G fiscal note.                              
 SARA HANNAN, representing the Alaska Environmental Lobby (AEL),               
 testified.  She noted the AEL has serious concerns about CSSB
 56(am) as there are times when the state may have an overriding               
 interest in retaining ownership of land.  She commented some                  
 discretion to the State must be reserved to prevent future                    
 conflicts when projects such as ferry terminals, or pipeline                  
 terminals, are required.  She explained with no discretion reserved           
 for the state, the State must transfer the land whenever the                  
 application meets the 3 criteria.  The Community and Regional                 
 Affairs version of SB 56 gives DNR the discretion to reject the               
 application if there is an overriding public concern and the burden           
 of proof remains with the State.  She added CSSB 56(am) would                 
 change public access to tidelands which are owned by the state                
 since new municipalities could be granted rights to tidelands.                
 SENATOR LEMAN commented the bill transfers tideland conveyance from           
 one public entity to another and the Public Trust Doctrine would              
 hold for the municipality.  MS. HANNAN replied the municipality               
 would apply for the land because they have a development plan for             
 it and the public use will shift.  MS. HANNAN stated long into the            
 future the state may want to develop a deep water port.  She                  
 reiterated her concern that the State should retain the ability to            
 deny a permit based on overriding public concern.  She added under            
 CSSB 56(am), the state would automatically have to transfer lands             
 that meet the criteria and the municipality could sell that land to           
 a third party.                                                                
 Number 485                                                                    
 SENATOR FRANK questioned whether the municipality could sell the              
 tidelands to a private party.  SENATOR LEMAN responded                        
 SENATOR FRANK asked if the State could do the same thing.  DICK               
 LeFEBVRE responded negatively.  SENATOR FRANK asked if the                    
 prohibition against the state was constitutional or statutory.  MR.           
 LeFEBVRE replied it is covered under statute.  SENATOR FRANK                  
 questioned whether there was a constitutional provision, similar to           
 that with regard to mineral rights.  MR. LeFEBVRE replied, "Not               
 directly, no."                                                                

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