03/24/2009 01:00 PM Senate TRANSPORTATION

         SB 148-LIABILITY FOR TRIBAL ROAD CONSTRUCTION                                                                      
                                                                                                                                
SENATOR KOOKESH announced the consideration of SB 148.                                                                          
                                                                                                                                
1:10:41 PM                                                                                                                    
DOROTHY SHOCKLEY,  Staff to  Senator Albert  Kookesh, said  SB 148                                                              
will reduce  intergovernmental disputes  about liability  and will                                                              
enable tribes in  Alaska to focus on transportation  projects. She                                                              
noted that in  2008 tribes in Alaska received  about $36.6 million                                                              
in  Indian Reservation  Road  (IRR)  funds. Additional  funds  are                                                              
anticipated   from   the   stimulus.    As   the   Department   of                                                              
Transportation  & Public  Facilities prepares  the next  Statewide                                                              
Transportation  Improvement Program (STIP),  tribes for  the first                                                              
time can bring both matching and maintenance funds.                                                                             
                                                                                                                                
1:12:36 PM                                                                                                                    
MARK   OBRIEN,    Chief   Contracts    Officer,   Department    of                                                              
Transportation   &    Public   Facilities   (DOTPF),    said   the                                                              
administration supports  SB 148. IRR  funds that are  available to                                                              
tribes in Alaska  can be combined with funds from  other state and                                                              
federal agencies  to accomplish projects that might  not otherwise                                                              
be  possible.  The  department  has  successfully  partnered  with                                                              
tribes  on  a  number  of  projects   to  maximize  transportation                                                              
dollars  in   Alaska,  but  in   each  instance  there   has  been                                                              
difficulty  with  the  issue  of  liability.  When  the  tribe  is                                                              
responsible  for   design,  construction   and  delivery   of  the                                                              
project, the  state may be acting  as nothing more than  a funding                                                              
pass-through.  The state  isn't  on scene  for  those projects  so                                                              
when there  is an issue  of liability,  the question  arises about                                                              
how to protect  the state's interest. This bill  addresses that by                                                              
shifting  the primary responsibility  for  liability to the  tribe                                                              
in  projects   where  the   tribe  is   responsible  for   design,                                                              
construction  and delivery.  For  that reason  DOTPF supports  the                                                              
bill, he said.                                                                                                                  
                                                                                                                                
SENATOR KOOKESH  summarized that  tribal IRR funds  are increasing                                                              
each  year   and  federal   dollars  coming   to  the   state  are                                                              
decreasing.   This  bill   defines  liability   and  thus   allows                                                              
partnerships to go forward between the state and the tribes.                                                                    
                                                                                                                                
1:15:21 PM                                                                                                                    
KAY  GOUWENS,  Attorney,  Anchorage,  said she  is  testifying  on                                                              
behalf  of the Chickaloon  Native  Village in  support of  SB 148.                                                              
Chickaloon is  a member of a  consortium of Alaska  Native village                                                              
tribes  that  her  law firm  represents  in  connection  with  IRR                                                              
program activities.  The  IRR program benefits  the entire  state,                                                              
not  just  Alaska  Native  villages.   It  brings  in  significant                                                              
amounts of federal  dollars for the tribe to use  to design, build                                                              
and maintain roads that provide access to Native communities.                                                                   
                                                                                                                                
Both the  tribes and  DOTPF support  and are  working to  maximize                                                              
the IRR  program. However,  the issue of  the extent to  which the                                                              
state might  be liable  for activities  that the tribes  undertake                                                              
relative to IRR  programs has been and continues to  be a sticking                                                              
point.  This  legislation  is  clearly needed  and  it  is  needed                                                              
quickly  because deadlines  associated with  the federal  stimulus                                                              
are  approaching. There  is  a provision  that  the  funds can  be                                                              
reallocated  to other  tribes  across the  nation  if they  aren't                                                              
obligated by February 2010.                                                                                                     
                                                                                                                                
MS.  GOUWENS said  that shielding  the state  from this  liability                                                              
won't leave  the traveling  public without a  remedy in  the event                                                              
of injury  by tribal  activities associated  with these  projects.                                                              
Under the IRR  Program and federal law, when  the tribes undertake                                                              
these  projects pursuant  to the  Indian  Self Determination  Act,                                                              
they  are  treated  as  if  they are  an  agency  of  the  federal                                                              
government  and  their  employees  are  treated  as  if  they  are                                                              
federal  employees  for  purposes  of court  claims  that  may  be                                                              
brought.  If someone  is injured,  they would  bring suit  against                                                              
the federal  government. That remedy  is very important  to tribes                                                              
because they don't have to secure liability insurance.                                                                          
                                                                                                                                
1:18:59 PM                                                                                                                    
SENATOR PASKVAN joined the meeting.                                                                                             
                                                                                                                                
GORDON  JACKSON, Director  of  Roads and  Transportation,  Tlingit                                                              
Haida  Central  Council,  mentioned liability  issues  in  putting                                                              
together projects.  He said  there are a  lot of IRR  funds coming                                                              
into  the state;  $320  million  is  available under  the  federal                                                              
stimulus, but  timing is  critical. Getting  rid of the  liability                                                              
question  and  speeding  the permitting  situation  will  make  it                                                              
possible to  get on to the  business of building roads  and trails                                                              
and bridges.  SB 148 is  a good bill  that opens a  completely new                                                              
line of communication, he said.                                                                                                 
                                                                                                                                
1:21:55 PM                                                                                                                    
MIKE  SMITH, Tanana  Chiefs Conference,  Inc. (TCC),  said TCC  is                                                              
comprised of  42 Interior communities,  all of which get  IRR road                                                              
money.  TCC  strongly  supports  SB 148  in  order  to  facilitate                                                              
coordination  of projects  with DOTPF. Timeliness  is of  essence.                                                              
This is  a win-win  situation for the  state and TCC  communities,                                                              
he said.                                                                                                                        
                                                                                                                                
SENATOR KOOKESH  closed public  testimony and  asked for  the will                                                              
of the committee.                                                                                                               
                                                                                                                                
SENATOR  MENARD  moved  to  report  SB  148  from  committee  with                                                              
individual  recommendations  and  attached fiscal  note(s).  There                                                              
being no  objection, SB 148  moved from the Senate  Transportation                                                              
Standing Committee.