01/11/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB318 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 318 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 11, 2006
1:10 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Pete Kott
Representative Peggy Wilson
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Mike Kelly
Representative Jim Holm
Representative Gabrielle LeDoux
COMMITTEE CALENDAR
HOUSE BILL NO. 318
"An Act limiting the exercise of eminent domain."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 318
SHORT TITLE: LIMITATION ON EMINENT DOMAIN
SPONSOR(S): REPRESENTATIVE(S) MCGUIRE, HOLM, HAWKER
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
WITNESS REGISTER
CRAIG JOHNSON, Staff
to Representative Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 318 on behalf of
Representative McGuire, one of the bill's prime sponsors,
described the changes incorporated into the proposed CS for
HB 318, Version Y, and responded to questions.
PETER PUTZIER, Senior Assistant Attorney General
Transportation Section
Civil Division (Juneau)
Department of Law (DOL)
POSITION STATEMENT: Responded to questions during discussion of
HB 318.
DON BULLOCK, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Spoke as the drafter of HB 318 and
responded to questions.
REPRESENTATIVE PAUL SEATON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Asked questions and provided comments
during discussion of HB 318.
REPRESENTATIVE BOB LYNN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided a comment during discussion of
HB 318.
BOB SHAVELSON, Executive Director
Cook Inlet Keeper
Homer, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 318.
PETER ROBERTS
Homer, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 318 and expressed a preference for the original version of
the bill.
DANA OLSON
(No address provided)
POSITION STATEMENT: Provided comments during discussion of
HB 318 and asked that the bill be held over.
KEVIN C. RITCHIE, Executive Director
Alaska Municipal League (AML)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 318.
GARVIN BUCARIA
Wasilla, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 318.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:10:32 PM. Representatives
McGuire, Wilson, Anderson, and Kott were present at the call to
order. Representatives Coghill, Gruenberg, and Gara arrived as
the meeting was in progress. Representatives Kelly, Holm, and
LeDoux were also in attendance.
HB 318 - LIMITATION ON EMINENT DOMAIN
1:10:43 PM
CHAIR McGUIRE announced that the only order of business would be
HOUSE BILL NO. 318, "An Act limiting the exercise of eminent
domain."
1:11:20 PM
REPRESENTATIVE WILSON moved to adopt the proposed committee
substitute (CS) for HB 318, Version 24-LS1083\Y, Bullock,
1/11/06, as the work draft. There being no objection, Version Y
was before the committee.
CHAIR McGUIRE, speaking as one of the bill's prime sponsors,
relayed that HB 318 was created in response to the recent U.S.
Supreme Court case, Kelo v. City of New London, in which the
court said that a local ordinance in Connecticut allowing for
eminent domain to be used to take private property could, in
fact, be used to take property from one private entity and
transfer it into the hands of another private entity for mere
economic development purposes. She indicated that she did like
the fact that in the Kelo decision, the court upheld the ability
of states and local governments to decide their own rules
regarding eminent domain, allowing them to continue controlling
their own areas. However, the part of the Kelo decision that
was disturbing to the public, she surmised, was the idea that
one's own private property could be seized merely for economic
development purposes. She characterized this concept as one
foreign to Americans, who would not think that such was an
appropriate use of eminent domain "taking" by a governmental
entity.
CHAIR McGUIRE relayed that HB 318 is intended to clarify the
uses of eminent domain in the state of Alaska. In working on
the bill, she remarked, a lot of interesting issues have arisen,
such as how to reconcile private property rights with the
state's subsurface rights and constitutional mandate to develop
Alaska's natural resources for the maximum benefit of all
Alaskans, or how to reconcile private property rights with the
desire to promote recreational opportunities. She mentioned the
coastal trail in her district as one such example of the latter
situation, adding that this topic has generated a lot of
discussion in her district because it would involve
approximately 80 different "takings" of some type - through the
use of eminent domain - unless people decide to give up their
property voluntarily.
CHAIR McGUIRE said that the bill attempts to address the
question of, "if it is inappropriate to take private property
for mere economic development purposes, how appropriate is it to
take private property for mere recreational purposes." In
conclusion, she said she is open to suggestions for improving
the bill.
1:16:02 PM
CRAIG JOHNSON, Staff to Representative Lesil McGuire, Alaska
State Legislature, indicated that the bill is intended to
address two issues. The first being whether it is appropriate
to take a person's private property for economic gain, and the
second being whether it is appropriate to take a person's
private residence for the recreational opportunities of another
person. The bill is not intended to either increase or decrease
the power of eminent domain, he remarked, acknowledging that
eminent domain does have appropriate uses.
MR. JOHNSON said that because of the ruling in the Kelo case,
approximately 13 pieces of eminent domain legislation are now
before the federal government, ranging from a constitutional
amendment prohibiting the use of eminent domain for economic
use, to a House bill that would take economic development funds
away from any state or [local] government entity that uses
eminent domain for economic gain. He explained that HB 318
precludes the use of eminent domain for economic gain, clarifies
that the government is prohibited from using eminent domain to
take a person's primary domicile for recreational purposes, and
attempts to define the term "primary domicile."
MR. JOHNSON also explained that since the year 2000, 41 states
have used eminent domain to take private property for commercial
use, ranging from 2,100 cases in Florida to 5 cases in
Louisiana. Currently 13 states have 47 pieces of legislation
pending regarding eminent domain - ranging from an absolute
moratorium on its use for economic development, to instituting
"one-year stays" - though Alaska is the only state attempting to
address the issue of using eminent domain for recreational use
purposes.
MR. JOHNSON opined that Alaska must go on record as addressing
this issue or face the loss of federal funds. He relayed that
the Anchorage Assembly recently adopted a local law prohibiting
the taking of private property for recreational use, but offered
his belief that this issue should also be addressed for the rest
of the state. He offered his understanding that although
Version Y changes the bill substantially, those changes all
revolve around the issue of defining what constitutes a primary
domicile; the bill still attempts to protect the use of eminent
domain in appropriate situations, such as those that involve
resource development.
1:22:50 PM
REPRESENTATIVE ANDERSON asked how many other bills have been
introduced to address the issue of eminent domain.
MR. JOHNSON said that there are six bills with language similar
to HB 318, and offered his belief that by working with the
sponsors of those other bills, everyone's concerns could be
addressed via one bill that can then be used as the vehicle.
REPRESENTATIVE GARA said his main concern is that HB 318 may
have unintended consequences. He said he would like to leave
the question of whether to allow the use of eminent domain for
recreational use purposes to local officials, and asked whether
the Alaska State Constitution allows the taking of private
property for private commercial development.
1:26:45 PM
PETER PUTZIER, Senior Assistant Attorney General, Transportation
Section, Civil Division (Juneau), Department of Law (DOL),
offered his understanding that in the Kelo decision, the U.S.
Supreme Court was applying Connecticut state law. Furthermore,
[in Alaska], the authority to use eminent domain must exist,
property can only be taken for a legitimate public use, and that
[public] use must be recognized under statute. Whether or not
and how far the concept of public use can be expanded, however,
is still an open question, he posited. In response to a further
question, he surmised that it would be an open question as to
whether the Alaska State Constitution allows "a taking to be
transferred to a private person."
1:29:23 PM
DON BULLOCK, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency (LAA),
explained that Article I, Section 18, of the Alaska State
Constitution says that private property shall not be taken or
damaged for public use without just compensation. He, too,
noted that in the Kelo decision, it was determined that the
situation involved taking property for a reasonable public use
as that term was defined in Connecticut. House Bill 318 is
attempting to define the parameters of public use in Alaska, he
remarked, adding that current statute does contain a list of
traditional public uses.
MR. PUTZIER characterized Version Y as an improvement over the
original bill; for example, it includes some exceptions that
attempt to protect most of the public uses for eminent domain
that are already explicitly recognized by the legislature.
1:32:30 PM
MR. PUTZIER, to highlight some of the changes offered by
Version Y, noted that Section 1 now contains legislative intent
and findings language, and that Section 2 now attempts to more
narrowly target the perceived problem. The legislature does not
necessarily want to allow the taking of a private landowner's
property for the purpose transferring it to another private
entity. The original bill used the term "economic development",
but it was determined that such a term might be construed as
being overbroad, particularly given that most projects involving
eminent domain will have an economic development component.
MR. PUTZIER noted that [Version Y] includes a procedure to deal
with situations in which the state does want to transfer
property acquired through eminent domain to a private entity.
Section 3 of Version Y stipulates that such transfers are
allowed, but only if there is written concurrence of the
commissioners of the Department of Natural Resources (DNR), the
Department of Transportation & Public Facilities (DOT&PF), the
Department of Commerce, Community, & Economic Development
(DCCED), and the Department of Military & Veterans' Affairs
(DMVA). Furthermore, Section 3 of Version Y contains several
exceptions to the general rule of "no transfers of private
property to a private person," and these exceptions are included
in the bill with the intent of maintaining eminent domain
practices as they currently exist.
1:36:10 PM
MR. PUTZIER then described the exceptions, which are listed in
proposed AS 09.55.240(d)(1)-(6). The first exception involves
situations in which the landowner consents, either before or
after a condemnation proceeding has been filed, to the taking.
The second exception involves situations in which a private
person has been expressly authorized via statute to either
exercise the power of eminent domain or to receive an interest
in land acquired by the exercise of eminent domain. The third
exception involves situations in which the transferred property
would be used for a private way of necessity to permit essential
access for extraction or use of resources, and this exception is
actually stated in Article VIII, Section 18, of the Alaska State
Constitution.
MR. PUTZIER relayed that the fourth exception involves
situations in which the property is transferred to a person
available for public hire to transport freight or passengers by
motor vehicle, watercraft, aircraft, or railroad car. The fifth
exception involves situations in which the acquisition is used,
in part, for leasing property to a private person or private
business that occupies a portion of public property or a public
facility such as an airport, port, or public building; this
exception is intended to preclude the argument that eminent
domain cannot be exercised for those kinds of facilities. The
final exception involves property that is transferred to a
person by oil and gas lease under AS 38.05.180.
MR. PUTZIER relayed that subsection (e) of proposed AS 09.55.240
speaks to the aforementioned issue of recreational facilities
and projects, stipulating that the power of eminent domain may
not be used to acquire such facilities or projects unless
written concurrence of the commissioners of the DNR, the DOT&PF,
the DCCED, and the DMVA is obtained; this exception would be
available should any unforeseen situations arise in which it is
determined that such a taking should occur. Reading from the
following provisions, he indicated that proposed AS
09.55.240(e)(1)-(2) attempts to define what a "recreational
facility or project" is, and that proposed AS
09.55.240(e)(3)(A)-(H) provides a listing of what it is not.
MR. PUTZIER relayed that proposed AS 09.55.240(f) states that
eminent domain would not be allowed in order to acquire a
person's abode that is used as a dwelling place, or property
within a 1,000 linear feet of such an abode, for the purpose of
a recreational facility or project, and then specifies how an
abode may qualify for this prohibition. He then noted that
proposed AS 09.55.240(g) provides a definition of "private
person" for the purpose of proposed AS 09.55.240.
1:44:22 PM
REPRESENTATIVE GARA suggested leaving the "recreational issue"
aside in order to consider the question of whether it might be
sufficient to simply say, "never to a private person or entity
unless it's necessary for a resource development project
approved by the state."
CHAIR McGUIRE concurred with the concept of simply stating under
what circumstances eminent domain may not be used.
1:48:06 PM
REPRESENTATIVE PAUL SEATON, Alaska State Legislature, asked
whether "private person" would include an entity such as the
Alaska Railroad Corporation (ARRC).
MR. JOHNSON indicated that the existence of entities such as the
ARRC could potentially cause a problem should the bill be
simplified to address only resource development projects.
REPRESENTATIVE SEATON said his concern is that the current
version of the bill doesn't appear to make a distinction between
quasi-governmental agencies, such as the ARRC or the Alaska
Industrial Development and Export Authority (AIDEA), and
"private person."
MR. PUTZIER clarified that proposed AS 09.55.240(d)(2) does
provide an exception for certain private persons to whom the
power of eminent domain has already been given, and is intended
to address situations involving the ARRC or the AIDEA, for
example.
CHAIR McGUIRE noted that proposed AS 09.55.240(g) - located on
page 5, lines 23-24 - says: "In this section, 'private person'
means a person that is not a public corporation as defined in AS
45.77.020 or a government as defined in AS 11.81.900." She also
noted that proposed AS 29.35.030(d) - located on page 6, line 9
- says: "In this section, 'private person' has the meaning
given in AS 09.55.240." Thus, she surmised, the bill does
attempt to provide a distinction between "private person" and
entities such as the ARRC and the AIDEA.
REPRESENTATIVE SEATON referred to the language on page 3, lines
30-31, and page 4, line 1, - which says, "the private person has
been expressly authorized by statute either to exercise the
power of eminent domain, or to receive an interest in land
acquired by the exercise of eminent domain" - and said he is
trying to figure out who such a "private person" would be other
than the aforementioned entities.
1:52:50 PM
CHAIR McGUIRE explained that in including such language, the
thought was that in the future there may be an as yet unknown
private entity or private person that should be allowed to
obtain private property via eminent domain. She acknowledged
that her initial concern with such language is that it appears
to be a catchall phrase that could be used to get around the
intent of the bill, but she mentioned that in speaking with the
drafter, he made the point that including escape valves in the
legislation might be appropriate. She also pointed out that the
commissioners referred to in proposed AS 09.55.240 are not
immediately accountable to the public.
REPRESENTATIVE SEATON offered his understanding that [some]
local municipalities have an absolute prohibition against the
use of eminent domain to convey property from one private person
to another. He asked whether the aforementioned state
commissioners have "veto power" over a municipality's eminent
domain rules.
CHAIR McGUIRE indicated that the difference in standards being
proposed, via Version Y, for the State and municipalities is a
concern of hers, and should be addressed.
REPRESENTATIVE GARA noted that the aforementioned commissioners
take direction from the governor and, thus, one governor could
direct the commissioners to view eminent domain issues
differently than another governor would so direct. He
reiterated that he would like to simplify the bill, again
suggesting that they limit the transfer of private property to
private individuals via eminent domain to resource development
projects. He remarked that he can't think of any other
circumstance in which the legislature would want to give a
private entity the ability to take private property away from
another private entity.
MR. PUTZIER suggested that another such circumstance might
involve the use of eminent domain by utilities, but acknowledged
that utilities already have the power to exercise eminent
domain, and that this power is statutorily granted.
REPRESENTATIVE GARA pointed out that the current law on that
issue would not have to be changed via the bill.
MR. PUTZIER maintained his point that those who would be, or who
currently are, exempted from the prohibitions proposed via the
bill should be expressly included in the bill as being exempted.
1:59:04 PM
MR. BULLOCK, referring to Representative Seaton's question,
noted that in Kelo, the land was being transferred to a "private
non-profit entity" that was established prior to the case. So
even though the property being transferred was not considered to
be "blighted" - a traditional reason for using eminent domain -
the local government had already considered New London to be
economically blighted and so formed a "development corporation"
to see how the economy of the area could be turned around. This
corporation developed a plan, presented it to the local
government, which then transferred the power of eminent domain
to the corporation, which was defined as a "private non-profit
entity". The corporation then went about purchasing property in
conjunction with the plan it had developed.
MR. BULLOCK added, "The situation in New London had been
jumpstarted by [Pfizer, Inc.,] deciding to build a research
facility there, and so they looked at ... that as the trigger to
start this development project." Most of the people in the New
London situation voluntarily sold their land, but the Kelo case
arose when some people did not want to give up the property on
which they'd grown up. To recap, in the Kelo case, the
authority to exercise eminent domain had been delegated to a
private corporation; he remarked that in Alaska, the Alaska
Housing Finance Corporation (AHFC) is a similar entity that has
been granted similar powers.
REPRESENTATIVE SEATON asked, then, whether the bill is really
accomplishing anything, particularly given that the bill is
stipulating that eminent domain can be used in the same type of
circumstances as occurred in the Kelo case. He suggested that
it might be better if the legislature were to simply pass a
resolution saying that the legislature would look unkindly upon
the taking of private property for private development.
MR. BULLOCK offered his understanding that the questions being
addressed via HB 318 are, "what constitutes public use," and
"who is going to define it." The bill currently takes the
approach of saying what isn't public use, and if such guidelines
are not provided by the legislatures, he warned, then individual
guidelines as to what constitutes public use will be created by
whichever organization or local government is looking to
exercise the power of eminent domain. In response to a
question, he relayed that existing law addresses the issue of
utilities exercising the power of eminent domain.
REPRESENTATIVE GARA suggested, then, that the bill be altered to
simply provide a new subsection to current law that says, "And
except where otherwise provided by statute, eminent domain may
not [be used] ... to transfer private land from one private
person to another private person."
MR. PUTZIER offered his belief that Version Y does just that,
and then read portions of the bill. He acknowledged, though,
that the bill is a work in progress.
2:05:51 PM
REPRESENTATIVE COGHILL said it would be interesting to find out
the rationale used regarding the language currently in AS
29.35.030, which addresses the use of eminent domain by
municipalities and second class cities, particularly the
language pertaining to citizens voting on the issue of whether
[a second class city] can exercise the power of eminent domain.
He indicated that he wants to ensure that the power of using
eminent domain to take property is not abused by a government
entity, and that he is not sure that placing that decision with
the aforementioned commissioners is necessarily the best way of
preventing such abuse. He relayed that he does tend to agree
with the exceptions in the bill, but pointed out that exceptions
tend to multiply and therefore may not actually keep the scope
narrow.
REPRESENTATIVE WILSON opined that the bill should contain solid
[parameters/guidelines], but because commissioners change from
administration to administration, leaving certain decisions up
to a group of commissioners may not accomplish this goal;
similar circumstances could end up being treated differently
based on what a given group of commissioners decides.
REPRESENTATIVE COGHILL remarked on the large amount of power
Alaska's executive branch wields, and referred to the governor's
ability to appoint department commissioners as an example.
2:08:55 PM
MR. BULLOCK suggested that the committee consider the question
of what effect allowing commissioners to make a decision
regarding eminent domain would have on the Administrative
Procedure Act (APA).
REPRESENTATIVE BOB LYNN, Alaska State Legislature, referred to
what he termed "the coal bed methane [CBM] situation," and noted
that the topic of eminent domain has raised a lot interest, and
opined that this topic should be addressed at this time.
MR. BULLOCK said that the comment regarding CBM raises the issue
of access to state resources, which the state owns subsurface
rights to. Under the Alaska State Constitution, owning the
subsurface rights gives the state the right to access the
property; furthermore, there are specific statutes that provide
for the compensation of the owner. Thus the CBM situation is
not an eminent domain issue, he explained. "There's still some
private subsurface ownership on the Kenai Peninsula, and there's
also the issue of the subsurface ownership by the regional
Native corporations," he added, but noted that generally, under
common law and the right to subsurface rights, whoever owns the
subsurface rights has the right to enter for development
purposes.
REPRESENTATIVE GRUENBERG opined that it is very important for
all the terms used in the bill to be carefully defined. He
characterized the bill as being designed to engender litigation,
and warned that if the legislature doesn't define the terms used
in the bill, then the courts will.
2:12:33 PM
BOB SHAVELSON, Executive Director, Cook Inlet Keeper, after
relaying that his organization is a citizen-based nonprofit
group dedicated to protecting the Cook Inlet watershed and the
life it sustains, said that much of what he'd intended to say to
the committee pertained to the original version of HB 318. He
opined that a lot of the controversy arising from the Kelo
decision stems from what he indicated was U.S. Supreme Court
Justice Clarence Thomas's characterization that the court, in
the Kelo decision, was replacing the Fifth Amendment and
unseating public use limitations and replacing them with a
broader, more permissive public purpose test for eminent domain.
Mr. Shavelson said agrees with what he believes to be Justice
Thomas's opinion that the Fifth Amendment should be strictly
construed to allow eminent domain only when a legitimate public
use would be effectuated and that the Kelo decision went too
far.
MR. SHAVELSON offered his belief that both the original version
of HB 318 and Version Y carve out two sweeping exceptions to the
eminent domain power which go far beyond a simple fix to the
Kelo decision and will pose serious concerns for business and
recreational interests in Alaska. He offered his belief that
simply fortifying the current statutory and constitutional
public use test will address the problems created in the Kelo
decision. With regard to the bill's recreational use exception,
he remarked that such use satisfies the public use limitations
of the Fifth Amendment and would add to the quality of life that
Alaskans have come to enjoy and expect, but he sees no need to
include such a provision in statute, particularly given that the
aforementioned coastal trail issue has already been addressed at
the local level.
MR. SHAVELSON ventured that one of the issues raised by the
bill's recreational use exception is that it promotes unequal
treatment when compared to other legislatively permissible uses.
For example, proposed AS 09.55.240(a)(6) would adopt a public
policy that places private property in jeopardy of condemnation
for an open pit mine but refuses to grant a similar
consideration for "snow machines, sled dog, or similar trial
access." Such an inconsistency will undermine private property
rights and legislatively assert that takings of private property
for mining corporations is sound policy while similar actions
for access to trails by Alaskans is not. He suggested that if
the legislature really wants to address this important and
contentious property rights issue, then the solution would be to
split estate issues whereby lessees of mineral resources have an
absolute legal right to access the surface estate of private
property owners, adding that this issue recently came to a head
in the Matanuska-Susitna [valley] and the CBM debates.
REPRESENTATIVE GRUENBERG offered his understanding that the only
types of commercial enterprises that the bill covers would be
"for profit" commercial enterprises, and thus Mr. Shavelson's
organization would not be affected by the bill.
MR. SHAVELSON offered his belief, however, that the bill
addresses the transfer of private land from a private entity,
regardless of that entity's profit or nonprofit status.
REPRESENTATIVE GRUENBERG asked to Mr. Shavelson review Version Y
further.
2:18:12 PM
PETER ROBERTS relayed that he'd headed up the fight against the
Homer annexation, and remarked that the issue of eminent domain
is similar to the annexation issue in that a group of
politicians can get together and decide the fate of someone's
private land and in that such actions can be very hard to stop.
He said he realizes that eminent domain is necessary for various
reasons, but he is very much against the use of eminent domain
in situations such as occurred in [New London] because the only
"public good" that will come from such a transfer is the
accumulation of tax revenue and is not, therefore, justifiable.
On the issue of exercising eminent domain for recreational use
purposes, he suggested that if a road is a reasonable thing to
build [for the public good], then so too is an access strip. He
pointed out that in an urban area, a trail might be labeled
recreational, but in a rural area, a similar trail might be
necessary for public access.
MR. ROBERTS said he believes that access is a valid reason to
consider using eminent domain, and suggested that the bill
should undergo further consideration before it is allowed to
limit the use of eminent domain for access purposes. Referring
to Mr. Shavelson's example regarding a private road to a private
mine, Mr. Roberts offered his belief that such usage of eminent
domain is less justifiable as being for the public benefit than
would an access strip for the purpose of hunting and fishing.
He also posited that the issue of "land in two estates," such as
those involving mineral rights, should not be addressed via HB
318, and indicated that the original bill's simpler nature was
more acceptable to him. "Land shouldn't be taken so that
somebody can make a profit on it," he remarked, nor should land
be taken simply so that a government entity can receive taxes
from it.
MR. ROBERTS, in conclusion, opined that compensation for land
taken via [eminent] domain should be handled by two local
private land appraisers; if that price is not acceptable to the
entity attempting to acquire the land, then the entity should be
precluded from proceeding with eminent domain proceedings. He
referred to the provisions regarding the four commissioners
determining whether certain land in certain situations should be
taken via eminent domain, and said he is very much against those
provisions because forthcoming decisions will change from
administration to administration. Instead, for those types of
situations, it should be the legislature that makes the
decision.
2:23:20 PM
DANA OLSON said she'd sent a 12-page petition to the
commissioner of the DNR regarding recreational use, and offered
her belief that the "mineral entry" exception in Alaska law is
[used rarely], adding that she does own her own mineral entry.
She said she feels that HB 318 will substantially change the
Alaska Statehood Act, and referred to the right of privacy as
guaranteed by the Alaska State Constitution in Article I,
Section 22, saying that she would like to see the "denials for
the right to revise the ... state land use plans in writing
before ... passage," adding that she has requested this change.
MS. OLSON offered her understanding that Senate Bill 196, passed
in 1987 [as Chapter 75 SLA 87], specifically says that right of
ways shall be in land use plans, and that HB 318 potentially
addresses corridors. She said that since Alaska Survival v.
State Department of Natural Resources was used as a standard for
a pipeline, she would be affected by the legislature's action in
this matter. "For a person to have their property having one
standard, and having a legal standard of something else, there
has to be a way to read law consistently," she remarked. In
conclusion, she suggested that the committee has more work to do
on the bill, and asked that the bill be held over.
2:26:07 PM
KEVIN C. RITCHIE, Executive Director, Alaska Municipal League
(AML), said he appreciates the committee's willingness to work
with local municipalities regarding the bill. He remarked that
one can't really define good and bad public takings, adding that
there are different situations wherein the public good may far
outweigh [the negative effects of] the taking, and there are
procedures to make sure the taking is done well. While the
federal government is working on an eminent domain policy, state
governments may well feel that the federal government is not
best suited to determine policy for the states; likewise, in
certain situations, local governments may feel that state
government is not best suited to determine policy at the local
level. Whoever is the arbiter on these types of issues should
be held accountable to the public; for example, city assemblies
are accountable to the public. Mr. Ritchie said that according
to his research, the power of eminent domain in Alaska has not
been abused as occurred in New London; the system currently in
place in Alaska is a good one, and people can readily access the
decision-making group in any given eminent domain issue.
2:28:30 PM
REPRESENTATIVE GRUENBERG said he would like to know whether the
issue is one of stopping "taking" or one of paying private
owners more. He noted that U.S. Supreme Court Justice Stephen
G. Breyer has indicated that when he and similarly-minded
jurists analyze issues, they look at the practical implications
of their actions. Representative Gruenberg suggested that the
committee should do the same on this issue.
MR. RITCHIE posited that "that issue" is probably in the hearts
of the people bringing the actions; in the case of the Kelo
situation, it appeared that a person really, really wanted to
stay in [her] home.
REPRESENTATIVE GRUENBERG remarked that tough cases make bad law,
and suggested that perhaps the Kelo case could be just such a
case.
MR. RITCHIE relayed that at least three municipalities have
adopted fairly substantial eminent domain ordinances and were
able to do so quickly, adding that one of the advantages at the
local level is that errors can be rectified in a fairly timely
manner. He also noted that currently, in second class cities,
it is the voters who determine issues of eminent domain.
2:31:43 PM
GARVIN BUCARIA, relayed that he would be personally impacted by
a proposed "2004/2005 Main Street study," described some of the
details of that project, noting that he has been subjected to
the stress of the possible ramifications of this proposed study.
He went on to describe some of the steps he has taken thus far
and some of the possible ramifications for him. He suggested
that there should be a mechanism in place that would allow the
parties subject to a taking to negotiate with the Department of
Transportation & Public Facilities (DOT&PF) prior to the routing
of roads, and asked the committee to reconsider the language in
proposed AS 09.55.240(a)(4) and (5) because he finds it very
hard to accept that the dumping of mine tailings is benign. He
indicated that according to his understanding of the [Alaska
State] Constitution, public health is a major priority for the
state, adding that there are numerous proposed mining ventures
that may take priority over the health and welfare of the
citizens.
MR. BUCARIA suggested that the long-term health effects of
dumping places for working mines and tailings need to be
considered. He also mentioned that the coalmining areas in the
Alaska Range are being subjected to "acid mine drainage," adding
that he fears that mining operations will have a severe effect
on the state's fish and wildlife sustained yield capabilities.
Thus, he opined, allowing access for both public recreation and
for factors that ameliorate the stresses of development is
important. He said he would support the committee's
reconsideration of language pertaining to recreational use and
public access for fishing, hunting, and travel.
2:36:17 PM
REPRESENTATIVE GARA posed the question of why they would want to
allow for the taking of property from someone in order to give
it to a mine that would not provide revenue to the state.
MR. BUCARIA, in response to another question, read portions of
proposed AS 09.55.240(a)(4) and (5) as those paragraphs pertain
to mining operations, and reiterated that he has public health
concerns and quality of life concerns, and that the Alaska State
Constitution mandates the state to protect the various values of
and the quality of life of its citizens.
CHAIR McGUIRE noted that the language in proposed AS
09.55.240(a)(4) and (5) is part of existing law.
MR. BUCARIA acknowledged that point, but suggested that this
issue should still be addressed by the committee, as it is of
particular significance to the citizens in the "Iliamna area."
[HB 318, Version Y, was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:39 p.m.
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