Legislature(2005 - 2006)CAPITOL 120

06/06/2006 11:00 AM House JUDICIARY


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11:08:04 AM Start
11:08:12 AM HB2004
02:09:10 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Time Change --
+= HB2004 STRANDED GAS DEVELOPMENT ACT AMENDMENTS TELECONFERENCED
Heard & Held
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                          June 6, 2006                                                                                          
                           11:08 a.m.                                                                                           
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Lesil McGuire, Chair                                                                                             
Representative John Coghill                                                                                                     
Representative Pete Kott                                                                                                        
Representative Peggy Wilson                                                                                                     
Representative Les Gara                                                                                                         
Representative Max Gruenberg                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Representative Tom Anderson                                                                                                     
                                                                                                                                
OTHER LEGISLATORS PRESENT                                                                                                     
                                                                                                                                
Representative Jay Ramras                                                                                                       
Representative Harry Crawford                                                                                                   
Representative Ralph Samuels                                                                                                    
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 2004                                                                                                             
"An  Act relating  to the  Alaska Stranded  Gas Development  Act,                                                               
including  clarifications or  provision  of additional  authority                                                               
for  the  development  of stranded  gas  fiscal  contract  terms;                                                               
making a conforming amendment to  the Revised Uniform Arbitration                                                               
Act; relating to municipal impact  money received under the terms                                                               
of  a  stranded  gas  fiscal   contract;  and  providing  for  an                                                               
effective date."                                                                                                                
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 2004                                                                                                                 
SHORT TITLE: STRANDED GAS DEVELOPMENT ACT AMENDMENTS                                                                            
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                                                                    
                                                                                                                                
05/31/06       (H)       READ THE FIRST TIME - REFERRALS                                                                        
05/31/06       (H)       RES, JUD                                                                                               
06/01/06       (H)       RES AT 9:00 AM CAPITOL 124                                                                             
06/01/06       (H)       Heard & Held                                                                                           
06/01/06       (H)       MINUTE(RES)                                                                                            
06/02/06       (H)       RES AT 9:00 AM CAPITOL 124                                                                             
06/02/06       (H)       Heard & Held                                                                                           
06/02/06       (H)       MINUTE(RES)                                                                                            
06/03/06       (H)       RES AT 8:30 AM CAPITOL 124                                                                             
06/03/06       (H)       Moved CSHB 2004(RES) Out of Committee                                                                  
06/03/06       (H)       MINUTE(RES)                                                                                            
06/04/06       (H)       RES RPT CS(RES) 1DP 5NR 3AM                                                                            
06/04/06       (H)       DP: CRAWFORD;                                                                                          
06/04/06       (H)       NR: KAPSNER, OLSON, SEATON, ELKINS,                                                                    
                         LEDOUX;                                                                                                
06/04/06       (H)       AM: GATTO, SAMUELS, RAMRAS                                                                             
06/05/06       (H)       JUD AT 10:00 AM CAPITOL 120                                                                            
06/05/06       (H)       Scheduled But Not Heard                                                                                
06/06/06       (H)       JUD AT 11:00 AM CAPITOL 120                                                                            
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
KEVIN JARDELL, Legislative Liaison                                                                                              
Governor's Legislative Office                                                                                                   
Office of the Governor                                                                                                          
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:    Presented  HB   2004  on  behalf  of  the                                                               
administration.                                                                                                                 
                                                                                                                                
JOSEPH K. DONOHUE, Attorney at Law                                                                                              
Preston Gates & Ellis, LLP                                                                                                      
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   Assisted with  the presentation of  HB 2004                                                               
on behalf of the administration.                                                                                                
                                                                                                                                
THOMAS A. LAKOSH                                                                                                                
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:   Testified  in opposition  to  HB 2004  and                                                               
offered suggestions.                                                                                                            
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR  LESIL   McGUIRE  called   the  House   Judiciary  Standing                                                             
Committee  meeting  to order  at  11:08:04  AM.   Representatives                                                             
McGuire, Kott,  Wilson, and Coghill  were present at the  call to                                                               
order.    Representatives  Gruenberg  and  Gara  arrived  as  the                                                               
meeting was  in progress.  Representatives  Ramras, Crawford, and                                                               
Samuels were also in attendance.                                                                                                
                                                                                                                                
HB 2004 - STRANDED GAS DEVELOPMENT ACT AMENDMENTS                                                                             
                                                                                                                                
11:08:12 AM                                                                                                                   
                                                                                                                                
CHAIR McGUIRE announced that the  only order of business would be                                                               
HOUSE BILL NO. 2004, "An Act  relating to the Alaska Stranded Gas                                                               
Development  Act,   including  clarifications  or   provision  of                                                               
additional authority  for the development of  stranded gas fiscal                                                               
contract  terms; making  a conforming  amendment  to the  Revised                                                               
Uniform  Arbitration  Act;  relating to  municipal  impact  money                                                               
received under the  terms of a stranded gas  fiscal contract; and                                                               
providing  for an  effective date."   [Before  the committee  was                                                               
CSHB  2004(RES);  included in  members'  packets  was a  proposed                                                               
committee  substitute  (CS)  for HB  2004,  24-GH2046\F,  Bailey,                                                               
6/5/06.]                                                                                                                        
                                                                                                                                
The committee took an at-ease from 11:09 a.m. to 11:14 a.m.                                                                     
                                                                                                                                
CHAIR McGUIRE  outlined her intentions regarding  how the meeting                                                               
would proceed.                                                                                                                  
                                                                                                                                
11:16:07 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  KOTT  moved  to   adopt  the  proposed  committee                                                               
substitute (CS) for HB 2004,  24-GH2046\F, Bailey, 6/5/06, as the                                                               
work  draft.    He  offered  his  understanding  that  Version  F                                                               
replicates the latest Senate version of the bill.                                                                               
                                                                                                                                
REPRESENTATIVE GARA objected to the  adoption of Version F as the                                                               
work  draft,  adding that  he  would  prefer  to work  with  CSHB
2004(RES) and just amend it as the committee sees fit.                                                                          
                                                                                                                                
REPRESENTATIVE  COGHILL  said  he   would  like  to  discuss  the                                                               
amendments adopted by the House Resources Standing Committee.                                                                   
                                                                                                                                
REPRESENTATIVE GARA withdrew his objection.                                                                                     
                                                                                                                                
CHAIR McGUIRE announced that Version F was before the committee.                                                                
                                                                                                                                
[Following  was a  brief discussion  regarding how  the committee                                                               
would be proceeding.]                                                                                                           
                                                                                                                                
11:21:02 AM                                                                                                                   
                                                                                                                                
KEVIN  JARDELL,   Legislative  Liaison,   Governor's  Legislative                                                               
Office, Office of the Governor,  relayed that the Alaska Stranded                                                               
Gas Development  Act was passed  in 1998 and amended  twice since                                                               
then in  an attempt to  bring the state's  gas to market.   House                                                               
Bill 2004  is one  more instance of  bringing to  the legislature                                                               
suggested changes that the administration  feels are necessary to                                                               
bring  Alaska's  gas to  market,  changes  that are  incorporated                                                               
within the  proposed Alaska Stranded  Gas Fiscal  Contract ("ASGF                                                               
Contract")  that   the  administration   [will]  sign   with  the                                                               
producers:     [BP  Exploration  (Alaska)   Inc.;  ConocoPhillips                                                               
Alaska, Inc.; and ExxonMobil Alaska Production, Inc.].                                                                          
                                                                                                                                
MR. JARDELL,  on the issue  of why  the amendments to  the Alaska                                                               
Stranded Gas  Development Act  are being  sought after  the [ASGF                                                               
Contract was negotiated], said:                                                                                                 
                                                                                                                                
     As  we began  negotiating the  [ASGF Contract],  it was                                                                    
     clear from early  on that there were  probably going to                                                                    
     be provisions that were going  to have to be negotiated                                                                    
     that  would  require  ...  [amendments  to  the  Alaska                                                                    
     Stranded Gas  Development Act].  What  those ultimately                                                                    
     would  be, it  also became  clear, would  not be  known                                                                    
     until we  finalized the negotiations and  knew what the                                                                    
     give  and   take  was   and  what   we  were   able  to                                                                    
     successfully  achieve  and  then  look  back  and  say,                                                                    
     "Okay,  here's  a  thing  we  need  to  change;  here's                                                                    
     something we need to change." ...                                                                                          
                                                                                                                                
     And we  acknowledged ... to  each of you very  early on                                                                    
     that changes  to the  [Alaska Stranded  Gas Development                                                                    
     Act] would  be necessary  in the end.  ... But  we were                                                                    
     comfortable -  in talking with members  that signed the                                                                    
     confidentiality   [agreement]   and   leadership,   and                                                                    
     looking  at the  purpose  of the  [Alaska Stranded  Gas                                                                    
     Development Act] - that ...  [we were] going to develop                                                                    
     [a] fiscal  contract [and] that  the fiscal  terms that                                                                    
     ...  were  somewhat  outside   were  still  within  the                                                                    
     purpose [of  the Alaska Stranded Gas  Development Act].                                                                    
     So that's why we are  here before you, asking you, with                                                                    
     a contract  out that you can  see, to agree to  give us                                                                    
     the authority,  where it's necessary, to  conclude [the                                                                    
     ASGF Contract] and put it before you.                                                                                      
                                                                                                                                
11:24:36 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA  noted that some have  questioned whether the                                                               
legislature  even  has  the  right   to  approve  a  contract;  a                                                               
memorandum   from  Legislative   Legal   and  Research   Services                                                               
indicates  that  the  legislature's   approval  is  probably  not                                                               
constitutional, though whether that is  true won't be known until                                                               
a court rules on the issue.  He said:                                                                                           
                                                                                                                                
     This is the  rabbit trail I want to make  sure we don't                                                                    
     go down:   that you ask  us for the amendments  to make                                                                    
     the [ASGF Contract]  legal, which you need  or else the                                                                    
     [ASGF Contract] can't go forward,  we give them to you,                                                                    
     you  come up  with  a contract,  the legislature  makes                                                                    
     comments but  the administration, for  whatever reason,                                                                    
     decides they're  not appropriate  - ...  [for example],                                                                    
     we've  said "No"  - you  have the  signed contract  and                                                                    
     we've given you all the  amendments, [if] ... there's a                                                                    
     ruling  that the  legislature's confirmation  ... power                                                                    
     is determined  to be  unconstitutional and  not needed,                                                                    
     is there a  commitment from the governor  that he would                                                                    
     not go ahead  with a contract that we've  said "No" to?                                                                    
     Because  otherwise  I  don't   want  to  give  you  the                                                                    
     amendments that  make the  [ASGF Contract]  legal until                                                                    
     after we vote on the [ASGF Contract].                                                                                      
                                                                                                                                
MR. JARDELL replied:                                                                                                            
                                                                                                                                
     The only conversations that I've  had with the governor                                                                    
     and with other members  of the administration have been                                                                    
     that  we will  work  through the  [Alaska Stranded  Gas                                                                    
     Development Act], that it is  necessary to work through                                                                    
     the  [Alaska   Stranded  Gas  Development   Act],  it's                                                                    
     necessary to  have a full  and open process so  that we                                                                    
     can consider  their input, it's  necessary to  have the                                                                    
     legislative  process so  we can  have the  legislator's                                                                    
     input -  just as  the [Alaska Stranded  Gas Development                                                                    
     Act]  tells us  to do  - and  it will  balance both  of                                                                    
     those before we're instructed by  the legislature to go                                                                    
     back and renegotiate a contract  with those comments in                                                                    
     mind and  then ultimately  bring that contract  back to                                                                    
     the  legislature   for  the  legislative   approval  or                                                                    
     disapproval.   We have never had  discussions about not                                                                    
     pursuing that path,  and so all I can say  is, ... I am                                                                    
     operating  under the  [Alaska Stranded  Gas Development                                                                    
     Act]  that is  the law  of  the state  of Alaska,  and,                                                                    
     whether it's  constitutional or not, we  are proceeding                                                                    
     under the [Alaska Stranded Gas Development Act].                                                                           
                                                                                                                                
11:27:36 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GARA asked  Mr. Jardell  to ask  the governor  to                                                               
provide  the  legislature  with written  assurance  that  if  the                                                               
legislature's role is determined  to be unconstitutional, and yet                                                               
the legislature  says "No" to  the [ASGF Contract],  the governor                                                               
won't go ahead with it.                                                                                                         
                                                                                                                                
MR.  JARDELL said  he would  pass along  that request,  but noted                                                               
that because of  the way the Alaska Stranded  Gas Development Act                                                               
is written, his initial observation  is that the authority within                                                               
the  Alaska  Stranded Gas  Development  Act  is "because  of  the                                                               
ratification  process and  the process  of the  Act, and  if that                                                               
process was deemed  not to be controlling  or constitutional," it                                                               
would be  hard for him  to see how  the court would  believe that                                                               
the  statutes giving  authority  on that  basis  would remain  in                                                               
effect or would give them meaning.                                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked whether the attorney  general has                                                               
yet issued an opinion on this same subject.                                                                                     
                                                                                                                                
MR. JARDELL said he would research that issue.                                                                                  
                                                                                                                                
11:29:46 AM                                                                                                                   
                                                                                                                                
JOSEPH K. DONOHUE,  Attorney at Law, Preston Gates  & Ellis, LLP,                                                               
relayed that  in a bill-review  letter that the  attorney general                                                               
issued  at  the   end  of  the  1998   legislative  process,  the                                                               
"authorization  statute" was  identified  as  possibly raising  a                                                               
separation of powers question while  at the same time legislative                                                               
approval  was  acknowledged  as   perhaps  still  being  required                                                               
because  of  tax provisions  that  would  be modified  through  a                                                               
contract.    So  there  is  a  constitutional  concern  regarding                                                               
whether  lack of  legislative authorization  would constitute  an                                                               
unlawful   delegation  of   the   tax  power,   as   well  as   a                                                               
constitutional   concern   regarding    whether   a   legislative                                                               
authorization  provision is  an intrusion  into executive  branch                                                               
authority.  Therefore, he remarked,  although this letter was not                                                               
a  formal  opinion,  "their  basic  view was  that  it  would  be                                                               
constitutional as a result of  balancing these two constitutional                                                               
values."  In  addition, the [ASGF Contract] itself  is an attempt                                                               
to  implement  the "tax  contracting  authority"  in Article  IX,                                                               
Section 1,  of the  Alaska State Constitution.   So,  again, "we"                                                               
think   there  is   a  good   argument  that   the  [legislative]                                                               
authorization provision  in the [Alaska Stranded  Gas Development                                                               
Act] would  be upheld as constitutional;  therefore, the scenario                                                               
that Representative Gara has proposed wouldn't arise, he said.                                                                  
                                                                                                                                
REPRESENTATIVE  GRUENBERG remarked  that if  in fact  the opinion                                                               
expressed  in that  letter  proceeds from  the  premise that  the                                                               
taxing power is the legislature's,  would it not follow that that                                                               
can't be divested  by tying the legislature's hands  for 40 years                                                               
in the ASGF  Contract?  Wouldn't that be a  logical conclusion of                                                               
the same "opinion?"                                                                                                             
                                                                                                                                
MR. DONOHUE said:                                                                                                               
                                                                                                                                
     No. ...  There's two different considerations.   One is                                                                    
     ...  whether  authorization  itself  is  constitutional                                                                    
     ...;  the separate  question [is]  whether  or not  the                                                                    
     provisions in  the [ASGF  Contract] can  provide fiscal                                                                    
     certainty  through the  years.   And that's  a separate                                                                    
     constitutional argument  that will  no doubt  be raised                                                                    
     in the judicial  challenges that follow.   But the 1998                                                                    
     Act  specifically says  that the  administration is  to                                                                    
     pursue fiscal certainty to  the maximum extent provided                                                                    
     by  the  [Alaska  State  Constitution],  so  this  will                                                                    
     certainly provide  a test case for  that, [indisc.] and                                                                    
     probably for the other two.                                                                                                
                                                                                                                                
11:32:40 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA  pointed out that  in 1997 the Office  of the                                                               
Attorney General concluded that locking  in the tax rate would be                                                               
unconstitutional,  but  a  few weeks  ago  the  current  attorney                                                               
general issued an  opinion stating that it would be  okay to lock                                                               
in the tax rate.                                                                                                                
                                                                                                                                
MR. DONOHUE, in response to  a question, said that the governor's                                                               
transmittal letter  for HB  2004 discusses that  issue only  in a                                                               
general sense  as something that may  or may not arise  and would                                                               
be  addressed at  the  time  that the  final  terms  of the  ASGF                                                               
Contract were  negotiated.   Also in response  to a  question, he                                                               
indicated  that he  would provide  copies  of the  aforementioned                                                               
bill-review letter to the committee.                                                                                            
                                                                                                                                
MR.  JARDELL  said  that the  administration  takes  the  [Alaska                                                               
Stranded   Gas  Development   Act]  very   seriously,  that   the                                                               
information  provided by  the legislature's  consultants is  read                                                               
and studied,  and that  legislators' comments  and considerations                                                               
are  taken very  seriously  as  is input  from  the  public.   He                                                               
pointed out, for example, that  the administration was advised by                                                               
the Department of  Revenue (DOR) and [various]  attorneys to make                                                               
the legislation  broader than was  absolutely necessary so  as to                                                               
be able to fully respond to  comments and suggestions made by the                                                               
public and  the legislature.   As early as 1998,  the legislature                                                               
instructed the administration to  negotiate a fiscal contract and                                                               
to take into  consideration, and perhaps negotiate  on, all state                                                               
and municipal  taxes so as  to bring the gas  to market -  it was                                                               
believed that the  project was not viable from  an economic basis                                                               
without first "doing that" -  and the administration has now done                                                               
just that, and is in the  process of presenting to the public and                                                               
legislature  the  current  proposed contract;  additionally,  the                                                               
administration  has  been  instructed  to  take  input  from  the                                                               
legislature and public and negotiate the final deal.                                                                            
                                                                                                                                
11:39:07 AM                                                                                                                   
                                                                                                                                
MR. DONOHUE explained:                                                                                                          
                                                                                                                                
     During the course  of the administration's negotiations                                                                    
     of  [the ASGF  Contract], the  administration made  two                                                                    
     fundamental  policy decisions  that drive  most of  the                                                                    
     [proposed changes] ... that you'll  be reviewing in ...                                                                    
     [Version F of  HB 2004]. ... One  [policy decision] was                                                                    
     to have the  state become a full  commercial partner in                                                                    
     the project,  and ... there's three  different elements                                                                    
     of that decision:  one is  to become an equity owner in                                                                    
     the  project;  the  second  is   to  take  royalty  and                                                                    
     production  tax payments  in-kind for  the life  of the                                                                    
     contract;  and third,  to take  a shipping  position on                                                                    
     the pipeline  - i.e.  take responsibility  for shipping                                                                    
     and marketing  the state's oil and  gas.  Additionally,                                                                    
     the  second major  policy decision  was to  incorporate                                                                    
     terms  which  would  provide oil  fiscal  certainty  in                                                                    
     addition to  fiscal certainty relating  to gas  and the                                                                    
     gas project itself.  ... There is a  third component of                                                                    
     this bill,  and it's contained in  Sections 14-18, that                                                                    
     has to  do with  reconsideration, generally,  about how                                                                    
     to deal with  impact payments that would  be payable by                                                                    
     the  [Pipeline   Project  Mainline   Limited  Liability                                                                    
     Company  (LLC) Entity  ("Mainline  LLC")] entities  and                                                                    
     the "midstream entities"; ... these  payments are to be                                                                    
     made to  the State of  Alaska and ultimately  paid back                                                                    
     out to the political subdivisions. ...                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA asked  whether being  a 20-percent  pipeline                                                               
owner is what  requires a capacity commitment from  the state, or                                                               
whether it  is because  the state will  be receiving  royalty and                                                               
production taxes in-kind.                                                                                                       
                                                                                                                                
MR. DONOHUE  offered his understanding  that it is always  in [an                                                               
entity's]  best   interest  to  take  a   proportional  share  of                                                               
ownership in  a project  which reflects the  gas volumes  that it                                                               
intends to  ship through  the project.   At  this point  in time,                                                               
royalty in-kind (RIK)  is about 12.5 percent,  and the production                                                               
tax on gas is about  7.25 percent; this explains the relationship                                                               
between   the  volume   of   gas  that   the   state  is   taking                                                               
responsibility   for  and   the   ownership  interest   [amount].                                                               
Additionally,  in  order  to  take  responsibility  and  actually                                                               
market [that gas], the entity has  to take a shipping position on                                                               
the pipeline.                                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA  surmised, then, that taking  payment in-kind                                                               
is  what  engenders  the  commitment   that  the  state  pay  for                                                               
capacity.                                                                                                                       
                                                                                                                                
MR.  DONOHUE  concurred.   In  response  to other  questions,  he                                                               
explained that Section  3 - proposed AS 43.82.020(2)  - refers to                                                               
Section 7 -  proposed AS 43.82.220 - which is  the portion of the                                                               
bill  that provides  the broad  authority for  the state  to take                                                               
shipping  positions  with the  state's  "royalty  gas," and  that                                                               
those two sections  work together to highlight some  of the major                                                               
subject matters  of the  ASGF Contract that  are in  turn fleshed                                                               
out via other sections of the bill.                                                                                             
                                                                                                                                
11:45:45 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA  asked whether [deletion of]  Section 3 would                                                               
allow the  state to  engage in whichever  option [of  payment] is                                                               
most beneficial to  the state at any given point  in time as long                                                               
as proper notice is provided.                                                                                                   
                                                                                                                                
MR. JARDELL  indicated that  Section 3  addresses the  ability of                                                               
the state  to take payments  in-kind, and that it  would actually                                                               
require  doing so.    He proffered  that  the administration  has                                                               
determined that including such provisions  in the bill and in the                                                               
contract  is  a   way  of  ensuring  that   the  project  becomes                                                               
economically  viable  to  the  producers  while  still  providing                                                               
revenue to the  state through the sale of its  gas.  Furthermore,                                                               
there is  a significant  difference in the  commodity of  oil and                                                               
the commodity of  gas and how each is shipped  - for example, gas                                                               
is  not  easily  stored;  thus  it won't  be  acceptable  to  the                                                               
producers for the  state to simply switch back  and forth between                                                               
taking  gas   in-kind  and  taking  gas   in-value,  because  the                                                               
producers  must make  a firm  commitment regarding  how much  gas                                                               
they will be  transporting to their markets over the  life of the                                                               
pipeline.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  WILSON  asked  whether the  contract  contains  a                                                               
stipulation that  the producers  are not  required to  sell their                                                               
gas inside  the state  and, if  so, whether  that means  that the                                                               
state will  have to  do so  instead of sending  its gas  down the                                                               
pipeline.                                                                                                                       
                                                                                                                                
MR.  JARDELL  said that  the  producers  are entering  into  this                                                               
project as  a business, and  so if there  is a market  in Alaska,                                                               
the producers will sell gas to it,  but not if there is no market                                                               
and no  value to selling  the gas  in state.   The administration                                                               
has made strong efforts to ensure  that it has the opportunity to                                                               
meet in-state needs.                                                                                                            
                                                                                                                                
MR. DONOHUE  added that  that is  generally a  question involving                                                               
ratemaking  and open  seasons and  the Federal  Energy Regulatory                                                               
Commission (FERC),  and thus would  be better answered  by Robert                                                               
H. Loeffler of Morrison & Foerster, LLP.                                                                                        
                                                                                                                                
11:52:54 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA,  noting that there  is some risk  that being                                                               
forced to  sell gas in  state could  cut into a  company's profit                                                               
margins, surmised  that that is  why the producers  have resisted                                                               
having the ASGF  Contract include such a requirement.   The state                                                               
faces that same risk if it  follows through on its opportunity to                                                               
sell gas  in state.  Once  the pipeline is built,  those who sell                                                               
gas into the  pipeline will have a great benefit,  thus the state                                                               
could make  it a  condition of  a [pipeline] lease  that up  to 3                                                               
percent of a  lessee's production be made  available for in-state                                                               
use, he suggested,  that way everyone will share the  burden of a                                                               
potentially lower in-state gas price.                                                                                           
                                                                                                                                
CHAIR McGUIRE noted that access  to gas and affordable energy are                                                               
some of the issues that have been raised by constituents.                                                                       
                                                                                                                                
MR. JARDELL said:   "We share those concerns.   I can promise you                                                               
that the administration has put  forth tremendous efforts to make                                                               
sure  that if  there's  a viable  gas market,  we  will have  gas                                                               
available -  if it  works."   There are a  lot of  variables that                                                               
will have  to be considered  throughout the life of  the project,                                                               
and the  ASGF Contract now  contains the provisions  necessary to                                                               
ensure that  the state receives  the information it will  need to                                                               
determine if there is a viable  market in Alaska.  And of course,                                                               
if  there is,  then everyone  will want  to sell  it.   Countless                                                               
hours have  gone into  resolving the issue  of ensuring  that gas                                                               
will be available to Alaskans if there truly is a need for it.                                                                  
                                                                                                                                
CHAIR McGUIRE  surmised that the concern  is that it will  be the                                                               
state's legislators  - rather  than the producers  - who  will be                                                               
faced with having to explain  to constituents why they don't have                                                               
a viable  supply of gas when  the state owns 20  percent interest                                                               
in the project.                                                                                                                 
                                                                                                                                
MR. JARDELL relayed that the  administration also has the concern                                                               
that  "subsidizing  gas to  one  area  may  not be  bringing  the                                                               
overall value  to another area."   For example,  Southeast Alaska                                                               
does not get  much from subsidizing gas to an  area up north, and                                                               
so the  questions then  become should the  state give  up revenue                                                               
for the  whole state and all  Alaskans in order to  subsidize gas                                                               
into one place and, if so, how can that be offset.                                                                              
                                                                                                                                
11:59:06 AM                                                                                                                   
                                                                                                                                
CHAIR  McGUIRE  concurred, adding,  "I  would  certainly hope  we                                                               
don't cut off our nose to spite our face."                                                                                      
                                                                                                                                
MR. JARDELL said, "We have made every effort not to do that."                                                                   
                                                                                                                                
REPRESENTATIVE  COGHILL  said  he  is  not a  big  fan  of  state                                                               
ownership of  big business; government's purpose  is to regulate,                                                               
tax,  and  give certainty  in  law,  and  by entering  into  this                                                               
project as  a business,  it will raise  conflicts for  the state.                                                               
In terms of agreeing to "this  document," he said, Sections 3 and                                                               
7 become huge issues for him.                                                                                                   
                                                                                                                                
REPRESENTATIVE   WILSON   remarked   that   in   deciding   which                                                               
legislative districts get the gas,  it could end up being decided                                                               
by  which area  has the  most votes  in the  legislative process,                                                               
which is not always fair; it  will be difficult to figure out how                                                               
to ensure fairness for all Alaskans.                                                                                            
                                                                                                                                
CHAIR McGUIRE raised  the issue of power  cost equalization (PCE)                                                               
to illustrate that certain issues  aren't decided wholly by which                                                               
districts have the most legislators,  that legislators do look at                                                               
the state as a whole when casting their votes.                                                                                  
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  the question  isn't just  whether                                                               
certain  areas  of  the  state will  receive  benefits  from  the                                                               
pipeline; rather, the  question is also at what  price will those                                                               
benefits come.   The producers -  like any merchants -  just care                                                               
about the  bottom line, so will  there be something in  [the ASGF                                                               
Contract] that guarantees  that Alaskans - the  current owners of                                                               
the gas - will get part  of the benefits of that ownership, which                                                               
may very  well include  having access  to a  product for  a price                                                               
below what others pay?                                                                                                          
                                                                                                                                
MR. JARDELL  indicated that that  issue is being  considered, but                                                               
then noted  that to require the  producers to pull off  a certain                                                               
percentage of  their gas  at a  time as yet  unknown in  order to                                                               
guarantee that it will be sold  to Alaskans will just add another                                                               
economic  term to  the  project, terms  which  currently are  not                                                               
good.   Furthermore the state has  20 percent of the  gas, and it                                                               
is hard to envision that that  amount won't be sufficient to meet                                                               
the state's  needs.  Again,  if there is  a market in  Alaska and                                                               
there is value  in selling to that market, the  producers will do                                                               
so.   He asked the  legislature to provide suggestions  for terms                                                               
that it  wants included in  the ASGF  Contract.  He  also pointed                                                               
out, though, that  the administration will still have  to keep in                                                               
mind the  economics of  the project as  it renegotiates  the ASGF                                                               
Contract.                                                                                                                       
                                                                                                                                
12:07:07 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG noted  that the  legislature will  have                                                               
the authority  to legislate what is  to become of the  20 percent                                                               
of the gas that the state  owns; for example, the legislature can                                                               
stipulate  that a  certain percentage  of its  gas is  to be  set                                                               
aside and sold to Alaskans for a reasonable price.                                                                              
                                                                                                                                
MR. JARDELL  cautioned against  that concept,  and offered  as an                                                               
example  a  hypothetical  situation   in  which  the  legislature                                                               
decides  to require  that the  Alaska Permanent  Fund Corporation                                                               
(APFC) invest  half its funds  in Alaska simply because  doing so                                                               
will benefit Alaskan  businesses.  Something like  that would not                                                               
be  supported  by  the  administration  because  it  wouldn't  be                                                               
beneficial  to the  overall  health of  the  permanent fund,  and                                                               
doing  something similar  with Alaska's  gas could  raise similar                                                               
issues;  for example,  selling Alaska's  gas on  the open  market                                                               
might return a  great deal more money to the  state as opposed to                                                               
selling it  to Alaskans  at a  lower rate,  and that  extra money                                                               
could do more for the state as a whole.                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG pointed  out,  however,  that the  same                                                               
logic  could  be  applied  throughout   the  ASGF  Contract;  for                                                               
example, meeting "Alaska hire" requirements  could result in less                                                               
revenue for  the state.   Nonetheless, the  state has  set policy                                                               
with regard  to Alaska  hire, and  so should  also set  a similar                                                               
policy with  regard to  ensuring that  some of  the gas  comes to                                                               
Alaskans at a reasonable price.                                                                                                 
                                                                                                                                
MR. JARDELL  clarified that he  was merely pointing out  that any                                                               
extra  revenue  received by  selling  Alaska's  gas on  the  open                                                               
market could  do more for  Alaskans than merely selling  them gas                                                               
at a  lower rate,  adding that  the legislature  will be  able to                                                               
make further decisions with regard to  who to sell its own gas to                                                               
once the state has a contract and a pipeline.                                                                                   
                                                                                                                                
12:11:07 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA remarked that selling  gas at a lower rate to                                                               
Alaskans in some areas of the  state could result in less revenue                                                               
- and thus less service - to  the residents of other parts of the                                                               
state.  He  suggested that the producers be required  to also put                                                               
a certain portion of their  gas production into the state market;                                                               
the burden  of selling gas to  Alaskans at a reduced  rate should                                                               
be borne  by both the state  and the producers, rather  than just                                                               
the  state,  particularly  given   that  the  producers  will  be                                                               
benefiting greatly by their involvement in the pipeline project.                                                                
                                                                                                                                
MR.  JARDELL indicated  that  the  administration would  consider                                                               
that suggestion along with all  the other suggestions it receives                                                               
from the legislature and the public.                                                                                            
                                                                                                                                
REPRESENTATIVE COGHILL referred to Sections  3 and 4, and offered                                                               
his understanding  that the term, "other  agreements" pertains to                                                               
"things that  would revolve  around the  gas treatment  plant and                                                               
things  like  that."    He  asked  whether  the  authority  being                                                               
provided  for via  [Sections 3,  4, and  7] address  the need  to                                                               
renegotiate all the current leases on the North Slope.                                                                          
                                                                                                                                
MR. DONOHUE said:                                                                                                               
                                                                                                                                
     We've   provided   the    [House   Resources   Standing                                                                    
     Committee] some examples of  the types of modifications                                                                    
     of  lease  agreements  and  unit  agreements  that  are                                                                    
     reflected by the  [ASGF Contract], and ...  part of the                                                                    
     ...   difficulty   in   presenting   these   conforming                                                                    
     amendments  is that  we're talking  about making  these                                                                    
     amendments retroactive to January  1, 2004.  So there's                                                                    
     ...  three  temporal  perspectives   ...  in  terms  of                                                                    
     reviewing these statutory amendments.                                                                                      
                                                                                                                                
     The  first perspective  is [one  of] assuming  that the                                                                    
     administration  came to  the  legislature  in 2004  and                                                                    
     said, "We  don't have any  applications, we  don't have                                                                    
     any  contract yet,  but we  think we  need all  of this                                                                    
     authority to  start the process,  and so  we're seeking                                                                    
     broad  authority  to  modify  leases,  to  modify  unit                                                                    
     agreements,  to  make  shipping commitments,  and  what                                                                    
     have  you";  that's  the   pre-contract  phase  -  it's                                                                    
     basically   the  legislature   deciding  to   send  the                                                                    
     administration forth to make the best possible deal.                                                                       
                                                                                                                                
     Then you have  the perspective of today,  where you are                                                                    
     basically making  these amendments with the  benefit of                                                                    
     the  contract  before  you  so you  can  see  what  the                                                                    
     administration did ... between  2004 and today ...; you                                                                    
     can  go  through   those  modifications  and  determine                                                                    
     whether the administration did a  good job or a bad job                                                                    
     [or] went  beyond ... the  types of  modifications that                                                                    
     the legislature thinks are appropriate.                                                                                    
                                                                                                                                
     And  then  the  third  temporal  perspective  is  going                                                                    
     forward; assuming  this contract  gets approved  by the                                                                    
     legislature ...  and the contract  is signed,  then the                                                                    
     perspective  is:     what  is  the   authority  of  the                                                                    
     [commissioners  of  the  DOR   and  the  Department  of                                                                    
     Natural  Resources  (DNR)]  after the  contract  is  in                                                                    
     effect and  going forward.   And that is a  function of                                                                    
     the terms in the contract itself. ..                                                                                       
                                                                                                                                
MR. DONOHUE continued:                                                                                                          
                                                                                                                                
     Part of  the reasoning  for the  broad language  is ...                                                                    
     we're putting ourselves in ...  the perspective of [it]                                                                    
     being January 1,  2004, and we wanted to  cover all the                                                                    
     possible modifications  that might be involved  in this                                                                    
     negotiation.   And as Mr.  Jardell has  indicated, it's                                                                    
     possible [that]  as a result of  legislative comment or                                                                    
     citizen comment that maybe  ... other modifications may                                                                    
     be proposed and negotiated.                                                                                                
                                                                                                                                
     So  that's why  we're looking  for the  broad language,                                                                    
     but in  the end it  will be the legislature  that makes                                                                    
     the  decision as  to whether  or not  the scope  of the                                                                    
     modifications  are appropriate  and you're  comfortable                                                                    
     with  what   the  administration  has  done   with  the                                                                    
     authority it has requested.                                                                                                
                                                                                                                                
12:18:01 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE COGHILL asked whether the authority being asked                                                                  
for is so broad as to allow the administration to tie up every                                                                  
lease in Alaska.                                                                                                                
                                                                                                                                
MR. JARDELL attempted to clarify that the authority provided for                                                                
in the aforementioned sections applies to negotiating terms for                                                                 
inclusion in  the contract, and  it is  up to the  legislature to                                                               
determine  whether  that  authority  is too  broad.    He  noted,                                                               
though,  that any  terms  negotiated must  be  reasonable to  the                                                               
contract.  He  explained that there are a handful  of leases that                                                               
have a  "sliding-scale royalty," which  is price based,  and that                                                               
"when   you're   taking  your   gas   and   you're  making   firm                                                               
transportation  commitments, it's  very difficult  when your  gas                                                               
fluctuates based  on royalty evaluations because  of pricing"; so                                                               
the ASGF Contract contains a  methodology for dealing with [those                                                               
leases],   and  the   broad  authority   provided  for   via  the                                                               
aforementioned  sections  is  necessary  to evaluate  them.    He                                                               
added, "Through the  contract, you'll be able to see  how we have                                                               
used this authority, and you can today."                                                                                        
                                                                                                                                
12:20:34 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  noted that  the title  of Version  F is                                                               
different from the title of CSHB 2004(RES).                                                                                     
                                                                                                                                
MR. DONOHUE  went on  to explain  that Section  1 [of  Version F]                                                               
provides  an exception  to the  Revised  Uniform Arbitration  Act                                                               
(RUAA), and  relates to Section  5, which pertains to  the waiver                                                               
of  sovereign immunity.   Theoretically,  Section 1  of the  bill                                                               
provides authority  for the state  to agree to  arbitration under                                                               
the  federal arbitration  Act, and  avoids any  possible argument                                                               
that arbitration consented  to by the State of  Alaska is limited                                                               
to the RUAA.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said  he  has  heard  the  arbitration                                                               
clause   in  the   ASGF  Contract   referred   to  as   "baseball                                                               
arbitration."                                                                                                                   
                                                                                                                                
MR.  DONOHUE said,  "Baseball arbitration  is provided  for under                                                               
Article 26 and Exhibit C;  I believe some producers have insisted                                                               
on it, and  under certain circumstances I think  a third producer                                                               
has  options between  ... substantive  arbitration as  opposed to                                                               
baseball  arbitration."    It's really  a  contractual  agreement                                                               
amongst the  parties as to  how they  are going to  resolve their                                                               
disputes, and  "baseball arbitration" could be  implemented under                                                               
the  state law  as well;  in "baseball  arbitration," each  party                                                               
puts  forth  its  best  position and  the  arbitration  panel  is                                                               
limited to picking only one of those positions.                                                                                 
                                                                                                                                
MR. DONOHUE  went on to  explain that Section  2 of Version  F is                                                               
intended to  clarify the [administration's]  ability to  agree to                                                               
terms that will  grant fiscal certainty for oil.   In response to                                                               
a  question,  he  relayed  that   the  language,  "including  gas                                                               
pipeline   expansion   pricing   that  encourages   further   gas                                                               
exploration"  came about  as  a  result of  a  discussion in  the                                                               
Senate  regarding "rolled-in  pricing versus  incremental pricing                                                               
for  gas   line  expansions."    The   legislature's  consultants                                                               
suggested  that  the state  mandate  rolled-in  pricing, but  the                                                               
administration's  consultants  advised  that doing  so  would  be                                                               
impractical.    The  compromise  arrived at  was  that  a  policy                                                               
stipulating  that  expansion  pricing  be  aimed  at  encouraging                                                               
exploration would be included in the "purpose clause."                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG  referred to page  2, line 5,  and asked                                                               
whether there should be a comma after the word, "party".                                                                        
                                                                                                                                
MR. DONOHUE indicated that there should be.                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG made  a motion to adopt  Amendment 1, to                                                               
place a comma after  the word, "party" on page 2,  line 5.  There                                                               
being no objection, Amendment 1 was adopted.                                                                                    
                                                                                                                                
12:27:25 PM                                                                                                                   
                                                                                                                                
MR. DONOHUE  explained that the  term "related party"  is defined                                                               
in Section 19 and is intended  to mean the entities that will own                                                               
and  operate  the midstream  entities  of  the project,  and  the                                                               
midstream entities  would include  the main  line from  the North                                                               
Slope  to the  Canadian border,  the gas  treatment plant  on the                                                               
North  Slope,  at  least  two gas  transmission  lines,  and  the                                                               
possibility  of a  natural gas  liquids [NGLs]  plant; so  to the                                                               
extent that those  entities are beneficiaries of  fixed tax rates                                                               
during the  course of the  agreement, this language was  added to                                                               
clarify that  point.  In response  to a question, he  offered his                                                               
belief that  the "rolled-in pricing  requirement" is  included in                                                               
Section  14,  which  pertains  to   collateral  agreements.    He                                                               
characterized  Section   14  as  the  major   difference  between                                                               
Version F and CSHB 2004(RES).                                                                                                   
                                                                                                                                
[There was a brief discussion regarding drafting.]                                                                              
                                                                                                                                
MR. DONOHUE  went on  to explain that  Section 3,  paragraph (1),                                                               
ensures that "oil  fiscal certainty" can be  provided even though                                                               
a sponsor's activity is not related to the project.                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG questioned  why  the  state should  not                                                               
limit that certainty  to activities related to  the project; that                                                               
seems  to be  the  intent  of the  original  Alaska Stranded  Gas                                                               
Development  Act.     Section   3  broadens   the  commissioner's                                                               
authority  considerably; he/she  could  simply  "take entity  'A'                                                               
that happens to be a participant  in a project, whether it's this                                                               
one  or another  one,  and give  them all  kinds  of breaks  that                                                               
aren't related to ... [the gas pipeline project]," he added.                                                                    
                                                                                                                                
MR. DONOHUE replied:                                                                                                            
                                                                                                                                
     Again, this is a statement  of broad authority.  To the                                                                    
     extent that  the administration provides a  ... term of                                                                    
     fiscal  certainty  that  the  legislature  believes  is                                                                    
     inappropriate to  the [ASGF Contract] and  just totally                                                                    
     unrelated, the  legislature is free to  disagree and to                                                                    
     disapprove  the contract.   But  the economic  analysis                                                                    
     from the ... representatives  of the administration has                                                                    
     been that oil fiscal  certainty is a reasonable request                                                                    
     and should be provided for a reasonable period.                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he  is not entirely  sanguine with                                                               
that answer.                                                                                                                    
                                                                                                                                
12:35:01 PM                                                                                                                   
                                                                                                                                
MR.  DONOHUE said  that paragraph  (2)  of Section  3 proposes  a                                                               
conforming  change  intended  to   broaden  the  ability  of  the                                                               
administration to  negotiate different  terms related  to royalty                                                               
in-kind (RIK), treatment of RIK,  and other lease conditions such                                                               
field costs "and  what have you."  This issue  will be dealt with                                                               
in greater  detail in  Section 7  via its  proposed change  to AS                                                               
43.82.220; currently  AS 43.82.220  only deals with  royalty type                                                               
issues.                                                                                                                         
                                                                                                                                
REPRESENTATIVE COGHILL,  in response  to a  question, said  he is                                                               
trying to  get a feel  for how the administration's  authority is                                                               
being broadened and to what extent.                                                                                             
                                                                                                                                
MR. DONOHUE  said that paragraph  (3) of Section 3  clarifies the                                                               
authority of  the state to  take its payment of  production taxes                                                               
under AS 43.55 in-kind or as  a payment in lieu of production tax                                                               
by  payment and  delivery of  gas in-kind.   He  then noted  that                                                               
Section 3  of Version F  appears to unintentionally be  missing a                                                               
proposed AS 43.82.020(4), which should  say:  "(4) acquisition by                                                               
the state  of an ownership  interest in  the project that  is the                                                               
subject of  the proposed  contract".  He  mentioned that  at some                                                               
point  in the  future,  the administration  may  want to  suggest                                                               
collateral agreement authorization.                                                                                             
                                                                                                                                
REPRESENTATIVE GARA  relayed that  one of  his concerns  could be                                                               
alleviated  if [the  bill stipulates  that]  royalties and  taxes                                                               
taken in-kind are to provide  substantially equivalent revenue as                                                               
royalty and taxes taken in-value.   If such a stipulation doesn't                                                               
currently  exist, either  in the  bill or  in the  ASGF Contract,                                                               
would Section 3  of the bill be the correct  place to insert such                                                               
a stipulation?                                                                                                                  
                                                                                                                                
MR.  DONOHUE  offered  his belief  that  the  preliminary  fiscal                                                               
interest findings  indicate that  taking both the  production tax                                                               
payment  and  the royalty  tax  payment  in-kind will  result  in                                                               
approximately  the  same  revenue  stream as  would  result  from                                                               
taking those payments in-value.                                                                                                 
                                                                                                                                
12:42:29 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA  asked whether the  legislature's consultants                                                               
are correct in  stating that taking taxes in-kind  will result in                                                               
substantially less  revenue because  the state will  be receiving                                                               
as  payment both  sellable gas  and non-sellable  gas -  in other                                                               
words, gas that still contains impurities.                                                                                      
                                                                                                                                
MR. DONOHUE relayed  that that question might  be better answered                                                               
by representatives from the DNR.                                                                                                
                                                                                                                                
MR. JARDELL concurred.                                                                                                          
                                                                                                                                
[Chair McGuire turned the gavel over to Representative Coghill.]                                                                
                                                                                                                                
REPRESENTATIVE  COGHILL  surmised  that   that  issue  should  be                                                               
researched  further.   He noted  that Section  7, paragraph  (2),                                                               
refers to,  "relating to lease  or unit expenses  for separation,                                                               
cleaning,  dehydration,  gathering,   salt  water  disposal,  and                                                               
preparation   for   transportation   on  or   off   the   lease".                                                               
Considering  that the  bill proposes  to give  the administration                                                               
more  authority  on  certain  issues, it  is  important  for  the                                                               
legislature to know what the cost will be for that authority.                                                                   
                                                                                                                                
MR. JARDELL agreed to work on that issue further.                                                                               
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  that  a  written  amendment  be                                                               
brought  forth  by  the administration  regarding  inserting  the                                                               
aforementioned proposed AS 43.82.020(4).                                                                                        
                                                                                                                                
The committee took an at-ease from 12:45 p.m. to 1:11 p.m.                                                                      
                                                                                                                                
MR. DONOHUE relayed  that the first change  proposed in paragraph                                                               
(1)  of  Section 4s  will  clarify  that  the ASGF  Contract  can                                                               
provide  fiscal  certainty  terms  with  respect  to  oil  taxes.                                                               
Legislative   history   regarding   the   Alaska   Stranded   Gas                                                               
Development  Act  indicates  that  the commissioner  of  the  DOR                                                               
provided  testimony  that the  citations  to  oil and  gas  taxes                                                               
referred  to in  AS 43.82.210  were  not intended  to cover  oil;                                                               
therefore, Section 4,  paragraph (1), inserts the  phrase "on oil                                                               
or gas or both".                                                                                                                
                                                                                                                                
CHAIR  McGUIRE   characterized  the  phrase  used   in  the  CSHB
2004(RES) -  "modifications of  taxes on  oil and  gas, including                                                               
terms providing for" - as rather vague.                                                                                         
                                                                                                                                
MR. DONOHUE surmised that that was  why the Senate chose to alter                                                               
that provision.   He went  on to  explain that the  second change                                                               
proposed via paragraph  (1) relates to credits  for investment in                                                               
a project and  references the commitment allowance  in Article 20                                                               
of the ASGF Contract that  proposes certain allowances or credits                                                               
for investing  in a gas treatment  plant that are outside  of the                                                               
various  credits included  in the  production  profits tax  (PPT)                                                               
[legislation].  The thought was  that [the administration] needed                                                               
express  authority  [in  statute]   to  support  that  particular                                                               
provision of the ASGF Contract.                                                                                                 
                                                                                                                                
MR.  DONOHUE  relayed  that  paragraph   (2)  of  Section  4  now                                                               
references  oil and  gas agreements,  unit agreements,  and other                                                               
agreements  under Title  38,  and this  issue  will be  discussed                                                               
further  in  relation  to  Sections   7-10.    Paragraph  (6)  of                                                               
Section 4  conforms  current  statute   with  the  repeal  of  AS                                                               
43.82.445 [as proposed via Section  20 of the bill]; AS 43.82.445                                                               
currently  outlines  the administrative  termination  procedures,                                                               
and  are no  longer needed  as statutory  provisions because  two                                                               
different but comparable termination  procedures have been folded                                                               
into Articles 5  and 28 of the ASGF Contract  itself.  The intent                                                               
of paragraph (7)  of Section 4 is to broaden  and add flexibility                                                               
to  the   "catchall  provision";  this  change   is  intended  to                                                               
encompass  all   the  provisions   necessary  to   implement  the                                                               
acquisition  of  an  equity  ownership.   He  drew  attention  to                                                               
Exhibit  I of  the fiscal  interest findings,  and noted  that it                                                               
initially proposed the addition of  seven specific powers, but it                                                               
was then determined  that such powers would be  covered under the                                                               
broad language  of Section  4, paragraph (7),  and that  such was                                                               
the preferable route to take.                                                                                                   
                                                                                                                                
MR. DONOHUE noted that paragraph  (7)(B) of Section 4 proposes to                                                               
replace  the  phrase, "best  interests  of  the state"  with  the                                                               
phrase,  "long-term   fiscal  interests  of  the   state".    The                                                               
reasoning  behind this  change  is that  that  is the  consistent                                                               
finding that needs to be made,  "and has been made with regard to                                                               
the preliminary  fiscal interest findings" that  the commissioner                                                               
of the DOR  has already published and that are  in part dependant                                                               
on  conforming  amendments  and   edits  to  the  current  Alaska                                                               
Stranded Gas  Development Act.   Once  the commissioner  has made                                                               
such a finding  at the end of the process,  he/she can then refer                                                               
and recommend the  matter to the governor who can  then refer and                                                               
recommend it to the legislature.                                                                                                
                                                                                                                                
1:20:34 PM                                                                                                                    
                                                                                                                                
MR. DONOHUE,  in response to  questions, explained that  with the                                                               
exception  of   AS  43.82.200(7)(B),  the  Alaska   Stranded  Gas                                                               
Development Act  uses - and always  did use - the  phrase, "long-                                                               
term fiscal interests  of the state".  He added  that he does not                                                               
know why  the phrase, "best interests  of the state" was  used in                                                               
AS  43.82.200(7)(B); the  change proposed  to that  provision via                                                               
Section 4  is merely an attempt  to conform the language  for the                                                               
sake of consistency.                                                                                                            
                                                                                                                                
MR. JARDELL concurred.                                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  whether the  phrase being  added                                                               
via paragraph (7) - "the  commissioner determines" - will require                                                               
that specific determinations and factual findings be made.                                                                      
                                                                                                                                
MR. DONOHUE  said that that is  not the intention; rather,  it is                                                               
intended  that the  commissioner's  basic finding  that the  ASGF                                                               
Contract  is  in  the state's  long-term  fiscal  interest  shall                                                               
constitute the necessary finding.                                                                                               
                                                                                                                                
REPRESENTATIVE  GRUENBERG   suggested  that   the  administration                                                               
consider  removing  the   phrase  "the  commissioner  determines"                                                               
because  by  using  the word,  "determines",  a  reviewing  court                                                               
"might remand" if there are no specific findings.                                                                               
                                                                                                                                
REPRESENTATIVE  GARA  said  he is  concerned  with  removing  the                                                               
phrase,  "best   interests  of  the   state"  from   proposed  AS                                                               
43.82.200(7)(B) because  he feels  that the ASGF  Contract should                                                               
be in the  best interests of the state rather  than merely in the                                                               
long-term fiscal  interests of the  state.  He surmised  that the                                                               
phrase,  "best  interests  of  the  state"  is  currently  in  AS                                                               
43.82.200(7)(B) because  that provision pertains to  the contract                                                               
that gets  negotiated.  He  suggested that they simply  change AS                                                               
43.82.200(7)(B) to read, "in the  best long-term fiscal interests                                                               
of the state".                                                                                                                  
                                                                                                                                
1:27:53 PM                                                                                                                    
                                                                                                                                
MR. DONOHUE replied:                                                                                                            
                                                                                                                                
     We've  looked  into  the   definition,  the  case  law,                                                                    
     relating  to "best  interests"  and  it basically  ties                                                                    
     back to  the Article  VIII provisions [of]  the [Alaska                                                                    
     State   Constitution]  requiring   that  resources   be                                                                    
     developed to  the maximum benefit  of the people.   And                                                                    
     the  way  we  analyze   it  is,  that's  a  supervening                                                                    
     requirement; that  is, this contract will  have to meet                                                                    
     that test.   In addition, that particular  test, in ...                                                                    
     terms  of the  case law,  is  - even  though there  are                                                                    
     cases  discussing  "best  interest"   -  ...  a  fairly                                                                    
     amorphous  standard;  it's  obviously  intended  to  be                                                                    
     flexible, and  it doesn't necessarily add  light to the                                                                    
     determination.     Whereas   [for]  "long-term   fiscal                                                                    
     interests" ..., there are various  factors that are set                                                                    
     forth in the [Alaska  Stranded Gas Development Act], so                                                                    
     there's  some parameters  around that  concept that  we                                                                    
     can  use  to  help  defend the  contract  ...  if  it's                                                                    
     challenged on that basis.                                                                                                  
                                                                                                                                
REPRESENTATIVE  GARA offered  his belief  that the  phrase, "best                                                               
interests"  has  been litigated  and  used  for decades  but  the                                                               
aforementioned  provision of  Article  VIII of  the Alaska  State                                                               
Constitution has never been enforced.   For example, the economic                                                               
limit factor  (ELF) has been on  the books for 15  years but [for                                                               
the  last few  years] hasn't  resulted  in the  resources of  the                                                               
state  being developed  and managed  to provide  for the  maximum                                                               
benefit  of  the   state.    He  opined  that   there  should  be                                                               
implementation of  the phrase "best  interests" at  the statutory                                                               
level rather than at just the constitutional level.                                                                             
                                                                                                                                
MR. DONOHUE,  in response to a  comment, said he is  not familiar                                                               
with  any case  law in  which Article  VIII of  the Alaska  State                                                               
Constitution was used  to strike down a state tax,  though it has                                                               
been used to impose controls on  the commissioner of DNR in terms                                                               
of the  requirements of  making written  findings prior  to final                                                               
administrative action.   For example, in Kachemak  Bay, there was                                                               
a gas  lease sale  but there  were no  written findings,  and the                                                               
court held  that the commissioner  had to make  written findings.                                                               
He concluded:                                                                                                                   
                                                                                                                                
     The  ultimate  control  here is  the  legislature;  the                                                                    
     legislature will  be making a  judgment.  It  can apply                                                                    
     the  "best  interests"  test,  it   can  make  its  own                                                                    
     judgments about  what's to the  maximum benefit  of the                                                                    
     people  with  respect to  this  contract.   What  we're                                                                    
     talking   about  now   is,  what   findings  does   the                                                                    
     commissioner  of [the  DNR} have  to make  in order  to                                                                    
     present this  proposed contract to the  legislature for                                                                    
     deliberation.                                                                                                              
                                                                                                                                
1:31:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARA asked whether  Section 4 could be interpreted                                                               
to  mean that  the commissioner  could change  the oil  tax rates                                                               
that the legislature passes.                                                                                                    
                                                                                                                                
MR. DONOHUE indicated that Section  4 authorizes Payments in Lieu                                                               
of  Taxes (PILT),  a fundamental  concept  underlying the  Alaska                                                               
Stranded Gas  Act; for  example, with  respect to  property taxes                                                               
and other  taxes, the commissioner  has the authority to  come up                                                               
with different  formulas, different  rates, and  different timing                                                               
of impact.   The  PILT that  the commissioner  comes up  with may                                                               
vary from  the precise methodologies  contained in  the statutes,                                                               
and  one concern  voiced in  a prior  committee was  whether that                                                               
authority  extends  to  the  commissioner  after  a  contract  is                                                               
approved   by  the   legislature,  and   in  that   context,  the                                                               
administration's   view  is   that   "this   contract"  did   not                                                               
contemplate any  material amendments  to the contract  being made                                                               
solely by  the commissioner's  action.  So  to avoid  that issue,                                                               
the authorization statute has been  altered so as to provide that                                                               
the  DOR, should  it  wish  to change  a  particular PILT  that's                                                               
approved by the legislature this year,  will have to come back to                                                               
the legislature three years from  now for authorization to change                                                               
that PILT.                                                                                                                      
                                                                                                                                
1:34:28 PM                                                                                                                    
                                                                                                                                
MR. DONOHUE  explained that Section  5 authorizes  terms relating                                                               
to arbitration and alternate dispute  resolution that may provide                                                               
for a waiver  of the state's immunity from suit,  and pertains to                                                               
Article 26  of the ASGF  Contract in  which the state  has agreed                                                               
that  an  arbitration award  against  the  state would  first  be                                                               
entered as a  judgment in the state of Alaska  but then, if there                                                               
is  no satisfaction,  the judgment  could be  entered in  another                                                               
jurisdiction.   Also, if the  superior court delays for  more 365                                                               
days  in  confirming  an  award  and  entering  a  judgment,  the                                                               
producers  would be  allowed to  go to  another jurisdiction  and                                                               
enter the judgment and pursue the award.                                                                                        
                                                                                                                                
MR.  DONOHUE  mentioned  that  under   Article  22  of  the  ASGF                                                               
Contract, an  arbitration award is  "part of the waterfall  - ...                                                               
part  of the  netting of  obligations  that run  back and  forth"                                                               
between the state and the producers.   So a producer that wins an                                                               
arbitration has  the right to  an award, and  it will be  able to                                                               
offset  that  award  against  "its  obligations  running  to  the                                                               
state"; so while  the possibility of actually  entering the award                                                               
as  a judgment  and pursuing  the  judgment within  the state  is                                                               
slim, it  is still  possible.   If a judgment  is pursued  in the                                                               
state courts, the  only remedy a private litigant  with an action                                                               
against the  state has is to  go to the [Alaska]  legislature and                                                               
request payment, because the state  is exempt from attachment and                                                               
execution, and  should the legislature  deny an  appropriation to                                                               
pay  that award  -  though  such has  never  happened  yet -  the                                                               
producer  would be  able to  enter that  award and  pursue it  in                                                               
another state.                                                                                                                  
                                                                                                                                
MR. DONOHUE said  that "this" is all part of  the "equal footing"                                                               
concept discussed  by the administration  when the  ASGF Contract                                                               
was first released, and that  the waiver of sovereign immunity is                                                               
related  to  the  provision  in the  ASGF  Contract  that  allows                                                               
pursuit  of the  State of  Alaska in  other jurisdictions.   This                                                               
waiver has  two functions,  one of  them being  to make  it clear                                                               
that the  state has  consented to  arbitration using  the federal                                                               
arbitration Act  as a guide.   With respect  to the pursuit  of a                                                               
judgment outside  the state, there is  the issue of what  sort of                                                               
immunity applies in that instance,  and the primary immunity will                                                               
be  the doctrine  of comity  between the  states; therefore,  the                                                               
state   won't  have   sovereign  immunity   in  another   state's                                                               
jurisdiction,  but it  will have  the protection  granted by  the                                                               
doctrine of comity.                                                                                                             
                                                                                                                                
MR. DONOHUE noted that it is  very common for states to refuse to                                                               
pursue another state within their  jurisdiction unless that state                                                               
has waived  sovereign immunity  "and consented  to jurisdiction."                                                               
Section  5   will  allow  implementation  of   the  provision  in                                                               
Article 26 of  the ASGF Contract  and the  arbitration procedures                                                               
outlined  in  Exhibit   C.    The  type   of  concurrence  that's                                                               
anticipated  by the  attorney  general is  his  execution of  the                                                               
final  fiscal  contract;  that   [action]  would  constitute  his                                                               
concurrence,  this statute  would authorize  the waiver,  and the                                                               
waivers are present in the ASGF Contract in Article 26.                                                                         
                                                                                                                                
1:40:14 PM                                                                                                                    
                                                                                                                                
MR.  DONOHUE noted  two differences  between Version  F and  CSHB
2004(RES)  in  the language  of  Section  5,  and said  that  the                                                               
language in  Version F is intended  to clarify and "line  up" the                                                               
contractual language  with the statutory  language.   In response                                                               
to questions,  he offered  his understanding  that Article  26 of                                                               
ASGF Contract  stipulates that the  producer would have to  get a                                                               
judgment entered in the state of  Alaska, would have to go to the                                                               
legislature  and   seek  compensation,  and,  if   there  was  no                                                               
appropriation, then  that judgment,  itself, could be  entered in                                                               
[another] state and would be enforced in that other state.                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG  suggested using a different  term [than                                                               
"sought"  as used  on page  4,  line 6  of Version  F] that  more                                                               
accurately denotes and  connotes that concept.   He asked whether                                                               
the phrase, "immunity from suit"  is meant to mean both sovereign                                                               
immunity and comity immunity; if  so, then perhaps such should be                                                               
specified as well, he added.                                                                                                    
                                                                                                                                
MR.  DONOHUE offered  his understanding  that the  phrase, "other                                                               
immunity"  already  covers  "comity-type  arguments";  the  state                                                               
would be precluded by the  ASGF Contract from raising those types                                                               
of arguments in  another state's jurisdiction.   The other state,                                                               
in looking  at that provision, would  be more likely than  not to                                                               
allow pursuit of the State of Alaska in its jurisdiction.                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG said he  does not necessarily agree with                                                               
either that [supposition]  or with the policy, though  if that is                                                               
the intent  he wants to ensure  that the bill truly  says what is                                                               
meant.   He  suggested that  the bill  should state  specifically                                                               
that  "other immunity"  means  comity immunity.    He noted  that                                                               
under Section 5, the state would  be waiving its right to require                                                               
that a dispute be handled via a  lawsuit in a court of law rather                                                               
than in an alternative dispute resolution format.                                                                               
                                                                                                                                
MR. DONOHUE, in  response to a question, offered  his belief that                                                               
it  is   quite  common  for   states  to  enter   into  mandatory                                                               
arbitration proceedings,  which are usually  statutory procedures                                                               
with the waivers imbedded.                                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG  sought  assurance  that  there  is  no                                                               
intent to waive sovereign immunity to a foreign jurisdiction.                                                                   
                                                                                                                                
MR. DONOHUE  said that to  the extent  [that engaging in  the gas                                                               
pipeline project via the Alaska  Natural Gas Pipeline Corporation                                                               
("ANGPC") results in the] State  of Alaska doing business through                                                               
subsidiaries  and public  corporations  in Canada,  the State  of                                                               
Alaska  would be  subjecting itself  to the  laws of  Canada, and                                                               
thus he doubts very much that  a state law waiving immunity would                                                               
have much impact on a Canadian court.                                                                                           
                                                                                                                                
1:49:54 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  sought assurance  that the  language in                                                               
Section 5 won't waive the state's immunity in a foreign court.                                                                  
                                                                                                                                
MR. DONOHUE indicated that it wouldn't.                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  whether   the  ANGPC  would  be                                                               
cloaked in the state's sovereign immunity.                                                                                      
                                                                                                                                
MR. DONOHUE  offered his belief  that the ANGPC would  be subject                                                               
to suit  - just like  a private party -  though there would  be a                                                               
test regarding the  nature of the proprietary  activity that that                                                               
public corporation was engaged in.                                                                                              
                                                                                                                                
REPRESENTATIVE  GRUENBERG requested  that  Legislative Legal  and                                                               
Research  Services  be  asked  to   provide  the  committee  with                                                               
information on this issue.                                                                                                      
                                                                                                                                
MR. DONOHUE,  in response  to another  question, surmised  that a                                                               
subsidiary of  the ANGPC -  if it's incorporated as  a for-profit                                                               
corporation  -  is unlikely  to  be  viewed as  having  sovereign                                                               
immunity in either the U.S. or Canada.                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  how  any other  state would  get                                                               
jurisdiction over the State of Alaska.                                                                                          
                                                                                                                                
MR. DONOHUE said the intent is  to allow a judgment to be entered                                                               
in any other state where the  State of Alaska has assets that can                                                               
be pursued.   In response  to further questions, he  again stated                                                               
that Article 26  of the ASGF Contract provides that  the state of                                                               
Alaska shall waive sovereign immunity,  and that Section 5 merely                                                               
provides statutory  authority for  that article of  the contract;                                                               
furthermore, the waiver is for the term of the contract.                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked whether there is  precedent for a                                                               
state to  waive sovereign immunity  in foreign  jurisdictions for                                                               
the life of a contract.                                                                                                         
                                                                                                                                
MR. DONOHUE said  the administration has not  found precedent for                                                               
that, though there  is precedent in terms of the  State of Alaska                                                               
becoming involved in  arbitrations outside of the state.   If the                                                               
State of Alaska  is acting in a proprietary  capacity outside the                                                               
state - for example, the  Alaska Marine Highway System in British                                                               
Columbia or Washington - there is,  in effect, a waiver of comity                                                               
jurisdiction; for  example the State  of Washington  would likely                                                               
pursue the  State of Alaska  for any negligence, taxes,  or "what                                                               
have you" that were required by the laws of Washington.                                                                         
                                                                                                                                
1:57:42 PM                                                                                                                    
                                                                                                                                
THOMAS A.  LAKOSH said he  strenuously objects to the  passage of                                                               
HB  2004  because  it  conflicts  with so  many  of  the  state's                                                               
constitutional    provisions,     statutory    provisions,    and                                                               
administrative procedures  as presently established,  adding that                                                               
in his recent  discussions with the commissioners of  the DOR and                                                               
the DNR, he's had an opportunity  to take a broader view and hash                                                               
out  some  broader perspectives  that  the  committee might  find                                                               
useful in its deliberations, though  he would prefer to have more                                                               
time to address the issues  of separation of powers, due process,                                                               
the Administrative  Procedure Act  (APA), and fair  and equitable                                                               
treatment  in administrative  and executive  investigations.   He                                                               
suggested  that  it  might  be  valuable  for  the  committee  to                                                               
consider  other  avenues  for development  of  Alaska's  stranded                                                               
natural gas, though  even the issue of whether it  is stranded is                                                               
debatable.                                                                                                                      
                                                                                                                                
CHAIR McGUIRE encouraged Mr. Lakosh  to submit any of his written                                                               
information to the committee as well.                                                                                           
                                                                                                                                
MR.  LAKOSH said  that  the  perspective he  tried  to offer  the                                                               
commissioners of  the DNR and  the DOR  on the ASGF  Contract was                                                               
that the state  is effectively being forced into  becoming an oil                                                               
company  that  owns a  pipeline  and  that  must market  a  large                                                               
quantity  of natural  gas  but  must do  so  without  any of  the                                                               
benefits  held  by  a  producer   in  control  of  facilities  or                                                               
production  of   gas,  while  the   producers  are,   in  effect,                                                               
negotiating with  nine trillion  cubic feet  (Tcf) of  gas, which                                                               
they have effectively  had an expired lease on,  that being Point                                                               
Thomson.   There  is a  clear question  regarding whether  it was                                                               
legitimate for the  commissioner of DNR to grant  an extension on                                                               
that [lease]; therefore, he said, he  is asking that if the state                                                               
is forced into  a position of developing the  state's natural gas                                                               
by effectively  becoming an  oil company  in conflict  with other                                                               
interests  of  the  state's citizens  with  respect  to  pipeline                                                               
tariffs, constitutional tax provisions,  separation of powers, et                                                               
cetera, then  the state should  clearly jump  wholeheartedly into                                                               
that  prospect  by  causing  the  Point  Thompson  leases  to  be                                                               
terminated, under  provisions that  the commissioner  has already                                                               
developed,  for  failure  to  develop  Point  Thomson,  and  then                                                               
negotiate with  the U.S. Department of  Energy regarding building                                                               
the pipeline in partnership with the federal government.                                                                        
                                                                                                                                
MR. LAKOSH noted that TransCanada  already has a set proposal for                                                               
development of  the line through Canada,  and expressed assurance                                                               
that the  state could  come up with  "some other  arrangement" to                                                               
develop  the   line  and  necessary  facilities   with  the  U.S.                                                               
Department  of  Energy for  those  facilities  that might  be  in                                                               
Alaska and in  the Lower 48, and thereby have  the ability to not                                                               
only take  all royalty and  taxes in-kind but have  an additional                                                               
100  percent of  the nine  Tcf of  Point Thomson  at the  state's                                                               
disposal for marketing.   It is clearly  illegitimate, he opined,                                                               
for the citizens of  Alaska to go into a debt of  a minimum of $4                                                               
billion and  as much as  $56 billion  with cost overruns  and the                                                               
execution  of  withdrawal by  the  producers  from the  contract.                                                               
Instead, the  state should clearly consider  - if it is  going to                                                               
go  the  route of  becoming  an  oil  company with  ownership  of                                                               
pipeline and facilities - simply  developing Point Thomson itself                                                               
and  then  negotiating  with  the  federal  government  regarding                                                               
construction of the gas pipeline from Alaska to the Lower 48.                                                                   
                                                                                                                                
MR. LAKOSH  thanked the committee  for the opportunity  to speak,                                                               
and  suggested that  everyone should  take a  few steps  back and                                                               
look at the  larger picture of what the state  is being forced to                                                               
do with regard  to relinquishing its rights as a  democracy and a                                                               
sovereign  state.   "We  don't have  to  surrender those  rights,                                                               
given the  fact that we  are really  the owners of  the resources                                                               
and we have the federal government,  in its own stranded gas Act,                                                               
suggesting that they will develop  the pipeline in any event," he                                                               
concluded.                                                                                                                      
                                                                                                                                
2:03:41 PM                                                                                                                    
                                                                                                                                
MR. LAKOSH,  in response to  a question,  said he is  a concerned                                                               
citizen  who  has  been  involved in  oil  spill  prevention  and                                                               
response issues  ever since  the Exxon  Valdez oil  spill, adding                                                               
that as a  pro per litigant in that issue  he has become familiar                                                               
with administrative  law and due  process issues as well  as with                                                               
dealing with  the Department of Environmental  Conservation (DEC)                                                               
and ensuring  that [the  state] is  obtaining the  protections of                                                               
law that were intended in  the various pieces of legislation that                                                               
were  designed  to  prevent and  mitigate  Exxon-Valdez-type  oil                                                               
spills.   He reiterated that  he is very concerned  that whatever                                                               
protections  the  state  has  via  a  separation  of  powers  and                                                               
administrative  procedures  will be  going  out  the window  with                                                               
passage of HB  2004.  He noted that the  commissioners of the DNR                                                               
and  the  DOR  seemed  somewhat interested  in  his  suggestions,                                                               
though  he'd  not been  able  to  fully develop  his  suggestions                                                               
because of time constraints.                                                                                                    
                                                                                                                                
REPRESENTATIVE    GARA   again    referred    to   proposed    AS                                                               
43.82.200(7)(B),  which  would  replace "best  interests  of  the                                                               
state" with "long-term fiscal interests  of the state", and asked                                                               
whether the administration would be  willing to say on the record                                                               
that the proposed  new standard is meant to require  at least the                                                               
same level of protection for the state.                                                                                         
                                                                                                                                
MR. DONOHUE  said that although  the phrase, "best  interests" is                                                               
arguably broader  than the phrase, "long-term  fiscal interests",                                                               
the "best interests" test is  amorphous and doesn't provide solid                                                               
guidance,  whereas in  the  context of  the  Alaska Stranded  Gas                                                               
Development Act,  the state does  have some  principles regarding                                                               
what the phrase, "long-term fiscal  interests" means because they                                                               
are  set out  in statute;  so from  a litigation  perspective, it                                                               
would  be  better to  have  one  consistent standard  throughout.                                                               
There is  no intention to find  something that isn't in  the best                                                               
interests  of the  state  by using  the  standard of,  "long-term                                                               
fiscal interests".                                                                                                              
                                                                                                                                
2:07:31 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GARA asked  Mr. Donohue  to state  on the  record                                                               
that "long-term  fiscal interests" should be  interpreted to also                                                               
mean, "to maximize the revenue to the state."                                                                                   
                                                                                                                                
MR. DONOHUE replied:                                                                                                            
                                                                                                                                
     I can state  on the record that this  contract would be                                                                    
     judged by the standards of  Article VIII of the [Alaska                                                                    
     State  Constitution],   and  that  ...  there   may  be                                                                    
     challenges  on   that  basis   once  the   contract  is                                                                    
     authorized  and  challenges  arise.    And  the  Alaska                                                                    
     Supreme  Court  will  determine whether  this  contract                                                                    
     satisfies that standard.                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA asked Mr. Donohue  whether it is his position                                                               
that  the   phrase,  "long-term   fiscal  interests"   should  be                                                               
interpreted  to provide  as  much  revenue to  the  state as  the                                                               
phrase, "best interests" would require.                                                                                         
                                                                                                                                
MR. DONOHUE replied:                                                                                                            
                                                                                                                                
     I  think "long-term  fiscal  interests"  can include  a                                                                    
     number of  different considerations.  And  ... I think,                                                                    
     in  the end,  you  want  at least  the  same amount  of                                                                    
     revenue,  maybe  more,  by  getting  involved  in  this                                                                    
     particular project.   But you also  want to incentivize                                                                    
     the project, because the state  will be better off with                                                                    
     the  project  than  without,   under  the  analysis  of                                                                    
     administration consultants and officials.                                                                                  
                                                                                                                                
2:09:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GARA said  he  needs an  answer  to his  question                                                               
before  he agrees  to  delete  what he  considers  to  be a  very                                                               
important standard.                                                                                                             
                                                                                                                                
MR. DONOHUE replied:                                                                                                            
                                                                                                                                
     There  are  a  number  of  factors  that  go  into  the                                                                    
     determination  as  to   whether  the  long-term  fiscal                                                                    
     interests have  been satisfied, and those  are laid out                                                                    
     in [AS  43.82.210(b)] and there are  eight factors. ...                                                                    
     [That statute] basically contemplates  a balancing of a                                                                    
     number of  different considerations,  so in  some sense                                                                    
     it's  more  defined   than  some  broad  constitutional                                                                    
     standard, and  ... from  the litigation  standpoint, to                                                                    
     the  extent  that  we're  trying  to  defend  ourselves                                                                    
     within  this particular  set of  findings -  which have                                                                    
     existed since  1998 - we want  to be able to  make sure                                                                    
     that  the lawsuit  is confined  to  satisfying ...  the                                                                    
     balancing of these principles in [AS 43.82.210(b)].                                                                        
                                                                                                                                
REPRESENTATIVE GARA argued, though,  that AS 43.82.210(b) doesn't                                                               
say  that   "these"  are  the  factors   in  determining  whether                                                               
something's  in  the long-term  fiscal  interests  of the  state;                                                               
instead,  it says  that  if it's  consistent  with the  long-term                                                               
fiscal interests of  the state, the state can  also develop terms                                                               
that  are  consistent  with  "the  following".   But  that  is  a                                                               
circular argument and assumes that  the phrase, "long-term fiscal                                                               
interests" are  defined elsewhere.   He asked  whether "long-term                                                               
fiscal interests"  is defined somewhere  else, and  whether "best                                                               
interests" is  defined in statute  apart from  the aforementioned                                                               
court ruling.                                                                                                                   
                                                                                                                                
MR.  DONOHUE  said  that the  definition  of,  "long-term  fiscal                                                               
interests" is  not otherwise defined  in the Alaska  Stranded Gas                                                               
Development Act, and  that he is not familiar  with any statutory                                                               
definitions of, "best interests".                                                                                               
                                                                                                                                
[HB 2004, Version F, as amended, was held over.]                                                                                
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no further business before the committee, the House                                                                 
Judiciary Standing Committee meeting was adjourned at 2:11 p.m.                                                                 

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