Legislature(1997 - 1998)

04/03/1998 01:23 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         HOUSE JUDICIARY STANDING COMMITTEE                                    
                   April 3, 1998                                               
                     1:23 p.m.                                                 
MEMBERS PRESENT                                                                
Representative Joe Green, Chairman                                             
Representative Con Bunde, Vice Chairman                                        
Representative Brian Porter                                                    
Representative Norman Rokeberg                                                 
Representative Jeannette James                                                 
Representative Eric Croft (via teleconference)                                 
Representative Ethan Berkowitz (via teleconference)                            
MEMBERS ABSENT                                                                 
All members present                                                            
COMMITTEE CALENDAR                                                             
SENATE BILL NO. 195                                                            
"An Act relating to common law liens, to remedies, costs, and fees             
imposed for the registration, filing, or recording of certain                  
nonconsensual common law liens, and to penalties for recording                 
common law liens."                                                             
     - MOVED SB 195 OUT OF COMMITTEE                                           
HOUSE BILL NO. 406                                                             
"An Act relating to subsistence uses of fish and game."                        
     - HEARD AND HELD                                                          
HOUSE BILL NO. 451                                                             
"An Act relating to assistive technology devices and mobility aids             
for physically disabled persons."                                              
     - SCHEDULED BUT NOT HEARD                                                 
(* First public hearing)                                                       
PREVIOUS ACTION                                                                
BILL: SB 195                                                                   
SHORT TITLE: COMMON LAW LIENS                                                  
SPONSOR(S): RULES BY REQUEST                                                   
Jrn-Date    Jrn-Page           Action                                          
 5/06/97      1717     (S)  READ THE FIRST TIME - REFERRAL(S)                  
 5/06/97      1717     (S)  L&C, JUD                                           
 1/27/98               (S)  L&C AT  1:30 PM FAHRENKAMP RM 203                  
 1/27/98               (S)  MINUTE(L&C)                                        
 1/28/98      2328     (S)  L&C RPT  3DP                                       
 1/28/98      2328     (S)  DP: LEMAN, KELLY, MACKIE                           
 1/28/98      2328     (S)  ZERO FISCAL NOTES (COURT, LAW)                     
 2/16/98               (S)  JUD AT  1:30 PM BELTZ ROOM 211                     
 2/16/98               (S)  MINUTE(JUD)                                        
 2/17/98      2542     (S)  JUD RPT  2DP 2NR                                   
 2/17/98      2542     (S)  DP: TAYLOR, MILLER   NR: PARNELL,                  
 2/17/98      2542     (S)  PREVIOUS ZERO FNS (COURT, LAW)                     
 2/18/98               (S)  RLS AT 11:30 AM FAHRENKAMP RM 203                  
 2/18/98               (S)  MINUTE(RLS)                                        
 2/24/98      2630     (S)  RULES TO CALENDAR  2/24/98                         
 2/24/98      2631     (S)  READ THE SECOND TIME                               
 2/24/98      2631     (S)  ADVANCED TO THIRD READING UNAN                     
 2/24/98      2631     (S)  READ THE THIRD TIME  SB 195                        
 2/24/98      2632     (S)  PASSED Y20 N-                                      
 2/24/98      2636     (S)  TRANSMITTED TO (H)                                 
 2/25/98      2417     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 3/02/98               (H)  L&C AT  3:15 PM CAPITOL 17                         
 3/02/98               (H)  MINUTE(L&C)                                        
 3/04/98      2497     (H)  L&C RPT  3DP 1NR                                   
 3/04/98      2497     (H)  DP: COWDERY, SANDERS, ROKEBERG                     
 3/04/98      2497     (H)  NR: RYAN                                           
 3/04/98      2498     (H)  2 SEN ZERO FNS (LAW, COURT) 1/28/98                
 3/09/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 4/03/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
BILL: HB 406                                                                   
SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME                                 
SPONSOR(S): RESOURCES                                                          
Jrn-Date    Jrn-Page           Action                                          
 2/12/98      2312     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 2/12/98      2312     (H)  RESOURCES, JUDICIARY, FINANCE                      
 2/17/98               (H)  RES AT  1:00 PM CAPITOL 124                        
 2/17/98               (H)  MINUTE(RES)                                        
 2/21/98               (H)  RES AT  1:00 PM CAPITOL 124                        
 2/21/98               (H)  MINUTE(RES)                                        
 2/24/98               (H)  RES AT  1:00 PM CAPITOL 124                        
 2/24/98               (H)  MINUTE(RES)                                        
 2/27/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 2/27/98               (H)  MINUTE(JUD)                                        
 2/28/98               (H)  RES AT  9:00 AM CAPITOL 124                        
 2/28/98               (H)  MINUTE(RES)                                        
 3/03/98               (H)  RES AT  1:00 PM CAPITOL 124                        
 3/03/98               (H)  MINUTE(RES)                                        
 3/04/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/05/98               (H)  RES AT  1:00 PM CAPITOL 124                        
 3/05/98               (H)  MINUTE(RES)                                        
 3/06/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/06/98      2538     (H)  RES RPT  CS(RES)NT 3DP 1DNP 1NR 3AM                
 3/06/98      2539     (H)  DP: DYSON, GREEN, OGAN; DNP: JOULE;                
 3/06/98      2539     (H)  NR: BARNES; AM: MASEK, WILLIAMS,                   
 3/06/98      2539     (H)  2 ZERO FISCAL NOTES (F&G, LAW)                     
 3/09/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/11/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/18/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/20/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/20/98               (H)  MINUTE(JUD)                                        
 3/23/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/23/98               (H)  MINUTE(JUD)                                        
 3/25/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/27/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/27/98               (H)  MINUTE(JUD)                                        
 3/28/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/30/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/31/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/31/98               (H)  MINUTE(JUD)                                        
 4/01/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 4/01/98               (H)  MINUTE(JUD)                                        
 4/02/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 4/02/98               (H)  FIN AT  1:30 PM HOUSE FINANCE 519                  
 4/02/98               (H)  MINUTE(JUD)                                        
 4/03/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 4/03/98               (H)  FIN AT  1:30 PM HOUSE FINANCE 519                  
WITNESS REGISTER                                                               
DOUG WOOLIVER                                                                  
Administrative Attorney                                                        
Alaska Court System                                                            
820 West 4th Avenue                                                            
Anchorage, Alaska 99501-2005                                                   
Telephone:  (907) 264-8265                                                     
POSITION STATEMENT:  Provided information on SB 195.                           
TOM LAKOSH                                                                     
P.O. Box 100648                                                                
Anchorage, Alaska 99510                                                        
Telephone:  (907) 563-7380                                                     
POSITION STATEMENT:  Testified on SB 195.                                      
CHARLES MCKEE                                                                  
P.O. Box 243053                                                                
Anchorage, Alaska 99524                                                        
Telephone:  (Not provided)                                                     
POSITION STATEMENT:  Testified on SB 195.                                      
RON SOMERVILLE, Consultant                                                     
   to House and Senate Majority                                                
4506 Robbie Road                                                               
Juneau, Alaska 99801                                                           
Telephone:  (907) 463-3830                                                     
POSITION STATEMENT:  Provided information on HB 406 and HJR 66.                
KEVIN JARDELL, Legislative Administrative Assistant                            
  to Representative Joe Green                                                  
Alaska State Legislature                                                       
Capitol Building, Room 118                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-4990                                                     
POSITION STATEMENT:  Provided information on HB 406 and HJR 66.                
ACTION NARRATIVE                                                               
TAPE 98-54, SIDE A                                                             
Number 0001                                                                    
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee               
meeting to order at 1:23 p.m.  Members present at the call to order            
were Representatives Green, Bunde, Porter, Rokeberg, and James in              
person, and Representatives Croft and Berkowitz via teleconference             
from the Anchorage Legislative Information Office (LIO).                       
SB 195 - COMMON LAW LIENS                                                      
Number 0220                                                                    
CHAIRMAN GREEN said the committee would hear SB 195, "An Act                   
relating to common law liens, to remedies, costs, and fees imposed             
for the registration, filing, or recording of certain nonconsensual            
common law liens, and to penalties for recording common law liens."            
DOUG WOOLIVER, Administrative Attorney, Alaska Court System, came              
before the committee to testify.  He informed the committee the                
reason the Alaska Court System asked the legislature to introduce              
this legislation is to address the problem of the filing of common             
law liens against people's property.  He stated the liens are                  
"bogus," they have no legal merit whatsoever, and they never have              
had, but they can cloud title to your property.  If you try to sell            
your house and a lien has been recorded against it, you still have             
to get the lien removed and, typically, that requires a lawsuit.               
Number 0350                                                                    
MR. WOOLIVER explained that last year in Anchorage, in retaliation             
for a zoning enforcement action, a person recorded liens against               
the property of Mayor Mystrom, all the members of the Anchorage                
Municipal Assembly, all the zoning enforcement officers that were              
involved in the enforcement action, and the neighbor who called in             
the zoning violation.  He indicated there was a subsequent case                
several months later of another person doing the same thing, only              
they just recorded against the zoning officers again.                          
MR. WOOLIVER said SB 195 attacks this problem in four different                
ways.  First, it makes it clear in statute that common law liens,              
as defined in the statute, are invalid so that title companies,                
banks, et cetera, isn't confused as to whether or not there is any             
merit to them.                                                                 
Number 0410                                                                    
CHAIRMAN GREEN interjected and said if the legislation makes common            
law liens improper, some of the law that we have came from common              
law and asked, "Does that trace with that, for example, workmen's              
lien and those sorts of things?  Are they--perhaps it's in other               
places in statute, so it doesn't negate then."                                 
MR. WOOLIVER replied that is correct.  He said, "We have in our                
statute a statute ... I think it's entitled Improvement on                     
Channels, (ph) ... which was what a common law lien used to be."               
He indicated Alaska does not have common law liens because we have             
an extensive statutory scheme that governs the recording of liens.             
He gave an example of what a common law lien used to be:  if he did            
some work on your buggy and it's in his shop and you refused to pay            
him for it, he would have the right to keep your buggy until you               
paid for it.  He said a common law lien used is a person's right to            
possess property that he or person has improved in some fashion,               
until payment is made.  Mr. Wooliver informed the committee there              
is a lien statute that covers that.  He said there are other types             
of liens such as mechanics' liens, materialmen's liens, and                    
fishermen's liens, which are all covered by statute, none of which             
are affected by this bill.                                                     
Number 0510                                                                    
MR. WOOLIVER said in addition to making these liens clearly                    
unlawful and meritless, there is also a provision to have either a             
court or an attorney file a paper to be recorded, to make it clear             
to others, that this previous lien is invalid under the Alaska                 
Statutes.  Hence, a loan officer or a title company doesn't have to            
make their own legal decisions as to whether or not this lien is a             
common law lien or not.  He said the legislation also provides for             
costs and actual attorney's fees if a person goes to court to have             
a lien removed.  In addition, it also makes it a Class A                       
misdemeanor to record this type of lien.  He noted that according              
to the Department of Law, some troopers have had liens recorded                
against them, and judges and magistrates have been threatened with             
liens as well.  He indicated it is beginning to be a problem in                
Alaska and it is a very big problem in several states outside of               
Number 0600                                                                    
REPRESENTATIVE JEANETTE JAMES pointed out that liens can be filed              
on someone's property and they won't know that it's happened unless            
they are looking for it, or for some reason, have to check.  She               
asked if someone took a lien in to be recorded, would the                      
recorder's office take it.                                                     
MR. WOOLIVER replied in the affirmative.  He indicated the                     
legislature changed the statute a few years ago regarding                      
recorders' offices.  He said the recorder's office will not be a               
gate; they are not going to review all of the various liens to                 
check if they are valid or invalid.  They don't have the training              
to do that.  And the obvious response by people recording these                
liens is to make them look more legitimate or to make them more                
complicated.  The recorder will accept liens.  It's very easy to               
record on property and it has always intended to have been easy to             
do because a lot of these prejudgment-type of liens, such as                   
mechanics liens, are filed by ordinary people and they are supposed            
to be simple.  He said that fortunately, a lot of the people who               
record these liens like to call the person and tell them what                  
they're doing, or send them a notice, but they don't have to.  He              
referred to the case in Anchorage, stating that the only reason                
they discovered it was because Assemblyman Mark Begich was in the              
middle of a business transaction and the whole deal fell apart                 
because he discovered this lien, and it stopped the whole project              
he was working on.  Because of that incident, they found out all               
these other liens as well.  Mr. Wooliver said it would be common a             
person wouldn't know about it until he or she went to borrow money             
against a piece of property or went to sell.                                   
Number 0720                                                                    
REPRESENTATIVE JAMES asked how the bill would work, stating,                   
"Someone files a lien against your property and you don't know it's            
there, and then all of a sudden you have this transaction going                
through and then here's this lien."  She asked what the process is             
to get rid of the lien.                                                        
MR. WOOLIVER replied that almost all of these liens are recorded               
against public officials, usually in retaliation for some official             
action they have taken.  He explained that the first step in the               
process is whoever is reviewing your title should see that the lien            
is already invalid under statute, because this bill amends the                 
statute to make it clear that this type of lien has no merit                   
whatsoever.  Step one is they should be able to completely ignore              
it and it won't have any affect on whatever transaction you're                 
trying to do.  He said if a person is a public official, an                    
attorney would be able to file a statement to be recorded along                
with the lien indicating the lien is invalid under statute.  If                
you're not a public official and this lien is on your property,                
again it's already invalid, which is stated in the statute, so it              
shouldn't cause a problem.  But if it does cause a problem, you                
have an opportunity to go to court and can get an ex parte order               
issued stating the person has 20 days to show up and argue that                
this lien is in fact valid.  And if they don't do that, then the               
court signs a statement indicating the lien is invalid and you're              
awarded costs and attorney's fees for having done that.  Those                 
would be the steps you would go through.  Mr. Wooliver added that              
hopefully a person wouldn't have to go to court because the title              
company would see that the lien, on its face, is invalid.                      
Number 0860                                                                    
REPRESENTATIVE BRIAN PORTER referred to page 3, line 17 of SB 195,             
stating that he is not familiar with why the term "grantee" would              
be used, pointing out that the other person purportedly benefitted             
by the claim.  He said if that's not the person that filed the                 
lien, then they wouldn't have the authority to take it back.                   
MR. WOOLIVER said that that language was added by the Legislative              
Legal and Research Division when the bill was drafted.  He stated              
that if a lien is recorded by a person to benefit someone else,                
that other person could file an affidavit indicating the lien is               
not to benefit them.  He said the lien itself is also invalid                  
anyway under the other provisions of the Act.                                  
CHAIRMAN GREEN referred to Mr. Wooliver's example of a buggy and               
asked:  If the person who made the bolts that held the wheel on the            
buggy, would that be one of these grantees other than the person               
that may have filed?                                                           
MR. WOOLIVER said he does not believe so.                                      
REPRESENTATIVE PORTER said a person could receive punitive damages,            
and he asked if that would be as a result of filing a tort case                
against the person that filed the lien.                                        
MR. WOOLIVER replied in the affirmative.  He said a person who                 
wanted to get damages from someone would have to sue them as a tort            
case.  He indicated that under this legislation, a person will get             
court costs and actual reasonable attorney's fees, if the person               
has to go to court at all to get an ex parte order, but any other              
damages will have to be obtained through a law suit.                           
Number 0994                                                                    
REPRESENTATIVE PORTER referred to page 3, starting at line 17,                 
subsection (b), and asked what the function of that subsection is.             
REPRESENTATIVE CON BUNDE asked, "I'm wondering if this is casting              
a wider net so that I file a lien, not in my name, but in your                 
name, to get around my responsibility, and then if Representative              
Green comes to you as you're the grantee ... and you refuse to                 
release him from that lien, even though I filed what should have               
been an inaccurate lien, is that ..."                                          
MR. WOOLIVER said he is not very familiar with this particular                 
provision, but there are lots of angles that the common law courts             
use.  He stated, "It is my understanding that I can record a lien              
for the benefit of somebody else, I'm in 'cahoots' with the other              
person, that person didn't actually record the lien, but does                  
benefit from it, and that person could be required to release the              
lien since they are the beneficiary of that lien."  He told the                
committee he is not sure how often something like this happens, if             
at all, but that is the loophole that this provision is trying to              
Number 1080                                                                    
REPRESENTATIVE ERIC CROFT asked if SB 195 is based on any model                
legislation from other states.                                                 
MR. WOOLIVER replied there are several other states that have                  
similar types of provisions, which they have looked at, but this               
isn't modeled directly after any particular one.                               
REPRESENTATIVE CROFT referred to the mechanics' lien Mr. Wooliver              
described earlier, and he said those types of liens are statutorily            
defined, and they would continue and would not be affected by this             
MR. WOOLIVER replied that is correct.                                          
REPRESENTATIVE BUNDE stated they know what would happen if someone             
were to file a common law lien after this legislation passes, but              
he asked what would happen before it passes.  He asked if someone              
filed a lien against him, what hoops would he have to jump through             
to get that lien released.                                                     
MR. WOOLIVER replied that typically he would have to go to court               
and try to sue the person to have it released.  He said it is a                
difficult process that takes time that, which is complicated by the            
fact that a lot of the people who are recording this type of lien              
don't accept the jurisdiction of the court, and they won't accept              
service of process because they don't accept anything with a zip               
code on it.  He said then you end up in a horrendous problem just              
trying to go through a court proceeding against some of the                    
inherence to this approach.                                                    
Number 1223                                                                    
REPRESENTATIVE BUNDE asked what that might cost.                               
MR. WOOLIVER referred to the Municipality of Anchorage's case and              
said he had talked to the attorney who represented the city and he             
was told they spent several hours on the case, but he did not know             
how much something like this would cost.  In addition to the cost              
of going through this, most people won't find out about it until               
they are in the middle of trying to do something else.  And then               
there are the costs of not being able to sell their house or not               
being able to go forward with their business plans.                            
Number 1330                                                                    
TOM LAKOSH testified via teleconference from the Anchorage LIO.  He            
informed the committee he is a professional carpenter and stated               
that he can see a circumstance where he would not have the                     
opportunity to keep someone's cabinets, if they decided not to pay.            
He asked the committee to put in specific language that would                  
address the issue that mechanics' liens are accepted from the                  
nonconsensual clause because if someone tried to stiff him on his              
wages, costs, or materials for work he did on someone's home or job            
site, that they wouldn't consent to the lien after that.                       
Number 1420                                                                    
CHARLES MCKEE testified via teleconference from the Anchorage LIO.             
He said, "I see a similarity in this common law lien - especially              
when a legislative body got upset - with $5 million that Congress              
was supposed to give us during statehood, then they went ahead and             
dissolved the mental health land trust of a million acres, so that             
was essentially a common law lien against the congressional act."              
He indicated he had filed a constructive notice under Article 1,               
Section 8 with the Alaska Public Utilities Commission because they             
are issuing licenses to telecommunication companies without                    
researching whether they have (indisc.) property rights to do so.              
Number 1554                                                                    
REPRESENTATIVE CROFT referred to page 1, Section 1, stating that a             
lien means judicial or statutory so that the mechanics and                     
materialmen would fall under that statutory and this wouldn't                  
affect them at all.                                                            
Number 1591                                                                    
REPRESENTATIVE NORMAN ROKEBERG made a motion to move SB 195 out of             
committee with individual recommendations and attached zero fiscal             
note(s).  There being no objection, SB 195 was moved from the House            
Judiciary Standing Committee.                                                  
HB 406 - SUBSISTENCE USES OF FISH AND GAME                                     
[Contains discussion regarding HJR 66.]                                        
Number 1600                                                                    
CHAIRMAN GREEN announced the next order of business would be HB
406, "An Act relating to subsistence uses of fish and game."  He               
noted that they would discuss HJR 66, which accompanies HB 406,                
Version O-LS1573\C, dated 4/2/98.  He said, "The main reason for               
bringing this up today, since we are still in somewhat of a moving             
target, this is a redraft that we think is closer to what the                  
comments that we've heard so far, and it does, of course, still                
require a constitutional amendment.  And because the amendment has             
caught the public's eye back in Washington with some comments from             
our Congressional delegation, I would like to go through the litany            
of 12 items that we've included.  This was intended to be the list             
that I had received ... from the various people putting in                     
requirements, if we're going to do any kind of constitutional                  
change, we've got to have this or this, and this is what this list             
is.  It's not in any prioritized listing, and I would covet the                
input from the committee to see if, first of all, we might be able             
to pare the list down or, if not, that we could at least                       
Number 1670                                                                    
REPRESENTATIVE ROKEBERG asked for clarification of what Chairman               
Green just said and asked, "HJR 66, Version F, is that the right               
CHAIRMAN GREEN answered yes.                                                   
REPRESENTATIVE ROKEBERG asked if there is another Version E of the             
REPRESENTATIVE CROFT said he has Version E and asked if there is a             
Version F.                                                                     
CHAIRMAN GREEN clarified that Version E is the most recent version             
of HB 406.                                                                     
REPRESENTATIVE ROKEBERG noted that he had Version C of HB 406(JUD),            
which was delivered to his office today and asked Chairman Green               
how he wants to proceed.                                                       
Number 1720                                                                    
CHAIRMAN GREEN informed the committee that he wants them to review             
Version C at their leisure, since that version would not be heard              
today.  He said he wanted to focus on HJR 66 because the committee             
will probably revisit HB 406, Version C, in an attempt to reconcile            
some significant differences of opinion with the House Resources               
Committee and the Judiciary Committee.  He said, "And if that can              
be done, we will have an alternate to see, if not, then [Version]              
C will be visited Monday."                                                     
REPRESENTATIVE ROKEBERG clarified that the focus today will be on              
the changes to ANILCA provided in Version E of HB 406.                         
CHAIRMAN GREEN said exactly.                                                   
REPRESENTATIVE CROFT asked what involvement and coordination the               
committee is going to have with the House Resources Committee.  He             
asked if it's on the statute or on the constitutional amendment,               
and asked what the committee plans on doing with them.                         
CHAIRMAN GREEN said the committee is going to take another look at             
the possibility of combining - and is there any way possible that              
we can accomplish what the end result is by some sort of a merger              
of the two attitudes.  He said, "The legislation, as its been                  
presented, from the Resources Committee and the various                        
machinations, the culminating right now, and the C Version from the            
Judiciary Committee that says, is there common ground that we can              
go ahead and resolve some of the differences.  If not, then we'll              
revisit this C Version on Monday.  It's by way of information more             
than anything else because it may be changed before we revisit it              
on Monday.  The list, if it still remains a necessity to have a                
constitutional change to accomplish the things that I think we need            
to accomplish as a state, we would like to have our list more in               
order because it is becoming a point now of national controversy,              
at least to some degree.  It made some national news.  So we need              
to get a rendering of this list that's included on page 2 of HJR
Number 1820                                                                    
REPRESENTATIVE BERKOWITZ asked if he understood Chairman Green                 
correctly that "Version C in the statutory section is going to be              
discussed with parties, not in front of the committee, for the                 
possibility of combining it with the version that came out of                  
CHAIRMAN GREEN said there will be a review.  He said, "To date, the            
machinations that have happened on the Judiciary side have                     
essentially been either, as you have been involved - or actually               
Representative Croft has been involved - now we've got a document              
that, in my mind, appears to be a workable document that does                  
require a constitutional amendment."  He told the committee what he            
is going to try and do is to see if there's any commonality between            
this version and the version that they received from the Resources             
Committee, and if they could incorporate them before they actually             
adopt a D Version on Monday.                                                   
REPRESENTATIVE BERKOWITZ asked what the forum is that he is going              
to use to revisit those.                                                       
CHAIRMAN GREEN replied it is not an official forum.  He said he is             
trying to explain why this version is before the committee noting              
that it's not necessarily the version that the committee will use              
because there might be a paragraph that could actually be                      
commonality between the two the committee might be changing.                   
REPRESENTATIVE CROFT asked if there is a way that he and                       
Representative Berkowitz could participate in that discussion.                 
CHAIRMAN GREEN said there would be, but it will be difficult from              
Anchorage because it will be done this weekend.                                
REPRESENTATIVE CROFT asked if there is a set time and place he can             
CHAIRMAN GREEN said there isn't an official time set, and noted                
that he will be working on it tomorrow.                                        
REPRESENTATIVE BERKOWITZ commented that this bill has already been             
through the Resources Committee and that they had their opportunity            
to review HB 406, and stated that it's our turn to draw up a                   
solution.  He said the Resources Committee failed and stated that              
we should do this in the proper forum which is in the committee.               
Number 1934                                                                    
CHAIRMAN GREEN confirmed that it will be done in their committee,              
but clarified that there may be some ground common to both.  He                
said, "Rather than to take an abstinent view and say, okay, they               
had their chance, and we're going to have our chance, and if goes              
out of this committee, Finance will have their chance.  What we're             
trying to do -- I keep saying 'we' -- what I would like to do is               
build a consensus bill that would pacify, or at least get the                  
support of as many people as possible knowing you'll never come up             
with a bill that's going to completely satisfy everybody because               
the positions are too far apart."                                              
REPRESENTATIVE PORTER said the bill that would go out of this                  
committee, in whatever form it would go out in, has to be approved             
and reviewed by the committee in a special committee meeting;                  
therefore, Representatives Croft and Berkowitz will get a "crack"              
at it.                                                                         
CHAIRMAN GREEN said he could understand Representatives Croft and              
Berkowitz' consternation, noting that if there will be any changes             
to the bill, he would let them know; however, he pointed out that              
this version hasn't been adopted by the committee.  He said, "it's             
not a matter of doing something committee-wise, it's actually my               
trying to come up with something that we could accept as a                     
REPRESENTATIVE BERKOWITZ said he wants the public to have full                 
confidence and the pride that comes out of the Judiciary Committee             
and that is why he wants to insure that whatever happens, does so              
in public view.                                                                
CHAIRMAN GREEN responded absolutely.                                           
REPRESENTATIVE CROFT said it seems like if the committee adopts the            
C Version and anything that the committee works on this weekend                
came up as possible common ground amendments to it, that that                  
procedurally would be the best for the public process and for just             
orderly process of the committee.                                              
CHAIRMAN GREEN said, "That's right."                                           
REPRESENTATIVE CROFT asked, "Can we go ahead and adopt the C                   
Version and then you work on those amendments that might change it             
back to something more, like, Resources?"                                      
CHAIRMAN GREEN said sure.                                                      
Number 2033                                                                    
REPRESENTATIVE CROFT made a motion to adopt the proposed CS for HB
406, O-LS1573\C, dated 4/2/98, Utermohle.                                      
CHAIRMAN GREEN said, "We can do that here at your behest, but it               
would have been just like Representative Berkowitz' recommendation             
on the last bill."                                                             
REPRESENTATIVE JAMES asked if the committee is going to accept a               
motion to adopt the CS, because, if that's the case, she said she              
wants to speak on that, otherwise she doesn't need to speak.                   
CHAIRMAN GREEN said, "I'll make the motion to accept work draft 0-             
LS1705\E, Utermohle 3/28 as our working document."                             
REPRESENTATIVE JAMES objected due to the process.  She said, "I                
consider that we already have a work draft as a working document,              
and that if I vote to accept this new working document, that I am              
agreeing to the amendments that are between the difference of them,            
and I don't know what they are.  I have had little time to look at             
this today, so I don't know that I want to accept all those                    
amendments, that's my concern.  If this is necessary for the                   
procedure to go forward, and you tell me that it's necessary I'll              
go ahead with it.  If it's not necessary, I'd rather not, because              
I think it is voting for these amendments and I'm not sure that I              
want to."                                                                      
CHAIRMAN GREEN stated, "That was my feeling originally, that's why             
I wasn't going to introduce it as a recommended change.  You have              
heard the dialogue from some of the other members of the committee,            
and I don't want to appear to be doing something that the public               
isn't aware of.  And that, I think, is a concern expressed by the              
two missing members.  I would prefer to do it the other way as                 
well, and that [Version] E might come in different form that it is             
here, even, for a recommendation."                                             
REPRESENTATIVE JAMES thanked Chairman Green stating that that's                
what she agrees with.  She said if the committee is going to be                
discussing HJR 66, it seems like it's based mostly on the other                
version.  She said, "Having this work draft in front of us is fine.            
I don't object to that.  I just object to voting for it, which                 
would mean that I'm amending the other one, and I'm not sure I want            
to do that, because I haven't gone through them to see.  You're not            
presenting all the changes to us and all those kinds of things?                
That would take a lot of time."                                                
CHAIRMAN GREEN said the committee can't do that because it will                
take a lot of time.                                                            
Number 2160                                                                    
REPRESENTATIVE ROKEBERG said he will be voting no for the reasons              
that were just articulated by Representative James.                            
REPRESENTATIVE BUNDE said, "If we hadn't had the previous CS, and              
now we have this CS, it would still be all new material for us and             
we'd either accept it in total and then amend it after we've                   
accepted it, or we would reject the working document.  I don't have            
a problem with having a working document and then working backwards            
to iron things out that we weren't happy with."                                
REPRESENTATIVE CROFT said he is a bit confused with what just                  
happened.  He said he was trying to get the committee to adopt the             
statutory changes, the C Version of CSHB 406 as a working document.            
He asked Chairman Green if he was moving the E Version of the                  
Number 2200                                                                    
CHAIRMAN GREEN said he withdraws his request to adopt the E                    
REPRESENTATIVE PORTER interjected and said, "Of [HJR] 66."                     
CHAIRMAN GREEN said, "No, we're still taking about HB 406."                    
REPRESENTATIVE ROKEBERG said the committee was discussing the C                
Version of HB 406.                                                             
CHAIRMAN GREEN said, "[HB] 406, then I'm confused, because what I              
had just done was give you the date on the resolution, rather than             
the date of the bill.'                                                         
CHAIRMAN CROFT said he didn't want to add procedural complications.            
He indicated if the committee is about to go into negotiation, they            
should have a working document that reflects this before the                   
committee.  That is why he was moving the statutory CS for HB 406,             
which is the C Version, Utermohle 4/2/98.  He said if the committee            
is going to talk about the resolution with is the E Version of HJR
66, he said that would be fine and the committee can adopt whatever            
version of the resolution they want.  He indicated that he was                 
talking about the statutory changes.                                           
Number 2240                                                                    
CHAIRMAN GREEN said he misunderstood Representative Croft.  He then            
recommended that the committee adopt the HB 406, O-LS1573\C,                   
Utermohle, dated 4/2/98 as the working document.  He asked if there            
are any objections.                                                            
REPRESENTATIVE JAMES objected.                                                 
Number 2265                                                                    
REPRESENTATIVE GREEN said, "Let's start over again."  He said he               
understands what Representative Croft is talking about and that he             
concurs with him.  He said due to the lateness of the meeting, he              
would like to get to the resolution to try and prioritize it, and              
that may or may not be necessary.  He stated, "The version that we             
would come in with then as a recommendation for adoption, we can               
either do by amendments to the last version that we worked on, or              
recommend and go through in detail any changes for a committee                 
substitute.  But rather than get off on that digression right now,             
I would prefer to try and prioritize at least, if not render, the              
changes that we would propose in ANILCA if we have a position to               
bargain from."                                                                 
REPRESENTATIVE CROFT said he respects Chairman Green's amendment               
and stated, "My concern is that the public response versions that              
are actually out there and adopted, and there's now a couple of                
[HB] 406's that are working documents, and it's confusing, I think,            
for the public to know which to respond to.  I think if we adopt               
[HB] 406 and then we can just have end discussion of how we                    
(indisc.) of whether we do that ... everyone knows what we're                  
doing.  We're working from this draft, the C draft, we're talking              
to the Resources co-chair about amendments and everyone's on the               
same page.  And I do think that would help clarify things, but we              
don't have to discuss it a lot longer and move on to [HJR] 66.  I              
would maybe keep that motion and maybe we can have a quick vote on             
CHAIRMAN GREEN said he can't make the motion, advising the                     
committee they will move on to the work draft for HJR 66.                      
REPRESENTATIVE ROKEBERG said there is a motion on the table and                
that Chairman Green made the motion.                                           
CHAIRMAN GREEN said he did not make the motion because he was in               
REPRESENTATIVE JAMES asked, "Since this doesn't have a number on               
it, if I went to records downstairs now and I wanted to get a copy             
of HJR 66, could I get this copy?"                                             
CHAIRMAN GREEN responded no because the committee has not adopted              
it.  He indicated the resolution was just brought in today.                    
REPRESENTATIVE JAMES asked why the resolution doesn't have a number            
on it indicating the number "66" was penciled in on it.  She asked             
if the committee accepted the other version of the HJR 66.                     
CHAIRMAN GREEN it doesn't really matter, and that it is HJR 66.                
REPRESENTATIVE JAMES asked if the committee accepts this version of            
the resolution, can it be picked up at the Legislative Information             
CHAIRMAN GREEN responded yes.                                                  
Number 2380                                                                    
REPRESENTATIVE CROFT said, "In discussions with you (indisc.)                  
before that that I could move amendments and vote on amendments, I             
could not move or object to moving those bills.  The motions were              
in order from teleconference, but the votes on a bill are not.  I'd            
just like to know what the ruling of the chair is on motions short             
of moving the bill from teleconference sites."                                 
Number 2400                                                                    
REPRESENTATIVE ROKEBERG made a motion to adjourn.                              
CHAIRMAN GREEN responded that that's a nondebatable motion and                 
asked if there is an objection.                                                
UNIDENTIFIED SPEAKER:  "I would object."                                       
CHAIRMAN GREEN then asked for a roll call vote for adjournment.                
Representatives Porter and Green voted against adjournment;                    
Representatives Bunde and James passed on the vote, and                        
Representative Rokeberg voted in favor of adjournment.                         
Representatives Croft and Berkowitz could not vote via                         
teleconference.  Therefore, the motion failed.                                 
REPRESENTATIVE CROFT interjected and said he does not know what he             
can or cannot vote on.  He stated, "As I said, I understood that it            
was not moving the bill, objecting to moving the bill.  Are there              
other things that I cannot vote on through teleconference?"                    
CHAIRMAN GREEN advised the committee he had just received                      
clarification from Tam Cook, the Director of the Legislative Legal             
and Research Division, who said Representative Croft is entitled to            
vote on everything but moving the bill from committee.                         
TAPE 98-54, SIDE B                                                             
Number 0006                                                                    
CHAIRMAN GREEN continued "...Representative James, did you vote?"              
REPRESENTATIVE JAMES replied no.                                               
REPRESENTATIVE BUNDE stated, "Now they should vote."                           
CHAIRMAN GREEN asked Representatives Berkowitz and Croft what their            
vote is.                                                                       
REPRESENTATIVE BERKOWITZ replied no.                                           
REPRESENTATIVE CROFT replied no.                                               
CHAIRMAN GREEN stated the motion failed.                                       
REPRESENTATIVE ROKEBERG said Representatives Berkowitz and Croft               
are out of order, and that they can't vote.                                    
CHAIRMAN GREEN said, "According to Tam Cook, they can."                        
REPRESENTATIVE ROKEBERG said, "Well, I've got a resolution                     
CHAIRMAN GREEN responded it doesn't matter because the motion                  
failed anyway.                                                                 
REPRESENTATIVE ROKEBERG said it's a point of order and it's                    
something that the committee needs to look into.                               
CHAIRMAN GREEN said they just called Tam Cook.  He announced that              
that brings the committee back to discussion of HJR 66.                        
REPRESENTATIVE CROFT thanked Chairman Green for clarifying that he             
and Representative Berkowitz can vote on motions short of moving a             
bill.  He said, "If it's your intention to operate from [HB] 406,              
Version C, and make those negotiations, I'll withdraw the motion to            
adopt [HB] 406 [Version] C and we can work on HJR 66.  I do think,             
with all respect, that the cleanest way to do that is to have a                
work draft  (indisc.) so the public knows what it is, but if that's            
not your pleasure, than we can move on to [HJR] 66."                           
CHAIRMAN GREEN indicated he has a list of requested amendment                  
changes to ANILCA.  He said it is not necessarily a complete list,             
but it's the list that he has had input from various people.  His              
suggestion would be that the committee review the list to see if               
there are any ways that they can be combine or reduced, or at least            
prioritized.  He said, "Because of the attention that is drawn, I              
had hoped to get to this only if it was necessary, but apparently              
we're getting some negative feedback now from congressional                    
Number 0065                                                                    
REPRESENTATIVE BUNDE said, "Just again, procedurally to help things            
out, I hope, we have a Version E and a Version F and I would move,             
as a working document, whichever version the chair would prefer to             
work from."                                                                    
REPRESENTATIVE BERKOWITZ said that he has two version E's:  0-                 
LS1705 and 0-LS1706.  He asked for clarification as to which                   
version the committee is discussing.                                           
REPRESENTATIVE JAMES asked what Version is 0-LS1706.                           
CHAIRMAN GREEN indicated he has two 0-LS1705's.                                
REPRESENTATIVE JAMES indicated she also has 0-LS1705's; a Version              
E and a Version F.                                                             
REPRESENTATIVE CROFT said, "I haven't seen the [Version] F here,               
but on the [Version] E, there's one -- yes, LS1706.  Did -- 'this              
section does not restrict the power of the legislature to provide              
a preference,' it uses that language in a bunch of different                   
sections.  Is that a different bill, Mr. Chairman?"                            
Number 0100                                                                    
CHAIRMAN GREEN called for an at-ease, which was taken at 2:13 p.m.             
CHAIRMAN GREEN came back on record stating that there was a                    
difference between the bill drafter.  He announced the next order              
of business will be HJR 66, 0-LS1705\F.                                        
Number 0119                                                                    
REPRESENTATIVE BUNDE made a motion to adopt HJR 66, 0-LS1705\F as              
the working document of the bill.                                              
REPRESENTATIVE BERKOWITZ interjected and said that he and                      
Representative Croft does not have that version before them.                   
CHAIRMAN GREEN said it's been attempted several times during the               
committee meeting to get that faxed to them and apparently there is            
a problem getting it to them.                                                  
REPRESENTATIVE BERKOWITZ informed the chairman Representative Croft            
went to check and see if the fax has come in.  He asked if this                
version is significantly different than 0-LS1705\E of HJR 66.                  
CHAIRMAN GREEN indicated that the list is the same.  He said the               
committee is discussing adopting that version of HJR 66 for the                
list and if the committee decides that the language needs to be                
amended, that would be in order also.  He said what he is                      
attempting to do is to try and address the list of changes to                  
REPRESENTATIVE BERKOWITZ said he would feel more comfortable if the            
list is the same as Version E as it is on Version F.  And since                
they don't have Version F, he would feel more comfortable working              
off the list on Version E.                                                     
CHAIRMAN GREEN said they should be identical.                                  
REPRESENTATIVE CROFT asked what the difference is between the two              
CHAIRMAN GREEN said there is a little difference on page 1, but                
that the committee would not be addressing that at this time.                  
Number 0183                                                                    
REPRESENTATIVE BUNDE said, to simplify things, he would move for               
adoption of Version E as the working document.                                 
CHAIRMAN GREEN asked Representative Croft if he has Version E.                 
REPRESENTATIVE CROFT replied that they do.                                     
CHAIRMAN GREEN asked if there is any suggestion about combining any            
of this litany of 12 issues or changing any of them.                           
REPRESENTATIVE JAMES suggested taking them one at a time.  She said            
before they begin, she noted that she doesn't have any problem                 
going down the list, but she wanted to say, for the record, that               
she feels the committee is getting the cart before the horse.  She             
suggested that the committee should figure out the statutory                   
changes they want to make, and then see what they need to have in              
a constitutional amendment, if at all.  She said she feels a little            
uncomfortable, but that she would be happy to do whatever the                  
chairman suggests and that she will cooperate, but that she has a              
problem dealing with the list when she doesn't know what the rest              
is going to be.                                                                
Number 0246                                                                    
CHAIRMAN GREEN advised the committee that "[HB] 406 does not                   
mandate any of this, it just says that it entitles [Department of]             
Fish and Game to do certain things.  For that change ... in our                
constitution, we are trying to get some changes to ANILCA so that              
there's nothing in the bill, [HB] 406, that would have any affect              
on this list of things that we want changed in ANILCA.  That's why             
I think we can take this list because what we do with [HB] 406 will            
not have a bearing on this."                                                   
REPRESENTATIVE JAMES said she understands what he was saying, but              
she wants to put on the record that she is not in favor of the                 
constitutional amendment and that she does not problem going down              
the list.                                                                      
REPRESENTATIVE BUNDE indicated that item (1) is critical and                   
essential and that he would be opposed to that item being removed              
from the list.                                                                 
REPRESENTATIVE JAMES said she agrees with Representative Bunde.                
REPRESENTATIVE CROFT said it seems that the conditions the                     
committee wants to make to a constitutional amendment need to be               
rationally related to, "did we have to do this in the first place?"            
He referred to page 3, subsection (b)(3) which reads:  "a federal              
court issues a final judgment that ... this violates the                       
Constitution of the United States or any other federal law" stating            
that that is the appropriate condition to this amendment.  He said,            
"The others, to extent that they're a wish list we may or may not              
get, should be addressed by the way we usually do that, which is a             
resolution to Congress asking for these changes."  He said the only            
item that makes sense to link to the amendment is the one that                 
indicated they didn't have to do it in the first place.  He                    
indicated that his position is the one item that should be the                 
condition for the amendment is the one that says that ANILCA was               
(indisc.) equal protection.  Representative Croft said whenever it             
is appropriate for the chairman, he would then move that the                   
committee separate the question and that subsection (b)(3) remain              
a condition of the constitutional amendment and that the others be             
part of a separate resolution asking Congress to address it.                   
Number 0370                                                                    
REPRESENTATIVE PORTER said he understands Representative Croft's               
motion, but he disagrees with it.  He doesn't think that it would              
be successful at all to not have some requests tied to the passage             
of this constitutional amendment, if they actually go forward with             
a constitutional amendment.  He said if the passage of that                    
amendment, and whatever the committee ends up with on the list from            
these requests are not passed, that the constitutional amendment               
also not pass.  "That, of course, is why they're here in the first             
place," he added.                                                              
REPRESENTATIVE JAMES stated out that this litany of items is what              
the committee would intend be part of the constitutional amendment             
that would encourage people to support it, if there was one.  She              
said, "If these things don't happen, the constitutional amendment              
is null and void."                                                             
CHAIRMAN GREEN remarked that it would be linked to it; it wouldn't             
be part of it.                                                                 
REPRESENTATIVE BUNDE said to expand on what Representatives James              
and Porter just said, "This is our only chip.  This is our trump               
card; our only card.  Once we amend the constitution, we don't have            
any other negotiations, so unless we get our concerns addressed as             
part of the vehicle for any constitutional amendment - and I didn't            
say I favor that - if the concerns aren't addressed, I'm absolutely            
opposed.  If the concerns are addressed, I'm willing to listen to              
CHAIRMAN GREEN said he agrees and his only other addition to that              
is there's no sense in going for a constitutional amendment if they            
don't get something changed in ANILCA.  He said, "All we would be              
doing is, don't move or the big guy gets it.  I mean, that doesn't             
make a lot of sense to me, but I do appreciate your efforts,                   
Representative Croft.  I just don't think there's any reason to                
cause the people of the state to vote to change the constitution,              
unless there's some link to that to gaining something from the                 
onerous parts of ANILCA.  We may, in fact, find that (3) still                 
stands, but (1) doesn't.  And, in that case, I would certainly not             
want to vote for a change in constitution without getting that                 
list, and that's the problem."  He commented that the list is too              
long and that the legislature will not possibly get 12 changes to              
ANILCA.  He said the committee's job is to render that down to what            
they believe is a workable list.                                               
Number 400                                                                     
REPRESENTATIVE BERKOWITZ stated that perhaps in talking with                   
Senator Stevens he might be able to inform the committee which of              
the 12 items he found possible or impossible, rather than going                
through them item by item.                                                     
CHAIRMAN GREEN indicated that he had talked to Senator Stevens                 
three weeks ago when he was in Washington, D.C., but he has not                
talked with him since.  He said at the time, that was strictly a               
conceptual thing that the committee would perhaps make a different             
run at HB 406 and that there would be some quid pro quo.  He said              
they did not discuss what they are.                                            
REPRESENTATIVE BUNDE said, "As long as we're talking about the art             
of the possible, I would think that if I were chair of the Senate              
Appropriation Committee, many things would be possible.  I think               
the only things that are impossible are the things that people                 
choose not to address."                                                        
REPRESENTATIVE CROFT asked if there was any objection to keeping               
item (1).  He indicated that there wasn't any from teleconference.             
CHAIRMAN GREEN said there was no objection from the committee,                 
unless there is some from either Representatives Croft or                      
REPRESENTATIVE BERKOWITZ said there is no objection.                           
REPRESENTATIVE BUNDE suggested reading the items out loud so that              
people on teleconference can know exactly what the committee is                
discussing:  He read, "(2) defines the term 'public lands' to                  
expressly exclude State and private land and water, including                  
navigable waters;".  He stated that he thinks that item would be               
CHAIRMAN GREEN said item (2) is a significant step.  If the                    
committee can get that item, he thinks it's very laudable.  In                 
fact, that's one that he would insist on as well.  He said, "What              
this does, of course, is it opens up the ability for the state to              
much more adequately address the concerns about managing fish and              
REPRESENTATIVE PORTER said he would like a comparison between items            
(2) and (4) and asked if they are duplicative or separate.                     
Number 0651                                                                    
RON SOMERVILLE, Consultant to House and Senate Majority, came                  
before the committee to testify.  He informed the committee that               
the list they have, are the items that were compiled which discuss             
the various changes with majority committee members of the Senate              
and House.  He said the first four items were designed, even during            
the Hickel Administration, as those necessary to essentially assure            
that on state lands and waters, (1), which is now the Katie John               
case, would be overturned.  He indicated that it requires the                  
predefinition of public lands and some assurances that the reserved            
water rights and navigational servitude doctrines would not be used            
as they have been by both the district court and the 9th Circuit               
court against the state, in other words, authorized and                        
preemptions.  He pointed out that the four items were tied together            
as an absolute bulletproof way of assuring that at least on state              
and private lands and waters, the state was protected.  Mr.                    
Somerville noted that the key policy decision which was directed at            
state and private land and waters, and it excluded federal lands.              
He said it has been the position of some members that the condition            
of return of management be that the state have complete management             
over all state and federal lands.  And the recommendation was that             
it's probably not possible to eliminate federal court oversight                
over federal public lands, but at least assuring that state lands              
and waters were protected.                                                     
CHAIRMAN GREEN said there certainly is a reason for the servitude              
doctrine in the reserve water rights because those are two issues              
that the legislature has actually gotten in litigation.  He said               
the question is could that item be incorporated into item (2) or               
item (2) be incorporated into item (4).  He said his concern is                
that 12 requirements for change in ANILCA is like saying there's               
something wrong with motherhood.  A flag immediately goes up and               
says that's much too broad of a list.  He asked, "Can we reduce the            
number and still get accomplished what we want to get accomplished?            
In other words, can we knock off one of these by combining (2) and             
Number 0758                                                                    
KEVIN JARDELL, Legislative Administrative Assistant to                         
Representative Joe Green, Alaska State Legislature, came before the            
committee to answer questions.  He said he believes the point was              
to have the federal government expressly address each of the                   
concerns.  Although it's broadly within one category, he indicated             
that there are several different methods and means throughout                  
ANILCA that could create problems with navigable waters with the               
state.  He said the idea here is that we're trying to nip any                  
opportunity of the federal government or a federal court to come in            
and find another way to allocate our navigable waters to the                   
federal government, trying to limit that as best as possible.  He              
noted that by putting it in one broad category, he believes it will            
lose some of the priorities and some of the emphasis by saying not             
only do you have to redefine, we want you to expressly state that              
there are no reserved water rights, and that a navigational                    
servitude doctrine does not apply.                                             
REPRESENTATIVE CROFT made a motion to amend the motion to adopt                
item (2) to delete "including navigable waters" and to also delete             
(4).  He said the effect of that would be to affirm our right to               
state lands, private lands and waters.  He said the navigable water            
and, in particular, the Katie John decision, was found by the 9th              
Circuit court to be instrumental to protecting the fisheries flow,             
then come up into federal lands where they have the legitimate                 
right to control subsistence.  He said if the federal courts can't             
do that, it has very little ability to protect the subsistence                 
rights of upland rural residents/upland Natives.  He said for                  
practical sense and political sense, he doesn't believe that they              
are going to get the federal government to say, in effect, they                
cannot protect the fishery subsistence uses of upriver Natives and             
rural residents.  He indicated that he reads item (4) as applying              
to the navigable water section of item (2), and those portions                 
dealing directly with Katie John.  He said the (indisc.) talk about            
lands and private land and water don't seem objectionable to him.              
Number 894                                                                     
CHAIRMAN GREEN said he would object to dropping the navigable                  
waters issue.  He commented that in most other states that goes                
with statehood.  He said, "You do have authority over navigable                
waters and to exclude those in Alaska because they may have some               
effect on the remaining federal land, I think doesn't.  I think                
some of the issues that we've heard in the Resources Committee,                
some objections, that we should have equal standing with other                 
states."  He suggested keeping "leave to" as it is, and then add               
"as well as" and then pick up on line 7, "renounces all claim to               
authority under the navigational servitude doctrine and the                    
doctrine reserve water rights" and make that all one issue.                    
REPRESENTATIVE CROFT pointed out that the state of Washington,                 
which has a reservation of stream, has been forced to allocate 50              
percent of its salmon flow to uses by the Native residents.  He                
added, "Instead of us being treated unequally and unfairly we,                 
right now, are in the enviable position of being the one state                 
without any reservation or Indian country, and we're actually                  
unequal in a very positive situation.  And all we had to do in                 
return was agree to protect the subsistence rights of Natives and              
we're generally (indisc.).  What we're asking for here is not equal            
treatment, but some sort of special treatment, ... at some point               
we'll start to be treated equally, and that would mean some of the             
reservation systems that we've seen in the Lower 48."                          
MR. JARDELL stated that if shortening the list for visual purposes             
is what the committee wants and to also condense it as much as                 
possible, he said he could draft an amendment to put those two                 
items into one category where there's no substantive change, but               
that it does make it more concise and decrease the list.                       
CHAIRMAN GREEN said they would expect that if, in fact, the                    
committee combines them.                                                       
REPRESENTATIVE JAMES asked what is the motion the committee is                 
discussing that Representative Croft made.                                     
CHAIRMAN GREEN replied he does not know that Representative Croft              
made a motion.  He said Representative Croft was discussing wanting            
to drop "including the navigable waters".                                      
REPRESENTATIVE JAMES said she thought he had made a motion.  She               
said if he did not, then the committee is just talking.                        
REPRESENTATIVE CROFT said he did make a motion to delete "including            
navigable waters" and item (4).                                                
REPRESENTATIVES PORTER and BUNDE objected to the motion.                       
REPRESENTATIVE ROKEBERG said he would call for a motion in writing             
under Rule 27, if that's the case.                                             
REPRESENTATIVE CROFT said he would fax the motion in writing to the            
CHAIRMAN GREEN said he believes that Representative Croft's motion             
isn't required in writing.  He indicated that Representative Croft             
is only asking the committee to delete three words, which he                   
believes does not require a written motion.                                    
REPRESENTATIVE ROKEBERG pointed out that that's the rule of the                
presiding officer and in his opinion, Chairman Green is the                    
presiding officer.                                                             
CHAIRMAN GREEN asked Representative Croft if his recommendation is             
to delete "including navigable waters."                                        
REPRESENTATIVE CROFT answered in the affirmative and also noted to             
delete item (4) which also discusses that.                                     
CHAIRMAN GREEN noted that there was an objection to that motion and            
asked if there was further discussion.  Hearing none, Chairman                 
Green asked for a roll call vote.  Representatives Croft and                   
Berkowitz voted in favor of deleting that language.                            
Representatives Bunde, Porter, Rokeberg, James and Green voted                 
against it.  Therefore, the motion failed.                                     
Number 1113                                                                    
REPRESENTATIVE PORTER made a motion to conceptionally combine items            
(2) and (4) so as to maintain the intent; however, to put it into              
one item, number (2), and that the committee aide be requested for             
format and duty.                                                               
REPRESENTATIVE CROFT objected.                                                 
CHAIRMAN GREEN asked if there is any discussion.                               
REPRESENTATIVE CROFT said, "To the extent that we're asking for 12             
things and that's too much for a lot of different people, including            
the congressional delegation, I don't think we're comporting with              
their intent by just combining the elements of them.  We could                 
combine them all into one big one and I don't think that that's the            
appropriate question.  I don't see any reason to combine these and             
I don't think it has any effect (indisc.).                                     
CHAIRMAN GREEN advised that once this committee has gone through               
the list, whether they leave in all 12 items or if they combine                
some, it's his intention to contact Senator Stevens when the list              
is done to see if there's any viability to this.  He said he didn't            
feel that it was appropriate to "hit" him with all 12 items at                 
Number 1159                                                                    
REPRESENTATIVE BERKOWITZ said rather than gargle the message by                
combining what is apparently some kind of majority wish list,                  
according to Mr. Somerville, he would suggest sending the list as              
it exists to Senator Stevens, instead of the committee spinning                
their wheels now trying to figure out something that just condenses            
a wish list.                                                                   
CHAIRMAN GREEN said, "I think that's premature, Representative                 
Berkowitz, because this is the second one we've mentioned and the              
question was, 'Is there reason to combine (2) and (4)?'  We still              
have (3)-(12) to talk about.  There may be some of those that drop             
out, so it would not be appropriate to send this entire list unless            
it's the wish of the committee."                                               
REPRESENTATIVE JAMES said if the committee is trying to get the                
blessing of Senator Stevens on this issue, and presuming that the              
committee listens to all of Senator Stevens' suggestions, she said             
the committee could do that by just simply passing one piece of                
legislation which provides a rural priority.  She said until the               
committee has their statutory information down to see how they're              
going to address this issue and whether it's fair and actually does            
the things that ANILCA was intended to do, she doesn't think that              
Senator Stevens is going to be able to give any blessing to                    
anything.  She again reiterated that she feels the committee is                
getting the cart before the horse.                                             
CHAIRMAN GREEN said he appreciates what she just said, emphasizing             
that the committee has discussed that already.  He said, "My point             
is that ... all they have indicated to us is that you take ANILCA              
as it has been modified by Senator Stevens, and modify your                    
constitution to allow that to happen.  And we're saying if we're               
going to modify our constitution, we've got to have more than what             
ANILCA is telling us now.  We've got to have some take back.  And              
so now we're in the negotiating stage of saying, okay, what are we             
going to take back there saying this is our quid pro quo, not what             
you gave us, but if we modify our constitution and rewrite, instead            
of saying rural, we make this a little more focused on location,               
then we want these changes.  And that's what we're hoping to do in             
the art of negotiation.  So, it's whether or not we got too big of             
a list for them to even listen to."                                            
Number 1304                                                                    
REPRESENTATIVE PORTER said it would be nice if the committee could             
work it out with the congressional delegation at this point, but he            
believes that is premature.  He said, "We need to find out what                
this committee wants to do and then send it to the next committee              
and they'll do something to it.  And if we did get it passed, this             
other body would do something to it.  When we get this document, if            
ever, to a point of perhaps a conference committee, I think that               
would be the time to contact the delegation and get them in the                
loop.  But until we find out what it is that can or can't happen in            
our own legislature, back and forth with the congressional                     
delegation is not going to be very productive and, quite frankly,              
a waste of their time."                                                        
CHAIRMAN GREEN stated that is why the members are discussing this              
in committee.  He noted that two members of the committee have                 
already indicated that they like the list as is.  He said, in his              
briefings with Senator Stevens, if the committee decides to wait               
and go through all of the machinations and the heartache of trying             
to get something, and then go to him, he knows that Senator Stevens            
will say no.                                                                   
REPRESENTATIVE PORTER commented that the committee still has the               
ability to change the list at conference committee and that would              
be the final change, and then the two bodies could ratify the                  
change.  Otherwise, the committee that subsequently gets this bill             
could add or subtract and the Judicial Committee's agreement is                
CHAIRMAN GREEN said his point is not to extract an agreement, but              
to determine whether or not they are even in the right ballpark.               
REPRESENTATIVE ROKEBERG wanted to state for the record that Senator            
Murkowski has expressed his willingness to undertake public                    
hearings throughout Alaska on the direction that the legislature               
and the people of the state of Alaska give him regarding                       
subsistence.  He said he believes it's his job, and the job of the             
entire legislature, to look at these particular points before then,            
do with them what they will, and send them on their way so Senator             
Murkowski can have some blueprint with which to work on this.                  
CHAIRMAN GREEN said if that is the will of the committee he will               
bow to the wishes of the committee.  He said that quite often the              
problem is if you want to negotiate, you have to have something                
that's reasonable to start with, rather than absurd, and his                   
concern is that there is no way that any of the members can expect             
this litany to be changed.  He said his only concern is if they                
wait, but if it's the wish of the committee, he will leave the list            
as is.                                                                         
Number 1925                                                                    
REPRESENTATIVE CROFT indicated that he is concerned specifically               
with items (6), (7), (9), (10), and (11).  He said the committee               
has already  expressed the concerns (indisc.) applies to items (1)-            
(5), and they have already voted on those items.  He said there's              
no real concern with item (12).  He said, "I'm not sure I                      
understand [item] (8), but to the extent I do, it will make the                
same issue we were talking about (1)-(5), navigable waters.  So if             
you wanted to have ... some quick discussion on (6), (7), (9),                 
(10), and (11), we could see if any of those will be removed from              
the list."                                                                     
CHAIRMAN GREEN asked if there is objection to spending another 15              
minutes discussing those items Representative Croft just mentioned.            
REPRESENTATIVE PORTER indicated he has a suggestion for an                     
amendment to item (5), but other than that, he has no problem with             
discussing the rest of the list.  He referred to item (5) stating              
that he doesn't think in any iteration of HB 406 the committee is              
going to have, that they have "rural" as a functional word, so he              
doesn't think the committee needs to define the term "rural".                  
Number 1549                                                                    
REPRESENTATIVE PORTER made a motion to delete the word "rural" and             
after "customary trade" add "and barter".                                      
REPRESENTATIVE CROFT said, "The term 'rural' is in there, and what             
I've seen as a necessary list for ANILCA changes, it's something               
that moves, that changes the 'rural' to 'local' and changes the                
definition (indisc.) need to.  Defining the term 'rural,'                      
redefining it to 'local,' defining it 'rural,' but 'local' how we              
mean it, I think it's important that 'rural' stay in there, not                
because it will stay in the bill, but because we do need to change             
its definition, and maybe it's an 8."                                          
CHAIRMAN GREEN said, "Well, actually, in (5) as its written, it's              
talking about defining those three terms."                                     
MR. JARDELL referred to item (5) and said if its the committee's               
desire to shorten the list, number (12) on page 3, if enacted by               
Congress would, in effect, take care of items (5) and (6) on page              
2.  He said it's a policy decision as to whether or not the                    
committee wants to.                                                            
CHAIRMAN GREEN asked for clarification about items (5) and (6).                
MR. JARDELL said items (5) and (6) would be incorporated under item            
(12) if Congress affirms that the laws of the state are consistent             
with the provisions of federal law.  It's more of a policy decision            
as to whether or not the committee wants to expressly point out                
some of the problem areas, or do a broad brush stroke and say that             
all they have done is consistent with federal law.                             
Number 1710                                                                    
REPRESENTATIVE PORTER asked if item (12) is possible, considering              
the ability that the legislature would have to change state law and            
Congress would have to change federal law.  He said, "If we could              
say that, at a point in time they are consistent, but who knows the            
next year."                                                                    
MR. JARDELL remarked that certainly there's no guarantee that the              
state law or the federal law will remain the same, and if either               
one would be changed, there would be a chance that they would be               
out of compliance with ANILCA.  He said what it's asking Congress              
to do is to state that, as it's presently written, as the committee            
has passed it, it does comply with the provisions of ANILCA.  He               
said from that point on, either ANILCA or the state law would have             
to be changed.  For the courts to come in and say that the state is            
out of compliance, there would have to be some kind of (indisc.)               
changes the idea.  He said there's no guarantee, even if the state             
requires Congress to change the definition of "rural," "customary              
and traditional,"  and "customary trade," that they won't change               
them again later on, thus, resulting in noncompliance.                         
CHAIRMAN GREEN stated that he believes the committee would be in               
less of a bargaining position because, what Mr. Jardell just                   
described, is rather loose and illdefined, and that they would be              
better off looking at the individual issues.                                   
MR. JARDELL said, "The point of making (2) and (4) as we discussed             
earlier, and hammering each detail out, was the idea that it                   
pinpoints and expressly explains to Congress what the discontent in            
state legislature is with ANILCA.  By doing it, a broad-brush                  
express, it gives Congress some wiggle room to play with."  He said            
if the committee really wants to nail down ANILCA, going through               
and naming each item they want to be changed is probably the best              
way to go.                                                                     
CHAIRMAN GREEN said he didn't think that Representative Porter                 
meant to exclude anything when he made the suggestion to combine               
items (2) and (4).                                                             
MR. JARDELL stated that he believes items (2) and (4) could be                 
joined without any problem.  He indicated if the committee wants to            
narrow the list, that is one way they can do that.                             
Number 1925                                                                    
MR. SOMERVILLE wanted to emphasize that the affirmation of the                 
state, whatever approach they decide to take, is the approach that             
the Governor's task force also took, which was the idea that the               
state is not going to have something that's perfectly aligned.  He             
said it's a clear indication to the courts that Congress has                   
examined whatever the state comes up with and that it complies with            
the intent of ANILCA.  The reason for that was so that the state               
could get going right away and that they would not forever be in               
litigation right off the bat in court, recognizing that both sides             
could change the laws.                                                         
CHAIRMAN GREEN asked if he is suggesting that it would be better to            
"delete some of this by having 12 or keep them both?"                          
MR. SOMERVILLE replied that the purpose of the list is exactly for             
the purpose that Representative Porter said, that there are some               
specific items that have been a real concern.  For example,                    
"customary trade" obviously is a commercial fishing industry, so               
that is the reason it was left it.  He stated, "But with the                   
affirmation in there, however you structure your statutes as the               
final product and Congress affirms that with the definition of                 
'customary trade' and the definition of 'customary and traditional'            
and affirms that those comply with ANILCA, they essence will be                
adopting essentially what you have crafted.  That's all we're                  
saying if, in fact, number 12 stays in there."                                 
Number 2040                                                                    
CHAIRMAN GREEN asked, "If item (12) was left in and they don't                 
either keep these or mention them somewhere and then there is a                
change in either law, they no longer conform, will it be                       
interpreted by the court that's going to end up doing this thing,              
that it's just a specific change or now that we've broken the                  
MR. SOMERVILLE replied it would depend - and the attorneys would               
argue - whether we're substantially out of compliance.  He said                
that would probably be the argument.  He indicated that it is not              
possible to put everything in HJR 66 that would cover forever the              
potential for Congress for change something and/or the legislature.            
CHAIRMAN GREEN said it sounds like Mr. Somerville is suggesting to             
keep items (2) and (4) in because if they don't specifically                   
address that, then what's to make ...                                          
MR. SOMERVILLE interjected and stated that the safest way always is            
to make sure that the courts fully understand precisely what the               
state's intentions are, and that was the reason for having them in             
there in the first place.  He said if the committee wants to                   
shorten the list, he is suggesting that item (12) does kind of                 
cover  them, depending on what their final product is, and if                  
Congress does affirm its compliance with ANILCA.                               
Number 2155                                                                    
REPRESENTATIVE JAMES referred to Mr. Jardell's testimony regarding             
the legislature's intent, and she said the committee should be                 
reminded that this is going out for a vote of the people and what              
they are sending is the people's intent.  Therefore, when the                  
committee addresses this, they need to be sure that it's not the               
committee's intent necessarily, but what the people would support.             
REPRESENTATIVE PORTER then referred back to his motion, recapping              
where the committee left off.  He said he had made a motion to item            
(5) to delete "rural" and to add "and barter" after "customary                 
trade".  He noted that during that motion, the committee was                   
discussing whether or not it is necessary to remove "rural".                   
MR. JARDELL explained that the definition of "rural" gives the                 
federal government some leeway to keep "rural" in ANILCA if they               
wish to and to define it as nonsubsistence areas or to define it to            
meet whatever statutory scheme the legislature comes up with.  He              
indicated it's not necessary to have "rural" in item (5) because               
item (11) would pick up the definition of "rural."                             
REPRESENTATIVE PORTER said the reason he wants to remove "rural" is            
because it asks that the definition of "rural" be consistent with              
the state's definition of "rural," and that the committee is not               
defining "rural."  He feels that it should be removed.                         
REPRESENTATIVE ROKEBERG said, "I take exception to that because the            
terms "rural Alaskan residents" are defined in [ends mid-speech                
because of tape change]."                                                      
TAPE 98-55, SIDE A                                                             
Number 0001                                                                    
REPRESENTATIVE ROKEBERG continued "... rural.  To be consistent                
with what Representative Porter wants to try to accomplish, I                  
believe, that it would require that the federal law be changed to              
be consistent with whatever we had to come up with."                           
REPRESENTATIVE PORTER said, "We haven't a definition for 'rural' in            
our bill, so they can't conform theirs to ours because we don't                
have one.  I'm not saying that they have to change theirs, I'm                 
saying that there's no way they can conform it to ours if we don't             
have one.  That's why I want to take it out."                                  
REPRESENTATIVE ROKEBERG said he would agree with Representative                
Porter.  He indicated that there is a definition for "rural" in the            
federal law now.                                                               
MR. JARDELL said if it's the wishes of the committee, he can                   
redraft item (5) and take out "rural", add "barter", and then                  
propose an amendment that would speak to the problem that "rural"              
creates with our statutory scheme.                                             
Number 0167                                                                    
CHAIRMAN GREEN said the committee wants a definition of "rural"                
since that is the definition that is in ANILCA.  He said the                   
committee will have to redefine that definition.                               
REPRESENTATIVE ROKEBERG stated that he might have misunderstood                
something, he said he thought the state was trying to send Congress            
a message about what they should do with their law.  He said                   
"'Barter' is already in [Section] 803; is it because it's usually              
used as a phrase?"  He said he is not sure why Representative                  
Porter wants to add that.                                                      
REPRESENTATIVE PORTER said, "The definitions of ANILCA include 803,            
the term, 'barter.'"                                                           
REPRESENTATIVE ROKEBERG replied, "Right, they do."  He asked                   
Representative Porter if has a problem with the way ANILCA defines             
REPRESENTATIVE PORTER said when the committee gets to the point of             
crafting the language for HB 406, they want to craft it so as to               
preclude the commercial application of "barter," in a noncommercial            
nature.  He said he does not know if the committee's definition                
will be any different than ANILCA's, but he wants to make sure that            
it's covered.                                                                  
Number 0350                                                                    
CHAIRMAN GREEN commented that the concept would be if the committee            
readdresses "rural" and drop the other two because they can accept             
the ANILCA definition.                                                         
REPRESENTATIVE PORTER stated that they probably will.                          
REPRESENTATIVE ROKEBERG remarked that the committee could amend it             
after the bill was finished.                                                   
CHAIRMAN GREEN asked Representative Porter to restate his motion               
because they have discussed it to the point that they should                   
understand what they are voting on.                                            
REPRESENTATIVE PORTER made a motion to delete the word "rural" on              
page 2, line 10, and to add "and barter" after the term "customary             
trade" on line 11 of HJR 66, LS1705/E.                                         
REPRESENTATIVE BERKOWITZ objected because he said he has not heard             
anyone testify about these subject matters recently.  He said he               
appreciates the expertise of Mr. Jardell and Mr. Somerville, but               
emphasized that there are probably other attorneys and other                   
interested parties who might have some views that could enlighten              
the committee as to the wisdom of taking this course.                          
REPRESENTATIVE ROKEBERG said he would agree with Representative                
Berkowitz if there is another conceptual amendment forthcoming                 
regarding the term "rural".  He asked if that is the intent of the             
sponsor of the amendment.                                                      
REPRESENTATIVE PORTER replied that he does not know.                           
REPRESENTATIVE ROKEBERG said that that was the recommendation from             
MR. JARDELL interjected and said he can draft a proposed amendment.            
REPRESENTATIVE PORTER said if Mr. Jardell drafts a proposal, then              
the committee will look at it as a proposal.                                   
Number 0475                                                                    
CHAIRMAN GREEN referred to page 2, line 11, item (5), and said he              
would make a friendly amendment to add the word "be" after the word            
"to" so that it reads correctly.  He pointed out that it looks like            
a typo.                                                                        
REPRESENTATIVE PORTER said the word "be" is in his draft, and then             
realized he was looking at Version F.                                          
CHAIRMAN GREEN noted that it has been fixed in the following                   
Version F.                                                                     
CHAIRMAN GREEN asked if there is any objection to the amendment.               
REPRESENTATIVE PORTER stated that there is an objection by                     
Representative Berkowitz.                                                      
CHAIRMAN GREEN asked Representative Berkowitz if he still maintains            
his objection.                                                                 
REPRESENTATIVE BERKOWITZ answered in the affirmative.  He said,                
"This whole debate has been very interesting, but we haven't really            
done it in an enlightened form.  We've got these major terms that              
are being thrown around.  We've heard from sort of one side of the             
issue; we haven't heard from the other side.  I don't think this is            
a balanced way to proceed."                                                    
CHAIRMAN GREEN asked what is the other side.                                   
REPRESENTATIVE BERKOWITZ replied he would like to know if there is             
anyone from the Department of Fish and Game to testify that might              
have an opinion on this issue.  He would also like to know if there            
is any federal input on the wisdom of this course.  He'd like to               
know if the Alaska Federation of Natives has anything to testify on            
this.  He noted that there are a number of interested parties and              
indicated that all the committee is doing right now is listening to            
the majority's lawyer (ph).                                                    
CHAIRMAN GREEN advised Representative Berkowitz that the terms                 
"customary and traditional" and "customary trade" are already in               
ANILCA, and all that the committee is trying to do is add "and                 
barter" to item (5).                                                           
Number 0550                                                                    
CHAIRMAN GREEN called for a roll call vote on the motion made by               
Representative Porter.  Representatives James, Porter, Rokeberg,               
and Green voted in favor of the motion.  Representatives Berkowitz             
and Croft voted against it.  Therefore, the motion carried by a                
vote of 4-2.                                                                   
CHAIRMAN GREEN asked what the wish of the committee is regarding               
continuing the committee meeting due to the lateness of the hour.              
Representative Rokeberg stated that he has to leave to chair the               
House Labor and Commerce Committee.  Chairman Green advised the                
members that the committee will take up this matter again at a                 
later date.  [HB 406 was held over.]                                           
Number 0660                                                                    
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at             
3:05 p.m.                                                                      

Document Name Date/Time Subjects