Legislature(1997 - 1998)
04/03/1998 01:23 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ 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,
PEARCE
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
CONSENT
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,
HUDSON
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
Alaska.
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
close.
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
legislation.
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
prioritize."
Number 1670
REPRESENTATIVE ROKEBERG asked for clarification of what Chairman
Green just said and asked, "HJR 66, Version F, is that the right
one?"
CHAIRMAN GREEN answered yes.
REPRESENTATIVE ROKEBERG asked if there is another Version E of the
bill.
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
66."
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
Resources?"
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
call.
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
committee."
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
amendment.
Number 2200
CHAIRMAN GREEN said he withdraws his request to adopt the E
Version.
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
it."
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
error.
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
Office.
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
(indisc.).
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
delegation."
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
ANILCA.
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
versions.
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
arguments."
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
Berkowitz.
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
essential.
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
game."
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
(4)?"
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
committee.
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
once.
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
gone.
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
agreement?"
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
"barter."
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.
0400
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
staff.
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.]
ADJOURNMENT
Number 0660
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at
3:05 p.m.
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