Legislature(1993 - 1994)
02/16/1994 05:00 PM House O&G
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE SPECIAL COMMITTEE ON OIL & GAS
February 16, 1994
5:00 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Pete Kott (arrived at 5:10 p.m.)
Representative Gary Davis
Representative Jerry Sanders
Representative Joe Sitton
Representative Jerry Mackie
MEMBERS ABSENT
Representative Harley Olberg
OTHER LEGISLATORS PRESENT
Representative Mike Navarre
Representative Bill Williams
Senator Suzanne Little
Senator Judy Salo
COMMITTEE CALENDAR
*HB 426: "An Act establishing the Chickaloon Flats Critical
Habitat Area."
PASSED OUT OF COMMITTEE WITH INDIVIDUAL
RECOMMENDATIONS
*HB 474: "An Act modifying administrative procedures and
decisions by state agencies that relate to uses
and dispositions of state land, property, and
resources, and to the interests within them, and
that relate to land, property and resources, and
to the interests within them, that are subject to
the coastal management program; and providing for
an effective date."
HEARD AND HELD OVER
PREVIOUS ACTION
BILL: HB 426
SHORT TITLE: CHICKALOON FLATS CRITICAL HABITAT AREA
SPONSOR(S): REPRESENTATIVE(S) BUNDE
JRN-DATE JRN-PG ACTION
02/02/94 2219 (H) READ THE FIRST TIME/REFERRAL(S)
02/02/94 2219 (H) O&G, RES, FIN
02/16/94 (H) O&G AT 05:00 PM CAPITOL 124
BILL: HB 474
SHORT TITLE: ADMINISTRATIVE ACTION RELATING TO LAND
SPONSOR(S): RESOURCES
JRN-DATE JRN-PG ACTION
02/14/94 2375 (H) READ THE FIRST TIME/REFERRAL(S)
02/14/94 2375 (H) O&G, RESOURCES, JUDICIARY
02/16/94 (H) O&G AT 05:00 PM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE CON BUNDE
Alaska State Legislature
Capitol Building
Juneau, Alaska 99801
Phone: (907) 465-4843
POSITION STATEMENT: Sponsor of HB 426
FRANK RUE, Director
Division of Habitat & Restoration
Department of Fish & Game
1255 W. 8th Street
Juneau, Alaska 99802
Phone: (907) 465-4105
POSITION STATEMENT: In Support of HB 426
JOHN HENDRICKSON, President
Alaska Waterfowl Association
3105A Lakeshore Drive, Suite 102
Anchorage, Alaska 99517
Phone: (907) 243-3235
POSITION STATEMENT: In Support of HB 426
JAMES EASON, Director
Division of Oil & Gas
Department of Natural Resources
3601 C Street, Suite 1380
Anchorage, Alaska 99510-0734
Phone: (907) 762-2547
POSITION STATEMENT: In Support of HB 474
TOM LOHMAN
North Slope Borough
Box 69
Barrow, Alaska 99723
Phone: (907) 852-0350
POSITION STATEMENT: In Opposition to HB 474
NORMA CALVERT
Marathon Oil
P.O. Box 196168
Anchorage, Alaska 99519
Phone:(907) 564-6474
POSITION STATEMENT: In Support of HB 474
DOUG ROBBINS
Marathon Oil
P.O. Box 196168
Anchorage, Alaska 99519
Phone: (907) 564-6474
POSITION STATEMENT: In Support of HB 474
MAUREEN McCREA
6906 Big Mountain Drive
Anchorage, Alaska 99516
Phone: (907) 345-2453
POSITION STATEMENT: In Opposition to HB 474
LOREN FLAGG, Executive Director
Kenai Peninsula Fisherman's Association
34824 K Beach Road
Soldotna, Alaska 99669
Phone: (907) 262-2492
POSITION STATEMENT: In Opposition to HB 474
SUSAN FLENSBURG
P.O. Box 394
Dillingham, Alaska 99576
Phone: (907) 842-2666
POSITION STATEMENT: In Opposition to HB 474
NANCY WAINWRIGHT
13030 Back Road
Anchorage, Alaska 99515
Phone: (907) 345-5595
POSITION STATEMENT: In Opposition to HB 474
NINA FAUST
Kachemak Bay Conservation Society
P.O. Box 846
Homer, Alaska 99603
Phone: None Given
POSITION STATEMENT: In Opposition to HB 474
EDGAR BAILEY
P.O. Box 2994
Homer, Alaska 99603
Phone: None
POSITION STATEMENT: In Opposition to HB 474
RIKKI OTT
United Fishermen of Alaska
211 Fourth Street #112
Juneau, Alaska 99802
Phone: (907) 586-2820
POSITION STATEMENT: In Opposition to HB 474
JOEL KAWAHARA
United Fishermen of Alaska
211 Fourth Street #112
Juneau, Alaska 99802
Phone: (907) 586-2820
POSITION STATEMENT: In Opposition to HB 474
STAN STEPHENS
Prince William Sound Regional Citizens Advisory Council
Valdez, Alaska 99686
Phone: (907) 835-4731
POSITION STATEMENT: In Opposition to HB 474
CHIP TREINEN
Area K Seiners Association
P.O. Box 2399
Kodiak, Alaska 99615
Phone: (907) 486-4686
POSITION STATEMENT: In Opposition to HB 474
KARL KIRCHER
Kenai Peninsula Fishermens Association
Kasilof, Alaska 99610
Phone: None Given
POSITION STATEMENT: In Opposition to HB 474
JOHN BOCCI
Cordova District Fisheries United
P.O. Box 1312
Cordova, Alaska 99574
Phone: (907) 424-5182
POSITION STATEMENT: In Opposition to HB 474
CHUCK DEGMAN
Bering Straits Coastal Resource Service Area
Unalakleet, Alaska 99684
Phone: None Given
POSITION STATEMENT: In Opposition to HB 474
TAPE 94-7, SIDE A
Number 002
CHAIRMAN GREEN called the meeting to order at 5:07 p.m.
HB 426 - CHICKALOON FLATS CRITICAL HABITAT AREA
Number 008
REPRESENTATIVE CON BUNDE stated that Chickaloon Flats is an
area on the northeast side of the Kenai Peninsula, on
Turnagain Arm, facing the Alaska Coastal Refuge. He said
Potter Flats is just immediately across the inlet. He said
the area has a local nesting population of ducks and geese
and it is an important resting and feeding area, as well as
a migration point in the fall. He stated the area serves
ducks, geese, and shore birds, and the area has up to 25,000
birds in a day, particularly in the fall migration. He
stated the birds use the area as a staging area when Portage
Pass is closed due to bad weather. He said Chickaloon is
the primary place in the Turnagain Arm for birds to have a
place to rest and feed. He stated that Alaska has some
other critical habitat areas and bird sanctuaries, the
Mendenhall State Game Refuge, Anchorage Coastal Refuge,
Trading Bay State Game Refuge, Palmer Hay Flats, and Susitna
Flats. He said these areas range from 300,000 acres to
14,000 acres. He stated the Chickaloon Flats area would be
approximately 22,000 acres, which is a small addition to the
system. He said the purpose of HB 426 is to assure adequate
habitat for waterfowl, rather than to create a stumbling
block to future development of our resources. He said there
are currently no valid oil or gas leases in the purposed
critical habitat area and it would not be disrupting any
current plans for development. He asked the committee to
support HB 426.
Number 049
REPRESENTATIVE GARY DAVIS moved that the committee adopt the
committee substitute for HB 426. There were no objections.
Number 054
REPRESENTATIVE JERRY MACKIE asked if oil development,
potential timber development, hunting, fishing and other
kinds of development would still be allowed.
REPRESENTATIVE BUNDE stated it would be allowed if it does
not disrupt the critical habitat. He said that hunting,
fishing, hiking, birding would not be a problem.
REPRESENTATIVE MACKIE asked what HB 426 does if one can have
oil production and other development. He asked if there was
a planned residential development for the area. He said
usually a critical habitat area is exactly that - it locks
the area up from development to protect a certain species of
game or birds. He stated he did not understand what HB 426
does.
Number 071
REPRESENTATIVE BUNDE stated his intention was that
development could not take place if it would be disruptive
and displace the resting birds. He said if development is
mutually compatible, there would be no reason that it could
not take place.
Number 077
REPRESENTATIVE MACKIE stated the example Representative
Bunde used was that if it was a condominium building it
probably would not be compatible with the ducks, but if it
was an oil drilling rig, it would be compatible. He asked
for the differences between the two scenarios and how they
might affect ducks.
Number 080
REPRESENTATIVE BUNDE said he could see that one could have
potential development that would have minimal, if any,
impact and you could have potential development that would
have maximum impact as far as destroying actual resting
areas.
Number 089
REPRESENTATIVE MACKIE said he believed the State does have
regulations currently in place that do not allow for a paved
highway to go through the marsh. He said they were called
wetlands and critical habitat area regulations. He said the
State has regulations protecting these type of areas.
Number 098
CHAIRMAN GREEN stated for the record that Representative
Mike Navarre joined the committee at the table.
Number 100
FRANK RUE, DIRECTOR, DIVISION OF HABITAT AND RESTORATION,
DEPARTMENT OF FISH AND GAME (ADF&G), stated there are three
types of state land. He said there are park lands, which
are withdrawn from the public domain and are the most
restrictive state land designations the legislature can
create. He stated there are refuges, critical habitat areas
or sanctuaries, which are a less restrictive designation by
the legislature because the Department of Natural Resources
(DNR) retains authority, but the legislature has said that
ADF&G must approve development on the area and give it
permit. He said that other activities can go on in the
area, it has not been withdrawn from public domain, but the
legislature has put a higher standard for fish and wildlife
by having ADF&G authorize activities in the area. He said
he third type of land is general state lands which ADF&G
does not authorize or permit. He said that ADF&G advises
DNR about an area in a general state land situation. He
said in the case of surface entry for oil and gas activity
in Chickaloon Flats, it is a fairly small area and so ADF&G
might limit the activity to the winter. He said ADF&G might
recommend the avoidance of seismic work at the height of the
bird migration. He said ADF&G supports HB 426 and they
support the committee substitute language that DNR wanted
because it wanted to make sure oil and gas was allowed as an
option and that is fine with ADF&G. He said that ADF&G
thinks HB 426 is a good idea because the Chickaloon Flats is
a very important area for waterfowl migrating through the
area.
Number 140
JOHN HENDRICKSON, PRESIDENT, ALASKA WATERFOWL ASSOCIATION
(via Anchorage), stated he is also State Chairman of
Waterfowl, USA. He said the Alaska Waterfowl Association,
along with ADF&G and many other groups, has been working for
about 20 years to create a refuge and critical habitat
system on Cook Inlet that was compatible with multiple use
activities and getting along with the oil and gas industry,
which the Alaska Waterfowl Association regards as very
important. He said that Chickaloon Flats is very important
for migrating birds. He stated that when the weather is bad
to the south of Prince William Sound, birds pile up in
Southcentral Alaska and they have to have a place to go and
one of the places is Chickaloon Flats. He said all sorts of
species of ducks and geese use Chickaloon Flats in the fall
and there are some local nesting populations of green winged
teal and pintail mallards. He said in the spring,
Chickaloon Flats is also used by geese, shore birds, and
ducks. He said the Alaska Waterfowl Association regards HB
426 as a very good bill. He said the key of HB 426 is that
it gives ADF&G some oversight so that mistakes are not made
in the future. He urged the committee to support HB 426.
Number 177
REPRESENTATIVE MACKIE asked Representative Bunde in which
district Chickaloon Flats is located.
Number 178
REPRESENTATIVE BUNDE stated that Chickaloon Flats is located
in Representative Navarre's district.
Number 179
REPRESENTATIVE MACKIE asked Representative Navarre how he
felt about HB 426.
REPRESENTATIVE NAVARRE stated that he was looking at the
bill for the first time so he was still formulating his
opinion. He said in general, he thought he supported it,
with a reservation for oil and gas leasing.
Number 184
REPRESENTATIVE MACKIE made a motion to move HB 426 out of
committee by unanimous consent, individual recommendations
and zero fiscal note.
REPRESENTATIVE DAVIS stated that he noticed on the map an
island called Bird Island. He asked if the island was
privately owned and if it is within the proposed critical
habitat area and how might it affect the ownership and
ownership activity.
Number 192
REPRESENTATIVE BUNDE stated that to his knowledge, Bird
Island is privately owned and the critical habitat
designation would have no affect on the owners. He said
they have access via the pipeline road.
Number 198
CHAIRMAN GREEN asked if there were any objections to
Representative Mackie's motion. There were none.
HB 474 - ADMINISTRATIVE ACTION RELATING TO LAND
Number 243
JIM EASON, DIRECTOR, DIVISION OF OIL & GAS, ALASKA
DEPARTMENT OF NATURAL RESOURCES (DNR), stated the Hickel
Administration is fully supportive and committed to working
with the legislature to assure passage of HB 474. He said
HB 474 does affect disposals of interests in resources other
than oil and gas, however oil and gas is the primary
catalyst for HB 474. He stated the problem the state has
with oil and gas leasing is one that affects mining and
other disposals where best interest findings under Title 38
and coastal zone management consistency determinations under
Title 46 have to be written and issued. He said HB 474 is
designed to do several things. The first is to clarify the
legislature's intent that best interest findings and coastal
zone consistency determinations under Title 38 and Title 46
will be formulated and issued under certain procedures, and
depending upon certain information, can be in a staged
fashion if there is a series of developments or projects
that are intended to occur. He stated the legislation would
make explicit that the director of the Division of Oil and
Gas, through a delegation from the DNR commissioner would
have the authority to establish the scope of the
administrative review for a disposal and of the written
finding in support of that disposal. He said the scope
would be set or established and would address the issues of
concern that the director is asked to look at under the
statutes. He said most importantly, it would be the
legislature's intent that DNR consider things that are not
speculative, that are reasonably foreseeable, and that are
direct effects. He said the reason for the language is very
important because the problem that brings the Division of
Oil and Gas to the committee is one that extends through
several adverse court decisions on Coastal Zone Management
consistency determinations and best interest findings. He
stated the courts have essentially substituted their
judgment for that of the legislature and the Administration
in deciding how much is enough and how much to consider in a
finding for a consistency determination. He said the scope
of HB 474 would be also intended to include applicable law
and facts pertaining to the land, resources, or property
that the director of Oil and Gas finds material to the
determination. He said it is important that the Division of
Oil and Gas would not be held responsible for things that
the division simply does not know or cannot know. He said
it was also important that the public have an opportunity to
make known during the division's review process those things
that the division does not know. He said that finally, the
scope also can be limited to issues that are found by the
director to be relevant. He stated a very important feature
of HB 474 is that it addresses the question of whether or
not the division could review and issue best interest
findings and consistency determinations as a discreet phase
of multi-phase project. He said that currently the courts
will not allow that and the courts want the division to be
able to predict with some certainty what the future events
are that will follow a lease sale. He stated the courts
claim that the division must be able to do that in order to
confirm that the division's mitigation measures and the
lease sale terms do in fact make the sale consistent with
the Coastal Zone Management Act and with the best interest
standards under Title 38. He said the Division simply
cannot do that and it believes there is enough common sense
within the committee to understand that the division is
telling the truth. He said he did not believe that anyone
could predict the outcome of Lease Sale 78, if it had been
held, or if it is ever held. He stated the division has a
process in place now, and will continue to have a process in
place, that assures that subsequent activities, requests to
drill wells, requests to conduct geophysical surveys, and
other activities also undergo Coastal Zone Management Review
by all of the agencies and the public so there is an
opportunity to further condition any lease that is issued as
a result of a lease sale. He stated the division currently
goes through this process, as it has in the past, and
recently the courts have been ruling that it can no longer
carry out this process. He said the courts have ruled that
the division must know in advance in order to certify
consistency before it issues the lease. He stated HB 474
would acknowledge the legislature's intent that the Division
be allowed to issue best interest findings based upon the
scope that was described previously and to issue them in
discreet phases, but only if the division can condition
subsequent activities so it is certain that it can look at
them and make certain that the activities are consistent
with the Coastal Zone Management Act in future permit
applications. He said the division thinks that it is a
common sense solution to an extraordinarily complex problem
and one that is growing more complex as time goes on. He
said the committee would hear many comments and themes on HB
474. He said the division passed out a series of four small
discussion papers and he encouraged the committee to read
them. He said the Alaska Supreme Court rejected DNR's
arguments that it cannot understand the events that are
going to follow from a mining/offshore prospecting permit
with any specificity. He said the division thinks the
record is clear, particularly in light of the Lease Sale 78
injunction, there is a pattern and that pattern will not go
away. He said he could tell the committee based on his
personal experience, that absent legislative intervention
and redirection of legislative intent, every lease sale that
the division will propose to hold, will be subject to the
same vulnerability if it is in the coastal zone and if it
has a best interest finding, which all of them must. He
said that this point was very important to realize. He said
the system truly is in a bad situation and it needs help.
He stated the division cannot fix the situation and the
courts are unwilling to help the division fix it with any
specificity. He stated the time had come for the division
to work with the legislature to ensure that the problem is
fixed. He said the committee would hear that DNR is trying
to avoid doing a good job. He said the trend of best
interest findings since the statute in Title 38 was adopted
has gone from a 10-15 page finding to a multi-hundred page
finding. He said the record in Lease Sale 78 is between
15,000-20,000 pages of documents. He said the process
occurred over four years leading to the sale. He said the
record has grown exponentially and yet DNR is told that it
is not doing enough, it could do more, and it has not
considered the right issue under the right circumstances.
He said under those circumstances, he did not know what to
do and if the committee reviews the record with him, it will
come to the same conclusion. He said the courts are telling
the division that the E.I.S. process and the N.E.P.A.
process the federal government uses is a better way. He
said that was a judgment for the committee to make as
policymakers. He said the committee would also hear that
the lease sales simply have to be conditioned in more detail
than the Division is doing now because it cannot
subsequently condition those leases so as to prevent entry
in the event it determines that entry is necessary. He said
that was not true and as a matter of law, the Division
retains in its lease and has the authority to prevent access
to the lease in its entirety. He said that fortunately, the
division does not often have to use it, but the record
speaks for itself. He said that timing is very important.
He said the division is issuing its final best interest
finding for Lease Sale 79 at Yakataga on May 12, 1994. He
said if anyone chooses to litigate it, and the Alaska
Supreme Court has not acted before then to reverse Judge
Cranston's decision in Lease Sale 78, it is highly likely
that anyone who wants to challenge that sale will get the
same result, since Judge Cranston's decision will be the
standing decision at the time of injunction. He said his
final comment was to urge the committee to look at HB 474
very carefully and to understand that it is a very serious
problem, but it is a problem that Mr. Eason believes can be
fixed without diminishing public participation.
Number 444
REPRESENTATIVE JOE SITTON said it seemed to be the year of
determining what legislative intent is. He said he would
like to hear Mr. Eason's speculation on why the state has
had such a string of adverse court decisions. He said there
is a body of opinion that thinks it is because of the poor
work of the division. He said that was not necessarily his
view, but people think the division does sloppy work and the
state ends up in court, as a result.
MR. EASON said the instruction that was issued by Judge
Cranston was the first in the state's history. He said he
could not speculate better than anyone else, but he had
speculated before the Lease Sale 78 injunction that it would
be issued because he believed it was inevitable that a
Superior Court judge was ultimately going to be influenced
by the Supreme Court's decisions. He said the division had
a record of all litigation that it was involved in. He said
in every case the division was found to be in compliance
with the best interest findings and the consistency
determinations in Superior Court, but each ruling was
reversed unanimously by the Alaska Supreme Court.
REPRESENTATIVE SITTON asked what happened in between the
rulings of the courts.
Number 470
MR. EASON stated that Representative Sitton would have to
ask the Supreme Court that question. He said his
speculation was that Superior Court judges read Supreme
Court justices' opinions. He said if the Superior Court
kept sending opinions up that said something has been done
right and it kept being told that it was being done wrong,
ultimately the Superior Court judge would say that it is
wrong first and let the Supreme Court sort it out.
Number 477
CHAIRMAN GREEN stated that he wanted to recognize
Representative Bill Williams, Senator Judy Salo and Senator
Suzanne Little.
Number 485
REPRESENTATIVE SITTON said that for four years he served as
a director in state government and he would have been
pleased to be given the powers as a director that Mr. Eason
is asking for in HB 474. He asked if Mr. Eason thought he
needed such broad powers to determine the scope of things
and he thought it made Mr. Eason unusual among the hundreds
of state directors.
MR. EASON stated the powers are not for the Director of Oil
& Gas, they are for the DNR commissioner's delegation.
Number 496
REPRESENTATIVE SITTON said that effectively the powers would
be for Mr. Eason, since he is the Director of Oil and Gas
Division.
Number 498
MR. EASON said, in fact the legislature has made that
delegation in theory, and it is a matter of if the
legislature wants that delegation to be made by the
Administration or the courts. He said that someone
ultimately has to have that delegation.
Number 504
REPRESENTATIVE SITTON asked if the legislature wanted to
delegate the powers at all. He said the legislature would
be giving DNR some very broad powers under HB 474. He said
there is element of trust and the legislature is building a
tool for the future and the legislature did not know with
whom it would be dealing.
MR. EASON stated he agreed with Representative Sitton that
the delegation of powers is a decision of the legislature.
He said it is a power the legislature has given to DNR and
it is a power that it can withdraw.
Number 516
REPRESENTATIVE SITTON said he was not suggesting withdrawing
any power from DNR, but he was suggesting that the
legislature should be very careful and deal very carefully
with HB 474. He stated he intends to read things very
carefully because he is totally unsatisfied with the quality
of work of the Alaska State Legislature that keeps the state
in court all of the time. He said it was the legislature's
own work that he was questioning also.
Number 527
REPRESENTATIVE MACKIE asked Chairman Green whether or not it
was good public policy to allow for a mid-level bureaucrat,
such as Mr. Eason, to have that kind of discretion over
people's lives. He said good relationships can happen when
one has Coastal Zone Management and other types of
safeguards in place that require all parties involved to
meet their level of responsibility. He said the possibility
of delegating total discretion to one mid-level government
official was why the hearing room was full and why there
were people on teleconference. He said he thought that it
gave people much concern. He asked Mr. Eason if he felt
comfortable accepting that responsibility and recommending
that the Director of the Oil & Gas Division be given that
authority.
Number 550
MR.EASON stated the final decision making, the actual
issuance of the finding and the consistency determination
for a lease sale, has to rest with someone, but in fact the
decision making is not that person's alone. He said the Oil
& Gas Division does issue the consistency determinations but
it has to have the concurrence of ADF&G, Department of
Environmental Conservation (DEC), and the Division of
Governmental Coordination (DGC). He said the Division of
Oil & Gas does not issue the determination and make the
final decision on its own. He said if the other agencies do
not concur with the consistency terms, the division's
consistency determination cannot be issued.
Number 566
CHAIRMAN GREEN asked if it wasn't actually the DNR
commissioner who delegates.
Number 570
MR. EASON stated that was correct. He said it is the DNR
commissioner's decision. He stated that an appeal of a
decision in a best interest finding goes to the DNR
commissioner and ultimately it is the commissioner's
decision. He said the findings are actually issued with a
disclaimer that they are made with the advance knowledge and
concurrence of the DNR commissioner. He said final
authority does not lie with the Director of the Division of
Oil & Gas.
Number 581
REPRESENTATIVE NAVARRE stated he has watched Mr. Eason
through several administrations and he thought that Mr.
Eason has done a good job as Director of Oil & Gas. He said
he would not necessarily be concerned about Mr. Eason, but
he had some concerns about the power that the legislature
would be vesting in the Director of Oil & Gas through the
DNR commissioner. He said he thought that it could lead to
some potential problems in either seeking a statutory change
at some point in the future in order to undo it, or perhaps
in court. With regard to the ability to prevent or
condition future provisions of the lease sale through
permitting and other things of that nature, he asked if it
was true that it only could be done to a certain degree. He
asked Mr. Eason what would happen if the state sold a lease.
He asked if there would be a right to entry or to develop
the lease.
Number 601
MR. EASON stated there is no right to enter. He said DNR
has the right to condemn under the lease. He said the
language is essentially a reasonable opportunity to develop,
but it is clear the division has the authority if it
determines that for environmental reasons it is no longer in
the state's interest to do that.
Number 609
REPRESENTATIVE NAVARRE asked what happens then.
Number 610
MR. EASON stated the division has to repurchase the lease.
He said there are standards set out in the lease on how that
is done. He said it is a step that the division would
probably be very concerned about before it would take it.
Number 621
CHAIRMAN GREEN reminded Representative Navarre about the
Kachemak Bay buy-back in the late 1970s.
Number 623
REPRESENTATIVE NAVARRE stated that he did remember the
buy-back and that is why he thought Lease 78 probably should
not have been on the table in the first place, given the
history of that portion of the lower Cook Inlet. He asked
if the term "nonspeculative" was defined anywhere in
statute.
Number 635
MR. EASON stated he did not believe "nonspeculative" was
defined in Alaskan statute. He said the term, however, was
defined and when the courts do not have a defined term in
statute they refer to the dictionary. He said there is an
important linkage between the terms and they are there to
establish a theme. He said the theme is only conveyed by
the sequence of the terms, given the litigation and the
findings the state has had in the litigation. He said he
hoped the legislature would want the courts to understand
that it seriously means that it does not want speculation,
multiple scenarios, or hypothecated scenarios to drive the
mitigation measures and the decisions of whether to lease
because the state simply cannot do that. He said the state
did not know what the outcome would be and the only way to
talk about things in a way people can really judge the
adequacy of mitigation and the ability to control
development, is to talk about the facts, the things that are
made known, and the things that can be reasonably expected
based on the record. He said this theme, coupled with a
provision that assures that one can condition future
activities by permit, is simply the only practical way to
approach the problem if the state wants to avoid a
continuing process of arguing about things that nobody would
know for sure if they would ever occur.
Number 674
REPRESENTATIVE NAVARRE asked how HB 474 would change the
public input, particularly at the municipal government
level, on both the Coastal Zone Management Act and Title 38
best interest findings.
Number 686
MR. EASON stated that HB 474 would have no affect on the
current process of public input.
Number 706
REPRESENTATIVE NAVARRE referred to page two, line 19. He
said in the final analysis, the Director of Oil & Gas is
allowed to determine what is in the best interest of the
state.
Number 724
MR. EASON said the state's findings are written
rationalizations of what the state thinks the important
issues are, why the state thinks they are important, and why
the state does not think others are relevant or important.
TAPE 94-7, SIDE B
Number 001
MR. EASON said the Division of Oil & Gas often finds
comments which, in Mr. Eason's judgment, are not relevant to
the determination of whether the lease sale is in the best
interest. He said he makes that determination when he looks
at the standards in AS 38.05.035(g), which specify a series
of issues and a context in which the state considers them.
He said the state will receive many comments which are
clearly irrelevant, unrelated, or the state simply does not
know what the person intended the state to do with them. He
said that the division will rationalize the comments and
address them in writing and explain why the state thinks
they are or are not relevant. He said he believed there
will always be relevant and irrelevant issues raised in the
consideration of something as major as a lease sale.
Number 013
SENATOR SUZANNE LITTLE said under HB 474 the findings that
the director will write will be narrowed to dealing with
"...reasonably foreseeable, nonspeculative, direct effects."
She asked Mr. Eason what the reports will deal with.
Number 018
MR. EASON stated under HB 474, there will be no substantive
change in the quality of the work, or in the scope of the
work, other than the scope will focus on things that the
state hopes a court will ultimately determine are reasonably
foreseeable, nonspeculative and direct. He said the
legislation is designed to avoid arguments about whether or
not the state should consider the Gates of the Arctic and
then if the state should consider the Gates of the Arctic,
should the state consider the effects of a North Slope sale
on Anchorage and whether the state should consider the
effects on the West Coast oil market and those sorts of
arguments. He said the dilemma is that the state is
responsible for conducting a four to five year program, a
very detailed process, where the state is totally open,
everything is done publicly. He said the state issues the
final decision and it receives a one paragraph allegation of
what it has not done. He stated the courts receive the
allegation and find that the state has not done it. He said
the division is asking the legislature to help the state
bring some balance back to the process.
Number 035
SENATOR LITTLE stated she understood Mr. Eason's
frustration. She said she was trying to think of one thing
that would be reasonably foreseeable, nonspeculative, and a
direct effect of a lease sale and she could not think of
anything. She wondered if Mr. Eason might be able to give
her an example. She stated she believes that a finding
would be a written title across the page and nothing on the
rest of it.
MR. EASON said based on his personal experience, he is
convinced that neither the Supreme Court nor the Superior
Court would allow that to happen.
Number 042
SENATOR LITTLE asked Mr. Eason if public input will be
narrowed down to the scope of the director's determination.
MR. EASON stated it would not. He said public input would
be exactly what it is presently, perhaps greater. He said
there will be a burden on the part of the Division of Oil &
Gas to make a written rationalization of the relevance of
all the standards that are set out and to address the issues
raised. He said the division will address all of the
comments received, as it has to under the statutes. He said
the division will have to rationalize the standards, but the
standards that are set are certainly not designed to limit
public opportunities, they are designed for the eventuality
that if the state finds itself in court again, the court
will be forced to be constrained in looking at the written
document to be sure of whether the state has properly
rationalized and accepted or rejected information that is
suggested to be speculative.
Number 060
SENATOR LITTLE stated that HB 474 addresses all actions that
require best interest findings, not only for oil and gas,
but for other issues as well. She asked what types of
actions fall under the best interest finding.
Number 065
MR. EASON stated the actions could be agricultural
disposals, timber disposals, certain types of mining
disposals, or oil and gas leasing. He indicated this was
not an exhaustive list.
Number 070
SENATOR LITTLE asked if a recreational lease, such as the
one occurring for Hatcher Pass, would be involved.
Number 072
MR. EASON indicated that recreational leases would be
involved. He said the intent, regardless of the disposal,
is to apply the same standard so that decision making on a
disposal decision rests on facts and not speculation. He
said that it was the state's belief that all disposals of
resources should have that standard, otherwise the courts
are the only arbiters of what disposals happen.
Number 080
TOM LOHMAN (via Barrow) stated that he works for the North
Slope Borough on coastal management issues. He said it was
clear to a lot of people who work in coastal management
around the state, including some in state agencies, that HB
474 is not the way to solve whatever problems exist. He
said DNR feels that it is being asked to consider too many
potentially far removed impacts of state lease sales. He
stated the DNR does not like its lease sales held up in
litigation for months or years. He said if those are
legitimate concerns, he does not think the language in HB
474, or the kind of frustration that it would create within
the public, is going to either reduce litigation or give the
public a better feeling about the whole process. He said
there are a lot of people who have been participating in
working groups for the past couple of years trying other
ways to improve the process to give people a better feeling
about the process. He said a lot of the lawsuits that the
state has seen have been over the process and the public's
frustration with it, rather than the substance of DNR's
review. He said it is absurd that in light of what is
essentially a partnership between the state and the local
coastal districts with improved programs, the committee did
not have the legislation sent down directly to the coastal
districts or to members of the Coastal Policy Council,
either before it was introduced or soon thereafter, so it
could be reviewed in time to participate fully and
meaningfully in the committee hearings. He urged the
committee to not move HB 474 in order to allow other efforts
to improve the Coastal Management Program, as well as
Alaskan citizens' feelings about the consistency review
process. He said it might not be a complete solution, but
there are a lot of people involved in Coastal Management on
a daily basis. He stated those people have put a lot of
work into efforts to improve the process and those people
think they will solve a good portion of the problem. He
said he thought the committee would do very well to hear
from different agencies such as DGC or the Department of
Law, both of which have been working on the issue for a very
long time in open forums where everybody speaks their peace,
industry included. He said he hoped that the committee
would let DNR go back to the table to try to work within the
same working group setting that he has been working in, and
try to improve the procedures to allow that openness early
on in the process and avoid the eleventh hour conflicts over
state lease sales.
Number 129
NORMA CALVERT, MARATHON OIL (via Anchorage), said Marathon
Oil supports the principles and intent of HB 474. She said
Marathon believes that HB 474 provides an appropriate
mechanism for all citizens to express legitimate concerns in
a public review process and Marathon supports the defined
authority of the DNR commissioner and the language to limit
the scope of best interest findings to an analysis of
reasonably foreseeable, nonspeculative, direct effects of
leasing. She said continued delay or cancellations of lease
sales will result in fewer companies investing time and
energy to identify potential production areas. She said the
decline of state revenues will be accelerated and reduced
investment will increase unemployment. She said Marathon
Oil does not believe the state of Alaska or its citizens can
afford to curtail sound, responsible development of its most
significant resource. She said Marathon Oil supports sound,
responsible development of Alaska's natural resources and it
believes that HB 474 provides definition and certainty in
the leasing process that will allow such development.
Number 158
DOUG ROBBINS, MARATHON OIL (via Anchorage), said Marathon
regards itself as a partner with the state in producing the
resources and providing for the welfare of Alaskans. He
said Marathon has a need for regular, predictable lease
offerings to plan investigations and investments. He asked
the legislature to provide a clear direction to the agencies
and to the courts to allow a smooth lease sale process.
Number 186
MAUREEN McCREA (via Anchorage) stated her opposition to HB
474 is based on several concerns. She said it seemed to be
a hasty response to recent court decisions. She stated HB
474 seems to imperil the state's position in reviewing
topical federal activities. She said the state has actively
pursued its ability to review federal activities for
consistency with its Coastal Management Plan, including
Outer Continental Shelf lease sales and timber sales. She
said in the mid-80's, in response to some concern expressed
by the MMS, she conducted some research to determine if
MMS's perception that federal oil and gas sales were held to
a higher standard of consistency review than state or
private activities were held. She said she was able to
conclude from that research that it was not necessarily an
accurate perception. She said that there seemed to be a
fairly even treatment of comparable activities. She said HB
474 would imperil that conclusion unless the state also
plans to limit its review of federal activities to only
those actions that would occur beyond three miles of the
state shoreline and only for those activities that the state
knew would happen. She said in 1990, the federal government
passed amendments to the Coastal Zone Management Act, which
exemplified the need to consider potential cumulative and
secondary impact of activity. She said the very elements
that the state is considering removing, jeopardizes the
state's participation from that federal program and would
possibly make moot the state's ability to look at federal
activity for consistency. She stated she wanted to remind
the committee that MMS also has the ability to rescind
leases due to environmental concerns, such as the Bristol
Bay buy-back. She said she wanted to emphasize that
cooperation has worked.
Number 255
LOREN FLAGG, EXECUTIVE DIRECTOR OF KENAI PENINSULA
FISHERMAN'S ASSOCIATION (via Kenai), said he was concerned
that HB 474 is being fast tracked through the legislature.
He said it was only within the last hour that he received a
copy of the legislation and was informed there was a
hearing. He demanded a fair opportunity to review the bill
and to make more detailed comments. He said the fast
tracking of HB 474 runs parallel to the problems encountered
with Lease Sale 78, where the final comment deadline was
scheduled during the summer when fishermen are busy and
unable to spend their time to participate in the comment
process. He said once he reviewed HB 474 it was obvious
that it represented some major changes in the coastal
management program. He said it appeared to him that the
Administration is trying to cover up DNR's incompetence in
handling Lease Sale 78. He said the DNR has tried to
subvert the requirements under the Coastal Zone Management
Act. He urged the legislature to take a closer look at the
operations within DNR and those responsible for conducting
those operations. He referenced page two, lines seven
through nine of HB 474. He said he had a serious problem
with limiting the scope of the review to only
nonspeculative, direct effects of the uses proposed. He
stated in any finding of what is in the best interest of the
state potential impacts must be considered. He said HB 474
would lead to more problems in the courts, not less. He
said he also has a serious problem with page four, lines 15
and 16. He said it was absurd to limit the scope of the
administrative review to only fish and wildlife species and
their habitats within a lease sale area. He said in Cook
Inlet, the tides and currents are such that the impacts of
an oil spill within a lease area are almost immediately
thrust to areas adjacent to the lease area. He asked how
the state could not consider cumulative impacts in its
administrative review. He urged the committee not to move
HB 474. He said there is no problem with the laws and
regulations and that no state lease sales have occurred
without court delays.
Number 308
REPRESENTATIVE NAVARRE said he knew that Chairman Green was
interested in HB 474. He addressed fast tracking and said
it occurs when legislation is moved through a committee and
through the legislature without due deliberative process and
public input. He said he thought the committee was trying
to recognize there are people who think there are problems
with the lease sale process in the state and he knew the
Administration has been concerned about the process and
there was a hearing in January 1994 with respect to Lease
Sale 78. He said he thought the committee was attempting to
address the problems and fix them, but this legislation
should be worked on because he was not sure the legislation
was taking the right approach. He addressed the concerns
about fast tracking and said it was more of a concern about
the overall issue and he did not think there was any attempt
to fast track HB 474. He said there are other rules and
regulations that prevent the legislature from fast tracking
legislation.
Number 345
SUSAN FLENSBURG, BRISTOL BAY SHARER (inaudible) via
Dillingham, said she had major concerns with HB 474 from a
coastal management standpoint, as well as a public process
standpoint. She said HB 474 was introduced to fix problems
that were characterized by DNR with the state's oil and gas
leasing process under Title 38. She stated she was not
unsympathetic with DNR's concerns and she even supported a
few of the provisions in the legislation. She said HB 474
gives DNR incredibly broad, almost unchecked authority to
decide the scope of review and the basis on which a best
interest finding would be made under Title 38. She stated
HB 474 takes away the ability of the public, resource
agencies and coastal districts to raise and address issues
of concern regarding a proposed project. She said a
particular concern was some of the terminology in HB 474
that relates to the scope of review under Title 38 and the
sections on consistency determinations under the ACMP. She
said that terms are not defined and it is not clear what is
meant. She said if the terms are not defined, it will pave
a way for a lawsuit and put the courts in a position of
clarifying what the terms mean. She said she agreed with
Mr. Eason that it would help to put target delineation on
what project is to be reviewed and when. She said she
thought that one of the things that needs to be done with HB
474 is to include a definition for the terms "direct effect"
and "nonspeculative." She said it would be a safe bet to
say that the section on consistency determination also does
not meet federal guidelines for the coastal management
program. She said she wanted to raise the question of
whether HB 474 is a back door attempt to dismantle the
Coastal Management Program. She stated if that was not the
case then she wanted to reiterate a previously made
suggestion that a cooperative effort should be undertaken to
address the problems that exist. She said she hoped HB 474
would not be moved too quickly and public concerns would be
considered by the committee.
Number 404
NANCY WAINWRIGHT, ATTORNEY (via Anchorage), said the Coastal
Zone Management Program was a bargain between the state and
the federal government. She said the state was to develop a
program to manage the coastal zone and it created the Alaska
Coastal Management Program (ACMP). She stated the ACMP had
to meet the minimum federal standards in the broad language
in the federal Coastal Zone Management Act. She said the
federal government offered funding and a legally binding
obligation of the federal agencies to adhere to the state's
coastal policies through federal consistency. She stated HB
474 proposes to change this policy. She said the
legislation will delegate authority to someone outside of
the ACMP. She said HB 474 raises a host of legal issues.
She said HB 474 will restrict the scope of review for oil
and gas lease sales and the federal government has also
confronted this issue. She stated the original language of
the federal law said that each federal activity that
directly affects the coastal zone must be consistent. The
U.S. Supreme Court interpreted the language to mean that a
lease sale has no direct effect and therefore they do not
need to be considered in looking at coastal zone management.
She said in 1990, when Congress was reviewing the Coastal
Zone Management Reauthorization Act, their intent was made
clear that the effects that are looked at should be broad.
She stated that Congress took the direct effect language out
of federal law and said the effects which are to be
considered are those which may be reasonably anticipated,
including cumulative and secondary effects. She said they
intended the term "effect" to be construed broadly,
including direct effects, which are caused by the activity,
and indirect effects, which may be caused by the activity.
She said the federal government has stated it wants a broad
interpretation for coastal zone management purposes. She
stated there are problems that need to be solved. She said
the first was DNR's court ordered direction that it must
broaden the scope of the impact it is looking at. She
stated that secondly, the legislature needs to look at how
DNR has failed in terms of the ACMP to work the system in
advance and to get people to the table early so lawsuits are
not brought to the courts. She said the solution may be
allowing the DGC to have the funding and the expertise to
conduct the coastal zone consistency review and leave the
best interest findings to DNR. She said DNR could then
devote its attention and its funds to analyzing the impact
of the court and the ACMP.
Number 509
NINA FAUST, KACHEMAK BAY CONSERVATION SOCIETY (via Homer),
said she is opposed to HB 474 and hopes the committee will
not pass it out.
Number 531
EDGAR BAILEY, BIOLOGIST (via Homer), said he has reviewed a
lot of the leases in the past and one of the obvious reasons
there is an effort to push HB 474 through the legislature is
because of the poor work that went into the planning of the
leases. He said Lease Sale 78 is a good example. He stated
that 56,000 parcels of land were included, yet there was not
adequate notice to private landowners involved who had
subsurface leases within Lease Sale 78. He stated the state
should have listened to the advisory group that had been
formed in the Kenai/Soldotna/Homer area. Mr. Bailey said
the advisory group stated they did not recommend any lease
tracts along the coast because of conflicts in the Nikiski,
Ninilchik and Anchor Point areas. He said that same stance
was recommended by various other groups as well, yet the
state ignored them. He said the state's rejection of the
groups' recommendations had a lot to do with the filing of
the lawsuit. He said he thought it was clear that DNR was
not doing a sound job as far as looking at all of the
ramifications and consistency with the Coastal Zone
Management Plan. He said HB 474 is not needed. He said DNR
is not doing an adequate job and that is what is inviting
all of the legal action.
Number 602
RIKKI OTT, UNITED FISHERMEN OF ALASKA, she said she opposes
HB 474. She said HB 474 attempts to ignore consideration of
problems at the initial stage of projects. She stated the
Alaska Coastal Management Program is not the problem. She
said in April 1993, the Alaska Supreme Court ruled that DNR
failed to adequately consider salient issues in making its
best interest finding to allow Lease Sale 50 to proceed.
She said in December 1993, the Alaska Supreme Court ruled
that DNR again failed to adequately consider identical
issues in making its best interest finding to allow Lease
Sale 55. She said the Supreme Court specifically pointed
out in its ruling that DNR appears to have copied, without
altercation, the previously rejected Lease Sale 50 finding
and tried to apply the same flawed finding to Lease Sale 55.
She said in January 1994, the State Superior Court ruled
preliminarily that DNR failed to adequately consider salient
issues in making its best interest finding to allow Lease
Sale 78 to proceed. She said with Lease sale 78, DNR
ignored commercial fishing interests in Cook Inlet. She
said legislative fixes are not going to substitute for
professionalism. She said HB 474 will increase the risk
that projects that are not in the best interests of the
state will go forward. She said the Alaska Supreme Court
noted that "...a finding that development that is
economically feasible is not the same as a finding that the
sale is in the state's best interest. DNR must consider the
social, cultural, and environmental impacts on the state
from oil production." She said the Alaska Supreme Court
warned that "...the more segmented an assessment of
environmental hazards, the greater the risk that prior
permits will compel DNR to approve later environmentally
unsound permits." She stated HB 474 allows DNR to conduct
multi-phase administrative reviews and permitting without
requiring all of the relevant information at the initial
stage of the proposed project. She said this was counter to
the best interests of the state because DNR will find it
difficult to slow down or stop momentum once projects are
initiated and developers have property interests. She said
that halting projects once they are started is not a viable
public option. She said that to be fair to the state,
developers, and the public, it is imperative that all
environmental and social risks are brought to the table at
the initial stage of the project. She said she objects to
the terms "nonspeculative" and "direct" and she wanted to
remind the committee that the EXXON VALDEZ and GLACIER BAY
were both speculative up until they ran aground. She said
the public expects DNR to anticipate events and to work out
resolutions in advance of any permits being issued. She
said the Alaska Supreme Court found that "...DNR is required
by law to take a hard look at the salient problems involved
with a lease sale and it must engage in reasoned decision
making." She said the Supreme Court further ruled that DNR
"...must consider the probable, cumulative impact of all
anticipated activities which will be part of the project."
She said these are not unreasonable requests, yet DNR is
appealing to the legislature to remove these requirements.
She said the problem lies with DNR's ability to meet the
requirements of the Coastal Management Program, not with the
program itself. She stated the public, industry, and the
state deserve to discuss and resolve issues up front to
ensure projects proceed responsibly and with minimal impact
on other resource users and the environment.
TAPE 94-8, SIDE A
Number 001
JOEL KAWAHARA, UNITED FISHERMAN OF ALASKA, stated he is not
anti-development, however he feels strongly that development
should be safe in terms of economic benefit to the state and
in terms of protection to the environment. He said he
opposes HB 474 because he does not feel it provides for that
safety. He said the term "nonspeculative direct effect " is
the issue in safety. He said allowing developments that may
not avoid future problems is irresponsible and puts at risk
both the industry involved and the other users of the
coastal zone.
Number 033
STAN STEPHENS, PRINCE WILLIAM SOUND REGIONAL CITIZENS
ADVISORY COUNCIL (PWSRCAC), stated the PWSRCAC represents
many people who have a keen interest in ensuring the maximum
amount of public input into agencies' decisions within
PWSRCAC's jurisdiction. He said PWSRCAC has been an active
participant in the working groups which work to resolve
problems regarding the ACMP and oil spill contingency plan
reviews. He said the RCAC is named in the ACMP regulations
as a reviewer for oil spill contingency plans. He said RCAC
has a great deal of respect for the process of letting
industry, local government, agencies, and the public work
together to resolve complex issues. He said RCAC is
concerned that HB 474 may narrow the scope of the project
review process to such an extent as to possibly lose some
valuable public input in the process. He stated some of the
aspects of HB 474 with which RCAC is concerned is the
uncertain language of Section Three regarding "reasonably
foreseeable, nonspeculative, direct effects." He said the
language narrows the breadth of analysis and may result in a
review which is not as thorough as that which is found in
the current ACMP language which requires analysis of direct
and significant effects. He referred to the section of HB
474 dealing with the phasing of projects. He indicated that
it would have an uncertain impact on the current phasing
language under ACMP regulations in federal law. He said the
language should be further defined and clarified before
adoption, in order to make certain that it is consistent
with other aspects of the ACMP. He urged that before HB 474
is finalized, the legal and definitional questions are
answered and that local governments, industry, public
citizens and agencies have an adequate opportunity to review
the information presented.
Number 067
CHIP TREINEN, AREA K SEINERS ASSOCIATION, urged the
committee to slow HB 474 down so some considerations could
be looked at a little more closely. He stated he was
concerned that HB 474 would not allow the public to give
adequate testimony and input in determining the effects of
oil and gas projects.
Number 087
KARL KIRCHER, KENAI PENINSULA FISHERMENS ASSOCIATION, stated
he was opposed to HB 474. He referenced the terms
"reasonably," "foreseeable," "nonspeculative," and "direct
effects." He said if the state follows Mr. Eason's
reasonings and comments regarding the words "speculative" it
would conclude that it is highly speculative that a lease
sale will lead to oil and gas exploration.
JOHN BOCCI, CORDOVA DISTRICT FISHERIES UNITED, said the
apparent fast track of HB 474 is very disturbing to him. He
said not only does it undermine due public process, but it
leaves the ability to make significant coastal zone
management decisions in the hands of mid-level bureaucratic
management. He said he did not think that state government
was designed to be utilized in that manner. He said to give
such power to department managers can only be a disaster
waiting to happen. He said the public needs the ability to
examine all sides of development to ensure that it is in the
best interest of the state as a whole, not just the most
persuasive special interest.
Number 144
REPRESENTATIVE KOTT stated he has heard many comments about
HB 474 being fast tracked. He said he hoped that the public
does not have that perception. He said HB 474 has three
committee referrals and that at best, it will be three to
four weeks before it goes to the final committee of
referral, House Judiciary.
Number 157
REPRESENTATIVE MACKIE stated HB 474 was introduced on
February 14, 1994, and it did not comply with the Five Day
Rule. He said the Oil & Gas Committee was conducting an
illegal meeting. He suggested the committee start with
those points in their effort to determine why the public was
concerned about fast tracking.
Number 167
MR. EASON stated that Ms. Wainwright suggested the DNR
consistency determination system was broken and could be
fixed. He said he thought that it was important for the
members of the committee to understand that DNR issues a
consistency determination for a lease sale only after the
DGC, DEC, ADF&G and other agencies certify that they also
believe the finding and the consistency determination fully
comply with the terms of the Coastal Zone Management Act.
He said he thought that it was a mischaracterization to say
that the problem is as simple as DNR's consistency
determination. He said in the case of Lease Sale 78, the
courts overturned the consistency determination that all
parties agreed was proper and in compliance with the law.
He said there is a very broad promotion of the benefit of
public use and public development of Alaska's resources for
the benefit of all Alaskans. He stated the legislature is
the ultimate policymaker with regard to how DNR goes about
implementing what the legislature wants it to do in
furtherance of the general guidelines. He said the ultimate
resource decision is the decision to withdraw areas from
leasing. He said the legislature has generally withheld
that delegation to itself. He said the system of having a
five year oil and gas leasing schedule is intended to get
sales before the legislature early, so it can make decisions
in the broad public sense if it believes there is an area
that is so sensitive that it should not be leased. He said
DNR implements that program, if the legislature so chooses.
He said DNR has the dilemma of trying to balance the
resource use and making sure that all of the agencies and
the public have an opportunity to comment. He said DNR does
not think the legislature intends for DNR to make the
decision that one use should have priority and the
opportunity to explore, under carefully controlled
conditions, is not provided. He said DNR does not think it
is a good multiple use of the resource. He stated he agreed
with Mr. Kawahara that there are instances when safety
analyses should be undertaken. He said he believed those
analyses should come when a project is proposed so that one
has something real to analyze.
Number 239
REPRESENTATIVE MACKIE referred to his earlier comment about
mid-level bureaucrats. He said he had no reason to doubt
that Mr. Eason was a very honorable person, but he was
questioning from a public policy standpoint whether or not
it was good to give such powerful authority to a director of
a division.
Number 251
CHUCK DEGMAN, BERING STRAITS COASTAL RESOURCE SERVICE AREA,
said what is important is the community impact. He said his
community depends on fish and wildlife and it is highly
dependent on it. He said it is very important for local
people to have a say and for the public process to be open
to regular citizens who are not used to bureaucratic
terminology where the English language is very vague and has
several meanings. He said HB 474 eliminates all public
participation by skirting around real issues so regular
people cannot tell public employees their real concerns. He
said he wanted the committee to consider the impact of HB
474 on local communities.
Number 342
REPRESENTATIVE DAVIS stated there has been a lot of concern
over the word "nonspeculative." He asked what Mr. Eason's
interpretation was of that word.
Number 351
MR. EASON said to his understanding, the word speculative
means things that are not known with certainty, but are
suspected or imagined. He said the intent to provide an
opportunity for making a written discrimination between
events which people may suggest should be considered and
those that are unrelated. He said DNR is not proposing that
people not talk to it about impacts they feel are real, as
well as those they feel are speculative. He said ultimately
the decision has to be made in writing as to whether a
proposal is in the state's best interest and the decision
would be made by rationalizing and discussing each of the
things that are brought up. He said the burden would be on
DNR to make a determination that a comment is speculative or
immaterial.
Number 387
REPRESENTATIVE DAVIS stated it was his impression that Mr.
Eason's understanding of the court decisions have required
DNR to make speculative judgments.
MR. EASON stated that was correct.
REPRESENTATIVE DAVIS referenced page four, subparagraph (c).
He stated he could foresee problems with that section. He
asked for a rationale for the language and how DNR expects
to eliminate the concerns heard by the committee.
Number 406
MR. EASON stated the intent is to define the universe so the
court, DNR and potential litigants all have a common
understanding of the area that would be under consideration,
as well as the issues in that area that are under
consideration. He said DNR believes that without the
language, the state will see more challenges like the one
that addresses DNR's consideration or non-consideration of
events in the Gates of the Arctic. He said based on the
recent string of court decisions, he thought the court was
open to those types of challenges and there is no way to
defend against them.
Number 436
REPRESENTATIVE DAVIS referenced places in HB 474 that
mention reasonably foreseeable, nonspeculative, direct
effects of a project. He asked if any of that wording is
currently in statute.
MR. EASON referenced AS 30.805 (g), on page four of HB 474.
He said that if one notes in 1(f) the words are
"...reasonably foreseeable, cumulative effects." He said
someone had said earlier that DNR should consider cumulative
effects. He said DNR currently considers reasonably
foreseeable cumulative effects in their findings. He said
the problem has been with reasonably foreseeable speculative
effects.
Number 457
REPRESENTATIVE MACKIE stated he had the same concern as
Representative Davis. He said in his capacity as a
commercial fisherman, he knew that fish moved. He said it
is not right to not address the concerns of those people who
rely upon other natural resources. He said his constituents
would be very upset about tampering with their ability to
voice their concerns.
Number 502
MR. EASON said the point is one of clarification. He said
the statute as it reads now is for considerations within a
lease sale area. He said there is another description of
things to be considered adjacent to the sale area. He said
there are different standards in the statutes as they exist
today under section (g).
Number 513
CHAIRMAN GREEN stated he would entertain a motion to move HB
474 out of committee and on to House Resources with a memo
to the members recommending they look at the transcript of
the hearing and possibly undertake some type of review of HB
474.
Number 563
REPRESENTATIVE DAVIS requested that any memo sent to House
Resources should be signed by all committee members and
members should indicate specific concerns.
CHAIRMAN GREEN indicated that was a good idea and possibly
the committee should go one step further and request that
any member of the oil and gas committee who would like to
participate in the review of HB 474 be allowed to do so.
Number 580
REPRESENTATIVE MACKIE stated he objected to moving HB 474
under any circumstances. He said since the House Resources
Committee sponsored the bill, he was not comfortable with
the fact that it is going to House Resources next. He said
regardless of the situation, bills are held in committee all
of the time, because members would like to see additional
work done on the legislation. He stated he wanted to do
more work on HB 474. He said HB 474 was put on the calendar
pending introduction, but the bill was not introduced until
February 14, 1994. He said the reason there is a Five Day
Rule is so the public has the ability to monitor things that
are becoming part of the record. He said a bill that was
read on the House floor two days previous does not give the
public ample opportunity to look at the legislation or
testify. He said he was not saying that he was opposed to
HB 474, but that it was important to protect the process.
Number 643
REPRESENTATIVE SITTON said he also opposed moving HB 474 out
of committee because it needed work.
Number 654
REPRESENTATIVE DAVIS said he also opposed moving HB 474 out
of committee.
Number 668
REPRESENTATIVE PETE KOTT said he did not want to belabor the
bill in the Oil and Gas Committee and we would like to see
it moved to House Resources.
Number 691
REPRESENTATIVE KOTT made a motion to move HB 474 to House
Resources, with individual recommendations.
Number 692
REPRESENTATIVE MACKIE objected to the motion.
Number 694
ROLL CALL VOTE:
YEAH: Green, Kott, Sanders
NAY : G. Davis, Sitton, Mackie
Number 701
CHAIRMAN GREEN noted that the motion failed.
REPRESENTATIVE MACKIE offered his assistance to work with
the committee so everyone feels comfortable with HB 474.
Number 729
CHAIRMAN GREEN adjourned the meeting at 7:22 p.m.
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