Legislature(2003 - 2004)
02/26/2004 01:33 PM House TRA
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ALASKA STATE LEGISLATURE
HOUSE TRANSPORTATION STANDING COMMITTEE
February 26, 2004
1:33 p.m.
MEMBERS PRESENT
Representative Jim Holm, Chair
Representative Beverly Masek
Representative Dan Ogg
Representative Nick Stepovich
MEMBERS ABSENT
Representative Vic Kohring
Representative Mary Kapsner
Representative Albert Kookesh
COMMITTEE CALENDAR
HOUSE BILL NO. 327
"An Act relating to the powers and duties of the Department of
Transportation and Public Facilities; and repealing a
requirement that public facilities comply with energy standards
adopted by the Department of Transportation and Public
Facilities."
- MOVED CSHB 327(TRA) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 327
SHORT TITLE: POWERS/DUTIES DOTPF
SPONSOR(S): REPRESENTATIVE(S) HOLM
05/16/03 (H) READ THE FIRST TIME - REFERRALS
05/16/03 (H) TRA, STA
02/19/04 (H) TRA AT 1:30 PM CAPITOL 17
02/19/04 (H) Heard & Held
02/19/04 (H) MINUTE(TRA)
02/26/04 (H) TRA AT 1:30 PM CAPITOL 17
WITNESS REGISTER
TODD LARKIN, Staff
to Representative Jim Holm
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During hearing on HB 327, provided
information and answered questions.
JEFF OTTESEN, Statewide Planning Chief
Division of Statewide Planning
Department of Transportation & Public Facilities
Juneau, Alaska
POSITION STATEMENT: Testified on HB 327; provided information
and answered questions.
SUSAN URIG, Assistant Attorney General
Transportation Section
Civil Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: During hearing on HB 327, answered legal
questions.
ACTION NARRATIVE
TAPE 04-8, SIDE A
Number 0001
CHAIR JIM HOLM called the House Transportation Standing
Committee meeting to order at 1:33 p.m. Representatives Holm,
Masek, Stepovich, and Ogg were present at the call to order.
HB 327-POWERS/DUTIES DOTPF
CHAIR HOLM announced that the only order of business would be
HOUSE BILL NO. 327, "An Act relating to the powers and duties of
the Department of Transportation and Public Facilities; and
repealing a requirement that public facilities comply with
energy standards adopted by the Department of Transportation and
Public Facilities."
Number 0068
REPRESENTATIVE MASEK moved to adopt the proposed committee
substitute (CS), labeled 23-LS1135\I, Utermohle, 2/24/04, as the
work draft. There being no objection, Version I was before the
committee.
Number 0116
TODD LARKIN, Staff to Representative Jim Holm, Alaska State
Legislature, provided the following testimony:
Long ago, [an] executive order ... found it's way into
statute through the lack of legislative action; when
you fail to take action it goes into statute. ...
Essentially, it was outside the practices of the
department and the state; the statute that's mentioned
here. ... A gentlemen who had some conflicts with one
of the projects that DOT [Department of Transportation
& Public Facilities (DOT&PF)] was doing, was very
industrious and dug through the statutes and found out
that we weren't complying with this statute and
therefore stopped one of our state projects.
MR. LARKIN said the thrust of the bill is the same and the
changes are technical. He said DOT&PF has reviewed this section
of statute extensively, so it can be matched up with standards
and practices that are currently being done. Mr. Larkin
remarked, "We still endorse the goal; we're happy to discuss the
... specific policy points of the bill."
Number 0301
JEFF OTTESEN, Statewide Planning Chief, Division of Statewide
Planning, Department of Transportation & Public Facilities,
testified that he had been the state's lead on the lawsuit that
Mr. Larkin had mentioned, and had been doing a lot of work with
the Department of Law (DOL). He said he is fairly knowledgeable
about the lawsuit and of the recommended changes. Mr. Ottesen
said he thought this could be some of the most important
legislation considered this year because it potentially could
preserve the abilities to continue building transportation
projects. Mr. Ottesen explained Sections 3,6, and 7 are
strictly housekeeping measures that reflect the current powers
and duties of the department.
Number 0391
MR. OTTESEN further explained that the substantive sections of
the bill are directed at the problem. One of the goals of this
legislation is to ensure that the project between [Lake] Iliamna
and Nondalton can continue to proceed with construction. The
project has been stalled since 1977, although most of it, save a
bridge and the last three miles of road, has been built. Mr.
Ottesen said this legislation also tries to ensure that the same
issues that are at hand in the aforementioned project don't
contaminate the entire state's transportation program, that is
the state's ability to proceed on aviation projects, transit
projects, highway projects all across the state. "This is not
just a rural problem; this is potentially a rural and urban
problem," he remarked. Section 1 of this legislation is an
intent section, which was recommended by the Department of Law.
The department believes that Section 1 in concert with Section
8, the retroactive clause, is critical if this law is to be
viewed as applicable to the case before the court right now.
Section 2 applies to a statutory requirement that existed in the
late '70s. The statutory requirement said that the department
would develop a program with highway projects and present it to
the legislature over time. However, now the new section of [AS]
44 speaks to the same kind of requirement, and therefore this
section was changed so that these provisions work in concert
rather than potentially being perceived as two slightly
different sets of requirements that have to be met.
Number 0530
MR. OTTESEN began discussion of what later became Amendment 1,
he noted that [DOT&PF] had mistakenly sent a recommendation that
the language of the legislation should refer to a 20-year
program of projects. However, it should refer to about a 2-year
program of projects.
MR. OTTESEN, in response to Chair Holm, specified that is on the
top of the second page [of his written comments]. He explained:
The reason it's here is that the program of projects
is being (indisc. - paper shuffling) what can you have
found, what is the scope, how much money do you have
available, and once you get beyond three or four years
it's not practical to make those kind of predictions,
you really are out there on the end of the limb, and
so this is not the plotting product; this is the
actual what are we going to do in the next couple of
years with a known amount of money, ... so we think
that should be two years.
CHAIR HOLM clarified that the language being discussed is on
page 2, line 9.
MR. OTTESEN turned attention to Section 4, which he said applies
to the state's requirement for a multi-modal transportation
plan. Section 4 clarifies that the plan is comprised of many
different documents adopted over time, he explained. The
transportation plan includes plans for aviation, marine
highways, highways, borders, urban areas, and subsets of the
department with many different distinctions. The singular
language in current law really doesn't reflect what the planning
process is all about.
Number 0641
CHAIR HOLM asked Mr. Ottesen to comment on page 4, line 25, with
respect to why the language was changed from "shall" to "may".
MR. OTTESEN said the change is because of [23 U.S.C. 135]
language being added, which refers to the federal statute for
surface transportation planning; it does not speak to harbor,
aviation, or transit planning. Furthermore, it is a law that
already has to be followed. He remarked:
When it comes to something like aviation, we would not
want to have a shall in front of it and say we have to
consider highway provisions in federal law ... when
designing an airport, for example.
CHAIR HOLM asked if it was not applicable.
MR. OTTESEN said there were no other federal statutes the
[department] could find that would be applicable to the aviation
aspect of the bill, which is the reason for "may" rather than
"shall". He remarked:
The language starting at [line] 28, means and costs,
and then ... beyond the next sentence about
considering the views of the Alaska Transportation
[Planning] Council. These are the exact issues that
were before the court, and it's the means and cost
language that the court found most compelling and
granted a preliminary injunction on.
MR. LARKIN clarified that the council being referred to in the
deleted section [page 4, lines 28-31, and page 5, lines 1-3] is
the council that doesn't exist other than in statue.
Number 0794
MR. OTTESEN explained that the Alaska Transportation Planning
Council was seated during the term of Governor Jay Hammond and
has been unseated since then. He mentioned that it was very
hard to find people who were familiar with [transportation
planning]. Mr. Ottesen said Section 5 applies to a listing of
projects slated for design and construction; it is typically
known as the STIP (Statewide Transportation Improvement Program)
for surface transportation; the TIP (Transportation Improvement
Program) for surface transportation within the metropolitan
areas of Fairbanks and Anchorage; and the AIP (Aviation
Improvement Program). He explained that the language
essentially aligns this section of law to match up to various
federal requirements the state must also follow, and it takes
out some antiquated requirements that are no longer being
conducted.
MR. OTTESEN explained that Section 8 provides that this law is
retrospective or retroactive to the time that AS 44.42 was
adopted as a matter of law. He said it was not adopted as a
matter of legislative act, "it was adopted as a matter of nobody
was paying attention ... to the administrative order that became
law." He explained that Section 9 makes the effective date
immediate. Mr. Ottesen specified that the consequences of not
passing the legislation may be that the Iliamna to Nondalton
[project] may continue to be delayed; the state's transportation
planning process will remain in conflict with various federal
requirements and the emphasis will be on process and not
projects, which will produce more paper and less pavement; most
importantly, many if not most other important projects in all
areas of the state will be at risk for some litigation.
CHAIR HOLM turned attention to page 2, subsection (b), and he
asked if there is the potential for a separation of powers by
doing this.
MR. OTTESEN said there was a lot of discussion between DOL and
DOT&PF on this matter. Essentially, DOL maintained its stance
that this [section] is not only important to this particular
project, but it is an important piece of language. Mr. Ottesen
noted that several members of DOL are involved, but he is not
the one to give advice on a legal matter.
Number 1001
SUSAN URIG, Assistant Attorney General, Transportation Section,
Civil Division, Department of Law, testified. Ms. Urig said it
was new to her too and she had discussed it extensively with
Deborah Behr and James Cantor [also with the Department of Law].
She explained that the language comes from legislation that Ms.
Behr worked on last session. She remarked:
There was discussion about whether, ... in general
terms, the problem could be addressed without specific
focus on this judge's decision in the case. ... The
risk that's run is that there would be ... argument
later on that the intent wasn't to be direct about
this piece of litigation. ... Judges do have a
healthy respect for ... not only the separation of
powers but the functions of each of the different
branches, and ... the function of the legislature is
to enact the law the court must follow.
CHAIR HOLM remarked, "It just crossed my mind that we might be
stepping on grounds where we might want not to go."
MS. URIG said [DOL] was very concerned about that too.
Number 1082
REPRESENTATIVE STEPOVICH asked how much money would be saved.
MR. OTTESEN said it was difficult to answer.
REPRESENTATIVE STEPOVICH asked if there will be savings.
MR. OTTESEN explained that the state has a "bucket" of federal
money that can either be spent on process or projects. He said
it's a finite amount of money that will not be changed. Mr.
Ottesen said [DOT&PF] had not been doing the cost benefit
studies, but will now have to start doing them in order to
defend [the state] against potential litigation. He said a
typical cost benefit study for a modest project can cost
$100,000, and there are a lot of projects in a year.
Number 1128
REPRESENTATIVE OGG asked if the language used on page 2,
subsection (b), is currently standard when [the legislature]
wants to statutorily affect a court decision.
MS. URIG said she has been told by Ms. Behr that it is, and it
comes from her best efforts in putting something like this
together.
REPRESENTATIVE OGG said it is a power of the legislature to
change the rule of law that has been decided by a court. He
said he was curious if that was the language that was generally
used. Representative Ogg mentioned visiting Nondalton and
flying over the road [Mr. Ottesen had discussed]. The only
thing that keeps the people in Nondalton from getting fire
equipment and getting to the medical center is the [lack of a]
bridge and the lawsuit by a fairly well-to-do individual who has
property in that area. He said it was very nice of that
individual, in pursuing this lawsuit, to bring up a problem in
state statute that could have brought the state's transportation
and construction program to a halt. Representative Ogg
remarked, "So, I must thank that individual in his largess for
helping the state move forward with our projects." He noted
that he thought DOT&PF has done a very good job, and he
appreciated its efforts in getting the bridge to the people in
Nondalton.
REPRESENTATIVE STEPOVICH asked if the word "may" on page 4, line
25, gives too much leeway to not do anything.
MR. OTTESEN said he believed that change would be fine. He said
the intention wasn't to not do it, but even without the statute
[the state] would have to meet these requirements because the
money comes from the federal government.
CHAIR HOLM pointed out that 23 U.S.C. 135 is a federal
requirement. He said it was probably a moot point.
Number 1321
REPRESENTATIVE OGG moved to adopt [Amendment 1], to delete "0"
following the "2" on page 2, line 9 [thus changing the "20" to
"2"]. There being no objection, it was so ordered.
Number 1342
REPRESENTATIVE OGG moved to report CSHB 327, [Version 23-
LS1135\I, Utermohle, 2/24/04], as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, CSHB 327(TRA) was reported from the
House Transportation Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Transportation Standing Committee meeting was adjourned at 1:51
p.m.
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