Legislature(1999 - 2000)

02/17/1999 03:07 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              SENATE RESOURCES COMMITTEE                                                                                        
                  February 17, 1999                                                                                             
                        3:07 P.M.                                                                                               
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Senator Rick Halford, Chairman                                                                                                  
Senator Pete Kelly                                                                                                              
Senator Jerry Mackie                                                                                                            
Senator Lyda Green                                                                                                              
Senator Sean Parnell                                                                                                            
Senator Georgianna Lincoln                                                                                                      
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
Senator Robin Taylor, Vice-Chairman                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
Overview: Proposed Chenik Institute lease - McNeil River State Game                                                             
Refuge                                                                                                                          
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
Mr. Dick Mylius, Acting Director                                                                                                
Division of Lands                                                                                                               
Department of Natural Resources                                                                                                 
3601 C Street, Ste 1130                                                                                                         
Anchorage, AK 99707-3645                                                                                                        
                                                                                                                                
Ms. Marty Rutherford, Deputy Commissioner                                                                                       
Department of Natural Resources                                                                                                 
3601 C Street, Ste. 1210                                                                                                        
Anchorage, AK 99707-5921                                                                                                        
                                                                                                                                
Mr. Rick Thompson, Southcentral Manager                                                                                         
Division of Land                                                                                                                
Department of Natural Resources                                                                                                 
3601 C Street                                                                                                                   
Anchorage, AK 99707                                                                                                             
                                                                                                                                
Mr. Mike Sullivan                                                                                                               
Southcentral Region                                                                                                             
Department of Natural Resources                                                                                                 
3601 C Street                                                                                                                   
Anchorage, AK 99707                                                                                                             
                                                                                                                                
                                                                                                                                
Mr. Geron Bruce, Legislative Liaison                                                                                            
Alaska Department of Fish and Game                                                                                              
P.O. Box 25526                                                                                                                  
Juneau, AK 99802-5526                                                                                                           
                                                                                                                                
Mr. Lance Trasky, Southcentral Regional Supervisor                                                                              
Division of Habitat and Restoration                                                                                             
Department of Fish and Game                                                                                                     
333 Raspberry Rd.                                                                                                               
Anchorage, AK 99518-1599                                                                                                        
                                                                                                                                
Mr. John Hilsinger                                                                                                              
3601 Raspberry Rd. #1A                                                                                                          
Anchorage, AK 99502                                                                                                             
                                                                                                                                
Mr. Thomas Walker, Special Projects Manager                                                                                     
Cook Inlet Aquaculture Association                                                                                              
40610 K Beach Rd.                                                                                                               
Kenai AK 99611                                                                                                                  
                                                                                                                                
Mr. Gary Fandrei                                                                                                                
Cook Inlet Aquaculture Association                                                                                              
40610 K Beach Rd.                                                                                                               
Kenai, AK 99611                                                                                                                 
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 99-10, SIDE A                                                                                                              
Number 001                                                                                                                      
                                                                                                                                
CHAIRMAN HALFORD called the Senate Resources Committee meeting to                                                               
order at 3:07 p.m. and said the Committee would discuss the Chenik                                                              
Institute lease proposal that was written up in the Anchorage Daily                                                             
News on February 7, 1999.  He asked Mr. Mylius, Division of Lands,                                                              
to give the committee a status report.                                                                                          
                                                                                                                                
MR. DICK MYLIUS, Acting Director, Division of Lands, Department of                                                              
Natural Resources (DNR) said that the McNeil River Game Refuge is                                                               
not even State land at this point.  It is State-selected land and                                                               
is managed by the federal Bureau of Land Management (BLM).  DNR's                                                               
appropriate action is to comment on what BLM should do.  State-                                                                 
selected lands are governed under Section 906(k) of the Alaska                                                                  
Lands Act, he explained.  Before BLM does any  long-term interest                                                               
action on State-selected land, they have to get State concurrence.                                                              
                                                                                                                                
This particular chunk of land has been both State and ANCSA                                                                     
selected since the 1970's.  It was selected by the Seldovia Native                                                              
Association which BLM rejected about 15 years ago.  The Seldovia                                                                
Native Association appealed, was rejected and  went to court.                                                                   
Recently both parties decided to settle the issue out of court and                                                              
the suit was dropped.  This means BLM can proceed to convey the                                                                 
land to the State.  However, as a general rule, the State does not                                                              
like to take title to federal lands that have unauthorized uses on                                                              
them and the current structures at Chenik Institute are not                                                                     
authorized by the BLM.                                                                                                          
                                                                                                                                
Several years ago, BLM proposed to issue a lease to Mr. Mike                                                                    
McBride who actually built those facilities.  At the time, the                                                                  
State said we would not concur with the lease.  Now that BLM is                                                                 
about to transfer the land to us, the issue is coming to a head                                                                 
again.                                                                                                                          
                                                                                                                                
In a preliminary decision published in November of 1998, the                                                                    
Department concurred with BLM entering into a lease with Chenik                                                                 
Institute, a nonprofit organization.  Public comments were                                                                      
solicited on this proposal, ending in January, and 50 comments were                                                             
received - 14 or 15 against and 30 or so for the proposed lease.                                                                
He cautioned that the Department is not going to make a decision                                                                
based on the numbers of comments on one side or the other.                                                                      
                                                                                                                                
MR. MYLIUS said the comments ranged from relatively insignificant                                                               
concerns to some new issues.  So the Department has now gone back                                                               
to the drawing board to figure out where to go.  They are reviewing                                                             
the comments, but they haven't heard from ADF&G yet, a big piece of                                                             
the puzzle since the land is within the McNeil River State Game                                                                 
Refuge.                                                                                                                         
                                                                                                                                
Under the management plan for that land, DNR is the party that is                                                               
responsible for any decision on leasing, but ADF&G has to                                                                       
essentially approve any proposal as consistent with their                                                                       
management plan.                                                                                                                
                                                                                                                                
Some of the options, Mr. Mylius said, range from not even taking                                                                
title to the land, an option they don't feel favorable towards                                                                  
because they feel the McNeil River is appropriate for State                                                                     
ownership, to the Department saying "no" altogether to BLM                                                                      
regarding authorization to lease to the Chenik Institute and asking                                                             
them to remove the structures.  They could consider a short-term                                                                
BLM authorization and spend a couple of years trying to find a                                                                  
longer term solution.                                                                                                           
                                                                                                                                
MS. MARTY RUTHERFORD, Deputy Commissioner, DNR, noted that it's                                                                 
important for the committee to know whenever the Department                                                                     
solicits public comment, they found it more successful to give an                                                               
indicator of what they thought would be an appropriate management                                                               
strategy.  In this case, they said some type of lease to a                                                                      
nonprofit might be appropriate.  The Department is not bound by                                                                 
that and there could be another preliminary best interest finding                                                               
as the situation evolves. One suggestion of the Department is a                                                                 
one-year permit with, maybe, a competitive lease in the future.                                                                 
There are many alternatives.                                                                                                    
                                                                                                                                
Number 130                                                                                                                      
                                                                                                                                
CHAIRMAN HALFORD asked if there was a general policy the State has                                                              
held with regard to trespass entries.                                                                                           
                                                                                                                                
MR. MYLIUS answered in this case the issue is that we are just                                                                  
taking title to the land.  It's not the State's land yet.  The                                                                  
Department's policy is to not take title to lands that have                                                                     
trespass on them.  BLM has been asked to resolve it, and the                                                                    
options range from removing the structures altogether to figuring                                                               
out some way to authorize them.                                                                                                 
                                                                                                                                
As part of the decision making process, he explained, the                                                                       
Department looks at the management plan for the area.  In this                                                                  
area, ADF&G has identified the need for some sort of public                                                                     
facilities.  Since  a facility already exists, it's possible those                                                              
buildings could serve some of the purposes that ADF&G intended.                                                                 
The second question is, if they are appropriate there, how does the                                                             
Department come up with a fair process to decide who should get to                                                              
run them.                                                                                                                       
                                                                                                                                
CHAIRMAN HALFORD asked how long the facility had been there.                                                                    
                                                                                                                                
MR. MYLIUS responded that it had evolved over the years.                                                                        
                                                                                                                                
MR. RICK THOMPSON, Southcentral Manager, added that it had been in                                                              
existence for around 20 years.                                                                                                  
                                                                                                                                
CHAIRMAN HALFORD asked how much it had paid in rent, fees, or                                                                   
license for that 20 years.                                                                                                      
                                                                                                                                
MS. RUTHERFORD replied that to the best of their knowledge no money                                                             
has been paid to the BLM.                                                                                                       
                                                                                                                                
CHAIRMAN HALFORD asked for an explanation of when the BLM asked the                                                             
State, who replied they expected the BLM to proceed with whatever                                                               
their trespass actions were to clear the title and clear the land.                                                              
                                                                                                                                
MR. MIKE SULLIVAN, Regional Office, answered that in 1994 they                                                                  
initially responded to the letter of concurrence unfavorably as a                                                               
result of comments the Division received from ADF&G.  BLM seems to                                                              
want to avoid doing trespass action and the applicant, at the time,                                                             
indicated to them he was going to continue to work on the                                                                       
objections at the State government level.  So the BLM kind of "held                                                             
off."  There were then some discussions in his office with ADF&G                                                                
about what conditions would have to exist for approval and if more                                                              
conditions were needed to make it more palatable to the agencies.                                                               
That's where they are now.                                                                                                      
                                                                                                                                
MS. RUTHERFORD inserted that some of the conditions include an                                                                  
unwillingness to let this land go to any entity that is not a                                                                   
nonprofit.                                                                                                                      
                                                                                                                                
CHAIRMAN HALFORD asked if the State's position was that a lease was                                                             
contrary to the State's best interest as of 1994 or 95.                                                                         
                                                                                                                                
MR. MYLIUS answered that's right, as it was proposed by BLM at the                                                              
time.                                                                                                                           
                                                                                                                                
CHAIRMAN HALFORD asked if the nonprofit had been formed in an                                                                   
effort to come up with a vehicle to transfer this trespassed land.                                                              
                                                                                                                                
MS. RUTHERFORD responded that the nonprofit was always in                                                                       
existence, but it was Mr. McBride who applied for the lease to BLM.                                                             
She said her comments to him have been always her unwillingness to                                                              
convey to an individual.  At that time, he suggested establishing                                                               
the Chenik Institute as a State-recognized nonprofit as an                                                                      
alternative.  She had responded that might be worthy of                                                                         
consideration and, perhaps, if the Chenik Institute were to reach                                                               
out to other nonprofits, they would have more status in the State.                                                              
At this point, she knows they reached out to the Nature Conservancy                                                             
and Audubon Society to see what their levels of interest might be.                                                              
She had never seen anything in writing, but had gotten calls from                                                               
both entities asking her questions about it.                                                                                    
                                                                                                                                
Number 220                                                                                                                      
                                                                                                                                
CHAIRMAN HALFORD noted, according to correspondence on Chenik                                                                   
Institute paper, they were incorporated in August 1996.  It's Board                                                             
of Directors are Mr. McBride as President and his wife as                                                                       
secretary.                                                                                                                      
                                                                                                                                
MS. RUTHERFORD said Mr. Sullivan told her that is absolutely                                                                    
accurate.                                                                                                                       
                                                                                                                                
MR. SULLIVAN clarified that it wasn't formed just to run the camp.                                                              
It was in existence for other reasons.                                                                                          
                                                                                                                                
SENATOR MACKIE asked if it was correct that the State does not have                                                             
title to the land right now and doesn't manage it.                                                                              
                                                                                                                                
MR. MYLIUS replied that is correct.                                                                                             
                                                                                                                                
SENATOR MACKIE asked if DNR or its representatives ever indicated                                                               
to the McBrides that if they did become a nonprofit, that would                                                                 
probably be acceptable and the State would probably be willing to                                                               
take the land and give them the lease.                                                                                          
                                                                                                                                
MS. RUTHERFORD answered that no one ever indicated to the McBrides                                                              
that they would get a lease under any conditions. The Department                                                                
said they were interested in seeing a plan of operations and                                                                    
finding whether the McBrides would be willing to amend their                                                                    
application to BLM to reflect a nonprofit, making it slightly more                                                              
palatable because of the Department's concerns about [indisc] being                                                             
saved.  It was more of an interim discussion about alternatives                                                                 
that might be considered by DNR rather than any commitment that                                                                 
they would find it acceptable.                                                                                                  
                                                                                                                                
SENATOR MACKIE asked if the list of conditions the Department gave                                                              
the McBrides was a result of policies currently existing on state                                                               
lands.  He asked if they manage State lands now, if someone wanted                                                              
to become a nonprofit, were they entitled to lease any land they                                                                
want from the State.                                                                                                            
                                                                                                                                
MS. RUTHERFORD responded that is not a policy; but because this                                                                 
land is within a refuge makes it a unique situation.  This                                                                      
particular site was built without site control and doesn't have it                                                              
now.  It is an existing problem.                                                                                                
                                                                                                                                
SENATOR MACKIE asked if anyone else found a unique site that they                                                               
wanted to lease and became a nonprofit, were there policies that                                                                
would allow that to happen.                                                                                                     
                                                                                                                                
MS. RUTHERFORD answered that they make those decisions on a                                                                     
specific site basis and try to resolve them in the best interests                                                               
of the State.  She noted that a decision had not been made in this                                                              
instance.  They had talked to Mr. McBride about forming a                                                                       
nonprofit, working with other existing nonprofits, or opening it up                                                             
for competitive lease.                                                                                                          
                                                                                                                                
SENATOR MAKCIE said his understanding is that the Seldovia Native                                                               
Association has been after that location for a long time because of                                                             
ties they have to a village site there - and they have been turned                                                              
down.  He asked if the Chenik Institute was a special instance and                                                              
didn't have anything to do with DNR's current policies.                                                                         
                                                                                                                                
MR. SULLIVAN answered that Seldovia's interest was that they had a                                                              
selection under ANCSA.  Their selection was rejected and went to                                                                
court, but there has since been an agreement to drop the lawsuit.                                                               
For quite a few years both Seldovia and Mr. McBride thought the                                                                 
land would eventually go to Seldovia, so they had a lot of                                                                      
discussions with Mr. McBride trying to work out a lease for his                                                                 
facility with them.                                                                                                             
                                                                                                                                
SENATOR MACKIE said it seemed ironic if Seldovia had a claim                                                                    
through ANCSA to an old village site and were rejected that someone                                                             
could get it by "squatting."  He wondered if that was the right                                                                 
direction for State policy to go and if DNR was facilitating that                                                               
to happen.                                                                                                                      
                                                                                                                                
Number 302                                                                                                                      
                                                                                                                                
CHAIRMAN HALFORD asked if this were DNR land and going to be in                                                                 
State title, the chain of title is that BLM normally clears the                                                                 
trespass before they give it to the State, but if it were accepted                                                              
by the State and in State ownership, what would the process be for                                                              
issuing a lease or providing some kind of public facility in that                                                               
area.                                                                                                                           
                                                                                                                                
MR. MYLIUS answered that normally the process is driven by someone                                                              
submitting an application and the Department responding to the                                                                  
individual application.  As a general rule, they do not use leases                                                              
to authorize something that's already there in trespass.  If there                                                              
was no development there, they would wait until someone came in the                                                             
door and asked for an application.  The Department would do a best                                                              
interest finding and if there was going to more than a 10-year                                                                  
lease, it would be opened to competitive bidding.                                                                               
                                                                                                                                
CHAIRMAN HALFORD asked if that would apply on the State game                                                                    
refuge.                                                                                                                         
                                                                                                                                
MR. MYLIUS answered, if it was in the land use plan by ADF&G or if                                                              
they said it was approved, yes, they could start the process for                                                                
leasing in a game refuge.  The application would have to be                                                                     
determined to be consistent with refuge purposes.  ADF&G would have                                                             
to make some positive determination that it's appropriate to have                                                               
that kind of proposed facility.  They also have the ability, which                                                              
they have used in the Hatcher Pass ski area, to solicit proposals                                                               
for a facility for leasing land - a proactive stance. This is one                                                               
of the options considered for this site.                                                                                        
                                                                                                                                
SENATOR LINCOLN said the Chenik Institute's mission is to encourage                                                             
and actively participate in the protection and preservation of                                                                  
Alaska's coastal wilderness, especially brown bear habitat, working                                                             
with all national and international efforts to accomplish their                                                                 
mission.  She asked if DNR is successful in securing the lands                                                                  
around the area and if the Institute is allowed to continue with                                                                
their facility, is DNR obligated to fulfill their mission.  What if                                                             
it conflicts with the State's participation in the area, she asked.                                                             
                                                                                                                                
MR. MYLIUS answered that DNR would not be obligated to carry out                                                                
Chenik Institute's mission, even though it is fairly similar to the                                                             
purpose of the game refuge.  This is an issue for ADF&G to address.                                                             
                                                                                                                                
MS. RUTHERFORD added whoever runs the facility, ADF&G would require                                                             
a plan of operations consistent with the management plan for the                                                                
refuge.                                                                                                                         
                                                                                                                                
CHAIRMAN HALFORD asked if this place has been operating for 20                                                                  
years, how much do they charge and how many people have they had                                                                
come through.                                                                                                                   
                                                                                                                                
MR. SULLIVAN answered that information they have seen indicates                                                                 
they charge a couple of thousand dollars a week and can accommodate                                                             
up to 16 people, although generally there are a few less than that.                                                             
The premium bear viewing time is about six weeks in summer.                                                                     
                                                                                                                                
CHAIRMAN HALFORD commented that this is an exclusive trespass                                                                   
activity in the middle of a sanctuary, charging a couple of                                                                     
thousand dollars per week for 16 people at a time, paying the State                                                             
or BLM $0 for 20 years use of the land and asked if that was right.                                                             
                                                                                                                                
MR. SULLIVAN answered that essentially that was correct.  It                                                                    
started out as a tent camp in 1978.  The lodge was built in the mid                                                             
to late 80's.                                                                                                                   
                                                                                                                                
CHAIRMAN HALFORD commented that he was glad BLM hadn't decided what                                                             
to do, yet.                                                                                                                     
                                                                                                                                
MR. GERON BRUCE, ADF&G, explained that they do have to make a                                                                   
positive finding that an activity such as this within the refuge                                                                
would be consistent with the refuge purposes.  They have had some                                                               
discussions about that, as this issue has been around a long time.                                                              
ADF&G is working on its comments now and will be submitting them to                                                             
DNR in the near future.                                                                                                         
                                                                                                                                
SENATOR KELLY asked if they had been paying rent to the BLM for                                                                 
this time, would any of that money have come to the State.                                                                      
                                                                                                                                
MR. BRUCE said he would defer to DNR on that.                                                                                   
                                                                                                                                
CHAIRMAN HALFORD asked what happened to revenue from State selected                                                             
land before conveyance would be the general question.                                                                           
                                                                                                                                
MR. MYLIUS answered that the State would get 90 percent of the                                                                  
revenues from the time our selection was considered valid.  Since                                                               
the selection was in litigation all those years, the BLM may have                                                               
decided to wait until the litigation was settled.                                                                               
                                                                                                                                
CHAIRMAN HALFORD stated that the most recent correspondence is                                                                  
dated January 1999 from Mr. Trasky to Janet Kowalski.                                                                           
                                                                                                                                
SENATOR MACKIE interjected a question asking Mr. Bruce if ADF&G had                                                             
a position on this issue yet.                                                                                                   
                                                                                                                                
MR. BRUCE explained that they had not submitted a finding to DNR                                                                
yet.                                                                                                                            
                                                                                                                                
CHAIRMAN HALFORD asked if they had a position in the past.                                                                      
                                                                                                                                
MR. BRUCE said they have and that they have had more than one                                                                   
position in the past.                                                                                                           
                                                                                                                                
CHAIRMAN HALFORD said there was a memo from Marilyn Heiman to the                                                               
Commissioner requesting ADF&G to reexamine this matter and advise                                                               
the Governor on a resolution.  A previous paragraph in the memo                                                                 
speaks of the ADF&G long-standing opposition.                                                                                   
                                                                                                                                
SENATOR MACKIE noted that memo was actually dated 1996 and there                                                                
was a response back from Commissioner Rue to Marilyn Heiman saying                                                              
it continues to be the Department's position that, "the State                                                                   
should not agree to any transfer or disposal of lands because that                                                              
would be in violation of the constitution and/or state law.  Over                                                               
the last several years, Mr. McBride has met with BLM officials and                                                              
state officials from DNR, ADF&G, Division of Government                                                                         
Coordination on this matter, and the paper trail is extensive.  He                                                              
has now gone to the Governor to secure what has eluded him through                                                              
proper channels and due process....If the Governor wishes to pursue                                                             
the issue, we would recommend that he request an Attorney General's                                                             
opinion regarding the question of equal access under Article 8,                                                                 
Section 17 of the Constitution as it pertains to this issue."  He                                                               
then asked if they ever got an Attorney General's opinion on that.                                                              
                                                                                                                                
MR. BRUCE responded that he didn't know.                                                                                        
                                                                                                                                
SENATOR MACKIE said he would like to see it, if it's available.                                                                 
                                                                                                                                
CHAIRMAN HALFORD requested the 1996 memo and then asked Mr. Trasky                                                              
to summarize his memo dated January 19, 1999, since his was the                                                                 
most recent statement.                                                                                                          
                                                                                                                                
MR. TRASKY replied that his memo was in response to a copy of a                                                                 
letter they received in January 1996 referring to the Department's                                                              
decision recommending against issuing a lease for the structures.                                                               
                                                                                                                                
                                                                                                                                
Number 437                                                                                                                      
                                                                                                                                
CHAIRMAN HALFORD said he thought he had an idea of the time-line.                                                               
In January 1996, the third floor staff asked the Commissioner to                                                                
reexamine.  In the end of January 1996, the Commissioner basically                                                              
said no and doing so would probably be in violation of the                                                                      
Constitution and he would like an Attorney General's opinion.  By                                                               
November 22, 1996, the Commissioner of ADF&G did exactly what he                                                                
has said would be in violation of the Constitution in a memo dated                                                              
January, 30 1996 to Marilyn Heiman from Frank Rue.                                                                              
                                                                                                                                
MR. TRASKY stated that they didn't have the January memorandum and                                                              
couldn't respond.  They had seen the November 22, 1996 decision.                                                                
                                                                                                                                
CHAIRMAN HALFORD said they would send him a copy.  By November, the                                                             
Commissioner had done what he considered unwise in January and he                                                               
asked if his current review is requesting him to reevaluate that                                                                
determination.                                                                                                                  
                                                                                                                                
MR. TRASKY replied that was correct.                                                                                            
                                                                                                                                
CHAIRMAN HALFORD asked if the rest of his letter came out of Mr.                                                                
McBride's chronology which may be at BLM or somewhere else.                                                                     
                                                                                                                                
MR. TRASKY said that was correct.  It was explaining why they felt                                                              
he should reverse his reversal of the 1994 position.                                                                            
                                                                                                                                
CHAIRMAN HALFORD said he wanted to take the Chenik Institute issue                                                              
up again in two weeks and hoped there wasn't going to be any action                                                             
on it by ADF&G or DNR in the next few weeks.                                                                                    
                                                                                                                                
MR. BRUCE said he spoke to the Commissioner and there wouldn't be                                                               
any action by ADF&G before the committee discussed it again.                                                                    
                                                                                                                                
SENATOR MACKIE asked if there were any other reasons for the                                                                    
Commissioner reversing his earlier decision.                                                                                    
                                                                                                                                
CHAIRMAN HALFORD said they would ask the Commissioner that question                                                             
when he becomes available.                                                                                                      
                                                                                                                                
SENATOR MACKIE said he was interested because Seldovia Native                                                                   
Corporation tried to get the land and was refused.  He asked if                                                                 
this land came to the State, would there be some consideration                                                                  
given to any other potential users; if there was interest in                                                                    
competing for a lease.                                                                                                          
                                                                                                                                
MS. RUTHERFORD reiterated that no decision about any action by DNR                                                              
has been made.  One of their options is to put this out to                                                                      
competitive lease.                                                                                                              
                                                                                                                                
MR. TRASKY said he had a couple of conversations with Seldovia                                                                  
Native Association and they hope to work with Mr. McBride.  In                                                                  
fact, one of his letters of support comes from the Seldovia Native                                                              
Association.                                                                                                                    
                                                                                                                                
CHAIRMAN HALFORD asked what was the status of the November 10, 1998                                                             
finding and decision, ADL225906.                                                                                                
                                                                                                                                
MR. TRASKY explained that the preliminary decision is what the                                                                  
public comments were taken on and is most likely to change based on                                                             
other information that has been gathered.  There would be further                                                               
public review before a final decision.                                                                                          
                                                                                                                                
CHAIRMAN HALFORD asked how they could make that finding without a                                                               
response from ADF&G.                                                                                                            
                                                                                                                                
MR. MYLIUS answered that this proposal is something for ADF&G to                                                                
respond to.                                                                                                                     
                                                                                                                                
MS. RUTHERFORD added for all of the Department's best interest                                                                  
findings, a preliminary decision is used as a methodology to                                                                    
solicit input from the public and the agencies.                                                                                 
                                                                                                                                
SENATOR LINCOLN asked if there was a response to Mr. Trasky's memo                                                              
of January 19 about selection of an appropriate site for such a                                                                 
facility.                                                                                                                       
                                                                                                                                
MR. TRASKY replied no.                                                                                                          
                                                                                                                                
SENATOR LINCOLN asked if they had followed up with a telephone                                                                  
call.                                                                                                                           
                                                                                                                                
MR. TRASKY said they had discussed this in the Department, but one                                                              
of the complications is that regulations for the refuge's                                                                       
commercial facility and structures plan say the structure has to                                                                
protect fish and wildlife habitat, conserve fish and wildlife                                                                   
populations, and maintain public use opportunities and high quality                                                             
environment.  Permanent commercial facilities will not be allowed                                                               
in either the refuge or the sanctuary, except that the Commissioner                                                             
will, in the Commissioner's discretion, allow a permanent                                                                       
commercial facility in the refuge specifically for the purpose of                                                               
facilitating the brown bear viewing program under appropriate terms                                                             
and conditions in a manner compatible with the purpose for which                                                                
the area is established only after a finding of fact indicates the                                                              
refuge and sanctuary management goals are better served with a                                                                  
commercial facility than without.  This has not been done yet, he                                                               
concluded.                                                                                                                      
                                                                                                                                
SENATOR MACKIE noted that where the memo says the Department should                                                             
continue to oppose any long-term lease, regardless of who the                                                                   
applicant might be, conflicts with what the Commissioner said in                                                                
November.                                                                                                                       
                                                                                                                                
MR. TRASKY said he thought there had been some change of thought                                                                
within the Department. Their purpose was to provide the                                                                         
Commissioner with additional facts  he needed to consider in making                                                             
that decision, to be consistent with his own statutes and                                                                       
regulations.                                                                                                                    
                                                                                                                                
MR. BRUCE added that the Commissioner met with staff in Anchorage                                                               
and discussed the issue recently, after the memo from Mr. Trasky.                                                               
There has not been a formal written response, yet, but discussions                                                              
have been going on within the Department.                                                                                       
                                                                                                                                
CHAIRMAN HALFORD asked who has the lead within the Department.                                                                  
                                                                                                                                
MR. BRUCE replied that at this point he knew the Commissioner took                                                              
the initiative to meet with staff, but he wasn't sure who was                                                                   
taking the lead on the technical stuff.                                                                                         
                                                                                                                                
TAPE 99-10, SIDE B                                                                                                              
Number 570                                                                                                                      
                                                                                                                                
MR. JOHN HILSINGER testified via teleconference that his main                                                                   
concern was covered by Mr. Trasky regarding the process laid out in                                                             
the management plan and the fact that to his knowledge, the                                                                     
Division of Wildlife Conservation has not decided that they want a                                                              
commercial facility in the refuge in order to facilitate the bear                                                               
viewing program.  Doing the finding of fact would be the second                                                                 
step. None of this has occurred, yet.                                                                                           
                                                                                                                                
MR. TOM WALKER, Cook Inlet Aquaculture Association, said they have                                                              
a pen and fish ladder just south of the Chenik Lodge for which they                                                             
do have a lease which they got by going through DNR, along with a                                                               
number of other permits that were necessary.  They support the                                                                  
Department's earlier decision that it was not necessarily a good                                                                
idea to permit Chenik.  He urged the Committee to stay with that                                                                
decision.                                                                                                                       
                                                                                                                                
Number 550                                                                                                                      
                                                                                                                                
CHAIRMAN HALFORD asked if the lands his permit is subject to are                                                                
also in BLM hands now.                                                                                                          
                                                                                                                                
MR. WALKER replied that the land they have a lease on is state                                                                  
land.  This is not the issue; the issue of bears is relevant to                                                                 
both situations and, in their case, one of their requirements to                                                                
have that property was that the staff and materials area has to be                                                              
surrounded by a 10 ft. barbed wire electrified fence - among other                                                              
things.  They don't see those kinds of restrictions even being                                                                  
suggested for this facility.                                                                                                    
                                                                                                                                
MR. FANDREI, Cook Inlet Aquaculture Association, supported Mr.                                                                  
Walker's comments.                                                                                                              
                                                                                                                                
MR. ROY HOYT, JR. said his opinion is that someone who has been in                                                              
trespass for 20 years and has constructed illegal structures should                                                             
be denied a lease.  In fact, they should be denied a lease on any                                                               
state or federal land from now on.                                                                                              
                                                                                                                                
MS. LOIS IRVIN, Homer, asked for maps of the area to help clarify                                                               
her understanding of the issue.                                                                                                 
                                                                                                                                
SENATOR MACKIE asked if the Commissioner was going to make the                                                                  
final decision on this.                                                                                                         
                                                                                                                                
MR. BRUCE replied that was correct, as the law requires, and he was                                                             
in the process of considering it.                                                                                               
                                                                                                                                
SENATOR MACKIE said he wanted a comment on the Commissioner's memo                                                              
saying it was unconstitutional and needed an Attorney General's                                                                 
opinion.                                                                                                                        
                                                                                                                                
CHAIRMAN HALFORD noted that constitutional protection of everyone                                                               
else's rights collectively to what is public property is difficult                                                              
to handle.                                                                                                                      
                                                                                                                                
SENATOR MACKIE said that was his biggest concern.  He knows because                                                             
of issues in his district that it's a complicated issue.                                                                        
                                                                                                                                
SENATOR KELLY noted that in his district there is a similar                                                                     
situation across the Tanana River from Fairbanks where people have                                                              
made little hunting camps and they are being burned out.                                                                        
                                                                                                                                
CHAIRMAN HALFORD said the committee would take this issue up again                                                              
soon and adjourned the meeting at 4:06 p.m.                                                                                     

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