Legislature(1997 - 1998)

04/28/1997 03:58 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SENATE RESOURCES COMMITTEE                                  
                         April 28,1997                                         
                           3:58 P.M.                                           
 MEMBERS PRESENT                                                               
 Senator Rick Halford, Chairman                                                
 Senator Lyda Green, Vice Chairman                                             
 Senator Loren Leman                                                           
 Senator Bert Sharp                                                            
 Senator Robin Taylor                                                          
 Senator John Torgerson                                                        
  MEMBERS ABSENT                                                               
 Senate Georgianna Lincoln                                                     
  COMMITTEE CALENDAR                                                           
 HOUSE JOINT RESOLUTION NO. 22                                                 
 Relating to the maritime boundary between Alaska and the former               
 Union of Soviet Socialist Republics.                                          
  - WAIVED OUT OF COMMITTEE                                                    
 CS FOR HOUSE BILL NO. 17(RES)                                                 
 "An Act establishing the Department of Natural Resources as the               
 platting authority in certain areas of the state; relating to                 
 subdivisions and dedications; and providing for an effective date."           
  - HEARD AND HELD                                                             
 HOUSE JOINT RESOLUTION NO. 34                                                 
 Relating to proposed regulations of the North Pacific Fishery                 
 Management Council creating a new discriminatory halibut fishery in           
  - MOVED HJR 34 OUT OF COMMITTEE                                              
  PREVIOUS SENATE COMMITTEE ACTION                                             
 HJR 22 - See Resources minutes dated 4/25/97.                                 
 HB 17 - See Resource Committee minutes dated 4/23/97 and 4/25/97.             
 HJR 34 - See Resource Committee minutes dated 4/25/97.                        
  WITNESS REGISTER                                                             
 Mr. Walt Wilcox, Staff                                                        
 Representative Jeannette James                                                
 State Capitol Bldg.                                                           
 Juneau AK 99801-1182                                                          
  POSITION STATEMENT:   Staff to sponsor of HB 17.                             
 Mr. Craig Savage                                                              
 723 W 6th Ave.                                                                
 Anchorage AK 99501                                                            
  POSITION STATEMENT:   Commented on HB 17.                                    
 Mr. Pat Kalan                                                                 
 Alaska Society for Professional Land Surveyors                                
 1041 Chena Ridge Rd.                                                          
 Fairbanks AK 99709                                                            
  POSITION STATEMENT:   Commented on HB 17.                                    
 Ms. Jane Angvik, Director                                                     
 Division of Lands                                                             
 Department of Natural Resources                                               
 3601 C Street                                                                 
 Anchorage AK 99503-5947                                                       
  POSITION STATEMENT:   Commented on HB 17.                                    
 Mr. Gerald Hayes, Chief Surveyor                                              
 Department of Natural Resources                                               
 3601 C Street                                                                 
 Anchorage AK 99503-5947                                                       
  POSITION STATEMENT:   Commented on HB 17.                                    
 Mr. Dick Bishop, Executive Director                                           
 Alaska Outdoor Council                                                        
 Territorial Sportsmen of Juneau, Inc.                                         
 211 4th St., #302A                                                            
 Juneau AK 99801                                                               
  POSITION STATEMENT:   Supported HJR 34.                                      
 Mr. Rick Lauber, President                                                    
 North Pacific Fisheries Management Council                                    
 321 Highland Dr.                                                              
 Juneau AK 99801                                                               
  POSITION STATEMENT:   Commented on HJR 34.                                   
 Representative Alan Austerman                                                 
 State Capitol Bldg.                                                           
 Juneau AK 99801-1182                                                          
  POSITION STATEMENT:   Sponsor of HJR 34.                                     
 Mr. Ron Sommerville                                                           
 Senate and House Leadership                                                   
 State Capitol Bldg.                                                           
 Juneau AK 99801-1182                                                          
  POSITION STATEMENT:   Supported HJR 34.                                      
  ACTION NARRATIVE                                                             
  TAPE 97-29, SIDE A                                                           
 Number 001                                                                    
             HJR 22 ALASKA/RUSSIA MARITIME BOUNDARY                           
  CHAIRMAN HALFORD  called the Senate Resources Committee meeting to           
 order at 3:58 p.m. and stated the committee had waived  HJR 22  from          
          HB  17 DNR APPROVE PLATS IN UNORG.BOROUGH                          
  CHAIRMAN HALFORD  announced  CS  HB 17(RES)  to be up for considerati        
  MR. WALT WILCOX,  Staff to Representative James, sponsor, said HB 17         
 brings all of the unorganized borough under DNR's purview for                 
 platting of real estate.  It also clarifies the meaning of                    
 subdivision and makes it standard throughout the statutes.  It is             
 supported by the surveyors and DNR.                                           
 MR. WILCOX asked Mr. Savage to explain the first part of the                  
 proposed amendment.                                                           
  MR. CRAIG SAVAGE  responded that he interpreted that to mean the             
 State would not be charging itself for review of plats of its own             
 MR. WILCOX reviewed the remaining three amendments.                           
  SENATOR TAYLOR  asked Mr. Savage to explain the purpose of the last          
 amendment which deletes all references to State plats.                        
  MR. SAVAGE  responded that that is one of the reasons they have been         
 working so hard to get a definition of subdivision - to make sure             
 that it refers to the actual division of a piece of land rather               
 than any survey.  If you exclude open-to-entry that are done by the           
 State or on behalf of the State, that opens up a tremendous amount            
 of area that really isn't subdivision so much as it is boundary               
  CHAIRMAN HALFORD  asked if the amendment is adopted, does that mean          
 open-to-entry, remote parcel, or homestead plats are, in fact, not            
 subdivisions and it's clear in the bill they do not have to go                
 through that review process.   MR. SAVAGE  replied that it was the            
 contrary.  (B) is an exclusion from the definition of subdivision             
 and if they remove open-to-entry plats and other State parcels,               
 they become included in the definition of subdivision.                        
  CHAIRMAN HALFORD    commented that the remote parcel program, the            
 homestead program, and the old OTE program, although surveyed long            
 ago, were subdivisions of State land within State land and those              
 already go through the DNR process.  The surveys have to be done              
 according to the survey instructions and everything that came with            
 whatever program they came from.  Why should that be dealt with in            
 this bill, he asked.                                                          
  MR. WILCOX  responded that it would be deleted from being dealt with         
 in this bill under the amendment.   MR. SAVAGE  said the reason the           
 open-to-entry plats or remote parcel plats were originally excluded           
 from subdivisions in part was in response to some of the                      
 requirements that were placed on them by DEC, like soils testing,             
 and that sort of thing, on extremely large parcels in extremely               
 remote areas.  And one of the things they are trying to do in this            
 bill is standardize the word subdivision throughout the State                 
 statutes.  Senator Halford is correct in that the open-to-entry and           
 remote parcel plats are already under the supervision of DNR, but             
 throughout State statutes there's a difference between the open-to-           
 entry and remote parcels and subdivisions.                                    
  MR. PAT KALAN,  Alaska Society of Professional Land Surveyors,     sa        
 the open-to-entry program is very obsolete.  There hasn't been one            
 for 12 or 14 years and the State indicated there was a single                 
 remote parcel left which could be dealt with.  He said the                    
 amendment clarifying the definition of the word subdivision was               
 Number 210                                                                    
  MS. JANE ANGVIK,  Director, Division of Lands, asked if they                 
 intended to exclude cadastral plats that are created by the State.            
  MR. KALAN  said they already do that; they go to the municipalities.         
 A control plat doesn't create a boundary so he couldn't see that              
 there was any affect.                                                         
  SENATOR TAYLOR  asked if this legislation was an attempt to bring            
 under the control of the Department of Natural Resources any                  
 subdivision occurring in a remote parcel which is not encompassed             
 within the boundaries of a borough or city.   CHAIRMAN HALFORD                
 answered yes.  He said there was an existing statute saying that              
 DNR is the platting authority for the unorganized borough.  He                
 didn't know if that meant a filing authority or an approval                   
   MR. GERALD HAYES,  Chief Surveyor, responded that currently DNR has         
 platting authority only for vacation of easements and changing of             
 existing boundaries within the unorganized borough.  The change               
 under this bill would place creation of new parcels within existing           
 surveys under a platting authority.  Apparently, they don't have to           
 be approved by any authority.   MR. WILCOX  explained the reason this         
 came up in the area of unorganized portions is that the University            
 was subdividing land with no access and no oversite.  They are                
 required to abide by State law, but there is no one to enforce that           
 in unorganized boroughs.                                                      
  SENATOR TAYLOR  asked if it became revenue neutral by charging fees.         
 MR. WILCOX replied yes.                                                       
  CHAIRMAN HALFORD  asked if the sponsor considered a statutory                
 requirement amplifying the existing easement availability instead             
 of creating a new platting authority, because he agrees with the              
 thing she is trying to stop, but he worries about creating a new              
 approval authority that, if the budget isn't what somebody wants,             
 they stop approving.  It increases the user fee and he's not sure             
 what the net result is.  He agrees there should be buildable,                 
 physical access to property.                                                  
  MR. WILCOX  said that Mr. Kalan has some horror stories of                   
 subdivisions that weren't recorded and subsequently a portion of              
 them financed and people were disenfranchised of their rights to              
 the property.  He asked Mr. Kalan to comment on some of the                   
 problems occurring from not having oversite.                                  
  MR. KALAN  said the biggest one is that people could create lots             
 without provision for a legal access.  When there was the idea to             
 give DNR some power to file plats, they wanted to keep it real                
 simple and make some rules so that it didn't get out of hand.                 
  MR. WILCOX  said that Representative James shares the Chairman's             
 concern about giving any more authority to DNR, but couldn't come             
 up with another way to deal with this issue.                                  
  SENATOR TAYLOR  asked if the primary purpose was one of access or            
 designing lots that comply with somebody's preconceived notion of             
 what a lot should be.                                                         
  MR. WILCOX  responded that last year the legislature took away the           
 DEC's platting review authority and this isn't someone's idea of              
 what a subdivision should be.  The legislature's statutes and                 
 subsequent regulations promulgated by the agency would drive the              
  MR. KALAN  said he heard them mention the idea of standards and they         
 specifically forbid DNR coming up with engineering standards, but             
 rely on the judgement of the surveyor.  They don't have any one set           
 of rules.  This covers airports and rights-of way for anything that           
 would involve making a road or airport foundry and they expect                
 there would be quite a few of the parcels created.                            
  CHAIRMAN HALFORD  said the 45 day approval requirement is good.  The         
 question is how that actually works, but they would work with the             
 sponsor to try to understand and incorporate the amendment and see            
 if there is any simple self enforcing way to make it either                   
 approved or not in case there is a budget shortfall and DNR can't             
 review them and they are approved automatically.                              
         HJR 34 NPFMC PROPOSED REGS FOR HALIBUT FISHERY                       
  CHAIRMAN HALFORD  announced HJR 34 to be up for consideration.               
  REPRESENTATIVE ALAN AUSTERMAN      said that this resolution was             
 introduced because of the actions the North Pacific Fisheries                 
 Management Council (NPFMC) was taking to create a halibut                     
 subsistence program. A number of them felt a program wasn't needed            
 and they are asking them not to implement it.  The criteria in                
 their first proposal is quite discriminatory and bringing the                 
 subject up now and creating regulations referenced to subsistence             
 halibut would create more of a gridlock in trying to solve the                
 current subsistence problems.                                                 
  CHAIRMAN HALFORD  said the background is that someone was a little           
 overzealous in enforcement.   REPRESENTATIVE AUSTERMAN  agreed and            
 added that a native group requested the Council to put together               
 subsistence regulations for halibut.                                          
  CHAIRMAN HALFORD  asked if there wasn't another way to handle this           
 without creating all these problems.  He didn't think they said               
 enough in the resolution about other ways to do it.                           
  REPRESENTATIVE AUSTERMAN  said the Council put a subcommittee                
 together to come up with this proposal.   SENATOR TAYLOR  wondered            
 what basis they used for the numbers.                                         
 Number 444                                                                    
  MR. DICK BISHOP,  Executive Director, Alaska Outdoor Council and             
 Territorial Sportsmen of Juneau, Inc., supported HJR 34 which                 
 addresses many of the most objectionable parts of the proposed                
 halibut subsistence proposal soon to be considered by the North               
 Pacific Management Council.  Some of these include discrimination             
 on racial grounds, or on the basis of zip code, and adopting the              
 unlimited catch of halibut under subsistence regardless of size,              
 etc. - very much like ANILCA's undefined customary and traditional            
 use priority.  It is reopening the door to commercial sale of                 
 another so called subsistence resource.  Federal courts have                  
 already established under ANILCA that sales of subsistence fish for           
 tens of thousands of dollars are o.k., and although this is a                 
 different matter, the precedents that have been established in                
 federal court are likely to be significant.                                   
 Furthermore, it provides for a new fishery that is bound to compete           
 with existing fisheries, but on a discriminatory basis; and finally           
 the same strategy could be easily proposed for other marine                   
 resources such as crabs.                                                      
 MR. BISHOP said it is important to recognize that these proposed              
 regulations, looking at the table of catches, are not about                   
 obtaining food by customary and traditional means.  Instead they              
 are yet another ploy to expand political and institutional approval           
 of special privileges for a racially defined group of people.                 
 He read a quote from the committee's report on dealing with non-              
 tribal Alaskans:  "The committee discussed a proposal to include              
 `other rural residents in areas of Alaska with halibut uses.'  The            
 committee discussed the opportunities for non-tribal Alaskans to              
 harvest halibut and concluded that the two fish per day sport fish            
 limit would meet their needs for supplying their families with                
 halibut for food.  The determining factor in this conclusion was              
 the stated need to recognize existing traditional practice at                 
 current levels of halibut removals.  The management plan for                  
 halibut subsistence programs should legalize the current halibut              
 removals and fishing practices by tribal members.  Expansion of               
 subsistence harvest to nontraditional users may create resource               
 concerns within the IPHC regarding increased levels of halibut                
 removals and localized depletions in some rural and urban                     
 MR. BISHOP said that it's apparent that the committee felt that for           
 non-tribal people the standard of sport fishing was adequate, but             
 for tribal members it was not.  This State is already being                   
 socially shredded by controversy over subsistence and Indian                  
 country and we don't need another discriminatory rule relating to             
 the use of fish and game.  He said they would support changes in              
 the personal use or sport fishing rules rather than establishing a            
 new fishery.                                                                  
 Number 493                                                                    
  SENATOR TAYLOR  agreed with his comments and said many of them have          
 been frustrated for years about the personal use aspect of halibut            
 on the grounds that a boat out there fishing for them can't take an           
 undersized fish that's dead or dying and utilize it for their own             
 consumption without running serious risks of prosecution.  He asked           
 if the NPFMC believe they are mandated by federal law (ANILCA) to             
 bring about this change.   MR. BISHOP  said he couldn't answer that,          
 but was sure it didn't fall under the requirements of ANILCA.                 
  SENATOR TAYLOR  asked if this wouldn't be an extension of ANILCA             
 even into waters beyond federal jurisdiction.   MR. BISHOP  replied           
 that his understanding is that it does not fall within the purview            
 of ANILCA.                                                                    
 Number 519                                                                    
  MR. RON SOMMERVILLE,  Senate and House leadership, said that ANILCA          
 specifically excludes the Magnuson Act; it specifically limited the           
 impacts of ANILCA to mean high tide although the advance notice of            
 rule making indicates that the secretary might be able to extend              
 their jurisdiction into adjacent State waters if there was an                 
 impact on subsistence.                                                        
 MR. SOMMERVILLE pointed out that two cases led to this; one at                
 Toksook Bay and the use of skates by a resident of Angoon for                 
 taking halibut for personal use in May (for drying).  Before IFQs             
 were distributed this was the practice.  Speaker Phillips requested           
 that they look at existing regulatory structure to accommodate some           
 of those uses and one suggestion was to legally allow for the                 
 retention of undersized halibut to 4E, a specific area of the State           
 where it has been a consistent problem.  They could also allow the            
 use of one skate of a certain size for taking of personal use in              
 May in specific areas of the State.  He's note advocating this, but           
 it is conceivable.  The commercial people on the Council expressed            
 real concerns about that.                                                     
 The Council agreed to go forward with the two options of doing                
 nothing and what is in their packet.  A third alternative was a               
 result of Speaker Phillips request.  These will be analyzed in                
 preparation for the June 14 meeting in Kodiak.                                
 MR. SOMMERVILLE said they are hoping to have an opinion as to                 
 whether the Council has the authority to discriminate based on                
 Number 569                                                                    
  CHAIRMAN HALFORD  asked how the State would enforce it with our              
 Constitution, if they choose to define a violation of law racially.           
  MR. SOMMERVILLE  replied that the International Treaty on Halibut            
 preempted the State on halibut.  He said their legal opinion would            
 be as good as his and it doesn't appear that the State could.                 
  CHAIRMAN HALFORD  said that apparently the Council feels obligated           
 to go forward with something and asked what is the best message to            
 put the most reasonableness into whatever approach is taken.   MR.            
 SOMMERVILLE  responded that he couldn't suggest any wording changes           
 to the resolution and he would pass it out as it is.                          
  SENATOR TAYLOR  said he was surprised that no one was here to oppose         
 the resolution.                                                               
  TAPE 97-29, SIDE B                                                           
   MR. SOMMERVILLE  said they have a letter from Toksook Bay opposing          
 SJR 34.                                                                       
   MR. RICK LAUBER,  President, NPFMC, commented that the letter from          
 Speaker Phillips and President Miller had some impact on the                  
 Council; and the attorneys are working on the answers to the legal            
 questions.  At this stage the public has not had an opportunity to            
 comment on this issue formally and it is their practice to allow              
 that.  At their meeting in June in Kodiak the Council could do any            
 one of the things or a combination of the alternatives or options.            
 They cannot expand beyond what was analyzed.                                  
  SENATOR LEMAN  moved to pass HJR 34 with individual recommendations.         
 There were no objections and it was so ordered.                               
  CHAIRMAN HALFORD  adjourned the meeting at 4:49 p.m.                         

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