Legislature(1997 - 1998)
04/28/1997 03:58 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 Alaska. - 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 ANS 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 committee. 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 land. 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 delineation. 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 good. 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 authority. 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 requirements. 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 communities." 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 race. 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.