Legislature(2019 - 2020)BUTROVICH 205

03/27/2019 03:30 PM Senate RESOURCES

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                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE RESOURCES STANDING COMMITTEE                                                                             
                         March 27, 2019                                                                                         
                           3:30 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Chris Birch, Chair                                                                                                      
Senator John Coghill, Vice Chair                                                                                                
Senator Cathy Giessel                                                                                                           
Senator Lora Reinbold                                                                                                           
Senator Click Bishop                                                                                                            
Senator Scott Kawasaki                                                                                                          
Senator Jesse Kiehl                                                                                                             
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 51                                                                                                              
"An Act requiring  the designation of state  water as outstanding                                                               
national  resource  water  to  occur  by  law;  relating  to  the                                                               
authority of  the Department  of Environmental  Conservation, the                                                               
Department  of  Fish and  Game,  and  the Department  of  Natural                                                               
Resources  to  nominate  water  for  designation  as  outstanding                                                               
national resource  water; relating  to management  of outstanding                                                               
national  resource  water  by  the  Department  of  Environmental                                                               
Conservation; and providing for an effective date."                                                                             
     - HEARD & HELD                                                                                                             
SENATE BILL NO. 42                                                                                                              
"An  Act  requiring  the  state   to  quitclaim  to  the  federal                                                               
government  land or  an interest  in land  after a  determination                                                               
that the land or interest  was wrongfully or erroneously conveyed                                                               
to the state."                                                                                                                  
     - HEARD & HELD                                                                                                             
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB 51                                                                                                                   
SHORT TITLE: NATL. RES. WATER NOMINATION/DESIGNATION                                                                            
SPONSOR(s): RESOURCES                                                                                                           
02/11/19       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/11/19       (S)       RES, FIN                                                                                               
03/15/19       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
03/15/19       (S)       Heard & Held                                                                                           
03/15/19       (S)       MINUTE(RES)                                                                                            
03/20/19       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
03/20/19       (S)       Heard & Held                                                                                           
03/20/19       (S)       MINUTE(RES)                                                                                            
03/27/19       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
BILL: SB 42                                                                                                                   
SHORT TITLE: QUITCLAIM LAND TO UNITED STATES                                                                                    
SPONSOR(s): COGHILL                                                                                                             
02/01/19       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/01/19       (S)       RES                                                                                                    
03/27/19       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
WITNESS REGISTER                                                                                                              
TREVOR FULTON, Staff                                                                                                            
Senator Birch                                                                                                                   
Alaska State Legislature                                                                                                        
POSITION STATEMENT: Provided an overview of changes from Version                                                              
K to Version R committee substitutes for SB 51.                                                                                 
EMILY NAUMAN, Legislative Counsel                                                                                               
Division of Legal and Research Services                                                                                         
Legislative Affairs Agency                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Answered questions regarding SB 51.                                                                       
JENNIFER CURRIE, Assistant Attorney General                                                                                     
Alaska Department of Law                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Addressed questions regarding SB 51.                                                                      
ANDREW SAYERS-FAY, Director                                                                                                     
Division of Water                                                                                                               
Alaska Department of Environmental Conservation                                                                                 
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Answered questions regarding SB 51.                                                                       
RYNNIEVA MOSS, Staff                                                                                                            
Senator Coghill                                                                                                                 
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Provided an overview of SB 42.                                                                            
DESIREE DUNCAN, Native Lands Manager                                                                                            
Central Council Tlingit and Haida Indian Tribes of Alaska                                                                       
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Testified in support of SB 42.                                                                            
SHEILA NEKETA, Staff                                                                                                            
Land Management Services                                                                                                        
Bristol Bay Native Association                                                                                                  
Dillingham, Alaska                                                                                                              
POSITION STATEMENT: Testified in support of SB 42.                                                                            
ROBERT BREAN, Allotment Claimant                                                                                                
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Testified in support of SB 42.                                                                            
MITCHELL ALLAN, Allotment Claimant                                                                                              
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT: Testified in support of SB 42.                                                                            
MURRAY CLAYTON, Allotment Claimant                                                                                              
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT: Testified in support of SB 42.                                                                            
MARTY PARSONS, Director                                                                                                         
Division of Mining, Land and Water                                                                                              
Alaska Department of Natural Resources                                                                                          
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Discussed the division's work pertaining to                                                               
SB 42.                                                                                                                          
ACTION NARRATIVE                                                                                                              
3:30:30 PM                                                                                                                    
CHAIR CHRIS BIRCH called the  Senate Resources Standing Committee                                                             
meeting to order  at 3:30 p.m. Present at the  call to order were                                                               
Senators Kawasaki,  Coghill, Giessel, Kiehl, Reinbold,  and Chair                                                               
         SB 51-NATL. RES. WATER NOMINATION/DESIGNATION                                                                      
3:31:16 PM                                                                                                                    
CHAIR BIRCH  announced the  consideration of  Senate Bill  51 (SB
51). He said  his intent is to adopt a  committee substitute (CS)                                                               
and report the bill on to the next committee of referral.                                                                       
3:31:51 PM                                                                                                                    
SENATOR  COGHILL  moved to  adopt  the  proposed  CS for  SB  51,                                                               
labeled 31-LS0375\R, as the working document of the committee.                                                                  
SENATOR GIESSEL objected for discussion purposes.                                                                               
3:32:14 PM                                                                                                                    
TREVOR FULTON,  Staff, Senator  Birch, Alaska  State Legislature,                                                               
Juneau,  Alaska, explained  that  there are  two  changes in  the                                                               
Version  R CS  for SB  51. He  said the  first change  is cleanup                                                               
recommended  by Legislative  Legal. On  page 1,  line 11,  delete                                                               
"and this section," which was a  vestige from a previous draft of                                                               
the bill.                                                                                                                       
He explained that the second,  more substantive, change begins on                                                               
page 1, line  12, and encompasses the entire  subsection (b). The                                                               
change was  in response  to concern that  the old  subsection (b)                                                               
may have  diluted the sponsor's  intent that the  legislature has                                                               
the  final decision  as to  whether to  designate an  outstanding                                                               
national  resource water.  The old  subsection  (b) required  the                                                               
Alaska  Department of  Environmental  Conservation (DEC),  Alaska                                                               
Department of Natural Resources  (DNR), and the Alaska Department                                                               
of  Fish and  Game (ADFG)  to unanimously  agree on  a nomination                                                               
prior to  forwarding it to  the legislature; however,  a decision                                                               
by  the  departments  not  to   forward  a  nomination  could  be                                                               
construed as precluding  a decision by the  legislature which was                                                               
not the intent of the bill.  The new subsection (b) requires that                                                               
all nominations  be forwarded, not just  those recommendations by                                                               
the  departments, in  an annual  report to  the legislature.  The                                                               
annual  report does  not constitute  an appealable,  final agency                                                               
3:32:36 PM                                                                                                                    
SENATOR BISHOP joined the committee meeting.                                                                                    
MR. FULTON  summarized that the intent  of the CS is  to maintain                                                               
the  benefit of  having  the three  resource  departments lend  a                                                               
minimum level  of scientific review and  subject matter expertise                                                               
to  Tier   3  water  nominations  while   reinforcing  the  final                                                               
authority  for  Tier 3  designation  lies  in  the hands  of  the                                                               
CHAIR  BIRCH   asked  Senator  Giessel   if  she   maintains  her                                                               
3:34:14 PM                                                                                                                    
SENATOR GIESSEL removed her objection.                                                                                          
CHAIR BIRCH  announced that that  the Version R  CS for SB  51 is                                                               
SENATOR  GIESSEL  said she  had  requested  that the  Legislative                                                               
Legal bill drafter and the  Department of Law be available during                                                               
the committee meeting.  She explained that she has  four areas of                                                               
She asked Emily Nauman with Legal  Services to address the CS for                                                               
SB 51. She said the CS  does not reference the legislature as the                                                               
body that would make the determination.  The CS only says on page                                                               
1, line  11, "only  by law."  She said  her understanding  of "by                                                               
law" would  mean a bill passed  by the legislature and  signed by                                                               
the governor  or it  could mean "by  initiative." She  added that                                                               
her   understanding   is   the  Alaska   Constitution   disallows                                                               
initiatives  that appropriate.  She said  she believes  SB 51  is                                                               
appropriating  a   resource  of  the   state.  She  asked   if  a                                                               
designation  of  water  constitutes   an  appropriation  per  the                                                               
constitution  and therefore  would be  ineligible to  be made  by                                                               
3:36:03 PM                                                                                                                    
EMILY NAUMAN,  Legislative Counsel,  Legal Services,  Division of                                                               
Legal and  Research Services, Legislative Affairs  Agency, Alaska                                                               
State Legislature, Juneau, Alaska,  answered that Senator Giessel                                                               
is  correct;  by law  the  designation  encompasses both  an  act                                                               
passed  by  the  legislature,  signed  by  the  governor  and  an                                                               
initiative.  She  said  she  will  follow  up,  but  her  initial                                                               
reaction  is  the  bill  is  not  an  appropriation  because  the                                                               
legislature  is not  giving  the  land to  someone  or making  an                                                               
allocation of  an asset.  The legislature  is just  submitting to                                                               
more stringent water quality standards.                                                                                         
SENATOR  GIESSEL  countered that  the  designation  of the  water                                                               
changes the  ability of the land  that is adjacent to  that water                                                               
body to  be utilized in  certain ways, thereby  appropriating the                                                               
MS.  NAUMAN  replied  that  she  does not  see  the  bill  as  an                                                               
appropriation but will look further into the issue.                                                                             
SENATOR GIESSEL asked  to hear from the Department of  Law on the                                                               
3:38:01 PM                                                                                                                    
JENNIFER  CURRIE, Assistant  Attorney General,  Alaska Department                                                               
of Law, Juneau, Alaska, said she  will have to do some additional                                                               
research to make a determination because she is not sure.                                                                       
SENATOR GIESSEL emphasized  that the committee needs  to be aware                                                               
of the appropriation issue.                                                                                                     
She asked Ms. Nauman to address on  line 11 in the bill, the word                                                               
"law"  within   the  phrase  "only   by  law".  She   noted  that                                                               
regulations have the  force of law and asked if  the phrase could                                                               
be   interpreted  to   mean  the   Department  of   Environmental                                                               
Conservation  (DEC)  could pass  regulations  that  would put  in                                                               
place a designation of Tier 3  waters and thereby have a force of                                                               
MS. NAUMAN  responded that  she would  have to  take a  moment to                                                               
process the question prior to answering.                                                                                        
SENATOR COGHILL  suggested that the  committee look at  art. XII,                                                               
sec.  11 of  the  Alaska Constitution  because  an initiative  is                                                               
allowed. He  added that  there was  also a  court case  where the                                                               
intent was  to give land to  the university, but the  land was an                                                               
appropriation which barred the transaction.                                                                                     
MS.  NAUMAN  answered  that  Senator   Giessel  is  correct  that                                                               
regulations commonly are  described as law and she  will get back                                                               
to the committee  on the effect of "only by  law" and whether the                                                               
section  could   be  interpreted   as  the   department  adopting                                                               
3:40:17 PM                                                                                                                    
SENATOR GIESSEL directed attention to  page 1, line 12 that says,                                                               
"The department may accept an  application for a nomination." She                                                               
said  the original  version of  SB 51  said the  department shall                                                               
accept  nominations,  whereas  the  CS  says  the  department  is                                                               
accepting  applications for  nominations.  She  asked Ms.  Nauman                                                               
what  the   difference  is  between   the  application   and  the                                                               
nomination because it sounds like another step.                                                                                 
MS.  NAUMAN replied  that she  does not  see the  application for                                                               
nomination as  another step other than  to possibly differentiate                                                               
the fact  that there might need  to be some paperwork  filled out                                                               
or some minimum  requirement for a nomination  to become complete                                                               
and therefore that would become sort of an application.                                                                         
SENATOR GIESSEL asked  if the department would  therefore have to                                                               
approve an application for a designation to become a nomination.                                                                
MS. NAUMAN replied that inquiry is not specified in the bill.                                                                   
SENATOR GIESSEL  remarked that there was  a gap. She said  the CS                                                               
requires  the  department  to make  a  recommendation  about  the                                                               
nominations.  Page 2,  line 3  says, "The  report must  provide a                                                               
recommendation regarding  whether each nominated water  should be                                                               
designated as outstanding national  resource water." She asked if                                                               
"no recommendation" is among the options for the department.                                                                    
MS. NAUMAN  answered that  the bill states  that the  report must                                                               
provide  a recommendation  so the  department  could provide  "no                                                               
recommendation"  and not  be in  a substantial  violation of  the                                                               
section;  that  response  would  be  based  on  the  department's                                                               
interpretation  that  they  must  provide  a  recommendation  and                                                               
whether or not  no recommendation was actually some  sort of form                                                               
of not having an opinion either way.                                                                                            
3:42:46 PM                                                                                                                    
SENATOR  GIESSEL   asked  what   the  legal  significance   of  a                                                               
recommendation  is and  if it  is appealable.  She inquired  what                                                               
would  happen if  the department  recommend" and  the legislature                                                               
takes an opposite action.                                                                                                       
MS. NAUMAN answered that the  recommendation she envisions is the                                                               
department  provides  a  possible supported,  researched  opinion                                                               
about whether the  water qualifies for the Tier  3 designation or                                                               
whether it is  worthy of the Tier 3  designation. The legislature                                                               
is   free   to   disregard   a   recommendation   or   follow   a                                                               
recommendation.  The recommendation  by the  department does  not                                                               
bind the legislature  in any way. In fact,  the legislature could                                                               
consider any  body of water  for a Tier 3  designation regardless                                                               
of whether a recommendation was passed on from the department.                                                                  
She said regarding the question  about whether the recommendation                                                               
is a  final decision, the  language on  page 2, lines  7-10 says,                                                               
"The preparation and  delivery of a report  under this subsection                                                               
does not  constitute a final  agency decision or action,  and the                                                               
recommendation  is not  subject  to appeal,  including appeal  or                                                               
review under AS 44.62  (Administrative Procedure Act)." attempted                                                               
to foreclose  that. It clarifies  that it  is not the  opinion of                                                               
the legislature that the recommendation  is the final action on a                                                               
decision  whether to  designate a  body of  water as  outstanding                                                               
national resource  water. That decision  is actually  being taken                                                               
up by the legislature.                                                                                                          
3:44:22 PM                                                                                                                    
SENATOR  GIESSEL  read the  language  on  page  2, line  9,  "the                                                               
recommendation  is not  subject  to appeal,  including appeal  or                                                               
review under  AS 44.62 (Administrative Procedure  Act)." She said                                                               
the   question   is   what   is   the   legal   significance   of                                                               
"recommendation." She inquired  if someone can protest  or sue if                                                               
the legislature were to refuse to take  up the bill or to reach a                                                               
conclusion that was different than the report's recommendation.                                                                 
MS.  NAUMAN replied  that people  sue  all of  time about  almost                                                               
everything, it's  why most of  the world's lawyers  are employed,                                                               
but to the extent that the  legislature takes up or does not take                                                               
up any  matter is a  matter of the legislature's  prerogative and                                                               
that argument  can be made  about any action of  the legislature.                                                               
The legislative powers are a  constitutional one that is inherent                                                               
in  the  body's  ability  to  pass  or  not  pass  any  piece  of                                                               
legislation.  She  opined that  she  does  not see  a  successful                                                               
lawsuit of someone  suing over the legislature's  decision on the                                                               
department's recommendation.                                                                                                    
SENATOR GIESSEL  asked Ms. Currie  for her thoughts on  the legal                                                               
significance of a recommendation.                                                                                               
MS.  CURRIE answered  that  she  agreed with  Ms.  Nauman that  a                                                               
recommendation  is  merely the  opinion  given  by the  different                                                               
resource agencies and that the legislature  is free to use or not                                                               
use the departmental recommendations to make its decision.                                                                      
3:46:23 PM                                                                                                                    
SENATOR   GIESSEL  asked   Ms.   Currie  to   confirm  that   the                                                               
recommendation would not hold legal binding status.                                                                             
MS. CURRIE answered no, especially  with the wording regarding it                                                               
not being  an appealable  decision. She  noted that  the original                                                               
legislation stated that  if the resource agencies  had a negative                                                               
recommendation that  it would  not go  any further;  however, the                                                               
goal was  to make  sure the legislature  makes that  decision and                                                               
not  the resource  agencies, so  that language  was taken  out so                                                               
that all recommendations have to  be forwarded to the legislative                                                               
SENATOR  GIESSEL  said  her  fourth  topic has  to  do  with  the                                                               
permanence of the  designation. A similar bill was  heard in 2016                                                               
and at  that time the  Senate Resources Committee  questioned DEC                                                               
as to the question of "permanence."  She said she inquired if the                                                               
declaration  of  Tier 3  waters  is  a permanent  designation  in                                                               
perpetuity.  She  noted  the committee's  letter  back  from  the                                                               
commissioner  stated that  he did  not think  the designation  is                                                               
permanent and yet at the same  time the EPA itself could not give                                                               
a clear answer  on the designation. She asked  if the legislature                                                               
could repeal the designation by  repealing the law and what would                                                               
the options be for the EPA in  the future if they were to contest                                                               
the state's  decision and  even go so  far as  repealing Alaska's                                                               
primacy over  waters. She inquired  if the Department of  Law has                                                               
experience  with the  EPA  regarding the  declaration  of Tier  3                                                               
waters and its permanency.                                                                                                      
MS. CURRIE  replied that the  Department of  Law is aware  of two                                                               
states that currently have regulations that allow a de-                                                                         
designation of a  Tier 3 water; however, the  department does not                                                               
know  whether the  de-designation  has ever  been attempted.  She                                                               
said she does not think that  categorially the EPA has said there                                                               
is no process  for de-designation because they would  have had to                                                               
approve  those regulations.  She  deferred  to Andrew  Sayers-Fay                                                               
with DEC to talk about EPA's  role in de-designating if the state                                                               
were to designate a water.                                                                                                      
3:49:50 PM                                                                                                                    
ANDREW   SAYERS-FAY,   Director,   Division  of   Water,   Alaska                                                               
Department   of  Environmental   Conservation,  Juneau,   Alaska,                                                               
explained that  since 2016, the  division has had  some follow-up                                                               
conversations with  the EPA about  the ability to  de-designate a                                                               
Tier 3  or an outstanding  national resource water body.  The EPA                                                               
conveyed that  they do  not see anything  that prohibits  a state                                                               
from  taking  the de-designation  action.  The  division has  not                                                               
gotten into the  nuances of how the  de-designation process would                                                               
work or what role  the EPA may or may not play  if the state took                                                               
a de-designation action.                                                                                                        
SENATOR GIESSEL  asked Mr. Sayers-Fay  if the  communication with                                                               
the EPA is in writing.                                                                                                          
MR.  SAYERS-FAY replied  that  there  is one  email  that he  has                                                               
received  from a  staff member  at EPA  Region 10  about the  de-                                                               
designation  topic.  He  explained  that  the  EPA  staff  member                                                               
referenced what other states have done.  He said he does not have                                                               
the  follow-up email  to verify  that the  division has  received                                                               
further information.                                                                                                            
SENATOR GIESSEL said she appreciates  the fact that the committee                                                               
has an email  from a staffer at  DEC, but she is  not consoled by                                                               
the email.  She stated that  she would  be interested to  know if                                                               
DEC  could  get a  letter  from  the  head  person from  the  EPA                                                               
indicating whether the designation was in fact revocable.                                                                       
3:51:35 PM                                                                                                                    
SENATOR BISHOP said he would have  more comfort with a law passed                                                               
by  Congress  that  addressed a  designation's  revocability.  He                                                               
remarked  that  he does  not  care  what  the EPA  director  says                                                               
because of the  changes a new administration can make  with a new                                                               
director and a new directive.                                                                                                   
SENATOR GIESSEL  said she has  concern about the  cost associated                                                               
with the  bill. She assumed  that the three  resource departments                                                               
would have to  do some analysis before a  recommendation is made.                                                               
She inquired  if DEC has any  estimate on what an  analysis would                                                               
cost before the department would make a recommendation.                                                                         
MR. SAYERS-FAY replied  that the bill, as  written, envisions the                                                               
departments' analysis is done for  the benefit of the legislature                                                               
to  make a  decision  about a  nomination and  so  the depth  and                                                               
direction of  what is  being asked for  by the  legislature would                                                               
determine the level of cost and  if there was an actual bill that                                                               
raised  Tier  3  issue,  the legislature  could  provide  further                                                               
direction  on what  issues  needed to  be looked  at  or to  what                                                               
3:54:03 PM                                                                                                                    
SENATOR  GIESSEL asked  him  to  confirm that  DEC  would make  a                                                               
recommendation  not  knowing  the  degree  of  pristineness,  not                                                               
knowing what  kind of  work is  going on  upstream, what  kind of                                                               
uses of the water. She inquired  if the work she previously noted                                                               
would  have to  be  done  before DEC  makes  a recommendation  to                                                               
establish a Tier 3 water.                                                                                                       
MR.  SAYERS-FAY replied  that  there  is more  than  one path  to                                                               
answer  the  recommendation process.  In  a  previous version  of                                                               
proposed   regulation,   DEC   enumerated  several   things   the                                                               
department  thought worthy  of consideration.  If SB  51 were  to                                                               
pass,  DEC would  look into  whether or  not there  is a  need to                                                               
establish  regulations again  and the  department would  probably                                                               
answer those types of questions  because those issues were raised                                                               
due to the  impact that Tier 3 designation has  for water quality                                                               
and then for any discharges to  that water body and the potential                                                               
to impact tributaries  flowing into that water body,  there are a                                                               
number of  questions that  would naturally  exist about  what are                                                               
the  uses  and   what  are  the  potential   impacts,  DEC  would                                                               
definitely start down that path.  He said he previously addressed                                                               
in  a previously  proposed  bill that  the  possibility that  the                                                               
legislature could  also provide  additional direction for  DEC to                                                               
look at specific issues.                                                                                                        
MR. FULTON addressed Senator Giessel's  question on the sponsor's                                                               
intent  as  far   as  who  bears  the  cost   of  application  or                                                               
nomination. He  specified that the  sponsor's intent  in drafting                                                               
the bill  is that  the applicant  will bear most  of the  cost as                                                               
clearly reflected in  the department's zero fiscal  note. Most of                                                               
the  departmental   costs  would  probably  be   associated  with                                                               
collecting a  certain level of  water quality data  proving there                                                               
is stakeholder and  community support for the  Tier 3 nomination,                                                               
and then whatever else is needed to prove.                                                                                      
3:57:05 PM                                                                                                                    
At ease.                                                                                                                        
3:57:20 PM                                                                                                                    
CHAIR BIRCH called the committee back to order.                                                                                 
MR.  FULTON continued  that the  departmental costs  will include                                                               
anything  else   required  to   prove  that   a  water   body  is                                                               
ecologically  and or  recreationally  significant,  which is  the                                                               
definition of a Tier 3 water  body by the EPA. He reiterated that                                                               
the costs  will be  borne by  the applicant  as reflected  in the                                                               
zero fiscal note presented by the department.                                                                                   
SENATOR GIESSEL  remarked that  one of  the things  that Congress                                                               
has realized is the fact  that they abdicate their responsibility                                                               
when  they  write something  very  broadly  and then  expect  the                                                               
departments  to write  regulations. She  admitted that  often the                                                               
Alaska  Legislature  has also  written  regulations  that do  not                                                               
reflect  a bill's  intent by  not  being specific.  She said  her                                                               
concern is  leaving the decision  to a  departmental commissioner                                                               
or whoever happens to be the regulation writer at the time.                                                                     
SENATOR KAWASAKI  noted that the  bill changed a lot  between the                                                               
Version K  and the version  R. He  pointed out that  the original                                                               
fiscal note  says, "The department  shall accept  nominations and                                                               
the   department   may   forward   those   nominations   to   the                                                               
legislature."  Version  R says,  "The  department  may accept  an                                                               
application, that  they shall prepare  a report." He  opined that                                                               
the two  versions are very  different, and the fiscal  note ought                                                               
to  reflect  the change.  He  asked  for  an explanation  of  the                                                               
3:59:55 PM                                                                                                                    
MR.  SAYERS-FAY  answered  that the  original  language  was  the                                                               
department shall  accept a nomination.  The only  significance in                                                               
the change  in language  is that if  there was  further direction                                                               
from  the legislature  or regulations  that  indicated a  minimum                                                               
amount of information that was  needed and that was not submitted                                                               
with the  nomination, that  that might provide  a basis  with the                                                               
new language  for the department  to not accept  that nomination;                                                               
but, absent  that the  language is fairly  similar in  its intent                                                               
for  the department  to  receive a  nomination,  reviews it,  and                                                               
provides a report.                                                                                                              
MR.  FULTON  addressed  Senator  Kawasaki  and  said  as  to  the                                                               
question regarding "may"  versus "shall," he noted that  he had a                                                               
conversation  with the  legislature's  attorney  about the  exact                                                               
subject   regarding  when   the  department   "shall"  accept   a                                                               
nomination, that  "shall" leaves the  form of a nomination  to be                                                               
very  broadly  interpreted, but  "may"  gives  a department  some                                                               
level of discretion  as to whether or not the  package fulfills a                                                               
certain  criteria that  the sponsor  is looking  for in  a proper                                                               
SENATOR COGHILL asked if the first  thing that would be looked at                                                               
is the federal register on what the requirements of Tier 3.                                                                     
MR.  FULTON deferred  the question  to the  department. He  noted                                                               
that the federal  register is vague in terms  of what constitutes                                                               
an outstanding  national resource  water and  his thought  is the                                                               
register  just   says  the  water  must   be  recreationally  and                                                               
ecologically significant.                                                                                                       
4:02:40 PM                                                                                                                    
SENATOR  COGHILL  remarked that  looking  at  the register  first                                                               
might  make  a difference  to  the  legislature.  He noted  in  a                                                               
footnote under  are. XI, sec.  7 of the Alaska  constitution that                                                               
says, "If it  infringes on the legislature's  ability to allocate                                                               
resources among competing uses, then  it fails to ensure that the                                                               
legislature  and only  the legislature  retains control  over the                                                               
allocation."  He opined  that  there  is some  case  law that  is                                                               
beginning to show  that if the state restricts uses  there may be                                                               
a significant  issue between Alaska  and the  federal government.                                                               
He said  the legislature needs to  make sure that the  tension is                                                               
properly described.                                                                                                             
CHAIR  BIRCH  noted  that  there was  testimony  earlier  in  the                                                               
regarding the fact  that DEC has adopted  water quality standards                                                               
that relate  to how  the proposed  legislation will  be executed.                                                               
The regulatory package speaks to  the Tier 3 analysis process for                                                               
the protection of water quality  and outstanding natural resource                                                               
SENATOR BISHOP  noted that Senator Kawasaki  addressed the fiscal                                                               
notes for the  Version K and the Version R.  He said common sense                                                               
dictates that  there is an  application process  where nomination                                                               
is set at a high bar that  is backed with science. He opined that                                                               
even though the  study is paid for by the  applicant, there needs                                                               
to be a number associated with the fiscal notes.                                                                                
4:05:02 PM                                                                                                                    
SENATOR  KIEHL said  the  phrase that  reoccurs  in statute  when                                                               
talking about the quality of  an application is "shall accept" as                                                               
opposed  to "may  accept." He  asked why  the sponsor  settled on                                                               
"may accept" instead  of letting the department  say what quality                                                               
standards need to be met in the application.                                                                                    
MR. FULTON  replied that  the discussion did  not go  beyond what                                                               
has already been explained.                                                                                                     
SENATOR KIEHL  said he is still  not clear on what  standards the                                                               
department will use  to evaluate the recommendations.  He said he                                                               
appreciates   the   proposed  anti-degradation   regulation   but                                                               
continues to question what standards  the legislature will use to                                                               
tell  the  three   commissioners  to  apply  when   they  make  a                                                               
recommendation to the legislature for designation.                                                                              
MR. FULTON  answered that  that the  regulation package  does not                                                               
describe those  standards and that  is something  the legislature                                                               
may not want to prescribe in  law because the department would be                                                               
fully capable of  doing so in regulation. He  explained that part                                                               
of  the  reason  why  the sponsor  wants  the  three  departments                                                               
involved in  the designation  process is for  a certain  level of                                                               
scientific  review  in  subject  matter expertise.  He  said  the                                                               
sponsor is  more comfortable deferring review  to the departments                                                               
for recommendation  only, not for  the final decision  which will                                                               
continue to be made by the legislature.                                                                                         
4:08:01 PM                                                                                                                    
CHAIR BIRCH read the following:                                                                                                 
     We  did not  receive  amendments  prior to  yesterday's                                                                    
     deadline, I would remind members  as per the discussion                                                                    
     any  amendments, sponsor  substitutes, blank  committee                                                                    
     substitutes,  handouts  or  other documents  you  list,                                                                    
     placed  before the  committee need  to be  delivered no                                                                    
     less  than  24 hours  prior  to  the scheduled  hearing                                                                    
     discussed in advance.                                                                                                      
He said  he did not  see any additional amendments,  questions or                                                               
comments and asked if the committee is ready for a motion.                                                                      
SENATOR  KAWASAKI asked  if the  committee  will have  discussion                                                               
time. He pointed  out that the previously  noted amendment policy                                                               
says amendments "should be submitted"  and questioned the limited                                                               
time for offering  amendments based on the  recent bill revision.                                                               
He said  he has lots of  concerns with the legislation  and noted                                                               
that  the Senate  Resources Committee  is the  substantive policy                                                               
committee versus  the Senate Finance Committee.  He remarked that                                                               
he  feels  uncomfortable  moving  the bill  without  having  more                                                               
discussions  on  some  of  the   concerns  addressed  during  the                                                               
hearing. He noted that he has an amendment packet for the bill.                                                                 
4:10:35 PM                                                                                                                    
SENATOR  GIESSEL said  she had  questions for  the Department  of                                                               
Law, DEC,  and the  drafter. She noted  that questions  about the                                                               
cost to  apply the  regulations that have  been drafted  have not                                                               
been  answered. Also,  some attorneys  do not  think there  is an                                                               
allocation issue but earlier testimony  indicated this is similar                                                               
to designating parks,  which removes land from use.  She said she                                                               
understands that the goal of the  legislation is to put a process                                                               
in place  to satisfy the EPA.  She said she would  argue that the                                                               
EPA  is out  of line  in  commandeering the  state and  requiring                                                               
something, but that is another  issue. She said she believes that                                                               
a  much  simpler  version  of  the  bill  would  meet  the  EPA's                                                               
requirement that the state have a policy in place.                                                                              
4:11:54 PM                                                                                                                    
SENATOR GIESSEL offered Conceptual Amendment 1 as follows:                                                                      
     My  conceptual amendment  is simple,  it would  take on                                                                    
     page 1, line 11, it would  cross out the word "law" and                                                                    
     it would  substitute two words, "the  legislature." The                                                                    
     line   would    read,   "regulation,   only    by   the                                                                    
     Then,  my  conceptual  amendment would  go  forward  to                                                                    
     delete,  page 1  lines 12-13,  and page  2 lines  1-10,                                                                    
     leaving  in place  only subsection  (c), "Water  of the                                                                    
     state  may  not  be  managed  as  outstanding  national                                                                    
     resource waster  unless the  water has  been designated                                                                    
     as outstanding national resource way under (a) of this                                                                     
     section." and leaving in place section 2.                                                                                  
     The conceptual amendment would  clearly define that the                                                                    
     process will  go through the  legislature, but  all the                                                                    
     other details,  we need  a more  substantive discussion                                                                    
     and more legal information.                                                                                                
4:13:01 PM                                                                                                                    
At ease.                                                                                                                        
4:13:30 PM                                                                                                                    
CHAIR BIRCH called the committee back to order.                                                                                 
SENATOR COGHILL objected to Conceptual  Amendment 1. He explained                                                               
that the  amendment is  substantive and  should be  introduced in                                                               
writing for further  debate. He said he tended to  agree with the                                                               
amendment, but  the committee needs  the written version  as well                                                               
as giving other amendments a chance to come up for debate.                                                                      
CHAIR BIRCH concurred with Senator Coghill.                                                                                     
SENATOR  GIESSEL  requested  a  written  opinion  from  both  the                                                               
Department  of Law  and Legislative  Legal regarding  whether the                                                               
bill is an allocation of  state resources, an allocation of land,                                                               
and whether the process could be  in fact done by regulation. She                                                               
asked  that  in   addition  to  the  written   opinion  that  the                                                               
ramification  from a  "no recommendation"  or  a negative  action                                                               
from the legislature saying no be explained as well.                                                                            
4:14:38 PM                                                                                                                    
SENATOR GIESSEL withdrew Conceptual Amendment 1.                                                                                
CHAIR BIRCH added that the  committee will have an opportunity to                                                               
look  at how  the current  water  quality regulations  are to  be                                                               
integrated with the legislation.                                                                                                
SENATOR  REINBOLD   concurred  with  Senator  Giessel   that  the                                                               
legislation is an appropriation.                                                                                                
4:15:16 PM                                                                                                                    
CHAIR BIRCH held SB 51 in committee.                                                                                            
             SB 42-QUITCLAIM LAND TO UNITED STATES                                                                          
4:15:30 PM                                                                                                                    
CHAIR BIRCH  announced the  consideration of  Senate Bill  42 (SB
4:15:53 PM                                                                                                                    
SENATOR COGHILL,  sponsor of SB  42, provided an overview  of the                                                               
bill. He  opined that Native  allotments have been  a significant                                                               
issue  for  about  100  years  and  he  considers  it  unfinished                                                               
business.  He  said  unfortunately, the  federal  government  has                                                               
conveyed land to Alaska that had  a prior claim on it. The intent                                                               
of the legislation is to address the prior claim.                                                                               
He said committee members will  probably hear from the Department                                                               
of  Natural  Resources  (DNR)  that  following  the  reconveyance                                                               
requirement  exactly is  hard. However,  the requirement  must be                                                               
addressed and if  following the process cannot be  done then what                                                               
is the first next step.                                                                                                         
He explained that the bill starts  with the fact that there was a                                                               
prior right  supported by court  cases. He noted that  his staff,                                                               
Rynnieva  Moss, will  provide committee  members with  additional                                                               
details. He said  the allotment issue came to  him mainly because                                                               
he started  researching the Homestead  Act as a means  of getting                                                               
more land into private hands. He continued as follows:                                                                          
     Many people  got homesteads in  Alaska and we  tried to                                                                    
     say, "We  should also do it  as a state," they  got 160                                                                    
     acres or  whatever it was and  at the same time  we had                                                                    
     Native allotments;  funny thing  about that  was Native                                                                    
     allotments  were based  on "already  usage" in  an area                                                                    
     and the Homestead  Act was you've got to  go "prove up"                                                                    
     in that area.  All the Homestead Acts  got approved and                                                                    
     very few of the Native  allotments got approved, and it                                                                    
     was a BLM issue but then  along comes the state. We get                                                                    
     statehood,  we get  selected lands,  we selected,  they                                                                    
     transferred  them, and  then oops,  we've got  a Native                                                                    
     allotment of a prior right  on it. That's kind of where                                                                    
     we  are  at,  that  doesn't  describe  all  the  Native                                                                    
     allotments, but this  is trying to right  that the best                                                                    
     we know how, that's the general reason why.                                                                                
4:18:11 PM                                                                                                                    
RYNNIEVA MOSS, Staff, Senator  Coghill, Alaska State Legislature,                                                               
Juneau,  Alaska, provided  the sectional  analysis for  SB 42  as                                                               
   • Section 1:                                                                                                               
     Powers and duties  of the director of the  Division of Lands                                                               
     by mandating he or she  quitclaim deeds "land or an interest                                                               
     in  land to  the  federal government  after a  determination                                                               
     that  the land  or the  interest in  land was  wrongfully or                                                               
     erroneously  conveyed  by  the  federal  government  to  the                                                               
     state." Currently that director  has permissive authority to                                                               
     do so  when land was  wrongfully or erroneously  conveyed to                                                               
     the state.                                                                                                                 
   • Section 2:                                                                                                               
     Exempts   lands  quitclaimed   under  Section   1  from   AS                                                               
     38.05.125, reservation of subsurface  resource rights to the                                                               
     State  of Alaska.  This would  allow for  mineral rights  to                                                               
     titled owners of Native allotments.                                                                                        
   • Section 3:                                                                                                               
     Exempts the  new provision pertaining  to quitclaim  deed to                                                               
     the  federal government  from AS  38.05.125, restriction  on                                                               
     sale, lease  or other  disposals of agricultural  land. This                                                               
     eliminates   the  limitation   on  use   of  such   land  to                                                               
     agricultural use.                                                                                                          
   • Section 4:                                                                                                               
     AS   38.05.035  makes   quitclaim  deeds   to  the   federal                                                               
     government  when  the  land was  wrongfully  or  erroneously                                                               
     conveyed to the state a  permissive actions. This statute is                                                               
     repealed,  and the  quitclaim deed  becomes mandatory  under                                                               
     Section 1.                                                                                                                 
MS. MOSS  summarized that Section  1 requires  the DNR to  give a                                                               
quitclaim deed to  the Bureau of Land Management  (BLM) for lands                                                               
that  were selected  as Native  allotments so  that BLM  can deed                                                               
that land to the rightful owner.  The reason for the provision in                                                               
Section 1  is for  the DNR  to keep  track of  the fact  that the                                                               
state is losing  land selections amounting to  103 million acres;                                                               
so, the  legislation would subtract  those entitlements  from the                                                               
103 million  acres. She  added that the  state has  actually over                                                               
selected by 25  percent and that allows for  the changes proposed                                                               
by the legislation.                                                                                                             
She detailed  that section  2 reserves  subsurface rights  to the                                                               
original owner, the Native entitlement.                                                                                         
She explained  that section 3 makes  sure that the land  from the                                                               
quitclaim deed is  not used as agricultural land, that  it is fee                                                               
simple land with all rights reserved.                                                                                           
She said  section 4  repeals the current  statute that  says that                                                               
the department "may" and will be changed to "shall."                                                                            
4:19:41 PM                                                                                                                    
She  explained that  the  federal court  decision  in Aguilar  v.                                                               
United   States  basically   said  that   there  was   already  a                                                               
preexisting title or  right to that land when the  BLM gave it to                                                               
the state  under state  selections. She  said BLM  should recover                                                               
and  give  that land  to  the  rightful  owner  and if  it  takes                                                               
adjudication, BLM  should sue  the state to  get that  land back.                                                               
The federal court decision is very plain.                                                                                       
She  said  the  committee  will  hear from  DNR  that  there  are                                                               
exceptions  because  some of  the  allotments  are in  the  Trans                                                               
Alaska Pipeline  System (TAPS) right-of-way.  She noted  that BLM                                                               
and  DNR have  signed a  memorandum of  understanding (MOU)  that                                                               
would allow  for land  swaps with the  allotment owners  upon the                                                               
approval of  the owner. However,  in 1971 when the  Alaska Native                                                               
Claims Settlement Act  (ANCSA) was passed that  repealed the 1906                                                               
Native  Land  Allotment Act  there  were  10,000 applicants  with                                                               
16,000 parcels  ranging from  40 to  160 acres.  Currently, about                                                               
300 allotments are still pending.                                                                                               
MS. MOSS said DNR currently  is transferring six to eight parcels                                                               
a year and the sponsor feels that the state can do a lot better.                                                                
4:21:21 PM                                                                                                                    
SENATOR COGHILL  emphasized that the  legislation is not  to pick                                                               
on DNR;  the intent is to  "put the heat" under  an issue because                                                               
the process has  taken over 100 years. As a  result, progeny from                                                               
15 different family  groups have a claim on an  allotment and the                                                               
members have a hard time  even agreeing among themselves. He said                                                               
the  state  should facilitate  an  immediate  allocation for  the                                                               
family  groups  that  can  agree.  He  conceded  that  there  are                                                               
subsurface rights  on some  allotments, but  the rights  would be                                                               
retained  to those  who would  have it.  He noted  that there  is                                                               
concern that the allotment involves  Indian country. However, the                                                               
process is  really a private  land allotment that belongs  to the                                                               
SENATOR KIEHL asked how the  subsurface rights piece works in the                                                               
MS. MOSS  explained that when  the people claimed the  land, they                                                               
had  subsurface  rights,  whereas the  state  retains  subsurface                                                               
rights when  it owns the land.  The bill lays out  a process that                                                               
would allow the state to quitclaim  deed the property back to the                                                               
federal  government with  subsurface  rights.  That acreage  gets                                                               
written off  the 103 million acres  and BLM would title  the land                                                               
to the original owner with all subsurface rights.                                                                               
4:23:27 PM                                                                                                                    
SENATOR BISHOP asked her to  clarify that the state's 103 million                                                               
acres  stays   whole  and   the  allotment   comes  out   of  the                                                               
government's acreage.                                                                                                           
MS. MOSS answered that is correct.                                                                                              
SENATOR KAWASAKI  asked why  the bill is  needed. He  opined that                                                               
the allotment should have already been done by DNR.                                                                             
MS.  MOSS  answered that  the  law  says  that the  allotment  is                                                               
permissive,  not  mandatory.  The  bill  says  the  allotment  is                                                               
SENATOR  KAWASAKI  said   the  bill  instructs  DNR   to  do  the                                                               
allotment, but he was unclear about the directive to the BLM.                                                                   
MS. MOSS  explained that the  Aguilar court case said,  "Not only                                                               
do you need to give this land  back to the original owner, if you                                                               
can't get the state  to do it you should go to  court and sue the                                                               
state; they ruled that they should adjudicate this."                                                                            
4:24:36 PM                                                                                                                    
CHAIR BIRCH opened invited testimony.                                                                                           
4:24:57 PM                                                                                                                    
DESIREE  DUNCAN, Native  Lands Manager,  Central Council  Tlingit                                                               
and Haida Indian  Tribes of Alaska, Juneau,  Alaska, testified in                                                               
support of  SB 42. She  detailed that Tlingit and  Haida provides                                                               
Native  Alaska  trust services  to  11  communities in  Southeast                                                               
Alaska.  They  currently  have approximately  20  title  recovery                                                               
cases which includes villages that  are not served by the Central                                                               
Council.  The Native  Alaskan applicants  have  been waiting  for                                                               
over 50 years  to get title to their land  and most are deceased,                                                               
and their  heirs are now  waiting for what is  rightfully theirs.                                                               
Right away the Homestead Act gave  the land to non-Natives. SB 42                                                               
is  a  very  important  bill that  will  allow  Native  allotment                                                               
applicants to get the land  that their ancestors applied for many                                                               
years ago.                                                                                                                      
4:27:02 PM                                                                                                                    
SHEILA  NEKETA,  Staff,  Land Management  Services,  Bristol  Bay                                                               
Native Association,  Dillingham, Alaska, testified in  support of                                                               
SB 42.  She detailed that  the Bristol Bay Native  Association is                                                               
working  on  36  pending  Native   allotments  located  on  state                                                               
selected land, allotments  that were determined valid  by the BLM                                                               
but were  erroneously and wrongfully  conveyed to the  state. She                                                               
asserted that the state refuses  to reconvey the identified lands                                                               
back  to BLM.  She noted  previous public  testimony for  similar                                                               
legislation from Bristol Bay participants  in 2014 and asked that                                                               
the testimonies be  included in support of SB 42.  She said SB 42                                                               
is  very important  to the  people  in the  Bristol Bay  service-                                                               
provider area for  what it means to  themselves, their relatives,                                                               
and their subsistence lifestyle.                                                                                                
4:30:51 PM                                                                                                                    
ROBERT  BREAN, Allotment  Claimant, Anchorage,  Alaska, testified                                                               
in support of SB 42. He  explained that his mother is a recipient                                                               
of  authorization  from  the  federal  government  for  a  Native                                                               
allotment that she  applied for in the mid-1960s.  He opined that                                                               
a lot  of the land  was expedited  in the interest  of developing                                                               
the oil  fields and getting  a pipeline  built. He said  what the                                                               
federal government  did not do  was actively pursue  surveying of                                                               
Native  allotment   parcels  and  finalizing  the   paperwork  to                                                               
transfer Native  allotment parcels to individuals.  He summarized                                                               
that SB 42 will provide DNR  with the leverage and legality to do                                                               
the right thing for Native allotments.                                                                                          
4:36:08 PM                                                                                                                    
MITCHELL ALLAN, Allotment  Claimant, Fairbanks, Alaska, testified                                                               
in  support of  SB 42.  He quoted  a Native  rights booklet  that                                                               
leaned towards a positive action  on Native allotments by saying,                                                               
"There is  an immediate need  for a  fair and just  settlement of                                                               
all  claims by  Natives and  Native groups  in Alaska."  He added                                                               
that   the  booklet   also  says,   "The  settlement   should  be                                                               
accomplished  rapidly  with  certainty  without  litigation."  He                                                               
disclosed  that he  has been  dealing with  his Native  allotment                                                               
claim since  1971, shortly before  the law was repealed.  He said                                                               
SB 42 will resolve his Native allotment issue.                                                                                  
SENATOR  COGHILL commented  that  he hopes  Mr. Allan  ultimately                                                               
receives his allotment.                                                                                                         
4:39:12 PM                                                                                                                    
MURRAY CLAYTON, Allotment  Claimant, Fairbanks, Alaska, testified                                                               
in support  of SB 42. He  disclosed that BLM has  determined that                                                               
his allotment application  is valid, and BLM has  asked the state                                                               
to reconvey  his allotment  to him.  He said  after 48  years his                                                               
hope  is  that  for  his  allotment to  come  to  a  satisfactory                                                               
4:41:20 PM                                                                                                                    
MARTY  PARSONS, Director,  Division  of Mining,  Land and  Water,                                                               
Alaska  Department  of   Natural  Resources,  Anchorage,  Alaska,                                                               
stated that the  division is making a sincere  effort to reconvey                                                               
lands  to BLM  for the  purposes  of certificating  lands to  the                                                               
noted Native  allottees. He said  previous testimony has  made it                                                               
clear that reconveyance  is important to the  Native community of                                                               
Alaska. The  division understands how important  reconveyance is,                                                               
and  the  division  takes the  matter  extremely  seriously.  The                                                               
division  has   taken  some  important   steps  to   resolve  the                                                               
conveyance  transfers.  The  division  recently  entered  into  a                                                               
cooperative agreement  with BLM to  hire a dedicated  staff whose                                                               
sole purpose is  to focus on working on  reviewing the conveyance                                                               
requests  from BLM  to reconvey  lands  and to  help fulfill  the                                                               
state's obligation under the federal program.                                                                                   
MR. PARSONS explained that the  division is actively reviewing 12                                                               
files  to see  if they  can be  reconveyed. The  division has  70                                                               
files where  the division is  waiting for  additional information                                                               
from  BLM  before  the  division can  continue  its  review.  The                                                               
division  has  already reconveyed  282  parcels  to the  BLM  for                                                               
certification to the allottees.                                                                                                 
He said to provide the  best opportunity for allottees to receive                                                               
the  land that  they  have historically  used,  the division  has                                                               
reopened over  100 cases  that were  previously closed  or denied                                                               
for reconveyance.  Many of the  allotment files have  been closed                                                               
because they were for lands  that were affected by state pipeline                                                               
projects or  because the lands were  located within legislatively                                                               
designated  areas  (LDA). Earlier  decisions  were  based on  the                                                               
position that lands inside the  LDAs were removed from the public                                                               
domain and cannot  be made subject to  the allotment application.                                                               
Through  further  and  more  detailed   review  of  the  enabling                                                               
language, the  division found that  such a  strict interpretation                                                               
of LDAs  may have  been an  error, so  if the  division reapplies                                                               
what is known  as the "Relates Back Doctrine" which  means if the                                                               
allottee had  claimed the land  prior to  the LDA being  put into                                                               
place, that provides  the division with an  opportunity to remove                                                               
the  noted  obstacles  for  reconveyance  so  that  many  of  the                                                               
previously  denied  allotment  applications are  currently  under                                                               
review   for   potential   reconveyance.  Similarly,   a   better                                                               
definition  of  the  Alaska Natural  Gas  Pipeline  Project  also                                                               
allowed the division to remove  other obstacles for reconveyance.                                                               
He disclosed  that all  reconveyances are  subject to  the public                                                               
process  for the  disposal  of the  state  interest as  indicated                                                               
under Article 8, Section 10 of the Alaska Constitution.                                                                         
4:44:51 PM                                                                                                                    
He said the  division has reviewed the current language  of SB 42                                                               
and has prepared an indeterminate  fiscal note. When the division                                                               
considers whether to approved BLM's  request to reconvey parcels,                                                               
the  division does  a thorough  review to  see if  there are  any                                                               
third-party  interest in  the land,  if  it contains  constructed                                                               
state infrastructure, or if it  provides access to mineral or oil                                                               
and gas deposits.                                                                                                               
He  explained  that  an  outcome  of  the  Supreme  Court's  1979                                                               
decision in  Aguilar v.  United States,  currently the  state can                                                               
enter into a  settlement release agreement with  the allottees to                                                               
make the  conveyance subject to  these interests. As  written, SB
42 would change  the law so that the only  criteria necessary for                                                               
mandating  that  the  state  must reconvey  parcels  of  land  is                                                               
whether the  conveyance to the  state was made in  error. Parcels                                                               
reconveyed under such  criteria cannot be made  subject to roads,                                                               
pipelines,  transmission   lines,  historic  access   routes,  or                                                               
recreational  facilities  constructed  by  the  state,  or  other                                                               
easements  required  by law;  if  this  infrastructure cannot  be                                                               
protected, the state  would have to provide a  lease or right-of-                                                               
way from  the allottee or  the state would  have to get  the land                                                               
back  from the  allottee either  by  buying it  or condemning  it                                                               
through  an  eminent  domain  process.  In  addition,  land  sold                                                               
through auction or  conveyed to the University  of Alaska, Mental                                                               
Health Trust,  or municipalities would  need to be  reacquired in                                                               
order to  fulfill the request  for conveyance. Under  the current                                                               
SB 42, if a parcel was found  to have been conveyed in error then                                                               
not only would the land  itself but the subsurface mineral estate                                                               
would also be  reconveyed back to the federal  government. If the                                                               
mineral   estate   was   found   to   contain   "leaseables"   or                                                               
"locatables," things like gold, coal,  or oil and gas, the estate                                                               
would be split  between the allottee and  the federal government,                                                               
and the federal government would  retain the mineral rights; this                                                               
would deprive  the state  with an  opportunity for  revenues that                                                               
would  otherwise   be  retained  by  working   with  the  surface                                                               
landowner under the current statute.                                                                                            
4:47:13 PM                                                                                                                    
MR.  PARSONS  explained  that in  addition  to  potential  fiscal                                                               
concerns  with HB  42 as  written,  there are  concerns that  the                                                               
passage of the bill will  not significantly increase the speed of                                                               
which allottees  receive their  allotment certifications.  BLM is                                                               
currently processing only five or  six quitclaim deeds a year due                                                               
in large part because all the  allotments require to have a field                                                               
inspection before  BLM accepts the  quitclaim deed. If  the field                                                               
inspection   shows  that   the  parcel   is  contaminated,   then                                                               
regardless of source, whether it  is from the allottee or someone                                                               
trespassing on the allotment, BLM  will reject the quitclaim deed                                                               
and the allotment  will not be certificated. At  the current rate                                                               
of five  to six certifications  a year, certification  would take                                                               
more  than three  decades  based on  BLM's  current inventory  of                                                               
allotments  to the  allottees. He  emphasized that  the state  of                                                               
Alaska and the  division consider the reconveyance  of the Native                                                               
allotments as a serious and important undertaking.                                                                              
He summarized that  the division has attained  agreement with BLM                                                               
to provide  funding for a  position within the  division's realty                                                               
services section  that is dedicated  to the review of  active and                                                               
previously  closed  allotment cases  as  well  as to  reinterpret                                                               
previous impediments  to the  reconveyance of  allotment parcels.                                                               
The  division's staff  is largely  engaged with  multiple service                                                               
providers  to discuss  difficult cases  with the  intent to  find                                                               
resolutions  that includes  reconfiguring a  parcel, to  remove a                                                               
parcel from  a potential piece  of state infrastructure  like the                                                               
Alaska Highway,  or help  identify a  substitute parcel  from the                                                               
state's selected lands. The division  believes its allotment work                                                               
is  a clear  indication that  the  state is  actively seeking  to                                                               
increase the number of parcels to  be conveyed and to fulfill the                                                               
federal commitment.                                                                                                             
MR. PARSONS  said another way  the division can help  to complete                                                               
conveyances of Native allotments is  for the state to continue to                                                               
increase  the   land  available  for  selections   as  substitute                                                               
parcels.   As  the   ANCSA  corporations   complete  their   land                                                               
entitlement,  more land  identified  by the  state converts  from                                                               
what's known as  "top filing" or "future interest  of the state,"                                                               
to  "selected status"  that becomes  available for  the state  to                                                               
receive  under its  entitlement. Lands  which are  not identified                                                               
for the final 5.5 million acres  of state land entitlement can be                                                               
made available  for Native  allottees to  select as  a substitute                                                               
parcel if the original parcels cannot be conveyed.                                                                              
4:50:03 PM                                                                                                                    
He  explained  that there  is  7.8  million acres  of  substitute                                                               
parcel  land  that  the division  has  identified.  The  division                                                               
realizes that some of the  substitute land is less than desirable                                                               
due to  topography or lack  of infrastructure, but as  more lands                                                               
are converted into  "selected status," the division  is seeing an                                                               
increase  in  the  pool  of   land  that  is  desirable  for  the                                                               
He reiterated  that the state  takes completion of  the allotment                                                               
program very seriously and the  division looks forward to working                                                               
with the  sponsor to  craft a  path forward  with respect  to the                                                               
rights of the Alaska Natives  so they can obtain their allotments                                                               
and  to fulfill  the  federal  allotment program  as  well as  to                                                               
protect the state's interest.                                                                                                   
SENATOR COGHILL  thanked Mr. Parsons for  providing the committee                                                               
with a clear idea of what  is happening as well as detailing some                                                               
of   the  complexities   of  how   the  state   must  deal   with                                                               
reconveyance. He said  Aguilar v. United States  probably came up                                                               
with a  clear criteria and asked  Mr. Parsons if the  bill should                                                               
mirror the court decision's criteria.                                                                                           
MR. PARSONS  answered that  Aguilar v.  United States  provides a                                                               
process as  well as a  "thick book"  that provides all  the steps                                                               
necessary. He  said the  bill can mirror  the case;  however, the                                                               
division  is  actively  working  under  the  "may"  language  for                                                               
reconveyance to the federal government  where the division has no                                                               
control   over  allotment   cases  reconveyed   to  the   federal                                                               
government  where cases  may  take years  to  certificate to  the                                                               
SENATOR COGHILL  agreed that  the state  cannot make  the federal                                                               
government do  anything. He said  he will work with  the division                                                               
to find  a better  pathway forward with  the bill's  language. He                                                               
specified  that  his  intent  was   to  show  the  committee  the                                                               
complexity with allotment as well as honoring the "prior right."                                                                
4:53:19 PM                                                                                                                    
SENATOR BISHOP  asked if Mr.  Parsons said  it could take  BLM 30                                                               
years to reconvey.                                                                                                              
MR. PARSONS  answered yes,  at BLM's  current rate  of certifying                                                               
five to six  allotments a year. He detailed that  the division is                                                               
waiting for additional  information on 70 parcels.  He added that                                                               
the 12 parcels  the division is actively reconveying  will take a                                                               
couple  of  years. He  said  unfortunately  because of  the  work                                                               
required  by BLM  before they  can accept  the state's  quitclaim                                                               
deed,  field research  and time  is required  before land  can be                                                               
reconveyed to the allottees.                                                                                                    
SENATOR BISHOP  said he will  talk to Senator Coghill  to address                                                               
the reconveyance.                                                                                                               
SENATOR KIEHL  asked how unresolved  Native allotment  land could                                                               
have ended up  with state infrastructure and  state easements. He                                                               
said his experience is that DNR  does not let anybody do anything                                                               
on state land with a question mark on it.                                                                                       
MR. PARSONS  answered that when  ANCSA was passed,  the allotment                                                               
program  was closed,  and many  applications were  passed to  the                                                               
Bureau of Indian  Affairs (BIA) or other agencies  and then lost.                                                               
Lands  continued to  be conveyed  to the  state between  the time                                                               
that  the allotment  program was  closed, and  Aguilar v.  United                                                               
States was  adjudicated. The allotments  the division  is working                                                               
on came  to light,  in many  cases, after  the state  had already                                                               
received  title but  before  the  state knew  that  there was  an                                                               
underlying allotment claim on the land.                                                                                         
4:56:38 PM                                                                                                                    
SENATOR  GIESSEL referenced  an  allotment  spreadsheet that  Ms.                                                               
Moss  provided to  the  committee.  She noted  that  many of  the                                                               
allotments are in national parks,  national forests, and national                                                               
wildlife  refuges.  She  asked  Ms. Moss  if  the  allotments  in                                                               
federal park land makes the process more complicated.                                                                           
MS. MOSS answered  that she did not know. She  opined there could                                                               
be  an  issue and  noted  that  Congress  just passed  a  Vietnam                                                               
veterans' allotment  that listed exceptions to  where lands could                                                               
not  be  selected  that included  the  Arctic  National  Wildlife                                                               
Refuge  (ANWR),   national  forest  system  land   designated  as                                                               
wilderness by Congress, military  land, and inner-outer corridors                                                               
of right-of-ways such as TAPS.                                                                                                  
SENATOR COGHILL opined that what  the federal government said and                                                               
what  Aguilar  v.  United  States  says,  might  give  the  state                                                               
instruction on how to create a  way forward for the allottees who                                                               
may never be able to get the  land based on some of the criteria,                                                               
but the  allottees should get  the opportunity to get  some land.                                                               
He admitted  that some of the  allottees that he has  spoken with                                                               
have indicated  that they  are not  interested in  a swap  at the                                                               
beginning; however,  if the allotment cannot  be physically done,                                                               
there must be a pathway forward.                                                                                                
He summarized  that he will work  with DNR and some  of the legal                                                               
teams that  have talked about  the legal structure  under Aguilar                                                               
v. United States to figure  out how allotments can be transferred                                                               
and  creating a  pathway  with BLM  to  separate allotments  that                                                               
there is no practical way to process.                                                                                           
MS. MOSS noted that Mr.  Parsons described about 100 parcels that                                                               
have been  denied in the  past that  would fall under  the public                                                               
lands that are currently being reviewed for possible approval.                                                                  
4:59:03 PM                                                                                                                    
CHAIR BIRCH held SB 42 in committee.                                                                                            
4:59:35 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair Birch adjourned the Senate Resources Standing Committee                                                                   
meeting at 4:59 p.m.                                                                                                            

Document Name Date/Time Subjects
SB42 Aguilar Cases in Alaska 2014.pdf SRES 3/27/2019 3:30:00 PM
SB 42
SB42 Fiscal Note DNR-MLW 3.22.19.pdf SRES 3/27/2019 3:30:00 PM
SB 42
SB42 Sectional Analysis Version A.pdf SRES 3/27/2019 3:30:00 PM
SB 42
SB42 Sponsor Statement.pdf SRES 3/27/2019 3:30:00 PM
SB 42
SB42 Tanana Chiefs Letter 3.22.19.pdf SRES 3/27/2019 3:30:00 PM
SB 42
SB42 Version A.PDF SRES 3/27/2019 3:30:00 PM
SB 42
SB42 Aguilar v. U.S..pdf SRES 3/27/2019 3:30:00 PM
SB 42
SB 51 Version R 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Changes Version K to Version R.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 18 AAC 70.016.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 AFA Resolution 3.12.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Brenda Jones Letter 3.19.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Gerald Lapp Email 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Jessie Badger Letter 3.19.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Jim Clark Testimony 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Laura Stats Email 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Mickael Mackowiak Letter 3.19.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 SEACC Guy Archibald Testimony 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 SEACC Petition 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 SEACC Sarah Davidson Testimony 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 SEAFA Letter 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51
SB51 Steve Winker Email 3.20.19.pdf SRES 3/27/2019 3:30:00 PM
SB 51