HB 138-NATIONAL RESOURCE WATER DESIGNATION  2:18:14 PM CO-CHAIR LINCOLN announced the next order of business would be HOUSE BILL NO. 138, "An Act requiring the designation of state water as outstanding national resource water to occur in statute; relating to management of outstanding national resource water by the Department of Environmental Conservation; and providing for an effective date." [Before the committee was the proposed committee substitute (CS) for HB 138, Version K, adopted as a working document during the bill hearing on 2/10/20.] CO-CHAIR LINCOLN handed the gavel to Co-Chair Tarr. 2:18:33 PM The committee took an at-ease from 2:18 p.m. to 2:21 p.m. 2:21:25 PM CO-CHAIR TARR explained forthcoming amendments. 2:22:13 PM CO-CHAIR LINCOLN moved to adopt [Amendment 10, K.22, labeled 31- LS0811\K.22, Marx, 3/3/20, identified on the audio recording as Amendment 12], which read [original punctuation provided]: Page 2, line 26: Delete "resident of" Insert "qualified nominator in" Page 4, line 23: Delete "." Insert ";" Page 4, following line 23: Insert a new paragraph to read: "(3) "qualified nominator" includes (A) an individual who establishes residency under AS 01.10.055; (B) a corporation, company, partnership, firm, association, organization, business, trust, or society organized, incorporated, or headquartered in the state; (C) a federally recognized tribe or tribal entity in the state; (D) a municipality, an unincorporated village, or another unit of local government in the state." CO-CHAIR TARR objected for discussion purposes. CO-CHAIR LINCOLN explained [Amendment 10, K.22] expands and clarifies who could nominate a waterbody for Tier 3 designation. The original version of the bill limited the nominator to a resident of the state; however, the amendment would change any reference to a resident of the state to a reference to a qualified nominator and defines that a qualified nominator includes a resident of the state, varied organizations, corporations, and other entities, a federally recognized tribe or tribal entity in the state, and a municipality, a local government, or an unincorporated village. He noted the length of residency of a nominator was discussed but was not included in the amendment. 2:25:00 PM REPRESENTATIVE CHUCK KOPP, Alaska State Legislature, sponsor of HB 138, expressed support for the amendment. CO-CHAIR TARR removed her objection and there being no further objection, [Amendment 10, K.22] was adopted. 2:25:40 PM REPRESENTATIVE HANNAN moved to adopt [Amendment 11, K.15, labeled 31-LS0811\K.15, Marx, 2/20/20, identified on the audio recording as Amendment 7], which read [original punctuation provided]: Page 4, lines 9 - 11: Delete "does not constitute a final agency decision or action, and the recommendation or action is not subject to appeal, including appeal or review under AS 44.62 (Administrative Procedure Act)." Insert "is a final agency decision and may be appealed to the superior court under the Alaska Rules of Appellate Procedure." CO-CHAIR TARR objected for discussion purposes. REPRESENTATIVE HANNAN explained the amendment states clearly that a recommendation or action of the commission, related to a nomination that has been submitted to the commission, is a final agency decision that may be appealed to the superior court under the Alaska Rules of Appellate Procedure. She said the commission's decisions related to a Tier 3 water nomination should be subject to a high level of scrutiny through an appeals process. CO-CHAIR LINCOLN expressed opposition to the amendment because it is clear a recommendation of the commission is not a final decision; the designation requires that legislative action be the final decision. He suggested the amendment complicates the designation process, encourages litigation against the state, and is contrary to the purpose of the bill, which is to have the legislature evaluate and designate Tier 3 waters with the support of the commission. REPRESENTATIVE TUCK asked whether there is a way for someone to adjudicate the designation process. 2:28:11 PM MARIE MARX, attorney, Legislative Legal Counsel, Legislative Legal Services, Legislative Affairs Agency, said the bill states a recommendation by the commission is not a final agency action subject to review or appeal, which is the intent of the legislature; however, a court can always consider the legality of a decision. She restated [the bill] indicates the recommendation should not be subject to review except in limited circumstances, such as a decision or legislation that is unconstitutional, arbitrary, or capricious. REPRESENTATIVE TUCK gave an example of a designation process that was followed and asked if, after the legislature passed a bill introduced by the governor, the decision would be subject to review or appeal. MS. MARX said the legislature has the constitutional power to pass or not pass legislation, which cannot be infringed upon by the court system. CO-CHAIR TARR asked whether adoption of the amendment would change the commission from an advisory commission. MS. MARX restated the commission appears to be a purely advisory body that lacks the ability to enforce or administer law; the commission is intended to gather information and provide a recommendation to the governor and the legislature. She said she could not find a similar advisory body in existing statute that has a process for the review of the opinion of the advisory body. Some advisory bodies also have the ability to enforce or administer the law; for example, the Office of the Ombudsman, Legislative Agencies and Offices, investigates and issues recommendations but it is a different type of agency. In addition, bodies such as the Alaska Health Care Commission (defunded), Department of Health and Social Services, or the Alaska Tourism Marketing Board (disbanded), Department of Commerce, Community & Economic Development, were also advisory and did not have a mechanism in place for review. Ms. MARX explained advisory bodies do not have a mechanism for review because they do not issue decisions that affect the rights of a person or that governs the conduct of the public. In fact, if the commission declines to forward a recommendation to the governor or the legislature, a nominator can submit its nomination directly to a legislator. In this manner, the commission is unique and without precedent for review or appeal. In further response to Co-Chair Tarr, she agreed if a nominator could not submit a nomination directly to a legislator, that would change the nature of the commission. 2:35:18 PM REPRESENTATIVE SPOHNHOLZ questioned whether the fact that three department commissioners serve on the commission affects the advisory manner of the commission. MS. MARX referred to an opinion from the attorney general dated 7/19/16 that discussed components of advisory agencies and determined that the role of an advisory committee is to gather information, make recommendations and, in some cases, prepare advisory opinions or write reports. Further, advisory committees do not administer or enforce the law. She said she would provide the aforementioned written opinion to the committee. REPRESENTATIVE TUCK directed attention to Version K on page 4, line 12, which read: If the commission recommends that a nominated water be designated as outstanding national resource water, the governor shall prepare and submit a bill consistent with the recommendation of the commission. REPRESENTATIVE TUCK asked whether a nominator would have justification for a lawsuit should the governor not submit a bill to the legislature. MS. MARX opined it is the duty of the executive branch to execute the law passed by the legislature, therefore, a person could sue, although she did not cite supporting case law. In further response to Representative Tuck, she said were a governor to delay action, the duties of the executive branch would flow through to the next administration. 2:40:27 PM REPRESENTATIVE HOPKINS directed attention to Version K on page 3, lines 11-13, which read [in part]: (2) determine, by an affirmative vote of a majority of the members of the commission, whether a nomination meets the requirements established under (1) of this subsection; REPRESENTATIVE HOPKINS asked whether [paragraph (2)] may warrant an appeal by a nominator because the commission's decision would stop or advance a nomination. MS. MARX remarked: I think this is enough of a grey area that I do not know if a court would find that decision - either saying a nomination is complete, or a nomination is not complete - a final agency action. I think if you, if the legislature, as a matter of policy, says "We don't want it to be a final agency action" a court may give deference to that. ... A court can always decide if the, if the agency [acts] arbitrarily, capriciously, or didn't follow its own laws, a person could sue and say, "Listen, they didn't even follow their own statute ... make them at least follow, due process requires you [to] follow them, follow the law ...." MS. MARX cautioned the finding is an unknown due to the unique process of the commission, which is to vote on whether a nomination by a member of the public is complete, and whether to forward a nomination. REPRESENTATIVE HOPKINS asked Ms. MARX to explain the Alaska Rules of Appellate Procedure. 2:44:05 PM MS. MARX said there are hundreds of Rules of Appellate Procedure that tell the court how to review an agency's decision, such as how much deference is granted to an agency, and that set out the procedures and standards for reviewing an agency decision. CO-CHAIR TARR gave an example of an appeal and asked whether members of the commission, including members who are commissioners of departments, would be named parties in a lawsuit. She suggested individuals may be deterred from service on the commission. MS. MARX said generally the parties to an appeal to a decision by an agency are the party that is appealing and the agency; individual members of an agency body are not named parties in an appeal. REPRESENTATIVE KOPP observed the Alaska Judicial Council, Alaska Court System, determines whether a judicial nomination packet is complete and votes to forward the nomination to the governor, and [is a committee that] has garnered litigation. Regarding [Amendment 11, K.15], he said the amendment changes the nature of the advisory commission and pointed out the nominator is already protected from nefarious activity by the commission and the commission is balanced. He cautioned against prolonging the designation of a Tier 3 water by an appeal process and said the amendment also changes the nature of the bill. 2:48:59 PM REPRESENTATIVE TUCK opined the original intent of the bill was to make [the designation of Tier 3 water] more of a scientific decision and less of a political decision, and he agreed an appeal through judicial action would provide an opportunity for a decision based on facts; however, he said he did not want the commission to be responsible for an absolute decision, and he could not support the amendment because it would make a change to the commission and its duties. 2:51:33 PM REPRESENTATIVE HANNAN withdrew [Amendment 11, K.15]. 2:51:52 PM CO-CHAIR TARR stated Legal Legislative Services was authorized to make technical and conforming changes during the drafting of a committee substitute for HB 138. [HB 138 was held over.]