HOUSE JUDICIARY STANDING COMMITTEE April 3, 1998 1:23 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft (via teleconference) Representative Ethan Berkowitz (via teleconference) MEMBERS ABSENT All members present COMMITTEE CALENDAR SENATE BILL NO. 195 "An Act relating to common law liens, to remedies, costs, and fees imposed for the registration, filing, or recording of certain nonconsensual common law liens, and to penalties for recording common law liens." - MOVED SB 195 OUT OF COMMITTEE HOUSE BILL NO. 406 "An Act relating to subsistence uses of fish and game." - HEARD AND HELD HOUSE BILL NO. 451 "An Act relating to assistive technology devices and mobility aids for physically disabled persons." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: SB 195 SHORT TITLE: COMMON LAW LIENS SPONSOR(S): RULES BY REQUEST Jrn-Date Jrn-Page Action 5/06/97 1717 (S) READ THE FIRST TIME - REFERRAL(S) 5/06/97 1717 (S) L&C, JUD 1/27/98 (S) L&C AT 1:30 PM FAHRENKAMP RM 203 1/27/98 (S) MINUTE(L&C) 1/28/98 2328 (S) L&C RPT 3DP 1/28/98 2328 (S) DP: LEMAN, KELLY, MACKIE 1/28/98 2328 (S) ZERO FISCAL NOTES (COURT, LAW) 2/16/98 (S) JUD AT 1:30 PM BELTZ ROOM 211 2/16/98 (S) MINUTE(JUD) 2/17/98 2542 (S) JUD RPT 2DP 2NR 2/17/98 2542 (S) DP: TAYLOR, MILLER NR: PARNELL, PEARCE 2/17/98 2542 (S) PREVIOUS ZERO FNS (COURT, LAW) 2/18/98 (S) RLS AT 11:30 AM FAHRENKAMP RM 203 2/18/98 (S) MINUTE(RLS) 2/24/98 2630 (S) RULES TO CALENDAR 2/24/98 2/24/98 2631 (S) READ THE SECOND TIME 2/24/98 2631 (S) ADVANCED TO THIRD READING UNAN CONSENT 2/24/98 2631 (S) READ THE THIRD TIME SB 195 2/24/98 2632 (S) PASSED Y20 N- 2/24/98 2636 (S) TRANSMITTED TO (H) 2/25/98 2417 (H) READ THE FIRST TIME - REFERRAL(S) 3/02/98 (H) L&C AT 3:15 PM CAPITOL 17 3/02/98 (H) MINUTE(L&C) 3/04/98 2497 (H) L&C RPT 3DP 1NR 3/04/98 2497 (H) DP: COWDERY, SANDERS, ROKEBERG 3/04/98 2497 (H) NR: RYAN 3/04/98 2498 (H) 2 SEN ZERO FNS (LAW, COURT) 1/28/98 3/09/98 (H) JUD AT 1:00 PM CAPITOL 120 4/03/98 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 406 SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME SPONSOR(S): RESOURCES Jrn-Date Jrn-Page Action 2/12/98 2312 (H) READ THE FIRST TIME - REFERRAL(S) 2/12/98 2312 (H) RESOURCES, JUDICIARY, FINANCE 2/17/98 (H) RES AT 1:00 PM CAPITOL 124 2/17/98 (H) MINUTE(RES) 2/21/98 (H) RES AT 1:00 PM CAPITOL 124 2/21/98 (H) MINUTE(RES) 2/24/98 (H) RES AT 1:00 PM CAPITOL 124 2/24/98 (H) MINUTE(RES) 2/27/98 (H) JUD AT 1:00 PM CAPITOL 120 2/27/98 (H) MINUTE(JUD) 2/28/98 (H) RES AT 9:00 AM CAPITOL 124 2/28/98 (H) MINUTE(RES) 3/03/98 (H) RES AT 1:00 PM CAPITOL 124 3/03/98 (H) MINUTE(RES) 3/04/98 (H) JUD AT 1:00 PM CAPITOL 120 3/05/98 (H) RES AT 1:00 PM CAPITOL 124 3/05/98 (H) MINUTE(RES) 3/06/98 (H) JUD AT 1:00 PM CAPITOL 120 3/06/98 2538 (H) RES RPT CS(RES)NT 3DP 1DNP 1NR 3AM 3/06/98 2539 (H) DP: DYSON, GREEN, OGAN; DNP: JOULE; 3/06/98 2539 (H) NR: BARNES; AM: MASEK, WILLIAMS, HUDSON 3/06/98 2539 (H) 2 ZERO FISCAL NOTES (F&G, LAW) 3/09/98 (H) JUD AT 1:00 PM CAPITOL 120 3/11/98 (H) JUD AT 1:00 PM CAPITOL 120 3/18/98 (H) JUD AT 1:00 PM CAPITOL 120 3/20/98 (H) JUD AT 1:00 PM CAPITOL 120 3/20/98 (H) MINUTE(JUD) 3/23/98 (H) JUD AT 1:00 PM CAPITOL 120 3/23/98 (H) MINUTE(JUD) 3/25/98 (H) JUD AT 1:00 PM CAPITOL 120 3/27/98 (H) JUD AT 1:00 PM CAPITOL 120 3/27/98 (H) MINUTE(JUD) 3/28/98 (H) JUD AT 1:00 PM CAPITOL 120 3/30/98 (H) JUD AT 1:00 PM CAPITOL 120 3/31/98 (H) JUD AT 1:00 PM CAPITOL 120 3/31/98 (H) MINUTE(JUD) 4/01/98 (H) JUD AT 1:00 PM CAPITOL 120 4/01/98 (H) MINUTE(JUD) 4/02/98 (H) JUD AT 1:00 PM CAPITOL 120 4/02/98 (H) FIN AT 1:30 PM HOUSE FINANCE 519 4/02/98 (H) MINUTE(JUD) 4/03/98 (H) JUD AT 1:00 PM CAPITOL 120 4/03/98 (H) FIN AT 1:30 PM HOUSE FINANCE 519 WITNESS REGISTER DOUG WOOLIVER Administrative Attorney Alaska Court System 820 West 4th Avenue Anchorage, Alaska 99501-2005 Telephone: (907) 264-8265 POSITION STATEMENT: Provided information on SB 195. TOM LAKOSH P.O. Box 100648 Anchorage, Alaska 99510 Telephone: (907) 563-7380 POSITION STATEMENT: Testified on SB 195. CHARLES MCKEE P.O. Box 243053 Anchorage, Alaska 99524 Telephone: (Not provided) POSITION STATEMENT: Testified on SB 195. RON SOMERVILLE, Consultant to House and Senate Majority 4506 Robbie Road Juneau, Alaska 99801 Telephone: (907) 463-3830 POSITION STATEMENT: Provided information on HB 406 and HJR 66. KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 Telephone: (907) 465-4990 POSITION STATEMENT: Provided information on HB 406 and HJR 66. ACTION NARRATIVE TAPE 98-54, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 1:23 p.m. Members present at the call to order were Representatives Green, Bunde, Porter, Rokeberg, and James in person, and Representatives Croft and Berkowitz via teleconference from the Anchorage Legislative Information Office (LIO). SB 195 - COMMON LAW LIENS Number 0220 CHAIRMAN GREEN said the committee would hear SB 195, "An Act relating to common law liens, to remedies, costs, and fees imposed for the registration, filing, or recording of certain nonconsensual common law liens, and to penalties for recording common law liens." DOUG WOOLIVER, Administrative Attorney, Alaska Court System, came before the committee to testify. He informed the committee the reason the Alaska Court System asked the legislature to introduce this legislation is to address the problem of the filing of common law liens against people's property. He stated the liens are "bogus," they have no legal merit whatsoever, and they never have had, but they can cloud title to your property. If you try to sell your house and a lien has been recorded against it, you still have to get the lien removed and, typically, that requires a lawsuit. Number 0350 MR. WOOLIVER explained that last year in Anchorage, in retaliation for a zoning enforcement action, a person recorded liens against the property of Mayor Mystrom, all the members of the Anchorage Municipal Assembly, all the zoning enforcement officers that were involved in the enforcement action, and the neighbor who called in the zoning violation. He indicated there was a subsequent case several months later of another person doing the same thing, only they just recorded against the zoning officers again. MR. WOOLIVER said SB 195 attacks this problem in four different ways. First, it makes it clear in statute that common law liens, as defined in the statute, are invalid so that title companies, banks, et cetera, isn't confused as to whether or not there is any merit to them. Number 0410 CHAIRMAN GREEN interjected and said if the legislation makes common law liens improper, some of the law that we have came from common law and asked, "Does that trace with that, for example, workmen's lien and those sorts of things? Are they--perhaps it's in other places in statute, so it doesn't negate then." MR. WOOLIVER replied that is correct. He said, "We have in our statute a statute ... I think it's entitled Improvement on Channels, (ph) ... which was what a common law lien used to be." He indicated Alaska does not have common law liens because we have an extensive statutory scheme that governs the recording of liens. He gave an example of what a common law lien used to be: if he did some work on your buggy and it's in his shop and you refused to pay him for it, he would have the right to keep your buggy until you paid for it. He said a common law lien used is a person's right to possess property that he or person has improved in some fashion, until payment is made. Mr. Wooliver informed the committee there is a lien statute that covers that. He said there are other types of liens such as mechanics' liens, materialmen's liens, and fishermen's liens, which are all covered by statute, none of which are affected by this bill. Number 0510 MR. WOOLIVER said in addition to making these liens clearly unlawful and meritless, there is also a provision to have either a court or an attorney file a paper to be recorded, to make it clear to others, that this previous lien is invalid under the Alaska Statutes. Hence, a loan officer or a title company doesn't have to make their own legal decisions as to whether or not this lien is a common law lien or not. He said the legislation also provides for costs and actual attorney's fees if a person goes to court to have a lien removed. In addition, it also makes it a Class A misdemeanor to record this type of lien. He noted that according to the Department of Law, some troopers have had liens recorded against them, and judges and magistrates have been threatened with liens as well. He indicated it is beginning to be a problem in Alaska and it is a very big problem in several states outside of Alaska. Number 0600 REPRESENTATIVE JEANETTE JAMES pointed out that liens can be filed on someone's property and they won't know that it's happened unless they are looking for it, or for some reason, have to check. She asked if someone took a lien in to be recorded, would the recorder's office take it. MR. WOOLIVER replied in the affirmative. He indicated the legislature changed the statute a few years ago regarding recorders' offices. He said the recorder's office will not be a gate; they are not going to review all of the various liens to check if they are valid or invalid. They don't have the training to do that. And the obvious response by people recording these liens is to make them look more legitimate or to make them more complicated. The recorder will accept liens. It's very easy to record on property and it has always intended to have been easy to do because a lot of these prejudgment-type of liens, such as mechanics liens, are filed by ordinary people and they are supposed to be simple. He said that fortunately, a lot of the people who record these liens like to call the person and tell them what they're doing, or send them a notice, but they don't have to. He referred to the case in Anchorage, stating that the only reason they discovered it was because Assemblyman Mark Begich was in the middle of a business transaction and the whole deal fell apart because he discovered this lien, and it stopped the whole project he was working on. Because of that incident, they found out all these other liens as well. Mr. Wooliver said it would be common a person wouldn't know about it until he or she went to borrow money against a piece of property or went to sell. Number 0720 REPRESENTATIVE JAMES asked how the bill would work, stating, "Someone files a lien against your property and you don't know it's there, and then all of a sudden you have this transaction going through and then here's this lien." She asked what the process is to get rid of the lien. MR. WOOLIVER replied that almost all of these liens are recorded against public officials, usually in retaliation for some official action they have taken. He explained that the first step in the process is whoever is reviewing your title should see that the lien is already invalid under statute, because this bill amends the statute to make it clear that this type of lien has no merit whatsoever. Step one is they should be able to completely ignore it and it won't have any affect on whatever transaction you're trying to do. He said if a person is a public official, an attorney would be able to file a statement to be recorded along with the lien indicating the lien is invalid under statute. If you're not a public official and this lien is on your property, again it's already invalid, which is stated in the statute, so it shouldn't cause a problem. But if it does cause a problem, you have an opportunity to go to court and can get an ex parte order issued stating the person has 20 days to show up and argue that this lien is in fact valid. And if they don't do that, then the court signs a statement indicating the lien is invalid and you're awarded costs and attorney's fees for having done that. Those would be the steps you would go through. Mr. Wooliver added that hopefully a person wouldn't have to go to court because the title company would see that the lien, on its face, is invalid. Number 0860 REPRESENTATIVE BRIAN PORTER referred to page 3, line 17 of SB 195, stating that he is not familiar with why the term "grantee" would be used, pointing out that the other person purportedly benefitted by the claim. He said if that's not the person that filed the lien, then they wouldn't have the authority to take it back. MR. WOOLIVER said that that language was added by the Legislative Legal and Research Division when the bill was drafted. He stated that if a lien is recorded by a person to benefit someone else, that other person could file an affidavit indicating the lien is not to benefit them. He said the lien itself is also invalid anyway under the other provisions of the Act. CHAIRMAN GREEN referred to Mr. Wooliver's example of a buggy and asked: If the person who made the bolts that held the wheel on the buggy, would that be one of these grantees other than the person that may have filed? MR. WOOLIVER said he does not believe so. REPRESENTATIVE PORTER said a person could receive punitive damages, and he asked if that would be as a result of filing a tort case against the person that filed the lien. MR. WOOLIVER replied in the affirmative. He said a person who wanted to get damages from someone would have to sue them as a tort case. He indicated that under this legislation, a person will get court costs and actual reasonable attorney's fees, if the person has to go to court at all to get an ex parte order, but any other damages will have to be obtained through a law suit. Number 0994 REPRESENTATIVE PORTER referred to page 3, starting at line 17, subsection (b), and asked what the function of that subsection is. REPRESENTATIVE CON BUNDE asked, "I'm wondering if this is casting a wider net so that I file a lien, not in my name, but in your name, to get around my responsibility, and then if Representative Green comes to you as you're the grantee ... and you refuse to release him from that lien, even though I filed what should have been an inaccurate lien, is that ..." MR. WOOLIVER said he is not very familiar with this particular provision, but there are lots of angles that the common law courts use. He stated, "It is my understanding that I can record a lien for the benefit of somebody else, I'm in 'cahoots' with the other person, that person didn't actually record the lien, but does benefit from it, and that person could be required to release the lien since they are the beneficiary of that lien." He told the committee he is not sure how often something like this happens, if at all, but that is the loophole that this provision is trying to close. Number 1080 REPRESENTATIVE ERIC CROFT asked if SB 195 is based on any model legislation from other states. MR. WOOLIVER replied there are several other states that have similar types of provisions, which they have looked at, but this isn't modeled directly after any particular one. REPRESENTATIVE CROFT referred to the mechanics' lien Mr. Wooliver described earlier, and he said those types of liens are statutorily defined, and they would continue and would not be affected by this legislation. MR. WOOLIVER replied that is correct. REPRESENTATIVE BUNDE stated they know what would happen if someone were to file a common law lien after this legislation passes, but he asked what would happen before it passes. He asked if someone filed a lien against him, what hoops would he have to jump through to get that lien released. MR. WOOLIVER replied that typically he would have to go to court and try to sue the person to have it released. He said it is a difficult process that takes time that, which is complicated by the fact that a lot of the people who are recording this type of lien don't accept the jurisdiction of the court, and they won't accept service of process because they don't accept anything with a zip code on it. He said then you end up in a horrendous problem just trying to go through a court proceeding against some of the inherence to this approach. Number 1223 REPRESENTATIVE BUNDE asked what that might cost. MR. WOOLIVER referred to the Municipality of Anchorage's case and said he had talked to the attorney who represented the city and he was told they spent several hours on the case, but he did not know how much something like this would cost. In addition to the cost of going through this, most people won't find out about it until they are in the middle of trying to do something else. And then there are the costs of not being able to sell their house or not being able to go forward with their business plans. Number 1330 TOM LAKOSH testified via teleconference from the Anchorage LIO. He informed the committee he is a professional carpenter and stated that he can see a circumstance where he would not have the opportunity to keep someone's cabinets, if they decided not to pay. He asked the committee to put in specific language that would address the issue that mechanics' liens are accepted from the nonconsensual clause because if someone tried to stiff him on his wages, costs, or materials for work he did on someone's home or job site, that they wouldn't consent to the lien after that. Number 1420 CHARLES MCKEE testified via teleconference from the Anchorage LIO. He said, "I see a similarity in this common law lien - especially when a legislative body got upset - with $5 million that Congress was supposed to give us during statehood, then they went ahead and dissolved the mental health land trust of a million acres, so that was essentially a common law lien against the congressional act." He indicated he had filed a constructive notice under Article 1, Section 8 with the Alaska Public Utilities Commission because they are issuing licenses to telecommunication companies without researching whether they have (indisc.) property rights to do so. Number 1554 REPRESENTATIVE CROFT referred to page 1, Section 1, stating that a lien means judicial or statutory so that the mechanics and materialmen would fall under that statutory and this wouldn't affect them at all. Number 1591 REPRESENTATIVE NORMAN ROKEBERG made a motion to move SB 195 out of committee with individual recommendations and attached zero fiscal note(s). There being no objection, SB 195 was moved from the House Judiciary Standing Committee. HB 406 - SUBSISTENCE USES OF FISH AND GAME [Contains discussion regarding HJR 66.] Number 1600 CHAIRMAN GREEN announced the next order of business would be HB 406, "An Act relating to subsistence uses of fish and game." He noted that they would discuss HJR 66, which accompanies HB 406, Version O-LS1573\C, dated 4/2/98. He said, "The main reason for bringing this up today, since we are still in somewhat of a moving target, this is a redraft that we think is closer to what the comments that we've heard so far, and it does, of course, still require a constitutional amendment. And because the amendment has caught the public's eye back in Washington with some comments from our Congressional delegation, I would like to go through the litany of 12 items that we've included. This was intended to be the list that I had received ... from the various people putting in requirements, if we're going to do any kind of constitutional change, we've got to have this or this, and this is what this list is. It's not in any prioritized listing, and I would covet the input from the committee to see if, first of all, we might be able to pare the list down or, if not, that we could at least prioritize." Number 1670 REPRESENTATIVE ROKEBERG asked for clarification of what Chairman Green just said and asked, "HJR 66, Version F, is that the right one?" CHAIRMAN GREEN answered yes. REPRESENTATIVE ROKEBERG asked if there is another Version E of the bill. REPRESENTATIVE CROFT said he has Version E and asked if there is a Version F. CHAIRMAN GREEN clarified that Version E is the most recent version of HB 406. REPRESENTATIVE ROKEBERG noted that he had Version C of HB 406(JUD), which was delivered to his office today and asked Chairman Green how he wants to proceed. Number 1720 CHAIRMAN GREEN informed the committee that he wants them to review Version C at their leisure, since that version would not be heard today. He said he wanted to focus on HJR 66 because the committee will probably revisit HB 406, Version C, in an attempt to reconcile some significant differences of opinion with the House Resources Committee and the Judiciary Committee. He said, "And if that can be done, we will have an alternate to see, if not, then [Version] C will be visited Monday." REPRESENTATIVE ROKEBERG clarified that the focus today will be on the changes to ANILCA provided in Version E of HB 406. CHAIRMAN GREEN said exactly. REPRESENTATIVE CROFT asked what involvement and coordination the committee is going to have with the House Resources Committee. He asked if it's on the statute or on the constitutional amendment, and asked what the committee plans on doing with them. CHAIRMAN GREEN said the committee is going to take another look at the possibility of combining - and is there any way possible that we can accomplish what the end result is by some sort of a merger of the two attitudes. He said, "The legislation, as its been presented, from the Resources Committee and the various machinations, the culminating right now, and the C Version from the Judiciary Committee that says, is there common ground that we can go ahead and resolve some of the differences. If not, then we'll revisit this C Version on Monday. It's by way of information more than anything else because it may be changed before we revisit it on Monday. The list, if it still remains a necessity to have a constitutional change to accomplish the things that I think we need to accomplish as a state, we would like to have our list more in order because it is becoming a point now of national controversy, at least to some degree. It made some national news. So we need to get a rendering of this list that's included on page 2 of HJR 66." Number 1820 REPRESENTATIVE BERKOWITZ asked if he understood Chairman Green correctly that "Version C in the statutory section is going to be discussed with parties, not in front of the committee, for the possibility of combining it with the version that came out of Resources?" CHAIRMAN GREEN said there will be a review. He said, "To date, the machinations that have happened on the Judiciary side have essentially been either, as you have been involved - or actually Representative Croft has been involved - now we've got a document that, in my mind, appears to be a workable document that does require a constitutional amendment." He told the committee what he is going to try and do is to see if there's any commonality between this version and the version that they received from the Resources Committee, and if they could incorporate them before they actually adopt a D Version on Monday. REPRESENTATIVE BERKOWITZ asked what the forum is that he is going to use to revisit those. CHAIRMAN GREEN replied it is not an official forum. He said he is trying to explain why this version is before the committee noting that it's not necessarily the version that the committee will use because there might be a paragraph that could actually be commonality between the two the committee might be changing. REPRESENTATIVE CROFT asked if there is a way that he and Representative Berkowitz could participate in that discussion. CHAIRMAN GREEN said there would be, but it will be difficult from Anchorage because it will be done this weekend. REPRESENTATIVE CROFT asked if there is a set time and place he can call. CHAIRMAN GREEN said there isn't an official time set, and noted that he will be working on it tomorrow. REPRESENTATIVE BERKOWITZ commented that this bill has already been through the Resources Committee and that they had their opportunity to review HB 406, and stated that it's our turn to draw up a solution. He said the Resources Committee failed and stated that we should do this in the proper forum which is in the committee. Number 1934 CHAIRMAN GREEN confirmed that it will be done in their committee, but clarified that there may be some ground common to both. He said, "Rather than to take an abstinent view and say, okay, they had their chance, and we're going to have our chance, and if goes out of this committee, Finance will have their chance. What we're trying to do -- I keep saying 'we' -- what I would like to do is build a consensus bill that would pacify, or at least get the support of as many people as possible knowing you'll never come up with a bill that's going to completely satisfy everybody because the positions are too far apart." REPRESENTATIVE PORTER said the bill that would go out of this committee, in whatever form it would go out in, has to be approved and reviewed by the committee in a special committee meeting; therefore, Representatives Croft and Berkowitz will get a "crack" at it. CHAIRMAN GREEN said he could understand Representatives Croft and Berkowitz' consternation, noting that if there will be any changes to the bill, he would let them know; however, he pointed out that this version hasn't been adopted by the committee. He said, "it's not a matter of doing something committee-wise, it's actually my trying to come up with something that we could accept as a committee." REPRESENTATIVE BERKOWITZ said he wants the public to have full confidence and the pride that comes out of the Judiciary Committee and that is why he wants to insure that whatever happens, does so in public view. CHAIRMAN GREEN responded absolutely. REPRESENTATIVE CROFT said it seems like if the committee adopts the C Version and anything that the committee works on this weekend came up as possible common ground amendments to it, that that procedurally would be the best for the public process and for just orderly process of the committee. CHAIRMAN GREEN said, "That's right." REPRESENTATIVE CROFT asked, "Can we go ahead and adopt the C Version and then you work on those amendments that might change it back to something more, like, Resources?" CHAIRMAN GREEN said sure. Number 2033 REPRESENTATIVE CROFT made a motion to adopt the proposed CS for HB 406, O-LS1573\C, dated 4/2/98, Utermohle. CHAIRMAN GREEN said, "We can do that here at your behest, but it would have been just like Representative Berkowitz' recommendation on the last bill." REPRESENTATIVE JAMES asked if the committee is going to accept a motion to adopt the CS, because, if that's the case, she said she wants to speak on that, otherwise she doesn't need to speak. CHAIRMAN GREEN said, "I'll make the motion to accept work draft 0- LS1705\E, Utermohle 3/28 as our working document." REPRESENTATIVE JAMES objected due to the process. She said, "I consider that we already have a work draft as a working document, and that if I vote to accept this new working document, that I am agreeing to the amendments that are between the difference of them, and I don't know what they are. I have had little time to look at this today, so I don't know that I want to accept all those amendments, that's my concern. If this is necessary for the procedure to go forward, and you tell me that it's necessary I'll go ahead with it. If it's not necessary, I'd rather not, because I think it is voting for these amendments and I'm not sure that I want to." CHAIRMAN GREEN stated, "That was my feeling originally, that's why I wasn't going to introduce it as a recommended change. You have heard the dialogue from some of the other members of the committee, and I don't want to appear to be doing something that the public isn't aware of. And that, I think, is a concern expressed by the two missing members. I would prefer to do it the other way as well, and that [Version] E might come in different form that it is here, even, for a recommendation." REPRESENTATIVE JAMES thanked Chairman Green stating that that's what she agrees with. She said if the committee is going to be discussing HJR 66, it seems like it's based mostly on the other version. She said, "Having this work draft in front of us is fine. I don't object to that. I just object to voting for it, which would mean that I'm amending the other one, and I'm not sure I want to do that, because I haven't gone through them to see. You're not presenting all the changes to us and all those kinds of things? That would take a lot of time." CHAIRMAN GREEN said the committee can't do that because it will take a lot of time. Number 2160 REPRESENTATIVE ROKEBERG said he will be voting no for the reasons that were just articulated by Representative James. REPRESENTATIVE BUNDE said, "If we hadn't had the previous CS, and now we have this CS, it would still be all new material for us and we'd either accept it in total and then amend it after we've accepted it, or we would reject the working document. I don't have a problem with having a working document and then working backwards to iron things out that we weren't happy with." REPRESENTATIVE CROFT said he is a bit confused with what just happened. He said he was trying to get the committee to adopt the statutory changes, the C Version of CSHB 406 as a working document. He asked Chairman Green if he was moving the E Version of the amendment. Number 2200 CHAIRMAN GREEN said he withdraws his request to adopt the E Version. REPRESENTATIVE PORTER interjected and said, "Of [HJR] 66." CHAIRMAN GREEN said, "No, we're still taking about HB 406." REPRESENTATIVE ROKEBERG said the committee was discussing the C Version of HB 406. CHAIRMAN GREEN said, "[HB] 406, then I'm confused, because what I had just done was give you the date on the resolution, rather than the date of the bill.' CHAIRMAN CROFT said he didn't want to add procedural complications. He indicated if the committee is about to go into negotiation, they should have a working document that reflects this before the committee. That is why he was moving the statutory CS for HB 406, which is the C Version, Utermohle 4/2/98. He said if the committee is going to talk about the resolution with is the E Version of HJR 66, he said that would be fine and the committee can adopt whatever version of the resolution they want. He indicated that he was talking about the statutory changes. Number 2240 CHAIRMAN GREEN said he misunderstood Representative Croft. He then recommended that the committee adopt the HB 406, O-LS1573\C, Utermohle, dated 4/2/98 as the working document. He asked if there are any objections. REPRESENTATIVE JAMES objected. Number 2265 REPRESENTATIVE GREEN said, "Let's start over again." He said he understands what Representative Croft is talking about and that he concurs with him. He said due to the lateness of the meeting, he would like to get to the resolution to try and prioritize it, and that may or may not be necessary. He stated, "The version that we would come in with then as a recommendation for adoption, we can either do by amendments to the last version that we worked on, or recommend and go through in detail any changes for a committee substitute. But rather than get off on that digression right now, I would prefer to try and prioritize at least, if not render, the changes that we would propose in ANILCA if we have a position to bargain from." REPRESENTATIVE CROFT said he respects Chairman Green's amendment and stated, "My concern is that the public response versions that are actually out there and adopted, and there's now a couple of [HB] 406's that are working documents, and it's confusing, I think, for the public to know which to respond to. I think if we adopt [HB] 406 and then we can just have end discussion of how we (indisc.) of whether we do that ... everyone knows what we're doing. We're working from this draft, the C draft, we're talking to the Resources co-chair about amendments and everyone's on the same page. And I do think that would help clarify things, but we don't have to discuss it a lot longer and move on to [HJR] 66. I would maybe keep that motion and maybe we can have a quick vote on it." CHAIRMAN GREEN said he can't make the motion, advising the committee they will move on to the work draft for HJR 66. REPRESENTATIVE ROKEBERG said there is a motion on the table and that Chairman Green made the motion. CHAIRMAN GREEN said he did not make the motion because he was in error. REPRESENTATIVE JAMES asked, "Since this doesn't have a number on it, if I went to records downstairs now and I wanted to get a copy of HJR 66, could I get this copy?" CHAIRMAN GREEN responded no because the committee has not adopted it. He indicated the resolution was just brought in today. REPRESENTATIVE JAMES asked why the resolution doesn't have a number on it indicating the number "66" was penciled in on it. She asked if the committee accepted the other version of the HJR 66. CHAIRMAN GREEN it doesn't really matter, and that it is HJR 66. REPRESENTATIVE JAMES asked if the committee accepts this version of the resolution, can it be picked up at the Legislative Information Office. CHAIRMAN GREEN responded yes. Number 2380 REPRESENTATIVE CROFT said, "In discussions with you (indisc.) before that that I could move amendments and vote on amendments, I could not move or object to moving those bills. The motions were in order from teleconference, but the votes on a bill are not. I'd just like to know what the ruling of the chair is on motions short of moving the bill from teleconference sites." Number 2400 REPRESENTATIVE ROKEBERG made a motion to adjourn. CHAIRMAN GREEN responded that that's a nondebatable motion and asked if there is an objection. UNIDENTIFIED SPEAKER: "I would object." CHAIRMAN GREEN then asked for a roll call vote for adjournment. Representatives Porter and Green voted against adjournment; Representatives Bunde and James passed on the vote, and Representative Rokeberg voted in favor of adjournment. Representatives Croft and Berkowitz could not vote via teleconference. Therefore, the motion failed. REPRESENTATIVE CROFT interjected and said he does not know what he can or cannot vote on. He stated, "As I said, I understood that it was not moving the bill, objecting to moving the bill. Are there other things that I cannot vote on through teleconference?" CHAIRMAN GREEN advised the committee he had just received clarification from Tam Cook, the Director of the Legislative Legal and Research Division, who said Representative Croft is entitled to vote on everything but moving the bill from committee. TAPE 98-54, SIDE B Number 0006 CHAIRMAN GREEN continued "...Representative James, did you vote?" REPRESENTATIVE JAMES replied no. REPRESENTATIVE BUNDE stated, "Now they should vote." CHAIRMAN GREEN asked Representatives Berkowitz and Croft what their vote is. REPRESENTATIVE BERKOWITZ replied no. REPRESENTATIVE CROFT replied no. CHAIRMAN GREEN stated the motion failed. REPRESENTATIVE ROKEBERG said Representatives Berkowitz and Croft are out of order, and that they can't vote. CHAIRMAN GREEN said, "According to Tam Cook, they can." REPRESENTATIVE ROKEBERG said, "Well, I've got a resolution (indisc.). CHAIRMAN GREEN responded it doesn't matter because the motion failed anyway. REPRESENTATIVE ROKEBERG said it's a point of order and it's something that the committee needs to look into. CHAIRMAN GREEN said they just called Tam Cook. He announced that that brings the committee back to discussion of HJR 66. REPRESENTATIVE CROFT thanked Chairman Green for clarifying that he and Representative Berkowitz can vote on motions short of moving a bill. He said, "If it's your intention to operate from [HB] 406, Version C, and make those negotiations, I'll withdraw the motion to adopt [HB] 406 [Version] C and we can work on HJR 66. I do think, with all respect, that the cleanest way to do that is to have a work draft (indisc.) so the public knows what it is, but if that's not your pleasure, than we can move on to [HJR] 66." CHAIRMAN GREEN indicated he has a list of requested amendment changes to ANILCA. He said it is not necessarily a complete list, but it's the list that he has had input from various people. His suggestion would be that the committee review the list to see if there are any ways that they can be combine or reduced, or at least prioritized. He said, "Because of the attention that is drawn, I had hoped to get to this only if it was necessary, but apparently we're getting some negative feedback now from congressional delegation." Number 0065 REPRESENTATIVE BUNDE said, "Just again, procedurally to help things out, I hope, we have a Version E and a Version F and I would move, as a working document, whichever version the chair would prefer to work from." REPRESENTATIVE BERKOWITZ said that he has two version E's: 0- LS1705 and 0-LS1706. He asked for clarification as to which version the committee is discussing. REPRESENTATIVE JAMES asked what Version is 0-LS1706. CHAIRMAN GREEN indicated he has two 0-LS1705's. REPRESENTATIVE JAMES indicated she also has 0-LS1705's; a Version E and a Version F. REPRESENTATIVE CROFT said, "I haven't seen the [Version] F here, but on the [Version] E, there's one -- yes, LS1706. Did -- 'this section does not restrict the power of the legislature to provide a preference,' it uses that language in a bunch of different sections. Is that a different bill, Mr. Chairman?" Number 0100 CHAIRMAN GREEN called for an at-ease, which was taken at 2:13 p.m. CHAIRMAN GREEN came back on record stating that there was a difference between the bill drafter. He announced the next order of business will be HJR 66, 0-LS1705\F. Number 0119 REPRESENTATIVE BUNDE made a motion to adopt HJR 66, 0-LS1705\F as the working document of the bill. REPRESENTATIVE BERKOWITZ interjected and said that he and Representative Croft does not have that version before them. CHAIRMAN GREEN said it's been attempted several times during the committee meeting to get that faxed to them and apparently there is a problem getting it to them. REPRESENTATIVE BERKOWITZ informed the chairman Representative Croft went to check and see if the fax has come in. He asked if this version is significantly different than 0-LS1705\E of HJR 66. CHAIRMAN GREEN indicated that the list is the same. He said the committee is discussing adopting that version of HJR 66 for the list and if the committee decides that the language needs to be amended, that would be in order also. He said what he is attempting to do is to try and address the list of changes to ANILCA. REPRESENTATIVE BERKOWITZ said he would feel more comfortable if the list is the same as Version E as it is on Version F. And since they don't have Version F, he would feel more comfortable working off the list on Version E. CHAIRMAN GREEN said they should be identical. REPRESENTATIVE CROFT asked what the difference is between the two versions. CHAIRMAN GREEN said there is a little difference on page 1, but that the committee would not be addressing that at this time. Number 0183 REPRESENTATIVE BUNDE said, to simplify things, he would move for adoption of Version E as the working document. CHAIRMAN GREEN asked Representative Croft if he has Version E. REPRESENTATIVE CROFT replied that they do. CHAIRMAN GREEN asked if there is any suggestion about combining any of this litany of 12 issues or changing any of them. REPRESENTATIVE JAMES suggested taking them one at a time. She said before they begin, she noted that she doesn't have any problem going down the list, but she wanted to say, for the record, that she feels the committee is getting the cart before the horse. She suggested that the committee should figure out the statutory changes they want to make, and then see what they need to have in a constitutional amendment, if at all. She said she feels a little uncomfortable, but that she would be happy to do whatever the chairman suggests and that she will cooperate, but that she has a problem dealing with the list when she doesn't know what the rest is going to be. Number 0246 CHAIRMAN GREEN advised the committee that "[HB] 406 does not mandate any of this, it just says that it entitles [Department of] Fish and Game to do certain things. For that change ... in our constitution, we are trying to get some changes to ANILCA so that there's nothing in the bill, [HB] 406, that would have any affect on this list of things that we want changed in ANILCA. That's why I think we can take this list because what we do with [HB] 406 will not have a bearing on this." REPRESENTATIVE JAMES said she understands what he was saying, but she wants to put on the record that she is not in favor of the constitutional amendment and that she does not problem going down the list. REPRESENTATIVE BUNDE indicated that item (1) is critical and essential and that he would be opposed to that item being removed from the list. REPRESENTATIVE JAMES said she agrees with Representative Bunde. REPRESENTATIVE CROFT said it seems that the conditions the committee wants to make to a constitutional amendment need to be rationally related to, "did we have to do this in the first place?" He referred to page 3, subsection (b)(3) which reads: "a federal court issues a final judgment that ... this violates the Constitution of the United States or any other federal law" stating that that is the appropriate condition to this amendment. He said, "The others, to extent that they're a wish list we may or may not get, should be addressed by the way we usually do that, which is a resolution to Congress asking for these changes." He said the only item that makes sense to link to the amendment is the one that indicated they didn't have to do it in the first place. He indicated that his position is the one item that should be the condition for the amendment is the one that says that ANILCA was (indisc.) equal protection. Representative Croft said whenever it is appropriate for the chairman, he would then move that the committee separate the question and that subsection (b)(3) remain a condition of the constitutional amendment and that the others be part of a separate resolution asking Congress to address it. Number 0370 REPRESENTATIVE PORTER said he understands Representative Croft's motion, but he disagrees with it. He doesn't think that it would be successful at all to not have some requests tied to the passage of this constitutional amendment, if they actually go forward with a constitutional amendment. He said if the passage of that amendment, and whatever the committee ends up with on the list from these requests are not passed, that the constitutional amendment also not pass. "That, of course, is why they're here in the first place," he added. REPRESENTATIVE JAMES stated out that this litany of items is what the committee would intend be part of the constitutional amendment that would encourage people to support it, if there was one. She said, "If these things don't happen, the constitutional amendment is null and void." CHAIRMAN GREEN remarked that it would be linked to it; it wouldn't be part of it. REPRESENTATIVE BUNDE said to expand on what Representatives James and Porter just said, "This is our only chip. This is our trump card; our only card. Once we amend the constitution, we don't have any other negotiations, so unless we get our concerns addressed as part of the vehicle for any constitutional amendment - and I didn't say I favor that - if the concerns aren't addressed, I'm absolutely opposed. If the concerns are addressed, I'm willing to listen to arguments." CHAIRMAN GREEN said he agrees and his only other addition to that is there's no sense in going for a constitutional amendment if they don't get something changed in ANILCA. He said, "All we would be doing is, don't move or the big guy gets it. I mean, that doesn't make a lot of sense to me, but I do appreciate your efforts, Representative Croft. I just don't think there's any reason to cause the people of the state to vote to change the constitution, unless there's some link to that to gaining something from the onerous parts of ANILCA. We may, in fact, find that (3) still stands, but (1) doesn't. And, in that case, I would certainly not want to vote for a change in constitution without getting that list, and that's the problem." He commented that the list is too long and that the legislature will not possibly get 12 changes to ANILCA. He said the committee's job is to render that down to what they believe is a workable list. Number 400 REPRESENTATIVE BERKOWITZ stated that perhaps in talking with Senator Stevens he might be able to inform the committee which of the 12 items he found possible or impossible, rather than going through them item by item. CHAIRMAN GREEN indicated that he had talked to Senator Stevens three weeks ago when he was in Washington, D.C., but he has not talked with him since. He said at the time, that was strictly a conceptual thing that the committee would perhaps make a different run at HB 406 and that there would be some quid pro quo. He said they did not discuss what they are. REPRESENTATIVE BUNDE said, "As long as we're talking about the art of the possible, I would think that if I were chair of the Senate Appropriation Committee, many things would be possible. I think the only things that are impossible are the things that people choose not to address." REPRESENTATIVE CROFT asked if there was any objection to keeping item (1). He indicated that there wasn't any from teleconference. CHAIRMAN GREEN said there was no objection from the committee, unless there is some from either Representatives Croft or Berkowitz. REPRESENTATIVE BERKOWITZ said there is no objection. REPRESENTATIVE BUNDE suggested reading the items out loud so that people on teleconference can know exactly what the committee is discussing: He read, "(2) defines the term 'public lands' to expressly exclude State and private land and water, including navigable waters;". He stated that he thinks that item would be essential. CHAIRMAN GREEN said item (2) is a significant step. If the committee can get that item, he thinks it's very laudable. In fact, that's one that he would insist on as well. He said, "What this does, of course, is it opens up the ability for the state to much more adequately address the concerns about managing fish and game." REPRESENTATIVE PORTER said he would like a comparison between items (2) and (4) and asked if they are duplicative or separate. Number 0651 RON SOMERVILLE, Consultant to House and Senate Majority, came before the committee to testify. He informed the committee that the list they have, are the items that were compiled which discuss the various changes with majority committee members of the Senate and House. He said the first four items were designed, even during the Hickel Administration, as those necessary to essentially assure that on state lands and waters, (1), which is now the Katie John case, would be overturned. He indicated that it requires the predefinition of public lands and some assurances that the reserved water rights and navigational servitude doctrines would not be used as they have been by both the district court and the 9th Circuit court against the state, in other words, authorized and preemptions. He pointed out that the four items were tied together as an absolute bulletproof way of assuring that at least on state and private lands and waters, the state was protected. Mr. Somerville noted that the key policy decision which was directed at state and private land and waters, and it excluded federal lands. He said it has been the position of some members that the condition of return of management be that the state have complete management over all state and federal lands. And the recommendation was that it's probably not possible to eliminate federal court oversight over federal public lands, but at least assuring that state lands and waters were protected. CHAIRMAN GREEN said there certainly is a reason for the servitude doctrine in the reserve water rights because those are two issues that the legislature has actually gotten in litigation. He said the question is could that item be incorporated into item (2) or item (2) be incorporated into item (4). He said his concern is that 12 requirements for change in ANILCA is like saying there's something wrong with motherhood. A flag immediately goes up and says that's much too broad of a list. He asked, "Can we reduce the number and still get accomplished what we want to get accomplished? In other words, can we knock off one of these by combining (2) and (4)?" Number 0758 KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green, Alaska State Legislature, came before the committee to answer questions. He said he believes the point was to have the federal government expressly address each of the concerns. Although it's broadly within one category, he indicated that there are several different methods and means throughout ANILCA that could create problems with navigable waters with the state. He said the idea here is that we're trying to nip any opportunity of the federal government or a federal court to come in and find another way to allocate our navigable waters to the federal government, trying to limit that as best as possible. He noted that by putting it in one broad category, he believes it will lose some of the priorities and some of the emphasis by saying not only do you have to redefine, we want you to expressly state that there are no reserved water rights, and that a navigational servitude doctrine does not apply. REPRESENTATIVE CROFT made a motion to amend the motion to adopt item (2) to delete "including navigable waters" and to also delete (4). He said the effect of that would be to affirm our right to state lands, private lands and waters. He said the navigable water and, in particular, the Katie John decision, was found by the 9th Circuit court to be instrumental to protecting the fisheries flow, then come up into federal lands where they have the legitimate right to control subsistence. He said if the federal courts can't do that, it has very little ability to protect the subsistence rights of upland rural residents/upland Natives. He said for practical sense and political sense, he doesn't believe that they are going to get the federal government to say, in effect, they cannot protect the fishery subsistence uses of upriver Natives and rural residents. He indicated that he reads item (4) as applying to the navigable water section of item (2), and those portions dealing directly with Katie John. He said the (indisc.) talk about lands and private land and water don't seem objectionable to him. Number 894 CHAIRMAN GREEN said he would object to dropping the navigable waters issue. He commented that in most other states that goes with statehood. He said, "You do have authority over navigable waters and to exclude those in Alaska because they may have some effect on the remaining federal land, I think doesn't. I think some of the issues that we've heard in the Resources Committee, some objections, that we should have equal standing with other states." He suggested keeping "leave to" as it is, and then add "as well as" and then pick up on line 7, "renounces all claim to authority under the navigational servitude doctrine and the doctrine reserve water rights" and make that all one issue. REPRESENTATIVE CROFT pointed out that the state of Washington, which has a reservation of stream, has been forced to allocate 50 percent of its salmon flow to uses by the Native residents. He added, "Instead of us being treated unequally and unfairly we, right now, are in the enviable position of being the one state without any reservation or Indian country, and we're actually unequal in a very positive situation. And all we had to do in return was agree to protect the subsistence rights of Natives and we're generally (indisc.). What we're asking for here is not equal treatment, but some sort of special treatment, ... at some point we'll start to be treated equally, and that would mean some of the reservation systems that we've seen in the Lower 48." MR. JARDELL stated that if shortening the list for visual purposes is what the committee wants and to also condense it as much as possible, he said he could draft an amendment to put those two items into one category where there's no substantive change, but that it does make it more concise and decrease the list. CHAIRMAN GREEN said they would expect that if, in fact, the committee combines them. REPRESENTATIVE JAMES asked what is the motion the committee is discussing that Representative Croft made. CHAIRMAN GREEN replied he does not know that Representative Croft made a motion. He said Representative Croft was discussing wanting to drop "including the navigable waters". REPRESENTATIVE JAMES said she thought he had made a motion. She said if he did not, then the committee is just talking. REPRESENTATIVE CROFT said he did make a motion to delete "including navigable waters" and item (4). REPRESENTATIVES PORTER and BUNDE objected to the motion. REPRESENTATIVE ROKEBERG said he would call for a motion in writing under Rule 27, if that's the case. REPRESENTATIVE CROFT said he would fax the motion in writing to the committee. CHAIRMAN GREEN said he believes that Representative Croft's motion isn't required in writing. He indicated that Representative Croft is only asking the committee to delete three words, which he believes does not require a written motion. REPRESENTATIVE ROKEBERG pointed out that that's the rule of the presiding officer and in his opinion, Chairman Green is the presiding officer. CHAIRMAN GREEN asked Representative Croft if his recommendation is to delete "including navigable waters." REPRESENTATIVE CROFT answered in the affirmative and also noted to delete item (4) which also discusses that. CHAIRMAN GREEN noted that there was an objection to that motion and asked if there was further discussion. Hearing none, Chairman Green asked for a roll call vote. Representatives Croft and Berkowitz voted in favor of deleting that language. Representatives Bunde, Porter, Rokeberg, James and Green voted against it. Therefore, the motion failed. Number 1113 REPRESENTATIVE PORTER made a motion to conceptionally combine items (2) and (4) so as to maintain the intent; however, to put it into one item, number (2), and that the committee aide be requested for format and duty. REPRESENTATIVE CROFT objected. CHAIRMAN GREEN asked if there is any discussion. REPRESENTATIVE CROFT said, "To the extent that we're asking for 12 things and that's too much for a lot of different people, including the congressional delegation, I don't think we're comporting with their intent by just combining the elements of them. We could combine them all into one big one and I don't think that that's the appropriate question. I don't see any reason to combine these and I don't think it has any effect (indisc.). CHAIRMAN GREEN advised that once this committee has gone through the list, whether they leave in all 12 items or if they combine some, it's his intention to contact Senator Stevens when the list is done to see if there's any viability to this. He said he didn't feel that it was appropriate to "hit" him with all 12 items at once. Number 1159 REPRESENTATIVE BERKOWITZ said rather than gargle the message by combining what is apparently some kind of majority wish list, according to Mr. Somerville, he would suggest sending the list as it exists to Senator Stevens, instead of the committee spinning their wheels now trying to figure out something that just condenses a wish list. CHAIRMAN GREEN said, "I think that's premature, Representative Berkowitz, because this is the second one we've mentioned and the question was, 'Is there reason to combine (2) and (4)?' We still have (3)-(12) to talk about. There may be some of those that drop out, so it would not be appropriate to send this entire list unless it's the wish of the committee." REPRESENTATIVE JAMES said if the committee is trying to get the blessing of Senator Stevens on this issue, and presuming that the committee listens to all of Senator Stevens' suggestions, she said the committee could do that by just simply passing one piece of legislation which provides a rural priority. She said until the committee has their statutory information down to see how they're going to address this issue and whether it's fair and actually does the things that ANILCA was intended to do, she doesn't think that Senator Stevens is going to be able to give any blessing to anything. She again reiterated that she feels the committee is getting the cart before the horse. CHAIRMAN GREEN said he appreciates what she just said, emphasizing that the committee has discussed that already. He said, "My point is that ... all they have indicated to us is that you take ANILCA as it has been modified by Senator Stevens, and modify your constitution to allow that to happen. And we're saying if we're going to modify our constitution, we've got to have more than what ANILCA is telling us now. We've got to have some take back. And so now we're in the negotiating stage of saying, okay, what are we going to take back there saying this is our quid pro quo, not what you gave us, but if we modify our constitution and rewrite, instead of saying rural, we make this a little more focused on location, then we want these changes. And that's what we're hoping to do in the art of negotiation. So, it's whether or not we got too big of a list for them to even listen to." Number 1304 REPRESENTATIVE PORTER said it would be nice if the committee could work it out with the congressional delegation at this point, but he believes that is premature. He said, "We need to find out what this committee wants to do and then send it to the next committee and they'll do something to it. And if we did get it passed, this other body would do something to it. When we get this document, if ever, to a point of perhaps a conference committee, I think that would be the time to contact the delegation and get them in the loop. But until we find out what it is that can or can't happen in our own legislature, back and forth with the congressional delegation is not going to be very productive and, quite frankly, a waste of their time." CHAIRMAN GREEN stated that is why the members are discussing this in committee. He noted that two members of the committee have already indicated that they like the list as is. He said, in his briefings with Senator Stevens, if the committee decides to wait and go through all of the machinations and the heartache of trying to get something, and then go to him, he knows that Senator Stevens will say no. REPRESENTATIVE PORTER commented that the committee still has the ability to change the list at conference committee and that would be the final change, and then the two bodies could ratify the change. Otherwise, the committee that subsequently gets this bill could add or subtract and the Judicial Committee's agreement is gone. CHAIRMAN GREEN said his point is not to extract an agreement, but to determine whether or not they are even in the right ballpark. REPRESENTATIVE ROKEBERG wanted to state for the record that Senator Murkowski has expressed his willingness to undertake public hearings throughout Alaska on the direction that the legislature and the people of the state of Alaska give him regarding subsistence. He said he believes it's his job, and the job of the entire legislature, to look at these particular points before then, do with them what they will, and send them on their way so Senator Murkowski can have some blueprint with which to work on this. CHAIRMAN GREEN said if that is the will of the committee he will bow to the wishes of the committee. He said that quite often the problem is if you want to negotiate, you have to have something that's reasonable to start with, rather than absurd, and his concern is that there is no way that any of the members can expect this litany to be changed. He said his only concern is if they wait, but if it's the wish of the committee, he will leave the list as is. Number 1925 REPRESENTATIVE CROFT indicated that he is concerned specifically with items (6), (7), (9), (10), and (11). He said the committee has already expressed the concerns (indisc.) applies to items (1)- (5), and they have already voted on those items. He said there's no real concern with item (12). He said, "I'm not sure I understand [item] (8), but to the extent I do, it will make the same issue we were talking about (1)-(5), navigable waters. So if you wanted to have ... some quick discussion on (6), (7), (9), (10), and (11), we could see if any of those will be removed from the list." CHAIRMAN GREEN asked if there is objection to spending another 15 minutes discussing those items Representative Croft just mentioned. REPRESENTATIVE PORTER indicated he has a suggestion for an amendment to item (5), but other than that, he has no problem with discussing the rest of the list. He referred to item (5) stating that he doesn't think in any iteration of HB 406 the committee is going to have, that they have "rural" as a functional word, so he doesn't think the committee needs to define the term "rural". Number 1549 REPRESENTATIVE PORTER made a motion to delete the word "rural" and after "customary trade" add "and barter". REPRESENTATIVE CROFT said, "The term 'rural' is in there, and what I've seen as a necessary list for ANILCA changes, it's something that moves, that changes the 'rural' to 'local' and changes the definition (indisc.) need to. Defining the term 'rural,' redefining it to 'local,' defining it 'rural,' but 'local' how we mean it, I think it's important that 'rural' stay in there, not because it will stay in the bill, but because we do need to change its definition, and maybe it's an 8." CHAIRMAN GREEN said, "Well, actually, in (5) as its written, it's talking about defining those three terms." MR. JARDELL referred to item (5) and said if its the committee's desire to shorten the list, number (12) on page 3, if enacted by Congress would, in effect, take care of items (5) and (6) on page 2. He said it's a policy decision as to whether or not the committee wants to. CHAIRMAN GREEN asked for clarification about items (5) and (6). MR. JARDELL said items (5) and (6) would be incorporated under item (12) if Congress affirms that the laws of the state are consistent with the provisions of federal law. It's more of a policy decision as to whether or not the committee wants to expressly point out some of the problem areas, or do a broad brush stroke and say that all they have done is consistent with federal law. Number 1710 REPRESENTATIVE PORTER asked if item (12) is possible, considering the ability that the legislature would have to change state law and Congress would have to change federal law. He said, "If we could say that, at a point in time they are consistent, but who knows the next year." MR. JARDELL remarked that certainly there's no guarantee that the state law or the federal law will remain the same, and if either one would be changed, there would be a chance that they would be out of compliance with ANILCA. He said what it's asking Congress to do is to state that, as it's presently written, as the committee has passed it, it does comply with the provisions of ANILCA. He said from that point on, either ANILCA or the state law would have to be changed. For the courts to come in and say that the state is out of compliance, there would have to be some kind of (indisc.) changes the idea. He said there's no guarantee, even if the state requires Congress to change the definition of "rural," "customary and traditional," and "customary trade," that they won't change them again later on, thus, resulting in noncompliance. CHAIRMAN GREEN stated that he believes the committee would be in less of a bargaining position because, what Mr. Jardell just described, is rather loose and illdefined, and that they would be better off looking at the individual issues. MR. JARDELL said, "The point of making (2) and (4) as we discussed earlier, and hammering each detail out, was the idea that it pinpoints and expressly explains to Congress what the discontent in state legislature is with ANILCA. By doing it, a broad-brush express, it gives Congress some wiggle room to play with." He said if the committee really wants to nail down ANILCA, going through and naming each item they want to be changed is probably the best way to go. CHAIRMAN GREEN said he didn't think that Representative Porter meant to exclude anything when he made the suggestion to combine items (2) and (4). MR. JARDELL stated that he believes items (2) and (4) could be joined without any problem. He indicated if the committee wants to narrow the list, that is one way they can do that. Number 1925 MR. SOMERVILLE wanted to emphasize that the affirmation of the state, whatever approach they decide to take, is the approach that the Governor's task force also took, which was the idea that the state is not going to have something that's perfectly aligned. He said it's a clear indication to the courts that Congress has examined whatever the state comes up with and that it complies with the intent of ANILCA. The reason for that was so that the state could get going right away and that they would not forever be in litigation right off the bat in court, recognizing that both sides could change the laws. CHAIRMAN GREEN asked if he is suggesting that it would be better to "delete some of this by having 12 or keep them both?" MR. SOMERVILLE replied that the purpose of the list is exactly for the purpose that Representative Porter said, that there are some specific items that have been a real concern. For example, "customary trade" obviously is a commercial fishing industry, so that is the reason it was left it. He stated, "But with the affirmation in there, however you structure your statutes as the final product and Congress affirms that with the definition of 'customary trade' and the definition of 'customary and traditional' and affirms that those comply with ANILCA, they essence will be adopting essentially what you have crafted. That's all we're saying if, in fact, number 12 stays in there." Number 2040 CHAIRMAN GREEN asked, "If item (12) was left in and they don't either keep these or mention them somewhere and then there is a change in either law, they no longer conform, will it be interpreted by the court that's going to end up doing this thing, that it's just a specific change or now that we've broken the agreement?" MR. SOMERVILLE replied it would depend - and the attorneys would argue - whether we're substantially out of compliance. He said that would probably be the argument. He indicated that it is not possible to put everything in HJR 66 that would cover forever the potential for Congress for change something and/or the legislature. CHAIRMAN GREEN said it sounds like Mr. Somerville is suggesting to keep items (2) and (4) in because if they don't specifically address that, then what's to make ... MR. SOMERVILLE interjected and stated that the safest way always is to make sure that the courts fully understand precisely what the state's intentions are, and that was the reason for having them in there in the first place. He said if the committee wants to shorten the list, he is suggesting that item (12) does kind of cover them, depending on what their final product is, and if Congress does affirm its compliance with ANILCA. Number 2155 REPRESENTATIVE JAMES referred to Mr. Jardell's testimony regarding the legislature's intent, and she said the committee should be reminded that this is going out for a vote of the people and what they are sending is the people's intent. Therefore, when the committee addresses this, they need to be sure that it's not the committee's intent necessarily, but what the people would support. REPRESENTATIVE PORTER then referred back to his motion, recapping where the committee left off. He said he had made a motion to item (5) to delete "rural" and to add "and barter" after "customary trade". He noted that during that motion, the committee was discussing whether or not it is necessary to remove "rural". MR. JARDELL explained that the definition of "rural" gives the federal government some leeway to keep "rural" in ANILCA if they wish to and to define it as nonsubsistence areas or to define it to meet whatever statutory scheme the legislature comes up with. He indicated it's not necessary to have "rural" in item (5) because item (11) would pick up the definition of "rural." REPRESENTATIVE PORTER said the reason he wants to remove "rural" is because it asks that the definition of "rural" be consistent with the state's definition of "rural," and that the committee is not defining "rural." He feels that it should be removed. REPRESENTATIVE ROKEBERG said, "I take exception to that because the terms "rural Alaskan residents" are defined in [ends mid-speech because of tape change]." TAPE 98-55, SIDE A Number 0001 REPRESENTATIVE ROKEBERG continued "... rural. To be consistent with what Representative Porter wants to try to accomplish, I believe, that it would require that the federal law be changed to be consistent with whatever we had to come up with." REPRESENTATIVE PORTER said, "We haven't a definition for 'rural' in our bill, so they can't conform theirs to ours because we don't have one. I'm not saying that they have to change theirs, I'm saying that there's no way they can conform it to ours if we don't have one. That's why I want to take it out." REPRESENTATIVE ROKEBERG said he would agree with Representative Porter. He indicated that there is a definition for "rural" in the federal law now. MR. JARDELL said if it's the wishes of the committee, he can redraft item (5) and take out "rural", add "barter", and then propose an amendment that would speak to the problem that "rural" creates with our statutory scheme. Number 0167 CHAIRMAN GREEN said the committee wants a definition of "rural" since that is the definition that is in ANILCA. He said the committee will have to redefine that definition. REPRESENTATIVE ROKEBERG stated that he might have misunderstood something, he said he thought the state was trying to send Congress a message about what they should do with their law. He said "'Barter' is already in [Section] 803; is it because it's usually used as a phrase?" He said he is not sure why Representative Porter wants to add that. REPRESENTATIVE PORTER said, "The definitions of ANILCA include 803, the term, 'barter.'" REPRESENTATIVE ROKEBERG replied, "Right, they do." He asked Representative Porter if has a problem with the way ANILCA defines "barter." REPRESENTATIVE PORTER said when the committee gets to the point of crafting the language for HB 406, they want to craft it so as to preclude the commercial application of "barter," in a noncommercial nature. He said he does not know if the committee's definition will be any different than ANILCA's, but he wants to make sure that it's covered. Number 0350 CHAIRMAN GREEN commented that the concept would be if the committee readdresses "rural" and drop the other two because they can accept the ANILCA definition. REPRESENTATIVE PORTER stated that they probably will. REPRESENTATIVE ROKEBERG remarked that the committee could amend it after the bill was finished. CHAIRMAN GREEN asked Representative Porter to restate his motion because they have discussed it to the point that they should understand what they are voting on. 0400 REPRESENTATIVE PORTER made a motion to delete the word "rural" on page 2, line 10, and to add "and barter" after the term "customary trade" on line 11 of HJR 66, LS1705/E. REPRESENTATIVE BERKOWITZ objected because he said he has not heard anyone testify about these subject matters recently. He said he appreciates the expertise of Mr. Jardell and Mr. Somerville, but emphasized that there are probably other attorneys and other interested parties who might have some views that could enlighten the committee as to the wisdom of taking this course. REPRESENTATIVE ROKEBERG said he would agree with Representative Berkowitz if there is another conceptual amendment forthcoming regarding the term "rural". He asked if that is the intent of the sponsor of the amendment. REPRESENTATIVE PORTER replied that he does not know. REPRESENTATIVE ROKEBERG said that that was the recommendation from staff. MR. JARDELL interjected and said he can draft a proposed amendment. REPRESENTATIVE PORTER said if Mr. Jardell drafts a proposal, then the committee will look at it as a proposal. Number 0475 CHAIRMAN GREEN referred to page 2, line 11, item (5), and said he would make a friendly amendment to add the word "be" after the word "to" so that it reads correctly. He pointed out that it looks like a typo. REPRESENTATIVE PORTER said the word "be" is in his draft, and then realized he was looking at Version F. CHAIRMAN GREEN noted that it has been fixed in the following Version F. CHAIRMAN GREEN asked if there is any objection to the amendment. REPRESENTATIVE PORTER stated that there is an objection by Representative Berkowitz. CHAIRMAN GREEN asked Representative Berkowitz if he still maintains his objection. REPRESENTATIVE BERKOWITZ answered in the affirmative. He said, "This whole debate has been very interesting, but we haven't really done it in an enlightened form. We've got these major terms that are being thrown around. We've heard from sort of one side of the issue; we haven't heard from the other side. I don't think this is a balanced way to proceed." CHAIRMAN GREEN asked what is the other side. REPRESENTATIVE BERKOWITZ replied he would like to know if there is anyone from the Department of Fish and Game to testify that might have an opinion on this issue. He would also like to know if there is any federal input on the wisdom of this course. He'd like to know if the Alaska Federation of Natives has anything to testify on this. He noted that there are a number of interested parties and indicated that all the committee is doing right now is listening to the majority's lawyer (ph). CHAIRMAN GREEN advised Representative Berkowitz that the terms "customary and traditional" and "customary trade" are already in ANILCA, and all that the committee is trying to do is add "and barter" to item (5). Number 0550 CHAIRMAN GREEN called for a roll call vote on the motion made by Representative Porter. Representatives James, Porter, Rokeberg, and Green voted in favor of the motion. Representatives Berkowitz and Croft voted against it. Therefore, the motion carried by a vote of 4-2. CHAIRMAN GREEN asked what the wish of the committee is regarding continuing the committee meeting due to the lateness of the hour. Representative Rokeberg stated that he has to leave to chair the House Labor and Commerce Committee. Chairman Green advised the members that the committee will take up this matter again at a later date. [HB 406 was held over.] ADJOURNMENT Number 0660 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at 3:05 p.m.