HOUSE RESOURCES STANDING COMMITTEE March 22, 1993 8:00 a.m. MEMBERS PRESENT Representative Bill Williams, Chairman Representative Bill Hudson, Vice Chairman Representative Con Bunde Representative Pat Carney Representative John Davies Representative Joe Green Representative Jeannette James Representative Eldon Mulder Representative David Finkelstein MEMBERS ABSENT None OTHER LEGISLATORS PRESENT Representative Pete Kott COMMITTEE CALENDAR *HB 213 "An Act prohibiting the commissioner of natural resources from classifying state land, water, or land and water so that mining, mineral entry and location, mineral prospecting, and mineral leasing are precluded or are designated an incompatible use without an act of the legislature if the area involved contains more than 640 acres except in certain situations; and providing for an effective date." HEARD AND HELD IN COMMITTEE FOR FURTHER CONSIDERATION (* first public hearing) WITNESS REGISTER Representative Pete Kott Alaska House of Representatives State Capitol Juneau, Alaska 99801-1182 Phone: 465-3777 Position Statement: Prime sponsor, HB 213 Raga Elim Special Assistant to the Commissioner Department of Natural Resources 400 Willoughby Ave. Juneau, Alaska 99801-1724 Phone: 465-2400 Position Statement: Testified in support of HB 213 on behalf of administration McKie Campbell Deputy Commissioner Department of Fish and Game P.O. Box 25526 Juneau, Alaska 99802-5526 Phone: 465-4100 Position Statement: Testified in support of HB 213 and amendments Dennis DeBolt Alaska Miners Association One Sealaska Plaza Juneau, Alaska 99801 Phone: 586-1512 Position Statement: Testified in support of HB 213 Phil Holsworth Mining Engineer 326 4th Street, #1200 Juneau, Alaska 99801 Phone: 586-1383 Position Statement: Testified in support of HB 213 Jack Phelps Legislative Aide to Representative Pete Kott State Capitol Juneau, Alaska 99801-1182 Phone: 465-3777 Position Statement: Responded to questions on HB 213 PREVIOUS ACTION BILL: HB 213 SHORT TITLE: LIMIT ADMINISTRATIVE LAND CLOSURES BILL VERSION: SPONSOR(S): REPRESENTATIVE(S) KOTT,Phillips,Green,Brice, Mulder,Toohey TITLE: "An Act prohibiting the commissioner of natural resources from classifying state land, water, or land and water so that mining, mineral entry and location, mineral prospecting, and mineral leasing are precluded or are designated an incompatible use without an act of the legislature if the area involved contains more than 640 acres except in certain situations; and providing for an effective date." JRN-DATE JRN-PG ACTION 03/10/93 590 (H) READ THE FIRST TIME/REFERRAL(S) 03/10/93 591 (H) RESOURCES, FINANCE 03/10/93 596 (H) COSPONSOR(S): BRICE, MULDER, TOOHEY 03/22/93 (H) RES AT 08:00 AM CAPITOL 124 ACTION NARRATIVE TAPE 93-33, SIDE A Number 000 The House Resources Committee was called to order by Chairman Bill Williams at 8:12 a.m. Members present at the call to order were Representatives Williams, Hudson, Bunde, Davies, Green, James, and Mulder. Absent at the call to order were Representatives Carney and Finkelstein. CHAIRMAN BILL WILLIAMS announced the agenda for the meeting would be to consider HB 213. HB 213: LIMIT ADMINISTRATIVE LAND CLOSURES Number 045 REPRESENTATIVE PETE KOTT, PRIME SPONSOR OF HB 213, explained that the bill was introduced to implement one of the recommendations of the Alaska Minerals Commission as set out in the commission's 1993 report to the legislature. Under current law, he said, a mineral closure order (MCO) may be executed by the commissioner of the Department of Natural Resources (DNR) for one of five reasons. Those included land disposals or land exchanges, public recreation and wildlife habitat use, resource development, transportation corridor development, and the reserve use category. REPRESENTATIVE KOTT referred to Title 38, which currently requires legislative action to close lands larger than 640 acres for multi-purpose use. By designating mineral exploration and development an incompatible use, MCO's have been used to keep mining out. He provided the committee with an historical perspective, and said that at the time of statehood, some lands were selected because of the rich mineral development opportunities, and he said some of those lands are now affected by closures. Number 089 REPRESENTATIVE KOTT explained that in the past nine years there have been more than 1.75 million acres placed off- limits to mineral exploration and development for public recreation and wildlife habitat purposes. He noted that this was more than three times the amount of lands Alaska had transferred into private hands since statehood. REPRESENTATIVE KOTT stated his opinion that mineral exploration and development can be compatible with wildlife habitat and human recreational use. There is strong evidence, he said, that mining could take place on many of the lands closed by MCO's with insignificant consequences to wildlife habitat. He referred to the "footprint" necessary for mineral location and mineral extraction as very small, leaving most of the area unaffected. House Bill 213, he said, would only affect MCO's on large parcels of land, and the discretion of the commissioner would still prevail on parcels smaller than 640 acres. REPRESENTATIVE KOTT noted that there would be cases where large acreages should be closed, but because those decisions have a major statewide economic impact, it would be more appropriate for those decisions to be made after public discussion. Number 117 REPRESENTATIVE KOTT noted further that 46% of all MCO's currently in effect were issued for reasons of land disposal, and that category, he said, is specifically exempt from the provisions of HB 213. Also exempt, he explained, are MCO's issued to establish utility and transportation corridors or other infrastructure projects. The commissioner's authority to apply sound land management principles in the administration of state lands, he said, will not be significantly encumbered by this bill. The bill would help the legislature to fulfill its mandate to provide for use of resources for the maximum benefit of Alaskans, as provided in Article VIII, Section 2 of the Alaska Constitution, he added. Number 142 REPRESENTATIVE KOTT referred to a recent economic mini- summit sponsored by a joint House and Senate economic task force, which he said supported the proposal in HB 213. He directed members' attention to a summary of that summit, and specifically to recommendations number 2 and 5 on page 7; number 5 on page 37; and on page 35 he read recommendation number 4. (A copy of the summary may be found in the House Resources Committee Room, Capitol Room 124 , and after the adjournment of the second session of the 18th Alaska State Legislature, in the Legislative Reference Library.) REPRESENTATIVE KOTT then referred to comments by Glen Olds, the DNR's commissioner, which stated that the department was willing to work with the legislature to revisit Title 38 and other regulatory requirements which had become expensive to implement and excessive in creating barriers which affect the development of Alaska's natural resources. Number 200 CHAIRMAN WILLIAMS noted for the record that Representatives Carney and Finkelstein had joined the meeting. REPRESENTATIVE JOE GREEN referred to proposed amendments prepared by the DNR, and asked Representative Kott if he would speak to them. (A copy of the proposed amendments may be found in the House Resources Committee Room, Capitol Rooom 124, and after the adjournment of the second session of the 18th Alaska State Legislature, in the Legislative Reference Library.) Number 211 REPRESENTATIVE KOTT addressed the amendments, and explained that in his view, the amendment which adds "contiguous" on page 1, lines 5 and 13 of HB 213, was not necessary. He felt the existing statute worked fine without that. He discussed hypothetical situations involving 640-acre sections of land, in particular those that might be separated by a natural division of land, such as a stream or river, and the ramifications of inserting the word contiguous. He believed HB 213, as written, was sufficient in its definition. Number 242 CHAIRMAN WILLIAMS commented on the situation of a water barrier between two parcels or sections of land, and said he believed that in such cases, the lands were considered contiguous. REPRESENTATIVE KOTT agreed that the lands in those cases are presumed to be contiguous. Number 252 REPRESENTATIVE CON BUNDE referred to the amendment proposed to add "contiguous" and speculated on potential problems that might arise if it was not added to HB 213, such as miscellaneous small parcels around the state, not contiguous to each other, being combined until the 640 acre limit is met. He suggested that without specifying the lands must be contiguous, the bill could be interpreted to allow this. Number 266 REPRESENTATIVE KOTT addressed the other amendment proposed by the DNR, which called for a 60-day deadline for the legislature to review and disapprove of closures, which would be submitted in the form of executive orders. Representative Kott did not support the amendment, explaining that the legislature should be proactive rather than reactive. Once a parcel is closed, he said, it is more difficult to open it back up. Number 275 VICE CHAIRMAN BILL HUDSON remarked that the second portion of the amendment would be necessary if the first portion of the amendment was adopted. The process, he said, requires that "if the classification is necessary for land disposal or development of a utility or transportation corridor or other projects," then "each of the mineral closing orders issued during the preceding calendar year will be submitted to the legislature in the form of an executive order" which he called the legislature's method of checks and balances on the administration. Number 301 RAGA ELIM, SPECIAL ASSISTANT TO THE COMMISSIONER OF THE DEPARTMENT OF NATURAL RESOURCES noted the administration's support for HB 213, and commented that one additional amendment was forthcoming from the Department of Fish and Game. With respect to the second amendment from the DNR, requiring legislative approval, he told the committee that the amendment had not yet been subject to any legal review and should be considered a conceptual amendment. In the first amendment that called for the insertion of the word "contiguous," Mr. Elim explained that the bill as written requires an act of the legislature if the area involved contains more than 640 acres. MR. ELIM said the difficulty is in defining what the area is since it could be interpreted as being the whole state, or any area of the state. He said specifying contiguous areas would clarify that question. He remarked that the legislature still would have the authority to act, through a bill, if the administration attempts to abuse its authority. He did not agree with any inference that the procedure was open to abuse, and said it had not been a problem to date. By inserting the word "contiguous" he said some objectivity was provided for HB 213 and it would be less ambiguous. MR. ELIM referred to the second DNR amendment, and explained that it attempts to preserve the notion of separation of powers and checks and balances. He added that there are critical management reasons why the mineral closing order may need to be ordered right away, as opposed to waiting for the legislature to act in the form of a bill. For example, he commented on a situation in June of 1992, when Glen Olds became the DNR's commissioner. There had been a question of whether Moose Creek in Denali National Park would be deemed navigable, in which case the bed of the river would become state land and would be open to mining claims. MR. ELIM explained that in this instance, it was imperative for the commissioner to be able to act right away to issue a mineral closing order to forestall mining claims in Denali National Park. Number 358 MR. ELIM said that the way HB 213 was drafted, through the amendment, the commissioner could take that action, subject to legislative authority to evaluate the merits and override the decision. He raised the final point that the bill is silent with respect to the area of land exchanges, which Mr. Elim said the DNR feels should also be exempt from legislative oversight. He explained that the state sometimes engaged in negotiations with municipalities for the intent and purpose of a land exchange, and he said it was important that during the course of those discussions, mineral closing orders be issued so that the status quo is preserved during negotiations. REPRESENTATIVE JEANNETTE JAMES asked Mr. Elim to explain how HB 213 would change the current situation. MR. ELIM replied that under HB 213 as drafted, closures based on recreation or habitat reasons would require the legislature to pass a bill to effect such a mineral closing order. The way the amendments proposed by the DNR would change that, he explained, would be to make acreage contiguous, explicitly listing land exchanges as exempt from that requirement, and requiring that the legislature would respond by disapproving an executive order rather than introducing a bill that would approve the closure. This, he said, would give the DNR the flexibility to respond quickly when mineral orders are required. Number 421 REPRESENTATIVE ELDON MULDER asked Mr. Elim to clarify whether the DNR's commissioner supported HB 213. MR. ELIM confirmed that HB 213 had the support of the commissioner and the administration, with the DNR amendments and one other amendment that was pending. VICE CHAIRMAN HUDSON referred to the proposed amendment, and specifically language relating to "when the classifications are necessary for land disposal or development of utility or transportation ..." and stated that the language was confusing. He asked Mr. Elim to clarify what that language meant. Number 451 MR. ELIM replied that he had taken the language in the amendment directly from the bill, and that he would recommend adding a comma after the first mention of "projects" so it would read more clearly. VICE CHAIRMAN HUDSON recommended taking out, after "corridors," "or projects(.)", and inserting, "for the development of utility and transportation corridors or similar projects or infrastructure." Mr. Elim agreed that might help to clarify the language. Number 460 CHAIRMAN WILLIAMS, hearing no other questions for the representative of the DNR, introduced the next witness, from the Department of Fish and Game. Number 470 MCKIE CAMPBELL, DEPUTY COMMISSIONER OF THE ALASKA DEPARTMENT OF FISH AND GAME (ADF&G), offered the ADF&G's strong support for the amendments offered by DNR, and explained that the two departments had worked closely together in developing those amendments and another from the ADF&G. With those amendments, he said the ADF&G would support HB 213. The ADF&G amendment, he said, would appear on page 2, line 4 of HB 213, where exceptions are listed. After "incompatible use except", he proposed inserting, "for waters catalogued under AS 16.05.870 and state land included in legislatively designated state critical habitat areas, game refuges, and game sanctuaries, or". MR. CAMPBELL said the reference to waters catalogued under AS 16.05.870 are anadromous fish streams already catalogued by the state. He clarified that the proposed language would not automatically close any of those lands to mineral closure, and noted that the vast majority of anadromous fish streams and legislatively designated game refuges, critical habitat areas, and sanctuaries are open to mineral closure, and would be anticipated to remain open under HB 213. He explained that the amendment was proposed to give the DNR's commissioner the ability to retain the power he currently has when there is a highly sensitive area with a potential resource conflict that would not be in anyone's best interest. Number 500 MR. CAMPBELL gave an example of the Mulchatna River, a highly productive salmon stream of importance to the commercial fisheries, and said the DNR's commissioner had previously closed the stream, simply the submerged lands, to mineral entry through the portions of the river critical to spawning. Smaller streams, he explained, were generally left open and dealt with on a case by case, permit by permit basis. He said in most of those areas, activities could occur without harm if done properly. MR. CAMPBELL addressed the second part of the ADF&G amendment, and said it would exempt lands that the legislature had specifically designated as part of a critical habitat area, game refuge, or game sanctuary. He reiterated that the amendment would not automatically close any lands but would give the DNR's commissioner the power to close them. In most refuges, he said, multiple use would work, but in some refuges, some types of development or exploration would be inappropriate and HB 213 with the proposed amendments would give the commissioner that flexibility. Number 521 REPRESENTATIVE GREEN asked if a venture were to be proposed under the existing laws, would there be an economic impact study (EIS) or an interdepartmental review. MR. CAMPBELL replied that there would be an interdepartmental review, and whether or not there would be an EIS would depend on the size and scope of the project. He mentioned that there are at times nuisance claims filed, or small scale claims that are not done because of known mineral potential, which would be an example of cases this might apply to. REPRESENTATIVE GREEN then asked whether those small claims did not get the review that would preclude them from coming into areas under the existing law. MR. CAMPBELL explained that every claim within a Title 16 stream does have a Title 16 review. The purpose of that review, he said, is not to prevent the mine from happening, but to see how it can be done. In most of the streams of the state, he said, it can be worked out, but there are streams with such overwhelming significance to the fisheries that closure makes sense. REPRESENTATIVE GREEN asked whether a stream in that circumstance was currently protected. MR. CAMPBELL explained that there was an individual case by case permitting basis for projects proposed in or by streams. He said that process is used in the majority of cases, but on streams of such high value, it would be better just to close the whole stream rather than deal with each of the individual cases, especially since the permit review process is expensive. Number 565 REPRESENTATIVE GREEN remarked on the perception that HB 213 tends to allow mineral entry where there is no overriding reason not to. He asked Mr. Campbell whether that was accurate. MR. CAMPBELL explained that the language in the ADF&G amendment would not close anything; the vast majority of Title 16 streams in Legislative Designated Areas would remain open, he said. It would allow the DNR's commissioner to administratively close a particular area if a resource value was in jeopardy. He referred to a situation where a harbor seal pupping area required closure, which prevented the federal government from coming in and closing a much larger area. Number 587 DENNIS DEBOLT, ALASKA MINERS ASSOCIATION, testified in support of HB 213. His association believed the practice of closing state lands to mineral entry and mineral leasing to be an important issue. He endorsed the bill, which he said would put reasonable and prudent restrictions on the ability of the DNR to make administrative land closures. He explained that currently there were three ways by which lands could be closed to mineral entry and leasing. The first was through legislative action; second was the application of Title 16 by the ADF&G where fishery resources may be affected; and third was the administrative closure by the DNR. MR. DEBOLT commented that since statehood, more than 3.2 million acres had been closed by legislative action. The application of Title 16, he added, covers all activity that could affect a fishery, not just mining. Administrative closures by the DNR, he said, was limited to 640 acres or less from the time of statehood until the mid to late 1970's, when a series of DNR commissioners closed large areas of state land to mineral entry with little or no justification. The statutes currently require a finding of incompatibility, and the policy has been broadly interpreted, he said. Mineral closures were often the result of state area plans developed by the DNR with pressure from special interest groups, he added. Number 625 MR. DEBOLT emphasized the senselessness of the closures, noting that some of those lands had originally been selected by the state for their mineral potential. He said the Hickel administration had generally used mineral closures within the true spirit and intent envisioned at the time of statehood. He commented that there was a risk that future administrations might not carry forth that attitude of responsibility, and therefore HB 213 was a necessary and proper provision that would stop massive mineral closures and still give the DNR the authority to make legitimate and justifiable closures. VICE CHAIRMAN HUDSON asked Mr. DeBolt to comment on the amendments presented by the DNR. MR. DEBOLT felt the original version of HB 213 was adequate, but the addition of language specifying "contiguous" lands would be appropriate. Number 647 REPRESENTATIVE GREEN referred to the ADF&G amendment to protect fisheries resources, and asked Mr. DeBolt his opinion on that amendment. MR. DEBOLT said that Title 16 provided adequate protections and that the amendment was not necessary. REPRESENTATIVE GREEN asked whether Mr. DeBolt felt the amendment would kill the intent of HB 213. MR. DEBOLT replied that he felt it would. Number 659 PHIL HOLSWORTH, MINING ENGINEER AND FORMER COMMISSIONER OF MINES, told the committee that he had long been involved in mining issues in Alaska and had participated as Manager of Lands in the original Mental Health Lands Trust grant from the federal government in 1956. He explained that some lands were selected within municipalities for expansion. As the first DNR commissioner after statehood, Mr. Holsworth said he continued the process of land selection, including the North Slope. In 1967, Mr. Holsworth said he left that position, and two years later, members of the Alaska Senate and House met and on the advice of the DNR's assistant commissioner, made an exchange with Cook Inlet Regional Corporation. TAPE 93-33, SIDE B Number 000 MR. HOLSWORTH continued with his description of the history of land exchanges in the state involving lands granted to the state by the federal government for the purpose of funding mental health programs. He said when those lands were exchanged, he objected. He also said he felt the state had been in error in not recording the disposal and income from those lands. Regarding HB 213, he said the bill would assist in assuring the proper use of lands. He noted that because there is inconsistency in the actions and integrity of commissioners of the DNR, this bill would provide some oversight to their actions. Number 064 VICE CHAIRMAN HUDSON referred to the DNR amendments, and asked Mr. Holsworth whether he could see any reason not to accept the waters catalogued, and anadromous streams and subject them to the executive order process. Number 106 MR. HOLSWORTH replied that waters are part of the state's lands and it would be advisable to handle the issue in that manner. Number 127 JACK PHELPS, LEGISLATIVE AIDE TO REPRESENTATIVE PETE KOTT, commented on the proposed amendments to HB 213. Regarding the DNR "contiguous" amendment, he said that word had intentionally been left out in the original statute which HB 213 applies to. He said that by adding that degree of specificity, a door to potential abuse is opened. Regarding the amendment that would add land exchanges, he said the rationale for that made sense and the sponsor would not object. MR. PHELPS addressed the question of areas designated by the legislature as refuges and wildlife sanctuaries, and noted that the legislature had the power to close those to mineral entry or multiple use. He said the legislature had demurred on that point, and added that the legislature had included in the statutes a requirement that limitations imposed on those areas be jointly determined by the commissioners of the DNR and the ADF&G. He explained that the ADF&G's commissioner currently had permitting authority under Title 16 Chapter 20.050.060 and 500-530, to restrict activities in certain areas to protect endangered species. MR. PHELPS told the committee that in an opinion issued by the Attorney General in 1985, the ADF&G did not have authority over transactions which were not likely to affect fish and game or their habitat. Mr. Phelps believed that by adding this exception in HB 213, the legislature may have the effect of giving the ADF&G more authority than is currently granted under Title 16. He said control through permits should be sufficient, with closures on larger areas to be determined by the legislature. Number 203 MR. PHELPS then addressed the amendment which would require the legislature to overturn actions of the DNR's commissioner in making closure decisions through the executive order process. He said this amendment would amount to regulatory agencies setting legislative agendas. He speculated that closures do not often exceed 640 acres, and reminded the committee that HB 213 allows the retention of closures under 640 acres by the DNR. REPRESENTATIVE JOHN DAVIES asked Mr. Phelps to expand on his comments that the ADF&G amendment would broaden the authority of the ADF&G's commissioner. Number 218 MR. PHELPS explained that Title 16 in its current status grants the commissioner the authority to control the use of fish and game in critical areas. When the legislature has in the past designated large areas for habitat use, they have not contravened that Title 16 authority, he said. In the larger area covered by a refuge or sanctuary, he added, decisions had to be made jointly by the DNR and the ADF&G. House Bill 213 in its original version, he said, would not affect that, but the amendment presented by the ADF&G, adding those larger areas to the exclusions in the bill, would allow closures by MCO's and contravene the authority of Title 16. Number 251 REPRESENTATIVE ELDON MULDER asked Mr. Phelps to what degree the ADF&G amendment would open the door to abuse. MR. PHELPS replied that the current situation would prevail, within the areas that have been designated by the legislature. House Bill 213, he explained, would change the procedure on areas over 640 acres everywhere in the state, while the amendment would exclude those areas specifically mentioned from the requirement that closures of areas over 640 acres had to be approved by the legislature. He speculated that there would be few times critical habitat in areas over 640 acres would have to be closed. Number 281 MR. CAMPBELL reiterated that question, and replied that there had been cases where major anadromous streams have had to be closed, and in those cases, because of the length involved, the total area could easily exceed 640 acres. He added that the situation does not happen often, and that having the ability to make closures does not mean that any areas will automatically be closed. REPRESENTATIVE MULDER asked for clarification on which authorities rest with the DNR and which with the ADF&G under HB 213 and the proposed amendments. Number 295 MR. PHELPS noted that all land decisions are essentially under Title 38, and not Title 16. He commented that the need addressed in the writing of Title 16 tends to be addressed through Title 38 authority, which allows larger closures. Number 310 VICE CHAIRMAN HUDSON felt the opposite was true of Mr. Phelps' interpretation. House Bill 213 as written, he said, would be enhanced by the checks and balances provided in the amendments, if the sponsor truly wanted to make certain that the legislature keeps its eye on any mineral closings. He spoke specifically to the language in the second DNR amendment which calls for the DNR to present mineral closings to the legislature for review within the first ten days of a legislative session. If waters catalogued under 16.05.870 were not excluded, and critical habitat and game refuges, he asked Mr. Phelps where in the statutes those would be handled. Number 340 MR. PHELPS replied that Title 16.20.050 and 060 deal with endangered species and critical habitat. Regarding the idea that the executive order approach would contravene the intent of HB 213, he said that currently the DNR makes the closure with no review process. The bill, if amended the way the DNR has requested, he explained, would be an improvement on the current status because it would require legislative review of a number of those closures. The difference, he said, between that approach and the one suggested by the sponsor, was that under the sponsor's suggestion, the closures would be initiated by the legislature. MR. PHELPS believed it would require an act of the legislature to close off access to the state's economic resources. He suggested the committee ask themselves whether it was primarily the prerogative of the legislature, or the prerogative of the executive branch. If they felt that it was the prerogative of the executive branch and the legislature only needed to review the decision, then he suggested they go with the amendment. The sponsor's position, he added, was that it should be the legislature's prerogative to make the closures. Number 378 CHAIRMAN WILLIAMS remarked that the legislative Legal Services division had been in contact with the committee by phone and had said the DNR amendment calling for an executive order was not lawful because executive orders have specific rules as to their use. REPRESENTATIVE PAT CARNEY commented that this would only be a problem if the committee decided to adopt the DNR amendments. CHAIRMAN WILLIAMS remarked that because the amendments had been delivered to the committee just prior to the meeting, the parties had not had time to review them. Number 401 REPRESENTATIVE GREEN asked how HB 213, as originally drafted or with the amendments presented by the DNR and the ADF&G, would affect the state's problems relating to land use or closure decisions of the federal government. MR. PHELPS replied that it seemed to him that an emergency closure capability driven by federal action would be an appropriate way to address that situation. Number 420 REPRESENTATIVE DAVIES questioned the committee procedure that would be used to address the draft amendments. He suggested that the amendments be drafted in legal form by the Division of Legal Services' attorneys. Number 425 REPRESENTATIVE CON BUNDE commented that perhaps HB 213 should be moved to the next committee as it was, and the amendments be submitted in final form at that committee. CHAIRMAN WILLIAMS noted that the next committee of referral was House Finance. VICE CHAIRMAN HUDSON remarked that Legislative Legal Services' advice that the executive order process was not the appropriate method to accomplish the goals of the DNR amendment to HB 213 was reason to consider that amendment out of order. Number 442 REPRESENTATIVE DAVID FINKELSTEIN agreed with the question of using the executive order process, but suggested that another procedure be used or established that would meet the intent of the amendment. REPRESENTATIVE MULDER commented that if HB 213 was adopted without any amendments, and problems came up requiring emergency closures, he asked Mr. Campbell if the ADF&G had the ability to deal with the situation. MR. CAMPBELL responded that the ADF&G has a case by case permit review process, but no blanket ability to make emergency closures. Number 462 REPRESENTATIVE GREEN asked for clarification of whether the closures in question would be of waterways. MR. CAMPBELL replied that the ADF&G does not have any power to do any blanket closures anywhere. They would retain Title 16 authority to do case by case individual permit review, but under HB 213, he said, the power of the DNR's commissioner to make closures over 640 acres under Title 38 would be removed. He also pointed out that, although the executive order process might be inappropriate, the legislature did have the ability to establish in statute a procedure such as that suggested by the DNR in its amendment, where all mineral closures must be submitted to the legislature for review and approval. He said the ADF&G amendment presented no legal problems. Number 486 REPRESENTATIVE MULDER asked Mr. Campbell to clarify whether, if HB 213 was amended and passed, the ADF&G would still have the ability to do a case by case permit review and restrict activity. MR. CAMPBELL pointed out that only a small percentage of Title 16 permits are denied, and those that are approved usually go through the review process in approximately three weeks. The ADF&G, he said, can make recommendations to the permit applicant of steps that reduce the effect on habitat. He clarified, though, that the ADF&G cannot just say no activity will be permitted in a specific area. If HB 213 passed without the amendments, he said, the ADF&G would lose the ability it does have. REPRESENTATIVE FINKELSTEIN clarified that he saw HB 213 as being about whether areas are open or closed to mineral entry. In that context, he said, the ADF&G has no power. The amendment, he said, guarantees the ADF&G retains its power under Title 16 to make recommendations. Number 528 MR. CAMPBELL pointed out another area of concern, which was the effect if HB 213 passed on those lands or rivers that have been closed by administrative order but had never been approved or disapproved by the legislature. He raised the question of retroactivity. REPRESENTATIVE FINKELSTEIN asked if the committee would get a response to that question from the Division of Legal Services. He said it was not clear on the face of it whether it would be retroactive. He questioned whether some closures might be considered void if they did not meet the requirements of HB 213 in the future. VICE CHAIRMAN HUDSON referred to Title 16. He read the sections establishing guidelines for administrative land closures. He noted that the ADF&G was seeking an amendment that would make reference to anadromous fish streams. He said HB 213 could be amended so it would not preclude the legislature from taking action if it was thought the ADF&G was going too far. He repeated Mr. Phelps' comment that the whole question came down to whether the authority for closures should rest with the DNR to take action and the legislature would have to reverse the action, or if the action should be initiated by the DNR subject to action by the legislature. Number 570 VICE CHAIRMAN HUDSON suggested that the committee stick with the concept of the sponsor of HB 213, and add language suggested in the amendments but excluding "waters catalogued under AS 16.05 and state land included in legislatively designated...critical habitat areas..." The result, he explained, would be a statute with a direct nexus back to the protection and multiple use concepts in Title 16. At the same time, he said, the whole thing would be subject to legislative action as opposed to the automatic opportunity for the department to close areas. Number 590 REPRESENTATIVE DAVIES agreed that that suggestion began to get at the critical issue. He said it appeared that the legislature has the ability to introduce a bill to make a mineral closure already, or to take action to open a closed area. If HB 213 was passed, he said, it would take the administration out of the land management business and put the legislature in that business. His principal concern, he said, was that the legislature is not in session year-round, and legislators are not land managers. He questioned whether this was the correct process to have in place. He noted that in issues of critical timeliness, when the legislature was not in session, the result could be that the federal government could come in and close down much larger sections of land. REPRESENTATIVE DAVIES also commented that the DNR and the ADF&G are not separate from the people, but rather are those hired to manage land under an owner-state concept. He said that HB 213 seems to tie the hands of the land managers too much, and that while it is important to send the message that the legislature does not want unnecessary land closures, it was also important to allow the departments the ability to make timely decisions and then submit them to the legislature for ratification. Number 622 REPRESENTATIVE FINKELSTEIN referred to the ADF&G amendment to HB 213. He said it was relatively simple although the implications are confusing. He paraphrased the amendment, and said it simply said the ADF&G's power continues to close mineral claims on anadromous streambeds if the situation warrants it. He called this a reasonable proposal. Regarding the legislatively designated areas, he noted the argument being made that the legislature had the opportunity to close those areas when they were created and decided not to. He explained that the reason those areas were not closed was because the DNR had the power to close them administratively if the need arose. Most of the areas are not closed, he said, because the areas are suitable for multiple-use activities. Number 646 REPRESENTATIVE MULDER reported that he did not share the concern about the legislature being able to manage lands, and said in his view the legislature is more representative of the people than the bureaucracy is. He questioned whether there would be a provision in statute, if HB 213 was passed unamended, that allows flexibility for emergency situations to be addressed. MR. ELIM responded that he did not know of any such provision, which was the driving force for the DNR amendments. He apologized for the choice of "executive order" in the amendment, and explained that it was now clear that it was not the appropriate process. He reiterated that the amendment does meet the spirit of HB 213, but affords the flexibility to make it workable. Regarding the term "contiguous," he said the current statute does not deal with mineral closing orders, but with multiple-use closures. He disagreed with the cautions raised on "the danger of specificity" and argued instead that there was a danger of ambiguity if "contiguous" was omitted. REPRESENTATIVE MULDER agreed that there had to be a provision for dealing with an emergency closure, and the problem was how to define an emergency. He suggested HB 213 include provisions for flexibility in an emergency situation with legislative review and approval to follow. REPRESENTATIVE GREEN responded to previous concerns raised by Representative Davies, and the empowerment of the DNR's Commissioner. He recalled an incident when a previous commissioner made inappropriate decisions, and he stressed that provisions for checks and balances on the power of commissioners should be made. TAPE 93-34, SIDE A Number 000 REPRESENTATIVE JEANNETTE JAMES agreed with the intent of HB 213, and with the concept of the amendments. She said she would agree with the concept of letting the legislature be the deciding group on mineral closures, with provisions for emergency closures subject to legislative review. She remarked that she did not see why closures of anadromous streambeds should be different than any other closure. Number 038 MR. ELIM remarked on the rationale for the DNR's amendment that would have the closure decision made administratively subject to legislative approval, rather than having a closure initiated as a bill in the legislature. He noted how difficult it is for a bill to make it through the legislature. Imposing a deadline for review and approval would be more effective, he said, than waiting for a bill to make it through the legislative process. Number 080 VICE CHAIRMAN HUDSON suggested that the amendment should indicate "designated critical habitat areas...and anadromous streams." He said he had concluded that Title 16 seems to preclude the commissioner from arbitrarily opening a stream that has anadromous fish in it. He said this would seem to make the amendment unnecessary. MR. ELIM clarified the merger of the DNR and the ADF&G amendments. He said HB 213 would require the DNR's commissioner, in areas of over 640 acres of a mineral closing order, for purposes of recreation or habitat, to come to the legislature for approval. The ADF&G amendment, he explained, would carve out some of that group to be brought to the legislature and say it was exempted from the legislative review. Those would be, he said, catalogued streams and legislatively designated areas. In those instances, he said, the commissioner would maintain his authority to issue mineral closing orders and would not have to submit them to the legislature. Number 139 REPRESENTATIVE FINKELSTEIN addressed Representative Hudson's previous comments on the ability of the ADF&G's commissioner to arbitrarily open streams. The problem, he said, was that streams start out open, and could not be arbitrarily closed without an exemption. REPRESENTATIVE MULDER commented that there would be no ability to proactively make closures, only the opportunity to close an area after an application is made. MR. ELIM further explained that to issue a mineral closing order in legislatively designated areas, as HB 213 is drafted, would require the DNR to come before the legislature for approval if the reason was for recreation or habitat. The ADF&G's proposal would exclude that subset of mineral closing orders from the requirement of legislative approval. REPRESENTATIVE JAMES had no problem with adding anadromous streambeds, but did object to adding legislatively designated lands for recreational purposes. She felt one of the purposes of HB 213 was to stop some of the land closures without legislative review. If all the language in the ADF&G amendment were included, she said, it would negate the intent of the bill. CHAIRMAN WILLIAMS commented that the committee should decide which direction it wanted to go with HB 213, given the remaining questions regarding the amendments. VICE CHAIRMAN HUDSON noted that in reading the ADF&G amendment, it appeared to only cover legislatively designated state critical habitat areas, game refuges, and game sanctuaries, and not all legislatively designated areas in the state. REPRESENTATIVE DAVIES repeated his earlier suggestion that the amendments be refined by the Legal Services' attorneys and brought before the committee again in a form that integrates the various amendments. REPRESENTATIVE CARNEY agreed. Number 225 CHAIRMAN WILLIAMS told the committee that unless there were objections, the committee would do as Representative Davies suggested, and hopefully would have the revised amendments for consideration on Wednesday, March 24, 1993. ANNOUNCEMENTS CHAIRMAN WILLIAMS announced that the committee would hear HB 232 and HB 238 on Wednesday, March 24, 1993 at 8:00 a.m. ADJOURNMENT There being no further business to come before the House Resources Committee, Chairman Williams adjourned the meeting at 9:50 a.m.