HOUSE RESOURCES STANDING COMMITTEE April 7, 1998 1:50 p.m. MEMBERS PRESENT Representative Scott Ogan, Co-Chairman Representative Beverly Masek, Vice Chair Representative Ramona Barnes Representative Joe Green Representative William K. (Bill) Williams Representative Irene Nicholia Representative Reggie Joule MEMBERS ABSENT Representative Bill Hudson, Co-Chairman Representative Fred Dyson COMMITTEE CALENDAR HOUSE BILL NO. 284 "An Act relating to infestations and diseases of timber." - MOVED CSHB 284(RES) OUT OF COMMITTEE COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 180(FIN) "An Act relating to state rights-of-way." - HEARD AND HELD COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 250(FIN) am "An Act relating to management of game, to the fish and game fund and federal aid for restoration of wildlife and fish, and to the duties of the commissioner of fish and game." - HEARD AND HELD (* First public hearing) PREVIOUS ACTION BILL: HB 284 SHORT TITLE: TIMBER THREATENED BY PESTS OR DISEASE SPONSOR(S): REPRESENTATIVES(S) HODGINS Jrn-Date Jrn-Page Action 5/10/97 1807 (H) READ THE FIRST TIME - REFERRAL(S) 5/10/97 1807 (H) RESOURCES 3/12/98 (H) RES AT 1:00 PM CAPITOL 124 3/12/98 (H) MINUTE(RES) 3/24/98 (H) RES AT 1:00 PM CAPITOL 124 3/24/98 (H) MINUTE(RES) 4/07/98 (H) RES AT 1:00 PM CAPITOL 124 BILL: SB 180 SHORT TITLE: STATE RIGHTS-OF-WAY: RS 2477 SPONSOR(S): SENATOR(S) HALFORD, Green, Leman, Sharp, Torgerson, Wilken, Pearce, Ward, Taylor Jrn-Date Jrn-Page Action 4/18/97 1277 (S) READ THE FIRST TIME - REFERRAL(S) 4/18/97 1277 (S) RESOURCES, FINANCE 2/06/98 (S) RES AT 3:30 PM BUTROVICH ROOM 205 2/09/98 (S) RES AT 3:30 PM BUTROVICH ROOM 205 2/09/98 (S) MINUTE(RES) 2/23/98 (S) MINUTE(RES) 2/24/98 2629 (S) RES RPT PROPOSED COMMITTEE SUBSTITUTE 4DP SAME TITLE 2/24/98 2629 (S) DP: HALFORD, LEMAN, SHARP, GREEN 2/24/98 2629 (S) FISCAL NOTE TO SB & PROPOSED COMMITTEE SUBSTITUTE (DNR) 2/24/98 2629 (S) ZERO FISCAL NOTE TO SB & PROPOSED COMMITTEE SUBSTITUTE (DOT) 3/11/98 (S) FIN AT 9:30 AM SENATE FINANCE 532 3/12/98 2839 (S) FIN RPT PROPOSED COMMITTEE SUBSTITUTE 5DP 1NR SAME TITLE 3/12/98 2839 (S) DP: SHARP, PEARCE, PHILLIPS 3/12/98 2839 (S) DONLEY, TORGERSON NR: ADAMS 3/12/98 2839 (S) PREVIOUS FN APPLIES TO PROPOSED COMMITTEE SUBSTITUTE (DOT) 3/18/98 2881 (S) FISCAL NOTE TO PROPOSED COMMITTEE SUBSTITUTE (DNR) 3/19/98 (S) RLS AT 11:30 AM FAHRENKAMP RM 203 3/19/98 (S) MINUTE(RLS) 3/20/98 2918 (S) RULES TO CALENDAR 3/20/98 3/20/98 2919 (S) READ THE SECOND TIME 3/20/98 2919 (S) FIN PROPOSED COMMITTEE SUBSTITUTE ADOPTED UNAN CONSENT 3/20/98 2919 (S) COSPONSOR(S): PEARCE, WARD, TAYLOR 3/20/98 2919 (S) ADVANCED TO THIRD READING UNAN CONSENT 3/20/98 2920 (S) READ THE THIRD TIME CSSB 180(FIN) 3/20/98 2920 (S) PASSED Y15 N3 E2 3/20/98 2920 (S) ADAMS NOTICE OF RECONSIDERATION 3/23/98 2957 (S) RECONSIDERATION NOT TAKEN UP 3/23/98 2958 (S) TRANSMITTED TO (H) 3/24/98 2721 (H) READ THE FIRST TIME - REFERRAL(S) 3/24/98 2722 (H) STATE AFFAIRS, RESOURCES, FINANCE 3/31/98 (H) STA AT 8:00 AM CAPITOL 102 3/31/98 2811 (H) STA RPT 3DP 1DNP 1NR 3/31/98 2811 (H) DP: JAMES, HODGINS, RYAN; DNP: ELTON; 3/31/98 2811 (H) NR: BERKOWITZ 3/31/98 2811 (H) SENATE FISCAL NOTE (DNR) 3/18/98 3/31/98 2811 (H) SENATE ZERO FISCAL NOTE (DOT) 2/24/98 3/31/98 2812 (H) REFERRED TO RESOURCES 4/07/98 (H) RES AT 1:00 PM CAPITOL 124 BILL: SB 250 SHORT TITLE: MANAGEMENT OF GAME SPONSOR(S): SENATOR(S) SHARP, Taylor, Wilken Jrn-Date Jrn-Page Action 1/21/98 2251 (S) READ THE FIRST TIME - REFERRAL(S) 1/21/98 2252 (S) RES, FIN 1/26/98 2309 (S) COSPONSOR: WILKEN 2/11/98 (S) RES AT 3:30 PM BUTROVICH ROOM 205 2/11/98 (S) MINUTE(RES) 2/12/98 2496 (S) RES RPT 4DP 1DNP/AM 2/12/98 2496 (S) DP: HALFORD, TAYLOR, LEMAN, GREEN 2/12/98 2496 (S) DNP/AM: LINCOLN 2/12/98 2496 (S) FISCAL NOTE (F&G) 3/12/98 (S) FIN AT 9:00 AM SENATE FINANCE 532 3/12/98 2840 (S) FIN RPT PROPOSED COMMITTEE SUBST 5DP 1NR SAME TITLE 3/12/98 2840 (S) DP: SHARP, PHILLIPS, PARNELL 3/12/98 2840 (S) TORGERSON, DONLEY NR: ADAMS 3/13/98 2859 (S) ZERO FISCAL NOTE (F&G) 3/19/98 (S) RLS AT 11:30 AM FAHRENKAMP RM 203 3/19/98 (S) MINUTE(RLS) 3/23/98 2947 (S) RULES TO CALENDAR 3/23/98 3/23/98 2948 (S) READ THE SECOND TIME 3/23/98 2948 (S) FIN PROPOSED COMMITTEE SUBSTITUTE ADOPTED UNAN CONSENT 3/23/98 2948 (S) AM NO 1 ADOPTED Y14 N4 E2 3/23/98 2950 (S) AM NO 2 FAILED Y5 N13 E2 3/23/98 2951 (S) ADVANCED TO THIRD READING UNAN CONSENT 3/23/98 2951 (S) READ THE THIRD TIME CSSB 250(FIN) AM 3/23/98 2951 (S) PASSED Y14 N4 E2 3/23/98 2951 (S) LINCOLN NOTICE OF RECONSIDERATION 3/24/98 2974 (S) RECON TAKEN UP - IN THIRD READING 3/24/98 2974 (S) PASSED ON RECONSIDERATION Y14 N5 E1 3/24/98 2977 (S) TRANSMITTED TO (H) 3/25/98 2732 (H) READ THE FIRST TIME - REFERRAL(S) 3/25/98 2733 (H) RESOURCES, FINANCE 4/07/98 (H) RES AT 1:00 PM CAPITOL 124 WITNESS REGISTER REPRESENTATIVE MARK HODGINS Alaska State Legislature Capitol Building, Room 110 Juneau, Alaska 99801 Telephone: (907) 465-3779 POSITION STATEMENT: Sponsor of HB 284. DAN STEIN 1712 Gilmore Trail Fairbanks, Alaska 99712 Telephone: (907) 458-9386 POSITION STATEMENT: Provided testimony in opposition to HB 284. ERIK HOLLAND P.O. Box 73751 Fairbanks, Alaska 99707 Telephone: (907) 452-2760 POSITION STATEMENT: Provided testimony in opposition to HB 284. DOUGLAS YATES P.O. Box 221 Ester, Alaska 99725 Telephone: (907) 479-8300 POSITION STATEMENT: Provided testimony in opposition to HB 284. HUGH DOOGEN 3593 Slater Drive Fairbanks, Alaska 99701 Telephone: (907) 456-1869 POSITION STATEMENT: Provided testimony on HB 284. MARTHA WELBOURN, Deputy Director Central Office Division of Forestry Department of Natural Resources 3601 "C" Street, Suite 1034 Anchorage, Alaska 99503-5937 Telephone: (907) 269-8473 POSITION STATEMENT: Provided testimony in opposition to HB 284. BRETT HUBER, Legislative Assistant to Senator Rick Halford Alaska State Legislature Capitol Building, Room 121 Juneau, Alaska 99801 Telephone: (907) 465-4958 POSITION STATEMENT: Provided sponsor statement for SB 180. ELIZABETH BARRY, Assistant Attorney General Natural Resources Section Civil Division (Anchorage) Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501-1994 Telephone: (907) 269-5100 POSITION STATEMENT: Answered questions of the committee members on SB 180. JANE ANGVIK, Director Division of Land Department of Natural Resources 3601 "C" Street, Suite 112 Anchorage, Alaska 99503-5947 Telephone: (907) 269-8503 POSITION STATEMENT: Answered questions of the committee members on SB 180. PETE AMUNDSON 918 Jackson Street Ketchikan, Alaska 99901 Telephone: (907) 225-6300 POSITION STATEMENT: Provided testimony on SB 180. NELSON ANGAPOLE, SR., Executive Assistant - Lands Alaska Federation of Natives 1577 "C" Street, Suite 300 Anchorage, Alaska 99501 Telephone: (907) 274-3611 POSITION STATEMENT: Provided testimony on SB 180. MARILYN WILSON, Legislative Assistant to Senator Bert Sharp Alaska State Legislature Capitol Building, Room 516 Juneau, Alaska 99801 Telephone: (907) 465-3004 POSITION STATEMENT: Provided sponsor statement for SB 250. GERALD BROOKMAN 715 Muir Avenue Kenai, Alaska 99611 Telephone: (907) 283-9329 POSITION STATEMENT: Provided testimony on SB 250. SENATOR BERT SHARP Alaska State Legislature Capitol Building, Room 516 Juneau, Alaska 99801 Telephone: (907) 465-3004 POSITION STATEMENT: Sponsor of SB 250. ACTION NARRATIVE TAPE 98-42, SIDE A Number 001 CO-CHAIRMAN SCOTT OGAN called the House Resources Standing Committee meeting to order at 1:50 p.m. Members present at the call to order were Representatives Ogan, Masek, Barnes, Green, and Williams. Representative Joule arrived at 1:54 p.m. Representative Nicholia arrived sometime after the meeting was called to order. HB 284 - TIMBER THREATENED BY PESTS OR DISEASE CO-CHAIRMAN OGAN announced the first order of business was House Bill Number 284, "An Act relating to infestations and diseases of timber." CO-CHAIRMAN OGAN called on Representative Mark Hodgins, sponsor of the bill. Number 019 REPRESENTATIVE MARK HODGINS, Alaska State Legislature, stated the bill requires the commissioner to implement necessary salvage measures when timber on state or municipal forests are infested or diseased. There is an amendment to address the concern of the commissioner's power over chapter 17 discussed at an earlier hearing. He would like to see the amendment adopted. It would remove the concerns of Co-Chairman Ogan. Number 046 REPRESENTATIVE RAMONA BARNES made a motion and asked unanimous consent to adopt the amendment. It reads as follows: TO: HB 284 Page 2, line 20, Following "chapter": Insert ", other than a requirement of or a regulation adopted under AS 41.17.115-41.17.119," CO-CHAIRMAN OGAN called for a brief at ease. CO-CHAIRMAN OGAN called the meeting back to order. CO-CHAIRMAN OGAN asked whether there is any objection to the motion. There being no objection, it was so adopted. CO-CHAIRMAN OGAN called for a brief at ease. CO-CHAIRMAN OGAN called the meeting back to order. Number 070 DAN STEIN testified via teleconference in Fairbanks. He asked Co- Chair Ogan whether it is time to comment on the amendment just passed. CO-CHAIRMAN OGAN replied he could comment on anything he would like to. Yes, an amendment was just passed to protect stream buffers and riparian areas. REPRESENTATIVE HODGINS stated the amendment prohibits the commissioner of natural resources from waiving the requirements of AS 41.17.115 - 41.17.119. Section 115 is riparian management Section 116 is riparian standards for private lands Section 118 is riparian standards for state lands Section 119 is minimum riparian standards for other public lands REPRESENTATIVE HODGINS stated the amendment, therefore, would limit Mr. Stein's testimony. Number 094 MR. STEIN stated the amendment is good, but he still opposes the bill because of the public process on the Kenai Peninsula already underway. The bill undermines the process. He also opposes exempting salvage and emergency sales of less than 200 acres from the preparation of a plan of operation. A plan of operation is to protect Alaska's resources including fish and wildlife. It is a mistake to not have a plan of operation. The current exemption for emergency sales in Region I (Southeast) is at a level of ten acres. There is no scientific evidence to move it to 200 acres. Why was it placed at such a low acreage before? he asked. It is also a mistake to give the commissioner the ability to waive any requirement of the Forest Practices Act. CO-CHAIRMAN OGAN announced the arrival of Representative Joule. Number 139 ERIK HOLLAND testified via teleconference in Fairbanks. The amendment is good, but he still stands in opposition to the bill. The bill affects the entire state when the biggest part of the problem is on the Kenai Peninsula. It is too broad. It also undermines a public process that's already underway funded with federal money. Why spend our state funds when it's already being worked on? he asked. In addition, the word "shall" on page 1, line 8, should stay as the word "may." Shall is very dictatorial. He is also concerned about the language "environmental catastrophe" and "susceptible to infestation or disease" on page 1, lines 13-14. Wouldn't that really be almost any tree? he asked. It puts a lot of control of the public forests in the hands of experts who seem all too willing to sell it off. He is also concerned about the waiver of the public process. Number 172 DOUGLAS YATES testified via teleconference in Fairbanks. He is opposed to the bill, but the amendment is a start to correcting the egregious provisions in the bill. It is not appropriate that the bill uses native forest insects and diseases as an excuse to put timber sales on the fast track. They are natural disturbances and events that play an important role in natural forces. Wildlife managers, commercial businesses, non-commercial recreationists, and private forest owners may define forest health and the need for salvage very differently than the Department of Natural Resources and the timber industry. The bill implies that the salvage of dead trees can eliminate an insect or disease condition when there is no evidence that a native forest insect or disease can be eliminated from Alaska. It is misleading to the public to suggest otherwise. If the intent is to move the bill from the committee, he suggests at least limiting it to a regional basis, not statewide. It is a bill about the effect of the beetles on the Kenai Peninsula, therefore, restrict it to those lands first and monitor the effects carefully. Number 216 HUGH DOOGEN testified via teleconference in Fairbanks. It is criminal that the timber is being infected by spruce beetles. It is killing off the resources. He objects to (3) on page 2, line 15. It needs to be amended out. MARTHA WELBOURN, Deputy Director, Central Office, Division of Forestry, Department of Natural Resources, testified in Juneau. The department supports the amendment, but continues to oppose the bill. It would not reduce the impact of the infestation significantly, but it would add to agency workload. It would not provide effective new tools to address the problem of infestation. The department already has the authority to do emergency and below- cost sales. In addition, waiving notice requirements for the Forest Practices Act could risk water quality and fish habitat protection without effectively combating beetle populations. Any legislative changes should be coordinated with the spruce bark beetle task force on the Kenai Peninsula. The bill would have little or no effect on large infestations because it does not address the main factors that block control of insect outbreaks: climatic conditions, weak markets for low-value timber, funding for timber sales, reforestation, and multiple-use concerns of timber harvest and "roading." The bill would require the state to do more intensive insect and disease surveys and develop agreements with private landowners regardless of their interests. Landowners choose to respond to infestation depending on their authority and intentions. Private reforestation actions also vary depending on their long-term intent and financial situations. In addition, it is unclear whether subsection (d) would require the state to pay for "necessary salvage measures" on private lands. Implementing the bill would be costly because it requires actions statewide. In 1997, surveys recorded 17 different types of insects and diseases that each damaged more than 100 acres of forest lands affecting two and one-half million acres. The sites are scattered around the state, many are in remote locations, and many cross ownership boundaries. The fiscal note submitted for $615,000 would only provide for an additional 540 acres of salvage and reforestation per year. When Canadians visited the spruce bark beetle outbreak a few years ago, they estimated control would cost $50 to $60 million per year. In the remote areas, some levels of infestations are a natural disturbance and helps to provide a mix of old and young forest stands. The department respectfully requests that the bill is not forwarded. As soon as recommendations from the task force are available the department would be glad to work with the legislature on any recommendation that would require changes to state law or additional state funding. Number 298 REPRESENTATIVE BARNES suggested passing a zero fiscal note with the bill since Ms. Welbourn testified that the one submitted would not cover the cost. It is obvious that there is a problem and the department has done nothing about it. She asked Ms. Welbourn what the task forces have done. MS. WELBOURN replied the task forces held so far have laid the groundwork for a lot of the work that the department has done. On state lands there have been more than 20 sales on the Kenai Peninsula alone totaling over 10,000 acres. However, there are many areas where salvages are not economically feasible because there are no markets. MS. WELBOURN further stated the department submitted a fiscal note that would be sufficient to provide additional surveys to work with private landowners as required by the bill and for additional salvages, but it would not provide enough for salvages statewide. Number 338 REPRESENTATIVE BARNES made a motion and asked unanimous consent to move HB 284, as amended, from the committee with individual recommendations and the attached fiscal note(s). Hearing no objection, CSHB 284(RES) was so moved from the House Resources Standing Committee. CSSB 180(FIN) - STATE RIGHTS-OF-WAY: RS 2477 CO-CHAIRMAN OGAN announced the next order of business was CSSB 180(FIN), "An Act relating to state rights-of-way." CO-CHAIRMAN OGAN called on Brett Huber, staff to Senator Rick Halford, prime sponsor of the bill. Number 352 BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska State Legislature, stated the issue of Revised Statute 2477 (RS 2477) is long-standing and complex. It was granted by the United States Congress with the passage of the Mining Act of 1866. The purpose of the law was to provide for and guarantee the public's right to establish access across federal land. Subsequent congressional action and more than 100 years of case law recognize the state's authority to determine and define RS 2477 rights-of- way. Although Congress repealed RS 2477 rights-of-way in 1976 with the adoption of the Federal Land Policy Management Act (FLPMA), it specifically acknowledged their legal existence established prior to the repeal. Current federal regulations explicitly provide that any rights conferred by the RS 2477 rights-of-way grant shall not be diminished. MR. HUBER further stated the issue received legislative attention beginning in 1992 and 1993 with appropriations to fund research and compile historical information. In undertaking those projects, the Department of Natural Resources (DNR) reviewed some 1,700 potential routes resulting in 602 identified rights-of-way that appear to qualify and can be supported with appropriate documentation. These 602 routes are published in the Historical Trails catalogue and have been incorporated into the state land administration system. Last year, the legislature passed SJR 13 with broad support. The resolution reiterated the legislature's position on RS 2477 rights- of-way and made its objections clear on the United States Department of Interior's proposed policy that would have drastically reduced the state's opportunity to resolve these issues in its favor. A copy of the policy memo from Secretary Babbitt dated January 22, 1997 has been included in the bill packet. In addition, information that came forward during the committee process, as well as a Senate/House Resources joint overview supports the action taken on SB 180. MR. HUBER further stated that SB 180 codifies the 602 documented RS 2477 routes. It requires them to be recorded, provides a process on vacating those rights-of-way, and sets out liability limitations for the state. While the RS 2477 rights-of-way that are codified in this bill have already been accepted by public users and deem supportable by the state, it is likely that the federal government will challenge some or all of these routes. Although the current federal administration is attempting to limit the state's right regarding RS 2477 rights-of-way, over 100 years of case law on point recognizes state law as controlling on the issue. Codifying these routes in statute will strengthen the state's position for possible and subsequent court action, and provide the effected landowners and the general public the clear notification that these routes are available for use. "Simply put, Senate Bill 180 says these are our rights-of-way and they're available for use by the public. It's an existing right and it's okay to exercise it." MR. HUBER further stated that Senator Rick Halford believes RS 2477 rights-of-way, although not a panacea, are an important option for the state's future transportation needs, mineral development, tourism and recreational opportunities, access to and between rural areas. The bill enjoys the support of numerous organizations, including the Resource Development Council, the Alaska State Chamber of Commerce, the Alaska Outdoor Council, the Territorial Sportsman, the Alaska Forest Association, and the Alaska Miners Association. REPRESENTATIVE REGGIE JOULE asked Mr. Huber whether he was able to get any support from the larger private landowners in the state. MR. HUBER replied actually a letter was sent to most of the major private landowners and groups representing them last year, and phone contact has been made with many of the land managers of the Native corporations. There was some concern from the land management representative from the Alaska Federation of Natives (AFN). The findings section is intended to address some of the private property concerns as well as the vacation process. There has not been one unified position from the Native corporations, however. They range from, "we don't believe RS 2477 exist at all" to "we don't want to see a dogsled trail become a highway" to "we understand that RS 2477s are out there but there are 17B easements and other options." REPRESENTATIVE JOULE asked Mr. Huber how he would see the RS 2477 rights-of-way apply to private landowners including the Native corporations. MR. HUBER replied it is important to note that the RS 2477 rights- of-way that the bill proposes to codify already exist. There is no action now that can create an RS 2477 rights-of-way that wasn't accepted by public use prior to their extinguishment with the passage of FLPMA. REPRESENTATIVE JOULE asked Mr. Huber how would they affect private property owners. MR. HUBER replied the effect would be like any other easement or right-of-way on a piece of land held by the public. "If you hold the servient estate then you're affected to some degree in that there is a public right-of-way to cross your property." It is the intent of the sponsor to balance private property rights with public access rights, the public access rights that exist whether codified in the bill or not. It is important to note that there is a process of vacation for the rights-of-way before being codified because people don't know exactly where the routes exist on their property. However, it does not remove the fact that the right-of- way is there. The bill says, if a private property owner would be adversely impacted, there is a process for an alternative route to pursue either administratively through the Department of Natural Resources or the courts. REPRESENTATIVE JOULE asked Mr. Huber to expand on the state's liability he mentioned earlier. MR. HUBER replied the Department of Law came forward with a request to include limitations on the liability for the state. The liability says merely the act of codifying doesn't result in an additional claim for monetary damages, if somebody disagrees with an access route. The liability also is for managing the 602 routes. The state has been managing some of them by default because some are in use. The bill doesn't address their scope of use, it is an administrative decision by the Department of Natural Resources. The liability says the routes are available for use at the risk of the user. REPRESENTATIVE JOULE asked Mr. Huber whether the liability would be extended to the private landowners. MR. HUBER replied there is a statute on the books that deals with limits of liability on unimproved land. Testimony from the Legislative Legal and Research Services has indicated that a servient estate has no liability for use on a public right-of-way now, therefore, adding language to specifically limit liability to servient landowners would be superfluous to what is already on the books. REPRESENTATIVE JOULE asked Mr. Huber whether that means yes or no. MR. HUBER replied that means that although this liability doesn't directly deal with the private property landowners, there are statutes on the books and case law history that says liability does not extend to a private landowner if his land is diminished by a public right-of-way. CO-CHAIRMAN OGAN stated he is intimately familiar with a number of rights-of-way that cross private property in his district. One is within 600 feet of his house and affects his neighbor greatly. The language to establish an alternative right-of-way is good. He asked Mr. Huber whether it would have to be 100 feet, or could it be smaller based on historical use. He also asked has there been any precedent set in case law. MR. HUBER replied the bill doesn't speak to the specific scope or management of the width of a right-of-way. That is currently handled through DNR regulations on rights-of-way that go through its nomination and certification process. There is case law on point in the superior and supreme courts whereby both upheld an existing RS 2477 right-of-way (Puddicombe). The courts determined that the right-of-way was 100 feet. CO-CHAIRMAN OGAN stated if he remembers the case circumstances correctly he is the only private inholder surrounded by state lands. An RS 2477 right-of-way goes right through his land. It seems the state should be reasonable since he is the only private landowner around. He likes the alternative language in the bill, and hopes it will help his neighbor and others in similar situations. MR. HUBER stated, according to his understanding of the Puddicombe case, the private property holder did not want to take an alternative route. The case went to court and now the state is contending the RS 2477 right-of-way, but as a private property owner. It is important to note that these are public rights that the state holds for the public. Anybody can bring an RS 2477 right-of-way to court and challenge construction and routing on private property, for example. The parties in Puddicombe did not explore that avenue. They went straight to court. That avenue would still be available under the bill. CO-CHAIRMAN OGAN asked Ms. Barry, from the Department of Law, whether the bill would allow for a methodology to establish an alternative right-of-way through property. Number 585 ELIZABETH BARRY, Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law, replied she doesn't read the bill as changing whatever rights there are to establish an alternative access. "This puts some limitations on when DNR can vacate an RS 2477 right-of-way, and if they can workout a reasonable alternative access. As I read the bill, they would be able to do that." CO-CHAIRMAN OGAN asked Ms. Barry whether that is a departure from policy in the past. MS. BARRY replied, "No." CO-CHAIRMAN OGAN asked whether it has always been able to do that. JANE ANGVIK, Director, Division of Land, Department of Natural Resources, replied under existing regulations, DNR has the authority to vacate RS 2477 rights-of-way. It does not need approval from the legislature. CO-CHAIRMAN OGAN asked Ms. Angvik whether there is a requirement to provide a reasonable alternative in regulation. MS. ANGVIK replied "No." There is a requirement for a rationale to vacate, however. CO-CHAIRMAN OGAN asked Ms. Angvik how many RS 2477 rights-of-way has the department vacated since she has been in her position. MS. ANGVIK replied the department has never vacated an RS 2477 right-of-way. [THE REST OF HER TESTIMONY WAS INAUDIBLE] REPRESENTATIVE JOULE asked if the conveyance process hasn't been completed on private lands, specifically ANCSA lands, would that impact the RS 2477 rights-of-way. MR. HUBER replied typically on ANCSA lands there is language in the conveyance that stipulates any rights-of-way, other private property interests, such as mining claims, that encumber it at the time of conveyance. In other words: When lands are conveyed to an ANCSA corporation it comes with language that grandfathers other property rights on that land. MR. HUBER further stated these rights-of-way existed before being codified by this bill. It does not create a new right-of-way. It does not create a new right. These rights-of-way were accepted by public use prior to the extinguishment of RS 2477 rights-of-way statutes. PETE AMUNDSON testified via teleconference in Ketchikan. He asked, what are the 11 of the 602 certified, and what 5 out of the 11 are in litigation with the federal government. MR. HUBER stated the rights-of-way that are brought forth to be codified in the bill have not gone through the certification process. According to his understanding, there are five routes that are being litigated, only one was commenced by the state. The four other routes were commenced by private individuals looking to access their public right-of-way. MR. AMUNDSON stated the Unuk River road, a haul road, goes through wilderness in the Tongass National Forest, and asked whether it would be up for litigation. TAPE 98-42, SIDE B Number 000 MR. HUBER replied it possibly could be contested. The administration talks about brining lawsuits forward, but has only certified 11 routes since 1992. It has filed and gone to court on only one route. It has been looking for the ideal test case to establish a precedent. It would be impossible to guess now which of the routes would be the first contended or the most hotly contended. MR. HUBER further stated, it is important to note that for any road construction or trail blazing, a person will still need to go through the same permitting process with DNR. It allows for foot traffic and traffic that doesn't disturb the vegetation. The more stringent the land use restrictions are on the land surrounding the RS 2477 right-of-way, the more contentious the issue. REPRESENTATIVE JOULE asked Ms. Angvik what effect the bill might have on privately owned land. MS. ANGVIK replied the act of recording RS 2477 rights-of-way will cloud the title of private land in Alaska whether they are owned by individuals or Native corporations because each trail has not been identified. Therefore, a private landowner doesn't know whether it would encroach upon development opportunities. The Department of Natural Resources is strongly supportive of the state asserting RS 2477 rights-of-way and is pleased to have done the research that resulted in the identified 602 routes. But, the process set out in regulation requires a certification process - a title search to make sure who the landowner is. To date, DNR has only certified 11 of the routes. An alternative to the bill would be to record only the 11 that have been certified. Number 081 REPRESENTATIVE BARNES asked Ms. Angvik whether former Governor Hickel hired Mike Dalton (ph) to do the work on the RS 2477 rights- of-way. MS. ANGVIK replied Mike Dalton (ph) was on contract with the state to assist with the RS 2477 rights-of-way research. The funding was through a capital improvement program. He did great work with the staff in Fairbanks identifying the historical record that resulted in the 602 qualified routes. REPRESENTATIVE BARNES asked Ms. Angvik what specifically has been done with RS 2477 rights-of-way since the Knowles' Administration took over. MS. ANGVIK replied for the past three years the RS 2477 rights-of- way project has continued to do additional research. As recently as this spring, the department provided Senator Rick Halford with an additional 17 trails that qualified based on their historical records. In addition, the department did the global positioning system (GPS) routing for the one RS 2477 right-of-way that is being challenged in federal court outside of the Fairbanks area. It also worked with the Department of Law when the state was involved in the Puddicombe case between two individual parties. The current appropriation for the RS 2477 rights-of-way research within DNR has been approximately $200,000 for the last two years. There are two persons working on the project for two years on a full-time basis, as well as other research for mining operations in the Interior. REPRESENTATIVE BARNES asked Ms. Angvik how much money has the department expended identify the 17 RS 2477 trails. MS. ANGVIK replied approximately $600,000 (three years at $200,000 a piece). Number 138 NELSON ANGAPOLE, SR., Executive Assistant - Lands, Alaska Federation of Natives (AFN), testified via teleconference in Anchorage. The bill also includes the lands that lead to the ANCSA corporations. It represents the taking of the private land for public use without just compensation to the landowners. The taking of these lands at this magnitude is unprecedented. He cited examples of impacted land. This kind of taking is contrary to the Constitution of the United States and the concept of protecting private landowners. In addition, AFN is concerned that the bill would create (indisc.) on the land conveyed through the Native corporations. It seems if the state will be identifying RS 2477 rights-of-way it should be fully responsible for any liability, not the Native corporations. The Alaska Federation of Natives recommends that the state continue to identify access across Native lands using the existing (indisc.) of ANCSA, the proper way to identify these lands. REPRESENTATIVE BARNES stated the land transferred under ANCSA also included all of the RS 2477 trails with the land at the time. MR. ANGAPOLE, SR. stated the valid existing rights in place at the time of the Indian land freeze in 1967 and the passage of ANCSA remain in place. MR. HUBER stated it is not the intent of the sponsor to segregate other opportunities to access Native corporation land. Other possibilities do exist - 17B easements, acts of Congress, and purchases by the state. They are just existing rights that need to be preserved as a possible available means for future access. CO-CHAIRMAN OGAN stated that Article VIII, Section 1, "Statement of Policy," reads as follows: "It is the policy of the State to encourage the settlement of its land and the development of its resources by making them available for maximum use consistent with the public interest." CO-CHAIRMAN OGAN stated there is a compelling interest to make sure that all can be done to reserve these rights-of-way as mandated by the state constitution. Number 278 REPRESENTATIVE BARNES made a motion and asked unanimous to move CSSB 180(FIN), version 0-LS081\K, from the committee with individual recommendations and the attached fiscal note(s). Number 281 REPRESENTATIVE JOULE objected. CO-CHAIRMAN OGAN called for a roll call vote. Representatives Barnes, Masek, Williams and Ogan voted in favor of the motion. Representatives Joule and Nicholia voted against the motion. Representatives Dyson, Green and Hudson were absent. CO-CHAIRMAN OGAN called for a brief at ease. CO-CHAIRMAN OGAN called the meeting back to order. Number 294 REPRESENTATIVE BARNES made a motion to rescind her motion to move the bill from the committee. There being no objection, the motion was rescinded. CO-CHAIRMAN OGAN announced the bill will be held over until the next committee hearing. CSSB 250(FIN) AM - MANAGEMENT OF GAME CO-CHAIRMAN OGAN announced the next order of business was CSSB 250(FIN) AM, "An Act relating to management of game, to the fish and game fund and federal aid for restoration of wildlife and fish, and to the duties of the commissioner of fish and game." CO-CHAIRMAN OGAN called on Marilyn Wilson, staff to Senator Bert Sharp, sponsor of the bill. Number 313 MARILYN WILSON, Legislative Assistant to Senator Bert Sharp, Alaska State Legislature, read the following sponsor statement: "In 1994, the Eighteenth Alaska State Legislature passed SB 77, legislation implementing intensive game management. Since that time, the Department of Fish and Game and the Board of Game have had difficulty interpreting and implementing this legislation. "Senate Bill 250 narrows down and defines legislative findings that provide the high levels of harvest for human consumption consistent with the sustained yield principle. It further states big game prey populations should be managed biologically. This is accomplished by amending AS 16.05.255(g) and adding a new definition for sustained yield. "The Board of Game is further instructed to establish harvest goals and seasons for managing big game prey populations to achieve a high level of human harvest. And the commissioner, by delegation of the board, shall cooperate and assist by implementing regulations, management plans and other programs to accomplish these goals. "To further assist the board and the department, the bill contains definitions for harvestable surplus and high levels of human harvest. These are terms that are in existing law and it has become evident they beg for clear definition. "Thank you." REPRESENTATIVE JOULE referred to the submitted amendment and asked Ms. Wilson what money would be involved. MS. WILSON replied she is not sure. Number 362 GERALD BROOKMAN testified via teleconference in Kenai. He is disturbed by the direction of the substitute of federal game management by dictating specific narrow objective and human consumption to the exclusion of others. The bill would restrict or eliminate the ability of the Department of Fish and Game and the Board of Game to manage game scientifically and respond to public input. REPRESENTATIVE BARNES stated, under the constitution and general powers of Title VIII, the legislature has the power to manage Alaska's fish and game. It delegates some of its authority to the Boards of Fisheries and Game. There is absolutely nothing that precludes the legislative branch from managing the resources according to the constitution. The legislature will from time to time change the power that it has given to the boards. "I just get awful tired of hearing people say that because we happen to introduce a bill that has specific to do with our general power, that we're somehow medaling in powers that we delegate to begin with." Number 398 MR. BROOKMAN stated he did not use the word "medaling." He should have used the word "micro-manage." He recognizes that the legislature has broad powers in this area. However, it is exercising those powers too specifically in this case and in others. SENATOR BERT SHARP, Alaska State Legislature, Sponsor of the bill, explained the purposes of Section 2 is primarily to establish a harvest yield for specific purposes. If it is decided to be used for a purpose other than what was appropriated, it would have to go through the reimbursable services agreement (RSA) process. Fish and game funds are specifically restricted for their use, and sometimes they are stretched beyond recognition. The legislature would not be able to get the money back, but anything beyond what it was appropriated for would be trackable. SENATOR SHARP explained Sections 3 and 4 establish the definitions of the terms "harvestable surplus" and "high level of human harvest." The Board of Game, at its last two meetings, has attempted to define these areas and has not been able to arrive at any decision. When the Intensive Game Management Act was passed, the board asked to remove the definitions to allow flexibility. It has been four years since the Act passed, and it has not gotten to the definition stage let alone intensive management. The definitions in the bill are easy to understand and give the board a tool to work with when making an allocation decision. They follow along with the present statute that requires the board to implement intensive management on identified populations. REPRESENTATIVE JOULE referred to Section 2, and asked Senator Sharp whether the money is intended to go to specific divisions or certain places within the department. SENATOR SHARP replied Section 2 speaks to fish and game funds that go into a constitutionally restricted account and can only be used for the benefit of those that pay into the account. The money comes from licences, permits, and other fees. REPRESENTATIVE BARNES asked Senator Sharp to identify the Pittman - Robertson, Dingell - Johnson/Wallop - Breaux funds for Representative Joule. SENATOR SHARP replied the funds that he just talked about are state funds. The Pittman-Robertson funds are federal funds that are also restricted similarly as the state funds. Federal funds come from excise taxes on guns and ammunition that are allocated to the various states based on a formula. The Wallop-Breaux funds are federal funds that go back to the states from fishing oriented gear. The Wallop-Breaux funds have to be used for sport fishing only, such as building boat launches. Section 2 intends to ensure that the state complies with the federal requirements for the restoration of wildlife and fish. It increases the accountability. It doesn't remove any fiscal authority of the commissioner or interfere with any legislative oversight. It requires that the expenditures of those funds are clearly exposed and subsequent products and services are documented as expenditures. REPRESENTATIVE JOULE asked Senator Sharp whether the federal funds would go through the Department Wildlife Conservation and Division of Sport Fish. SENATOR SHARP replied the Pittman-Robertson funds go to the Division of Wildlife Conservation. The Wallop-Breaux funds go to the Division of Sport Fish. Both divisions are 100 percent funded with restricted fish and game funds, either federal or state. REPRESENTATIVE JOULE stated he buys a hunting license and a lot of ammunition every year like many people throughout Alaska, including subsistence users. He asked Senator Sharp whether the bill would prohibit any money from going to the Division of Subsistence. SENATOR SHARP replied no, as long as it doesn't conflict with the federal requirements. In fact, over the years it has been acceptable practice for the Division of Wildlife Conservation to contract work with the Division of Subsistence. Fish and game funds are spread out to other divisions based on their expertise. The Division of Sport Fish is putting in a $1.2 million boat launch and campground on Lake Aleknagik in conjunction with others. CO-CHAIRMAN OGAN announced that Representative Nicholia has been at the meeting for a long time. REPRESENTATIVE IRENE NICHOLIA asked Senator Sharp whether the money could be spent on subsistence harvest data. SENATOR SHARP replied yes through contracts between the Division of Subsistence and Division of Wildlife Conservation. REPRESENTATIVE NICHOLIA asked Senator Sharp whether money in the base budget would be available for subsistence harvest data. SENATOR SHARP replied it has been available in the past. It doesn't restrict the two divisions from working together. The bill says the Division of Wildlife Conservation is charged with administering fish and game funds, but it can contract out through an agreement with anybody. REPRESENTATIVE BARNES asked Senator Sharp whether the Pittman - Robertson, Dingell - Johnson/Wallop - Breaux funds are primarily from people who come to the state to hunt and fish. SENATOR SHARP replied, "Correct." The big bubble increase ($3 million) for the Division of Sport Fish is due to a law changed about a year ago raising the nonresident license fees for sports fishing. Most of the money will be used for river drainage surveys in conjunction with commercial and subsistence fisheries to accumulate data for stocks. It will be acting jointly with other divisions to get the program going. REPRESENTATIVE BARNES asked Senator Sharp whether there is an exclusive use of the funds. She remembers a problem over funding for a commercial fish hatchery project. SENATOR SHARP replied he doesn't recall the problem Representative Barnes referred to. The Division of Sport Fish runs large hatcheries for salmon and other fish on Elmendorf Air Force Base, Fort Richardson Army Base, and in other parts of the state. But, any new project that the division takes up has to be approved by the federal coordinators in Anchorage before expending any funds. CO-CHAIRMAN OGAN announced the bill will be held over. ADJOURNMENT Number 648 CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee meeting at 3:20 p.m.