Legislature(2009 - 2010)BUTROVICH 205

04/03/2009 03:30 PM RESOURCES

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Heard & Held
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSSB 150(RES) Out of Committee
Moved HJR 21 Out of Committee
        SCR  3-OPPOSE FED. CONTROL OF STATE LAND & WATER                                                                    
4:33:26 PM                                                                                                                    
CO-CHAIR WIELECHOWSKI announced the  consideration of SCR 3. This                                                               
being the first hearing, he stated  that it is his intent to hear                                                               
the  resolution and  hold it  until the  next hearing  to provide                                                               
members time to consider it and provide comments or suggestions.                                                                
SENATOR CON  BUNDE, Alaska State  Legislature, sponsor of  SCR 3,                                                               
noted that the  proposed CS has a minute change  that would match                                                               
language in a bill that is going through the other body.                                                                        
SENATOR HUGGINS moved  to adopt committee substitute  (CS) to SCR
3, labeled  26-LS0496 adopt  \E, as  the working  document. There                                                               
was no objection and version E was before the committee.                                                                        
4:34:28 PM                                                                                                                    
SENATOR  BUNDE informed  the committee  that the  CS deletes  the                                                               
phrase  "file an  action" and  inserts the  phrase "exercise  all                                                               
legal options" [found in the line 1 of the title of SCR 3].                                                                     
SENATOR  BUNDE said  this resolution  is about  state sovereignty                                                               
and the  fact that  the State of  Alaska is  incrementally losing                                                               
its most  cherished and sovereign  right to manage  its navigable                                                               
waters.  In  the  relationship  between  the  state  and  federal                                                               
governments, navigable  waters have  clearly been  established as                                                               
state water and state land. As  such they should be regulated and                                                               
governed by state laws.                                                                                                         
He mentioned the Yukon-Charley Rivers  National Preserve and said                                                               
apparently there  are growing encounters  between the  public and                                                               
the National Park Service (NPS)  on the state's navigable waters.                                                               
In  particular,  the NPS  is  enforcing  prohibitions on  certain                                                               
types  of water  craft, citing  placer miners,  restricting four-                                                               
wheel  vehicles  on  gravel  bars  below  mean  high  water,  and                                                               
requiring  permits  for  riverboat operators  and  other  tourism                                                               
related facilities.  People in  the administration  are concerned                                                               
about this encroachment and have  expressed an interest in having                                                               
the  Legislature  support  legal  action to  return  the  state's                                                               
proper level of sovereignty.                                                                                                    
SENATOR  BUNDE  noted  that  each year  the  NPS  exerts  greater                                                               
authority over sport and subsistence  fishing. Drawing an analogy                                                               
between  the NPS  and the  growth of  alder trees,  he maintained                                                               
that "if you don't whack them  back they continue growing." SCR 3                                                               
encourages  the  administration  to  push  back  to  clarify  the                                                               
delineation of  state's rights.  The Alaska  Constitution clearly                                                               
says  that the  state owns  and manages  its submerged  lands and                                                               
navigable  waters  and  that  its   citizens  are  free  to  have                                                               
unrestricted   access  under   regulations   authorized  by   the                                                               
4:39:03 PM                                                                                                                    
ELIZABETH  BERRY, Attorney,  Civil  Division,  Department of  Law                                                               
(DOL), said she is available for questions.                                                                                     
SENATOR HUGGINS asked why the state  wouldn't go ahead and file a                                                               
MS.  BERRY replied  DOL and  other state  agencies are  currently                                                               
evaluating the options.  She highlighted that there  is a statute                                                               
of  limitations   problem  with   a  facial  challenge   to  this                                                               
regulation, which  was adopted  in 1996. "We  cannot just  file a                                                               
lawsuit," she said.                                                                                                             
SENATOR HUGGINS asked the timeline for a decision.                                                                              
MS. BERRY replied DOL hopes to  soon reach a decision on a course                                                               
of action.                                                                                                                      
SENATOR WAGONER  questioned that  regulations promulgated  by the                                                               
government would have a statute of limitations.                                                                                 
MS. BERRY explained  that to challenge a regulation  on its face,                                                               
it has  to be done  within the  statute of limitations,  which in                                                               
this case is six years.                                                                                                         
DICK  MYLIUS,  Director,  Division  of Mining,  Land  and  Water,                                                               
Department  of Natural  Resources (DNR),  confirmed that  DNR has                                                               
been working on  this issue for a number of  years. Responding to                                                               
a question from Senator Wagoner, he said DNR supports SCR 3.                                                                    
SENATOR BUNDE  said one of the  reasons for this vehicle  is that                                                               
he  believes  that  the   various  departments  would  appreciate                                                               
legislative encouragement on the issue.                                                                                         
CO-CHAIR WIELECHOWSKI  asked Ms. Cunning  if fish and game  has a                                                               
TINA  CUNNING,  Coordinator,   Subsistence  and  Federal  Issues,                                                               
Division  of  Sport Fish,  Alaska  Department  of Fish  and  Game                                                               
(ADF&G), stated that ADF&G supports SCR 3.                                                                                      
4:42:51 PM                                                                                                                    
JAN FLORA, representing herself, said  she came to Alaska in 1989                                                               
as a  placer miner. She  left California because  of heavy-handed                                                               
regulators, but found they look  like amateurs compared to Bureau                                                               
of Land Management  (BLM) regulators. She asked  Senator Bunde to                                                               
include the BLM in the  resolution because they too harass placer                                                               
miners. She related  anecdotal stories of NPS  and BLM harassment                                                               
of placer miners.  These waterways are navigable and  BLM is very                                                               
controlling of them, she maintained.                                                                                            
4:46:28 PM                                                                                                                    
STAN LEAPHEART, Executive  Director, Citizens Advisory Commission                                                               
on Federal Areas,  said the bill packet should  include copies of                                                               
the  letter he  sent  to the  attorney general  on  the topic  of                                                               
intrusion  of NPS  regulations into  state  navigable waters  and                                                               
state management  authority. He is  speaking in support of  SCR 3                                                               
and  to  point   out  that  his  letter  does   not  address  the                                                               
possibility that  other federal  agencies could intrude  into the                                                               
state's management  authority of  its navigable waters.  We're on                                                               
record supporting both SCR 3  and the House companion resolution,                                                               
he concluded.                                                                                                                   
CO-CHAIR WIELECHOWSKI asked  Mr. Leapheart to send a  copy of the                                                               
letter to his  office and he would forward it  to other committee                                                               
members. For some reason it isn't in the bill packets.                                                                          
4:48:45 PM                                                                                                                    
CARL PORTMAN,  Resources Development  Council (RDC),  stated that                                                               
RDC  supports SCR  3  because  the State  of  Alaska is  steadily                                                               
losing a most  valuable sovereign right under  the Statehood Act,                                                               
the Submerged Lands  Act, and the Alaska  National Interest Lands                                                               
Conservation  Act  (ANILCA).  The  state  acquired  control  over                                                               
navigable  waters for  a  variety of  uses  regardless of  upland                                                               
ownership.  The  state's   constitution,  laws,  and  regulations                                                               
clarify that  it owns  and manages  submerged lands  of navigable                                                               
waterways  and the  citizens have  free  and unrestricted  access                                                               
unless  prohibited  under  regulations authorized  by  the  state                                                               
Legislature. Furthermore,  Section 103(c)  of ANILCA  states that                                                               
regulations  adopted for  national  parks only  apply to  federal                                                               
lands.  Beginning  in  1996  the  NPS  placed  another  layer  of                                                               
regulations  over   the  state's  management  of   its  navigable                                                               
waterways.  It  has come  to  RDC's  attention that  the  federal                                                               
government is enforcing prohibitions on  the use of certain types                                                               
of watercraft that the state  in fact authorizes and is requiring                                                               
some commercial  operators to secure  federal permits.  The state                                                               
should act  to protect its  legitimate right to  manage submerged                                                               
lands in  its navigable rivers. RDC  is in strong support  of SCR
3, he concluded.                                                                                                                
4:50:48 PM                                                                                                                    
CO-CHAIR  WIELECHOWSKI  closed public  testimony  and  set SCR  3                                                               
SENATOR WAGONER told a personal  story and concluded, "We do have                                                               
a  big problem  and  we  need to  get  it  defined quick  because                                                               
Alaskans are losing access to their recreation areas."                                                                          
SENATOR BUNDE cautioned that the clock is ticking because of the                                                                
statute of limitations.                                                                                                         
CO-CHAIR WIELECHOWSKI asked when the statute of limitation runs                                                                 
SENATOR BUNDE replied he will find out for sure, but he heard                                                                   
someone testify that it began in 2006.                                                                                          

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