Legislature(2015 - 2016)BUTROVICH 205
02/03/2016 03:30 PM Senate RESOURCES
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HB 115-AK SOVEREIGNTY;US TRANSFER LAND TO ALASKA CHAIR GIESSEL announced consideration of HB 115 [CSHB 115(FIN) was before the committee]. She invited the sponsor's staff to provide a brief sectional analysis. TOM WRIGHT, staff to Representative Chenault, Alaska State Legislature, said HB 115 addresses issues related to public lands including the transfer of title of public lands to the state and also asserts state sovereignty under the 9th and 10th Amendments of the U.S. Constitution. According to the Department of Natural Resources (DNR), right now there are 222 million acres under federal ownership: the Bureau of Land Management (BLM) has about 75 million acres; wildlife refuges comprise about 70 million acres; national parks comprise 54 million acres; national forests comprise about 22 million acres, and the Department of Defense has 2.2 million acres. Alaska was granted 28 percent of the total land area within its borders. State entitlement was about 106 million acres after various federal laws were enacted. The remaining entitlement to be selected is 5.4 million acres. The state has selected 10.9 million acres from which to receive those remaining 5.4 million acres, and has 10.2 million acres of top filings that may eventually become selections. A top filing is a contingent selection where the land is subject to federal restrictions or withdrawals. The state is prevented from selecting any of those lands until such time as a public land order is issued by the Department of Interior or an executive order is issued by the executive branch. The definition of public land within the bill is federal land in the state, except for title held by another person or for military purposes. He said a legal memo indicates constitutional issues with this legislation, but it can be asserted that since land selections were supposed to have been finalized 35 years after Alaska's admission into the United States, that the federal government really has not acted in good faith in honoring the requirements of the Statehood Act. 3:34:05 PM SENATOR STOLTZE joined the committee. MR. WRIGHT said that the state has lost revenue due to lack of resource development on these federal lands; the Alaska National Wildlife Refuge (ANWR) is a prime example. Actions last year by the Obama administration to try to lock up federal lands from any development whatsoever also would have impinged on the state's entitlement to a share of the revenues from mineral development on these federal lands. MR. WRIGHT said that HB 115 also asserts the state's sovereign rights under Articles 9 and 10 of the U.S. Constitution, and this was previously addressed in the 1983 initiative known as "The Tundra Rebellion," which was never implemented after its affirmation by voters. He said that Utah is also struggling with the federal government in trying to get the lands it is entitled to, and the South Carolina House adopted a resolution in 2013 supporting western states in the transfer of federal public lands to them. So, Alaska is not unique in that situation. He said the western states are dominated by federal land ownership. The resolution's main points are that the lack of utilization of these public lands and natural resources has a negative effect on the states' economies as well as that of the entire United States. An interesting fact is that a study done by the Property and Environmental Research Center (PERC) found that the federal government loses an average of 27 cents for every tax dollar spent managing public lands, whereas state land trusts, on the other hand, realize $14.51 for every dollar spent on managing public lands. He said the bill is simple and that is why he didn't prepare a sectional analysis, but he offered to go over each section. SENATOR COGHILL wanted to know what a "public land order" is referring to Section 4. 3:38:05 PM ED FOGELS, Deputy Commissioner, Department of Natural Resources (DNR), Juneau, Alaska, answered that "public land order" is the term the department works with most. He didn't have a precise legal definition, but it is a land order put in place by the Secretary of the Interior on federal lands to withdraw for certain purposes. It prevents state selections from attaching to those lands. He explained that Alaska is approaching the end of its statehood land entitlement process. Of the 105 million acre entitlement, 100 million acres have been conveyed and there are 5 million acres to be conveyed. The state has selected 10 million acres on BLM land that it could probably get tomorrow by just asking for it. The state also has about 10 million acres of lands it would like to select, but because of the public land orders, those selections don't attach; these are called top filings. The state can't get those lands until the public land orders are lifted. In reality, the state would like to acquire some of the more valuable lands encumbered by the public land orders. MR. FOGELS said DNR had been pressing the Department of Interior to lift those public land orders, because they have outlived their initial purpose. For example, public land orders were put in place to make sure that the Native corporations could select their lands, but now those selections have been done. SENATOR COGHILL asked if public land orders were part of the land agreement issue that came up under the Alaska National Interest Lands Conservation Act (ANILCA). MR. FOGELS answered that those land orders were actually put in place by ANILCA. SENATOR COGHILL asked if other land orders are disparate in their purposes. MR. FOGELS responded that there are multiple purposes. A couple of classic examples are the footprint of the Susitna Watana Project that is encumbered by a public land order for a power site withdrawal. The second example that they have been fighting about for years is Public Land Order 5150 that withdrew a wide swath of land for the Trans-Alaska Pipeline System (TAPS) pipeline from Prudhoe Bay to Valdez that encumbers tens of thousands of acres that are clearly not needed. The state would like to select some of those lands for their rare earth mineral potential. He corrected himself saying that the Native Corporation public land orders may have been put in place by the Alaska Native Claims Settlement Act (ANCSA) not by ANILCA. 3:43:11 PM CHAIR GIESSEL recognized Speaker Chenault in the audience. SENATOR COGHILL remarked that the first section talks about the rights to "setoffs" and asked how the state and federal governments view those. MR. FOGELS responded that this term is not used a lot by DNR. It is basically the placement for any loss of economy that Alaska would have received had those federal lands had been fully utilized. SENATOR COGHILL said because the buffer zones in his neck of the woods are getting bigger and bigger, the trappers and placer miners are faced with economic issues. They fall under a rule that needs to be challenged, but practically speaking, an economy can't be developed there either. MR. WRIGHT responded that this language is modeled after a Utah bill (HB 141). The sponsor described "setoff" as establishing a place holder to reserve the state's rights as it pursues its sovereignty on land claims against the federal government. It provides notice that the state reserves its right to claim a credit or "setoff" for any amount of injury suffered by the state that is wrongfully caused or claimed by the federal government. If the federal government finds the state has a liability to the federal government, the right of setoff allows the state to reduce or eliminate that liability by deducting or offsetting the amount the federal government owes the state. That claim could be used on any resource, or oil and gas development. SENATOR COSTELLO said in previous years Mr. Fogels had testified to the fact that the state doesn't want to rush to complete its land selection, because once it does, then some of these other areas are off the table, plus more information will be gathered about the resources on it. She asked him to talk about "that delicate dance" and how this essentially not only keeps the state from the benefits of economic development on these lands but also from completing its land selections. She also had always thought it was 103.5 million acres and he is using 105 million acres. MR. FOGELS responded that he could give the committee an accounting, but the several different land grant programs total up to an entitlement of 105 million acres. He said it has been the department's position to not rush to the finish line. The state has to get its last 5 million acres and they want to choose the best ones. The 20 million acres in this pool, half of which is off limits to the state, is a big pool of land about which not much is known. He explained that for a number of years, DNR did a strategic and critical minerals assessment program and got a lot of new information on many of those lands. This is how they found the rare earth and other critical mineral spikes in Public Land Order 5150. But, the first thing to do is to unencumber that 10 million acres. If that were done, DNR would ask for certain lands right now, because they know they are valuable. They would probably go for some lands in the selected category. He explained that the public land orders also hamper the state's ability to gather data on those federal acres as well as the ability of explorers to explore (a lot of data comes from the private sector). SENATOR WIELECHOWSKI asked if the administration supports this bill. MR. FOGELS said he had been told that the bill could have constitutional issues and based on that, the administration might find it hard to put its full weight behind it. The public land order issue is incredibly important to the DNR. SENATOR WIELECHOWSKI said he didn't think there was any disagreement on that; the argument is all about whether the bill is legal or not. A lot of times attorneys for Legal Services hedge, but they didn't hedge on this; they said the bill is unconstitutional and cited the Constitutional provision, Article 12, Section 12, that says: The State of Alaska and its people forever disclaim all right and title in or to any property belonging to the United States or subject to its disposition. Basically, Senator Wielechowski said, the argument in this bill is that Alaska's Constitution is unconstitutional. But aside from that, if the bill passes, what is the enforcement mechanism for the department? 3:51:38 PM MR. WRIGHT said honestly, he didn't think the state would take any action. The state is just asserting that it could be better stewards of state lands than the federal government can. CHAIR GIESSEL thanked Mr. Fogels for his readiness to be on call for information. SENATOR MICCICHE said he wanted a listing of public land orders that are set aside to understand the one section of the bill that is worthy of fighting for. CHAIR GIESSEL referred him to an on-line resource, The American Lands Council, that has a map of the U.S. which shows the areas in red, but she said she would also ask for that information. SENATOR COGHILL said he would be willing to work with Mr. Fogels and asked if he was willing to consider that the Statehood Act, ANCSA and ANILCA became the formulating documents that were meant to be about land use. There is probably a pretty good case that the constitution has already been stepped over. He asked Mr. Wright if he had gone through the series of legal steps to show that Congress has unilaterally changed - without getting permission from the state that would back up the fact that it has to look through its Constitution, through ANCSA, and through ANILCA - to make this case. MR. WRIGHT answered no, but he would be more than willing to look at that. He understands the constitutional questions that come with this bill. SENATOR COGHILL said he would be willing to work with him and that he thought a severability portion needed to be added. The way the Statehood Compact has been treated - especially under the current administration where conservation unit guidance overrule the whole constitution and a compact that Alaska made with the federal government - might be the place to start a conversation to show that if the state has to assert itself, it's in defense of the Constitution, not in contradiction to it. 3:56:53 PM SENATOR COSTELLO moved Amendment 1: 29-LS0587\I.3. 29-LS0587\I.3 Bullard 4/7/15 AMENDMENT 1 OFFERED IN THE SENATE TO: CSHB 115(FIN) Page 2, line 30, following the first occurrence of "state": Insert ", except for land that is used for military or naval purposes including a military reservation," Page 3, line 3: Delete "43 U.S.C. 1635(f) (sec. 906(f)" Insert "43 U.S.C. 1635(f)(1) (sec. 906(f)(1)" CHAIR GIESSEL objected for an explanation. MR. FOGELS said he worked with the sponsor on the two amendments. The first one on page 2, line 30, inserts, "under the public land orders to be lifted except for land that is used for military and naval purposes including a military reservation," because those are important lands and the state doesn't have an interest in getting those. If they are abandoned or withdrawn at some point in the future, the department would keep a selection in place and it would attach at that time. The second amendment on page 3, line 3, is technical and refers specifically to the Statehood Act, Sec. 906(f)(1), because the other sections aren't relevant. Sec. (1) basically restricts over-selection to 125 percent and the department has selected about 200 percent. So, according to this section, the BLM could just start tossing the over-selections out without the state's permission. The department has kept BLM at bay, because of the public land order issue. So, it wants that 125 percent over- selection restriction deleted. 3:59:34 PM SENATOR STOLTZE said "naval" has different definitions and asked if it is intended to be military-associated or is it broader to encompass National Oceanic and Atmospheric Administration (NOAA) vessels and encampments. MR. FOGELS answered that the intent is to protect military presence in Alaska. CHAIR GIESSEL removed her objection and finding no further objection, she announced that Amendment 1 was adopted. 4:01:47 PM LOIS EPSTEIN, Director* Arctic Program* Wilderness Society* Juneau, Alaska* strongly opposed HB 115. She said the Wilderness Society is a national membership organization that has had scientists working in Alaska since its inception in the 1930s. Their scientific work has helped identify and protect the highest quality wildlife, recreational, and scenic habitat in the state. She said HB 115 overreaches greatly, going well beyond lands that have been selected for conveyance to the state. They are concerned that state management would undermine protection of certain types of federally managed lands. They also oppose the bill, because it is unconstitutional according to a February 13, 2015, Legal Services memo, and it would also be costly to the state. Former Arizona Governor, Jan Brewer, vetoed a similar bill, because it was unconstitutional. Lastly, she said, given the need for the legislature to address the complicated fiscal problems facing the state, they believe holding this hearing on a clearly unconstitutional bill makes no sense. She quoted from an April 3, 2015 Juneau Empire editorial about HB 115 that backed up that sentiment. 4:05:08 PM SENATOR STEDMAN commented that the legislature has been frugal with its time this year dealing with the fiscal issues and they take their jobs very seriously. He assured the public that members are working the budget and still trying to keep to their normal business along the way. However, he was a little concerned when they start getting newspaper articles in their bill packets. He exclaimed that everyone can get articles from the entire political gamut with even more extreme opinions than those in the U.S., and said, "Where does it stop? Do we ask ISIS what they think and start reading it into our record? I think we need to be a little bit careful there." 4:06:26 PM ELIZABETH DABNEY, Executive Director, Northern Alaska Environmental Center, Fairbanks, Alaska, opposed HB 115. It ignores the U.S. Constitution and the state's legal advisors. Given the fiscal crisis Alaska is in and the resources that would be need to be dedicated to seeing this through, the best thing at this time is to let it go of this bill's initiative. 4:08:04 PM JOSEPH SEBASTIAN, representing himself, Kupreanof, Alaska, said he is a 38-year resident and a commercial fisherman in Southeast Alaska. He opposed the portion of HB 115 that wishes to revoke and reclaim 222 million acres of federal public lands in Alaska. He said federal lands have laws and rights that do not exist on state or private lands. One such right is subsistence use, which under ANILCA seeks to protect the public's right to those lands for subsistence takings and purposes. Yet, under current state forestry regulations, timber harvest is a primary use on state lands. Another example is the National Policy Environmental Act (NEPA) that ensures certain procedures and oversight to resource use and development that do not exist on state or private lands. State forestry on state lands is relaxed to a point where it appears that "variance management" or "anything goes" is the state's low standard. The state is unable to manage the lands it already has under its jurisdiction. While he didn't oppose the state regaining the 5.5 million acres of Statehood Act lands still unconveyed, he opposed the "nonsensical pie in the sky" request for all 222 million acres of federal lands that belong to all Americans. SENATOR STEDMAN noted that the original 13 colonies had very little federal land, and when the State of Texas came into the Union it had very little federal land. The later states coming into the Union ended up having all the federal land. The original 13 colonies and Texas have healthy economies and their tax base is much broader than Alaska's; they have a lot easier time funding schools and building roads. CHAIR GIESSEL, finding no further comments, closed public testimony. She said they would hear from Mr. Sturgeon who was also asserting state jurisdiction over state land in the U.S. Supreme Court. She said HB 115 goes on to the Judiciary Committee where it will be further examined, particularly on legal issues. SENATOR COSTELLO commented that there is a difference in the tone and tenor of this bill that it wouldn't have if it was in the form of a resolution. It gets at the heart of what it means to be an Alaskan and references the economic wealth in our Statehood Compact. She then moved to report work order 29- LS9587\I as amended from committee with individual recommendations and attached fiscal note(s). SENATOR WIELECHOWSKI objected. He said they shouldn't be spending any more time on this and their energies should be focused on other ways to resolve this problem. Legislators took an oath when they were sworn in to uphold the Constitution and this is beyond a doubt unconstitutional. 4:15:28 PM A roll call vote was taken: Senators Stoltze, Coghill, Micciche, Stedman, Costello, and Chair Giessel voted yea; Senator Wielechowski voted nay. Therefore SCS CSHB 115(RES) moved from committee. 4:15:55 PM At ease