Legislature(1999 - 2000)
04/19/1999 05:07 PM House FSH
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HCR 2 - SOVEREIGNTY OF THE STATE; RESOURCES CHAIRMAN HUDSON announced that the next order of business is House Concurrent Resolution No. 2, relating to the sovereignty of the State of Alaska and the sovereign right of the State of Alaska to manage the natural resources of Alaska. Number 2148 REPRESENTATIVE JOHN COGHILL, Sponsor, Alaska State Legislature, he stated that HCR 2 is a form of an appeal that is necessary in view of the federal government taking steps to take over management of the fish and game in Alaska. HCR 2 is simply asking the Governor and encouraging the legislature to band together to make the appeal and lay it at the feet of the United States Supreme Court. He indicated that there is definitely a problem between the jurisdictions of the United States Department of the Interior and the State of Alaska. When the federal government is demanding that Alaska either change their constitution or be given a mandate to accept management by them there is a genuine dispute and it calls for action. He pointed out that HCR 2 is really just calling for action and putting the Governor in a position where the legislature is requesting that he take action. Furthermore, it brings the legislators to the point where they are defending the Constitution of the State of Alaska. There is a lot of dispute in Alaska as to who should get subsistence, but HCR 2 does not line out that issue, it just states that the final place of appeal needs to be at the U.S. Supreme Court. He urged the committee to pass HCR 2. Number 1999 REPRESENTATIVE KAPSNER referred to lines 10, 12 and 14 of HCR 2, each line starting with "WHEREAS", where it states, "all persons are equal and entitled to the equal rights, opportunities, and protection under the law." She said that she agrees with all those things, but it seems that under those standards a number of practices are unconstitutional, such as renting people sport fishing and sport hunting guides and limited entries. She asked Representative Coghill if he was going to propose a resolution to uphold those standards as well. REPRESENTATIVE COGHILL replied no. He stated that limited entry is actually lined out in the Constitution of the State of Alaska and sport fishing and other uses are actually brought out in the Constitution of the State of Alaska as uses that can be regulated, because of biological factors. He explained, "Our dispute with the federal government is that if you're going to go on residency only or if you're going to actually challenge the sovereign ability of Alaska to govern under this constitution then there's a real dispute and I think it needs to be settled. At this point in Alaska we are giving the freedom of people throughout Alaska the subsistence use; there able to do it based on beneficial uses. Obviously, there are biological factors involved. So, at this point we don't want to restrict based on geography, basically, but I think it goes even further then that, representative, and that is, does the federal government have the right to say, 'you either amend your constitution or we're going to take over management of territory that you have been given the right to manage based on a [Alaska] Statehood Act.' I think that is a fundamental problem that needs to be answered and at this point the only place to answer it is at the [United States] Supreme Court, and so that's what this appeal is." Number 1860 REPRESENTATIVE KAPSNER said that the Governor came out with a press release saying that he would like to see the state amend its constitution so it is in compliance with the Alaska National Interest Lands Conservation Act (ANILCA). The Alaska Congressional Delegation; Senator Stevens, Senator Murkowski and Congressman Young, have said that they are not encouraging the legislature to ask for an amendment to ANILCA. She wondered how receptive Representative Coghill thought the Alaska Congressional Delegation, and especially the Governor, would be in asking the U.S. Department of the Interior, being that they are all in favor of seeing a constitutional amendment. She asked Representative Coghill if he thought the congressional delegation and the Governor would change their mind once they see HCR 2, and decide to have the U.S. Supreme Court take up the dispute. REPRESENTATIVE COGHILL replied that he did not know the answer. He said that it was his hope that the congressional delegation and the Governor would make that decision, otherwise he wouldn't go through the exercise. He indicated that if they don't make the decision to take it to the U.S. Supreme Court, then it is important for the legislature to defend the equal rights of the citizens of Alaska and not stand by idly, while the federal government muscles Alaska into amending its constitution. If the constitution is amended on one issue only, there are several places in the constitution that it will affect; in essence, rewrite the constitution. Number 1688 CHAIRMAN HUDSON referred to line 7, page 1, of HCR 2, where it reads, "the Alaska statehood compact guarantees that Alaska has the exclusive authority to manage its fish and wildlife resources and that all submerged lands and fish are the exclusive property of the State of Alaska." In the Submerged Land Act the United States deeded title all the submerged lands that were not expressly reserved by the federal government. The state of Alaska does not own all submerged lands, because it was not deeded title to all submerged lands at the time of statehood. Furthermore, fish are not truly property of the state, rather they are held in trust by the state for the benefit of the common good. He wondered if Representative Coghill would be willing to make certain that the language in HCR 2 is truly accurate, because there are a number of areas that he believes need to be corrected. Number 1568 REPRESENTATIVE COGHILL wondered if the first correction was at the second "WHEREAS"; line 7, page 1, of HCR 2. CHAIRMAN HUDSON indicated that he did mean the second "WHEREAS", where HCR 2 states, "the Alaska statehood compact guarantees that Alaska has the exclusive authority to manage its fish and wildlife resources and that all submerged lands and fish are the exclusive property of the State of Alaska." The question is whether or not that is completely accurate. REPRESENTATIVE COGHILL replied that there are two different acts involved; the Alaska Statehood Act and the Submerged Land Act. CHAIRMAN HUDSON recommended that somebody from the Department of Law sit in while they are discussing HCR 2. Number 1469 REPRESENTATIVE COGHILL responded that the Alaska Statehood Compact said that Alaska was to manage vacant, unappropriated and unreserved lands belonging to the federal government and receive 90 percent of the potential revenue for those lands. In addition, the Submerged Land Act shows that the submerged lands were actually entitled to the state. He noted that he would be glad to make those available to the committee. CHAIRMAN HUDSON stated that his intention, after the original presentation of HCR 2, was to listen to some testimony and hold HCR 2 over until the next meeting. MS. WEATHERS referred to AS 16.05.940, and stated, "Notes to decision. Rural residency requirement; unconstitutional. The requirement contained in the 1986 subsistence statute, chapter 52 SLA 1986, that one must reside in a rural area in order to participate in subsistence hunting and fishing violates [the] Alaska [State] Constitution. The federal government already made Alaska change the constitution against rural; therefore, now they're trying to change it and go back." She noted that she agrees with Representative Coghill's statement. She urged the committee members to get a copy of the Alaska Statehood Act and read it, instead of hesitate. Representative Coghill has all the facts and it's about time the rest of the legislature uphold the constitution and tell the federal government to get the hell out. Number 1213 CHARLES DAVIS, JR., 22-year Homer resident, testified via teleconference from Homer. He stated that he supports Representative Coghill's efforts in asking the U.S. Supreme Court to adjudicate this question. He addressed the committee and said that they took an oath of office to uphold and defend the Constitution of the State of Alaska. He said that he speaks for at least 200 Alaskans that live throughout the state. He expressed concern with the lack of reference, in HCR 2, to the citizen's sovereignty. He pointed out that the state sovereignty and the federal sovereignty are derived from the citizen's sovereignty; therefore, without the sovereignty of the citizen there is no sovereignty of the state. The source of state government is in Article 1, Section 2, which reads, "All political power is inherent in the people. All government originates with the people, is founded upon their will only, and is instituted solely for the good of the people as a whole." MR. DAVIS further stated, "One of the things about this that I'm a little confused, in this bill, is exactly what is meant when you refer to the 'United States', because the 'United States' has at least three different legal terminology in the courts, and if we don't ask the right question with all the right terminology we get an answer back from the Supreme Court that doesn't mean anything. I would like to briefly just quote from a ruling, Hoogan and Allison Company v. Evak(ph), 'United States, this term has several meanings, it may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in a family of nations. It may be designated territory by which sovereignty of the United States extends or it may the collective name of the states, which are united by and under the constitution.' He urged the committee to check and make sure that Representative Coghill correctly quotes the constitution in HCR 2. He asked Representative Coghill to check and make sure that the question being asked the U.S. Supreme Court is a question that they want an answer to. That question being, does Alaska have sovereign powers guaranteed by the constitution or has the constitution been superseded by the War Powers Resolution? Number 0893 DALE BONDURANT, 51-year Alaska resident, Alaska Constitutional Legal Defense Conservation Fund (ACLDCF), testified via teleconference from Soldotna. He read his testimony, as follows: I have been actively and consistently involved in the subsistence issue from the very beginning. Our organization, the Alaska Constitutional Legal Defense Conservation Fund, has entered as an intervenor in support of the Alaska [State] Legislature's case filed in the federal court, District of Columbia. We have also filed a Brief of Amicus Curiae in support of the legislature's appeal on the merits of Alaska state sovereignty and all Alaskans equal protection rights as users of our common property fish, wildlife and water public trust resources. We have distributed approximately 300 copies of our brief to inform Alaskans of the constitutional right and responsibility of all people as equal users of the fish, wildlife and waters. We give full support to HCR 2, believing that is it properly grounded in both the Alaska and U.S. Constitutional doctrines of equal protection for all the people under the law. It rightly promotes Alaska state sovereignty, which has been abrogated by Title VIII of ANILCA. We believe it is important for Alaskans to know that the Alaska Supreme Court has repeatedly supported the equal protection clauses of the Alaska [State] Constitution related to the users of the state fish, wildlife and water resources, [which include]: Article VIII, Section 3, Common Use; [Article VIII], Section 15, No Exclusive Right or Fishery; [Article VIII], Section 17, Uniform Application. The court also supported the state sovereignty as provided by the U.S. Constitution's Privilege and Immunities, Due Process, Police Powers, Equal Footing, Equal Protection Doctrines and the Submerged Land Act. A short list of such Alaska Supreme Court findings include: Owsicheck v. Alaska (1988), the court made over 20 references to public trust and common use stating, "imposes upon the state a trust duty to manage the fish, wildlife and water resources of the state for the benefit of all the people." McDowell v. Alaska (1989), the court declared, "We note that several other jurisdictions have struck down inter-state residential preferences in fish and game statutes. These authorities support our views that the equal access clauses of Article VIII, [Sections] 3, 15 and 17, which are a special type of equal protection guaranty, bar the residential discrimination imposed in this case. When the sovereignty undertakes to regulate or restrain the individual in its right to enjoy the right to take and use the common property of all, it must do so upon the same terms to all alike." Totemoff v. Alaska (1993), the court gave six explicit reasons, over four pages, why the state, and not the federal government, has the authority to regulate hunting and fishing in Alaska's navigable waters. Further they cited over 40 references to other court cases, regulations and acts. Importantly, they also stated, "The Alaska Supreme Court is not bound by decisions of federal court other than the United States Supreme Court on the questions of federal law." I asked the Governor if he really wanted state management authority, why he did not declare this state authority under this decision and inform the federal government that Alaska will exert its police powers to manage our hunting and fishing until the U.S. Supreme Court orders otherwise. The Governor replied that a number of attorneys disagreed with the Totemoff decision. When I pointed out that this was a unanimous decision by Alaska's highest legal authority and not an opinion of attorneys, he turned and walked away. Payton v. Alaska (1997), the court declared, "Despite repeated legal challenges to and multiple revisions of the subsistence law, 'subsistence uses' have long been defined in terms of customary and traditional uses. Accordingly, we consistently have interpreted 'customary and traditional' to refer to uses rather than users." As such, this is the most important distinction in the understanding of preferences and equality. The common property fish, wildlife and water resources of public lands, whether state or federal, maybe assigned preferences among beneficial uses, but once available to public consumption, i.e., hunting and fishing, it must be offered on an equal basis to all people. Any changes in Alaska's constitution, equal access provisions to comply with ANILCA, will be a direct violation of all Alaskans fundamental equal protection under the U.S. and Alaska [State] Constitution. In Shapiro v. Thompson and Townsend v. Swank the U.S. Supreme Court stated, "Congress is without power to enlist state cooperation in a joint federal-state program by legislation, which authorizes the state to violate the equal protection clause of The Fourteenth Amendment. In Dandridge v. Williams the U.S. Supreme Court stated, "The equal protection clause of The Fourteenth Amendment gives the federal court no power to impose upon the state their views of what constitutes wise economic or social policy. We support HCR 2 and will challenge in court any attempt to abrogate the common use and equal access clause of Alaska's constitution. Number 0268 EDWARD FURMAN, Sergeant, Veterans of Foreign Wars (VFW), testified via teleconference from Cordova. He stated, "I support HCR 2, because of Article 1, Section 8 ... of the United States of America, does not allow the federal government land within Alaska without the states consent." He said that he feels that Alaska is losing its rights and sovereignty and that Alaska has to stand up for its rights. He indicated that recently Native Alaskans have sold land to the federal government and he feels that it is wrong. He informed the committee that he has submitted a copy to the committee of an article that he wrote for "The Cordova Times" dated Thursday, April 15, 1999. Number 0108 CHAIRMAN HUDSON stated that he would like to get somebody from the Department of Law, State of Alaska, to sit in on the next meeting. He stated, "I'm one who does believe that the Governor should not have left the court case. I think we should have continued to assert on that before -- I remember when the legislature decided they were going to go ahead the suit to try to bring the case some satisfaction. I was concerned then that we may not have the standing, and I suspect that's going to ultimately be the case. So we do need to get the Governor to the table, and before it leaves here I'd like to give him that opportunity to come in and sit down at the table with us and make sure that we have the language right and see if we can't convince him ... " TAPE 99-11, SIDE A CHAIRMAN HUDSON continued, "... have that opportunity." Number 0038 MR. WESTLUND referred to 5 USC Sec. 605. He stated: It has to do with the Executive Order No. 12612; Federal Consideration and Policy Formulation and Implementation, October 26, 1987, ... "By the authority vested in me as the President, by the constitution and the laws of the United States, in order to restore the division of governmental responsibilities between the national government and the state that is intended by the framers of the constitution to ensure the principles of federalism established by the framers guide, the executive departments and the agencies in the formulation and implementation of policies. It is here by ordered as follows: Section 2, paragraph (b), the people of the state create the national government, then they delegate to it those enumeral governmental powers relating to matters beyond the competence of the individual states. All other sovereign powers say those expressly prohibit the state, by the constitution, are reserved to the state or to the people; [paragraph] (c), the constitutional relationship among sovereign governments, state and national, is formalized in and protected by The Tenth Amendment of the [U.S.] Constitution; paragraph (e), in most areas the governmental concern, the state usually possesses the constitutional authority, the resource and the competence in discerning the sentiment of the people and to govern accordingly. In Thomas Jefferson's words, the states are the most competent administrators for the domestic concerns and the surest bulkhead against anti-republican tendencies; [paragraph] (g), acts of the national government, whether legislative, executive or jurisdictional in nature that exceed that enumerated powers of that government under the constitution violates the principles of federalism established by the framers; [paragraph] (i), in the absence of clear constitutional or statutory authority the presumption of authority should rest with the individual state; Section 3, Federal Policy Making Criteria, [paragraph] (a), there should be a strict adherence to constitutional principles. Executive departments and agencies should closely examine the constitution and statutory authority supporting any federal action that would limit the policy making discretion of the state, and should carefully assess the necessity for such action to the extent practical. The states should be consulted before any action is implemented; paragraph (b), federal action limiting the policy making discretion of the state should be taken only when constitutional authority for the action is clear and certain and the national activity is necessary by the presence of a problem of national scope. It is important to recognize the discretion between problems of national scope, which may justify federal action, and the problems that are merely common to the state, which will not justify federal action, because individual states acting individually or together can effectively deal with them." ... What this does is it tells you that ANILCA, Title VIII, that the U.S. Government has no authority to be passing that type of legislation and I would encourage the Governor to get on track with this, instead of saying -- continually saying, that we need to change the states constitution. When we change the states constitution all we're doing is going under federal authority. Number 0594 CHAIRMAN HUDSON announced that HJR 2 will be brought up again at the next meeting.
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