Legislature(1999 - 2000)
05/03/1999 05:10 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 was 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 2847 REPRESENTATIVE JOHN COGHILL, Sponsor, Alaska State Legislature, stated that HCR 2 is dealing with the sovereign right of the state to manage its natural resources and it gives some history of the Alaska Statehood Act, the Submerged Land Act, and some of the constitutional provisions in the Constitution of the State of Alaska. There are several court cases cited throughout HCR 2 and it makes the observation that there is definitely a legitimate dispute between Alaska and the U.S. Congress as to whether Congress can require Alaska to violate its own constitution or end up having a discriminatory allocation of fish and game resources forced on it by the federal government. REPRESENTATIVE COGHILL presented an amendment to HCR 2, which would delete lines 19 - 24, page 2. TAPE 99-14, SIDE B CHAIRMAN HUDSON pointed out that Scott v. Sanford was addressed in Joanne Grace's letter. He asked Representative Coghill if he had received a copy of Joanne Grace's written testimony. REPRESENTATIVE COGHILL stated that it was from her written testimony that he decided Scott v. Sanford would be problematic. REPRESENTATIVE WHITAKER made a motion to adopt Amendment 1, page 2, lines 19 - 24, delete: WHEREAS the United States Supreme Court in Scott v. Sanford, 60 U.S. 393(1856), ruled that the property clause of the Constitution of the United States cannot be used to destroy or in any way impair the civil and political rights of citizens of the United States or to provide the power to establish inequalities among those citizens by creating privileges in one class of citizens by disenfranchisement of other classes, thus degrading those other classes from positions they previously occupied; CHAIRMAN HUDSON asked whether there was any objection. There being none, Amendment 1 was adopted. He asked Representative Coghill if he would speak to some of the items that Joanne Grace, Assistant Attorney General, brought up in her letter. Number 2817 REPRESENTATIVE COGHILL referred to the first page of Joanne Grace's letter where it states, "The Governor has consistently stated since he took office that he does not believe litigation is the answer to Alaska's subsistence dilemma." He referred to a letter titled "State To Sue Interior Department over Glacier Bay Fishing, Knowles Asserts Claim to Submerged Lands within Park." The first paragraph reads, "Seeking to protect the rights of Alaska commercial and subsistence fishermen, the State of Alaska will file suit against the federal government to establish its ownership of the submerged lands underlying the marine waters of Glacier Bay National Park, Governor Knowles announced today." He pointed out a list of cases that are pending the ANILCA. In the cases of the Ninth Circuit Court of Appeals there is Alaska v. Babbitt, Stevens Village v. McVee and Rosier, Native Village of Quinhagak v. United States, Peratrovich v. United States, Fish and Game Fund v. Alaska and United States, Kluti Kaah v. Alaska and Arctic Reginal Council v. United States. He indicated that these seven court cases dealing with ANILCA have been stayed until October 1, 1999, which shows that since the Governor took office he has consistently said that he doesn't believe that litigation is the answer, which is due to the fact that the Governor agrees with the federal government. He said that the reason he is bringing HCR 2 forward is a legitimate dispute that needs to be taken to original jurisdiction. Joanne Grace is the lawyer named on five of the seven court cases, which means that she is very aware of the litigation that is happening and that has been stayed. He pointed out that it is pretty well answered that the Governor does believe in litigation, just not in this particular area. REPRESENTATIVE COGHILL further stated that he agrees with Joanne Grace's feelings on Scott v. Sanford. He referred to page 3 of her letter under United States v. New York & Printz v. United States where it states, "Both cases hold that the federal government may not compel the states to implement federal law." He indicated that it is true and the federal government has got a jurisdictional problem in making the states implement federal law. He pointed out that what the state has done typically is offer incentives. The mandate coming down on title VIII of ANILCA does not offer an incentive. It just says amend the Constitution of the State of Alaska and the federal government will give the state money to implement federal regulations. He referred to page 4 of Joanne Grace's letter, where it states, "The Court concluded that Congress could not constitutionally require the states to do either. At the same time, the Court noted that it did not violate the Tenth Amendment for Congress to offer states the choice of regulating an activity according to federal standards or having state law preempted by federal regulation." He said that it is one thing to offer incentives, but it is another thing to demand that the state change its constitution. He reiterated that it falls under original jurisdiction and it is a legitimate dispute that needs to be handled. He referred to the bottom of page 4 in the letter, which reads, "The Department of Interior has not interpreted title VIII of ANILCA to require state implementation, however; it interpreted title VIII to require federal implementation if state law does not grant the subsistence priority to rural residents." He pointed out that those are contradictory statements, because the federal government is demanding a change if Alaska does not implement their title VIII subsistence laws; therefore, he feels that the state has a legitimate Tenth Amendment appeal. He referred to page 5 of the letter, where it states, "It is unclear, however, why the resolution links title to submerged lands to a constitutional challenge to title VIII of ANILCA." He indicated that the reason is that the Submerged Land Act gives title to the land and the fish therein. REPRESENTATIVE COGHILL concluded that the Submerged Land Act shows that the title was transferred at statehood. He stated that the interpretation that Joanne Grace has given is worthy of challenge, but the resolution is based on the fact that there is a challenge. He pointed out that he and Joanne Grace would not agree, and the basis of the resolution is that there is a disagreement within Alaska and with the Congress and the Constitution of the State of Alaska. He noted that the federal constitution and the Constitution of the State of Alaska are in agreement, but disagree with the application of title VIII of ANILCA on subsistence use. Number 2414 BILL HAGAR testified via teleconference from Fairbanks. He stated that he has reviewed Joanne Grace's letter. He pointed out that HCR 2 has a degree of suggestive leadership to the Administration that no matter what the state does there is going to be additional adjudications, which means perhaps the best plan is to go to the top level and adjudicate the state's rights and sovereignty issues to determine what has to be done to eliminate the false adjudications that might take place in the meantime. He stated that Representative Coghill has done a fine job of research and he is very much in support of HCR 2. Number 2347 RALPH SEEKINS, President, Alaska Wildlife Conservation Association, testified via teleconference from Fairbanks. He stated that he has also reviewed Joanne Grace's letter. He indicated that they have done research with their legal counsel and they have decided that it is not an issue of subsistence, but a matter of sovereignty. He referred to two of the questions that Joanne Grace brought up in her letter, which are whether res judicata would apply and whether there would be a statute of limitations. He said, as they understand it, under circumstances where it is a matter of sovereignty there are no statute of limitations and res judicata would not take place. He stated that in United States v. New York & Printz v. United States, in Joanne Grace's letter, there is alot that does not apply to the present situation in Alaska, instead it talks alot about the disposal of radioactive waste, but the language that is important in the case is that a state official cannot act to diminish the domain of a state. He stated that the Governor was wrong when he unilaterally dismissed Alaska v. Babbitt with prejudice, because he did not have the power to bind the people of Alaska to give away their sovereign domain to the federal government. Once the legal question was raised as to who owns the lands underneath the navigable waters in the state of Alaska that legal question should have been taken all the way to the U.S. Supreme Court. In United States v. New York & Printz v. United States it is clear that the U.S. Constitution gives limited power to the federal government, and in Alaska he believes they are trying to expand those limitation beyond what the constitution would provide; that is why it is important that it gets to the courts. MR. SEEKINS continued. He referred to Joanne Grace's letter where she states that she was unable to find a case where the power to control fishing was an essential element of the state's sovereignty. He recommended that she take a look at United States v. Alaska, also known as the Dinkhum Sands case, where the U.S. Supreme Court explains how Alaska became the owner of its submerged lands and how they are sovereign lands. He stated that they know without a doubt that it is an issue that is unresolved; that there are differences of opinion, and before the political issue of subsistence can be solved the legal issue, of where is the line between state and federal power, needs to be solved. They feel that HCR 2 is going down the right path of letting the Governor, the federal government and the people of the state know that the issue of who has the power needs to be determined. DALE BONDURANT testified via teleconference from Kenai. He stated that he is in full support of HCR 2, because the only way that the subsistence issue will be truly settled is by legal findings by the U.S. Supreme Court. Alaska and its citizens have alot at stake, for instance; Alaska state sovereignty, equal footing, police powers, privilege and immunity, equal protection, due process and public trust doctrine responsibilities to the public. The Alaska Constitutional Legal Defense Conservation Fund (ACLDCF) has filed its interveners in the Alaska Legislative Council's lawsuit in Washington, D.C. and they have also filed a "friend of the court brief" on appeal, which they have forwarded to all legislators. They wish to continue to challenge the common use and equal protection clauses of the Constitution of the State of Alaska. He indicated that they appreciate the efforts to protect Alaska's rights and sovereignty. He read from Shapiro v. Thompson, which states, "Congress is without power to enlist the state's cooperation in a joint federal/state program by legislation, which authorizes the state to violate the equal protection clause of the Fourteenth Amendment." Another part reads, "The equal protection clause of the Fourteenth Amendment gives the federal courts no power to impose upon the state there views of what constitutes wise economic and social policy." He pointed out that he considers the subsistence issue to be social policy, which means they have good grounds to challenge the issue and the only place it is going to be settled is in the U.S. Supreme Court. Number 1993 HERMAN FANDEL testified via teleconference from Kenai. He stated that he is in support of HCR 2 and believes that the issue does need to be settled by the U.S. Supreme Court. It is his belief that the state will prevail in a court action in the U.S. Supreme Court. He pointed out that Alaska is being discriminated against and Alaska must be recognized as having equal rights with all of the other states. Alaskans should not even consider changing the Constitution of the State of Alaska when they could be winners in a U.S. Supreme Court decision. Number 1934 DICK BISHOP, Alaska Outdoor Council, stated that the council supports HCR 2 as well as the amendment that Representative Coghill presented which was adopted. The council has long championed the constitutional sovereign right of the state to manage its lands, waters and fish and game on an equal footing with all other states. They also have attempted to add to the effort and get the issue before the U.S. Supreme Court; they have filed "friendly briefs" on Alaska v. Babbitt and the Alaska Legislative Council's lawsuit. He indicated that they do believe it is a fundamental problem that needs to be resolved and won't be unless it reaches the U.S. Supreme Court. He said that one of the suggestions that the council has kicked around, which addresses the issue, is perhaps there should be a lawsuit that says "Yes we'll go along with the federal law as soon as Alaska is guaranteed the rights, to manage its fish and game, that all other states have." He urged the committee to pass the resolution. He also said that they have and do urge the Governor to reconsider what they feel is a counterproductive position of refusing to take the matter to court. The council believes the dropping of Alaska v. Babbitt was a calamity in terms of approaching a resolution of this issue. Number 1763 CHAIRMAN HUDSON stated that the Governor has recently indicated that he plans to go to court on the issue of the submerged lands in Glacier Bay National Park. He wondered if that is relatively the same issue that the committee has before them. MR. BISHOP replied that they are closely related and he is surprised that Joanne Grace did not point out the difficulty that also exists as a result of the conflict between the Alaska Supreme Court ruling in Totemoff v. Alaska and the Ninth Circuit Court of Appeals in Katie John. In Katie John the federal court said that the federal government had an interest in the waters of the Copper River, and therefore, had the authority to manage for subsistence fisheries in that instance, while the Alaska Supreme Court in Totemoff v. Alaska said that because of the Submerged Land Act and its relationship to the Alaska Statehood Act the federal government has no authority over submerged lands in Alaska. Another point that is not mentioned in HCR 2 is that a great deal has been said about the federal government having the authority to manage fish and game on federal lands, because of its authority under the property clause. In Alaska v. Babbitt, Judge Holland said that the state has challenged the authority of the federal government to do that under the property clause, because Congress has not included mention of that authority in the law. What is known about the property clause is that although Congress has broad powers under the property clause it is not self activating. He indicated that Judge Holland couldn't find where Congress had stated that the federal government has the authority on federal public lands to manage fish and game resources, so he thought they just forgot and plugged it in and it went unchallenged. He explained that there is no delegation, by Congress, to the federal agencies of the authority under the property clause to manage fish and game. He added that even Judge Holland couldn't find it. He stated that it is important to carry HCR 2 forward. Number 1505 CHAIRMAN HUDSON called an at-ease at 6:26 p.m. and called that meeting back to order at 6:30 p.m. REPRESENTATIVE WHITAKER made a motion to move HCR 2 as amended with individual recommendation. There being no objection, HCR 2 moved from the House Special Committee on Fisheries.
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