Legislature(2001 - 2002)
04/05/2002 01:11 PM House JUD
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* first hearing in first committee of referral
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HB 376 - FISH & GAME IN NAVIGABLE WATERS [Contains brief mention of the commission proposed by HB 266 and SB 219.] Number 0026 CHAIR ROKEBERG announced that the first order of business would be HOUSE BILL NO. 376, "An Act relating to management of fish and game in and on the navigable waters and submerged lands of Alaska." Number 0063 BILL CHURCH, Staff to Representative Scott Ogan, Alaska State Legislature, sponsor, presented HB 376 on behalf of Representative Ogan. Paraphrasing the sponsor statement, he said: In 1953, the U.S. Congress passed the Submerged Lands Act, which affirmed the constitutional doctrine giving state sovereignty over all navigable waters within their borders. This sovereign power was devolved to the State of Alaska on equal footing in the Statehood Act and Compact. In an Anchorage Daily News article dated March 3, 2000, Governor Knowles said, "No governor of any state would - or should - ever voluntarily relinquish authority back to the federal government." He went on to say, "As Alaska's governor, I believe it is my clear responsibility, even [in] the face of a difficult political battle, to vigorously defend this important aspect of state sovereignty." Additionally the governor said, "The Alaska State Supreme Court has ruled exactly the opposite of federal court and unanimously said the State of Alaska controls all navigable waters." In New York v. United States, 1992, the U.S. Supreme Court ruled that Congress may not simply "commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program." By choosing not to appeal the Ninth Circuit Court of Appeals decision in the John v. U.S. case to the U.S. Supreme Court, Governor Knowles made Alaska a second-class state, ignoring the fact that we were admitted to the union on equal footing. This bill affirms that the State of Alaska has not assented to federal control of fish and game in or on the navigable waters and submerged lands in Alaska. Number 0213 MR. CHURCH paraphrased the fourth paragraph of the sponsor statement, which read: In the "Alaska 'Digest' Email News" of September 3-9, 2001, Alaska [Senator] Frank Murkowski supported appealing the Ninth Circuit Court of Appeals decision to the U.S. Supreme Court. Murkowski said, "I don't believe such an appeal would endanger justified subsistence protections, but it would protect the rights Alaskans thought they had secured at Statehood. An appeal would actually help to end the discord over subsistence by providing finality to the legal arguments. That would help all Alaskans come together and settle this in Alaska, where it should be settled." Governor Knowles abrogated his "clear responsibility to defend this important aspect of state sovereignty." MR. CHURCH, again paraphrasing the sponsor statement, said: [House Bill] 376 further strengthens the State's position with language asserting that the State may not expend funds to adopt [or] enforce the implementation of federal regulatory programs for control of fish and game in or on the navigable waters or submerged lands in the state. It does not, however, prevent authorities from conducting emergency, life saving, statutory, or other appropriate activities. CHAIR ROKEBERG asked Mr. Church to speak to Amendment 1. MR. CHURCH said that Amendment 1 adds a paragraph (4) to Section 3 of HB 376. Paragraph (4) would ensure that the state is not prohibited from "participating in or cooperating with a joint state-federal program relating to the identification of navigable waters in the state". Such a program, he surmised, would be specifically designed to help settle the issue of who has control of the navigable waterways within Alaska. CHAIR ROKEBERG sought confirmation that there is legislation pending that would establish "a commission on this topic." MR. CHURCH said that there is: HB 266 and SB 219. He confirmed that the purpose of Amendment 1 is to allow for the cooperative activity of that proposed commission. Number 0399 REPRESENTATIVE MEYER made a motion to adopt Amendment 1. There being no objection, Amendment 1 was adopted. REPRESENTATIVE MEYER asked Mr. Church whether he agrees with the indeterminate fiscal note [provided by the Alaska Department of Fish & Game (ADF&G)]. He added that he is having a hard time seeing where there would be additional costs. MR. CHURCH said that he did not agree with the fiscal note. He said that one of the main reasons he disagrees is that back in the 21st legislature, when Representative Ogan introduced HB 109, which added "Glacier Bay National Park and Preserve or the navigable waters within or adjoining the park and preserve" to AS 16.20.010(a)(2), the ADF&G had submitted a zero fiscal note. He opined that the indeterminate fiscal note submitted by the ADF&G for HB 376 merely reflects that the department is concerned that fiscally, under dual federal/state subsistence management, it will not be able to achieve, in a cooperative manner, its constitutional mandate of maintaining the sustained yield principle. He stated that HB 376 is not intended to impact or limit the ADF&G's ability to maintain its constitutional mandate. Therefore, he doesn't believe that an indeterminate fiscal note is appropriate; rather, it should be the same as was submitted for HB 109 - a zero fiscal note. REPRESENTATIVE MEYER asked what the difference is between HB 109 and HB 376. REPRESENTATIVE OGAN, as the sponsor, explained that HB 109 just dealt with navigable waters in Glacier Bay and associated [areas], whereas HB 376 deals with navigable waters statewide. CHAIR ROKEBERG posited, then, that if there was a zero fiscal note "for Glacier Bay" there should also be a zero fiscal note [for HB 376]. MR. CHURCH agreed. Number 0632 REPRESENTATIVE MEYER made a motion to adopt Amendment 2, which would turn the ADF&G's indeterminate fiscal note into a zero fiscal note. There being no objection, Amendment 2 was adopted. REPRESENTATIVE OGAN, returning to the issue of HB 376, said: "It's really unfortunate that we're at this juncture." CHAIR ROKEBERG asked Mr. Church, "It's my understanding that because we cannot expend any funds, would any cooperative activities between the federal Fish and Wildlife Service and [ADF&G] be curtailed, or would those activities have to be stopped because of this bill, were it enacted?" MR. CHURCH replied: Not at all. He pointed out that language in HB 376 specifies: "the state may not expend funds to adopt or enforce the implementation of a federal regulatory program, or part of a program". He said that according to his understanding, the cooperative action currently taking place is that of tracking and maintaining the resources in adequate numbers to support all users, if at all possible. He noted that the information the ADF&G receives from federal agencies is important in ensuring that those resources are maintained as required. REPRESENTATIVE JAMES, referring to a letter provided by the Department of Law (DOL), said: The second paragraph ... indicates that the state law is naturally preempted to the extent of any conflict with federal statute. And I agree that's where we are today, and that the state has no other alternative except to go where we're going. But I disagree with the fact that there isn't some remedy. And ... we ought to be able to take the remedy of taking this issue to the U.S. Supreme Court, because I believe that the law on the books in ANILCA [Alaska National Interest Lands Conservation Act] is against our U.S. Constitution, ... specifically under equal protection.... Had ANILCA mentioned, as the identification for the rural priority, that it was for Natives - which it has already been, in court, determined not to be Indian Law - but had they put Native, I think we'd be in a different situation today. But they put "rural", and we've heard recent testimony that 50 percent of the people living in the rural area are Native and the other 50 percent are not, so there's a definite issue in the state in applying this. And the language in ANILCA is what we're being driven under; so, therefore, I am confirmed, again, that ANILCA - by itself, as is stated - is unconstitutional under U.S. law under the equal protection [clause]. Number 0967 CHAIR ROKEBERG opined that Representative James's comments say, in a nutshell, what the majority of the committee believes. He said that it is unfortunate that the governor did not pursue "our legal remedies that were underway." He noted that one of his concerns, as implied in the letter from the DOL, is that [if HB 376 is adopted], the state regulators will have difficulty coordinating with the federal regulators, particularly with regard to keeping track of harvests. He asked, "Is there anything constraining in this bill that would prohibit that?" MR. CHURCH said no, there isn't. "Quite to the contrary, I believe that the bill allows the room for the state to operate and fulfill its mission," he added. [House Bill 376] is not intended to hinder the legitimate efforts of the ADF&G; it's not intended to prohibit the state from protecting and enhancing the state's fish and wildlife resources. He said the state has a priority of maintaining opportunities for all users of fish and game; HB 376 is just part and parcel of that process. REPRESENTATIVE OGAN offered that HB 376 is consistent with the Alaska Supreme Court ruling that the state, not "the feds," control the navigable waterways in Alaska. He remarked that HB 376 does not say that the state is not going to manage its [resources]; it is simply saying, in statute, that the state is not willfully ceding its sovereignty to the feds. CHAIR ROKEBERG mentioned that the governor issued a press release that morning pertaining to the commencement on May 15 [2002] of a special session regarding subsistence. REPRESENTATIVE OGAN mentioned that he would be back in Juneau around May 1. Number 1178 REPRESENTATIVE JAMES moved to report HB 376, as amended, out of committee with individual recommendations and the accompanying amended zero fiscal note. There being no objection, CSHB 376(JUD) was reported out of the House Judiciary Standing Committee. REPRESENTATIVE JAMES, with regard to the issue of fiscal notes, remarked that when the departments are "given a chore that they're already supposed to be doing, they shouldn't have a fiscal note."
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