Legislature(2003 - 2004)
04/11/2003 01:15 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 24 - AGREEMENTS ON MANAGEMENT OF FISH AND GAME Number 0034 CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 24, "An Act relating to intergovernmental agreements regarding management of fish or game." [Before the committee was CSHB 24(RES).] Number 0057 REPRESENTATIVE BRUCE WEYHRAUCH, Alaska State Legislature, joint sponsor of HB 24, referred to a map of the state of Alaska and pointed out the area to which HB 24 pertains - Glacier Bay. He noted that Glacier Bay is a huge body of water, and that the [National] Park Service claims that Glacier Bay National Park and Preserve includes the entire Glacier Bay plus "the line coming outside ... here, into what's called Icy Strait, down into Excursion Inlet, out this ... body of water, called Cross Sound, offshore three miles, up the coast and outside three miles to Lituya Bay, and then into Lituya Bay." That's the area that the National Park Service says is part of the national park, "into the state waters," he reiterated. REPRESENTATIVE WEYHRAUCH explained that when Congress passed the Alaska National Interest Lands Conservation Act (ANILCA), it called Glacier Bay Monument a park. He noted that dispute has arisen regarding whether commercial fishing is prohibited in wilderness areas, and that there is a wilderness area in Glacier Bay National Park and Preserve called the Beardslee Islands. He relayed that there has also been dispute over whether commercial fishing could continue in Glacier Bay. He mentioned that as he defines Glacier Bay, "it's more than 600,000 marine acres of state waters." Therefore, the area of concern is significant, he added. Glacier Bay "proper" and the marine waters outside of Glacier Bay proper are home to a huge, flourishing, sustained commercial fishery, as well as subsistence and sport fisheries. He remarked that halibut, salmon, Tanner/king crab, cod, shrimp, and significant troll fisheries occur in the waters that he'd defined as being outside of Glacier Bay proper. REPRESENTATIVE WEYHRAUCH relayed that in the 1990s, the Alaska Wildlife Alliance sued the [National] Park Service, claiming that commercial fishing could not occur in Glacier Bay. The district court in Alaska ruled that commercial fishing could occur. This ruling was appealed to the 9th Circuit Court of Appeals, which affirmed the district court ruling but also said that the [National] Park Service could prohibit commercial fishing via regulation. Subsequently, the [National] Park Service engaged in the process of adopting regulations to prohibit commercial fishing in various areas inside Glacier Bay; this raised concerns that commercial fishing would also be prohibited outside of Glacier Bay proper - in the "disputed park waters." Number 0312 REPRESENTATIVE WEYHRAUCH explained that U.S. Senator Ted Stevens passed legislation that closed Glacier Bay proper to commercial fishing, except in certain areas, and required "any fisherman who wanted to continue to fish there, in the halibut, salmon, and Tanner crab fisheries, prove they'd fished there and get a lifetime-access permit so they could continue to fish." Congress also authorized more than $23 million for payment to fishermen harmed by the aforementioned closure, and "all kinds of businesses" and individuals have endeavored to obtain a portion of that money. As it stands now, he noted, some people have received compensation and some have not. In addition, some fishermen who have lifetime-access permits in the "halibut, troll salmon fishery, and Tanner crab fishery" can continue to fish in certain areas of Glacier Bay, but otherwise that area is closed, and as soon as those lifetime-access permit holders pass away, there will be no more commercial fishing in Glacier Bay proper. REPRESENTATIVE WEYHRAUCH mentioned that there is also an ongoing case in the U.S. Supreme Court - "a quiet-title action" - which has been referred to a "special master." He also mentioned that there is another issue involving areas called "donut holes," in Southeast [Alaska] and the waters of the Tongass National Forest, that are subject to the aforementioned U.S. Supreme Court case. The portion of that case which is still ongoing is "that portion of the case which claims that the waters of Glacier Bay ... belong to the state" as decided by another U.S. Supreme Court case involving Idaho, which says that the state came into the Union on equal footing with all other states and, thus, would have jurisdiction over its lands and waters. REPRESENTATIVE WEYHRAUCH pointed out that HB 24 has nothing to do with "the buy-out program, the compensation program, the closure of Glacier Bay proper, or the quiet-title action." He said that he introduced HB 24 because then-U.S. Senator Frank Murkowski had introduced a bill - S. 501 - that required, under Section 3, subsection (b), for the Secretary of the Interior and the State of Alaska to cooperate in the development of a management plan for the regulation of commercial fisheries in the outer waters of the park in accordance with existing federal and state laws and any applicable international conservation and management treaties. He noted that the international conservation and management treaties that are not subject to this bill include "the International Pacific Halibut Commission, and the U.S./Canada salmon treaty." Number 0540 REPRESENTATIVE WEYHRAUCH said that HB 24 is intended to ensure that any co-management agreement with "a sovereign" - meaning the U.S. government or a tribal entity - would be reviewed and approved by the State of Alaska, through the legislature. This review would ensure that before Alaska cedes any jurisdiction over its right to manage the fisheries and natural resources of the state, the legislature approves it. He rephrased the goal of the legislation as being, "We would not cede any jurisdiction over our resources, to another sovereign - or entity claiming sovereignty - by contract, which we did not do by constitution or state law." In response to a question, he remarked that the state has the basic right, under the U.S. Constitution and Alaska State Constitution, to manage its own "natural resources and waters and lands" without interference from another "sovereign." REPRESENTATIVE WEYHRAUCH noted that CSHB 24(RES) focuses specifically on the dispute involving Glacier Bay National Park and Preserve; it would add a provision that would ensure that the State of Alaska and the National Park Service would not enter into a co-management agreement of fish and game in the navigable waters within or adjoining Glacier Bay National Park and Preserve unless the legislature has approved that agreement by law before it takes place. By injecting the legislature into the process in this manner, he opined, it would be making a policy statement that the legislature wants the state to maintain its jurisdiction over commercial fisheries in that area. He added that he wanted to ensure that any co-management agreement does not cede the state's jurisdiction, because of the potential negative precedential effect it would have on other state waters, lands, fisheries, and natural resources. He offered that HB 24 is a very narrow bill pertaining to co- management agreements between the state and the National Park Service. CHAIR McGUIRE asked whether HB 24 would violate the separation of powers [doctrine]. REPRESENTATIVE WEYHRAUCH relayed that legislation passed in 1997 - SB 178 - which pertained to the purchase of an office building in Anchorage by the Alaska Housing Finance Corporation, had within it a provision requiring that the legislature approve the agreement before it went into effect. Specifically, it said: "This section constitutes the review and approval required by AS 18.55.100(d)", which in turn read in part: (d) Notwithstanding (a)(7) and (15) of this section, a proposed public building project shall be submitted by the corporation to the legislature for review. The corporation may proceed with the public building project only if it is approved by law. REPRESENTATIVE WEYHRAUCH observed that via that past legislation, the legislature and the governor have allowed statutory language that entails the review of a contract. "That's a contract lease, this is a contract for co-management; it's the same thing, and there is precedent for this kind of an agreement," he opined. CHAIR McGUIRE said that although she sees the analogy between contracts, she disagrees because an agreement to manage resources is different from an agreement to buy a building. She asked for comments from the drafter regarding separation of powers. Number 0920 GEORGE UTERMOHLE, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, explained that separation of powers becomes an issue because, under the [Alaska State] Constitution, the legislature has been given the power to make law, and the governor has been given the responsibility of exercising those laws. Once the legislature has enacted a law, the issue then becomes to what extent can the legislature impair the executive branch's discretion to implement a law that has been assigned to it by the legislature. There are numerous incidents in statute wherein the legislature has given authority to an executive branch agency to perform a certain function, but withholds the agency's ability to implement "that agreement" without prior legislative approval. MR. UTERMOHLE said that there has been litigation over such situations. In some cases, the courts have struck down legislative involvement in areas where executive branch discretion is at issue; in other cases, the courts have upheld the legislature's involvement. There are two examples of where the legislature has attempted to hold to itself certain authority to control executive branch discretion. MR. UTERMOHLE said that the first was the 1976 [Alaska Supreme Court] case, Bradner v. Hammond, in which the legislature attempted to require the governor to submit to the legislature for confirmation certain names for sub-cabinet positions. The court looked at that case in terms of separation of powers, and described the case in separation of powers terms, but ultimately made its decision based on other provisions of the [Alaska State] Constitution which specifically provided that certain executive branch officials are subject to confirmation but only those officials. Thus the court found that the legislature had exceeded its authority in attempting to require that additional executive branch officers be subject to confirmation. MR. UTERMOHLE said that the 1980 [Alaska Supreme Court] case, State v. A.L.I.V.E. Voluntary, arose because the legislature attempted to control the adoption of regulations by state agencies. In that case, although the court acknowledged that the legislature can annul regulations if it so chooses, the court nonetheless struck down the actions of the legislature, not based on separation of powers, but because the legislature chose the wrong avenue in which to annul the regulations in question. Those regulations that the legislature attempted to annul are, in fact, law. The legislature has no authority to change law except by the enactment of laws itself; this did not happen in the A.L.I.V.E. Voluntary case. Number 1115 MR. UTERMOHLE reiterated that there have been cases in which the legislature's attempt to require its approval of executive branch actions has been upheld. The 1998 Alaska Supreme Court case of Baxley v. State was one in which the legislature approved amendments to a contract for the Northstar oil leases; the legislature's action was upheld because it approved the contract amendments via legislation. "Another case, which is the other area where this occurs, is in regard to negotiating and the approval of contract bargaining agreements with ... state labor unions," he added. The executive branch has the authority to enter into collective bargaining agreements; however, those agreements do not take effect until the legislature has approved them by law, through the appropriation process. This provision has been upheld and enforced in numerous Alaska Supreme Court cases. MR. UTERMOHLE said that there are no cases on point that actually say that "we can't do what's attempting to be done" via HB 24. The cases in which legislative approval of certain agreements has been upheld were [not] brought to the Alaska Supreme Court on a challenge to the separation of powers doctrine itself. He added: So we don't know ... how much of a risk that is, if ... the issues in those cases were to be challenged on a separation of powers doctrine specifically, but given the available case law, there's nothing to suggest that this ... would exceed the ability of the legislature to require approval of these cooperative agreements [with] the National Park Service. Particularly in the legislature's favor is the requirement in the [Alaska State] Constitution that the legislature has the duty to provide for the conservation, development, and utilization of the resources of the state, by law. CHAIR McGUIRE asked why there wasn't a fiscal note from the Department of Law. REPRESENTATIVE WEYHRAUCH said he did not know. REPRESENTATIVE GRUENBERG pondered whether the governor would have any concerns from a policy point of view about requiring an executive branch agreement to be approved be the legislature. He said he wants to know whether the governor intends to veto HB 24 if it passes the legislature. Number 1353 REPRESENTATIVE HOLM asked: Did not Alaska reserve the right to be responsible for it's own resources at the time of statehood? REPRESENTATIVE WEYHRAUCH opined that it did. REPRESENTATIVE HOLM asked why all navigable waters were not included in HB 24. REPRESENTATIVE WEYHRAUCH offered, "Because this bill's easier for me to chew." REPRESENTATIVE GARA posited that there might be times when the state will want to enter into an agreement with the federal government because that agreement would be beneficial for the state. Even in those instances, he surmised, under HB 24, the legislature would still have to approve the agreement. For example, what if there is the possibility of entering into an agreement that gives the state more authority to manage its resources. Why should there be requirement that such a contract be brought before the legislature for approval? REPRESENTATIVE WEYHRAUCH replied that HB 24 is designed to prevent the state from ceding, through contract, any of its authority without that contract first coming before the legislature for approval. That is his main concern, he reiterated, that the state not cede any of it's authority to manage its resources. REPRESENTATIVE GARA said he understood that point, but remarked that the opposite it true too: HB 24 would prevent the federal government from giving more authority to the state unless such a contract is approved by the legislature. He elaborated: Wouldn't we now prevent the federal government ... from saying in, let's say, May, to the Board of Fisheries, "Here, we'll let the state manage fish and game; we'll let them do it today," but actually the fishermen then miss that whole summer season of fishing because the legislature doesn't meet 'til next January. ... Are we not preventing them from giving us things that we want, as well as taking things away? Number 1562 REPRESENTATIVE WEYHRAUCH replied: The only ... place I know that exists right now is in Glacier Bay proper, where the federal government has passed a law allowing the National Park Service to close commercial fisheries in Glacier Bay and manage the methods, means, ... areas, and fisheries that can be restricted. This does not have to do with those waters in Glacier Bay. This is simply on the outside, where no management regime like that exists at all. This is only in the outside waters of Glacier Bay proper - adjoining Glacier Bay. REPRESENTATIVE GARA surmised, then, that HB 24 doesn't apply to the inside waters of Glacier Bay. REPRESENTATIVE HOLM asked: "When did the state ... agree to give up its sovereignty and give up its rights over its own waters and its resources to the federal government? Was it through that federal law that was passed? Did we agree to that law, or was it just passed and now we succumb under that law?" REPRESENTATIVE WEYHRAUCH replied: "The law was passed at the request of [U.S.] Senator Stevens, the ... state has not challenged the law, and the state did not intervene in ... the lawsuit that was filed by [the] Alaska Wildlife Alliance." In response to a further question, he confirmed that HB 24 will not have any effect on the ongoing litigation involving the "donut holes" waters. REPRESENTATIVE GARA asked whether it is correct to say that currently, the federal government has asserted the authority to prevent the state from allowing fishing, under the state's fish and game rules, within the waters of Glacier Bay. REPRESENTATIVE WEYHRAUCH said yes. REPRESENTATIVE GARA then said: So, if there were a chance for us to get that authority back by contract, I think we would certainly want to do that. And then -- so the last exchange we had was that, well, this only affects waters adjoining Glacier Bay, ... but the language that I have before me says within "the navigable waters within or adjoining Glacier Bay". Number 1738 REPRESENTATIVE WEYHRAUCH said that [HB 24] is intended to be coincident with the S. 501 co-management requirement that then- U.S. Senator Frank Murkowski had adopted. If there is a contract that allows the state to again manage commercial fisheries in Glacier Bay and reopen those fisheries, it would be a violation of federal law, he remarked, because federal law has closed those waters and restricts the commercial fishing that can occur. Thus, he added, both the state and the federal government would be subject to an injunction. REPRESENTATIVE GARA asked whether S. 501 strictly and completely prohibits the National Park Service from allowing any fishing, or does it give the National Park Service the discretion. REPRESENTATIVE WEYHRAUCH said, "It prohibits it." The law that passed Congress, he added, restricts commercial fishing in Glacier Bay to certain areas. It only allows trollers, halibut fishermen, and Tanner crab fishermen who have obtained a lifetime-access permit to continue to fish inside Glacier Bay proper and only in those restricted waters. REPRESENTATIVE GARA said his concern is this: To the extent we can get the authority back to manage fish and game by contract - maybe that would require a statutory change on the federal government's part to allow us to do that and to allow the [National] Park Service to do that with us - but to the extent that opportunity becomes available, why would we not want to take advantage of it. REPRESENTATIVE WEYHRAUCH replied: We should; I believe we have it as a legislative priority of the executive branch. And we could put that in here, that it is the policy of the ... legislature to ask the administration to attempt to do everything possible to pass us a bill through Congress that reopens Glacier Bay to commercial fishing. ... I think that would be a great friendly amendment to this bill; that would be "a shot heard 'round Congress" too. Number 1838 REPRESENTATIVE GRUENBERG said he'd never seen a bill drafted as this one is in the first sentence [starting on page 1, line 6]; it's drafted in the negative. Normally, he elaborated, a bill is drafted in the positive, for example, "The state must seek legislative approval before entering into such an agreement". He asked whether Representative Weyhrauch intended to have the bill drafted in the negative. REPRESENTATIVE WEYHRAUCH explained that when he'd called Mr. Utermohle, he'd started his sentence with, "I don't want ...," and offered that perhaps that is why HB 24 was drafted as it was. He again reiterated that he did not want a co-management agreement with the federal government that allows the state to cede jurisdiction of its resources. REPRESENTATIVE GRUENBERG suggested putting that sentiment in the positive. He asked Mr. Utermohle whether there is a reason why HB 24 shouldn't be written in the positive. MR. UTERMOHLE explained that HB 24 is drafted in the manner it is in order to ensure that there is no question that there is no other authority under other provisions of statute whereby the state could enter into a cooperative agreement with the National Park Service. REPRESENTATIVE GRUENBERG opined that if such is the case, then HB 24 must be drafted in the positive; otherwise, it's a negative of a negative. REPRESENTATIVE HOLM offered the following analogy: If I own my own house, and I lock it, and ... you present me with a contract for the use of my house, in order to unlock my house, ... then don't I admit that you have the authority over my house if I accept your contract? REPRESENTATIVE WEYHRAUCH said, "I guess for purposes of unlocking it, yes." REPRESENTATIVE GRUENBERG said, "No, I don't think it follows, because you can't do it without your permission." REPRESENTATIVE HOLM said, "Vis-a-vis, it's written in the contract that way." Number 1962 STEPHEN WHITE, Assistant Attorney General, Natural Resources Section, Civil Division (Juneau), Department of Law (DOL), said that HB 24 presents two constitutional issues, the first of which has already been explored by the committee, that of separation of powers. He said that he agrees with Mr. Utermohle that this is an unsettled area, that there is no case law that would either say yes or no. But every time that the legislative branch gets involved with an executive branch power, or visa versa, the issue of separation of powers has to be raised. Even though the legislature has adopted statutes which allow the legislature to review contracts, those haven't been challenged; there's been no ruling on them. MR. WHITE said that sometimes contracts involve the power to appropriate money; for example, in the collective bargaining agreements. That's a legislative power, so in those instances, he opined, the legislature is merely asserting its own power. He said that negotiating contracts regarding the management fish and game is typically considered an executive branch power; thus for the legislature to go in and review those contracts raises a separation of powers issue. He suggested that there may be a simple way to remove that constitutional issue while maintaining the sponsor's intent. MR. WHITE explained that the second constitutional issue, which has not yet been addressed, is one called the "impairment of contracts" clause under the federal and state constitutions. Basically, he explained, it says that the legislature can't pass a law that impairs, or repeals, or in any way interferes with an existing contract. On that point, he referred to Section 2, subsection (b), of HB 24, and noted that it gives the legislature the ability, after the fact, to rescind a contract - an agreement - entered into by the federal government and the state. MR. WHITE acknowledged, however, that according to the Alaska Department of Fish and Game (ADF&G), there are no existing contracts of that nature. Therefore, he opined, that while that portion of HB 24 might raise the aforementioned constitutional issue, it may not actually even have any value. Removing that language, he predicted, would remove the constitutional issue. On the other hand, if the legislature is determined to keep that provision, he said, he thinks there is a way to strengthen it and make it more defensible from a constitutional challenge. Number 2058 MR. WHITE added: "Do I think that either of these things are defective in terms of provoking a recommendation for veto by my department? The answer is no. The area of law is unclear. I'm here to suggest ways to remove those constitutional problems or maybe strengthen them from any attack." REPRESENTATIVE GRUENBERG said he did not see how the aforementioned provision would impair an existing contract unless the contract was entered into before the effective date of the bill. MR. WHITE said that is correct. REPRESENTATIVE GRUENBERG surmised, then, that "we're only talking about a month or two here." He asked Mr. White whether he is anticipating any contract being agreed upon before the bill could go into effect. MR. WHITE said no. REPRESENTATIVE GRUENBERG asked Mr. White to elaborate on his suggestion that the separation of powers issue could be resolved. MR. WHITE offered: One way you could do it is, ... instead of having a legislature review for whether the department has ceded disciplinary power to manage ... fish and game, you could basically say the department may not enter (indisc.) a contract of this type which does that. So you put the standard up front; any contract that does that could be voided by any court. So it sets your concern up front, it sets a standard by which the executive branch can act or not act, and it ... relieves you of the obligation - of the duty - to review and make that determination yourself as a legislature. REPRESENTATIVE GRUENBERG said that they could certainly do that, and then the governor could simply introduce a bill in the following legislative session allowing him to sign the agreement. Number 2180 MR. WHITE said that under his suggested language, he did not anticipate the governor having to undertake any procedure. His proposal would basically say that the department doesn't have the authority to enter into a contract that cedes authority, but if the department did so, that contract would be void. REPRESENTATIVE GRUENBERG opined that if the language currently in HB 24 is unconstitutional, then Mr. White's suggestion is no more constitutional, because the governor would then have to submit a bill authorizing the contract, and such would be subject to the legislative process required to pass any legislation. MR. WHITE argued that his suggestion does not entail any legislative action, it merely establishes a standard, up front, by which a contract could not be entered into by the department. CHAIR McGUIRE asked Mr. White to provide to the committee, at the bill's next hearing, his suggested language and any documentation substantiating his assertions. REPRESENTATIVE GRUENBERG asked Mr. White whether he is speaking on behalf of the administration. MR. WHITE clarified that he is speaking on behalf of the Department of Law (DOL), and perhaps on behalf of the Department of Fish and Game (ADF&G). CHAIR McGUIRE asked Mr. White to provide a fiscal note from the DOL, even if it is a zero fiscal note. REPRESENTATIVE GARA asked whether the issue of separation of powers with regard to contracts pertaining to management of fish and game has been resolved in any other state's supreme court. MR. WHITE indicated that he has not yet done that research, but is intending to. REPRESENTATIVE GARA opined that such would be a prudent thing to do. MR. UTERMOHLE indicated that he has not yet done that research either; his research has been confined to the Alaska State Constitution. TAPE 03-36, SIDE B Number 2360 REPRESENTATIVE GRUENBERG, referring to S. 501, noted that Section 3, subsection (c)(2), says: "Nothing in this Act shall enlarge or diminish Federal or State title, jurisdiction, or authority with respect to the waters of the State of Alaska, the waters within Glacier Bay Park and Preserve, or tidal or submerged lands." Does that not answer the question that that bill was not intended to affect state sovereignty, he asked. MR. WHITE replied, "Well, the bill may not have intended to, but the parties could separately agree to give it away, ... and that's what Representative Weyhrauch's concern is." CHAIR McGUIRE announced that HB 24 would be held over.
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