Legislature(2003 - 2004)
04/28/2003 02:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 24 - AGREEMENTS ON MANAGEMENT OF FISH AND GAME Number 2013 CHAIR McGUIRE announced that the next 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 2018 REPRESENTATIVE BRUCE WEYHRAUCH, Alaska State Legislature, joint sponsor of HB 24, summarized his understanding from the previous hearing. He drew attention to language proposed by [Stephen White of the Department of Law] to address some concerns he had; it read [original punctuation provided but some formatting changed]: SUGGESTED LANGUAGE FOR CS FOR HOUSE BILL NO. 24(RES) (This will remove the separation of powers issue and will strengthen the bill against attack under the impairment of contracts clauses.) Section 1. AS 16.20.010 is amended by adding a new subsection to read: (c) The department or a board may not enter into an agreement with the National Park Service that cedes to the federal government the state's traditional authority to manage fish or game in the navigable waters within or adjoining Glacier Bay National Park and Preserve. In this subsection, "authority to manage" means authority to regulate the method, manner, means, time, or place of taking of fish or game or to regulate the amount of fish or game that may be taken. Section 2. The uncodified law of the State of Alaska is amended by adding a new section to read: STATUS OF EXISTING AGREEMENTS REGARDING MANAGEMENT OF FISH AND GAME IN THE NAVIGABLE WATERS WITHIN OR ADJOINING GLACIER BAY NATIONAL PARK AND PRESERVE. An agreement, or a severable portion of an agreement, between the Department of Fish and Game, the Board of Fisheries, or the Board of Game and the National Park Service that was entered into before the effective date of this Act and that cedes to the federal government the state's traditional authority to manage fish or game in the navigable waters within or adjoining Glacier Bay National Park and Preserve is void on and after July 1, 2004. REPRESENTATIVE WEYHRAUCH informed members that he'd asked George Utermohle, legislative drafter, and Ted Popely to talk to the committee. The committee took an at-ease from 4:44 p.m. to 4:45 p.m. Number 2090 REPRESENTATIVE WEYHRAUCH told members that one concern he's had is that the state's authority, referenced in Section 1, subsection (c), of Mr. White's proposed language, is a constitutionally recognized one, not [just] a traditional one. He said that the central premise of the bill is to ensure that the state doesn't cede, by contract, the management rights it holds by authority under the constitution. He suggested that if the word "traditional" is stricken, the language will basically mirror the bill. CHAIR McGUIRE agreed. Number 2149 REPRESENTATIVE OGG noted that although what's before the committee focuses on Glacier Bay National Park and Preserve, the same issues apply in his district, which has a national park "across the way from us." He suggested perhaps extending the legislation to apply to national monuments and other federal lands as well, so that it could correct potential problems in his district. REPRESENTATIVE WEYHRAUCH explained that S. 501 was introduced in Congress by then-U.S. Senator Frank Murkowski to require that agreements be entered into by the State of Alaska and the Department of the Interior for co-management of fisheries in the outside waters of Glacier Bay. While there may be concerns over a potential co-management agreement between the National Park Service and the State of Alaska in the Kodiak area, there is no specific requirement as now exists for Glacier Bay National Park and Preserve. He suggested, however, that it is in the state's best interest to prevent, statewide, the kind of co-management agreements wherein the state cedes, by contract, its authority. He said he wouldn't object to putting [language that applies statewide] in the bill. CHAIR McGUIRE offered her understanding that the intent behind the original version of HB 24 was to include all navigable waters. Number 2229 REPRESENTATIVE WEYHRAUCH specified that the original intent was to include all co-management agreements over "all waters and, basically, resources in the entire state of Alaska." He'd supported [CSHB 24(RES)], however, because sometimes the state and a sovereign entity have an agreement over a fish weir to count fish, for example, or have an agreement to hire a tribal entity or federal [agency] with regard to some resource. In those instances, the state and the resource users benefit, and there is no ceding of jurisdiction. He suggested that that isn't the kind of agreement the legislature wants to review on a case-by-case basis. It's only the central, critical kinds of issues where there potentially is a ceding of jurisdiction, with respect to the right and ability to manage resources, that the legislature should be concerned about, he concluded. CHAIR McGUIRE posited that the committee supports the sponsor's goal, and that the only debate she's heard from members is the question, "Why not make it broader?" She suggested speaking clearly and concisely [in the statute]. She asked how a court will interpret the existence of a House bill that originally spoke on a broader level about navigable waters and the state's rights, followed by committee discussion and a subsequent narrowing of that. REPRESENTATIVE WEYHRAUCH acknowledged the difficulty of predicting how a court would interpret something, but suggested that a reasonable interpretation would be that the legislature considered it and decided to make it more restrictive. Therefore, he opined, a court wouldn't read [the proposed statute] expansively to include any other area outside the Glacier Bay National Park and Preserve, because the legislature specifically knew about a broad intent and then amended the bill to make it narrower. Number 2332 REPRESENTATIVE SAMUELS asked about replacing "Glacier Bay" with the word "any" so that it would read "any national park or preserve". He also suggested the word "a". REPRESENTATIVE WEYHRAUCH said it had begun broad and that he'd had no problem with it. He emphasized his concern: that Alaska not cede to the federal government its jurisdiction over management of fish and game. CHAIR McGUIRE asked Mr. Popely whether he had any suggested language, and whether saying "any national park and preserve" would accomplish the intent. Number 2371 TED POPELY, Majority Legal Counsel, Alaska State Legislature, answered that either that or similar language would be effective, to his belief. With regard to broadening the language, he said it may actually be required, since there is a constitutional mandate that [legislative Acts] conform to the local and special Acts provision; this could raise an issue about whether this is a special or local provision, as opposed to one that's generally applicable to all federal preserves. TAPE 03-45, SIDE B Number 2380 MR. POPELY added that he believes broadening it probably should have been done originally, in fact. REPRESENTATIVE WEYHRAUCH emphasized that it is fundamental management issues and disputes that are at issue here, rather than examples like the one he'd given of a fish weir. CHAIR McGUIRE suggested it could be made clear through testimony both in this committee and on the House floor that it isn't the intent to be unnecessarily burdensome for small, technical agreements worked out over things like fish wheels. Number 2355 REPRESENTATIVE WEYHRAUCH noted that Mr. Popely had suggestions about the word "traditional" in the proposed language. MR. POPELY suggested that removing the phrase "the state's traditional" [in subsection (c)] would cause the language proposed by Mr. White to more accurately reflect the sponsors' intention. He explained that the state's traditional authority to manage fish or game seems to be a fluid concept in Alaska, one that is continually litigated and that probably shouldn't be in the statute as written; it would be open to a wide spectrum of interpretations as to whether the department was conforming to the statute with regard to when it is ceding the state's traditional authority to manage fish and game. MR. POPELY offered his understanding that Representative Weyhrauch's point in proposing this bill is specifically to preclude the state's ceding any of its constitutional authority, "as opposed to some interpreted or manufactured authority that's always subject to some legal interpretation"; he said removing those three words - "the state's traditional" - would reflect that intention well in both Sections 1 and 2 [of Mr. White's proposed language]. Number 2250 CHAIR McGUIRE moved to adopt as a work draft the document titled "Suggested Language for CS for House Bill No. 24(RES)" [text provided previously], with the following amendments: In Section 1 after "federal government", delete "the state's traditional"; delete "Glacier Bay"; insert after the word "Park" the letter "s"; and insert after the word "Preserve" the letter "s". In Section 2, delete "Glacier Bay"; insert after the word "Park" the letter "s"; and insert after the word "Preserve" the letter "s". CHAIR McGUIRE continued with the motion, specifying that the title, though not part of the written document, would be [included in the work draft after being] amended as follows: delete "Glacier Bay"; insert after the word "Park" the letter "s"; and insert after the word "Preserve" the letter "s". REPRESENTATIVE HOLM suggested inserting "any" after "within or adjoining". CHAIR McGUIRE accepted that as a friendly amendment, specifying that it would read "any national parks or preserves". REPRESENTATIVE WEYHRAUCH stated his preference for "and" instead of "or" so that it is broader. CHAIR McGUIRE concurred, specifying that the title portion would read "or adjoining any national parks and preserves". Number 2198 REPRESENTATIVE GRUENBERG proposed a friendly amendment, to retain the word "the" so that [both Sections 1 and 2] would read "cedes to the federal government the authority". He acknowledged that this was in contrast to Mr. Popely's suggestion to delete "the state's traditional". CHAIR McGUIRE, calling it a good, friendly amendment, specified that deleted would be "state's traditional" [in both sections]. CHAIR McGUIRE asked whether there was any objection [to the proposed work draft, as amended, including the title change]. Number 2165 REPRESENTATIVE OGG [objected for discussion purposes], suggesting that there were additional amendments to discuss. For example, national wildlife refuges sometimes receive wilderness status for some sections on shores or bays. There are also national monuments and national forests. He inquired about the [ability of the Alaska Department of Fish and Game] to make agreements with "those folks." REPRESENTATIVE WEYHRAUCH said that that is the problem - where to cut it off - and that it potentially is a significant problem which the legislature should deal with. REPRESENTATIVE OGG suggested adding those entities he'd mentioned. REPRESENTATIVE WEYHRAUCH said he wasn't sure how to amend the bill to do that. He said he'd thought about it a long time, and just needed "something small I could chew." He suggested perhaps Representative Ogg could provide an amendment to insert later after discussion. He added that it is a huge problem that he doesn't know how to deal with. Number 2094 REPRESENTATIVE HOLM indicated his staff had just suggested defining "preserve" to include all the entities that the committee wants to include. REPRESENTATIVE WEYHRAUCH proposed just saying "with the federal government"; that would include parks, preserves, forests, and everything else. He also suggested it could say "any federal lands or waters". Number 2065 CHAIR McGUIRE said she liked it. She announced that a friendly amendment to the conceptual amendment was before the committee, and reworded it slightly to be "any federal lands and waters". Number 2049 REPRESENTATIVE GARA objected for discussion purposes, expressing concern about broadening it to where the legislature will have to confirm a large number of agreements about which it knows very little at this point. When the bill was limited to Glacier Bay National Park and Preserve, he said, "I think we all sort of had our arms wrapped around the problem." Remarking that the sponsor had solved one problem, he recalled an earlier hearing and noted that the bill would have prevented [the state] from contracting with and accepting authority from the federal government at times. He explained: The sponsor has now said no, we just want to keep the state from giving away authority. We'll accept authority, but we don't want to give away any authority; so that's the "ceding" language in here. So that solves a good bit of the problem, and I appreciate that. But now let's focus on some areas where the state accepts authority from the federal government. ... Let's think through how many agreements there might be out there that we're going to have to confirm if we broaden the language. And ... there are places on federal land, I suppose, [where] we conduct fish and game law enforcement activities, and I'm wondering whether, if we wrote the bill as broadly as this, we might now need legislative approval to do that. ... I'm just worried that now that we're going to affect ... all sorts of federal lands within Alaska ..., with this provision, that there might be a whole bunch of agreements out there that the legislature's going to have to confirm that we really didn't mean to confirm. Number 1966 REPRESENTATIVE WEYHRAUCH asked Ron Somerville to talk about this issue. MR. POPELY first offered his belief that the definition provided by Mr. White's language specifically defines the authority to manage to include regulating methods, manner, means, time, or place of taking. Those are the traditional aspects of management activities for which he thinks the sponsor is trying to preclude contracting with the federal government, Mr. Popely indicated, as opposed to law enforcement, counting activities, or other ministerial activities for which the state continues to want to contract with various federal or other organizations. Number 1935 REPRESENTATIVE WEYHRAUCH pointed out that there are co- management agreements on waterfowl and bowhead whale hunting, for example, between the state and the federal government. He said he'd hate to think management of fish and game couldn't be facilitated for citizens' interests through legislative review of all those smaller kinds of agreements. Number 1904 RON SOMERVILLE, Member, Board of Game, noting that he has been assigned to work with the House and Senate majority on resource issues, said most of the agreements with federal agencies involve cooperative programs, but don't involve authority. These are agreements for enforcement work or cooperative counting programs, for instance, but rarely include anything related to the basic authority of various agencies, he indicated. With regard to authority being ceded to one agency or another, he said he doesn't see that very often - only where there may be disagreement with the Office of the Attorney General over what traditional authorities there might be. He added his belief that the legislature already would be required to deal with any authority that was going to be given to other agencies. MR. SOMERVILLE suggested the purpose here, when Congress has mandated that a cooperative program be established, for example, is to make it clear to the [administration], as a matter of policy, that it cannot cede any management authority or authority to regulate. He said the key point he'd seen [in the proposed language] is defining "authority to manage", which is regulating "the following activities". He said he doesn't think it will be often that the legislature will be called upon to do that. Number 1841 CHAIR McGUIRE interpreted the foregoing to mean that Mr. Somerville doesn't see a problem with using the broader term "federal lands and waters". MR. SOMERVILLE affirmed that he doesn't see that as a problem, although he said it might broaden the debate to say any federal withdrawals, because there are a lot of federal withdrawals. He mentioned the BLM [Bureau of Land Management] and said the U.S. Fish and Wildlife Service "is just as difficult to deal with, in many cases, as is the National Park Service." Number 1801 CHAIR McGUIRE asked whether there was further debate on the "second-degree amendment" to broaden the language beyond national parks and preserves to include "federal lands and waters". REPRESENTATIVE OGG noted that the second line [of the proposed work draft] references an agreement with the National Park Service; he suggested it should say "with the federal government" for consistency. CHAIR McGUIRE indicated agreement, noting that it would be required in the title as well. Number 1779 REPRESENTATIVE SAMUELS asked about saying "federal lands and waters" in the title, as opposed to just "federal lands". AN UNIDENTIFIED SPEAKER said, "Just federal lands." CHAIR McGUIRE concurred. She said within the title it would read "navigable waters within or adjoining federal lands". REPRESENTATIVE WEYHRAUCH disagreed with saying "lands" to the exclusion of waters, because there are areas of dispute between the federal government and the State of Alaska regarding which has management jurisdiction over waters, not just lands. He referred to a U.S. Supreme Court case he'd mentioned in the first bill hearing that relates to Glacier Bay waters, "donut hole" waters in the Alexander Archipelago, and "the national forest waters." He said the state recently won that point because the federal government, in its brief, acknowledged that the state has jurisdiction over those waters adjacent to the Tongass National Forest. Number 1706 CHAIR McGUIRE agreed. She announced her intention of withdrawing her amendment and reoffering it incorporating "all of the discussion that we've had here on the record." Number 1693 REPRESENTATIVE GRUENBERG said it sounds as though the committee's intent is to make it broad. He said he was wondering, if the intention is to assert sovereignty, whether sovereignty perhaps should be asserted "in things that would not be within the, quote, 'authority to manage'." He offered deep- sea mining as a possible example and mentioned authority over other types of natural resources. He suggested keeping it as broad as possible to comply with Representative Weyhrauch's desire not to cede any state authority. Then if it needs to be narrowed, that can be done. "If we want to make a statement, let's make a statement," he concluded. Number 1594 REPRESENTATIVE WEYHRAUCH said he thinks that is a great idea as a [policy] statement. He offered to have the drafters create a clean committee substitute (CS), which he'd bring back to the committee. CHAIR McGUIRE agreed, noting that the committee's intent is to broaden it, but no further than the sponsor is comfortable with. REPRESENTATIVE WEYHRAUCH reiterated that the bill had begun broad, and told members that both he and the other prime sponsor [Representative Whitaker] want it broad. CHAIR McGUIRE announced that HB 24 would be held over.
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