Legislature(1997 - 1998)
04/30/1998 01:30 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HCR 13 - MANAGEMENT OF WILDLIFE RESOURCES CO-CHAIRMAN OGAN announced the next order of business was HCR 13, Relating to management of Alaska's wildlife resources. CO-CHAIRMAN OGAN noted that there is a proposed committee substitute, version 0-LS1771\E, Utermohle, 4/22/98, and an amendment. He entertained a motion to adopt the proposed committee substitute. Number 299 REPRESENTATIVE BARNES made a motion and asked unanimous consent to adopt the proposed committee substitute for HCR 13, version 0- LS1771\E, Utermohle, 4/22/98. Number 300 REPRESENTATIVE NICHOLIA asked whether the Department of Law is available. CO-CHAIRMAN OGAN stated the department was invited. CO-CHAIRMAN HUDSON stated the department decided not to show up and reminded the committee members that a motion is on the table. Number 365 REPRESENTATIVE NICHOLIA objected to the motion. A roll call vote was taken. Representatives Barnes, Dyson, Masek, Williams, Hudson and Ogan voted in favor of the motion. Representative Nicholia voted against the motion. Representatives Green and Joule were absent. The motion carried. CO-CHAIRMAN OGAN explained when Alaska became a state it was given the right to navigable waters based on the equal footing doctrine specifically addressed in the Alaska Statehood Act. Navigable waters were transferred to the states in 1953 under the Submerged Lands Act. On page 2, line 25 of the resolution, the citation to the court case was not included because it has not been recorded yet. It is that recent of a case. It is interesting to note that Justice Sandra Day O'Connor in writing the opinion of the United States Supreme Court for United States v. Alaska (___U.S.___(1997)) said, "Ownership of submerged lands -- which carries with it the power to control ... fishing, and other public uses of water -- is an essential attribute of sovereignty ..." He wants to establish via the resolution to the Secretary of Interior that the federal government does not have the right to manage fisheries in navigable waters. CO-CHAIRMAN OGAN made a motion to adopt Amendment 1. It reads as follows: TO: CSHCR 13(RES) Page 3, line 3 Insert "WHEREAS is it the position of the Alaska State Legislature that ANILCA did not specifically preempt state management nor grant specific authority to the Secretaries of Agriculture and Interior to preempt state management of navigable waters and submerged lands." Page 3, line 9 Insert "FURTHER RESOLVED the Alaska State Legislature respectfully requests the U.S. Congress to promptly clarify that ANILCA did not preempt nor diminish state sovereign authorities over its own lands, waters and resources." REPRESENTATIVE NICHOLIA objected. REPRESENTATIVE BILL WILLIAMS asked how would the Katie John case affect the resolution. Didn't it go all the way to the Supreme Court of the United States? he asked. CO-CHAIRMAN OGAN replied the Katie John case went all the way to the Ninth Circuit Court of Appeals. The appeal to the Supreme Court of the United States was denied. REPRESENTATIVE WILLIAMS asked: What is the resolution trying to do? Is it trying to show that the Supreme Court is wrong? The Supreme Court didn't want to hear the Katie John case because there wasn't enough justification. The attorneys indicated that if the Supreme Court didn't want to hear the Venetie case then it is the supreme law of the land. The Supreme Court has already indicated that it doesn't want to hear something similar to what the resolution is asking. What are we doing? he asked. CO-CHAIRMAN OGAN replied the resolution asks Congress to clarify that the Alaska National Interest Lands Conservation Act (ANILCA) did not preempt a state's sovereign authority over its lands and waters. Alaska was clearly given the right to manage its own navigable waters when it became a state. REPRESENTATIVE WILLIAMS replied Alaska was also given the right on the 90-10 split. What happened to that? he asked. It did the same thing that is being discussed now. The federal government can come in anytime it wants and do anything it wants. Just like the state government can go onto state property and do and say anything it wants. He doesn't see the rationale for the resolution. He would like to hear from the Department of Law or the legislature's attorneys. "We always go about saying that we're all not attorneys, but we try to act like it ... some of us," he declared. REPRESENTATIVE BARNES stated she doesn't believe a word that the attorney general says. Just because the Supreme Court did not hear the Katie John case and the 90-10 split doesn't mean that it would not hear them at another time under a different set of facts. In addition, Katie John would only be law under the Ninth Circuit Court of Appeals. It would not be law anywhere else in the country. REPRESENTATIVE WILLIAMS stated, according to what he has been told, if the Supreme Court didn't want to hear the Venetie case, it would be considered the law of the land. Therefore, is Katie John the law now? he asked. REPRESENTATIVE BARNES replied, "No it is not." REPRESENTATIVE WILLIAMS replied he thinks it is. "I don't think we can't just pick and choose anything that we want, Mr. Chairman." CO-CHAIRMAN OGAN stated he has heard Representative Williams say many times that he doesn't want the federal government to manage the state's resources. The resolution is asking Congress to clarify that ANILCA did not intend for a takeover of fish and game, especially navigable waters. He paraphrased the provisions in the resolution. REPRESENTATIVE WILLIAMS stated he could argue any of the cases mentioned in the resolution. Katie John was taken to the Supreme Court, but not heard, so it doesn't mean anything, according to Representative Barnes. Therefore, why wasn't Katie John put in the resolution to give it more credence? he asked. CO-CHAIRMAN OGAN stated Representative Williams can make a motion for an amendment at anytime. REPRESENTATIVE WILLIAMS replied he believes that Katie John is the law of the land because it went to the Supreme Court. CO-CHAIRMAN OGAN replied it wasn't decided by the Supreme Court. The conversation is way off track. The amendment asks that ANILCA did not specifically preempt Alaska's sovereign authority over its lands. REPRESENTATIVE WILLIAMS replied he is not out of order. Katie John specifically talks about submerged lands. CO-CHAIRMAN OGAN replied he didn't say that he was out of order. REPRESENTATIVE BEVERLY MASEK noted Representative Barnes stated clearly that Katie John has not really been addressed or resolved by the courts. She supports the amendment. The language is important to add to the resolution. Number 503 CO-CHAIRMAN HUDSON wondered how the dialogue has moved away from the original resolution, by Representative Al Vezey, of the management of Alaska's wildlife resources to navigable waters. He doesn't feel comfortable with it and doesn't believe there are the votes to move it from the committee. He wants to hear from the original sponsor of the resolution. He also wants to know where the changes took place. Was this something that Co-Chairman Ogan did independently? he asked. CO-CHAIRMAN OGAN replied he asked the original sponsor and he did not object to changing the resolution into what it is now. In light of the shortness of the session, he took advantage of using it as the vehicle for a resolution. Number 526 REPRESENTATIVE NICHOLIA stated regardless of how it is put Katie John is the law, which is why the state is in its predicament. There is a deadline in front of the state. There is clear evidence that it is the law. Number 540 CO-CHAIRMAN OGAN replied the majority opinion of the court begged for a legislative solution. The resolution is simply asking Congress to clarify that ANILCA did not preempt a state's sovereign authority. There are reams of case law in the Supreme Court of the United States that back up the assertion. He believes, if the state can get its day in court, that the Supreme Court would rule in favor of it. Justice Sandra Day O'Connor isn't going to reverse her opinion that submerged lands carry the power to control fishing, he declared. CO-CHAIRMAN OGAN noted at this time there isn't a quorum to take further action on the bill. REPRESENTATIVE NICHOLIA stated she thinks that Congress has clarified its position on a number of times. According to Alaska's congressional delegation, the Katie John case is in front of the state and it needs to resolve the issue before the deadline. She does not see Congress coming forth and clarifying the issue. CO-CHAIRMAN OGAN replied he hears what Representative Nicholia is saying. CO-CHAIRMAN OGAN called for a brief at ease. CO-CHAIRMAN OGAN called the meeting back to order and adjourned the meeting to the call of the chair. TAPE 98-54, SIDE A Number 000 CO-CHAIRMAN OGAN called the House Resources Standing Committee meeting back to order at 5:01 p.m. Members present at the call to order were Representatives Ogan, Barnes, Dyson, Green and Masek. CO-CHAIRMAN OGAN noted that there is a motion to adopt Amendment 1 on the table. Number 010 CO-CHAIRMAN OGAN made a motion to amend Amendment 1 to include the language ", resources therein" after the word "waters" to the amended portion on Page 3, line 3. There being no objection, it was so adopted. CO-CHAIRMAN OGAN asked whether there is any objection to the motion to adopt Amendment 1, as amended. There being no objection, it was so adopted. Number 024 REPRESENTATIVE BARNES made a motion and asked unanimous consent to move the proposed committee substitute for HCR 13, version 0- LS177\E, Utermohle, 4/22/98, as amended, from the committee with individual recommendations and the attached zero fiscal note. There being no objection, CSHCR 13(RES) was so moved from the House Resources Standing Committee.
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