Legislature(1999 - 2000)
03/24/1999 02:17 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
HB 109 - GLACIER BAY NATIONAL PARK Number 0038 CO-CHAIR SANDERS announced that the next order of business was HOUSE BILL NO. 109, "An Act relating to management of fish and game in Glacier Bay National Park and Preserve and navigable waters." [Before the committee was CS HB 109 (WTR).] CO-CHAIR SCOTT OGAN, sponsor, introduced HB 109. He explained that the action that the federal government has taken, which includes the takeover not only of the navigable waters in Glacier Bay National Park and Preserve, but also navigable waters outside the park boundary, is serious. The Submerged Land Act of 1953 was explicit in giving the states the right to manage the navigable waters within their boundaries. The Alaska Statehood Act was specific in addressing the Submerged Land Act of 1953, in clearly giving the state the title on equal footing with the other states to manage submerged land. Co-Chairman Ogan said that the federal government's action is an egregious undermining of the state's sovereign rights to manage its resources, which has been confirmed by the Governor's lawsuit. Co-Chairman Ogan stated, "We heard today on the news that there was a congressional action where Senator Murkowski has got a moratorium passed out of the Senate, and it remains to be seen what's going to happen on the House side and with the Presidential veto; so, for a change, we ... all seem to be singing off the same sheet music." Number 0257 CO-CHAIR OGAN further stated that there are two parts of HB 109. The first part says that the state of Alaska does not assent to federal control. In AS 16.20.010 it refers to legislative recognition with regards to National Bird and Wildlife Refuges, and it says that the state of Alaska does not assent to federal control in those areas. In 1960, a year after Alaska became a state, AS 16.20.010 was written. There is something written in statute that says that the state of Alaska does not assent to federal control and so Glacier Bay National Park was added. In addition, the state of Alaska also has the power to appropriate. Generally, the supreme court has upheld that the legislature has the power of appropriation and nobody else does. In HB 109 it simply says, "the state may not expend funds to adopt, enforce, or otherwise assist in the implementation of the federal regulatory program." Also included is language out of the U.S. Supreme Court case, New York v. United States (1992), which states, "the federal government cannot commandeer the lawmaking processes of the state to compel the state to enact and enforce the federal regulatory program." Number 0498 REPRESENTATIVE WHITAKER referred to the proposed amendment by the sponsor [in committee packet], wondering what it deletes. CO-CHAIR OGAN explained that the amendment does not delete anything, but adds language of intent to show that the state of Alaska does perform a better job of management than the federal government does. The Attorney General has not reviewed the language, but that is being worked on presently. Number 0658 CO-CHAIR OGAN made a motion to adopt Amendment 1, which reads: Page 1, following line 3: "* Section 1. FINDINGS. (a) The legislature finds that (1) sustained yield management of fish and game in accordance with the mandate of the Constitution of the State of Alaska assures the maintenance of healthy populations of fish and game and provides the opportunity for a wide range of uses of the fish and game resources; (2) the State of Alaska recognizes the value of Glacier Bay National Park and Preserve, one of our nation's crown jewels; (3) the state has demonstrated competence by state managers in assuring healthy, viable populations of fish and game within the Park and Preserve, with no deleterious effects on the resources or the aesthetic appeal of the area, and the State desires to continue to do so; (4) current uses of the Park including limited and controlled commercial and subsistence uses, constitute integral parts of the Park and reflect precisely the original purposes for the executive withdrawal that created the Park; (b) The legislature further finds that (1) the State of Alaska is the only entity responsible for and capable of assuring the sustained yield management of fish and game throughout the entire state; (2) the multitude of federal entities that have authority to provide for the management of fish and game in Alaska have jurisdiction over only a patchwork of land and water in the state and operate under a variety of legal mandates regarding fish and game; (3) only the State of Alaska bears the public trust responsibility of providing a single, comprehensive scheme of sustained yield management for fish and game to compensate for diverse management objectives pursued by the many federal agencies; (4) the State of Alaska has consistently demonstrated a greater sensitivity than the federal agencies to sound conservation principles, which, for example, resulted in a dramatic recovery of Alaska's fisheries following statehood in 1959 after a lengthy period of misguided federal management; (5) the state is committed to continuing its public trust responsibility for the navigable waters within the Park and Preserve; (6) it is not in the state's best interest to acquiesce and assist in federal takeover of Park fisheries management in the face of pending litigation challenging federal preemption. Page 1, line 4: Delete "Section 1." Insert "Sec. 2." Page 2, line 3: Delete "Sec. 2." Insert "Sec. 3." CO-CHAIR SANDERS asked whether there was any objection. There being none, Amendment 1 was adopted. Number 0711 ROD ARNO, 35-year resident of Palmer, testified via teleconference from Palmer on behalf of himself. He stated that he supports the passage of HB 109. As the president of the Alaska Outdoor Council he has spent a considerable amount of time testifying and looking at past litigation concerning who has the authority to manage fish and game in Alaska. The Alaska Outdoor Council considered taking the issue up when the current Administration dropped the State v. Babbitt suit. In the Totemoff case it states that the Submerged Land Act of 1953 gives the state management of its navigable waters and the police power belongs to the state. Mr. Arno said that Glacier Bay National Park is a biosphere reserve. The goal is to promote economic development and maintain associated cultural values. Commercial and subsistence fishing are clearly permissible in the park, and the hope is that their traditional use is preserved. CO-CHAIR OGAN stated that the biosphere reserve concept has not yet been specifically addressed. Number 0901 PATRICIA PHILLIPS, Council Member, City of Pelican, testified via teleconference from Pelican. She is a 27-year resident of Pelican and her family is in the commercial fishing business. She stated: Communities near Glacier Bay National Park need adequate opportunities to maintain their economic and social survival. We request the continued, fair and reasonable, opportunity to fish in Glacier Bay National Park to help alleviate the growing social economic crisis within our community. We have traditionally depended on the marine resources for our economic and social well being. We wish to maintain the ability to diversify our local economies and to maintain stable long term employment. No actions should be taken to restrict the exercise of valid commercial fishing rights or privileges. There is a long-term pattern of commercial and subsistence taking of fish resources within the marine waters of Glacier Bay National Park. Local residents from communities in close proximity are a natural part of the ecosystem and are dependent upon the harvesting of marine resources as a part of their economic survival. These communities are economically and socially integrated to the commercial fishing lifestyle. The State of Alaska and the Secretary of Interior have an obligation to protect the pattern of use of commercial fishing consisting of methods and means of harvest which are characterized by a reliance that provides to the economic well-being of our community. The City of Pelican has a direct dependence on the continuation of commercial fishing within Glacier Bay National Park. It is essential the State of Alaska continue to assert state jurisdiction of all fish and game within marine navigable state boundaries. Thank you for your continued support of fishing in Glacier Bay National Park. Number 1084 HOWARD STARBARD, Lieutenant, Division of Fish and Wildlife Protection, Department of Public Safety, testified via teleconference from Palmer. He stated: The department supports putting the federal government on notice that the state has not assented to federal control of resource management within Glacier Bay National Park and Preserve. It does not support Section 3 of this bill, which would significantly impact the division's program objectives. Section 3 adds a new section which would prohibit a state agency employer or agent from expending funds to adopt, enforce, and the term that we have problems with is "or otherwise assist in implementation of the federal regulatory program for control of fish and game in the park and preserve or the navigable waters," because it still does not differentiate between federal programs that exempt, preempt or otherwise conflict the state regulations. The practical impact on state agencies would be to prohibit them from participating in any manner with the federal agencies within the park and preserve. Federal law impacted includes: the Marine Mammal Protection Act, the Endangered Species Act, the Magnuson Act [Magnuson Fishery Conservation and Management Act], the Migratory Bird Treaty Act and, specifically to us, the Lacey Act. If, for instance, a trooper were to observe somebody harassing or shooting a whale at Point Adolphus in Icy Strait, which would be the adjoining waters of Glacier Bay National Park and Preserve, he or she would not be able to take any enforcement action. The same would apply for someone found illegally poaching seals, sea otters on the outer coast, eagles, sea lions and other federally protected resources, or in other circumstances where no concurrent state authority exists. The committee substitute [CS for HB 109(WTR)] does take the action necessary to protect life and property and addresses the officers' safety concern that we originally had as part of our opposition, but we still have problems with understanding what is meant by the term "assist." ... For example, can our dispatcher receive a request from a park ranger to run a suspect's criminal history and background. This is done normally, in the normal course of business, the sharing of information would seem to be assisting the park ranger if we were to give that information out, which would jeopardize not only the officers' safety of the park ranger, but potentially the Alaskan that he's contacting. Number 1252 CO-CHAIR OGAN wondered if Mr. Starbard was looking at the same version of HB 109, that being 1-LS0501\H. MR. STARBARD responded, yes. CO-CHAIR OGAN explained that language was added to Section 2, which reads, "This subsection does not prohibit an agency, employee, or agent of the state from taking action necessary to protect life or property or from commenting on proposed federal statutes or regulations." MR. STARBARD agreed that if a search and rescue or backup was being done that Section 2 would cover that action, but when the term "assist in the implementation" is added, the normal course of business is to run a criminal history background or a warrant-arrest inquiry. The burden would be put on the dispatcher to, first, differentiate whether the person calling is a federal or state agent, and second, to know what the purpose is of the request. Number 1411 CO-CHAIR OGAN reiterated that what is being discussed is the language out of Section 2, which reads, "the power to control the management of fish and game" and "the implementation of the federal regulatory program for control of fish and game in the park and preserve or the navigable waters." He asked Mr. Starbard if part of the problem is due to some concerns, stated earlier in his testimony, with language in HB 109 that conflicts with state regulations, and if language was added to address that, whether that would ease the problem. MR. STARBARD explained that the biggest problem with the exclusions in the language is that the "adjoining water" definition has the potential for someone to be at Point Adolphus, which is outside of Glacier Bay National Park, and the fish and wildlife trooper from Hoonah would not be able to take any enforcement action. There is nothing that allows the state to do that, and the normal operating procedure would be to contact the federal government, which means that the state is not necessarily acquiescing their control within the park, but that action is being taken against a violator of the law. There would have to be an exclusion of the language that there is not concurrent authority or regulations in place. The other concern is the vague definitions of "assist" and "adjoining waters." He wondered where the line is drawn for adjoining waters. Number 1564 CO-CHAIR OGAN stated that he wanted to make it clear that the adjoining waters are the waters that the Department of the Interior has clearly marked, which consist of Icy Strait and up past Lituya Bay three miles out. He requested clarification from Mr. Starbard on whether language added to HB 109 which would address the conflicts with state regulations would relieve the problem he has with the bill. MR. STARBARD replied that it would help to have language of that sort, but not sure what the exact wording would be. Right now, there certainly is a problem. CO-CHAIR OGAN explained that the whole idea is that he doesn't want to see a fish and wildlife protection officer arresting a person that is commercial fishing in the waters of Glacier Bay National Park; that is the intent of HB 109. Number 1724 MR. STARBARD stated that the Department of Public Safety was recently asked if they were taking federal enforcement action within Glacier Bay National Park. The Department of Public Safety, Division of Fish and Wildlife Protection, has no record, at least back to 1986, of a fish and wildlife trooper taking enforcement action against a citizen of Alaska, enforcing federal law that was not concurrent with or worded exactly like state law. Number 1811 CO-CHAIR OGAN stated that last year he was in Icy Strait near Gull Cove and being a state representative he decided to step aboard and inspect a state asset and state operation. On board the boat was a federal fish and wildlife protection officer. The next day while fishing near Cross Sound and Elfin Cove, the federal officer and state officer stopped and checked his license. He was glad to see enforcement occurring, although it was cooperative enforcement. MR. STARBARD explained that throughout the state, cross-deputization is reciprocal and there are some joint venues that go on. In Glacier Bay National Park, 99 percent of the time, the federal and state troopers are working in a perceived joint fashion and it is almost exclusively for the state's benefit. For example, the federal government set up a repeater system statewide which they allow the state officers to use so that they are able to contact a dispatcher during an emergency almost anywhere in Alaska; that is the definition of "assist." Again, there is a lot of cross-deputization occurring, but it is mostly skewed toward the state's benefit. KATHRYN SWIDERSKI, Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law, testified via teleconference from Anchorage. She stated that she did not have plans to testify but was open for questions. Number 2020 REPRESENTATIVE JOULE wondered if Section 2, given the fact that the Governor has filed suit on the issue, would in any way hinder that effort. Number 2045 MS. SWIDERSKI clarified that it would now be Section 3 after the amendment. She expressed concern about the vagueness of the new Section 3 and affirmed that the questions raised by the Department of Public Safety are legitimate. It is not clear what all the language in Section 3 is intended to cover, which could result in litigation. As far as the state's lawsuit on Glacier Bay National Park, the action has not been filed yet, but the United States government has been given notice of the intent to file. The actual complaint will be filed probably sometime in September, because there needs to be six months' notice. It is very difficult to predict how a bill like HB 109 would come up in the litigation and whether it would help or hurt. The preference of the Department of Law is to maintain maximum flexibility for the litigation, going into it with a clean slate, which means not having the new Section 3 in the bill. REPRESENTATIVE JOULE asked if Ms. Swinderski had a copy of the findings language which shows that the sponsor has pushed this section down one notch. MS. SWINDERSKI replied yes. She stated that there aren't any concerns with the findings and they are consistent with the department's views. REPRESENTATIVE JOULE asked if Section 2 [new Section 3] is the only section that the department has trouble with, because of its vagueness and the impacts it might have on the Governor's lawsuit once it gets taken to that arena. Number 2170 MS. SWINDERSKI replied yes. She added that one question on the new Section 2 has to do with the ambiguity, which the Department of Public Safety also addressed, of what is meant by "the navigable waters within or adjoining the park and preserve." It would probably be more precise to clarify that the intention is to reach the navigable waters within the boundaries claimed by the Department of the Interior. REPRESENTATIVE JOULE wondered if Ms. Swinderski had any suggestions of how it should be done. MS. SWINDERSKI responded that she doesn't have specific suggestions on how to revise HB 109 or Section 3, but there is the possibility, if the intention is to support the state's lawsuit, of going through the mechanism of a resolution. She noted that in addition to the ambiguity of "navigable waters" and "assist in the implementation," there is a question about "the federal regulatory program for control of fish and game." It sounds like what is intended there is a National Park Service regulatory program, but that is not clearly stated in the bill. Number 2272 CO-CHAIR OGAN asked if the courts refer back to committee discussions on legislative intent if there is any ambiguity. MS. SWINDERSKI replied yes. She pointed out that the preference of the courts is to read the statutory language first, and then if there is any ambiguity they may go back and look at the legislative history, so it is important for the committee to make sure its intent is on the record. CO-CHAIR OGAN stated that he believes there has been an adequate discussion which can be referred to by the courts if need be. Number 2351 DAVID KELLEYHOUSE, Alaska Outdoor Council, stated: The Alaska Outdoor Council supports HB 109. The State of Alaska has not assented to federal control of fish and game management on the lands and waters of Glacier Bay, and therefore we should assert our state sovereignty over these navigable waters and the fisheries therein. To do otherwise, I think, would set a dangerous precedent. The council also supports the intent of [HB] 109 that the state should not facilitate any federal regulatory program that preempts Alaska's sovereign states rights. Alaska's had an exemplary record of managing fish and game according to the sustained yield principle, and I think the long-term fisheries in Glacier Bay attest to that fact. The council applauds Chairman Ogan and all co-sponsors of HB 109 for prohibiting or trying to prohibit state employees from assisting or expending funds to deny Alaskans their traditional uses of Alaska's renewable resources. During the previous testimony there were a couple of points I would like to point out. One, the Department of Public Safety mentioned problems with the Lacey Act. The Lacey Act simply addresses interstate transport of fish and game taken in violation of state law, not necessarily federal law. As far as assisting in enforcement, the Senate Resources Committee has discussed this at length concerning SB 91, and that committee may now have some language to carry forth the intent of HB 109 while addressing the concerns of Public Safety. There may be some ambiguity about the phrase, "for control of fish and game in the park." To me that seems to clearly address the situation wherein the National Park Service is seeking to preempt state fish and game management authority. But if that intent is not clear the committee may want to consider substituting the phrase, "for preempting traditional state fish and game authorities and consumptive uses in the park," and I think that perhaps would be the kind of language that the Department of Law and the Department of Public Safety was looking for. MR. KELLEYHOUSE concluded by urging the committee to move HB 109 out of committee. CO-CHAIR SANDERS apologized to the people intending to testify on HB 131 in Anchorage, because the committee wasn't going to get to it due to the time constraint. Number 2511 GERON BRUCE, Legislative Liaison, Alaska Department of Fish and Game (ADF&G), stated that his testimony will somewhat echo that given by the Department of Public Safety and the Department of Law. in addressing the new Section 3 of HB 109, which says, "agent of the state may not expend funds to adopt, enforce, or otherwise assist in the implementation of the federal regulatory program for control of fish and game in the park." The concern with that language is that it is very broad, and it could sweep in some things that have consequences for Alaskans in terms of their economic interests. The current federal law regarding Glacier Bay National Park eliminates fishing in certain areas, but it allows other fisheries, such as trolling, longlining for halibut, and tanner crabbing. The people fishing in the park have to document a history of fishing there for a base period. They are likely to seek assistance from the state in helping them document their history and get the certification that will allow them to continue fishing. However, the language in HB 109, the way it reads, does not allow the state to assist the people fishing in the park with documentation for the federal government, because they are participating in a program that restricts state management. There are also going to be some fisherman seeking compensation, and it is unclear to what extent the state will be able to assist them in applying for the compensation they are entitled to. MR. BRUCE pointed out that the federal law states that the federal government and the state of Alaska shall cooperate in developing a management plan that regulates commercial fishing for the waters of Glacier Bay National Park. This legislation, HB 109, he believes, will prevent the state from cooperating in the development of that management plan, which could mean that either the state may go ahead and manage those resources or perhaps the park service may take action to close Glacier Bay to commercial fishing, because the state did not participate with them in developing the management plan. The state is not sure of the outcome, but it is important to look at possible outcomes, because they could affect people fishing in Glacier Bay negatively. MR. BRUCE concluded that the final issue of concern is in regards to research. The state does do cooperative research with federal agencies, including the park service. Research is used for a lot of purposes, some of which may be unrelated to the federal program to control fish and game in Glacier Bay, but may also be used for that as a secondary purpose. The ability to cooperate with the federal government in research is in the state's interest, because it provides the state access to federal resources, which are often greater than the state's. Number 2748 CO-CHAIR SANDERS announced that HB 109 will be held over for further consideration by the committee. He called an at-ease at 3:00 p.m. and called the meeting back to order at 3:04 p.m. [HB 109 was held over.]
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