Legislature(1999 - 2000)
05/05/1999 01:23 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 2 - SOVEREIGNTY OF THE STATE; RESOURCES CO-CHAIR OGAN announced that the next item of business would be House Concurrent Resolution No. 2, relating to the sovereignty of the State of Alaska and the sovereign right of the State of Alaska to manage the natural resources of Alaska. Before the committee was CSHCR 2(FSH). Number 1971 REPRESENTATIVE JOHN COGHILL, JR., Alaska State Legislature, prime sponsor, explained that HCR 2 calls for this legislature to ask the Governor to appeal to the United States Supreme Court for resolution of an issue about which there is strong disagreement in Alaska. He suggested that many hard feelings in Alaska may have been stirred up by an impasse caused by the federal government. REPRESENTATIVE COGHILL noted that HCR 2 begins with a short history of Alaska's admission to the Union under the Equal Footing Doctrine, and mentions how the submerged lands give the state the exclusive right to manage its fisheries. It also talks about the state constitution in several places, including that the resources are for the common use of the people. REPRESENTATIVE COGHILL explained that the legitimate dispute now between Congress and the state is because Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) causes the state to manage resources against its own constitution. The state cannot simply amend the constitution to get out of it. Rather, it would require revising the entire constitution, which would necessitate calling for a constitutional convention. Therefore, he believes the state has legitimate grounds to appeal to the U.S. Supreme Court, based on original jurisdiction. Number 2104 REPRESENTATIVE JOULE requested clarification about the need for a constitutional convention. REPRESENTATIVE COGHILL replied that the changes that would be demanded of Alaska right now would change the constitution in several places, constituting a revision. The Alaska Supreme Court decision in the Bess case says that the state cannot just amend the constitution in one area, but that it would constitute a revision. Even without that, however, it would have to be amended in no less than eight different places, he noted, in order to conform with what is being required. REPRESENTATIVE COGHILL pointed out that the Alaska Supreme Court and Congress have already spoken on the matter. "We have a real problem in Alaska trying to decide how we're going to answer that," he added. Noting that this deals with rights guaranteed by our constitution, which the people formed, he said Alaska entered in good faith into the United States under the Equal Footing Doctrine, and signed off on the requirements to become a state. There is a legitimate appeal, therefore, and the revision of the state constitution mandated by congressional action needs to be reviewed by the U.S. Supreme Court. Number 2203 REPRESENTATIVE JOULE asked if Representative Coghill thinks Governor Knowles would do this, when he has said he wouldn't. REPRESENTATIVE COGHILL replied, "That is not for me to decide. He may or may not. ... That's his response. Our response should be to uphold our constitution, defend it as best we can, and, at this particular point, I think an appeal to the [U.S.] Supreme Court is probably one of our last places of appeal. I think we need to do it. We have a jurisdictional ground, based on original jurisdiction. I think we're well within our grounds on a constitutional basis." Number 2249 REPRESENTATIVE JOULE commented that the objection to conforming to Title VIII [of ANILCA] seems to do with equality, common use and people in some parts of Alaska wanting to be equal to others in rural parts of the state. He sometimes gets a little frustrated that that equality seems to be a one-way street in the larger scheme of legislative appropriations and policy, he said, when other parts of the state are crying out for equity in other kinds of state policies that the legislature passes. He finds that to be an interesting argument. REPRESENTATIVE COGHILL suggested the question of how to equitably take care of the urban versus rural areas is a frustration that everyone feels. However, this particular resolution deals not with that, but with the Department of the Interior's mandate that Alaska revise its constitution. He added, "To me, at this point, the only answer that we can give is 'no,' and we take it to the supreme court for the answer to that. That really doesn't have to do with the equality of the citizens within Alaska. It has more to do with the equality of Alaska within the 50 United States." Number 2360 CO-CHAIR OGAN indicated he would be interested in somebody doing a study about per capita expenditures by region, to perhaps settle some of the arguments. Number 2386 REPRESENTATIVE HARRIS noted that he'd heard HCR 2 in the House Special Committee on Fisheries, as well. He asked if it is Representative Coghill's intention to ask Governor Knowles to bring the state back "to where we were when Governor Hickel was here and had actually filed the lawsuit and asked that the supreme court hear this, and then the present Governor removed that." REPRESENTATIVE COGHILL said no, the intention is to use original jurisdiction as the basis for appeal. During the days Representative Harris mentioned, it was in a circuit court. Because there is a time line mandate, he believes this is a legitimate appeal, he added. REPRESENTATIVE HARRIS responded that he believes it was the intention in that previous case to have it go through the system, to the U.S. Supreme Court, if it went that far. REPRESENTATIVE COGHILL stated his belief that the appeal for original jurisdiction puts the U.S. Supreme Court in a position where it has to respond. Number 2458 CO-CHAIR OGAN commented that the Bess case certainly got his interest. He noted that the amendment drafted last year, for example, which the Department of the Interior requested, on its surface affected just one area of the constitution, Article VIII, Section 3, the common use provision, by adding a rural preference. When he had asked the legislative drafters to draft an amendment and show him the different areas of the constitution that it actually affected, however, they drafted a conservative amendment of five sections affected: common use, equal protection, no exclusive right to a fishery, uniform application and one other, as well as possibly sustained yield. Co-Chair Ogan asked what eight areas Representative Coghill believes would be affected. Number 2518 REPRESENTATIVE COGHILL acknowledged that some may be open to interpretation, then said the eight areas are: Article I, Section 1, which talks about equal rights; Article I, Section 15, "no law making any irrevocable grant of special privileges or immunities"; Article VIII, Section 3, "reserved for common use"; Article VIII, Section 4, "subject to preferences among the beneficial users," which he said may be a stretch; Article VIII, Section 13, "all surface and subsurface waters reserved to the people for common use"; Article VIII, Section 14, "free access to navigable waters or public [waters] of the state of Alaska, as defined by the legislature, shall not be denied any citizen"; [Article VIII, Section 15], "no exclusive right of fishery ... shall be created"; and Article VIII, Section 17, "laws and regulations governing use [or] disposal of natural resources shall apply equally to all persons." Number 2595 CO-CHAIR OGAN asked whether Representative Coghill has legal documentation backing up the fact that there would probably be a revision required. REPRESENTATIVE COGHILL answered that it is the Alaska Supreme Court case, Bess. CO-CHAIR OGAN clarified that he was asking about what is being requested by the Department of the Interior. REPRESENTATIVE COGHILL replied, "Just the supreme court, Bess. And with regard to the Governor making the case, he was also asked to uphold this constitution. ... If he calls for a constitutional convention, that's within his right. But in this particular case, to amend our constitution, to acquiesce to Title VIII, I think we would be out of bounds." Number 2629 CO-CHAIR OGAN said he doesn't mean to impugn the Governor's intentions here at all. He then expressed hope that if this resolution is successful and the Governor decides to litigate, it would be done correctly, so as not to establish poor case law, especially in the U.S. Supreme Court. REPRESENTATIVE COGHILL remarked that he himself hasn't been taught to do what is right based on what other people will do. He restated his belief that the appeal is legitimate, expressing hope that the legislature could change Governor Knowles' mind, as he believes this is one of the best answers coming forward now. CO-CHAIR OGAN commented, "Regardless of which side of the issue you fall on, on the subsistence issue, I think if we did get our day in the supreme court, it would settle it. It may settle it in one party's favor over another, but it would certainly bring closure to it." Number 2871 JOANNE GRACE, Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law, testified via teleconference from Anchorage. She emphasized that she doesn't believe that Governor Knowles will follow the resolution's suggestion to file an original action in the U.S. Supreme Court, challenging the constitutionality of Title VIII of ANILCA. She reminded members that Governor Knowles has consistently stated, since taking office, that he doesn't believe litigation is the answer to Alaska's subsistence dilemma. MS. GRACE cautioned that even in the unlikely event that the Governor were to change his mind, this case would face insurmountable jurisdictional problems, such as res judicata and the running of the statute of limitations. The U.S. Supreme Court doesn't have to take an original action, she pointed out. The state would have to petition the court, and the United States would unquestionably raise the jurisdictional problems and the statute of limitations, which was the basis of the court's dismissal of the Legislative Council's lawsuit on Title VIII of ANILCA. Therefore, she doesn't believe that the court would take the case. However, if the legislature wants to pass the resolution anyway, she believes there are problems with some of its supporting language. She asked if the committee wanted to hear testimony on that. Number 2808 REPRESENTATIVE BARNES stated that she feels personally offended that a member of the Administration would come forward on a resolution and testify that the Governor absolutely won't do this, even before the legislation wings it way through. She next referred to the question raised about the Legislative Council lawsuit and stated that she doesn't believe Judge Robinson's (ph) ruling was correct, or else the legislature wouldn't have appealed. She disagreed that the statute of limitations has run, saying that otherwise the Department of the Interior wouldn't still be implementing regulations. She proposed that it is fluid and changing. Number 2871 MS. GRACE responded that she hadn't meant to offend, but she believes it is her responsibility to reiterate the Governor's position on litigating this issue. However, her main purpose is to testify about the legal basis of the lawsuit and the supporting language in the resolution. She explained that the statute of limitations would depend on the basis of the challenge. As she understands the resolution, it would be a constitutional challenge to Title VIII [of ANILCA], which would be a facial challenge, essentially saying that Title VIII violates the U.S. constitution and therefore is invalid. Ms. Grace pointed out that the statute of limitations isn't fluid on such a challenge; it starts to run when the law takes effect and therefore would expire six years later. A different kind of challenge, such as a challenge to the regulations, however, wouldn't have that same rigid six-year statute of limitations. Number 2942 REPRESENTATIVE BARNES replied that we are just now feeling the most onerous effects of that regulatory scheme, and obviously there is a legal challenge that can still be taken before the courts. TAPE 99-30, SIDE B Number 2955 [Numbers run backwards because of tape machine] DICK BISHOP, Alaska Outdoor Council (AOC), came forward, advising committee members that the AOC supports HCR 2. He agreed that there is a real dispute over the respective jurisdiction and authority of the federal and state governments, which he believes is fundamental to a number of resource management issues. Unless and until it is resolved, he said, either politically or in the courts, it will be difficult - if not impossible - to reach a workable, long-lasting solution to Alaska's resource management questions, including conservation and allocation. He believes it is important for the legislature to highlight that controversy and to urge resolution of it, by whatever means is at its disposal. Certainly, one means is pressing for resolution in the courts, with the ultimate resolution being in the U.S. Supreme Court. MR. BISHOP recounted that the AOC was very disappointed when the lawsuit filed by then-Governor Hickel was dropped by the current Governor, who believed the case was counter to the interests of subsistence users and that it offended 15 percent of the people of Alaska. "He didn't at that time mention whether it was in the best interests of the 85 percent of ... the people of the state," Mr. Bishop added. He acknowledged that it is history now, but the controversy and conflict in interpretation of jurisdiction remain. MR. BISHOP referred to discussion of HCR 2 in the House Special Committee on Fisheries. There, he said, it was pointed out that there is a conflict between the Alaska Supreme Court ruling in the Totemoff case that the federal government had no authority in navigable waters, and, very shortly thereafter, the 9th Circuit Court of Appeals ruling in the Katie John case that the federal government did have authority in federal reserve waters. Mr. Bishop stated, "That case was appealed; it was not heard. So, that disagreement between those two August bodies of legal interpretation still stands. ... It simply emphasizes the importance of continuing to seek resolution. So, we strongly support this. We think it is the appropriate thing to urge both the legislature and the Governor to carry forward with this." Number 2804 CO-CHAIR OGAN pointed out that he believes resolving this issue is in the best interests of 100 percent of the people of the state. He expressed hope that both equal protection and subsistence interests can be accommodated. MR. BISHOP agreed, indicating he wished the Governor had characterized the issue that way in the first place. Number 2716 REPRESENTATIVE BARNES made a motion to move CSHCR 2(FSH) from the committee with individual recommendations and accompanying fiscal note(s); she asked unanimous consent. CO-CHAIR OGAN announced that he would like to put off moving the resolution from committee until the end of the meeting. Number 2690 REPRESENTATIVE BARNES, without objection, withdrew her motion. CO-CHAIR OGAN turned the gavel over to Co-Chair Sanders. [End of this portion. At tape number 2142, Co-Chair Ogan announced that HCR 2 would be held over until Friday, May 7, 1999.]
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