Legislature(2001 - 2002)
03/01/2002 01:10 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 376-FISH & GAME IN NAVIGABLE WATERS Number 1800 CO-CHAIR MASEK announced the next order of business, HOUSE BILL NO. 376, "An Act relating to management of fish and game in and on the navigable waters and submerged lands of Alaska." Number 1815 REPRESENTATIVE SCOTT OGAN, Alaska State Legislature, testified via teleconference as sponsor of HB 376. He referred to AS 16.020.010 and explained that the state had not assented to federal control of the Alaska Department of Fish and Game (ADF&G) and those areas set apart as national bird and wildlife refuges when Alaska was a U.S. territory. He said legislation was enacted when Alaska became a state. He said apparently there was a dispute over control of ADF&G and those areas: the state wanted to say unequivocally that it didn't assent to control of those areas. He indicated it was his [prior] change to have [AS 16.20.010(a) read, as found on page 2, Section 2, subparagraph (B), of the current bill]: "Glacier Bay National Park and Preserve or the navigable waters within or adjoining the park and preserve". REPRESENTATIVE OGAN noted that a point of contention is still in the courts; moreover, it's a case the governor has not dropped, asserting state control of the submerged lands and the resources in Glacier Bay National Park and Preserve. He recalled that there was a buyout program in place after the [National] Park Service (NPS) decided commercial fishing boats were an eyesore to the cruise ships there, although he suggested it was probably the opposite: people on cruise ships look outward and don't realize how obtrusive [their ships] are. Commercial fishing was deemed an inappropriate activity in Glacier Bay, he noted. He mentioned that the bill was passed at that time and was widely supported. Number 1992 REPRESENTATIVE OGAN remarked that the situation is interesting because the governor didn't pursue the lawsuit in John v. United States [known as the Katie John case] to the U.S. Supreme Court, even though he'd previously said no governor of any state should ever voluntarily relinquish authority back to the federal government, and that he believed it was his "clear responsibility, even in the face of a difficult political battle, to vigorously defend this important aspect of state sovereignty." REPRESENTATIVE OGAN said the federal government, through the reserved water rights doctrine, has taken over management of subsistence fishing in state sovereign waters. He referred to the Totemoff case and said the state supreme court unanimously ruled that submerged land gives ownership of title to and management powers over lands beneath navigable waters of Alaska, navigable waters themselves, and fish and other marine life located in Alaska's navigable waters. Moreover, navigable waters are generally not public lands under the Alaska National Interest Lands Conservation Act (ANILCA). Number 2188 REPRESENTATIVE OGAN said the [federal] Submerged Lands Act of 1953 specifically gives the state authority over fish and animals in navigable waters and precludes [navigational] servitude or reserved rights from being used to erode that authority. He said [navigational] servitude and reserved water rights are not interests to which title can be held. He offered his understanding that both servitude and reserved water rights are limited interests, and do not give the federal government power over navigable reserved waters unrelated to those areas. REPRESENTATIVE OGAN offered his understanding that the Alaska Supreme Court is not bound by decisions of federal courts other than the U.S. Supreme Court on questions of federal law. He said [the state] has the right to manage its resources. He said the Submerged Lands Act was mentioned in the Statehood Act, and it was mentioned that Alaska was admitted to [statehood] on an equal footing with the rest of the states; this included the 1953 Submerged Lands Act, which gave to the states fee-simple title [to] submerged lands and the right to control the resources within those submerged lands. Referring to a Submerged Lands Act handout he'd provided, Representative Ogan read from a portion that said, "... the U.S. releases and relinquishes to the states all rights, title and interest it may have, unless otherwise reserved, in lands, improvements and natural resources beneath or within the navigable waters". Number 2269 REPRESENTATIVE OGAN mentioned a case in which [U.S. Supreme Court] Justice Sandra Day O'Connor wrote that the state has a right to control fishing. He explained that Section 1 [of HB 376] has a [number] of legislative findings; Section 2, in addition to the other areas, says [the state] doesn't assent to federal control and lists the navigable waters and submerged lands; and Section 3 talks about various findings and recognizes that the state hasn't assented to federal control and that the federal government cannot commandeer the lawmaking processes of the state to compel the state to enact and enforce a federal regulatory program. Indicating there is case law from the U.S. Supreme Court, he said this section also mentions that it doesn't prohibit the agency or an agent from taking an action necessary to protect life or property, commenting on federal statutes or regulations, or participating and cooperating with the established programs. REPRESENTATIVE OGAN, in response to Representative McGuire, clarified that the bill adds a new subsection in Section 3; however, it doesn't change Title 16 on those other four [paragraphs in AS 16.20.010(b)]. Aside from Section 2, nothing eliminates existing statute. Number 2491 REPRESENTATIVE KAPSNER mentioned the constitutional mandate to manage for sustained yield. She asked Representative Ogan if he thought it irresponsible to prohibit state managers from working with federal managers. REPRESENTATIVE OGAN said the problem is that the [state] doesn't have the ability to manage those resources for subsistence use because the [federal government] has taken over. He said the federal government doesn't have an obligation to manage on a sustained yield [basis], and prior to statehood the federal government didn't manage for sustained yield. He indicated the federal government would be prohibited from compelling the state to enact and enforce a federal regulatory program. He mentioned that he thought ADF&G had a clear responsibility to [monitor the federal government's management of resources]. He suggested ADF&G can comment on proposed federal statutes and regulations. He added, "It just is saying that we don't assent to their control; it's a matter of fundamental state sovereignty." REPRESENTATIVE KAPSNER offered her understanding that federal law preempts any state law, across the board. REPRESENTATIVE OGAN replied that federal law didn't preempt state law; furthermore, it gave the state the right to manage its resources. Moreover, he said the Alaska Supreme Court unanimously agreed to that position in the Totemoff case, and there is a mandate from the [Alaska] Supreme Court that the state, not the federal government, manage its resources. Representative Ogan said the [Alaska] Supreme Court has [ruled] that the state is not obligated to follow any court ruling on the issue other than [from] the United States Supreme Court. He said when the governor decided to "cede sovereign authority" to the federal government [by not pursuing the lawsuit], he ignored the constitution, the state's sovereignty, and the [Alaska] Supreme Court. Number 2666 REPRESENTATIVE KERTTULA asked if the goal is to regain state management. REPRESENTATIVE OGAN said, "Sure." He mentioned the governor's statements about not voluntarily relinquishing authority and why he had to appeal the case. REPRESENTATIVE KERTTULA suggested the state should be monitoring and participating [with the federal government's management of resources] to get as much information as possible. She expressed concern that the bill might limit that ability. REPRESENTATIVE OGAN said he didn't believe that was the intention of HB 376. The bill would allow the state to have its biologists [monitor] the federal [government], comment on proposed federal statutes and regulations, and still fund the positions. Representative Ogan acknowledged that HB 376 is basically posturing until the matter is settled in court. He pointed out that this had been done [regarding] Glacier Bay. REPRESENTATIVE KERTTULA reiterated her concern about the language of HB 376. REPRESENTATIVE KAPSNER pointed out that Representative Ogan's answer to a previous question had made it sound as though the reason the state has federal management is because the governor didn't appeal the Katie John case. Representative Kapsner suggested the reason the state has federal management, however, is because the state has failed to comply with ANILCA. The federal government allowed the state three moratoriums so it could come into compliance, but the legislature refused, she recalled. She mentioned a legislative remedy of putting a vote to the public to change the constitution to come into compliance with ANILCA. She said the court is not the solution to the subsistence [issue]. Number 2836 REPRESENTATIVE OGAN referred to the Totemoff case, which he said [found] that navigable waters are generally not public lands under ANILCA. He said the Submerged Lands Act of 1953 specifically gave state authority over fish and animals in navigable waters; moreover, it mentioned navigational servitude or reserved rights. He mentioned that the federal government has maintained that it has the right to manage fish up to three miles [from the coastline], which the Alaska Supreme Court found to be incorrect. Furthermore, the Alaska Supreme Court is not bound by decisions of federal courts other than the U.S. Supreme Court on questions of federal law, he suggested. REPRESENTATIVE OGAN offered his belief that HB 376 is consistent with the Alaska Supreme Court's ruling. He offered his opinion that the governor's actions have made Alaska a second-class state, not on equal footing with the other states of the Union. Representative Ogan said 14 other states had filed amicus curiae briefs on [Alaska's] behalf in the John v. United States suit because they worry about their sovereign rights as states to manage their resources. This sets a precedent that goes far beyond the State of Alaska, he said. He mentioned remarks from [U.S.] Senator Murkowski about appealing the John v. United States case. Representative Ogan again suggested that this issue is not about subsistence, but about Alaska's sovereign rights as a state. TAPE 02-12 SIDE B Number 2990 REPRESENTATIVE FATE indicated his reason for cosponsoring HB 376 was because there had been no adjudication by the [Alaska] Supreme Court in contract law. He said the Submerged Lands Act of 1953 is incorporated within the Statehood Act and the compact that the people of Alaska signed saying that compact is no longer valid. He agreed that ordinarily congressional laws supersede state law, but not contract law. To get the [issue] adjudicated by a court of the land is probably going to be the only way to settle the issue of the Submerged Lands Act, he suggested. He said the [Submerged Lands Act] was [related] not to subsistence, but rather to the sovereign right to manage navigable waterways. He indicated there hasn't been harmony between the federal government [and the state] as it endeavors to manage a state waterway and [ADF&G]. REPRESENTATIVE OGAN mentioned that he thought the federal government didn't honor the deals made at statehood. Number 2842 DICK BISHOP, Alaska Outdoor Council (AOC), testified via teleconference, informing the committee that AOC supports HB 376. Moreover, he said AOC believes it is important to reemphasize what the Alaska Supreme Court has already enunciated: the state's authority over navigable waters and submerged lands, and the management of resources found there. He said AOC appreciates the recognition of the state's public- trust responsibility for renewable resources. However, it's also important to ensure that the state, in its efforts to be a good neighbor and to ensure sound conservation of resources, does not contribute to the perception of federal authority where none exists, he said. This bill addresses that potential problem while also citing federal laws that authorize legitimate federal authority. Therefore, AOC urges the passage of HB 376 to ensure the authorities are clear and that the state's authority and responsibility is clear and is followed, he said. MR. BISHOP told members he doesn't believe federal law supersedes state law in all cases. There are limitations that vary from federal law to federal law; for example, it has often been cited that the federal government has management authority for fish and game on public lands through the property clause, but that's not necessarily the case unless Congress has specifically said that should be the case. Another example is that nowhere in ANILCA was that specific authority given to the federal government by Congress; consequently, that's still an open question, even though it has not been adequately pursued in court, he told members. Number 2703 REPRESENTATIVE OGAN asked Mr. Bishop if he was aware of the case of New York v. United States. He read from the case [original text provided]: This case instead concerns the circumstances under which Congress may use the States as implements of regulation; that is, whether Congress may direct or otherwise motivate the States to regulate in a particular field or a particular way. Our cases have established a few principles that guide our resolution of the issue. As an initial matter, Congress may not simply "commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program." Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981). MR. BISHOP indicated he wasn't familiar with the aforementioned case. He said it's very reassuring that there are limitations on the reach of the federal government in compelling states to do things they might not otherwise be willing to do. He said it is a good example that the federal government does not, in all cases, have the option of preempting the state's authority. He mentioned that ownership, authority, and responsibility for management of navigable waters have been granted to the states and upheld until the circumstances in Alaska. Mr. Bishop spoke about limitations and lack of clarity on the relative authorities of federal and state governments in the management of fish and wildlife and renewable resources in the state. Number 2565 CO-CHAIR MASEK mentioned the Submerged Lands Act. She spoke about the intent of Congress, the appeal to the Ninth Circuit Court, and the impact on the state. She asked if [HB 376] would clear up [the issue]. MR. BISHOP said he thought it would clear it up by laying out the matters of law and the relative authorities; however, it won't clear up what authority the state will be able to retain and what authority the federal government will attempt to assume. What the federal government assumes and what it chooses to do under the [John v. United States] ruling will be consistent with the ruling, he said. He indicated that the federal government is not going to subside in its position because of the passage of HB 376. It is an important expression of a recognition of the state's sovereignty with regard to the ownership, authority, and responsibility over navigable waters and submerged lands, he concluded. Number 2463 CO-CHAIR MASEK referred to a set of documents in the committee packet, the first page of which was headed, "Alaska Digest Email News; September 3-9, 2001; Murkowski Laments State Decision Not To Appeal 9th Circuit Case." She offered an excerpt attributed to U.S. Senator Murkowski, which read: "Even if we succeed in passing a constitutional amendment to protect subsistence and solve the subsistence problem, which I have supported and will continue to work for, Alaskans will not be afforded the chance to recover control over state waters, which the Governor has chosen to give away." MR. BISHOP offered his belief that if the state were to adopt a rural subsistence-priority amendment in its constitution, it wouldn't solve the dilemma relating to state sovereignty in navigable waters. Moreover, it would address the ability of the state to assume the responsibility for administering the federal law, but wouldn't return management to the State of Alaska, he said. The state would be obligated to implement the terms of federal law, and the federal court would enforce them. He said that was the situation that existed from 1986 to 1989, when the state was in conformity with the federal law. If the state were to come into conformity with the federal subsistence law [now], then the same terms would dictate the state's operation [regarding] the state's implementation of that federal law. It leaves the issue of authority of the state over navigable waters unresolved, he added. Number 2314 REPRESENTATIVE KERTTULA referred to John v. United States and offered her understanding that the court had said if the state followed ANILCA and changed the state constitution, then the state would regain jurisdiction over navigable waters. MR. BISHOP said he didn't recall that particular passage. However, if that was [the case], then perhaps the issue is that the state would be able to implement the federal law with regard to the regulation of subsistence uses. It wouldn't necessarily affect the state's options or autonomy in deciding other questions with regard to the use of navigable waters, he said. He asked how it would relate to timber harvests, tourism, or mining, for example. Mr. Bishop said if those are federal reserved waters and the authority of the federal government remains unchallenged, then the federal policies would prevail on what can and cannot be done, regardless of what the state thinks. If the rural priority [were] in the constitution, then the state would be compelled to administer subsistence regulations consistent with federal law, he said. Number 2212 CO-CHAIR MASEK mentioned the issue of judicial oversight extending toward the navigable waters. REPRESENTATIVE KERTTULA referred to page 704 of John v. United States. She reiterated her point that the court said [the state] could resume management of subsistence uses on public lands including navigable waters. She added [referring to the Katie John case]: It never reached any of the other issues, and ... I think that this is segueing over into some kind of an argument that just doesn't exist anymore. ... This was a subsistence case; it's a subsistence argument. The court may have reached somewhat to get there, but that's what it concerns. So, just from my standpoint, I am not as concerned, as we seem to be building this concern up about other issues. Number 2161 MR. BISHOP said he couldn't disagree more. He offered his belief that clearly the federal jurisdiction on reserved waters under the John v. United States decision goes far beyond the issue of the provision for subsistence uses. Furthermore, he suggested, the court failed to recognize that in making that statement, and doesn't have a clue about what is or isn't state management. When [the court] said fish and game [management] would return to the state, that is simply not the case; it's not atypical of the Ninth Circuit Court to make that kind of leap in logic, he contended. REPRESENTATIVE OGAN said the Ninth Circuit Court can say what it wants, but the [Alaska] Supreme Court said [Alaska] is not bound by those decisions. He mentioned that reserved water rights are precluded from being used to erode that authority, and that the [Alaska] Supreme Court cannot be ignored. He added, "We have this authority, and that's all this bill does." Number 1999 CO-CHAIR MASEK indicated HB 376 would be held for further consideration.
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