Legislature(2001 - 2002)
03/04/2002 01:07 PM House RES
| Audio | Topic |
|---|
* 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 VICE CHAIR FATE announced the final 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 1653 REPRESENTATIVE SCOTT OGAN, Alaska State Legislature, sponsor of HB 376, reminded members that the bill was heard extensively in a previous committee meeting. He said he was available for questions. Number 1631 DALE BONDURANT, Alaska Constitutional Legal Defense Conservation Fund, testified via teleconference. Mr. Bondurant told the committee that he supports HB 376. He said he had been very active in the issues on navigable waters for many years. He offered the following history: In 1977, Alaska Public Easement Defense Fund v. Andrus, "we" won reasonable access to all public waters of the state, and [legislation] was passed that included all surface waters. In 1987, "we" backed the state into the Gulkana decision [Alaska v. Ahtna, Inc., 891 F.2d 1401 (9th Cir. 1989)], which resulted in winning 30 million acres of submerged lands and 187,000 miles of navigable waters. He said the governor has failed to fight for [state rights]. Mr. Bondurant spoke about plants, waters, and nonrenewable resources such as gas and oil. He also spoke about renewable [resources] such as fish and marine animal life in the aforementioned waters. He referred to a paragraph in the Submerged Lands Act that allows the state control all [surface] and ground waters. MR. BONDURANT recounted details of meetings and events that led up to the initiation of the Gulkana decision, in which he said he'd had a large role. He mentioned an ad hoc committee, John Shively, and Sam McDowell. He concluded, "So our names weren't on that suit, but we're the ones that carried the battle through." He agreed that the federal government is using the reserved water rights to take away the state's rights to manage its resources in navigable waters. He said the federal government has a responsibility to protect the fish and wildlife and other uses, including recreation. He said the taking that exists, which comes under "users," is the state's responsibility under [the Tenth Amendment]. MR. BONDURANT said the reserved water rights have a different intent - to ensure quantity and quality. Moreover, Alaska is one of the states that has an article [in its constitution] about water rights; it says there is a general reservation for fish and wildlife. He said the "McCarran Act" says the states know more about their water, so these [issues] should be handled in state courts, but also recognizes that the federal government might have some concern, so a writ of certiorari to the Supreme Court was allowed in case of that. He said the biggest trouble is that these cases are won but aren't enforced, which is why [the state] is back in court to say "we" have a right to represent the state, since "they" aren't doing a very good job representing the citizenship of the country. He concluded, "I would like to see this passed, [to] give us a little more leverage, but I'd also like to see the legislature join our suit, and we're fighting - ourselves - on." Number 1213 REPRESENTATIVE OGAN referenced United States v. Alaska, [117 S.Ct. 1888, 138 L.Ed.2d 231 (1997)]. He said Alaska lost the case, which was about whether or not the federal government intended to reserve the offshore islands on the North Slope. It was a royalty dispute case; moreover, Alaska lost millions of dollars in potential revenues over that case. He told members, "In the majority opinion, [U.S. Supreme Court] Justice O'Connor said that several general principles governed our analysis of the parties' claims. Ownership of submerged lands, which carries with it the power to control navigation, fishing, and other public uses of water, is an essential attribute of sovereignty." REPRESENTATIVE OGAN said [the purpose] of this bill is to stay consistent with the sovereign rights of the State of Alaska to manage its resources. He offered his view that [the bill] gives adequate protections for "them" to comment, keep an eye on the resources, and work with the federal government as far as what the state's positions are; moreover, [the bill] is stating in law that [Alaska] doesn't assent to [federal] control of [its] submerged lands. Number 1110 REPRESENTATIVE KAPSNER asked if [passing HB 376] would cause the federal government to [convey control of submerged lands back to Alaska]. REPRESENTATIVE OGAN said no. REPRESENTATIVE KAPSNER asked, "What is the point? Doesn't this seem futile if they're not going to pull out?" REPRESENTATIVE OGAN replied, "I think the point is, we can do all we can do - what I believe is our duty as trustees of the public trust to defend our sovereign rights to manage our resources." He offered his opinion that the best way to get closure would be to have the case litigated, but said, "That's water under the bridge. The governor chose not to do it, and we don't have much left, other than maybe Mr. Bondurant [and other] private citizens who are willing to step up to the plate." He talked about [Alaska's] history of not assenting to federal control, such as in the Glacier Bay issue. He offered his belief that putting it into statute is as appropriate now as when "we" did it for Glacier Bay. Number 0989 REPRESENTATIVE KAPSNER said she thinks there can be closure through the legislative process that is probably more meaningful [than through litigation]. She asked what would happen to [HB 376] on the books once the issue is resolved. She recalled previous testimony this day by Nancy Wainwright [during the hearing on HB 439] that lawsuits do not generate meaningful resolutions for problems. REPRESENTATIVE OGAN remarked that he thought it was speculative as to how [the issue] would be resolved. He mentioned that the issue of a constitutional amendment [to add a rural preference for subsistence] has been [before the state legislature] for 20 years. He said, "I suppose we can cross that bridge when it happens." He suggested that once the constitution is amended to conform to federal law, "we" have assented to it. REPRESENTATIVE OGAN said he didn't think [Alaska] was going to get state management back. He said [Alaska] would have to enshrine the federal law into its constitution, statutes, and regulations. He added, "We can call it state management, but it's federal management with a gun to our head." He mentioned that the legislature doesn't have a constitutional amendment before it; nor has it been placed before the voters. He remarked that he thought [legislators] should take this measure. Number 0854 REPRESENTATIVE McGUIRE moved to report HB 376 out of committee with individual recommendations and the accompanying zero fiscal note. Number 0837 REPRESENTATIVE KAPSNER objected. [A few seconds of the tape is blank due to a technical difficulty.] Number 0808 REPRESENTATIVE KERTTULA explained, "I just see this as cutting off our nose to spite our face." She mentioned that under this, there may be a risk of possibly getting some information from the federal subsistence board that might be useful after the issue is resolved. She said, "This is neither here nor there; it's just sort of another shot, and I just don't think it's very productive." Number 0786 REPRESENTATIVE GREEN recounted earlier discussion that litigation is not a good way to solve an issue. However, the whole judicial system is based on that: if "we" can't mediate, "we" have to go to court. He said he agreed with the sponsor. He said he thought the only way [the issue would be resolved] would [be through] the courts. VICE CHAIR FATE said the final court of the land does certainly settle issues. REPRESENTATIVE OGAN offered his view that there wouldn't be closure [on the issue] regardless of what happens. He said even if the [state] constitution were amended to give a rural priority [for subsistence, to conform to federal law], the lawsuit in process now isn't necessarily based on submerged lands and the water rights doctrine; rather, it's a Fourteenth Amendment issue of equal protection and due process. He suggested that [the issue] would be carried forward regardless of whether it relates to an arbitrary class of discrimination based on residency and whether it passes the rational-basis test. He continued: Really, the only way to get closure and get all of this behind us is ... - and [U.S.] Senator Murkowski alluded to it - that we need the issue ruled on so we can figure out where we're at. And it's unfortunate that the governor chose, in my opinion, the actions he did. And I can't change that. This is all I can do. Number 0686 A roll call vote was taken. Representatives Fate, Chenault, Green, and McGuire voted to move HB 376 out of committee. Representatives Stevens, Kapsner, and Kerttula voted against it. Therefore [because a majority of the nine-member committee didn't vote to move the bill from committee], HB 376 failed to move out of the House Resources Standing Committee by a vote of 4-3. [There was a motion by Representative McGuire to reconsider her vote "for a later date," which Vice Chair Fate acknowledged, although that particular motion technically doesn't apply to moving a bill from committee.]
| Document Name | Date/Time | Subjects |
|---|