Legislature(1999 - 2000)
03/16/1999 05:05 PM House WTR
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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 CHAIR BARNES invited Representative Ogan to come forward to present his amendment for the first bill to be discussed, House Bill No. 109, "An Act relating to management of fish and game in Glacier Bay National Park and Preserve and navigable waters." She asked if he brought an attorney with him as requested. Number 0211 REPRESENTATIVE SCOTT OGAN, Alaska State Legislature, came forward to testify. He asked for a brief at-ease. CHAIR BARNES called an at-ease at 5:08 p.m. She called the meeting back to order at 5:09 p.m. Number 0256 REPRESENTATIVE OGAN expressed his feeling that the concerns raised during the last meeting have been addressed in the proposed amendment, and that the reasons for needing an attorney present were probably covered by that amendment as well. Number 0326 REPRESENTATIVE COWDERY made a motion to adopt Amendment 1, 1-LS0501\G.2, Utermohle, 3/8/99, which read: Page 2, line 13, following "preserve": Insert "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." REPRESENTATIVE BERKOWITZ objected. He declared that, based on his understanding of the legal concerns, this single sentence in the amendment does nothing to alleviate the problems associated with AS 16.20.010, Section 2, subsection (b). He added, "I think we're still in a situation where the ramifications, in terms of ... this second paragraph's effects on agreements between state and federal law enforcement, haven't been addressed." He felt that the amendment solely addressed life and property, not investigation of crimes or any other potential contingencies that might arise. The fundamental concern about subsection (b), he emphasized, is that it undercuts the strength of the state's case by overreaching. He advised that there is no reason to go beyond a simple declaration of intent, contained in Section 1 of AS 16.20.010, that the state is not assenting to federal control. Number 0488 REPRESENTATIVE OGAN read the amendment. He referred to an incident in Glacier Bay where an individual took up residence in the park and threatened those that came near him with a cache of guns and ammunition. He respectfully disagreed with Representative Berkowitz, and he emphasized that the state should not enforce laws that it does not agree with. He cited the example of buying a car, and noted, "If you pay for a car, you've bought the car." The state does not agree with the fact that the National Park Service (NPS) is claiming control of navigable waters, he said, so how can it help them enforce that control? Number 0631 CHAIR BARNES invited Mr. Ted Popely, Legislative Assistant for the House Majority, to come forward. She asked if he felt that the amendment before the committee alleviates the concerns expressed. TED POPELY, Legislative Assistant, House Majority, Alaska State Legislature, indicated that he understood the concern and that he had read the amendment. He felt the amendment could reasonably be interpreted to address those concerns. He added, "The way I understood the objections, they were specifically related to this amendment, but there would be no authority under this bill, as it existed prior to the amendment, to assist in life-saving or resource-saving actions when necessary." He summarized by saying, "Yes, I believe it addresses the problem." Number 0761 REPRESENTATIVE BERKOWITZ asked Mr. Popely if he was able to definitively state that the amendment would not negatively affect any agreements between state and federal law enforcement. MR. POPELY said no, but added that he did not believe anyone could categorically say that. REPRESENTATIVE BERKOWITZ wondered if he had looked into that. MR. POPELY indicated that he had. REPRESENTATIVE BERKOWITZ asked if Mr. Popely had found anything that would alleviate his concerns that those agreements might reasonably be impacted or subject to challenge. MR. POPELY admitted it would be possible, but stated that it was his belief that the amendment would not have a negative effect on those agreements. REPRESENTATIVE BERKOWITZ inquired if Mr. Popely had consulted with anyone in the Department of Public Safety regarding this amendment. MR. POPELY stated that he had not. REPRESENTATIVE BERKOWITZ asked if Mr. Popely had discussed this with anyone in the Department of Law. MR. POPELY indicated that he has had several discussions with the Department of Law regarding HB 109. REPRESENTATIVE BERKOWITZ asked if the Department of Law is in favor of subsection (b) or not. MR. POPELY pointed out that the Department of Law is on-line and can answer that question for themselves. Number 0864 REPRESENTATIVE OGAN observed, "I had an attorney general in my office today, and we discussed this issue, and this section of the bill didn't come up." He pointed out that the next committee of referral is the House Resources Standing Committee, and he discussed his willingness to clarify the objective of this bill by means of "legislative-intent language." That objective, he explained, is that the state does not feel it is necessary for the federal government to take over management of its resources, because the federal government has a history of managing those resources poorly. CHAIR BARNES asked if Kathryn Swiderski was present on-line and if she had a copy of the proposed amendment before her. Number 0954 KATHRYN SWIDERSKI, Assistant Attorney General, Natural Resources Section, Civil Division, Department of Law, testified via teleconference from Anchorage. She was uncertain whether or not she had a copy of the proposed amendment before her; however, after Chair Barnes read it to her, she indicated that she did not. CHAIR BARNES requested that Ms. Swiderski consider the proposed amendment in the context of Section 2, AS 16.20.010. She explained that concerns were raised at the last committee meeting that this particular section might prohibit federal and state officers from fully participating with each other in the saving of lives and property. Number 1054 MS. SWIDERSKI admitted, "Of course, I am just looking at this now, but I still have concerns about that." She felt that the additional sentence in the proposed amendment might not clarify the intent enough. The original draft, she explained, in Section 2, subsection (b), line 11, talks about assisting in the implementation of the federal regulatory program, and she advised that she had some concerns whether the new sentence was clear enough to narrow the focus of this "quite broad language." CHAIR BARNES read lines 10 through 13 of subsection (b), and respectfully disagreed with Ms. Swiderski. She declared that the amendment clearly states that nothing in the subsection prohibits "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." She asked Ms. Swiderski, "Do you not read it that way?" Number 1192 MS. SWIDERSKI agreed that she did read the amendment that way, and that the language would be very clear in many instances. She stipulated, however, that she could also envision situations where the language would not be that clear. She admitted that she missed the first part of the hearing, but that the phrase "protect life or property" is quite narrow if there is concern about joint cooperation between state and federal law enforcement agencies. CHAIR BARNES invited Ms. Swiderski to offer additional language to clarify the amendment. MS. SWIDERSKI indicated that she would be happy to do so at a future date. Number 1258 REPRESENTATIVE OGAN said, "I think this just boils down to a policy call whether or not the legislature wants to cooperate with the fed's program for control of fish and game." He indicated that it was clear to him that the state of Alaska was not going to allow their fish and wildlife protection officers "to arrest our citizens for violating the federal law." The state would cooperate with a boating safety issue or other threat to life and property. It is the prerogative of the legislature, he added, to make that policy call. REPRESENTATIVE BERKOWITZ asked Ms. Swiderski if Section 2 of AS 16.20.010 helped or hurt their ability to advance the state's case. Number 1341 MS. SWIDERSKI responded that she was not prepared to offer any testimony on that question. She declared that the Department of Law had some concerns, but felt that they would be able to move forward in either case. CHAIR BARNES asked if there was any additional discussion on the amendment. Hearing none, a roll call was taken. Representatives Green, Masek, Cowdery, Barnes, Berkowitz and Joule voted for the amendment. Therefore, Amendment 1 was adopted by a vote of 6-0. Number 1432 RALPH SEEKINS, Alaska Wildlife Conservation Association, testified via teleconference from Fairbanks. He stressed that the Alaska Wildlife Conservation Association feels strongly that the state of Alaska received full control over its resources. He referred the committee to a United States Supreme Court decision from 1962, Metlakatla Indians vs. Egan, 369 U.S. 45. He quoted page 2 of that decision, which says, "When Alaska was established as a state, Congress withheld jurisdiction for her fisheries until she made adequate provision for their administration." He called attention to footnote 2 on page 2 of that decision, which says, "Alaska adopted a comprehensive fish and game code April 17, 1959, and received full control over her resources soon afterward." He then referred to page 57, which states, "Section 60 of the Alaska Statehood Act, providing for the conveyance of United States property, used for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska, contemplated transfer to the state of the same measure of administration and jurisdiction over fisheries and wildlife as possessed by other states." MR. SEEKINS also testified that the issue came before the United States Supreme Court in 1997 in the Dinkum Sands case, where the decision was once again made that the ownership of submerged lands carries with it the power to control navigation, fishing and other uses of the public water, is an essential element of state sovereignty. He indicated that the Alaska Wildlife Conservation Association is very pleased to see that the legislature is standing up and saying to the federal government, "this is our sovereign land, and we want to keep it that way." Number 1608 LYNN LEVENGOOD testified via teleconference from Fairbanks. He testified that Mr. Seekins reflected his sentiment on HB 109, and that he would like to reserve his testimony for HCR 2 that is up for consideration next. Number 1633 BILL HAGAR testified via teleconference from Fairbanks. He said, "Ralph took all my thunder. It looks like the sponsor and co-sponsor are well-keyed-in on this. I commend you and fully support your efforts." Number 1666 GERRY MERRIGAN, Petersburg Vessel Owners Association, testified via teleconference from Petersburg in support of HB 109, especially the first section that asserts ownership and not assenting to federal control. He reported that he talked to Representative Ogan's office about the second section. He stated that he did have a problem trying to reconcile different documents; for example, the "October legislation on Section 123 is the Omnibus Appropriations Bill that starts off by saying, 'The Secretary of Interior in the State of Alaska shall cooperate in development of a management plan for the regulation of commercial fisheries in Glacier Bay.'" He wondered how Section 2 of AS 16.20.010 works with legislation that already passed Congress last fall. He added, "Additionally, there is a master memorandum of understanding the state has with the federal government, as well, that appears to be somewhat in conflict. ...If this isn't a problem, if Department of Law doesn't think it's a problem, then I suppose it's okay, but I have a little difficulty in understanding how it couldn't be." He expressed appreciation for HB 109 and its attempt to make a clear backdrop for the lawsuit that he hoped would be filed in 180 days. CHAIR BARNES pointed out that the committee just adopted Amendment 1 to HB 109, and she believed that amendment would address some of his concerns. Number 1780 MR. MERRIGAN acknowledged that Amendment 1 addresses life and property, but he was uncertain if it captured the whole breadth of "participating in development of a management plan." He stressed that he did not want to hand the National Park Service the keys by saying that the state would not cooperate, for fear that they might say, "Okay, if you don't cooperate, well, by God, we're going to take it." Number 1843 DAVID G. KELLEYHOUSE, Alaska Outdoor Council, testified on behalf of the Alaska Outdoor Council in support of HB 108 as amended. He agreed that the state of Alaska has not assented to federal control of fish and game management on the lands or waters of Glacier Bay; therefore, the state should assert its state sovereignty. It is the belief of the Alaska Outdoor Council, he emphasized, that to do otherwise would set a quite dangerous precedent, and that the state should not facilitate any federal regulatory program meant to preempt our state's sovereign rights to manage fish and game. According to the sustained yield principle, he added, Alaska has an exemplary record of managing fish and game, but, as evidenced by the depleted condition of fisheries since statehood, and the most recent example of the depletion of beluga whales in Cook Inlet, the federal government has proved itself relatively incapable of protecting fish and wildlife resources of great importance to Alaska. Therefore, the Alaska Outdoor Council urged the legislature to do everything in their power to "protect our sovereign rights and our fish and wildlife resources from a distant, and largely uncaring, federal bureaucracy." Number 1938 DALE BONDURANT testified via teleconference from Kenai in support of HB 109. He listed three different cases that he felt pertained to HB 109 and the upcoming HCR 2. He quoted from Shapiro v. Thompson, 394 U.S. 618 (1969), and Townsend v. Swank, 404 U.S. 282 (1971), which he quoted as saying, "Congress is without power to enlist the state's cooperation in a joint federal/state program by a legislation which authorizes the state to violate the equal protection clause." He next referred to Dandridge v. Williams, 397 U.S. 471 (1970), which he said states, "The equal protection clause of the 14th amendment gives the federal courts no power to impose upon the state its view of what constitutes wise and economic social policy." He concluded by emphasizing that he feels it is time the state stands up and says, "Congress cannot force this on us, and we do have these state sovereign rights." CHAIR BARNES asked if there were any questions. Hearing none, she reported that there were no more witnesses to testify. Number 2036 REPRESENTATIVE COWDERY made a motion to move HB 109, as amended, out of committee with individual recommendations and the attached fiscal note(s). He asked for unanimous consent. Number 2055 REPRESENTATIVE BERKOWITZ objected. He indicated that he felt everyone in the room was concerned about the federal takeover of fish and game management and was committed to Section 1 of HB 109. He emphasized, however, that Section 2 of HB 109 gives him a lot of pause for concern. He added, "I've spent enough time on boats to know that you don't spit to weather, and when you spit into the wind, you better hope it doesn't blow back you, and that's what we are doing with Section 2. We're spitting at the federal government. We haven't adequately understood the ramifications of that action. We run the risk, which hasn't been answered to my satisfaction in this committee, of jeopardizing law enforcement relations between state and federal [agencies]. We haven't answered, to my satisfaction, whether this helps or hurts the state's case to secure state management, and, I think, until we have definitive answers to those questions, it's a little bit capricious of us to just send this on to the next committee of referral. It's one thing to tell the federal government we want to maintain state management; it's another thing for us to risk benefits that the state has without adequately understanding what those benefits are, and I think that's what Section 2 does. That's why I'm going to vote against it. I hope that we amend it to remove Section 2 in subsequent committees; otherwise, I'll be a 'no' vote all the way through." Number 2100 A roll call was taken. Representatives Cowdery, Green, Masek and Barnes voted in favor of the motion. Representatives Joule and Berkowitz voted against the motion. Therefore, CSHB 109(WTR) moved from the House Special Committee on World Trade and State/Federal Relations by a vote of 4-2.
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