Legislature(2001 - 2002)
02/20/2002 01:42 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SCR 25-FISH & WILDLIFE PUBLIC TRUST/ANILCA SUIT
CHAIRMAN TAYLOR, prime sponsor SCR 25, said it was a resolution
relating to public trust doctrine as it concerns the allocation
of fish and wildlife resources in the State of Alaska. He
prepared a work draft which was before them entitled Utermohle
2/18/02 J. In comparing the work draft and the original document
most of the changes are more stylistic to improve the wording of
the document as opposed to major substance changes.
SENATOR COWDERY moved to adopt the CSSCR 25 (JUD) J version as
the working document.
CHAIRMAN TAYLOR said there being no objection the document before
the committee is now CSSCR 25. He believed it had been
distributed to each of the committee members.
MR. DALE BONDURANT, Alaska Constitutional Legal Defense
Conservation Fund Incorporated, said we as individuals and united
public interest litigants unanimously support SCR 25. The Alaska
Constitutional Legal Defense Conservation Fund Incorporated's
purpose is to protect the rights of equal access to Alaska's
common property, fish, wildlife and water held in public trust
for all citizens. These equal access rights are in jeopardy by
those who seek discriminatory preference by a prescribed group
based on where they live. Both the Alaska and U.S. Constitutions
are explicit in their doctrines of equal protection under the
law. He said they must be definite in their struggle to protect
that right of equal access for all personal consumptive users as
in hunting and fishing of Alaska's common property fish and
wildlife resources as managed under the constitutional
responsibility within the sustained yield management.
MR. BONDURANT said the public trust doctrine recognizes that our
sovereign nation has a judiciary responsibility for our elective
legislative and administrative government acting as trustees of
the public trust for fish, wildlife and waters within Alaska and
acting in respect for beneficiaries for all people as a whole.
This beneficiary must demand that these trusts be managed for the
present and future generations. The king and a dictatorial
monarch had absolute sovereign power over the people and could
abrogate the common law intent of protecting the people's rights
of life, liberty and property as within a free society. Our
forefathers wrestled this absolute sovereignty and returned the
sovereignty responsibility to the people themselves. Governor
Tony Knowles wants the people to vote away the fundamental equal
protection rights of equal access to our public fish, wildlife
and water renewable resources.
(Due to transmission difficulties, this portion of Mr.
Bondurant's testimony indiscernible)
He concluded that Congress is without power to omit the state's
cooperation in joint federal/state programs by legislation, which
authorizes a state to file under the equal protection clause. He
said he could sight several cases that way. He appreciated the
fact SCR 25 had been sponsored and they totally support the bill.
CHAIRMAN TAYLOR thanked Mr. Bondurant. He said Mr. Bondurant was
involved with Mr. Olson and others in litigation currently
pending before the Federal District Court in Anchorage and there
was a recent decision on that. He asked if that decision in any
talked to or discussed the public trust doctrine as described.
MR. BONDURANT answered yes. He explained that Judge Helms' court
mentioned that their claim had been as a public trust claim.
Judge Helms further said they have the right to pursue the equal
protection clause of the U.S. Constitution and file against as
applied by the Alaska National Interest Lands Conservation Act
(ANILCA) Title 8. But Judge Helms said that public trust is a
state right and as such they cannot show that they have the
ability or the right to take this up. He said they were
contesting several of Judge Helms' dismissals along with the
equal footing rights, the submerged lands act right and the
public trust right. They intend to further pursue this in the
other courts of the federal government.
JESSE VANDERZANDEN, Executive Director, Alaska Outdoor Council
(AOC), said AOC is comprised of about 50 member clubs, primarily
outdoor oriented. They also have individual memberships and when
added up they have about 10,000 collective members that are
hunters, fishermen, trappers and outdoor enthusiasts.
MR. VANDERZANDEN said the CS looked to have made just some minor
changes none of which shifted the intent or the principal of the
bill. They do support it and he thought Mr. Bondurant had said
it very well. They have been in communication with Mr. Bondurant
on this issue and also on his lawsuit. He said generally
speaking CSSCR 25 is a good expression of the legislature's
support for their states rights. Given what they have seen over
the past few years with regard to the increasing intervention of
the federal government into the management of fish and game the
timing is good, the intent is good and the principal is good.
In conclusion AOC wanted to thank Senator Taylor for sponsoring
the bill, for moving it through and for keeping an eye on this
issue. It is a good statement of the legislatures support for
trying to retain management of fish and game by the State of
Alaska.
AUSTIN AHMASUK, Nome resident, said he received the latest
working draft of SCR 25 about four minutes before his testimony.
He was not pleased that they had just received it.
He said he was an Inupiaq Eskimo born and raised in Nome, Alaska.
He is married and has four children. Hunting and fishing around
Nome is important to his culture and important in raising his
children. He wanted to testify in opposition to SCR 25, which
would destroy many aspects of subsistence livelihood. He lived
there himself and would likely nurture his children into
responsible and hard working adults.
MR. AHMASUK said challenging the actions of the United States
Congress in enacting Title 8 of ANILCA would do great harm to the
Alaska Native and rural people of the state in terms of
subsistence use. The Alaska Statehood Act and implementing laws
were subject to Aboriginal Title but were outright ignored until
the Alaska Native Claims Settlement Act (ANCSA). He said SCR 25
ignores and wishes to destroy subsistence use. Alaska Statute
16.05.258 clearly indicates that subsistence shall be afforded
for in times of plenty and certainly in times of shortage. It
appears that nothing in the Alaska Statehood Act impaired the
ability of Alaska Natives to compensation for extinguishment of
aboriginal claims, including subsistence use. ANCSA Section 12
(b) clearly indicates that native land selections where to take
into account historic uses and subsistence needs of Alaska
Natives and they are not subject to traditional review.
He said he strongly challenged the sponsor of the bill to prove
the action being sought will not harm a long standing legal
mandate that has been through many trials and tribulations for
the benefit of Alaska's first people and those that have learned
subsistence and live it hand and hand in remote and rural parts
of Alaska. Section 804 of ANILCA clearly indicates a mandate for
a rural subsistence priority. That legal mandate and
implementing laws should not be infringed upon in times of plenty
and most definitely in times of shortage. As legal history
clearly indicates Alaska Native people have been reliant on the
resources of the land and water. It is clear competing uses can
have devastating affects on animal and fish populations. Only by
limiting uses among users can animal and fish populations exist
for the benefit of future users and fulfill the immediate needs
of customary and traditional users of the resource. He thanked
Chairman Taylor for his time and consideration.
MR. DON JOHNSON, Soldotna resident, wanted to congratulate
Chairman Taylor for sponsoring SCR 25 and said it had been a long
time coming. He said they tried a lot of avenues to correct this
problem and he completely agreed with the intent behind SCR 25.
He said the real shame was the Governor of the great State of
Alaska dismissed the case they had before the federal government,
which put them in a position where they have to do something
else. He agreed the Alaska Constitution binds the Alaska
Legislature in that it must perform its duty as Alaska's trustee
to protect the citizens of this state who are the beneficiaries
of the public trust for fish and wildlife. He believed that
Title 8 of ANILCA attempts to usurp the authority of the
legislature in an attempt to manage Alaska's fish and wildlife in
a different way other than sustained yield. In his opinion that
way would end up destroying the fish and wildlife in the State of
Alaska within a matter of time.
He said the earlier statement of aboriginal claims was an
incorrect statement in that there was a two billion dollar payoff
for aboriginal claims not many years ago to take care of those
claims. Basically all the people who were sighting aboriginal
claims find often it is just maybe one percent of the natives of
the state. He did not believe that really applied at all to
this situation. He said Title 8 was particularly offensive to
him in that it reversed Alaska's majority use position and
reformed it into a federal minority use position. The majority
of residents resides outside the rural areas of Alaska and would
be totally excluded from participating in this subsistence
preference established by ANILCA. He said he did not believe
anybody in Alaska wanted that to happen, maybe the federal
government did but nobody around there did. He could not believe
anybody who really understands the intent behind ANILCA would
agree with that. He firmly believed the U.S. Government signed
off on the management issue when statehood went through. They
actually signed off giving Alaska the authority to manage its own
fish and wildlife. Once that statehood contract had been
established it was not a severable commodity to be rescindable on
and off with time according to whether or not the federal
government thinks they are behaving as far as a state goes.
MR. WARREN E. OLSON, Alaska Constitutional Legal Defense
Conservation Fund Incorporated, said he was a 45-year resident.
For 25 of those years he had been involved in opposing and or
trying to modify state law and federal law working within state
courts and federal courts towards the subject of discrimination
caused by Title 8 of ANILCA. He supports SCR 25 but did not have
a copy of the CS.
MR. OLSON said he has a very strong reason for supporting this
action and that is called finality. When Governor Knowles failed
to move forward on Katie John v. State of Alaska he abandoned
three quarters of the residents of Alaska and he avoided finality
on this question of Title 8 and ANILCA. The people who need
finality are the legislators, the administration, the Board of
Game, the Board of Fisheries, the advisory boards and most of all
the resources. He said he was absolutely convinced, as the
committee had received strong communications from him, the folks
that normally would be participating in the process of the
Fishery Board and Game Board and the advisory committees have
abandoned the process.
He had one suggestion for the bill on page 3. He suggested
strengthening this resolution on page 3, line 6 and 7 where he
would introduce or include and describe police powers of the
State of Alaska. He said the licensing, the seasons and bag
limits, responsibility, means and methods and protection are the
sole responsibility of the State of Alaska.
CHAIRMAN TAYLOR said the main thrust of this legislation is to
address the issue from a perspective that has not yet been taken
up. That is every citizen of Alaska wherever they live is a
beneficiary of the inherent public trust that is given to the
assets of the state that were conveyed to them at statehood and
every citizen is the beneficiary of those assets. So if the
asset is a caribou or a deer or a moose or a bear every citizen
in the state is the beneficiary of those fish and wildlife
assets.
For example when they in the state decide to sell a piece of
state land the public trust doctrine comes into play. You cannot
give that away. You cannot just hand it to someone and say here
is a big piece of Alaska. They are required to make certain the
public's interest in that land is protected. You would not sell
off all of your coastal waterways because no one would be able to
land a ship. There would be no public dock or wharf. You do not
give away or sell your entire resource base or the public would
have no opportunity to dig clams or to go get a crab when they
wanted one on the shore. They would have no opportunity to
harvest a deer or a bear for food supply or for the hide. All
these things would then be excluded.
CHAIRMAN TAYLOR said this public trust doctrine goes clear back
to before Magna Carta in England. The rights of the people to
access their resources had to be protected. He said
interestingly, throughout history every court has looked to the
legislative body to protect the public trust. The legislative
body in this instance, the House and Senate of the State of
Alaska, are trustees. They are not just sitting there as
representatives of the people to vote on various things they
actually have a fiduciary responsibility. Each of these animals
and fish has some value and the House and Senate are the
guardians of that public trust.
He gave the example of the Permanent Fund as a public trust. For
all intents and purposes, it is a trust they may use for state
purposes it is a trust to provide for the beneficiaries of the
trust, every man, woman and child of the State of Alaska. He
asked if they could imagine the outcry that would occur in the
State of Alaska and how fast they would find each of themselves
impeached if they attempted to say only people living in a rural
area would receive a permanent fund check. He said the roof
would come off that place and it should because they would not be
distributing the public trust asset in an equal fashion. They
would be discriminating in the way they distributed that public
trust asset. The very same thing is happening through this
federal law.
CHAIRMAN TAYLOR said if that law is not tested and challenged by
the legislature then they have abrogated their responsibilities
as trustees. He said the issue is not one of whether or not you
believe in subsistence or you believe in sustenance, which is the
utilization of these things for food that is not the question.
The question is are they as a legislature in violation of the
public trust doctrine that requires them to treat every citizen
in Alaska equally no matter what their race, color, creed,
national origin, religion and probably most importantly no matter
where they live and will they be treated as an Alaskan citizen
and an equal beneficiary. That is the reason SCR 25 is there.
He wanted to say that because Mr. Olson had worked so long on
that and had submitted so many different treatises to the
legislature on the public trust doctrine. It is a doctrine that
has not been tested in the courts yet.
CHAIRMAN TAYLOR asked Ted Popely how many years he had worked for
the House and Senate Majority.
MR. TED POPELY, Majority Legal Counsel, answered seven years.
CHAIRMAN TAYLOR asked if during that time a major percentage of
his time has been spent on issues revolving around state
sovereignty and Title 8 ANILCA.
MR. POPELY, answered yes.
CHAIRMAN TAYLOR asked if he could give the committee his
impression of the public trust doctrine and whether or not this
litigation, should it be brought by the Alaska Legislative
Council would lie and have jurisdiction.
MR. POPELY answered the public trust doctrine itself is certainly
a viable claim in a case like this revolving around the
allocation of state resources. It is a substantial doctrine
steeped in lots of history and case law around the country.
Chairman Taylor was right; it has not been litigated within this
context of subsistence and Title 8. So it is a viable claim.
He said the second part of his question as to whether or not a
claim would lie with the Legislative Council is a more difficult
question. It is a lot harder to answer. They obviously faced a
lot of difficulty in pursuing litigation as a legislative body as
opposed to the Department of Law because of the separation of
powers doctrine. He thought their chief concern in this case is
procedural rather than substantive. Substantive arguments can be
made, they are valid, they are strong arguments and the court
would certainly rule on those. They would hope that it would be
in their favor. He said "Procedurally, I think, the bigger
hurtle is getting the legislature as the party in question before
the court on this question."
CHAIRMAN TAYLOR asked if he had the chance yet to do research on
the issue of who represents the people under public trust
litigation.
MR. POPELY said he had done some work in that area. He said it
is general legislative bodies like Chairman Taylor had said, who
are referred to in the public trust analysis as protectors of the
resource and that makes sense. Logically it is the legislative
bodies who are the policy-making bodies of states. They are in
charge of course of passing laws that govern the use of the
resources. Public trust doctrine mandates that those decisions
be made in a fair and equitable and reasonable manner and is of
course what the public trust doctrine stands for.
CHAIRMAN TAYLOR said the legislature was generally the
appropriate body to bring the litigation. In fact there are
several cases where legislatures have been found to have
standing, which is the critical question. They had been
frustrated in the attempts of the past brought by the legislature
to join in suits or to maintain suits after the governor
dismissed them.
MR. POPELY said courts have analyzed the situation in Alaska with
the separation of powers that we have in our constitution and
have read that generally to mean the administration is the body
that brings litigation on behalf of the state. That is where
they have run into difficulty trying to litigate some of these
issues as a legislature or a subunit of the legislature through
legislative council.
CHAIRMAN TAYLOR said that was why he referred to those other list
of cases where state legislatures themselves have been found to
have standing even if the executive chose not to sue because of
the unique responsibility that the legislature has as trustee of
those public trust assets.
MR. POPELY said yes that has occurred. It certainly has.
SENATOR ELLIS said let us say this went forward and the
legislature were to pursue this. He asked Mr. Popely if he could
give him a dollar figure, high dollar of low dollar figure, for
this being pursued to finality.
MR. POPELY said he did not know if he could. That is a tough
question and he had not thought about it in terms of dollars
bringing a case like this. He said he supposed that the realm of
possibility is quite wide. It could be done in house in which
case there would be very little expenditure all the way through
hiring outside counsel which of course this legislature has done
in the past, which could prove to be quite expensive. That is
probably more of a policy question for their colleagues than for
him. He said he really did not know.
SENATOR ELLIS said he posed the same question to Chairman Taylor
as an attorney and as someone familiar with this and probably
envisions how he would like to see all this unfold with the best
and the brightest. He asked how many years and how much money.
CHAIRMAN TAYLOR said he did not think it would cost all that much
if in fact they kept it in house and joined in the litigation
already pending. The Alaska Constitutional Defense Fund case was
referred to by Mr. Bondurant and Mr. Olson is already pending.
It already survived several challenges through summary judgment
and all the state would have to do would be to interplead in that
as an additional plaintiff and advocate on the public trust
doctrine on behave of the people of Alaska. That was the aspect
of the case they were told they could not bring individually.
They are advocating on their own behalf at this point and so the
court has allowed them to move forward on the equal protection
argument. A major portion of that case from the time it was
filed was on the public trust doctrine itself and the court found
that they did not have standing to represent the people of the
State of Alaska. He thought tacitly what the court was saying
was the legislature itself is the true trustees and responsible
for the people on these issues. The case law they have seen
would indicate that the legislature itself can intervene on that
suit on behalf of all the people of Alaska and then have that
portion of that case litigated.
He said it would probably go to the Ninth Circuit Court and from
the Ninth Circuit on to the Supreme Court. They were probably
looking at period of time of at least five to six years but that
would be a quicker finality than anything he knew of right then.
With the dismissal of the Katie John case they lost their last
chance at some absolute finality from the Supreme Court on this
very contentious issue.
CHAIRMAN TAYLOR said if it is kept in house they are probably not
looking at anything more than the salaries of the people they are
currently hiring and paying to do some of the very same stuff.
At some juncture they may have to go beyond that.
SENATOR DONLEY moved SCR 25 the CS (JUD) as adopted the J version
from committee with individual recommendations.
SENATOR ELLIS objected.
CHAIRMAN TAYLOR called for a roll call vote.
The motion to move CSSCR 25 from committee carried with Senator
Donley, Senator Therriault, and Chairman Taylor voting "yea," and
Senator Ellis voting "nay."
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