Legislature(1999 - 2000)

03/22/1999 03:20 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
             SB 91-ENFORCEMENT OF SUBSISTENCE LAWS                                                                              
                                                                                                                                
                                                                                                                                
CHAIRMAN HALFORD announced SB 91 to be up for consideration.                                                                    
                                                                                                                                
MS. MEL KROGSENG, Aide to Senator Taylor, sponsor, said SB 91                                                                   
basically prohibits any member of our Department of Public Safety                                                               
or other state employee or a member of a police department of a                                                                 
local municipality from enforcing any federal statute or regulation                                                             
that is inconsistent with out State Constitution or the                                                                         
Constitution of the United States.  It also prohibits federal                                                                   
agents from the same thing.  Another section of the bill repeals                                                                
the authority of the Commissioner of ADF&G from engaging in                                                                     
agreements with federal law enforcement officers who are enforcing                                                              
laws pertaining to subsistence eligibility.  Basically, she said,                                                               
we are not going to help them enforce laws that are in violation of                                                             
our constitution.                                                                                                               
                                                                                                                                
MR. LYNN LEVENGOOD, said he is an attorney in Fairbanks and                                                                     
supported SB 91 for a number of reasons.  He said, "There is a                                                                  
train wreck scheduled and it's between the sovereignty of the State                                                             
of Alaska and the intrusions of the federal government into the                                                                 
sovereignty of the State of Alaska."  He said it's happening                                                                    
rapidly.  Last year, the federal Subsistence Board declared sheep                                                               
hunting areas where ADF&G had issued permits were open to federal                                                               
hunting only.  This year, the Glacier Bay issue is coming to the                                                                
forefront.  The federal government has kicked out our long-standing                                                             
fishermen and the sovereignty of the State of Alaska through the                                                                
Submerged Lands Act.                                                                                                            
                                                                                                                                
MR. LEVENGOOD said that AS 16.05.050 (a)1 requires the Commissioner                                                             
of ADF&G to cooperate with the federal government, he didn't think                                                              
there was federal reciprocity to cooperate with the State of                                                                    
Alaska.  This bill is necessary to repeal that requirement and to                                                               
prevent unfunded federal mandates.  The Legislature should do                                                                   
everything they can to prevent Alaskan's sovereignty from being                                                                 
encroached upon and the federal government from violating the                                                                   
constitutional rights of Alaskan citizens.                                                                                      
                                                                                                                                
He thought the idea that federal and state law enforcement agencies                                                             
being so dependent upon each other for each other's safety was a                                                                
ruse.  Clearly, this legislation doesn't prohibit cooperation; just                                                             
cooperating on federal regulations or laws that are in dispute.                                                                 
                                                                                                                                
MR. MYLES CONWAY, Assistant Attorney General, pointed out that                                                                  
Section (c) of SB 91 would be unenforceable.  It makes it illegal                                                               
for federal officials to enforce federal laws or regulations that                                                               
are inconsistent with the State's constitution.  To prosecute                                                                   
federal officials for enforcing their own laws would be dismissed                                                               
from the court with the supremacy clause of the U.S. Constitution.                                                              
In addition, we would be subjecting our state officers to potential                                                             
federal criminal liability.  There is a federal statute making it                                                               
illegal to interfere with federal officials performing their                                                                    
duties.                                                                                                                         
                                                                                                                                
MS. KROGSENG responded that she had discussed this with Mr.                                                                     
Levengood and even if this is unenforceable, it would put the                                                                   
State's position on the table.  We don't want the federal                                                                       
government enforcing laws that are inconsistent with our                                                                        
Constitution or the U.S. Constitution.  Other lower 48 states have                                                              
put laws on the books recently about the federal government                                                                     
purchasing land, because they don't want additional land being                                                                  
bought by the federal government, although they realize they may                                                                
not be able to enforce it.  The intent is to make a policy call.                                                                
                                                                                                                                
MR. LEVENGOOD responded that he didn't disagree, but there are                                                                  
certain requirements in some of the federal agencies that say some                                                              
of their regulations can only be carried out and enforced if there                                                              
is cooperation with the state and local governments.  This would be                                                             
one regulation we are objecting to.                                                                                             
                                                                                                                                
Number 569                                                                                                                      
                                                                                                                                
MAJOR JOE D'AMICO, Department of Public Safety, testified his                                                                   
biggest concern regarding SB 91, also stated in a letter to the                                                                 
committee, is the unintended effect that Alaskan troopers will lose                                                             
some degree of safety, mostly for rural troopers, if it is passed.                                                              
He explained that most of our cross-deputization agreements are                                                                 
reciprocal in nature.  There is no current law now that requires us                                                             
to assist federal officers.  In fact, in Glacier Bay we refused.                                                                
It's a policy that they will not enforce federal fishing laws or                                                                
assist the Park Service in that area.  In rural areas, however, in                                                              
many instances the closest help is a federal officer.                                                                           
                                                                                                                                
SENATOR MACKIE asked if we had ever used any of our vessels to                                                                  
"ferry around" Park Service Rangers or anything in Glacier Bay or                                                               
anywhere else.                                                                                                                  
                                                                                                                                
TAPE 99-14, SIDE B                                                                                                              
Number 590                                                                                                                      
                                                                                                                                
His understanding was equipment was used in Glacier Bay only for                                                                
our troopers who were enforcing our own fish and wildlife laws.                                                                 
                                                                                                                                
MAJOR D'AMICO replied that he researched that issue using written                                                               
records dating back to 1986 and they had never carted federal                                                                   
agents around in Glacier Bay.  The Department has enforced state                                                                
laws for commercial fisheries in Glacier Bay.  They have ridden in                                                              
Park Service vehicles for the Gustavus area state moose hunt which                                                              
does not occur on Park land.  That's because they don't have state                                                              
vehicle available in Gustavus and it was convenient.  They have                                                                 
also moored state boats free of charge at the Park Service dock in                                                              
Glacier Bay in conjunction with state fisheries efforts.                                                                        
                                                                                                                                
SENATOR PARNELL asked if he currently helped enforce federal                                                                    
statutes and regulations governing hunting and fishing.                                                                         
                                                                                                                                
MAJOR D'AMICO said he has tried to figure out what that really                                                                  
means.  He said the example in his letter with the brown bear and                                                               
swans actually happened to one of his troopers and in that case                                                                 
they did directly assist a federal officer with a violation.  A                                                                 
trooper in Haines recently investigated the shooting of a bald                                                                  
eagle.  There are occasions where state troopers assist federal                                                                 
officers.                                                                                                                       
                                                                                                                                
SENATOR PARNELL asked if the swan example was unintended.                                                                       
                                                                                                                                
MAJOR D'AMICO said that is correct.  The trooper was working on the                                                             
spring brown enforcement season, a state hunt, and they saw a                                                                   
hunter with bear and checked it.  When they unrolled it to seal it,                                                             
they found the swans.                                                                                                           
                                                                                                                                
SENATOR PARNELL said he didn't see how he was tying a prohibition                                                               
against direct enforcement of a federal subsistence hunting or                                                                  
fishing statute with trooper safety being put at risk.                                                                          
                                                                                                                                
MAJOR D'AMICO said he could as in the case of the swans.  In the                                                                
case of the swans, he wondered if the trooper would be in violation                                                             
of Section (a) in the direct assistance to the federal officer by                                                               
providing the transportation.  He said he didn't know exactly what                                                              
"direct assistance" means.  He explained that they have a good                                                                  
relationship with most of the federal agencies to provide                                                                       
reciprocal assistance and in many cases when the request is made,                                                               
the officer doesn't know that there's going to be a problem, but                                                                
they are concerned one will occur.  The state receives the ratio of                                                             
8 or 9 to one assistances from the federal agencies in terms of                                                                 
personnel and equipment.  The state is on the winning end when that                                                             
occurs.                                                                                                                         
                                                                                                                                
Number 532                                                                                                                      
                                                                                                                                
SENATOR TAYLOR asked if there was any assurance that Major D'Amico                                                              
wouldn't provide backup to a federal agent in Glacier Bay.                                                                      
                                                                                                                                
MAJOR D'AMICO replied if they were requested to backup a federal                                                                
officer enforcing a federal law in Glacier Bay, they would probably                                                             
do it to prevent some type of problem.                                                                                          
                                                                                                                                
SENATOR TAYLOR said he wasn't concerned about what happened in the                                                              
past.  He was concerned about the "pickle" they would find                                                                      
themselves in if there is something going on in Glacier Bay and                                                                 
they ask for assistance.  He said they would be enforcing something                                                             
that is very unconstitutional and we are going to file suit over.                                                               
                                                                                                                                
MAJOR D'AMICO said they would want a trooper to prevent violence.                                                               
He was not just concerned about the federal officer, but the                                                                    
Alaskan citizen that they are going to contact.                                                                                 
                                                                                                                                
SENATOR TAYLOR asked if he thought the Alaskan would think he was                                                               
there to protect him and his sovereign rights as a citizen when he                                                              
walks up shoulder to shoulder with a federal officer to place him                                                               
under arrest.                                                                                                                   
                                                                                                                                
MAJOR D'AMICO said he didn't know the answer to that.  Whenever he                                                              
has assisted federal officers, they have been glad to have him.                                                                 
                                                                                                                                
SENATOR TAYLOR said whoever was with the swans inside the bear hide                                                             
had to make a decision about what the limit was for swans taken by                                                              
a qualified federal subsistence user and asked if there was a limit                                                             
at the time if you were a subsistence user.                                                                                     
                                                                                                                                
MAJOR D'AMICO answered that he was not current on all federal law,                                                              
although he knows they allow some take of swans in the spring.                                                                  
                                                                                                                                
SENATOR TAYLOR said it wouldn't have been his problem, because they                                                             
are both violations of federal law.  He asked what the trooper did                                                              
with the guys with the swans.                                                                                                   
                                                                                                                                
MAJOR D'AMICO said that the trooper didn't do anything, that the                                                                
federal officer handled it.                                                                                                     
                                                                                                                                
SENATOR TAYLOR asked if the defendant lived in the right community.                                                             
                                                                                                                                
MAJOR D'AMICO replied that he did.                                                                                              
                                                                                                                                
SENATOR TAYLOR asked if we have a law against shooting swans in                                                                 
Alaska.                                                                                                                         
                                                                                                                                
MAJOR D'AMICO answered that there are some state sanctioned swan                                                                
hunts in Alaska.  They are in game management units and have                                                                    
seasons and bag limits and firearms restrictions.                                                                               
                                                                                                                                
SENATOR TAYLOR asked if the state officer was aware of that.                                                                    
                                                                                                                                
MAJOR D'AMICO answered yes.                                                                                                     
                                                                                                                                
SENATOR TAYLOR asked why he didn't arrest the man for shooting six                                                              
swans.                                                                                                                          
                                                                                                                                
MAJOR D'AMICO answered it was a federal problem and we generally                                                                
don't do federal enforcement.                                                                                                   
                                                                                                                                
SENATOR TAYLOR noted that we have Alaskan laws about killing swans                                                              
and asked if that wasn't an Alaskan problem if our officer caught                                                               
a man with six dead swans.                                                                                                      
                                                                                                                                
MAJOR D'AMICO said the federal government manages and enforces most                                                             
waterfowl cases.                                                                                                                
                                                                                                                                
SENATOR TAYLOR asked if his officers would not arrest him if he                                                                 
were in violation of a bag limit on swans.                                                                                      
                                                                                                                                
MAJOR D'AMICO said they would if they were shot in the spring.                                                                  
                                                                                                                                
SENATOR TAYLOR said shooting in the spring was even worse since                                                                 
there is no season that time of the year.                                                                                       
                                                                                                                                
MAJOR D'AMICO responded that he wasn't sure he understood the                                                                   
point, but if he were out there during a season and was over limit,                                                             
he would be cited by a trooper.  If he did it in the spring, they                                                               
would most likely turn it over to the federal government.                                                                       
                                                                                                                                
CHAIRMAN HALFORD thanked Major D'Amico for writing his long                                                                     
detailed letter and asked about an item on the second page saying                                                               
a standing order is currently in place prohibiting our employees                                                                
from using equipment for transporting Park Rangers or to assist                                                                 
federal officers in their attempts to enforce federal fishery laws                                                              
in the Glacier Bay area.  He said if Major D'Amico can make a                                                                   
policy like that work, it would seem that he could come up with a                                                               
policy using the same methodology  that would keep the state out of                                                             
enforcing laws that are unconstitutional.  He could see the reality                                                             
with regards to personal safety and federal criminal law.  He                                                                   
thought there was a way to work through that and produce a bill                                                                 
that avoids those problems and actually does something.                                                                         
                                                                                                                                
MAJOR D'AMICO said if this bill passes he was not sure they could                                                               
aid federal officers with a valid federal warrant to make an                                                                    
arrest.                                                                                                                         
                                                                                                                                
CHAIRMAN HALFORD asked if they had a policy right now of not                                                                    
helping or transporting federal officers to enforce fisheries law                                                               
in the Glacier Bay area.                                                                                                        
                                                                                                                                
MAJOR D'AMICO said that is right.                                                                                               
                                                                                                                                
SENATOR TAYLOR said he was only concerned that we don't have our                                                                
officers violating our constitution as they go to aid a federal                                                                 
agent.  He asked if their policy was in writing.                                                                                
                                                                                                                                
MAJOR D'AMICO answered that Commissioner Otte put out a standing                                                                
order that this would not occur.  Any request for assistance by the                                                             
Park Service has to come through his office and he or Colonel Glass                                                             
have to approve it except for emergencies.                                                                                      
                                                                                                                                
SENATOR TAYLOR said he was trying to get that policy into writing.                                                              
                                                                                                                                
MAJOR D'AMICO responded that's why the Department supports the                                                                  
intent of the bill, but are concerned about the reciprocity on                                                                  
backup.                                                                                                                         
                                                                                                                                
SENATOR MACKIE said the reason he can't support this is because we                                                              
receive nine to one assists from them.  He has participated in                                                                  
enough law enforcement activities to know when you are out there by                                                             
yourself and need a backup, it's nice to have someone to back you                                                               
up.  Many of the federal officers are Alaskans, too, and he didn't                                                              
want to support something that would put their life in danger.                                                                  
                                                                                                                                
Number 343                                                                                                                      
                                                                                                                                
SENATOR PETE KELLY asked if there was a way to separate assaultive                                                              
behavior in the bill.                                                                                                           
                                                                                                                                
SENATOR TAYLOR said that not one of the examples citted are                                                                     
impacted by this legislation.                                                                                                   
                                                                                                                                
SENATOR MACKIE disagreed.                                                                                                       
                                                                                                                                
SENATOR TAYLOR said an officer takes an oath saying he'll support                                                               
and defend the Constitution of the United States and the                                                                        
Constitution of the State of Alaska and will fully discharge his                                                                
duties as an Alaskan state trooper to the best of his ability.                                                                  
He's in violation of his oath when he steps up to enforce a law                                                                 
that his Supreme Court has told him is an unconstitutional law.                                                                 
                                                                                                                                
SENATOR MACKIE said he is a lot more comfortable with our Alaska                                                                
state troopers handling a situation that has danger to the                                                                      
perpetrator or to the officers involved.  He thought it was bad                                                                 
public policy to take away our ability to assist.                                                                               
                                                                                                                                
SENATOR TAYLOR said that's a red herring and the only thing they                                                                
are being precluded from doing is assisting federal officers in the                                                             
enforcement of subsistence regulations.                                                                                         
                                                                                                                                
SENATOR KELLY said he also needed a level of comfort that is all                                                                
this is doing.                                                                                                                  
                                                                                                                                
SENATOR MACKIE noted the section that says, "The Department of                                                                  
Public Safety may not enforce or directly assist..." includes a                                                                 
whole wide range of things.  He didn't really didn't see how our                                                                
men would be involved if the feds were citing someone for a                                                                     
subsistence offense.  He explained in a lot of situations the                                                                   
arresting officer finds out a little bit about the person being                                                                 
arrested.  If the officer feels there is a safety concern, although                                                             
it is a subsistence offense, he calls for backup. It happens all                                                                
the time.  He said you can't craft all the circumstances into one                                                               
paragraph and just say subsistence when other factors are involved.                                                             
                                                                                                                                
SENATOR TAYLOR reiterated that our officers cannot assist in                                                                    
enforcement of a regulation governing eligibility to engage in                                                                  
subsistence hunting or fishing.  Period.                                                                                        
                                                                                                                                
Number 165                                                                                                                      
                                                                                                                                
SENATOR GREEN asked what the language on page 1, line 14 "(b) an                                                                
employee or law enforcement agent of a state department other than                                                              
the Department of Public Safety or other state agency or a police                                                               
officer employed by a municipality may not enforce...etc."  meant.                                                              
She noted they are saying "other than" which exempts all the people                                                             
they are trying to include.                                                                                                     
                                                                                                                                
SENATOR TAYLOR moved to delete Section (c).  There were no                                                                      
objections and it was so ordered.                                                                                               
                                                                                                                                
SENATOR MACKIE asked why they were using a statute to direct a                                                                  
municipal law enforcement agency on whom they can and cannot                                                                    
assist.                                                                                                                         
                                                                                                                                
SENATOR KELLY told Major D'Amico that he didn't think his fears                                                                 
were justified.  He didn't see how he would be prohibited from                                                                  
backing up a federal officer.                                                                                                   
                                                                                                                                
MAJOR D'AMICO answered on page 1, line 8 and 9 it says, "the                                                                    
Department of Public Safety cannot enforce or directly assist the                                                               
enforcement of a federal statute or regulation governing                                                                        
eligibility to engage in hunting or fishing in the state if the                                                                 
statute or regulation cannot be enacted by the state or regulations                                                             
could not be adopted by the state department or agency because the                                                              
statute or regulation violates either the constitution of the State                                                             
of Alaska or the Constitution of the United States."  As an                                                                     
example, if someone came to Hoonah who did not qualify under                                                                    
federal law  to participate in a hunt and illegally took some deer,                                                             
then they went back to their home and the federal officer found out                                                             
who that person was and was prepared to issue a citation.  If                                                                   
during the computer records check, he discovered this person had                                                                
exhibited compulsive behavior in the past toward law enforcement                                                                
officers, he thought the trooper would be precluded under this                                                                  
section from going along and providing that backup service, because                                                             
at this point the only violation was a federal regulation                                                                       
pertaining to subsistence hunting.  He thought the danger here was                                                              
if we don't provide that service, when we need that service, it                                                                 
won't be available for us.                                                                                                      
                                                                                                                                
TAPE 99-15, SIDE A                                                                                                              
Number 001                                                                                                                      
                                                                                                                                
MAJOR D'AMICO said in Glacier Bay that under current law they can                                                               
still provide backup to prevent violence, but they will not help                                                                
enforce federal fishery laws.                                                                                                   
                                                                                                                                
SENATOR TAYLOR said that many are confused that they won't help                                                                 
enforce federal fishery laws in Glacier Bay, but are upset if his                                                               
legislation precludes him from doing exactly the same thing on                                                                  
federal subsistence laws.                                                                                                       
                                                                                                                                
SENATOR PARNELL explained the difference under their current                                                                    
policy, if there was some danger of assault, they would be able to                                                              
assist the officers.                                                                                                            
                                                                                                                                
CHAIRMAN HALFORD noted that this wasn't even the entire subsistence                                                             
law, because there are a lot of areas where the state and federal                                                               
subsistence laws are consistent.  It only refers to the                                                                         
qualification differential based on the location of residence, the                                                              
only provision that has been found unconstitutional by our Supreme                                                              
Court.                                                                                                                          
                                                                                                                                
SENATOR MACKIE asked Senator Taylor if he would consider adding                                                                 
language like "unless it involved the threat of life or safety to                                                               
an officer."                                                                                                                    
                                                                                                                                
MAJOR D'AMICO responded that he thought if it would allow them to                                                               
provide backup service, the Department could support it.                                                                        
                                                                                                                                
CHAIRMAN HALFORD said he wanted the feds to pay the bill for                                                                    
stepping all over our constitution.                                                                                             
                                                                                                                                
SENATOR MACKIE said he didn't disagree with that, but he feels                                                                  
strongly about the backup provision.  He said he has a lot more                                                                 
confidence in our state troopers for handling these kinds of                                                                    
situations than having federal officers or armed park rangers.                                                                  
                                                                                                                                
SENATOR TAYLOR said he would try to find some language to that                                                                  
effect.                                                                                                                         
                                                                                                                                
CHAIRMAN HALFORD suggested adding, "Unless the assistance is only                                                               
provided in an immediate case where no alternative backup is                                                                    
available at any cost."  He thought it would cover the rural                                                                    
situation.                                                                                                                      
                                                                                                                                
SENATOR PARNELL said they could add language on page 1, line 8 that                                                             
says "notwithstanding AS 18.65.090 and except in the case of threat                                                             
of imminent physical injury, the Department of Public Safety..."                                                                
                                                                                                                                
CHAIRMAN HALFORD announced they would hold the bill for further                                                                 
work.                                                                                                                           

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