Legislature(1999 - 2000)
05/05/1999 03:15 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
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HB 109-GLACIER BAY NATL.PARK/PUBLIC WATERS
REPRESENTATIVE SCOTT OGAN, sponsor of HB 109, gave the following
overview of the measure. The catalyst for the introduction of HB
109 was an incident in which federal agents boarded commercial
fishing boats in Glacier Bay. The legislature needs to make a
strong statement that it does not assent to federal control. AS
16.20.010 speaks to not assenting to federal control in a national
bird and wildlife refuge; that same statement can be made for
Glacier Bay. HB 109 dovetails with the Governor's promise to
litigate against Department of Interior Secretary Bruce Babbitt
over the navigable waters of Glacier Bay. The legislation contains
additional language that prevents Alaska's fish and game officers
from enforcing any federal law or regulation that conflicts with
any state law or regulation. Some of the concerns raised by the
Department of Public Safety were addressed by adding language to
Section 3 stating that nothing prohibits an agency or employee of
an agency from taking action necessary to protect life or property,
from commenting on federal laws, or from collecting data relating
to harm.
CHAIRMAN HALFORD noted an amendment has been proposed that is a
statement of policy on navigable and public waters from the Alaska
Constitution. He asked Representative Ogan to comment on the
proposed amendment.
Number 81
REPRESENTATIVE OGAN indicated that he agrees in principal with the
approach taken in the amendment and that its title is broad enough.
SENATOR TAYLOR moved to adopt Amendment 1 (Utermohle, 5/4/99).
Amendment 1 reads as follows.
Page 3, following line 20:
Insert new bill sections to read:
"*Sec. 4. AS 38.05 is amended by adding a new section to read:
Sec.38.05.126. Navigable and public water. (a) The
people of the state have a constitutional right to free access to
and use of the navigable or public water of the state.
(b) The state has full power and control of all of the
navigable or public water of the state, both meandered and
unmeandered, and the state holds and controls all navigable or
public water in trust for the use of the people of the state.
(c) Ownership of land bordering navigable or public water
does not grant an exclusive right to the use of the water and a
right of title to the land below the ordinary high water mark is
subject to the rights of the people of the state to use and have
access to the water for recreational purposes or other public
purposes for which the water is used or capable of being used
consistent with the public trust.
(d) This section may not be construed to affect or abridge
valid existing rights or create a right or privilege of the public
to cross or enter private land.
*Sec.5. AS 38.05.128(a) is amended to read:
(a) A person may not obstruct or interfere with the free
passage or use by a person [MEMBER] of [THE PUBLIC ON] any
navigable water [AS DEFINED IN AS 38.05.965] unless the obstruction
or interference is
(1) authorized by a federal agency and a [OR] state
agency;
(2) authorized under a federal or state law or permit;
(3) exempt under 33 U.S.C. 1344(f) (Clean Water Act);
(4) caused by the normal operation of freight barging
that is otherwise consistent with law; or
(5) authorized by the commissioner after reasonable
public notice.
*Sec 6. AS 38.05.128 is amended by adding new subsections to read:
(e) Free passage or use of any navigable water includes the
right to use land below the ordinary high water mark to the extent
reasonably necessary to use the navigable water consistent with the
public trust.
(f) Free passage or use of any navigable water includes the
right to enter adjacent land above the ordinary high water mark as
necessary to portage around obstacles or obstructions to travel on
the water, provided
(1) entry is made without injury or damage to the land;
(2) entry is made in the least obtrusive manner possible;
(3) there is no reasonable alternative available to avoid
the use of the adjacent land above the ordinary high water mark;
and
(4) the navigable water is reentered immediately below
the obstacle or obstruction at the nearest point where it is safe
to do so."
SENATOR LINCOLN objected to the motion for the reason that
committee members have not been given sufficient time to review it.
She commented that the bill addresses Glacier Bay National Park,
which she does not object to, however Amendment 1 pertains to all
navigable waters of the state and therefore substantially broadens
the scope of HB 109.
CHAIRMAN HALFORD asked Brett Huber to explain the origin of
Amendment 1.
Number 113
BRETT HUBER, legislative staff to the Senate Resources Committee,
stated that Senator Halford has been working on the navigability
and public access issue for the past several years in the Senate
Resources Committee. The committee has worked with the
Administration's navigability team, comprised of the director of
the Division of Lands and representatives from both the Departments
of Law and Fish and Game. The group developed some amendments to
clarify, statutorily, the constitutional provisions allowing access
to, and use of, navigable and public waters. Section 4 of
Amendment 1 is a preamble to Chapter 82 and reflects the provisions
of Article 8, Section 14 of the Constitution, related to access on
navigable waters. Section 5 of Amendment 1 mirrors language added
to the same measure in 1985 that removed the ability to obstruct or
interfere with free passage on navigable waters. Amendment 1
broadens the statute to prevent interference with the use, as well
as free passage, of navigable waters. On page 1, line 21 of
Amendment 1, language was added to clarify that any federal agency
action requires state concurrence. Section 6 speaks to the free
passage or use of navigable water and includes the right to use the
land below the ordinary high water mark to the extent reasonably
necessary, as long as it is consistent with the public trust. The
constitutional and public trust provisions are read and being
applied in that manner at this time. Subsection (f) of Section 6
describes how and when portaging may occur on navigable waters.
Mr. Huber informed committee members that representatives from the
Departments of Law and Fish and Game were available to speak to the
purpose of and need for Amendment 1.
SENATOR MACKIE asked if the state agencies are in support of
Amendment 1. MR. HUBER replied that it is his understanding that
the members of the Administration's navigational team support
Amendment 1.
SENATOR MACKIE asked what would happen if Amendment 1 is adopted
into statute and then a constitutional amendment relating to
subsistence is adopted.
CHAIRMAN HALFORD responded that he does not think it would have any
effect because subsistence is a matter of harvest of resources
within the water column, not of access to and use of the water
column.
SENATOR TAYLOR remarked Amendment 1 only applies to public land and
water, both state and federal.
CHAIRMAN HALFORD clarified that Amendment 1 deals with all
navigable waters that were given to Alaska at statehood and
therefore should be managed by the state.
SENATOR MACKIE noted that issue is under debate in the courts.
MR. HUBER explained that in the Katie John case, the Court remanded
to the federal agencies the determination of where federal reserve
water rights exist. In that determination, the federal agencies
are to review what waters they deem navigable to support the
existence of the federal reserve water rights. If the federal
agencies come forward and say these are the waters in which it has
federal reserve water rights, they are essentially saying those
waters are navigable, and those waters did pass to the state at the
time of statehood.
SENATOR LINCOLN asked to hear from the Administration's
representatives.
Number 203
JOANNE GRACE, assistant attorney general, made the following
statements. Lands underlying navigable waters under the Public
Trust Doctrine are to be held in trust for the public's use for
navigation, fishing, commerce, and recreation. Lands underlying
waters that do not meet the federal test for navigability are owned
by riparian or upland owners to the midpoint of the stream. The
Alaska Constitution and statute also give the public the right to
use all waters that are navigable regardless of who owns the
submerged land. Article 8, Section 14 states that free access to
the navigable or public waters of the state, as defined by the
legislature, shall not be denied any citizen of the United States
or resident of the state, except that the legislature may, by law,
regulate and limit such access other than official uses or public
purposes. The legislature has defined navigable waters in AS
38.05.965 as any water that is navigable for any useful public
purpose. Despite the public constitutional right to use navigable
waters regardless of who owns the submerged land, the public and
landowners are still uncertain about the precise nature of the
right. The proposed amendments will clarify existing rights and do
not create any new rights.
MS. GRACE explained that Section 4 codifies language that
constituted the preamble to a 1985 act that made the act of
obstructing access to navigable water a misdemeanor. It expresses
the general concept of the public's right to access navigable
waters regardless of the underlying land title. Placing those
provisions in statute will make them plain and available to
everyone and help assure that the public can freely access its
right.
MS. GRACE pointed out the preamble language in the 1985 act began
with the clause, "subject to the federal navigational service use"
but that clause is not included in Section 4. The federal
navigational service use is a commerce clause authority of the
United States to regulate navigational uses of water ways. The
United States and its agencies have this authority whether or not
it is referred to in Section 4. The omission is insignificant
except that its inclusion could be useful to the public. Section
5 adds language to clarify the obstruction statute which makes it
a misdemeanor for a person to obstruct or interfere with public
access. She suggested including the words "or use" in Section 5(a)
after the phrase "free passage" to clarify that the prohibition is
against interference with the public's right to navigation,
fishing, commerce and recreation of navigable waters.
MS. GRACE expressed concern about the proposed amendment to
subsection (a)(1) because some federal agencies do have commerce
clause authority over navigable waters and, in some instances,
federal property clause authority as well. She noted that because
this is a criminal statute, she is concerned that the state could
prosecute a person for following a federal regulation that the
state has acquiesced its authority to.
Number 280
CHAIRMAN HALFORD asked Ms. Grace if that concern is addressed by
subsection (a)(2). MS. GRACE replied subsection (a)(2) does cover
federal laws, however she is unclear about the difference between
subsections (a)(1) and (a)(2).
SENATOR MACKIE thought that under subsection (a)(1), the
obstruction or interference would have to be approved by both a
federal and state agency, while subsection (a)(2) prevents criminal
prosecution if the obstruction is allowed under federal or state
law.
CHAIRMAN HALFORD commented that both state and federal authority
would be required in cases where the federal government has no
commerce authority.
MS. GRACE thought subsection (1) might provide uncodified
authorization while subsection (2) would require a law, permit, or
regulation.
MS. GRACE continued with her testimony. Section 5 adds language to
clarify the obstruction. Section 6 clarifies the limited
circumstances under which the public can use privately owned land.
One issue that arises is the extent to which members of the public
using navigable waterways can step out of a boat and touch
privately owned land. Subsection (e) does not provide a bright
line guide as to when the public can step out of a boat onto the
bed of a privately owned river or lake, but it provides a standard
that offers some guidance. Subsection (f) codifies the right to
portage on private land when necessary and includes limitations to
make clear that the right exists only to the extent necessary to
proceed on the waterway.
Number 329
GERON BRUCE, representing the Alaska Department of Fish and Game,
made the following comments on HB 109 and asked to defer comments
on Amendment 1 to Tina Cunning who has worked directly on the issue
of navigable waterways.
ADFG believes that its management of commercial fishing in Glacier
Bay is compatible with the park purposes and it is opposed to the
park's closure to commercial fishermen. ADFG's goal over the last
several years has been to maintain the maximum opportunity for
commercial fishing in Glacier Bay. A number of initiatives were
established to do that, the most extensive of which was the
creation of a stakeholder group to protect the commercial fishing
opportunities in the Bay. ADFG worked closely with the
stakeholders in this effort with the goal of maintaining 100
percent access to what had been available in the past.
MR. BRUCE said he testified before House committees where some of
ADFG's concerns were addressed. The most important change to HB
109 clarified that ADFG can work with fishermen and federal
agencies to help get compensation for the Glacier Bay fishermen.
ADFG remains concerned about HB 109's broad application. The
current law affecting commercial fishing in Glacier Bay contains a
combination of closures that grandfather in certain individuals for
a specific time, and a provision to allow the continuation of
commercial fishing in the marine waters adjacent to the park
itself. Under the terms of HB 109, ADFG is not clear if it will
still be able to expend funds to manage those fisheries within
Glacier Bay proper that are subject to the phase out but are open
to the individuals who are grandfathered in. He asked that the
legislature make its intentions clear about that issue on the
record. ADFG's second concern is that the federal law that
addressed this issue says the Secretary of the Interior and the
State of Alaska shall cooperate in the development of a management
plan regarding commercial fisheries in the marine waters adjacent
to Glacier Bay. Those areas are important to commercial fishing.
ADFG interprets HB 109 as saying it should not cooperate with the
Secretary of the Interior in developing a management plan for those
waters. ADFG questions whether it could inadvertently, by that
action, be prodding the federal government into doing something
that would be disadvantageous to Alaska's commercial fishermen,
such as close those waters to commercial fishing.
Number 407
SENATOR GREEN asked whether the stakeholders group that came before
the Senate Resources Committee and expressed dissatisfaction with
the way the procedure was handled is the one ADFG has been working
with.
MR. BRUCE said it is the same group.
SENATOR TAYLOR asked if Mr. Bruce implied that by prodding the
federal government, it might act without the state's cooperation,
which would be more detrimental to Alaska's commercial fishermen.
MR. BRUCE said that is correct.
SENATOR TAYLOR asked if ADFG has maintained a consistent position
of resisting federal intervention of commercial fishing within
Glacier Bay National Park and its adjacent waters. He asked why
ADFG has been so zealously protecting the commercial fishermen's
rights within the park when it is doing everything in its power to
forfeit the state's rights to the rest of the navigable waters to
the federal government. He commented the forfeit will occur on
October 1 and is therefore a more pressing and eminent concern than
the Glacier Bay situation. He asked Mr. Bruce to explain ADFG's
dual position.
MR. BRUCE replied ADFG and the Administration have vigorously
pushed for a solution to the subsistence impasse to prevent a
federal takeover. He indicated the solution has evaded them but he
does not believe the reason lies solely within the powers of ADFG
or the Executive Branch.
SENATOR TAYLOR remarked his question turns on the fact that ADFG
has advocated that the legislature adopt, throughout, the federal
law. He asked Mr. Bruce, if that is ADFG's position, why ADFG is
not suggesting the same action on the Glacier Bay issue. He then
asked whether the Governor has filed a lawsuit as of yet. MR.
BRUCE said the Governor has not.
SENATOR TAYLOR asserted that the Governor will be filing a lawsuit
to protect the rights of the commercial fishermen living in
Gustavus but will advocate a federal law that will destroy those
very same rights on all navigable waters in this state.
Number 454
MR. BRUCE commented that nothing in Title 8 of ANILCA requires the
closure of commercial fishing therefore the subject matter is
different and requires a different response. Second, the State of
Alaska operated under the rural priority for some time and during
that time the commercial fisheries remained active and profitable,
therefore he does not believe that a rural priority for subsistence
users is incompatible with a healthy commercial fishery.
SENATOR TAYLOR asked whether ADFG believes that the marine waters
outside of Glacier Bay National Park are subject to the
jurisdiction and control of fisheries management by the federal
government or by the state, and if he believes ADFG retains
control, why ADFG and this Administration are not fighting to
maintain unilateral control. He asked how ADFG differentiates
between a federal takeover of the navigable waters inside and
outside of Glacier Bay.
MR. BRUCE repeated that Title 8 of ANILCA does not require that
commercial fisheries be closed. It deals with a priority for
certain users of subsistence resources and, in fact, it is not
clear that the federal takeover will even extend to commercial
fisheries. The federal government would have authority only to
manage subsistence fisheries. There is uncertainty about what
might happen under the theory of their extraterritorial reach and
how it might affect commercial fisheries in order to assure that
subsistence needs are met. ADFG believes that it has a history of
doing a fairly good job of managing fisheries and supplying the
subsistence users. ADFG will be doing everything it can to
minimize and resist the extension of any federal fisheries
management into Alaska's commercial or recreational fisheries or
into its own subsistence fisheries on state lands.
SENATOR TAYLOR asked what ADFG is resisting. MR. BRUCE answered
the state has not entered into the era of federal subsistence
fisheries management yet and although the deadline is October 1, it
will probably not be seen until the fishing season in 2000. He
said it is not his place to speculate what will happen at this
time.
SENATOR LINCOLN commented that maybe she needs to take a closer
look at this bill if the committee is debating subsistence.
Number 508
DICK BISHOP, representing the Alaska Outdoor Council, stated the
issue of whether commercial fishing should occur in Glacier Bay has
been around since ANILCA was before Congress. The Alaska Outdoor
Council strongly supports HB 109 as the bill concisely and
accurately reviews the dilemma in Glacier Bay and responds
appropriately with the assertion of state sovereignty over fish and
game management in navigable waters. To do otherwise would be
inconsistent with the responsibilities of the state and its elected
officials. The difficulties over the Glacier Bay issue are the
"tip of the glacier" of the impasse between state and federal
authority. A serious public policy error would be made if the
state ignores this federal intrusion on state sovereignty.
Regarding Amendment 1, he is gratified by it and appreciates that
all of the provisions for access and use of navigable waters has
been put in one place. It is almost a cookbook description of what
a person can and cannot do legally on the navigable waters of the
state. He thought the provision regarding portaging and the
description of access to land below the high water mark will be
particularly useful to the public.
SENATOR LINCOLN asked Ms. Grace to elaborate on her concerns about
Section 4.
MS. GRACE explained that Section 4 is essentially a codification of
a preamble to a 1985 act. As she was comparing the language of
both she found one difference. The preamble read: "Subject to the
navigational service use, the state has full power and control of
all of the navigable or public water of the state ...." Subsection
1(b) of Amendment 1 does not contain the words, "subject to the
navigational service use,". Her concern is that the United States
has that authority whether that language is included in the
amendment or not, but including that language will clarify the
situation for the public.
SENATOR LINCOLN asked if the omission is not significant because
the state would still be subject to the federal navigable
servitude. MS. GRACE said that is correct.
SENATOR LINCOLN asked Chairman Halford if that phrase was omitted
for a specific reason. MR. HUBER replied in the discussions with
other staff working on the bill, it was decided that including the
language in the bill would not grant any power that the federal
government does not already have.
REPRESENTATIVE OGAN asked if Section 6 (f) of Amendment 1 creates
any kind of violation of private property rights.
MR. HUBER said that after researching case law and the practice in
other states with weaker constitutional provisions embodying the
Public Trust Doctrine, the access provision in Section 6(f) has
been found to be reasonable and upheld in other jurisdictions.
Therefore, where it does not exist in statute, that right has been,
through case law, proven to be a right that goes along with the
Public Trust Doctrine.
REPRESENTATIVE OGAN asked if any of that case law regarding this
issue is from Alaska. MR. HUBER said he is not aware of any,
however he deferred to Ms. Grace.
MS. GRACE replied she is not aware of any case law in the State of
Alaska but the underlying principal is that the public right to use
the navigable waters that is in the Constitution includes the right
to portage. By adopting Amendment 1, the Legislature would not be
taking anything away from the private upland owners.
CHAIRMAN HALFORD announced that the question before the committee
is whether to adopt Amendment 1. A hand count was taken. The
motion carried with five yeas and one abstention.
MS. GRACE expressed the following concerns about HB 109. The state
intends to file a lawsuit regarding state ownership of submerged
lands in Glacier Bay and the state's management authority over
fisheries. The Department of Law strongly prefers to enter this
litigation with maximum flexibility to argue the state's best case.
Sections 2 and 3 are vague in their description of the navigable
waters because they do not define the boundaries of the adjoining
waters. Presumably the sponsor is referring to the running waters
that are within the federally claimed boundary of Glacier Bay
National Park. If so, those sections need to be restated to
clarify that boundary. Also, Section 3, as it reads, is not
limited to regulatory conflicts between state and federal
regulations. To avoid confusion, she asked the committee to
clarify that the bill is only concerned with National Park Service
regulations that conflict with state law, or include a provision to
exempt regulations promulgated for situations in which the state
recognizes federal preemption, such as the Marine Mammal Protection
Act.
SENATOR MACKIE asked Mr. Huber if that concern was brought up
during discussions with the Department of Law.
MR. HUBER said he did not discuss the body of the bill with staff
from the Department of Law.
CHAIRMAN HALFORD asked Ms. Grace if she would feel more comfortable
if it included the same type of language included in SB 68 which
exempted the regulations pertaining to a specific list of federal
acts. MS. GRACE replied that is exactly what the Department of Law
would like.
REPRESENTATIVE OGAN said he would have no problem with the
inclusion of that language.
Number 512
SENATOR TAYLOR asked Ms. Grace if she was asking for maximum
flexibility in the language in subsection (c) to provide the
Department of Law with opportunities when it files its lawsuit. He
asked Ms. Grace to clarify her concern.
MS. GRACE said she was vague about DOL's two concerns and but she
cannot be too specific about those concerns in a public hearing.
She offered to provide more detail in an executive session. She
said, however, her concern about the reference to navigable waters
within or adjoining the park and preserve is that there is no limit
to the waters that adjoin the park and preserve. She suggested, if
the committee is referring to the marine waters that are within the
boundaries of the park and preserve, that boundary be stated.
REPRESENTATIVE OGAN informed committee members that he took a look
at the maps associated with the management claim to the navigable
waters around Glacier Bay National Park. In addition to the waters
of Icy Straits and the waters within the traditional land
boundaries of Glacier Bay and Dundas Bay, that claim now includes
three miles offshore into the Gulf of Alaska, north of Lituya Bay,
halfway to Yakutat. He noted the map is clearly marked, which sets
a precedent that the state should be very concerned about.
SENATOR TAYLOR indicated his only concern with the phrase "maximum
flexibility" is that he does not want to see a lawsuit brought by
this Administration to defend Alaska's sovereignty over navigable
waters only to have someone cut a deal and dismiss it with
prejudice. He said if that is the case, he might find all of his
fishermen sold down the river again like they were in the Babbitt
case. He asked Ms. Grace if the Department of Law is asking for
flexibility to cut some kind of a deal with the federal government.
MS. GRACE replied the Department of Law is pursuing this lawsuit
very vigorously and it intends to raise every claim it can against
the United States as to jurisdiction.
SENATOR MACKIE noted the language Chairman Halford referred to from
SB 68 had been distributed to committee members. He asked where
that would be inserted in HB 109.
CHAIRMAN HALFORD stated it should be inserted in Section 2 at the
end of subsection (1) and would read "including the Migratory Bird
Treaty Act, North Pacific Halibut Act, Marine Mammal Protection
Act, Endangered Species Act, Magnuson Stevens Fisheries
Conservation Act, and the Pacific Salmon Treaty Act."
SENATOR MACKIE moved a conceptual amendment to include the language
described by Chairman Halford in Section 2. There being no
objection, the motion carried.
SENATOR TAYLOR questioned whether federal regulation of the IFQ
fisheries in Alaska's navigable waters is included in that list.
MS. GRACE said she did not know the answer at this time.
Number 444
MR. BRUCE said he believes IFQ regulation falls under the Magnuson
Stevens Fisheries Conservation Act.
SENATOR TAYLOR asked if Alaska has also ceded that portion of its
sovereign authority to the federal government and, if so, how it
happened.
MR. BRUCE stated that halibut are not subject to management by the
State of Alaska, they are managed under an international treaty.
SENATOR TAYLOR noted there are IFQs on halibut and black cod.
MR. BRUCE responded he does not believe Alaska has IFQs on the
black cod fisheries that are in state waters; IFQs are restricted
to the federal offshore waters. A limited entry system is used in
state waters.
SENATOR TAYLOR asked if the answer to his question is that the
state has refused to challenge that invasion by the federal
government of Alaska's navigable waters to regulate that species.
MR. BRUCE asked if Senator Taylor was referring strictly to
halibut. SENATOR TAYLOR said yes. MR. BRUCE said again, halibut
are regulated under an international treaty and were never subject
to state management authority. While a lot of halibut are taken
within state waters, they are not a species subject to state
management.
There being no further testimony on HB 109, SENATOR MACKIE moved
the bill as amended from committee with individual recommendations.
REPRESENTATIVE OGAN interjected to ask whether the committee wants
to include the Lacey Act. CHAIRMAN HALFORD said he does not think
it is necessary.
There being no objection to moving HB 109 as amended from committee
with individual recommendations and its accompanying fiscal note,
CHAIRMAN HALFORD noted the motion carried.
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