Legislature(1999 - 2000)
05/03/1999 05:10 PM House FSH
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE SPECIAL COMMITTEE ON FISHERIES
May 3, 1999
5:10 p.m.
MEMBERS PRESENT
Representative Bill Hudson, Chairman
Representative Jim Whitaker
Representative John Harris
Representative Carl Morgan
Representative Harold Smalley
MEMBERS ABSENT
Representative Fred Dyson
Representative Mary Kapsner
COMMITTEE CALENDAR
CONFIRMATION HEARING
Board of Fisheries
Dan Kelly Coffey - Anchorage
- CONFIRMATION ADVANCED
* HOUSE JOINT RESOLUTION NO. 39
Urging the United States government to purchase surplus pink salmon
for aid packages to the Balkans.
- MOVED CSHJR 39(FSH) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 146(FIN) am
"An Act relating to the amount and disposition of the commercial
fishing license fee and to the fishermen's fund; and providing for
an effective date."
- MOVED OUT OF COMMITTEE
HOUSE CONCURRENT RESOLUTION NO. 2
Relating to the sovereignty of the State of Alaska and the
sovereign right of the State of Alaska to manage the natural
resources of Alaska.
- MOVED CSHCR 2(FSH) OUT OF COMMITTEE
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 39
SHORT TITLE: SURPLUS SALMON TO AID BALKANS
SPONSOR(S): REPRESENTATIVES(S) AUSTERMAN, Hudson, Harris,
Phillips, Morgan
Jrn-Date Jrn-Page Action
4/27/99 1026 (H) READ THE FIRST TIME - REFERRAL(S)
4/27/99 1026 (H) FSH
4/28/99 1058 (H) COSPONSOR(S): PHILLIPS
4/30/99 1122 (H) COSPONSOR(S): MORGAN
5/03/99 (H) FSH AT 5:00 PM CAPITOL 124
BILL: SB 146
SHORT TITLE: COM. FISH LICENSE/FISHERMEN'S FUND
SPONSOR(S): FINANCE
Jrn-Date Jrn-Page Action
4/15/99 931 (S) READ THE FIRST TIME - REFERRAL(S)
4/15/99 931 (S) FIN
4/21/99 (S) FIN AT 8:00 AM SENATE FINANCE 532
4/21/99 (S) MOVED CS(FIN) OUT OF COMMITTEE
4/22/99 1039 (S) FIN RPT CS 5DP 3NR SAME TITLE
4/22/99 1039 (S) DP: TORGERSON, PHILLIPS, GREEN,
4/22/99 1039 (S) PETE KELLY, WILKEN; NR: ADAMS,
4/22/99 1039 (S) LEMAN, DONLEY
4/22/99 1039 (S) FISCAL NOTE (F&G)
4/23/99 (S) RLS AT 12:25 PM FAHRENKAMP 203
4/23/99 (S) MINUTE(RLS)
4/27/99 1134 (S) FISCAL NOTE (LABOR)
4/27/99 1135 (S) RULES TO CALENDAR AND 1 OR 4/27/99
4/27/99 1136 (S) READ THE SECOND TIME
4/27/99 1136 (S) FIN CS ADOPTED UNAN CONSENT
4/27/99 1137 (S) AM NO 1 ADOPTED UNAN CONSENT
4/27/99 1137 (S) ADVANCE TO 3RD RDG FAILED Y13 N5 E2
4/27/99 1137 (S) THIRD READING 4/28 CALENDAR
4/28/99 1154 (S) READ THE THIRD TIME CSSB 146(FIN) AM
4/28/99 1155 (S) PASSED Y14 N3 E2 A1
4/28/99 1155 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
4/28/99 1155 (S) ELLIS NOTICE OF RECONSIDERATION
4/29/99 1174 (S) RECONSIDERATION NOT TAKEN UP
4/29/99 1175 (S) TRANSMITTED TO (H)
4/30/99 1102 (H) READ THE FIRST TIME - REFERRAL(S)
4/30/99 1102 (H) FSH, FIN
5/03/99 (H) FSH AT 5:00 PM CAPITOL 124
BILL: HCR 2
SHORT TITLE: SOVEREIGNTY OF THE STATE; RESOURCES
SPONSOR(S): REPRESENTATIVES(S) COGHILL, Barnes, Green
Jrn-Date Jrn-Page Action
4/19/00 (H) FSH AT 5:00 PM CAPITOL 124
2/24/99 300 (H) READ THE FIRST TIME - REFERRAL(S)
2/24/99 300 (H) WTR, FSH, RESOURCES
3/16/99 (H) WTR AT 5:00 PM CAPITOL 124
3/16/99 (H) MOVED OUT OF COMMITTEE
3/16/99 (H) MINUTE(WTR)
3/17/99 490 (H) WTR RPT 4DP 2DNP
3/17/99 490 (H) DP: MASEK, GREEN, COWDERY, BARNES;
3/17/99 490 (H) DNP: BERKOWITZ, JOULE
3/17/99 490 (H) ZERO FISCAL NOTE (H.WTR)
3/17/99 490 (H) REFERRED TO FSH
3/17/99 497 (H) COSPONSOR(S): GREEN
4/12/99 (H) FSH AT 5:00 PM CAPITOL 124
4/12/99 (H) <BILL POSTPONED TO 4/19>
4/19/99 (H) FSH AT 5:00 PM CAPITOL 124
4/19/99 (H) HEARD AND HELD
4/19/99 (H) MINUTE(FSH)
4/26/99 (H) FSH AT 5:00 PM CAPITOL 124
4/26/99 (H) SCHEDULED BUT NOT HEARD
5/03/99 (H) FSH AT 5:00 PM CAPITOL 124
WITNESS REGISTER
DAN COFFEY, Appointee
to the Board of Fisheries
207 East Northern Lights Boulevard, Suite 200
Anchorage, Alaska 99503
Telephone: (907) 274-3385
POSITION STATEMENT: Testified as appointee to the Board of
Fisheries.
REPRESENTATIVE ALAN AUSTERMAN, Sponsor
Alaska State Legislature
Capitol Building, Room 434
Juneau, Alaska 99801
Telephone: (907) 465-2487
POSITION STATEMENT: Introduced HJR 39.
MIKE MILLIGAN, Former Assembly Member
City of Kodiak
SR 9121
Kodiak, Alaska 99615
Telephone: (907) 487-4402
POSITION STATEMENT: Testified on HJR 39.
LLEWELLYN LUTCHANSKY, Senate Finance Committee Aide
for Senator Torgerson
Alaska State Legislature
Capitol Building, Room 516
Juneau, Alaska 99801
Telephone: (907) 465-3710
POSITION STATEMENT: Introduced SB 146.
JIM BALDWIN, Assistant Attorney General
Civil Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Telephone: (907) 465-3600
POSITION STATEMENT: Testified on SB 146.
KEVIN BROOKS, Director
Division of Administrative Services
Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99811
Telephone: (907) 465-5999
POSITION STATEMENT: Testified on SB 146.
BRUCE GABRYS, Commercial Fisherman from Cook Inlet
10229 Baffin Street
Eagle River, Alaska 99577
Telephone: (907) 699-3874
POSITION STATEMENT: Testified on SB 146.
JERRY MCCUNE
United Fisherman of Alaska
211 4th Street, No. 112
Juneau, Alaska 99801
Telephone: (907) 586-2820
POSITION STATEMENT: Testified on SB 146.
REPRESENTATIVE JOHN COGHILL, Sponsor
Alaska State Legislature
Capitol Building, Room 416
Juneau, Alaska 99801
Telephone: (907) 465-3719
POSITION STATEMENT: Testified on HCR 2.
BILL HAGAR
1650 Steese Highway
Fairbanks, Alaska 99701
Telephone: (907) 459-4025
POSITION STATEMENT: Testified in support of HCR 2.
RALPH SEEKINS, President
Alaska Wildlife Conservation Association
431 Gaffney Road
Fairbanks, Alaska 99701
Telephone: (907) 452-6295
POSITION STATEMENT: Testified in support of HCR 2.
DALE BONDURANT
31964 Moonshine Drive
Soldotna, Alaska 99669
Telephone: (907) 262-0818
POSITION STATEMENT: Testified in support of HCR 2.
HERMAN FANDEL
702 Lanton Drive
Kenai, Alaska 99611
Telephone: (907) 283-4501
POSITION STATEMENT: Testified in support of HCR 2.
DICK BISHOP
Alaska Outdoor Council
P.O. Box 73902
Fairbanks, Alaska 99707
Telephone: (907) 463-3830
POSITION STATEMENT: Testified in support of HCR 2.
ACTION NARRATIVE
TAPE 99-14, SIDE A
Number 0001
CHAIRMAN BILL HUDSON called the House Special Committee on
Fisheries meeting to order at 5:10 p.m. Members present at the
call to order were Representatives Hudson, Whitaker, Morgan, and
Smalley. Representative Harris arrived at 5:25 p.m.
CONFIRMATION HEARING
CHAIRMAN HUDSON announced that the committee would consider the
last nominee for the Board of Fisheries; Dan Coffey, who was unable
to attend the last confirmation hearing. He said that the
testimony at the last hearing was fairly extensive so the committee
will not be taking public testimony today.
Number 0178
DAN COFFEY, Appointee to the Board of Fisheries, testified via
teleconference from Anchorage. He stated that he want to remain on
the Board of Fisheries for three main reasons: first, they are in
the middle of working a sustainable fisheries policy, which the
board has spent alot of time on and feels will benefit the fishery
sources of the state; second, the subsistence issues that are
arising with federal takeover of the state's fisheries, and he
wants to try to make sure that it won't have too detrimental of an
effect on the fisheries; finally, the process and procedure changes
that have occurred over the last three years. He explained that
when he first came on the board they were unable to finish the work
they were given due to the volume of the work; they never seemed to
get done with their work load. He said that they tried
reorganizing and one of the strengths he brings to the board is his
organizational skills. He wants to see those three things to
conclusion and he feels that his work on the board is only half
done. He hopes to have the opportunity to finish the work that he
has started.
Number 0447
REPRESENTATIVE SMALLEY asked what Mr. Coffey's viewpoint is on the
responsibility of the Department of Fish and Game in terms of the
management of fisheries compared to the responsibility of the Board
of Fisheries.
MR. COFFEY explained that the Board of Fisheries responsibility is
stated in statute, which is to conserve and develop the fisheries
of the state of Alaska for sustained yield for the maximum benefit
of the people of Alaska. The interface between the department and
the board is that the board is a regulatory body that should adopt
regulations that meet the statutory charge and then the department
should implement those regulations.
Number 0530
REPRESENTATIVE SMALLEY asked what Mr. Coffey's view is on the Cook
Inlet fishery, with the potential declining resource there,
specifically the commercial fishing industry and the sport guide
industry.
MR. COFFEY responded, "We sat here between the Senate hearing and
now with a commercial fisherman and the director of the sport fish
division and talked about that for the last hour and fifteen
minutes." He explained that what they came up with was that they
hoped that the people of goodwill on all sides of the fishing
interest, be they Northern district setnetters or drifters or sport
fisherman, could work together to find some solutions so there
aren't these contentious allocation battles going on forever. So
that when someone with one persuasion believes one thing the
fishery swings to that side and then someone with another set of
opinions swings it back to the other side; it goes back and forth
with no certainty for anyone. He indicated that his ideal would be
that the stake holders could overtime work out a system that would
sustain the fish and provide harvestable resources for the sport
and commercial interests that would recognize the legitimate
concerns of each other. He said that they need to further the
dialogue between the reasonable people so that solutions can be
brought forward. The first issue is to sustain the resource,
because without the fish there is nothing to talk about. Secondly,
they need people from both the commercial fisheries side and the
sport fisheries side that will talk with each other. He said that
he saw a glimmer of it at the Board of Fisheries subcommittee
meetings where people of goodwill and reason talked to each other
and as a result he feels some good regulation came out of the last
meeting.
Number 0764
CHAIRMAN HUDSON stated that the Fisheries Committee, a few weeks
ago, contemplating the pending federal takeover of subsistence
fisheries, had the federal managers and the state managers together
at the same table. He asked Mr. Coffey what he thought would be
the primary concern between the two levels of management; state and
federal, and what will the relationship of the Board of Fisheries
have in that process.
MR. COFFEY explained that the biggest problem is that the federal
subsistence board's charge is to manage for subsistence and they
have no other duties or responsibilities to any other fishery,
which means they could manage for subsistence only. The other
concern is the ability of the federal system to respond to in
season management. The strength of area managers and those in the
field is that they can do what is needed to protect the resource in
season. The federal system has no ability to act or respond with
speed to any in season considerations. He indicated, "We met with
the federal subsistence board, by we I mean the department, the
commissioner, and myself and Chairman White(ph), met with them on
Friday in an all day meeting to discuss these problems. We agreed
to appoint a working group of the department and of the federal
agencies to come back to all of us on the 28th of June with a
lengthy -- or with a program to develop an integrated management
system that would answer these concerns. If the feds can come back
with something that addresses both in season management and the
other concerns that I expressed, then we may have a system that
will work, or at least have the chance of working, because they
will be required to at least address the other fisheries and to
address this question of in season management."
Number 0988
CHAIRMAN HUDSON said that he views this as probably the greatest
concern, and especially the fisheries side, so he appreciates Mr.
Coffey's comments. He indicated that they heard a great deal of
testimony last week, and the committee will be sending forward the
confirmation to the joint House and Senate.
HJR 39 - SURPLUS SALMON TO AID BALKANS
CHAIRMAN HUDSON announced that the first order of business was
House Joint Resolution No. 39, urging the United States government
to purchase surplus pink salmon for aid packages to the Balkans.
REPRESENTATIVE ALAN AUSTERMAN, Sponsor, Alaska State Legislature,
stated that the conflict in the Balkans between the Serbian and
Albanian people has left many Albanians homeless as they flee their
homeland of Kosovo. He pointed out that the United States is
taking part in a massive relief effort to shelter, feed and clothe
the refugees. He indicated that Alaska has a surplus of pink
salmon and it is fitting for the United States government to
provide them with surplus salmon during this time of relief
operations.
Number 1242
REPRESENTATIVE WHITAKER stated that he thinks it is a good idea and
looks forward to moving it along.
REPRESENTATIVE AUSTERMAN acknowledged Mike Milligan and said that
he brought forward the concept of HJR 39 and he sent forward both
resolutions from the Kodiak City and Borough to the federal
government as well.
CHAIRMAN HUDSON wondered if the committee needed to adopt the
amendment to add "Secretary, U.S. Department of Agriculture" to HJR
39.
REPRESENTATIVE AUSTERMAN replied yes.
Number 1328
REPRESENTATIVE HARRIS made a motion to adopt Amendment 1, which
read:
Page 2, line 10, following "States;":
Insert "and to Dan Glickman, Secretary, U.S. Department
of Agriculture;"
CHAIRMAN HUDSON asked whether there was any objection. There being
none, Amendment 1 was adopted.
Number 1396
MIKE MILLIGAN, Former Assembly Member, City of Kodiak, testified
via teleconference from Kodiak. He thanked Representative
Austerman for introducing HJR 39. He said that they had tried to
get pink salmon into an aid package following Senator Stevens
speech a couple of years ago on his trip to North Korea. When the
Kosovo issue came up they tried to put something together that
would try to deal with the humanitarian aspects and not address the
political issues of whether or not the United States should be
fighting over there. He stated that it is important to understand
that Alaska does produce a very suitable food, because it is
already cooked and the people of that area are familiar with it.
He pointed out that salmon is also a contributor to the general
fund; therefore, if there is a possibility of selling salmon the
entire state benefits. It also sends a message to the world that
Alaska cares about humanitarian efforts.
Number 1525
REPRESENTATIVE HARRIS made a motion to move HJR 39 as amended with
individual recommendation. There being no objection, HJR 39 was
move from the House Special Committee on Fisheries.
SB 146 - COM. FISH LICENSE/FISHERMEN'S FUND
CHAIRMAN HUDSON announced that the next order of business was CS
for Senate Bill No. 146(FIN) am, "An Act relating to the amount and
disposition of the commercial fishing license fee and to the
fishermen's fund; and providing for an effective date."
LLEWELLYN LUTCHANSKY, Senate Finance Committee Aide for Senator
Torgerson, Alaska State Legislature, read the sponsor statement:
Senate Bill 146 increases the cost of a crew-member's fishing
license from $30 per resident and $90 per non-resident to $60
for a resident and $125 for a non-resident license. At the
current time, 60 percent of the crew-member license fees goes
into the Fisherman's Fund.
Senate Bill 146 reduces the percentage of license fees that
goes into the fund from 60 percent to 39 percent. At the 39
percent level, the Fisherman's Fund will have the same amount
of funding it receives now. The current balance of the fund
is over $9 million.
Senate Bill 146 directs 61 percent of the crew license fees to
the Fish and Game Fund to be made available for appropriation
to Commercial Fisheries Management in the FY 2000 operating
budget.
The intent is to direct the crew license fees to benefit the
commercial fisheries industry.
MS. LUTCHANSKY added that people from the Department of Law and the
Department of Fish and Game were present to answer questions on
calculations.
REPRESENTATIVE HARRIS referred to the fiscal note and wondered why
it would be a savings of $20,900 versus the following year of
$53,300.
MS. LUTCHANSKY deferred the question to the department that
prepared the fiscal notes.
Number 1673
JIM BALDWIN, Assistant Attorney General, Civil Division, Department
of Law, said that he wanted to familiarize the committee with a
legal issue that is raised in SB 146. He explained that the bill
proposes to change the rate of dedication for a pre-existing
dedicated fund. The Fisherman's Fund, by law, takes a percentage
of the license fees. The dedication existed before statehood,
which means that it was grandfathered in under the Constitution of
the State of Alaska. The opinion of the Department of Law is that
any change in the rate of dedication has the potential of
destroying it, since the constitution talks about continuing
dedications in there present state; therefore, the effect would be
that the revenues derived, if they are to be sent to the
Fisherman's Fund, would have to be appropriated there, because they
would no longer be dedicated. Basically, the way a dedication
works is that the money cannot be used for another purpose. It was
the policy when the state was formed and the constitution was
adopted that dedicated funds should be minimized as much as
possible; the Fisherman's Fund being an exception.
MR. BALDWIN continued. He indicated that there is a difference of
opinion between the Department of Law and the Legislative Affairs
Agency. The Legislative Affairs Agency places emphasis on the
ability to change the rate of the dedication. This was of
importance a couple years ago when there was a considered change in
the tobacco tax. At that point the Department of Law advised the
relevant standing committees that the way to approach it was if
they disagreed with the departments advise that an appropriate
safeguard would be to have some backup provisions. In case of a
successful legal challenge of the change in rate of the dedication
they should have a backup that would impose the increase in the
license fee, or tax, and that increase in revenues would go to the
general fund subject to the discretion of the legislature to
appropriate the Fish and Game Fund. The benefit of doing that, at
least in the case of the tobacco tax, is that it removes any
incentive for someone to sue to try to reverse it, because the
outcome would be that the increase would be imposed and the revenue
would go to a specified source. With regards to the tobacco tax
there has been no incentive to sue to reduce the tax, because there
is a backup to deal with that situation. In SB 146, Senator
Torgerson, chose not to do that. He noted that he doesn't think
Senator Torgerson is really against resolving the legal problems,
but he didn't want to change the bill when they brought it to his
attention in the Senate Finance Committee. He feels that without
at least a disincentive to sue the bill proposes a risk for the
ability to continue the dedication for the Fisherman's Fund. He
added that there is no requirement to continue a dedicated fund if
the legislature chooses not to, but the department wouldn't want
them to just stumble into that without having been informed of the
risks.
Number 1964
CHAIRMAN HUDSON asked, in the event there was a challenge and the
court found that it was unconstitutional or legally improper,
whether or not it would have any impact on the fund as it is
currently constituted.
MR. BALDWIN replied that the answer to that question involves the
consideration of two issues; one, could the dedication continue or
the stream of revenue, which he thinks the answer is clearly "No",
and two, the question about the balance in the fund, which he feels
intuitively would do in the dedication and make those funds apart
of the general fund, but he is unsure. There has not been a
problem like that arise in the state where the power to dedicate on
a pre-existing fund was lost. He explained that what has happened
in the past is whenever the legislature say fit to increase the
tobacco tax, before the legislature embraced the opinion of the
Legislative Affairs Agency, they would incrementally change the law
and leave the existing law alone; add new sections to the law. He
indicated that it is the type of thing he would propose for the
backup, but it is a financial matter and might be better addressed
in the Finance Committee.
CHAIRMAN HUDSON pointed out that there is a letter from Mr. Baldwin
in the packet addressed to Senator Torgerson.
Number 2091
KEVIN BROOKS, Director, Division of Administrative Services,
Department of Fish and Game, stated that the department has worked
with Senator Torgerson's office throughout the subcommittee process
on their budget trying to mitigate general fund reductions within
the Division of Commercial Fisheries Management and Development.
He indicated that the department supports the measure to move the
revenue from the sale of crew member licenses to the Fish and Game
Fund. The department has also been consistent in their testimony
that they do not want to do anything to harm the Fisherman's Fund;
it has been the general consensus throughout the process. He
referred to the question asked by Representative Harris on the
differences in amounts in the first couple of years and said that
it is attributed to the fact that the bill takes effect in relation
to the calender year, which is halfway through the fiscal year and
so the first year will be a partial year.
Number 2165
CHAIRMAN HUDSON stated that there is no decrease according to the
bill to the current recipients of the fund. He asked if that is
correct.
MR. BROOKS replied that is correct. He explained that by changing
the amount from 60 percent to 39 percent, it is anticipated that 39
percent of the new fees will result in a modest increase to the
contributions to the Fisherman's Fund.
REPRESENTATIVE HARRIS wondered if Mr. Brooks has worked in
cooperation with the commercial fisherman and whether they believe
this is something that is going to be better for them.
MR. BROOKS indicated that he would not presume to speak for the
commercial fisherman. He pointed out that nobody likes increased
fees, but he feels that there is a recognition that the state is in
serious times with the general fund and this is one area where the
increase is designed to go into the commercial fisheries budget,
which will benefit the crew members. He said that they haven't
built a consensus with all the fisheries groups, but there has been
input by those groups in previous hearings and in working with
Senator Torgerson's office.
Number 2287
BRUCE GABRYS, Commercial Fisherman from Cook Inlet, testified via
teleconference from Anchorage. He stated that the concern from the
commercial fishing perspective is that if the increase is necessary
the addition money should go back into the fishery; if it goes back
into the commercial fisheries budget the net benefit of that to the
commercial fisheries will be seen if those revenues are returned
and used in fisheries management.
CHAIRMAN HUDSON asked Mr. Brooks what the amount is that the
resident fisherman pay presently compared with what the payment
would increase to.
Number 2352
MR. BROOKS replied that the resident fee would go from $30 dollars
to $60 and non-residents would go from $90 to $125 per year.
CHAIRMAN HUDSON asked Ms. Lutchansky if they have a record of
testimony from commercial fisherman throughout the state.
MS. LUTCHANSKY replied that they have received no testimony except
from the Alaska Gillnetters Association here in Southeast.
CHAIRMAN HUDSON wondered what the intent is of SB 146; to increase
revenue or meet expenses.
MS. LUTCHANSKY said that they were given a target in the fish and
game budget during the department's subcommittee meeting and they
were having a difficult time finding ways to cut the budget without
hurting various divisions in the department. They thought if they
could find a way to raise revenues and spend them on commercial
fisheries that would be the best approach.
CHAIRMAN HUDSON wondered if it is the intention of Senator
Torgerson to pass on the additional revenues to the management of
fish and game.
MS. LUTCHANSKY replied yes. The additional revenues would go right
back into the commercial fisheries management.
Number 2471
JERRY MCCUNE, United Fisherman of Alaska, stated that his concern
is that the Fisherman Fund continues to be fully funded at the same
rate, because it is very valuable to the crew member. He said that
even though they do not like increased fees, they recognize that SB
146 is a creative way to fund more money into fish and game. He
pointed out that there is also the question being asked of why not
charge the non-resident three times as much or $180 instead of $60.
He referred to the "Carlson Case" and limited entry and said that
they do not want to bring up another case, so that is why it is at
the current rate. He indicated that they are not supporting SB
146, but they did work with Senator Torgerson to get some money
that would go directly to fish and game. He added that if they
were at the whim of the general fund he believes most groups would
not be supportive of SB 146.
Number 2560
REPRESENTATIVE HARRIS asked Mr. Baldwin if he thinks there is a way
that the amount of money can be dedicated to the Division of
Commercial Fisheries Management and Development.
MR. BALDWIN stated that he is not sure it works that way. He
explained that the way SB 146 works is it will be set up as a front
section operation, meaning that in the front section of the budget
there will be an appropriation that will appropriate the revenues
to the Fish and Game Fund and then out of the fund; therefore, it
is not going to be a dedication, but it will be a fairly routine
matter. It basically hard wires it in, but it doesn't dedicate it.
REPRESENTATIVE HARRIS stated that the concern of the fisherman and
of the Department of Fish and Game is that they are going to be
fully protected, but just because the appropriation is in the front
section of the budget this time does not mean that the front
section of the budget is guaranteed to remain there. He indicated
that after being through a number of meetings he can guarantee that
there is nothing sacred in the front section of the budget as the
budget gets tighter. It is really the whim of the legislature to
ensure that the money is appropriated and he hopes that intention
remains there, because if the fishermen are asked to pay more, then
the money should go towards helping the fishing industry.
CHAIRMAN HUDSON indicated that he would like to move SB 146 along
with the letter from the Department of Law, in order to draw the
concern to the Finance Committee, as well as the comments by the
committee.
REPRESENTATIVE HARRIS made a motion to move CSSB 146(FIN) am out of
committee with individual recommendation and the attached fiscal
note. There being no objection, CSSB 146(FIN) am was moved out of
the House Special Committee on Fisheries.
HCR 2 - SOVEREIGNTY OF THE STATE; RESOURCES
CHAIRMAN HUDSON announced that the next order of business was House
Concurrent Resolution No. 2, relating to the sovereignty of the
State of Alaska and the sovereign right of the State of Alaska to
manage the natural resources of Alaska.
Number 2847
REPRESENTATIVE JOHN COGHILL, Sponsor, Alaska State Legislature,
stated that HCR 2 is dealing with the sovereign right of the state
to manage its natural resources and it gives some history of the
Alaska Statehood Act, the Submerged Land Act, and some of the
constitutional provisions in the Constitution of the State of
Alaska. There are several court cases cited throughout HCR 2 and
it makes the observation that there is definitely a legitimate
dispute between Alaska and the U.S. Congress as to whether Congress
can require Alaska to violate its own constitution or end up having
a discriminatory allocation of fish and game resources forced on it
by the federal government.
REPRESENTATIVE COGHILL presented an amendment to HCR 2, which would
delete lines 19 - 24, page 2.
TAPE 99-14, SIDE B
CHAIRMAN HUDSON pointed out that Scott v. Sanford was addressed in
Joanne Grace's letter. He asked Representative Coghill if he had
received a copy of Joanne Grace's written testimony.
REPRESENTATIVE COGHILL stated that it was from her written
testimony that he decided Scott v. Sanford would be problematic.
REPRESENTATIVE WHITAKER made a motion to adopt Amendment 1, page 2,
lines 19 - 24, delete:
WHEREAS the United States Supreme Court in Scott v. Sanford,
60 U.S. 393(1856), ruled that the property clause of the
Constitution of the United States cannot be used to destroy or
in any way impair the civil and political rights of citizens
of the United States or to provide the power to establish
inequalities among those citizens by creating privileges in
one class of citizens by disenfranchisement of other classes,
thus degrading those other classes from positions they
previously occupied;
CHAIRMAN HUDSON asked whether there was any objection. There being
none, Amendment 1 was adopted. He asked Representative Coghill if
he would speak to some of the items that Joanne Grace, Assistant
Attorney General, brought up in her letter.
Number 2817
REPRESENTATIVE COGHILL referred to the first page of Joanne Grace's
letter where it states, "The Governor has consistently stated since
he took office that he does not believe litigation is the answer to
Alaska's subsistence dilemma." He referred to a letter titled
"State To Sue Interior Department over Glacier Bay Fishing, Knowles
Asserts Claim to Submerged Lands within Park." The first paragraph
reads, "Seeking to protect the rights of Alaska commercial and
subsistence fishermen, the State of Alaska will file suit against
the federal government to establish its ownership of the submerged
lands underlying the marine waters of Glacier Bay National Park,
Governor Knowles announced today." He pointed out a list of cases
that are pending the ANILCA. In the cases of the Ninth Circuit
Court of Appeals there is Alaska v. Babbitt, Stevens Village v.
McVee and Rosier, Native Village of Quinhagak v. United States,
Peratrovich v. United States, Fish and Game Fund v. Alaska and
United States, Kluti Kaah v. Alaska and Arctic Reginal Council v.
United States. He indicated that these seven court cases dealing
with ANILCA have been stayed until October 1, 1999, which shows
that since the Governor took office he has consistently said that
he doesn't believe that litigation is the answer, which is due to
the fact that the Governor agrees with the federal government. He
said that the reason he is bringing HCR 2 forward is a legitimate
dispute that needs to be taken to original jurisdiction. Joanne
Grace is the lawyer named on five of the seven court cases, which
means that she is very aware of the litigation that is happening
and that has been stayed. He pointed out that it is pretty well
answered that the Governor does believe in litigation, just not in
this particular area.
REPRESENTATIVE COGHILL further stated that he agrees with Joanne
Grace's feelings on Scott v. Sanford. He referred to page 3 of
her letter under United States v. New York & Printz v. United
States where it states, "Both cases hold that the federal
government may not compel the states to implement federal law." He
indicated that it is true and the federal government has got a
jurisdictional problem in making the states implement federal law.
He pointed out that what the state has done typically is offer
incentives. The mandate coming down on title VIII of ANILCA does
not offer an incentive. It just says amend the Constitution of the
State of Alaska and the federal government will give the state
money to implement federal regulations. He referred to page 4 of
Joanne Grace's letter, where it states, "The Court concluded that
Congress could not constitutionally require the states to do
either. At the same time, the Court noted that it did not violate
the Tenth Amendment for Congress to offer states the choice of
regulating an activity according to federal standards or having
state law preempted by federal regulation." He said that it is one
thing to offer incentives, but it is another thing to demand that
the state change its constitution. He reiterated that it falls
under original jurisdiction and it is a legitimate dispute that
needs to be handled. He referred to the bottom of page 4 in the
letter, which reads, "The Department of Interior has not
interpreted title VIII of ANILCA to require state implementation,
however; it interpreted title VIII to require federal
implementation if state law does not grant the subsistence priority
to rural residents." He pointed out that those are contradictory
statements, because the federal government is demanding a change if
Alaska does not implement their title VIII subsistence laws;
therefore, he feels that the state has a legitimate Tenth Amendment
appeal. He referred to page 5 of the letter, where it states, "It
is unclear, however, why the resolution links title to submerged
lands to a constitutional challenge to title VIII of ANILCA." He
indicated that the reason is that the Submerged Land Act gives
title to the land and the fish therein.
REPRESENTATIVE COGHILL concluded that the Submerged Land Act shows
that the title was transferred at statehood. He stated that the
interpretation that Joanne Grace has given is worthy of challenge,
but the resolution is based on the fact that there is a challenge.
He pointed out that he and Joanne Grace would not agree, and the
basis of the resolution is that there is a disagreement within
Alaska and with the Congress and the Constitution of the State of
Alaska. He noted that the federal constitution and the
Constitution of the State of Alaska are in agreement, but disagree
with the application of title VIII of ANILCA on subsistence use.
Number 2414
BILL HAGAR testified via teleconference from Fairbanks. He stated
that he has reviewed Joanne Grace's letter. He pointed out that
HCR 2 has a degree of suggestive leadership to the Administration
that no matter what the state does there is going to be additional
adjudications, which means perhaps the best plan is to go to the
top level and adjudicate the state's rights and sovereignty issues
to determine what has to be done to eliminate the false
adjudications that might take place in the meantime. He stated
that Representative Coghill has done a fine job of research and he
is very much in support of HCR 2.
Number 2347
RALPH SEEKINS, President, Alaska Wildlife Conservation Association,
testified via teleconference from Fairbanks. He stated that he has
also reviewed Joanne Grace's letter. He indicated that they have
done research with their legal counsel and they have decided that
it is not an issue of subsistence, but a matter of sovereignty. He
referred to two of the questions that Joanne Grace brought up in
her letter, which are whether res judicata would apply and whether
there would be a statute of limitations. He said, as they
understand it, under circumstances where it is a matter of
sovereignty there are no statute of limitations and res judicata
would not take place. He stated that in United States v. New York
& Printz v. United States, in Joanne Grace's letter, there is alot
that does not apply to the present situation in Alaska, instead it
talks alot about the disposal of radioactive waste, but the
language that is important in the case is that a state official
cannot act to diminish the domain of a state. He stated that the
Governor was wrong when he unilaterally dismissed Alaska v. Babbitt
with prejudice, because he did not have the power to bind the
people of Alaska to give away their sovereign domain to the federal
government. Once the legal question was raised as to who owns the
lands underneath the navigable waters in the state of Alaska that
legal question should have been taken all the way to the U.S.
Supreme Court. In United States v. New York & Printz v. United
States it is clear that the U.S. Constitution gives limited power
to the federal government, and in Alaska he believes they are
trying to expand those limitation beyond what the constitution
would provide; that is why it is important that it gets to the
courts.
MR. SEEKINS continued. He referred to Joanne Grace's letter where
she states that she was unable to find a case where the power to
control fishing was an essential element of the state's
sovereignty. He recommended that she take a look at United States
v. Alaska, also known as the Dinkhum Sands case, where the U.S.
Supreme Court explains how Alaska became the owner of its submerged
lands and how they are sovereign lands. He stated that they know
without a doubt that it is an issue that is unresolved; that there
are differences of opinion, and before the political issue of
subsistence can be solved the legal issue, of where is the line
between state and federal power, needs to be solved. They feel
that HCR 2 is going down the right path of letting the Governor,
the federal government and the people of the state know that the
issue of who has the power needs to be determined.
DALE BONDURANT testified via teleconference from Kenai. He stated
that he is in full support of HCR 2, because the only way that the
subsistence issue will be truly settled is by legal findings by the
U.S. Supreme Court. Alaska and its citizens have alot at stake,
for instance; Alaska state sovereignty, equal footing, police
powers, privilege and immunity, equal protection, due process and
public trust doctrine responsibilities to the public. The Alaska
Constitutional Legal Defense Conservation Fund (ACLDCF) has filed
its interveners in the Alaska Legislative Council's lawsuit in
Washington, D.C. and they have also filed a "friend of the court
brief" on appeal, which they have forwarded to all legislators.
They wish to continue to challenge the common use and equal
protection clauses of the Constitution of the State of Alaska. He
indicated that they appreciate the efforts to protect Alaska's
rights and sovereignty. He read from Shapiro v. Thompson, which
states, "Congress is without power to enlist the state's
cooperation in a joint federal/state program by legislation, which
authorizes the state to violate the equal protection clause of the
Fourteenth Amendment." Another part reads, "The equal protection
clause of the Fourteenth Amendment gives the federal courts no
power to impose upon the state there views of what constitutes wise
economic and social policy." He pointed out that he considers the
subsistence issue to be social policy, which means they have good
grounds to challenge the issue and the only place it is going to be
settled is in the U.S. Supreme Court.
Number 1993
HERMAN FANDEL testified via teleconference from Kenai. He stated
that he is in support of HCR 2 and believes that the issue does
need to be settled by the U.S. Supreme Court. It is his belief
that the state will prevail in a court action in the U.S. Supreme
Court. He pointed out that Alaska is being discriminated against
and Alaska must be recognized as having equal rights with all of
the other states. Alaskans should not even consider changing the
Constitution of the State of Alaska when they could be winners in
a U.S. Supreme Court decision.
Number 1934
DICK BISHOP, Alaska Outdoor Council, stated that the council
supports HCR 2 as well as the amendment that Representative Coghill
presented which was adopted. The council has long championed the
constitutional sovereign right of the state to manage its lands,
waters and fish and game on an equal footing with all other states.
They also have attempted to add to the effort and get the issue
before the U.S. Supreme Court; they have filed "friendly briefs" on
Alaska v. Babbitt and the Alaska Legislative Council's lawsuit. He
indicated that they do believe it is a fundamental problem that
needs to be resolved and won't be unless it reaches the U.S.
Supreme Court. He said that one of the suggestions that the
council has kicked around, which addresses the issue, is perhaps
there should be a lawsuit that says "Yes we'll go along with the
federal law as soon as Alaska is guaranteed the rights, to manage
its fish and game, that all other states have." He urged the
committee to pass the resolution. He also said that they have and
do urge the Governor to reconsider what they feel is a
counterproductive position of refusing to take the matter to court.
The council believes the dropping of Alaska v. Babbitt was a
calamity in terms of approaching a resolution of this issue.
Number 1763
CHAIRMAN HUDSON stated that the Governor has recently indicated
that he plans to go to court on the issue of the submerged lands
in Glacier Bay National Park. He wondered if that is relatively
the same issue that the committee has before them.
MR. BISHOP replied that they are closely related and he is
surprised that Joanne Grace did not point out the difficulty that
also exists as a result of the conflict between the Alaska Supreme
Court ruling in Totemoff v. Alaska and the Ninth Circuit Court of
Appeals in Katie John. In Katie John the federal court said that
the federal government had an interest in the waters of the Copper
River, and therefore, had the authority to manage for subsistence
fisheries in that instance, while the Alaska Supreme Court in
Totemoff v. Alaska said that because of the Submerged Land Act and
its relationship to the Alaska Statehood Act the federal government
has no authority over submerged lands in Alaska. Another point
that is not mentioned in HCR 2 is that a great deal has been said
about the federal government having the authority to manage fish
and game on federal lands, because of its authority under the
property clause. In Alaska v. Babbitt, Judge Holland said that the
state has challenged the authority of the federal government to do
that under the property clause, because Congress has not included
mention of that authority in the law. What is known about the
property clause is that although Congress has broad powers under
the property clause it is not self activating. He indicated that
Judge Holland couldn't find where Congress had stated that the
federal government has the authority on federal public lands to
manage fish and game resources, so he thought they just forgot and
plugged it in and it went unchallenged. He explained that there is
no delegation, by Congress, to the federal agencies of the
authority under the property clause to manage fish and game. He
added that even Judge Holland couldn't find it. He stated that it
is important to carry HCR 2 forward.
Number 1505
CHAIRMAN HUDSON called an at-ease at 6:26 p.m. and called that
meeting back to order at 6:30 p.m.
REPRESENTATIVE WHITAKER made a motion to move HCR 2 as amended with
individual recommendation. There being no objection, HCR 2 moved
from the House Special Committee on Fisheries.
ADJOURNMENT
Number 1394
CHAIRMAN HUDSON adjourned the House Special Committee on Fisheries
meeting at 6:32 p.m.
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