Legislature(1995 - 1996)
04/28/1995 08:10 AM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
April 28, 1995
8:10 a.m.
MEMBERS PRESENT
Representative Joe Green, Co-Chairman
Representative Bill Williams, Co-Chairman
Representative Scott Ogan, Vice Chairman
Representative Alan Austerman
Representative John Davies
Representative Pete Kott
Representative Irene Nicholia
MEMBERS ABSENT
Representative Ramona Barnes
Representative Eileen MacLean
COMMITTEE CALENDAR
Confirmation Hearing:
Trefon Angasan and John White, Board of Fisheries
COMMITTEE REPORT SIGNED AND FORWARDED
HB 296: "An Act relating to the authority of the State of Alaska
over fish and game."
HEARD AND HELD
HB 91: "An Act amending the area within designated marine park
units of the Alaska state park system, and adding marine
park units to the Alaska state park system."
SCHEDULED BUT NOT HEARD
WITNESS REGISTER
JOHN WHITE, Appointee
Board of Fisheries
P.O. Box 190
Bethel, AK 99559
Phone: 543-3778
POSITION STATEMENT: Gave brief background on himself and answered
questions regarding his appointment
REPRESENTATIVE AL VEZEY
Alaska State Legislature
State Capitol, Room 216
Juneau, AK 99801
Phone: 465-3719
POSITION STATEMENT: Prime Sponsor HB 296
STEVE WHITE, Assistant Attorney General
Natural Resources Section
Department of Law
P.O. Box 110300
Juneau, AK 99811
Phone: 465-3600
POSITION STATEMENT: Answered questions regarding HB 296
GERON BRUCE, Representative
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, AK 99811-5526
Phone: 465-4100
POSITION STATEMENT: Voiced concerns regarding HB 296
PREVIOUS ACTION
BILL: HB 296
SHORT TITLE: STATE AUTHORITY OVER FISH AND GAME
SPONSOR(S): REPRESENTATIVE(S) VEZEY
JRN-DATE JRN-PG ACTION
04/05/95 1027 (H) READ THE FIRST TIME - REFERRAL(S)
04/05/95 1027 (H) FSH, RESOURCES
04/12/95 (H) FSH AT 05:00 PM CAPITOL 124
04/12/95 (H) MINUTE(FSH)
04/12/95 (H) MINUTE(FSH)
04/18/95 1349 (H) FSH RPT 1DP 3NR
04/18/95 1350 (H) DP: ELTON
04/18/95 1350 (H) NR: G.DAVIS, OGAN, AUSTERMAN
04/18/95 1350 (H) ZERO FISCAL NOTE (F&G)
04/18/95 1350 (H) ADDITIONAL REFERRAL TO JUD
04/18/95 1350 (H) REFERRED TO RESOURCES
04/28/95 (H) RES AT 08:00 AM CAPITOL 124
BILL: HB 91
SHORT TITLE: MARINE PARKS ADDITIONS/CHANGES
SPONSOR(S): REPRESENTATIVE(S) ROBINSON,Elton
JRN-DATE JRN-PG ACTION
01/17/95 52 (H) READ THE FIRST TIME - REFERRAL(S)
01/17/95 52 (H) TRA, STA, RES, FIN
03/29/95 (H) TRA AT 01:00 PM CAPITOL 17
03/30/95 993 (H) TRA RPT 4NR
03/30/95 993 (H) NR: MACLEAN,WILLIAMS,BRICE,G.DAVIS
03/30/95 993 (H) ZERO FISCAL NOTE (DNR)
04/13/95 1315 (H) STA RPT 3DP 3NR
04/13/95 1315 (H) DP: JAMES, WILLIS, ROBINSON
04/13/95 1315 (H) NR: PORTER, GREEN, OGAN
04/13/95 1315 (H) ZERO FISCAL NOTE (DNR) 3/30/95
04/13/95 (H) STA AT 08:00 AM CAPITOL 102
04/13/95 (H) MINUTE(STA)
04/28/95 (H) RES AT 08:00 AM CAPITOL 124
ACTION NARRATIVE
TAPE 95-60, SIDE A
Number 000
The House Resources Committee was called to order by Co-Chairman
Joe Green at 8:10 a.m. Members present at the call to order were
Representatives Green, Williams, Ogan, Austerman, Davies, and Kott.
Members absent were Representatives Barnes, MacLean, and Nicholia.
CONFIRMATION HEARING: JOHN WHITE, BOARD OF FISHERIES
JOHN WHITE, APPOINTEE, BOARD OF FISHERIES (BOF), testified via
teleconference and stated he has been a commercial salmon fisherman
for 20 years in the Kuskokwim area, a drift-net fisherman in the
Kuskokwim River, and owns and operates a private dental practice in
Bethel. He said he has been a resident of Bethel for 22 years and
throughout that time, has been engaged in all commercial,
subsistence, and sport fish activities.
MR. WHITE told committee members in the 1980s, he was a member of
the Lower Kuskokwim Fish and Game Advisory Committee. He is a
present member and past Chairman of the Kuskokwim River Salmon
Management Working Group, which is a cooperative group of different
users on the Kuskokwim River who work with the Alaska Department of
Fish and Game (ADF&G) in making determinations regarding openings
on the Kuskokwim River. He said in the 1980s, he was a member of
Governor Cowper's Board of Fisheries Review Committee and is a past
member and Chairman of Governor Cowper's Advisory Group On Ending
High Seas Salmon Interception.
MR. WHITE told committee members he recently was a member of the
Bering Sea Commercial Fisheries Development Foundation, which is a
community development organization that extends funding to
fisheries expansion in Western Alaska. Presently, he is president
and a board member of the Salmon Research Foundation, a
organization that works with the North Pacific Fisheries Management
Council on trying to reduce the bycatch of salmon in the Bering
Sea.
MR. WHITE stated in regard to his philosophy and how it relates to
the BOF, he feels the most important thing is fairness. Second, he
feels it is important to be a careful listener because one of the
greatest strengths of the BOF's process is it considers public
testimony very carefully. He said board members should also be
striving to make consensus decisions which benefit both user groups
as much as possible when there are conflicts. Board members need
to be aware of the fact that their exclusive responsibility is the
tough decisions needing to be made.
MR. WHITE said he has been asked many times what constituency he
represents. He stated he considers the fish as his constituency.
He pointed out the Constitution and regulatory process defines the
responsibilities of the BOF regarding the conservation and
development of the resources and how the board is challenged with
fairly allocating those resources.
Number 138
REPRESENTATIVE JOHN DAVIES clarified that Mr. White believes the
highest responsibility of the BOF is the conservation of the
resources. He asked Mr. White to expand on his philosophy
regarding how allocation decisions are made. He wondered if he
gives any preferences among users under certain circumstances.
(Representative NICHOLIA joined the committee.)
MR. WHITE responded the statutes are very clear on how the BOF is
supposed to act responsibly and what it should consider when making
allocations. He said Title 16 contains numerous allocation
criteria the BOF is forced to consider and any particular judgments
made have to fall carefully within what the legislature has put in
statute about how the board considers allocations. He pointed out
allocation decisions involve the economic health of the local and
state communities affected and revolve around the opportunities for
other resource exploitations. The balancing parts of the
allocation criteria are defined in statute.
REPRESENTATIVE DAVIES asked Mr. White to comment on his subsistence
views.
MR. WHITE stated the priorities are defined in statute in regard to
what the board is required to work with currently. He said
subsistence is a dynamic and changing question because it is being
challenged in the courts and is one of the most difficult public
policy decisions the legislature faces and BOF members have to
consider. At the present time, the statutes say subsistence is the
first priority after the sustained yield of the resource. He felt
BOF members have to act responsibly, within the statute, as to how
things are affected by subsistence in the next several years and
how things will change. He noted the subsistence issue is hard to
predict. He thought his responsibility is to act within the
confines of the statutes.
Number 198
REPRESENTATIVE DAVIES asked Mr. White to comment on allocation
decisions in regard to the terminal river fisheries and the
commercial fishery intercept areas, such as the Area M conflict.
MR. WHITE responded he has been around the problem for almost 15
years. He said in hindsight, 15 years ago they should have been
looking for clear definitions about the research needed, and
sorting out stock separation, determining where those stocks were
going, determining what kind of impacts were occurring on those
stocks, carefully considering the historical use of those stocks by
the different fisheries engaged in taking them, then doing some
forward planning relative to getting good research, and getting
both sides of the issue to agree that research and biology is what
is necessary to resolve the issue. He stressed that has not been
done.
MR. WHITE felt that is what clearly needs to be done in the future.
He said all parties need to come to the table, sort out and agree
upon research to resolve the question about the impacts on the
stocks in question and try to find progressive five or ten year
solutions to the problems which have been dragging on for a half of
a generation.
Number 247
CO-CHAIRMAN JOE GREEN said there has been quite a controversy and
a divergence of views by professionals about over-escapement and
the caring capacity of various fresh water streams. He asked Mr.
White to comment on that issue.
MR. WHITE responded in regard to the issue of over-escapement, he
feels good research is just coming to the fore. He said he wants
to hear a conclusive debate about this research and what it means.
The research was brought forward during the Kenai River red salmon
discussion. He stated research showed at that time that there are
people who consider over-escapement to no longer be the biological
(indiscernible). He observed the other interesting point is that
the research to support that consideration was spotty and poorly
funded, and it was difficult to have any conclusive use of that
research. He felt the state needs to get funding to conclude that
discussion and get good biology to resolve the question once and
for all.
REPRESENTATIVE IRENE NICHOLIA stated in working with former Senator
John Binkley, the Yukon River Drainage Fishermen Association was
formed and all of the fishermen from the mouth of the Yukon River
to the Canadian border began working together. She said it was her
understanding that Mr. White was instrumental in getting the
Kuskokwim Salmon Working Group together. She asked Mr. White to
comment on his experiences with that group.
MR. WHITE told committee members there was a king salmon
conservation crisis in the late 1980s which was fractionalizing all
the users because there were going to be closures. Total closures
were even being considered. The industry was threatened with its
viability. He said that kind of desperation does two things. It
polarizes people to the point where they do not communicate anymore
and it also gets people to the point where they look for reasonable
solutions. He noted the most important thing to come out of that
conservation crisis was the establishment of cooperative management
on the Kuskokwim.
MR. WHITE stated at the present time there are sport, subsistence,
and commercial users meeting with the department once or twice a
week and addressing the openings and closures of the commercial
fishery on the Kuskokwim. He said he strongly endorses this type
of cooperative management and its ability to make fish and game
decisions more open to the public process and give a forum to all
users in season. The cooperative management has allowed all users
to understand the complexity of the decision making and has forced
people involved in fisheries management, either the department or
the users themselves, to the point of responsibility in making the
difficult decisions. He added that the cooperative management has
allowed maximum participation and is an excellent model statewide
for other users.
Number 338
REPRESENTATIVE BILL WILLIAMS asked Mr. White to comment on his
views regarding in-river fisheries management of commercial
fisheries.
MR. WHITE said the complexities faced on the Kuskokwim River at the
present time include the diversity of users. He stated the
perplexing problems faced in-river currently are the same questions
addressed earlier in regard to the Area M consideration. There are
stock separation problems and (indiscernible) problems with the
river that still are not being addressed. He felt the legislature
has been generous in trying to resolve the problems.
MR. WHITE stated timing is the biggest problem in being able to
separate the stocks that are imperiled. There are chum salmon
stocks which are almost 10 percent of their return needs into the
major tributaries (indiscernible) in 1996 and 1997. Therefore,
very close call problems are being faced as far as sorting out the
timing of the stocks into that drainage and being able to get some
commercial exploitation of the other viable stocks. He noted the
possibility of losing the commercial fishery in 1996 and 1997
exists. He said there is hope there will be enough fish for a
normal subsistence exploitation. He pointed out that how the state
functions in-river is very consistent with the statutory priority.
Number 383
CO-CHAIRMAN GREEN said there has been a lot of controversy in
regard to the Kenai River and the perceived overuse of shore
fishermen and its effect on habitat. He asked Mr. White's view on
bank fishing and the concerns everyone is voicing about possible
further overloading on some rivers.
MR. WHITE responded when he heard the Kenai River question brought
forward, he was pleased that all sides of the issue seemed to agree
that the one thing needing to be addressed was the impact on the
habitat. At the present time, he is also encouraged by the fact
that all users are trying to promote an aggressive solution to that
problem. He said the twofold problem most perplexing to him about
habitat degradation is the fragmentation of authority in trying to
determine a solution and the further complication with the people
using the fish being also fairly polarized.
MR. WHITE said in regard to getting to the point where the ongoing
rate of habitat degradation can be significantly decreased, there
are viable solutions. He felt people act responsibly in that area.
He pointed out what is needed is a clear consensus from the public
in that region about how they wish to go forward. Unfortunately,
the question is going to be addressed by (indiscernible) and will
be further complicated by what the people in that region really
want in regard to the development of that fishery.
MR. WHITE stated the current progressive thinking is good but how
that can be consolidated into some type of consensus driven public
policy and get the fragmented agencies to coalesce around the
ongoing good thinking is the answer to the questions regarding how
to decrease the habitat degradation. He felt bank fishermen are
acting responsibly and aggressively about providing the solution.
CO-CHAIRMAN GREEN clarified that Mr. White had said he plans to get
input from the users to determine a solution. He felt that sounds
like a popularity poll. He said if that is the basis, he questions
if the root of the problem will be found or will it be a matter of
just responding to people who have polarized views.
Number 447
MR. WHITE said there are hard questions to be asked and hard
solutions to be met in regard to the problem. He stated at the
present time, he finds very progressive thinking going on about how
to resolve the habitat degradation problem. The movement of
thinking currently about lowering impacts in certain places by
promoting more on bar fishing and boat fishing in certain places,
the (indiscernible) Island recovery program, the assessments of
flora and discussions in the community as to how to mitigate those
impacts and get restoration going is encouraging.
MR. WHITE stated the tough decision making required is how to get
more fish there and spread the uses around, while still getting
some type of mitigation to the problems which have occurred and
reducing any future impact. He felt those things are doable and
responsible parties are addressing those questions currently. He
said it is not a popularity question but rather getting people
educated about how not to make the problem worse and getting some
mitigation to address the damage done.
MR. WHITE said the best example on the potential of education is 20
years ago a catch and release sport fishery could not have been
explained. Now, catch and release sport fishing is becoming more
and more understood by anglers, which has resulted from an
aggressive education program nationally. He felt the same thing
could be done in regard to habitat degradation.
CO-CHAIRMAN GREEN noted there has been considerable discussion
about perhaps trying to diversify or spread out fishing areas. He
wondered how Mr. White felt about a sport fishing board, and
stocking in either non-anadromous streams or in spawnless areas,
such as Homer and Seward, where they promote fishing but it is not
necessarily a spawning stream area people will be catching the fish
in.
Number 497
MR. WHITE responded any way the state can offer, in light of the
present fiscal situation, more opportunities to the angler public
will help address angler dissatisfaction with the crowding being
experienced. He said the impact studies done in regard to human
caring capacity demonstrate a lot of frustrated angler experience
just by simple numbers. He stated any ability to create other
opportunities with other stocks, that do not become controversial
because of their biological diversity, is a tremendous solution to
part of the problem.
REPRESENTATIVE SCOTT OGAN said in his district there is a
perception that the Susitna River is managed by default and that
the emphasis for the management of salmon in the Cook Inlet region
is predominately managed for the Kenai River. He noted there is a
plan that if the Kenai River kings drop below a certain level,
certain user groups are eliminated and if the level drops even
further, other user groups are eliminated. He stated there is no
plan like that for the Susitna River kings. He pointed out that
fishing is important to the economy of his district. He asked Mr.
White to comment on that problem.
MR. WHITE responded he was not on the BOF when upper Cook Inlet was
addressed last fall. He said the Cook Inlet problem seems to be a
squeaky wheel problem that perhaps does not get all the squeaks.
The squeaky wheel is becoming a roaring front bearing wheel off
problem. He stated Cook Inlet begs for a comprehensive review and
plan which addresses all the fisheries in the migratory route. He
felt more parties need to be brought to the table to address the
questions which have been asked for a long time and a more
comprehensive solution has to be realized. Otherwise, what has
gone on for a number of years will continue to go on and the result
will be fragmented solutions and those solutions will have impacts
somewhere else.
MR. WHITE felt the questions needing to be addressed are
comprehensive stock assessments and how individual fisheries are
impacting other fisheries throughout the inlet. He stated he does
not see a comprehensive review happening but foresees good forums
happening to address all of the uses of the resources. He said he
is not sure there has ever been an adequate historic review of the
upper Cook Inlet stocks for their potential over a decade or more
experience. There are many questions needing to be brought to the
forefront. There is also a need to get good minds to address the
problem more comprehensively throughout the entire Cook Inlet and
to not focus solely on the Kenai River.
REPRESENTATIVE PETE KOTT made a MOTION to ADVANCE the names of John
White and Trefon Angasan to the joint committee for confirmation to
the Board of Fisheries.
CO-CHAIRMAN GREEN asked if there were any objections. Hearing
none, the MOTION PASSED.
HB 296 - STATE AUTHORITY OVER FISH AND GAME
Number 596
REPRESENTATIVE AL VEZEY, PRIME SPONSOR, stated HB 296 is an attempt
to codify a principle found in the statehood compact. He said HB
296 takes from the compact and puts into state statutes that the
state of Alaska has the right to manage its fish and game
resources. He noted a paragraph was also inserted which prohibits
other people from interfering with the state's right. He added
that paragraph was the topic of most of the discussion when HB 296
was in the House Special Committee on Fisheries. For that reason,
a work draft committee substitute has been prepared for
consideration.
REPRESENTATIVE ALAN AUSTERMAN said in the written sponsor statement
it says, "This power cannot be abridged or altered, except by
mutual agreement of the people of the State of Alaska and the
federal government." He stated on Kodiak Island, the national
wildlife refuge was set up specifically for bears. He wondered if
that is what is being discussed in that particular statement--that
the management of bears on Kodiak Island is not necessarily done by
the state but is done by the federal government because of the
agreement of that national wildlife refuge.
REPRESENTATIVE VEZEY asked what specific part of the bill is he
referring to.
REPRESENTATIVE AUSTERMAN stated he is referring to the sponsor
statement and wondered if the statement he just read is addressed
in the bill.
REPRESENTATIVE VEZEY responded that statement specifically was not
addressed in the bill discussed in the Fisheries Committee. He
said the work draft committee substitute says the state could do
that and comply with the law. What was said in the Fisheries
Committee was there is recognition of the federal law but it is
still the state's prerogative to manage its fish and game resources
in Alaska as outlined in the state compact.
REPRESENTATIVE AUSTERMAN asked if the state compact addresses the
statement he read from the sponsor statement.
REPRESENTATIVE VEZEY stated the compact does not prohibit mutual
agreement, it says the responsibility shall be the state's. He
said the compact does not prohibit the state from agreeing to work
with other agencies.
Number 645
REPRESENTATIVE DAVIES observed Representative Vezey had
acknowledged there is a primacy of federal law. He pointed out the
statehood compact provides that the management of fish and game
shall be transferred and conveyed to the state of Alaska and noted
there is a series of provisos. He stated those provisos reserve
the management of fish and game on federal reserves to the federal
government. He asked what is being accomplished with HB 296.
REPRESENTATIVE VEZEY responded there is an attempt being made to
put the basic provisions of the statehood compact in state law.
REPRESENTATIVE DAVIES felt the statute (HB 296) goes farther than
what is contained in the compact. Specifically, it requires the
federal government, if they ever decide they have some management
authority, to transfer that authority to the state. He said the
state statute seems to prohibit the federal government from
reserving any management authority at all.
REPRESENTATIVE VEZEY disagreed. He felt the state statute makes a
very strong statement about the rights of the state but does not
preclude any good management practice.
REPRESENTATIVE DAVIES stated he did not believe this is a detailed
fish and game management issue but rather a federal government
versus state authority issue as indicated on page l, subsection
(c). He thought the paragraph was very confusing.
REPRESENTATIVE VEZEY responded what is being recognized is that the
federal law does have primacy and the federal government has some
authorities in some areas, particularly in areas on federal land or
public lands.
TAPE 95-60, SIDE B
Number 000
CO-CHAIRMAN WILLIAMS asked if HB 296 will work under the
subsistence issue and in light of the Katie John case.
REPRESENTATIVE VEZEY said he would not want to go into the Katie
John case because he has not even read the recent court decisions.
CO-CHAIRMAN WILLIAMS stated if for example, the federal government
was going to manage the fisheries in navigable waters within the
state, how would HB 296 affect that situation.
REPRESENTATIVE VEZEY responded, "assuming that navigable waters are
not recognized as public lands...they could be either public lands
or state lands depending on other factors other than the
navigability servitude factor. The federal government...and again
there are a lot of issues about federal management of fish and game
resources on federal land that other people could answer better
than I but on state lands, the state law says the state has the
right to manage those resources. The reason I cannot specifically
answer your question is because I recognize two areas of navigable
waters, one of which there would be some basis to say that it is
public lands and could be managed by the federal government. Most
of the navigable waters in the state are not public lands but are
state lands. I am using the federal definition of public lands
which is found in the Alaska National Interest Land Conservation
Act (ANILCA)."
CO-CHAIRMAN WILLIAMS stated he still feels uncomfortable about how
HB 296 is going to affect the subsistence issue.
Number 055
REPRESENTATIVE VEZEY said HB 296 will simply say the state has
strong rights in managing fish and game and that the federal
government cannot assert some of those rights. He added there is
a gray area he is not capable of saying much about. He stated
there are some black and white areas he can tell the committee
about.
REPRESENTATIVE VEZEY thought Representative Williams was referring
to the gray areas. He said if Representative Williams is referring
to an area where there is no question that it is navigable water,
the federal government is not claiming it as federal land, and the
land is recognized as state land and state sovereignty, then it
would be the state's right to manage those areas.
CO-CHAIRMAN GREEN noted the situation where the court has ruled if
a river passes through a federal jurisdiction area, then there is
an exercise of federal control. He wondered if HB 296 passes, will
there likely be a collision course with the federal courts and
their interpretation of federal primacy.
REPRESENTATIVE VEZEY stated the Fisheries Committee had requested
HB 296 receive a Judiciary Committee referral. He said he did not
think that had formally been done but felt it probably would
happen.
Number 107
REPRESENTATIVE DAVIES recalled Representative Vezey had mentioned
in a case where the federal government made no claim over a
particular navigable water, the state would clearly have fish and
game management authority.
REPRESENTATIVE VEZEY said that was his interpretation of the
statehood compact.
REPRESENTATIVE DAVIES clarified in stipulating those provisions,
are there any cases of that nature where the federal government is
asserting management authority.
REPRESENTATIVE VEZEY responded there are substantial areas of
conflict.
REPRESENTATIVE DAVIES clarified the conflict is over navigable
waters. He asked are there white areas where the federal
government is asserting its management authority.
REPRESENTATIVE VEZEY responded the federal government is taking
steps to assert sovereignty over all navigable waters, through a
whole chain of events involving Congress, the Judicial Branch of
government, etc.
Number 150
STEVEN WHITE, ASSISTANT ATTORNEY GENERAL, NATURAL RESOURCES
SECTION, DIVISION OF LAW, stated he was available for questions.
He said some of the questions previously asked he will be able to
answer and some he will not be able to answer because he does not
have personal knowledge due to the fact that many of the
state/federal cases are being handled by an attorney in Anchorage.
He said the department did have comments about the enforceability
and cooperation portion of HB 296 in subsection (d).
CO-CHAIRMAN GREEN asked if there will be a collision course due to
the federal rendering that if a river flows through a federal park,
there is primacy granted to the federal government as opposed to
what HB 296 says.
MR. WHITE said HB 296 tries to counter the fact that federal law is
supreme over state law in all aspects. He stated there are many
federal fish and wildlife laws which govern fish and game
activities in Alaska and ANILCA is only one of them. He noted in
the Katie John case, a part of ANILCA is being interpreted. The
appeals court has said if the water is needed by a federal
reservation, reserve, park, etc., the Federal Subsistence Board can
regulate and manage subsistence and other fisheries to provide for
the subsistence opportunity happening in those waters. He
reiterated that is an interpretation of ANILCA and added that
ANILCA is supreme over state law and the State Constitution. He
stressed HB 296 would not change that circumstance.
CO-CHAIRMAN GREEN asked if passage of HB 296 would be useful or
contradictory. He wondered how a court would utilize a law like HB
296 as opposed to federal supremacy.
MR. WHITE responded HB 296 would not have any affect on the issue
of federal supremacy. He said federal supremacy is an
interpretation of the U.S. Constitution and a court would not even
look at a state's attempt, through statutes, to interpret the
federal Constitution. He explained HB 296 would not have any
affect on the state's legal efforts to circumscribe the statehood
compact.
Number 217
REPRESENTATIVE DAVIES asked in regard to the Katie John case and
the reserve water interpretation, is there an implied geographical
proximity in that notion. He questioned when it is determined that
the water is necessary for the reserve, can that interpretation
mean an extension of the management to the entire river system if
the reserve is there for fish and game purposes and in order to get
the fish preserved, they have to come up an entire river system.
MR. WHITE stated that is a legitimate question and is a concern in
regard to the Copper River where the fishery occurred. The federal
reserve is the St. Elias Park which is at the top of the Copper
River. The question is how far down river does the federal reserve
water rights extend. Conceivably, the rights go further than just
the boundaries of the park but it is not certain how much further
those rights go. He said the Federal Subsistence Board has to make
that interpretation.
REPRESENTATIVE DAVIES felt that question is a key question to the
entire issue. He thought it might be good to hear from the
attorney working on these issues.
REPRESENTATIVE NICHOLIA thought HB 296 should be held in the
committee. She stated she just received the committee substitute
and has not had time to look at it. She has many questions and
would like to talk to the attorney in Anchorage.
CO-CHAIRMAN GREEN recessed the meeting for 15 minutes.
CO-CHAIRMAN GREEN called the meeting back to order at 9:38 a.m.
MR. WHITE said during the break he was able to talk with the
attorney who is representing the state in all of the federal/state
fish and wildlife cases. He stated the question he struggled with
earlier is how far away from the federal reservations does the
federal reserve water rights extend in regard to allowing federal
management. He noted unfortunately the answer is not clear since
the Ninth Circuit did not say anything about it other than the
federal reserve water rights allow the federal government to manage
navigable waters which are necessary to serve the purposes of the
federal reserves.
MR. WHITE stated the issue now goes back to the Federal Subsistence
Board and based on advice from their attorneys, they will then
determine how far away they will attempt to manage subsistence and
other fisheries dependent on subsistence or that are related to
subsistence determinations. He said the state's position is those
rights only go as far as the actual boundaries--that is, the waters
laying within the physical boundaries of those parks, etc., are
subject to federal jurisdiction under this decision.
MR. WHITE told committee members the federal government, before the
Ninth Circuit, also advocated the position that the court held--
that is, the federal reserve water rights allow some management
over navigable waters but they did not clarify what that meant. He
said the plaintiffs in the case argued, under various theories and
will argue under the federal reserve water rights, that the federal
government should manage all the way out to the ocean.
MR. WHITE stated the issue is particularly problematic because the
concept of federal reserve water rights has never been used in this
context but is used in the western states for the appropriation of
water for drinking water and other water uses. Typically, the
rights extend upstream to stop upstream users from using too much
water which is necessary for the purpose of the park. He pointed
out it has never been argued to extend the rights downstream for
fisheries migrating up. He noted the next step is for the Federal
Subsistence Board to declare how far the jurisdiction goes and then
everyone will be back in front of Judge Holland to clarify what it
means.
MR. WHITE said also before Judge Holland are other parts of the
Katie John case which were not decided and were not up before the
Ninth Circuit, and therefore, are still before him. He stated
included is the question of how far off federal land areas ANILCA
allows federal managers to manage migratory herds. If they are on
state land or private land, can the federal government, under
ANILCA, manage those herds because they affect subsistence
opportunities.
Number 368
CO-CHAIRMAN GREEN clarified the state is given rights when an area
is not in a federal park or under federal control, and yet he heard
that because of ANILCA, those rights are circumvented.
MR. WHITE said the interpretation of where those rights are and how
far down they extend will be determined by an interpretation of the
doctrine and that law. He stated HB 296 will not affect the
outcome. He noted the department has problems with one part of HB
296 and agrees there are beneficial things in the bill too. He
explained the problem includes some of the restrictions on the
state being involved with enforcement and cooperation of the
federal laws. He could foresee scenarios in which the state's
efforts on conservation, which is done cooperatively with the
federal government, could be curtailed because of the prohibition
against that kind of activity in subsection (d).
MR. WHITE stated there is a subsection in HB 296 which says people
under the jurisdiction of the state, such as local governments or
municipalities, are told that the state and state boards have the
primary jurisdiction and the only jurisdiction over fish and game.
It would help to clarify some situations. For example, certain
coastal zone districts now are attempting to manage fish and game
under the authority of the coastal zone management act. He said he
can foresee conflicts regarding who has management authority, the
coastal districts or the state boards.
CO-CHAIRMAN GREEN said, "Is there some merit to what could happen
in the interim nine months. Is there anything on the horizon that
might be resolved. What I am concerned about is this thing just
becoming a mood document if we have higher and stronger authority
being handled somewhere else."
MR. WHITE responded he did not believe HB 296 accomplishes the
intended purpose because federal laws have to be dealt with. He
stated HB 296 does not accomplish diminishing the federal
government's authority under the supremacy clause. He explained
the part of the bill prohibits state employees from cooperating in
enforcement of federal laws, which could have a negative affect in
the state's ability to prosecute fish and game violations
cooperatively with the federal government. Conceivably, a state
trooper would be prohibited, under HB 296, from being a witness in
a federal prosecution for a fish and game violation which the state
might want to further.
MR. WHITE said another scenario is where the state cooperatively
manages off-shore fisheries beyond three miles under the Magnuson
Act in which if the state cannot cooperate and get involved with
enforcement, the state's ability will be curtailed to affect
whether federal jurisdiction is extended into state waters or
whether or not the state can extend its management in federal
waters which the Magnuson Act provides for. He pointed out under
the Magnuson Act, the state can manage offshore vessels beyond the
three miles if the vessels are registered with the state.
Conceivably, HB 296 could prevent the state from doing that
activity.
Number 437
MR. WHITE stated under the Magnuson Act, the federal government can
manage inside state waters if certain things are found such as the
state not managing appropriately and aggravating the federal
government's management offshore. He said that kind of extension
into state waters has been prevented by negotiating with the
federal government and convincing them the state has an adequate
management scheme and can make adjustments to that scheme so
extending federal jurisdiction into state waters is not necessary.
He stressed HB 296 would prevent the state from that kind of
cooperation. He reiterated subsection (d) would provide some
troubling aspects.
MR. WHITE noted subsection (e) talks about the Attorney Generals
office enforcing subsection (d) to the fullest possible extent
allowed under law. He said it is not clear if that means the
attorney general is the only entity that can enforce the law. He
thought a private citizen could enforce subsection (d). If a
person was being prosecuted for a violation of a federal fish and
game law and the evidence for that prosecution was provided by
state fish and wildlife protection officers, under HB 296 that
person could prevent a state officer from being a witness against
him in a federal prosecution.
REPRESENTATIVE NICHOLIA asked if subsection (e) can be put into law
since the Attorney General works for the Governor. She noted the
Governor is voted into office statewide.
MR. WHITE stated Representative Nicholia's comments raise a good
point, which is a separation of powers issue. He noted the
Attorney General does work in the Executive Branch and many of the
state's enforcement decisions are statewide but generally are
directed by the Governor's office. He said he was not sure what
effect subsection (e) might have. He pointed out subsection (e)
would require telling a state trooper he or she cannot testify in
a particular case, or fish and game employees they cannot cooperate
with the Magnuson Act negotiations, etc.
REPRESENTATIVE OGAN made a MOTION to ADOPT CSHB 296(RES), version
K.
CO-CHAIRMAN GREEN asked if there were any objections. Hearing
none, the MOTION PASSED.
Number 497
GERON BRUCE, REPRESENTATIVE, ADF&G, stated Mr. White raised many of
the issues the department is concerned with. He said Alaska's fish
and wildlife are highly migratory and transude over a large expanse
of Alaska. With Alaska's complicated and checkerboard land
ownership pattern, cooperation between the various landowners and
entities having jurisdiction in those different bodies of land is
essential for the good management of Alaska's fish and wildlife.
Regardless of the problems the state has with other entities,
especially the federal government on certain issues, it is in the
fish and wildlife's best interest, and ultimately in the best
interest of the people using those fish and wildlife resources that
the cooperation exists and be as good as possible.
MR. BRUCE said examples of federal legislation which apply to the
department and the department works with the federal government on
include the Magnuson Act, the Marine Mammal Protection Act, the
Endangered Species Act (ESA), the Pacific Salmon Treaty, and the
Migratory Bird Treaty. He noted CSHB 296(RES) does address the
treaty situations but even in those situations, it is unclear what
the effect is on the state. The department is concerned that CSHB
296(RES) will make it more difficult to cooperate with the other
entities who have management authority or some management authority
in some areas. He noted the fish and wildlife resources require
this management over their entire range.
MR. BRUCE told committee members the ESA has a provision which says
a state employee who does not comply with the ESA or does not do
his part to enforce the ESA is personally liable. He noted the
ESA, as it is involved in the problems with the Snake River salmon
in the Pacific Northwest, does have an effect in Southeast Alaska.
He said the department has people who would be in jeopardy under
CSHB 296(RES) and would have two different missions--to enforce
state law, which would say they cannot enforce or cooperate with a
federal law that preempts state law; and then the ESA which says if
they do not enforce it and comply with it, they will be personally
liable. He urged the committee not to move the bill out of
committee until these concerns are addressed.
CO-CHAIRMAN GREEN stated a subcommittee would be formed to address
the concerns raised. He said he is not favorable of legislation
designed for possible conflict. He noted if the bill can be worked
out in a way where there will not be any conflicts or if it is
known there may be a conflict and the committee agrees to move the
bill, that would be preferable. He assigned a subcommittee
consisting of Representatives Austerman, Davies, and Ogan to review
the legislation with Representative Austerman as Chairman.
REPRESENTATIVE OGAN noted many of the issues raised could be
addressed by the Judiciary Committee. He wondered if the bill
could be referred to the Judiciary Committee rather than assigning
it to a subcommittee.
CO-CHAIRMAN GREEN felt the concerns voiced by Mr. Bruce were
regarding the state's resources and therefore, he would prefer to
hold the bill in the committee.
ADJOURNMENT
There being no further business to come before the House Resources
Committee, Co-Chairman Green adjourned the meeting.
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