Legislature(1995 - 1996)

04/28/1995 08:10 AM RES

Audio Topic
* first hearing in first committee of referral
+ 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.            
 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               
 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           
 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             
 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                   
 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           
 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                       
 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                
 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                  
 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                 
 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                                                                    
 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             
 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            
 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                    
 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                   
 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             
 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.                                               
 There being no further business to come before the House Resources            
 Committee, Co-Chairman Green adjourned the meeting.                           

Document Name Date/Time Subjects