Legislature(1997 - 1998)
02/24/1998 01:08 PM 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
February 24, 1998
1:08 p.m.
MEMBERS PRESENT
Representative Bill Hudson, Co-Chairman
Representative Scott Ogan, Co-Chairman
Representative Beverly Masek, Vice Chair
Representative Ramona Barnes
Representative Fred Dyson
Representative Joe Green
Representative William K. (Bill) Williams
Representative Irene Nicholia
Representative Reggie Joule
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
PRESENTATION BY GREGORY FRANK COOK: PUBLIC TRUST DOCTRINE
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
No previous action to record
WITNESS REGISTER
GREGORY FRANK COOK, Attorney At Law
P.O. Box 240618
Douglas, Alaska 99824
Telephone: (907) 586-9719
POSITION STATEMENT: Gave a presentation on the public trust
doctrine and answered questions of the
committee members.
ACTION NARRATIVE
TAPE 98-16, SIDE A
Number 0001
CO-CHAIRMAN SCOTT OGAN called the House Resources Standing
Committee meeting to order at 1:08 p.m. Members present at the
call to order were Representatives Hudson, Ogan, Masek, Barnes, and
Dyson. Representatives Williams, Joule, Nicholia, and Green
arrived at 1:13 p.m., 1:14 p.m., 1:15 p.m. and 2:09, respectively.
PRESENTATION BY GREGORY FRANK COOK: PUBLIC TRUST DOCTRINE
CO-CHAIRMAN OGAN announced the first order of business was a
presentation by Gregory Frank Cook on the public trust doctrine.
Number 0109
GREGORY FRANK COOK, Attorney At Law, explained the public trust
doctrine is not simple or pure. It is a common law doctrine - a
product of what judges say as they decide individual cases. It is
not a creature of statute and it is constantly evolving. In
addition, each state formulates what the public trust doctrine
means within its own border. Alaska's version draws on many
different sources including the state of Arkansas.
CO-CHAIRMAN OGAN announced the presence of Representatives Joule
and Williams.
MR. COOK further stated another important part of Alaska's public
trust doctrine is Article VIII, Section 3, "common use," of the
state constitution. He cited about 15 years ago the Sage Brush
Initiative was passed and codified in statute - AS 38.05.502. The
public trust was integrated into it. But, to his knowledge, it has
never been the subject of any decision by the Alaska Supreme Court
or even cited. Nonetheless, it is a very powerful statute because
it makes it clear that the public trust doctrine in Alaska does not
end at tidelands, but extends upland and to unappropriated
minerals. Thus, there are lands, waters, tidelands, uplands,
unappropriated minerals, and many natural resources that are part
of the public trust doctrine.
Number 0586
MR. COOK further stated the purpose of the public trust doctrine
is, generally speaking, to limit the legislative and executive
branches in the sales or other dispositions of certain types of
property. It also requires the management of certain types of
property which comprises the corpus of the trust, according to a
certain standard. The types of properties covered by the public
trust doctrine are "jus privatum" and "jus publicum." "Jus
privatum" is law applying to private types of property such as
chairs, desks, cars, and computers. "Jus publicum" is law applying
to the public trust such as waters, land beneath navigable waters,
fishery resources, and wildlife.
Number 0732
REPRESENTATIVE RAMONA BARNES stated Alaska is unique because it is
the only state that holds subsurface rights to its minerals for the
people. She asked Mr. Cook to comment on the right.
Number 0783
MR. COOK replied the right is addressed in AS 38.05.502, which
specifies that all unappropriated minerals in the state are held in
trust for the benefit of the people. Later, he will discuss the
obligations of the legislative and executive branches, the
restrictions on disposing of the assets, and the requirement to
obtain top dollar for them.
Number 0835
CO-CHAIRMAN OGAN stated a good example of the public trust is the
oil in the state. Citizens own the oil collectively and receive a
dividend off of its earnings representing their shares. He asked
Mr. Cook whether it is a fair analysis.
Number 0860
MR. COOK replied, "Yes." The public trust doctrine does not
prohibit leases of minerals or oil. According to the Alaska
Supreme Court, leases are of finite duration, they do not convey a
fee-simple interest, they are subject to competitive bidding, and
they do not constitute an irrevocable alienation of assets
forbidden by a trust.
Number 0892
CO-CHAIRMAN OGAN stated, in terms of the distribution, the United
States Supreme Court has ruled that the state can not discriminated
based on length of residency and equal protection.
MR. COOK replied by nodding his head affirmatively.
Number 0937
MR. COOK further said, in reference to the public trust doctrine,
the state does not act as a proprietor; it acts as a trustee. It
acts on behalf of somebody else. In addition, the public trust
doctrine guarantees equality of access to fish, wildlife, and
water. Thus, the public trust doctrine and the equal access
clauses together - Article VIII, Sections 3, 15, and 17 - prohibit
special privileges or exclusive rights. One of the privileges that
has been addressed by the Alaska Supreme Court is the rural-urban
distinction - McDowell. The principle of equal access is often
blended with equal protection and public trust considerations.
Number 1058
CO-CHAIRMAN OGAN announced that Representative Nicholia joined the
meeting some time ago.
Number 1065
REPRESENTATIVE FRED DYSON asked Mr. Cook to define the word
"indefeasible."
MR. COOK replied it means one that can not be taken away.
Number 1084
MR. COOK further explained, in reference to the public trust
doctrine, that the government acts as the fiduciary while the
public is the beneficiary. The fiduciary is someone who stands in
a special relationship to a beneficiary. A fiduciary must be
scrupulously fair, deal with the beneficiary at all times in the
upmost of good faith, and act with the full knowledge and consent
of the beneficiary. The fiduciary in this case, the state, holds
legal title to the assets covered by the trust. The beneficiary is
someone who holds the equitable interest in the body of the trust.
The beneficiary in this case is all the people of the state and the
consideration of future generations. The corpus is the body of
assets held by the trustee that are managed according to fiduciary
duties.
Number 1234
MR. COOK further explained the fiduciary duties of a trustee - the
legislature - are loyalty (no self-profit or deals) and to not
delegate common law. The legislature, however, delegates to the
executive branch. There is a duty to furnish information to the
beneficiary such as the value and status of a resource. It is a
duty that other legislatures have not paid sufficient attention to,
especially in terms of planning what the future holds. The
legislature has defined the sustained yield principle, but only in
terms of timber. He is not aware of any legislative definitions or
administrative regulations that comes close to defining sustained
yield in terms of fisheries or wildlife.
Number 1347
REPRESENTATIVE BARNES asked Mr. Cook whether the issue of fiduciary
responsibility in the context of public trust would be analogous to
the Permanent Fund Dividend Program's corpus and the legislature
determining how the interest is used.
MR. COOK replied it is directly applicable. The legislature is
charged with the management of the resource, while at the same
time, there are broad parameters to guide actions for its equitable
and wise management.
Number 1408
REPRESENTATIVE IRENE NICHOLIA referred to the issue of fiduciary
responsibility in terms of planning for the future, and asked Mr.
Cook whether the public trust doctrine will not resolve the
federal-state impasse according to Ostrosky.
Number 1432
MR. COOK replied he has not read Ostrosky in a few years.
Number 1460
REPRESENTATIVE NICHOLIA stated it says that the public trust
doctrine will not resolve the federal-state impasse.
Number 1478
MR. COOK further explained another duty of the legislature as a
fiduciary is to deal impartially with all of the beneficiaries of
the trust. It dovetails closely with several of the provisions in
the state constitution requiring equal protection of the laws. As
the trustee, the legislature is not allowed to favor one subset of
the beneficiaries. Classifications can be made, but they must be
done for proper purposes and pass muster under equal protection
analysis. The trend has been to forbid preference for one subset
of state residents based on where they reside - the rural
preference.
Number 1588
CO-CHAIRMAN BILL HUDSON asked Mr. Cook how limited entry fits into
the public trust doctrine. It grants Alaskans and non-Alaskans an
exclusive right to fish in exclusive areas.
Number 1628
MR. COOK replied the Alaska Supreme Court says there is tension
between the limited entry system and the equal access clauses -
Article VIII, Sections 3, 15 and 17. It fits in, however, because
of the language in Section 15 and because of the constitutional
amendment. The court has sought to harmonize Section 15 with
Sections 3 and 17 because of the tension. In addition, there have
been statements made by the state supreme court expressing concern
as the price of a limited entry permit escalates that it perhaps
does not fit improperly.
Number 1706
MR. COOK further stated the public trust doctrine does not prevent
an amendment to the constitution. The Constitution of the State of
Alaska guarantees, in his opinion, to the people the right and the
specific procedures to be amended. It is not an unqualified right,
however. The constitution could not be amended to remove the right
of liberty, for example, because it is a fundamental part of a
republican government. There is an argument that the public trust
doctrine only describes inherent and vested property rights that
can not be divested. He does not think that the public trust
doctrine would prevent an amendment to the constitution that would
limit the common use clause either.
Number 1789
CO-CHAIRMAN OGAN stated the United States Supreme Court said in
Illinois Central Railroad Company (1892), "the state could no more
advocate its trust over property in which the whole people are
interested in, and that it can advocate its police powers and
administration of government for the preservation of the peace."
Number 1815
MR. COOK stated there is more to the case than what was read.
There are exceptions and circumstances in which a state can convey
some portion of a public trust asset. In CWC Fisheries v. Bunker
(1988), the Alaska Supreme Court discussed the two-part test for
alienating items that are part of the public trust in terms of
revocation. The court said the legislature could transfer a
portion of tidelands to a private owner if he was building a wharf
for public use, for example. Therefore, the state has the ability
to favor one public trust use over another, but it can not favor
private interests over the public's interest.
Number 1923
REPRESENTATIVE BILL WILLIAMS asked Mr. Cook how the public trust
doctrine affects what was negotiated in 1971 under the Alaska
Native Claims Settlement Act. Language in the conference committee
report expected both the Secretary of Interior and the state to
take any action necessary to protect the subsistence needs of
Alaskan Natives. He wondered whether the public trust doctrine
would protect the state's right that was negotiated away.
Number 1962
MR. COOK replied it is a very good question. He did not want to
give a casual answer to such a complicated question. Nonetheless,
it would be beyond the power of a congressional meeting to make a
statement that would change the Constitution of the State of
Alaska.
Number 1998
REPRESENTATIVE WILLIAMS replied, given that it was a statement and
its inadequate implementation resulted in the Alaska National
Interest Lands Conservation Act (ANILCA), he asked Mr. Cook how it
affects the public trust doctrine.
Number 2035
MR. COOK replied the public trust doctrine at the state level does
not alter the supremacy clause of the Constitution of the United
States. If Congress acts according to the authority granted to it
by the Constitution, then those laws would be the supreme laws of
the land.
Number 2060
REPRESENTATIVE WILLIAMS asked Mr. Cook whether he is saying that
Title VIII of ANILCA is the supreme law of land.
MR. COOK replied he will stick with the words he used.
REPRESENTATIVE WILLIAMS asked Mr. Cook to make it clearer then.
MR. COOK stated, if Congress acts pursuant to authority granted to
it by the Constitution of the United States, then such law is the
supreme law of the land.
Number 2081
REPRESENTATIVE WILLIAMS stated Title VIII of ANILCA is the supreme
law of the land then.
Number 2086
MR. COOK stated whether or not Title VIII of ANILCA was properly
adopted is under litigation now which is the reason he can not
answer Representative Williams with certainty.
Number 2117
REPRESENTATIVE REGGIE JOULE asked Mr. Cook whether the legislature
should attempt to trust the public for advise on how to administer
the public trust doctrine. He wondered whether a constitutional
amendment is seeking advise on how to administer the public trust
doctrine.
Number 2173
MR. COOK replied it is the job of the legislature to determine
whether or not it should go to the ballot. But, yes the
legislature can trust the public, and yes it should seek the advise
of the public on how to administer the resources as part of the
public trust doctrine. The legislature at the same time should
recognize that the public does not have all the answers. But, this
is a representative government and legislators act on behalf of
their public. The concurring opinion of the Fairness in Salmon
Harvest (F.I.S.H.) initiative was that an initiative is not the
appropriate way to manage fish and wildlife resources. It turns
the role of a beneficiary into a trustee.
Number 2271
CO-CHAIRMAN OGAN read the following from the book, Putting the
Public Trust Doctrine to Work - Second Edition:
"When a state attempts to protect its public trust
resources, it is less likely to loose on claims of
federal preemption because the state is acting in an area
of its traditional power."
CO-CHAIRMAN OGAN stated the United States Supreme Court has ruled
that traditional state powers include the right to manage
indigenous fish and game within its borders.
CO-CHAIRMAN OGAN further read the following:
"The 'supreme' court maintains its presumption against
federal preemption when Congress legislates an area of
traditional state power."
CO-CHAIRMAN OGAN referred to case in Wyoming and asked Mr. Cook to
comment on the obligation of the trustees to manage as a
traditional state power versus the federal supremacy clause.
Number 2331
MR. COOK replied the question is very similar to Representative
Williams' question in that it is extremely complex. There is a
presumption against preemption and a test to determine whether or
not preemption should be applied. And, yes the management of fish
and wildlife is traditionally within the purview of a state's
authority. However, the Eighth Circuit Court of Appeals in Brown
(Minnesota) found that the federal government was held to have the
authority to regulate hunting on state lands and over state waters
because it would affect nearby federally owned lands.
Number 2418
CO-CHAIRMAN OGAN noted, for the record, the case in Wyoming dealt
with migratory water fowl, a non-indigenous species to the state in
which traditionally the federal government has had more authority
in managing.
Number 2426
REPRESENTATIVE NICHOLIA asked Mr. Cook whether the legislature is
really asking the people....
TAPE 98-16, SIDE B
Number 0000
REPRESENTATIVE NICHOLIA continued. She referred to the issue of
federal law as supreme over public land and the December 1, 1998
deadline to comply with federal law, and asked Mr. Cook whether
the legislature is asking the people in the state to manage these
lands, rather than what type of management they want - a dual
system of federal government on federal lands and state government
on state lands - or come into compliance with federal law and place
federal management on all laws.
Number 0043
MR. COOK replied it is a political question, not a legal question.
Therefore, she is better placed to answer it.
Number 0054
REPRESENTATIVE NICHOLIA replied it is not only a political
question. There are legal aspects because of Title VIII provisions
in ANILCA. "You stated that the federal law has supremacy over
public lands in the state of Alaska and so that supremacy law has
a supremacy over state laws."
Number 0069
MR. COOK replied there is nothing in ANILCA that requires Alaska to
amend the constitution.
Number 0074
REPRESENTATIVE NICHOLIA replied yes there is. Title VIII of ANILCA
places a rural priority.
MR. COOK replied it simply says "if" the state wants to manage
within certain parameters then it must provide for a rural
priority. And, if the state does not accept the federal
government's parameters then the federal government will manage
those lands. There is nothing in ANILCA that says the state "must"
adopt a constitutional amendment.
Number 0099
REPRESENTATIVE NICHOLIA asked Mr. Cook, if the state does not adopt
an amendment to the constitution for a rural priority, will the
state be out of compliance with federal law.
Number 0111
MR. COOK replied, "Right."
Number 0116
REPRESENTATIVE JOULE wondered whether the legislature could place
a subsistence constitutional amendment on the ballot, without
violating the public trust doctrine, just as the legislature passed
a resolution to place an amendment on the ballot for limited entry.
Number 0164
MR. COOK replied he does not see any prohibition on amending the
constitution. In his opinion, the common use clause is subject to
amendment, but not the equal protection clauses. Equal protection
is included in the Fourteenth and Fifth Amendments of the
Constitution of the United States. It is a different matter than
the public trust doctrine even though they interface and dovetail.
They are legally and conceptually distinct. In his opinion, equal
protection could not be taken out of the constitution.
Number 0210
CO-CHAIRMAN OGAN stated there is legislation, House Bill 406, that
would give a use-preference based on the sustained yield principle
in Article VIII, "subject to preferences among beneficial uses."
He asked Mr. Cook to explain the difference of a preference based
on "uses" versus "users" - users being the rural priority and uses
being the use of fish and game - in terms of equal protection.
Number 0248
MR. COOK replied the written material provided would be a better
source to answer the question. Nonetheless, Article VIII, Section
4, requires the state to manage fish, wildlife, waters, and other
replenishable resources according to the sustained yield principle
subject to preferences among beneficial uses. The Alaska Supreme
Court made it clear in McDowell that "uses" rather than "users"
were intended to be addressed by the provision. Decisions since
1992 have addressed the issue referring to McDowell. In addition,
the Alaska Supreme Court has said over and over again, as-long-as
access or category of use to the resource is not denied, the equal
access clauses of the constitution are not implicated and there is
no violation. For example, the Alaska Supreme Court has said in a
variety of cases that beneficial uses can be defined in terms of
the use made of the resource such as commercial, subsistence, and
sport fishing. The term "beneficial uses" actually comes from the
world of water law where it is described in terms of agricultural,
domestic, household, and municipal use of water, for example. They
are uses that require a diversion of water from its natural place
and an appropriation by a user in order to perfect a right to the
water. "Users" on the other hand, are a class of Alaskans such as
the urban-rural dichotomy. The Alaska Supreme Court has expressly
said it is all right for the boards to make allocation decisions;
discriminate for a valid purpose - resource conservation; and,
treat different subgroups differently - State v. Gilbert. In
Gilbert, the Board of Fisheries was allowed to treat Chignik
seiners differently than Stepovak setnetters. The state supreme
court had to recognize that the board must make allocation
decisions inherent to conservation and management of the resources.
But, the way the resource is allocated is fundamental, the
distinction between uses and users. "As-long-as you're not setting
up a closed category of users and you've got a resource
conservation purpose, then the discrimination, with other things
being equal, should pass muster."
Number 0481
CO-CHAIRMAN OGAN asked Mr. Cook whether the legislature is well
within its constitutional authority to set up a preferential use
for sustenance in a time of shortage to further the sustained yield
principle.
Number 0504
MR. COOK replied it is be beyond most people's debate that
subsistence uses is a beneficial use of the resources, therefore,
the legislature is entitled to adopt statutes that prefer
subsistence use. At the same time, the equal access clauses make
it clear that the legislature can not create a closed class of
people. He referred to the document that he provided to the
committee members today. It describes the historical reasoning of
other states' decisions in terms of Balkanization as a violation of
equal protections.
Number 0568
REPRESENTATIVE WILLIAMS asked Mr. Cook how the public trust
doctrine affected the Katie John case.
Number 0579
MR. COOK replied he has not reviewed the Katie John case. He
preferred not to give a snap response.
Number 0598
CO-CHAIRMAN HUDSON referred to "uses" versus "users" and asked Mr.
Cook, if the legislature established beneficial uses, which can
only be affected by users, wouldn't the users also have to also fit
the concept of beneficial trust.
Number 0631
MR. COOK replied the term "exclusive use" is expressly prohibited
by Article VIII, Section 15 - a derivative of the White Act from
the 1920s. It has also been interpreted by the Supreme Court in
Hines v. Grimes Packing Company. It is the kind of prohibition
that the Alaska Supreme Court relied on to invalidate the
intrastate residential preference in McDowell. Therefore, as the
state constitution now stands, the prohibition on exclusive uses
and special privileges (the common use clause) and the special
guarantee of equal protection in Article VIII, combine to prohibit
that kind of discrimination.
Number 0707
REPRESENTATIVE JOULE asked Mr. Cook whether a rural preference is
really a closed class because there is no prohibition against
somebody moving to a rural area or somebody moving out of a rural
area.
Number 0739
MR. COOK replied the precise issue was addressed by Justice
Rabinowitz in his dissenting opinion in McDowell.
Number 0764
REPRESENTATIVE JOULE asked Mr. Cook, in regards to the public trust
doctrine, how does it work with Article XII, Section 12.
Number 0788
MR. COOK replied, "I don't know."
Number 0800
REPRESENTATIVE BARNES referred to the issue of limited entry and
stated the people decided to give away a portion of their resources
to a particular group of people when they voted on it. The
arguments presented at the time were concerns about out-of-state
fishermen, a depressed resource, Alaskans holding the limited entry
permits, and the benefits remaining within Alaska. "We all know
that a large number of those permits today are held by people
outside of Alaska and were sold to them early on by many of them
from the rural areas of the state because they didn't understand,
I think, the value of those fishery permits as it related to the
future of the economy of the areas." She wondered, if the question
was placed before a court today of general jurisdiction in terms of
the promise made to the people, and the fact that an exclusive
number of people hold permits (mostly outsiders), their high value,
and the issue of migratory fish controlled by the National Oceanic
and Atmospheric Administration, how it would hold together under
the public trust doctrine. The scenario that led the people to
vote one way no longer exists.
Number 0932
MR. COOK replied the question has a lot of out-of-state commercial
fishers nervous. Clearly, the question could be decided
differently under the facts present today. There is no advantage
to speculate how it would come out, but it is a concern that has
been raised by the Alaska Supreme Court. In addition, consistent
with the public trust doctrine, a state may prefer its residents as
a whole over nonresidents. It would not be a violation of the
public trust doctrine to say that only Alaskan residents can hunt
for moose when it is for a legitimate conservation purpose. The
issue is addressed in the materials that he provided to the
committee members today.
Number 1041
REPRESENTATIVE BARNES stated it is troubling because the state,
through the legislative branch, holds the fish and wildlife in the
public's trust, and spends a great deal of money to manage a
portion of the fisheries resource for a large number of out-of-
state fishermen.
Number 1066
MR. COOK stated it is one of the reasons that justifies charging
out-of-state fishermen higher fees.
Number 1090
REPRESENTATIVE BARNES replied the state can charge a higher fee on
certain game permits, for example, because there is a clear nexus
between the cost of management and the cost of the outsiders to
hunt.
Number 1126
CO-CHAIRMAN OGAN asked Mr. Cook to continue his presentation.
Number 1147
MR. COOK stated the public trust doctrine applies to tidelands,
either washed by the tide or filled in and no longer washed by the
tide; navigable lakes and streams; uplands, a result of the Sage
Brush Initiative; and beds of navigable lakes and streams, a result
of a 1995 special and temporary act passed by the legislature.
MR. COOK further stated the public trust doctrine protects the
right of equal access to the sea for the purposes of commerce,
navigation, and fishing. It protects fish and wildlife and the
equal access to them, including the conservation of fish and
wildlife habitat which is often more important than harvest
restriction such as bag limits, open, and closed seasons. Habitat
is every bit as important to protect because without it, the
population is gone. The public trust doctrine is also seen to
protect recreational uses such as swimming, fishing, hunting,
viewing, and science. There has not been an explicit ruling from
the state supreme court yet on recreational uses, but the temporary
act passed in 1985 by the legislature extended the public trust
doctrine to those types of uses. In addition, the state should
also look at the quality and quantity of the resources left for the
future generations.
Number 1260
MR. COOK stated, in conclusion, the public trust doctrine is
potentially a powerful tool, but it is not a panacea. It is not a
universal cure. It is not a guarantee against federal management
of any kind. The state has lived with varying degrees of federal
management of resources without any undue effect for a long time.
He cited migratory water fowl as an example; and the International
Pacific Halibut Commission as an effective body for fisheries
management. It is a mixed bag because nobody wants to go back to
the bad-old-days of federal management of Seattle interests and
fish traps. The public trust doctrine does not answer the
confrontation between sovereigns. The public trust doctrine,
however, is a constitutional guarantee that the state government
will not violate its fiduciary duties, including the duty of
impartiality. The public trust doctrine is of very little use
unless the legislature recognizes and understands it and the
judicial branch is willing to enforce it. The public trust
doctrine, as it blends with the equal protection clauses in the
state constitution, requires that the resources are open to the
public on equal terms without a preference. Thus, any contrary
state or municipal action is impermissible, except for conservation
restrictions and preferences among beneficial uses. The public
trust doctrine does not prevent the Board of Game or the Board of
Fisheries from conserving or allocating scarce resources, but it
does prevent allocating them through devises that limit user
groups. The state constitution can be amended. The common use
clause can be amended - a concurring opinion by Justice Compton
(ph). "I believe that the public trust doctrine probably, may be,
diminished. It may be modified. It may even be emasculated
through the constitutional amendment process, but it certainly does
not have to be done." The public trust doctrine may not be
entirely eliminated any more than equal protection could be fully
denied. The public trust doctrine is simply the name given to the
rationale that is relied on that limits the power of the people who
temporarily occupy the seats of government when they seek to
transfer the assets that belong to the public as a whole to private
hands.
Number 1524
MR. COOK further stated, "My own preference is that the state,
through you, would pay more attention to the duty to give
information to the public. I don't think we know enough about our
fish and wildlife resources, and our water resources. In
particular, I don't think we know enough about what those
populations are, what kind of harvest they can sustain, and what
kind of yield you want them to sustain or the public might want
them to sustain. I would like to see the legislature consider,
perhaps not decide, what it means in our constitution to say
sustained yield outside of the context of timber which is the only
place you've looked at it. I would like the legislature to pay
particular attention to the issue of our waters. Our state waters
often receive short shrift, in particular, the reservation of in-
stream flow for the benefit of fish and wildlife, and for the
benefit of public recreation, and commercial use, and subsistence
use has to some extent run into a brick wall. Applications by the
state to speak to that reservation of water issue are simply not
processed by the Department of Natural Resources and that is in
many ways a failure of the state to properly take care of this
public trust resource."
MR. COOK thanked the committee members for looking at the state
constitution and the public trust doctrine. He called their
attention to an article written in December of 1994 in the Alaska
Law Review.
Number 1665
REPRESENTATIVE BARNES commented the issue of reserved water rights
is going to become a tremendous issue in the state. She asked Mr.
Cook whether he is aware of any federal law on the books that
specifically reserve water rights to the federal government in
Alaska.
Number 1702
MR. COOK replied he is aware of "supreme" court decisions that
constitute federal common law. However, statutory laws that govern
reserved federal water rights is an area beyond his area of
expertise, but he is familiar with federal case law.
Number 1727
REPRESENTATIVE BARNES stated there is a whole process under federal
law to reserve a water right in Alaska. "I don't believe that
there has ever been a time when the federal government has ever
gone through that regulatory process to reserve any water rights in
this state." Therefore, the Ninth Circuit Court of Appeals or any
other court that reaches a conclusion on reserved water rights
needs to be challenged in the Supreme Court of the United States.
Number 1775
REPRESENTATIVE BARNES further stated the legislature holds the
common property resources in trust and delegates a portion of its
responsibilities to different agencies through statutes. She asked
Mr. Cook his opinion on an agency undermining the law or making a
statement that a law is a floor and not a ceiling.
Number 1835
MR. COOK replied the Ninth Circuit Court of Appeals is not alone in
its decisions on federal reserved water rights. The United States
v. Cappaert case is the original decision on the issue from the
United States Supreme Court. There is also another court case
dealing with puff fish in the Death Valley Natural Monument in
regards to federal reservations.
Number 1908
REPRESENTATIVE BARNES asked Mr. Cook whether he would agree that
there is only one federally recognized reservation in the state -
Metlakatla.
Number 1921
MR. COOK replied yes at this point in time, pending a decision from
the United States Supreme Court on Venetie.
Number 1945
REPRESENTATIVE BARNES stated there can be federally reserved water
rights without going through a litany process.
MR. COOK stated the term "reservation" in the law is broader than
the meaning of an Indian reservation. It speaks broadly to areas
of land that the federal government owns and manages for specific
purposes. For example, the Tongass National Forest was the first
forest reservation in the country.
Number 2064
REPRESENTATIVE BARNES asked Mr. Cook whether the federal government
would have to go through a specific provision to reserve the water
within the reservation.
Number 2078
MR. COOK replied he does not know, but he does not think so. There
is still the doctrine of implied federal reserved water rights.
MR. COOK further replied, in regards to the standard delegation
analysis, the state supreme court would look to whether or not the
agency was acting in a way that was reasonably necessary for the
purposes of the effectuation of the statute. If an agency exceeded
its authority, a claim under the Administrative Procedure Act would
be upheld. An agency's interpretation of the statute would also
get some weight.
Number 2168
REPRESENTATIVE BARNES asked Mr. Cook what if the statute is clear
on its face.
MR. COOK replied clarity is always in the eye of the beholder. If
a court feels that a statute is clear on its face, there would be
no room for interpretation. It would be an administrative and
executive function.
Number 2218
CO-CHAIRMAN HUDSON asked Mr. Cook whether the same trustee
responsibility of the legislative and executive branches exists at
the federal level. He wondered whether Congress and the President
have a public trust over all of the federal lands in Alaska along
with the state legislative and executive branches.
Number 2266
MR. COOK replied, "Yes." But, it is not just like a state's public
trust doctrine. There are at least 51 different public trust
doctrines from the individual states, and the federal public trust
doctrine is less developed.
Number 2300
CO-CHAIRMAN HUDSON referred to ANILCA and asked Mr. Cook, if a
federal law requires a particular handling of a public trust that
is in conflict with a state's constitution, could it be amended and
still be within the purview of the public trust doctrine.
Number 2360
MR. COOK replied the federal government can do things that state
governments can not because of the Fourteenth Amendment. The
federal government can treat different groups of citizens in ways
that state governments can not. The federal government plays by
different rules when executing trust responsibilities.
Number 2410
CO-CHAIRMAN HUDSON referred to the Alaska Statehood Act, and
wondered whether the federal government has violated the state's
statehood rights.
TAPE 98-17, SIDE A
Number 0027
MR. COOK replied the court decision regarding the 90/10 split would
answer the question. But, he has not found legal arguments that
rely on the compacts theory persuasive. Instead, he has been more
persuaded with the arguments that Congress has the right to pass
legislation further down the road to change what an earlier
congress has done. It does not sound fair, but that is the more
persuasive legal argument.
Number 0206
REPRESENTATIVE BARNES commented the Alaska Statehood Act and the
constitution were voted on by the people as a compact between the
people and the federal government. She, therefore, wondered how
one could change it while the other one could not.
Number 0235
MR. COOK replied it seems to be the way it works. Congress is
supreme. There was no doubt about who bought and owned who at the
time and how Alaska became a sovereign state. It is easy to accept
legally, not emotionally, that Congress can change a statute
previously adopted. The option at the time was to remain as a
territory, but the Territorial Commission was managing the fish and
wildlife. The rights given through the Alaska Statehood Act,
legally, could be to some extent taken away. He is not fully
versed on the compacts theory, however.
Number 0401
REPRESENTATIVE JOE GREEN wondered whether the federal government
could break contracts with other countries. He also wondered
whether a state could break a contract with a company, and would
the breaker of a contract be subject to the damages.
Number 0459
MR. COOK replied the questions are beyond the scope of what he is
prepared to discuss today. But, yes the United States breaks
agreements with other countries and other countries break
agreements with the United States and sometimes there are damages
available. It is a matter of international law. And, yes the
United States breaks contracts with private companies and sometimes
there are damages available.
Number 0551
CO-CHAIRMAN OGAN referred to the 1953 Submerged Land Act in which
states were granted the title to submerged lands beneath water.
The Act gave a fair amount of authority to the federal government
for the "use, development, improvement or control arising from the
constitutional authority of Congress to regulate or improve
navigation to provide for flood control or the production of
power." The Act also affirms the right and the power of the states
to "manage, administer, lease, develop, and use the said lands and
natural resources in accordance with all applicable state law."
The dissenting opinion from Judge Cynthia Hall in Katie John quoted
the Submerged Land Act and begged the legislature to fix it. In
addition, it was unthinkable a number of years ago that the federal
government would even consider it had the right to manage fisheries
on navigable waters. He asked Mr. Cook to comment on the case law.
Number 0711
MR. COOK replied federal fisheries management has traditionally
occurred in the sea beyond the three-mile limit inscribed to the
state. The concept of navigability has been vague over the years
and subject to pulsating definitions. Federal management of fish
and wildlife inside the state, outside of federal reservations, has
not been the norm in the past. Nonetheless, the federal government
has powers that it does not need to exercise. But, sometime it
does not know it has powers until the Supreme Court says so. He
looks forward to a statement by the Supreme Court that might give
a greater measurement of state management authority over fisheries
on navigable streams of which the bed is owned by the state.
Number 0861
CO-CHAIRMAN HUDSON stated, in the even the state loses single
management and the federal government takes over, how accountable
would the federal government be for the mismanagement of the common
resources.
Number 0903
MR. COOK replied it would be incorrect to say that the state has
sole management authority right now in light of the extensive
federal responsibilities exerted for a number of years over marine
fisheries, fishing and hunting on federal lands, the Migratory Bird
Treaty Act, the Fur Seal Protection Act, and the Marine Mammal
Protection Act. Therefore, if the state does not conform to
ANILCA, it stands to lose its limited amount of management
authority that it now has on federal lands. The state would still
retain management authority over state lands and some state waters.
MR. COOK further replied, in reference to accountability, the state
would not get anything. The state has a very broad standard of
equitable and wise management, according to the Metlakatla
decision. He does not know, however, whether there are enforceable
and justiciable management standards that pertain to the federal
government. It would be tough to make a case against the federal
government to get relief in general, but maybe in a specific
situation.
Number 1115
CO-CHAIRMAN OGAN noted the latest amendment to ANILCA says, "In
accordance with Title VIII of this Act, the Secretary of Interior
is 'required' to manage fish and wildlife for subsistence uses on
'all' public lands in Alaska because of the failure of state law to
provide a rural preference." It is interesting to note that
contrary to Senator Stevens' comments, the subsection would only be
repealed on the date a law is not adopted. Therefore, a rural
priority would also extend authority, not just judicial or implied
authority, to the Secretary of Interior. He asked Mr. Cook whether
the state is slowly being reduced to territorial status.
Number 1183
MR. COOK replied there is not anything inherently evil about
federal management, but the state's perspective is generally
superior to the federal's perspective. He is proud to have been a
members of the Department of Fish and Game; it is the operation
that should be in charge of the state's resources.
CO-CHAIRMAN OGAN thanked Mr. Cook for his time today and for the
time it took to prepare for the meeting.
Number 1223
REPRESENTATIVE NICHOLIA asked Co-Chairman Ogan when the committee
members will receive a sectional analysis for the new proposed
committee substitute.
CO-CHAIRMAN OGAN replied a partial sectional analysis has been
provided. He does not want to order more than one as the bill
changes.
Number 1253
REPRESENTATIVE JOULE asked Co-Chairman Ogan whether a fiscal not is
being developed.
CO-CHAIRMAN OGAN replied a fiscal note is forthcoming. A bill can
not be passed out of a committee without one.
Number 1269
CO-CHAIRMAN OGAN recessed the meeting to the call of the chair at
3:03 p.m.
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