Legislature(1999 - 2000)
03/24/1999 02:17 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
March 24, 1999
2:17 p.m.
MEMBERS PRESENT
Representative Scott Ogan, Co-Chair
Representative Jerry Sanders, Co-Chair
Representative John Harris
Representative Carl Morgan
Representative Jim Whitaker
Representative Reggie Joule
MEMBERS ABSENT
Representative Beverly Masek, Vice Chair
Representative Ramona Barnes
Representative Mary Kapsner
COMMITTEE CALENDAR
HOUSE BILL NO. 109
"An Act relating to management of fish and game in Glacier Bay
National Park and Preserve and navigable waters."
- HEARD AND HELD
* HOUSE BILL NO. 131
"An Act relating to public rights-of-way and easements for surface
transportation across the Anchorage Coastal Wildlife Refuge."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 109
SHORT TITLE: GLACIER BAY NATIONAL PARK
SPONSOR(S): REPRESENTATIVES(S) OGAN, Dyson, Green, Kohring,
Cowdery, Austerman, Harris, Grussendorf, James, Porter, Coghill,
Whitaker, Mulder, Williams, Sanders
Jrn-Date Jrn-Page Action
2/22/99 278 (H) READ THE FIRST TIME - REFERRAL(S)
2/22/99 278 (H) WTR, RESOURCES
2/24/99 309 (H) COSPONSOR(S): WILLIAMS, PHILLIPS,
2/24/99 309 (H) SANDERS
3/04/99 (H) WTR AT 5:00 PM CAPITOL 124
3/04/99 (H) FAILED TO MOVE OUT OF COMMITTEE
3/16/99 (H) WTR AT 5:00 PM CAPITOL 124
3/16/99 (H) MOVED CSHB 109(WTR)
3/17/99 490 (H) WTR RPT CS(WTR) 4DP 1NR 1AM
3/17/99 491 (H) DP: COWDERY, GREEN, MASEK, BARNES;
3/17/99 491 (H) NR: JOULE; AM: BERKOWITZ
3/17/99 491 (H) ZERO FISCAL NOTE (2-F&G, DPS)
3/17/99 491 (H) REFERRED TO RESOURCES
3/19/99 519 (H) COSPONSOR REMOVED: PHILLIPS
3/24/99 Text (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
ROD ARNO
P.O. Box 2790
Palmer, Alaska 99645
Telephone: (907) 376-2913
POSITION STATEMENT: Testified in support of HB 109.
PATRICIA PHILLIPS, City Council Member
City of Pelican
P.O. Box 33
Pelican, Alaska 99832
Telephone: (907) 735-2240
POSITION STATEMENT: Testified in support of HB 109.
HOWARD STARBARD, Lieutenant
Division of Fish and Wildlife Protection
Department of Public Safety
453 South Valley Way
Palmer, Alaska 99645
Telephone: (907) 746-9107
POSITION STATEMENT: Expressed concern with certain aspects of HB
109.
KATHRYN SWIDERSKI, Assistant Attorney General
Natural Resources Section
Civil Division (Anchorage)
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501
Telephone: (907) 269-5100
POSITION STATEMENT: Answered questions and expressed concerns
with the new Section 3 of HB 109.
DAVID KELLEYHOUSE
Alaska Outdoor Council
P.O. Box 81452
Fairbanks, Alaska 99708
Telephone: (907) 455-7882
POSITION STATEMENT: Testified in support of HB 109.
GERON BRUCE, Legislative Liaison
Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802
Telephone: (907) 465-6143
POSITION STATEMENT: Voiced the department's concerns with HB 109.
ACTION NARRATIVE
TAPE 99-19, SIDE A
Number 0001
CO-CHAIR JERRY SANDERS called the House Resources Standing
Committee meeting back to order at 2:17 p.m. Members present at
the call to order were Representatives Ogan, Sanders, Harris,
Morgan, Whitaker and Joule. [Representative Masek, Barnes and
Kapsner were excused.]
[Minutes for the overview on the Citizens' Advisory Commission on
Federal Areas are found in the 1:22 p.m. cover sheet for this same
date.]
HB 109 - GLACIER BAY NATIONAL PARK
Number 0038
CO-CHAIR SANDERS announced that the next order of business was
HOUSE BILL NO. 109, "An Act relating to management of fish and game
in Glacier Bay National Park and Preserve and navigable waters."
[Before the committee was CS HB 109 (WTR).]
CO-CHAIR SCOTT OGAN, sponsor, introduced HB 109. He explained that
the action that the federal government has taken, which includes
the takeover not only of the navigable waters in Glacier Bay
National Park and Preserve, but also navigable waters outside the
park boundary, is serious. The Submerged Land Act of 1953 was
explicit in giving the states the right to manage the navigable
waters within their boundaries. The Alaska Statehood Act was
specific in addressing the Submerged Land Act of 1953, in clearly
giving the state the title on equal footing with the other states
to manage submerged land. Co-Chairman Ogan said that the federal
government's action is an egregious undermining of the state's
sovereign rights to manage its resources, which has been confirmed
by the Governor's lawsuit. Co-Chairman Ogan stated, "We heard
today on the news that there was a congressional action where
Senator Murkowski has got a moratorium passed out of the Senate,
and it remains to be seen what's going to happen on the House side
and with the Presidential veto; so, for a change, we ... all seem
to be singing off the same sheet music."
Number 0257
CO-CHAIR OGAN further stated that there are two parts of HB 109.
The first part says that the state of Alaska does not assent to
federal control. In AS 16.20.010 it refers to legislative
recognition with regards to National Bird and Wildlife Refuges, and
it says that the state of Alaska does not assent to federal control
in those areas. In 1960, a year after Alaska became a state, AS
16.20.010 was written. There is something written in statute that
says that the state of Alaska does not assent to federal control
and so Glacier Bay National Park was added. In addition, the state
of Alaska also has the power to appropriate. Generally, the
supreme court has upheld that the legislature has the power of
appropriation and nobody else does. In HB 109 it simply says, "the
state may not expend funds to adopt, enforce, or otherwise assist
in the implementation of the federal regulatory program." Also
included is language out of the U.S. Supreme Court case, New York
v. United States (1992), which states, "the federal government
cannot commandeer the lawmaking processes of the state to compel
the state to enact and enforce the federal regulatory program."
Number 0498
REPRESENTATIVE WHITAKER referred to the proposed amendment by the
sponsor [in committee packet], wondering what it deletes.
CO-CHAIR OGAN explained that the amendment does not delete
anything, but adds language of intent to show that the state of
Alaska does perform a better job of management than the federal
government does. The Attorney General has not reviewed the
language, but that is being worked on presently.
Number 0658
CO-CHAIR OGAN made a motion to adopt Amendment 1, which reads:
Page 1, following line 3:
"* Section 1. FINDINGS. (a) The legislature finds that
(1) sustained yield management of fish and game in
accordance with the mandate of the Constitution of
the State of Alaska assures the maintenance of
healthy populations of fish and game and provides
the opportunity for a wide range of uses of the
fish and game resources;
(2) the State of Alaska recognizes the value of
Glacier Bay National Park and Preserve, one of our
nation's crown jewels;
(3) the state has demonstrated competence by state
managers in assuring healthy, viable populations of
fish and game within the Park and Preserve, with no
deleterious effects on the resources or the
aesthetic appeal of the area, and the State desires
to continue to do so;
(4) current uses of the Park including limited and
controlled commercial and subsistence uses,
constitute integral parts of the Park and reflect
precisely the original purposes for the executive
withdrawal that created the Park;
(b) The legislature further finds that
(1) the State of Alaska is the only entity
responsible for and capable of assuring the
sustained yield management of fish and game
throughout the entire state;
(2) the multitude of federal entities that have
authority to provide for the management of fish and
game in Alaska have jurisdiction over only a
patchwork of land and water in the state and
operate under a variety of legal mandates regarding
fish and game;
(3) only the State of Alaska bears the public trust
responsibility of providing a single, comprehensive
scheme of sustained yield management for fish and
game to compensate for diverse management
objectives pursued by the many federal agencies;
(4) the State of Alaska has consistently
demonstrated a greater sensitivity than the federal
agencies to sound conservation principles, which,
for example, resulted in a dramatic recovery of
Alaska's fisheries following statehood in 1959
after a lengthy period of misguided federal
management;
(5) the state is committed to continuing its public
trust responsibility for the navigable waters
within the Park and Preserve;
(6) it is not in the state's best interest to
acquiesce and assist in federal takeover of Park
fisheries management in the face of pending
litigation challenging federal preemption.
Page 1, line 4:
Delete "Section 1."
Insert "Sec. 2."
Page 2, line 3:
Delete "Sec. 2."
Insert "Sec. 3."
CO-CHAIR SANDERS asked whether there was any objection. There
being none, Amendment 1 was adopted.
Number 0711
ROD ARNO, 35-year resident of Palmer, testified via teleconference
from Palmer on behalf of himself. He stated that he supports the
passage of HB 109. As the president of the Alaska Outdoor Council
he has spent a considerable amount of time testifying and looking
at past litigation concerning who has the authority to manage fish
and game in Alaska. The Alaska Outdoor Council considered taking
the issue up when the current Administration dropped the State v.
Babbitt suit. In the Totemoff case it states that the Submerged
Land Act of 1953 gives the state management of its navigable waters
and the police power belongs to the state. Mr. Arno said that
Glacier Bay National Park is a biosphere reserve. The goal is to
promote economic development and maintain associated cultural
values. Commercial and subsistence fishing are clearly permissible
in the park, and the hope is that their traditional use is
preserved.
CO-CHAIR OGAN stated that the biosphere reserve concept has not yet
been specifically addressed.
Number 0901
PATRICIA PHILLIPS, Council Member, City of Pelican, testified via
teleconference from Pelican. She is a 27-year resident of Pelican
and her family is in the commercial fishing business. She stated:
Communities near Glacier Bay National Park need adequate
opportunities to maintain their economic and social survival.
We request the continued, fair and reasonable, opportunity to
fish in Glacier Bay National Park to help alleviate the
growing social economic crisis within our community. We have
traditionally depended on the marine resources for our
economic and social well being. We wish to maintain the
ability to diversify our local economies and to maintain
stable long term employment. No actions should be taken to
restrict the exercise of valid commercial fishing rights or
privileges.
There is a long-term pattern of commercial and subsistence
taking of fish resources within the marine waters of Glacier
Bay National Park. Local residents from communities in close
proximity are a natural part of the ecosystem and are
dependent upon the harvesting of marine resources as a part of
their economic survival. These communities are economically
and socially integrated to the commercial fishing lifestyle.
The State of Alaska and the Secretary of Interior have an
obligation to protect the pattern of use of commercial fishing
consisting of methods and means of harvest which are
characterized by a reliance that provides to the economic
well-being of our community. The City of Pelican has a direct
dependence on the continuation of commercial fishing within
Glacier Bay National Park.
It is essential the State of Alaska continue to assert state
jurisdiction of all fish and game within marine navigable
state boundaries. Thank you for your continued support of
fishing in Glacier Bay National Park.
Number 1084
HOWARD STARBARD, Lieutenant, Division of Fish and Wildlife
Protection, Department of Public Safety, testified via
teleconference from Palmer. He stated:
The department supports putting the federal government on
notice that the state has not assented to federal control of
resource management within Glacier Bay National Park and
Preserve. It does not support Section 3 of this bill, which
would significantly impact the division's program objectives.
Section 3 adds a new section which would prohibit a state
agency employer or agent from expending funds to adopt,
enforce, and the term that we have problems with is "or
otherwise assist in implementation of the federal regulatory
program for control of fish and game in the park and preserve
or the navigable waters," because it still does not
differentiate between federal programs that exempt, preempt or
otherwise conflict the state regulations. The practical
impact on state agencies would be to prohibit them from
participating in any manner with the federal agencies within
the park and preserve. Federal law impacted includes: the
Marine Mammal Protection Act, the Endangered Species Act, the
Magnuson Act [Magnuson Fishery Conservation and Management
Act], the Migratory Bird Treaty Act and, specifically to us,
the Lacey Act.
If, for instance, a trooper were to observe somebody harassing
or shooting a whale at Point Adolphus in Icy Strait, which
would be the adjoining waters of Glacier Bay National Park and
Preserve, he or she would not be able to take any enforcement
action. The same would apply for someone found illegally
poaching seals, sea otters on the outer coast, eagles, sea
lions and other federally protected resources, or in other
circumstances where no concurrent state authority exists.
The committee substitute [CS for HB 109(WTR)] does take the
action necessary to protect life and property and addresses
the officers' safety concern that we originally had as part of
our opposition, but we still have problems with understanding
what is meant by the term "assist." ... For example, can our
dispatcher receive a request from a park ranger to run a
suspect's criminal history and background. This is done
normally, in the normal course of business, the sharing of
information would seem to be assisting the park ranger if we
were to give that information out, which would jeopardize not
only the officers' safety of the park ranger, but potentially
the Alaskan that he's contacting.
Number 1252
CO-CHAIR OGAN wondered if Mr. Starbard was looking at the same
version of HB 109, that being 1-LS0501\H.
MR. STARBARD responded, yes.
CO-CHAIR OGAN explained that language was added to Section 2, which
reads, "This subsection does not prohibit an agency, employee, or
agent of the state from taking action necessary to protect life or
property or from commenting on proposed federal statutes or
regulations."
MR. STARBARD agreed that if a search and rescue or backup was being
done that Section 2 would cover that action, but when the term
"assist in the implementation" is added, the normal course of
business is to run a criminal history background or a
warrant-arrest inquiry. The burden would be put on the dispatcher
to, first, differentiate whether the person calling is a federal or
state agent, and second, to know what the purpose is of the
request.
Number 1411
CO-CHAIR OGAN reiterated that what is being discussed is the
language out of Section 2, which reads, "the power to control the
management of fish and game" and "the implementation of the federal
regulatory program for control of fish and game in the park and
preserve or the navigable waters." He asked Mr. Starbard if part
of the problem is due to some concerns, stated earlier in his
testimony, with language in HB 109 that conflicts with state
regulations, and if language was added to address that, whether
that would ease the problem.
MR. STARBARD explained that the biggest problem with the exclusions
in the language is that the "adjoining water" definition has the
potential for someone to be at Point Adolphus, which is outside of
Glacier Bay National Park, and the fish and wildlife trooper from
Hoonah would not be able to take any enforcement action. There is
nothing that allows the state to do that, and the normal operating
procedure would be to contact the federal government, which means
that the state is not necessarily acquiescing their control within
the park, but that action is being taken against a violator of the
law. There would have to be an exclusion of the language that
there is not concurrent authority or regulations in place. The
other concern is the vague definitions of "assist" and "adjoining
waters." He wondered where the line is drawn for adjoining waters.
Number 1564
CO-CHAIR OGAN stated that he wanted to make it clear that the
adjoining waters are the waters that the Department of the Interior
has clearly marked, which consist of Icy Strait and up past Lituya
Bay three miles out. He requested clarification from Mr. Starbard
on whether language added to HB 109 which would address the
conflicts with state regulations would relieve the problem he has
with the bill.
MR. STARBARD replied that it would help to have language of that
sort, but not sure what the exact wording would be. Right now,
there certainly is a problem.
CO-CHAIR OGAN explained that the whole idea is that he doesn't want
to see a fish and wildlife protection officer arresting a person
that is commercial fishing in the waters of Glacier Bay National
Park; that is the intent of HB 109.
Number 1724
MR. STARBARD stated that the Department of Public Safety was
recently asked if they were taking federal enforcement action
within Glacier Bay National Park. The Department of Public Safety,
Division of Fish and Wildlife Protection, has no record, at least
back to 1986, of a fish and wildlife trooper taking enforcement
action against a citizen of Alaska, enforcing federal law that was
not concurrent with or worded exactly like state law.
Number 1811
CO-CHAIR OGAN stated that last year he was in Icy Strait near Gull
Cove and being a state representative he decided to step aboard and
inspect a state asset and state operation. On board the boat was
a federal fish and wildlife protection officer. The next day while
fishing near Cross Sound and Elfin Cove, the federal officer and
state officer stopped and checked his license. He was glad to see
enforcement occurring, although it was cooperative enforcement.
MR. STARBARD explained that throughout the state,
cross-deputization is reciprocal and there are some joint venues
that go on. In Glacier Bay National Park, 99 percent of the time,
the federal and state troopers are working in a perceived joint
fashion and it is almost exclusively for the state's benefit. For
example, the federal government set up a repeater system statewide
which they allow the state officers to use so that they are able to
contact a dispatcher during an emergency almost anywhere in Alaska;
that is the definition of "assist." Again, there is a lot of
cross-deputization occurring, but it is mostly skewed toward the
state's benefit.
KATHRYN SWIDERSKI, Assistant Attorney General, Natural Resources
Section, Civil Division (Anchorage), Department of Law, testified
via teleconference from Anchorage. She stated that she did not
have plans to testify but was open for questions.
Number 2020
REPRESENTATIVE JOULE wondered if Section 2, given the fact that the
Governor has filed suit on the issue, would in any way hinder that
effort.
Number 2045
MS. SWIDERSKI clarified that it would now be Section 3 after the
amendment. She expressed concern about the vagueness of the new
Section 3 and affirmed that the questions raised by the Department
of Public Safety are legitimate. It is not clear what all the
language in Section 3 is intended to cover, which could result in
litigation. As far as the state's lawsuit on Glacier Bay National
Park, the action has not been filed yet, but the United States
government has been given notice of the intent to file. The actual
complaint will be filed probably sometime in September, because
there needs to be six months' notice. It is very difficult to
predict how a bill like HB 109 would come up in the litigation and
whether it would help or hurt. The preference of the Department of
Law is to maintain maximum flexibility for the litigation, going
into it with a clean slate, which means not having the new Section
3 in the bill.
REPRESENTATIVE JOULE asked if Ms. Swinderski had a copy of the
findings language which shows that the sponsor has pushed this
section down one notch.
MS. SWINDERSKI replied yes. She stated that there aren't any
concerns with the findings and they are consistent with the
department's views.
REPRESENTATIVE JOULE asked if Section 2 [new Section 3] is the only
section that the department has trouble with, because of its
vagueness and the impacts it might have on the Governor's lawsuit
once it gets taken to that arena.
Number 2170
MS. SWINDERSKI replied yes. She added that one question on the new
Section 2 has to do with the ambiguity, which the Department of
Public Safety also addressed, of what is meant by "the navigable
waters within or adjoining the park and preserve." It would
probably be more precise to clarify that the intention is to reach
the navigable waters within the boundaries claimed by the
Department of the Interior.
REPRESENTATIVE JOULE wondered if Ms. Swinderski had any suggestions
of how it should be done.
MS. SWINDERSKI responded that she doesn't have specific suggestions
on how to revise HB 109 or Section 3, but there is the possibility,
if the intention is to support the state's lawsuit, of going
through the mechanism of a resolution. She noted that in addition
to the ambiguity of "navigable waters" and "assist in the
implementation," there is a question about "the federal regulatory
program for control of fish and game." It sounds like what is
intended there is a National Park Service regulatory program, but
that is not clearly stated in the bill.
Number 2272
CO-CHAIR OGAN asked if the courts refer back to committee
discussions on legislative intent if there is any ambiguity.
MS. SWINDERSKI replied yes. She pointed out that the preference of
the courts is to read the statutory language first, and then if
there is any ambiguity they may go back and look at the legislative
history, so it is important for the committee to make sure its
intent is on the record.
CO-CHAIR OGAN stated that he believes there has been an adequate
discussion which can be referred to by the courts if need be.
Number 2351
DAVID KELLEYHOUSE, Alaska Outdoor Council, stated:
The Alaska Outdoor Council supports HB 109. The State of
Alaska has not assented to federal control of fish and game
management on the lands and waters of Glacier Bay, and
therefore we should assert our state sovereignty over these
navigable waters and the fisheries therein. To do otherwise,
I think, would set a dangerous precedent. The council also
supports the intent of [HB] 109 that the state should not
facilitate any federal regulatory program that preempts
Alaska's sovereign states rights. Alaska's had an exemplary
record of managing fish and game according to the sustained
yield principle, and I think the long-term fisheries in
Glacier Bay attest to that fact. The council applauds
Chairman Ogan and all co-sponsors of HB 109 for prohibiting or
trying to prohibit state employees from assisting or expending
funds to deny Alaskans their traditional uses of Alaska's
renewable resources.
During the previous testimony there were a couple of points I
would like to point out. One, the Department of Public Safety
mentioned problems with the Lacey Act. The Lacey Act simply
addresses interstate transport of fish and game taken in
violation of state law, not necessarily federal law. As far
as assisting in enforcement, the Senate Resources Committee
has discussed this at length concerning SB 91, and that
committee may now have some language to carry forth the intent
of HB 109 while addressing the concerns of Public Safety.
There may be some ambiguity about the phrase, "for control of
fish and game in the park." To me that seems to clearly
address the situation wherein the National Park Service is
seeking to preempt state fish and game management authority.
But if that intent is not clear the committee may want to
consider substituting the phrase, "for preempting traditional
state fish and game authorities and consumptive uses in the
park," and I think that perhaps would be the kind of language
that the Department of Law and the Department of Public Safety
was looking for.
MR. KELLEYHOUSE concluded by urging the committee to move HB 109
out of committee.
CO-CHAIR SANDERS apologized to the people intending to testify on
HB 131 in Anchorage, because the committee wasn't going to get to
it due to the time constraint.
Number 2511
GERON BRUCE, Legislative Liaison, Alaska Department of Fish and
Game (ADF&G), stated that his testimony will somewhat echo that
given by the Department of Public Safety and the Department of Law.
in addressing the new Section 3 of HB 109, which says, "agent of
the state may not expend funds to adopt, enforce, or otherwise
assist in the implementation of the federal regulatory program for
control of fish and game in the park." The concern with that
language is that it is very broad, and it could sweep in some
things that have consequences for Alaskans in terms of their
economic interests. The current federal law regarding Glacier Bay
National Park eliminates fishing in certain areas, but it allows
other fisheries, such as trolling, longlining for halibut, and
tanner crabbing. The people fishing in the park have to document
a history of fishing there for a base period. They are likely to
seek assistance from the state in helping them document their
history and get the certification that will allow them to continue
fishing. However, the language in HB 109, the way it reads, does
not allow the state to assist the people fishing in the park with
documentation for the federal government, because they are
participating in a program that restricts state management. There
are also going to be some fisherman seeking compensation, and it is
unclear to what extent the state will be able to assist them in
applying for the compensation they are entitled to.
MR. BRUCE pointed out that the federal law states that the federal
government and the state of Alaska shall cooperate in developing a
management plan that regulates commercial fishing for the waters of
Glacier Bay National Park. This legislation, HB 109, he believes,
will prevent the state from cooperating in the development of that
management plan, which could mean that either the state may go
ahead and manage those resources or perhaps the park service may
take action to close Glacier Bay to commercial fishing, because the
state did not participate with them in developing the management
plan. The state is not sure of the outcome, but it is important to
look at possible outcomes, because they could affect people fishing
in Glacier Bay negatively.
MR. BRUCE concluded that the final issue of concern is in regards
to research. The state does do cooperative research with federal
agencies, including the park service. Research is used for a lot
of purposes, some of which may be unrelated to the federal program
to control fish and game in Glacier Bay, but may also be used for
that as a secondary purpose. The ability to cooperate with the
federal government in research is in the state's interest, because
it provides the state access to federal resources, which are often
greater than the state's.
Number 2748
CO-CHAIR SANDERS announced that HB 109 will be held over for
further consideration by the committee. He called an at-ease at
3:00 p.m. and called the meeting back to order at 3:04 p.m.
[HB 109 was held over.]
ADJOURNMENT
Number 2771
CO-CHAIR SANDERS adjourned the House Resources Committee at 3:05
p.m.
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