03/05/2003 02:20 PM House RES
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ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
March 5, 2003
2:20 p.m.
MEMBERS PRESENT
Representative Mike Chenault, Co-Chair
Representative Hugh Fate, Co-Chair
Representative Beverly Masek, Vice Chair
Representative Carl Gatto
Representative Cheryll Heinze
Representative Bob Lynn
Representative Kelly Wolf
Representative Beth Kerttula
MEMBERS ABSENT
Representative David Guttenberg
COMMITTEE CALENDAR
HOUSE BILL NO. 115
"An Act extending the termination date of the Alaska Minerals
Commission."
- MOVED HB 115 OUT OF COMMITTEE
HOUSE BILL NO. 24
"An Act relating to intergovernmental agreements regarding
management of fish or game."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 115
SHORT TITLE:EXTEND ALASKA MINERALS COMMISSION
SPONSOR(S): REPRESENTATIVE(S)KERTTULA
Jrn-Date Jrn-Page Action
02/19/03 0253 (H) READ THE FIRST TIME -
REFERRALS
02/19/03 0253 (H) RES, FIN
02/24/03 0293 (H) COSPONSOR(S): CROFT, GARA
02/26/03 0323 (H) COSPONSOR(S): GRUENBERG,
GUTTENBERG,
02/26/03 0323 (H) FOSTER
03/03/03 0370 (H) COSPONSOR(S): DAHLSTROM
03/05/03 (H) RES AT 1:00 PM CAPITOL 124
BILL: HB 24
SHORT TITLE:AGREEMENTS ON MANAGEMENT OF FISH AND GAME
SPONSOR(S): REPRESENTATIVE(S)WEYHRAUCH, WHITAKER,
Jrn-Date Jrn-Page Action
01/21/03 0037 (H) PREFILE RELEASED (1/10/03)
01/21/03 0037 (H) READ THE FIRST TIME -
REFERRALS
01/21/03 0037 (H) RES, JUD
03/05/03 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
STAN FOO, Manager
Mining Section
Division of Mining, Land and Water
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 115.
LANCE MILLER, Executive Director
Juneau Economic Development Council
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 115.
REPRESENTATIVE BRUCE WEYHRAUCH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as the sponsor of HB 24.
GEORGE UTERMOHLE, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered legal questions relating to HB 24.
TED POPELY, Majority Legal Counsel
Majority Legal Office
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered legal questions relating to HB 24.
ACTION NARRATIVE
TAPE 03-10, SIDE A
Number 0001
CO-CHAIR HUGH FATE called the House Resources Standing Committee
meeting to order at 2:20 p.m. Representatives Fate, Gatto
Heinze, Lynn, Wolf, and Kerttula were present at the call to
order. Representatives Chenault and Masek arrived while the
meeting was in progress.
HB 115-EXTEND ALASKA MINERALS COMMISSION
CO-CHAIR FATE announced that the first order of business would
be HOUSE BILL NO. 115, "An Act extending the termination date of
the Alaska Minerals Commission."
Number 0086
REPRESENTATIVE KERTTULA, speaking as the sponsor of HB 115,
explained that the bill would extend the Alaska Minerals
Commission for a term of 10 years versus 5 years, because it's
been doing a good job, and she said it seems unnecessary to
bring it back in every 5 years. Representative Kerttula said
the commission was established in 1986, to make recommendations
to the governor and to the legislature on ways to mitigate
constraints on the development of minerals. Since 1986, she
said, several recommendations have been implemented such as the
Exploration Incentives Act passed in 1995 to encourage
explorations for minerals. She said in 1996, miners were
provided with more flexible work hours, and in 1998, the funding
was provided to update the recorder's offices. She noted that
these are all things that the commission has taken the lead on,
and she said given the state's history and the real viability of
this industry, she thought it was a great commission that's been
dedicated to trying to work out ways to have good, responsible
mining in an environmentally sound manner. She said she would
like to see the [commission's] work continue.
Number 0277
CO-CHAIR FATE asked about the possibility of amending present
statutes relating to mining or changing the mission of the
commission if changes needed to be made before the end of the
10-year term.
REPRESENTATIVE KERTTULA said if the legislature felt there
needed to be changes, or there were an audit that showed the
necessity for a change, the legislature could always come back
in and sunset it earlier. She said the commission feels it is
necessary to work for a longer period of time, and that it would
cost less time and energy to put it on that kind of a term.
REPRESENTATIVE KERTTULA, in response to a question presented by
Representative Heinze, explained that travel costs are paid for
out of the general fund, and [funding for] staff is through the
department and is not included in the commission's budget.
Number 0442
REPRESENTATIVE HEINZE asked Representative Kerttula if she was
referring to the Department of Economic and Community
Development.
REPRESENTATIVE KERTTULA answered in the affirmative.
Number 0468
REPRESENTATIVE GATTO said there seemed to be a tendency on the
boards to extend the regulatory "group" for longer than the
previous time. He stated that he's not entirely in favor of it,
but he's okay with it, but he noted that an audit could be
conducted at any time the [legislature feels it is necessary].
He said that makes it okay for him to accept the [bill].
Number 0524
STAN FOO, Manager, Mining Section; Division of Mining, Land and
Water; Department of Natural Resources, testified. Mr. Foo said
the division supports the extension of the Alaska Minerals
Commission to the year 2014. He explained that the commission
provides important and meaningful feedback to the
administration, the legislature, and the division on mining
issues, including land management and water management issues.
Mr. Foo said it provides the division with a "reality check" for
the state's ongoing efforts for developing, enhancing, and
conserving the state's mineral wealth. He explained that the
commission includes representation from both large and small
miners representing hard rock, placer, and coal mining. He said
broad representation also includes [corporations established
under the Alaska Native Claims Settlement Act (ANCSA)] and, most
importantly, provides a broad geographic representation advising
on mining and offering guidance on mining throughout the state.
With the importance of mining to the economy of Alaska being
expected to grow in the coming years, he said, the division
looks forward to the ongoing feedback and guidance provided by
the commission.
Number 0698
LANCE MILLER, Executive Director, Juneau Economic Development
Council (JEDC), testified. Mr. Miller noted that he was
previously employed as a projects manager for Placer Dome in
Asia, mainly working in the Russian Far East based out of
Alaska, and as chief geologist for Echo Bay [Mines], on the "AJ
project" for nine years. Mr. Miller spoke about the tenure of
the [commission], and he said from a private-sector perspective,
10 years is actually short, because mines take a long time to
put into production these days. He said he thought it shows
good will on the part of the state if the state is willing to
extend the commission 10 years. When a company is willing to
invest hundreds of millions of dollars in a state, he said, it
often is putting its capital at risk for over 10 years. He said
a study from the Frasier Institute indicated that Alaska has
slipped in investment attractiveness. Mr. Miller said with
everything that it takes to get a project moved ahead, 10 years
is what companies are looking at, so if the state can do that
also, it sends a good signal.
Number 0867
REPRESENTATIVE KERTTULA noted that [Frankie] Pillifant,
[Development Specialist, Mining and Minerals, Division of
Community and Business Development, Department of Community and
Economic Development] is her cousin. She noted that Ms.
Pillifant works with the Alaska Minerals Commission but isn't
funded out of this legislation.
Number 0927
CO-CHAIR CHENAULT moved to report HB 115 out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, HB 115 was reported from the House
Resources Standing Committee.
HB 24-AGREEMENTS ON MANAGEMENT OF FISH AND GAME
[Contains discussion of HB 132]
CO-CHAIR FATE announced the next order of business would be
HOUSE BILL NO. 24, "An Act relating to intergovernmental
agreements regarding management of fish or game."
Number 1020
REPRESENTATIVE BRUCE WEYHRAUCH, Alaska State Legislature,
speaking as one of the two sponsors of HB 24, characterized HB
24 as a bill that addresses agreements between the State of
Alaska and the National Park Service (NPS) over management of
commercial fishing in Glacier Bay National Park and Preserve
("Glacier Bay"). [Representative Weyhrauch stepped forward to
the committee room's map of Alaska to orient the committee.] He
said Glacier Bay is located northwest of Juneau, and he
described where the boundaries of the park are located. He
explained that [Glacier Bay consists of] almost 500,000 marine
acres of water that NPS claims is within the national park and
monument boundary. It's one of the most productive fishing
grounds in Alaska and is home to a huge troll [salmon] fishery,
halibut fishery, king crab fishery, Tanner crab fishery, and a
Dungeness crab fishery, he said. He noted that ground fish,
like crabs, and some shrimp are all caught in these waters.
Representative Weyhrauch explained that the Glacier Bay [issue]
has been before the legislature in various permutations.
REPRESENTATIVE WEYHRAUCH said the reason it's come before the
legislature and is of interest on a statewide basis is because
NPS claims that it has management jurisdiction over the
submerged lands in the park. Currently, he said, the state of
Alaska and the United States government are in a quiet title
action before the United States Supreme Court. He referred to a
[newspaper] headline a few weeks ago, and he said the state was
involved before a special master before that court, in which
case it is arguing the issue over title to submerged lands and
some other areas of the state. It's a critical case, he said,
involving who has ownership of those submerged lands in that
area, the State of Alaska or the federal government. He
explained that this bill does not address that, but it is "part
of a backdrop" in which this bill has been introduced.
NUMBER 1245
CO-CHAIR CHENAULT moved to adopt the proposed committee
substitute (CS), labeled 23-LS0135\S, Utermohle, 3/4/03, as the
working document. There being no objection, Version S was
before the committee.
REPRESENTATIVE WEYHRAUCH said what has happened is that through
an Act that was ironically introduced by then-U.S. Senator Frank
Murkowski, S. 501 has became law. The federal law [SEC.3.
COMMERCIAL FISHING, (b) MANAGEMENT PLAN] states as follows:
The Secretary and the State shall cooperate in the
development of a management plan for the regulation of
commercial fisheries in the outer waters of the park
in accordance with existing Federal and State laws and
any applicable international conservation and
management treaties.
REPRESENTATIVE WEYHRAUCH said federal law is saying that the
federal government and the state shall enter into co-management
agreements. When this bill was introduced, it was broadly
worded to disallow any co-management agreement between any
sovereign and the state regarding any management of fish and
game. He said discussions with some members of the legislature
and other interested parties, particularly, Native organizations
and other kinds of organizations, [had determined] that the
language in the original bill was too broad in that it would
affect things like management agreements for operation of weirs
on streams, for example. He said in certain instances it's in
the state's interest to have groups work with the state on a co-
management-type of basis, where it's more ministerial as opposed
to discretionary as to who has jurisdiction over a resource.
Number 1420
REPRESENTATIVE WEYHRAUCH said he is sensitive to those kinds of
agreements, and that this proposed CS requires the State of
Alaska to have the legislature review and approve any co-
management agreement with the federal government over the
management or jurisdiction of fisheries in those disputed marine
waters of Glacier Bay before it could become law. It doesn't
have anything to do with any other entity, he said. It doesn't
affect the U.S.-Canada salmon treaty, which the state is a party
to; it doesn't affect halibut under the International Pacific
Halibut Commission (IPHC). It only affects agreements between
NPS and the State of Alaska on Glacier Bay. That's how the
proposed CS really focused attention on Glacier Bay, he said.
The policy basis for doing this, he said, is that the
legislature wants to ensure that any management agreement the
state enters into does not cede any argument or any ability of
the state to claim that it is the predominant manager, and to
ensure that the State of Alaska has the primary jurisdiction
over its fisheries and state waters.
REPRESENTATIVE WEYHRAUCH said, essentially, if this is not
stated clearly in Glacier Bay, [the State of Alaska] doesn't
want to have the argument in other areas of the state that it
has given up jurisdiction over management of its fisheries in
those waters, and it may affect other waters in other parts of
the state. Representative Weyhrauch told the committee that he
thinks it's a critical state's rights kind of an issue, and it's
particularly offensive right now, when NPS is paying fishermen
not to fish anymore in Glacier Bay, where fishermen are being
excluded from Glacier Bay and are prohibited from fishing there
under federal law. He indicated it is important for the state
to stake as much claim as possible to its ability to continue to
fish in those waters. He said this is the [reason] for this
legislation.
Number 1536
REPRESENTATIVE GATTO said he appreciated the conversation that
dealt with ceding the possibility that the federal government
might be able to acquire some sort of meaningful jurisdiction
over these waters, and he noted that this concerns him. He said
he was hoping to receive some comment [on this issue], and he
recommended holding HB 24 in committee to allow for more time to
hear [testimony], because the issue about giving the federal
government any jurisdiction [over fisheries in disputed waters]
is so important. He suggested that the federal government will
accept any amount of jurisdiction it is given and use that in
any kind of an issue.
Number 1618
CO-CHAIR FATE said he had also questioned [the issue] and
brought his concern to Representative Weyhrauch, who did a
pretty good job of explaining it.
REPRESENTATIVE WEYHRAUCH, in response to Representative Gatto's
concerns, said HB 132 addresses the state's interest in any
lawsuit that affects the state's management jurisdiction in a
much broader context. He told Representative Gatto that he
would talk with him about it outside of the committee meeting.
Number 1718
CO-CHAIR FATE referred to the printout that had been placed
before him and he suggested that "jurisdiction" and "management"
mean two different things.
REPRESENTATIVE WEYHRAUCH, in response, said the bill only
addresses management, but it's the jurisdiction of the state to
review the management of any matter having to do with commercial
fisheries in those waters, and it's the jurisdiction of the
State of Alaska to ensure that the management agreement does not
cede any management ability to NPS on commercial fisheries. If
it does, he explained, it has to be revisited by the drafters of
any cooperative agreement to ensure that jurisdiction of the
state is not diminished through the management of fisheries.
Jurisdiction is not defined in this bill, he said; the
jurisdiction has to do with simply adopting the bill to ensure
that management stays with the state. He said if there's a
reason that management is not going to be with the state,
there's a sound policy basis that does not interfere with the
state's jurisdiction.
CO-CHAIR FATE referred to S. 501 [SEC.3. COMMERCIAL FISHING,
(2), which states]:
Nothing in this Act shall enlarge or diminish Federal
or State title, jurisdiction, or authority with
respect to the waters of the State of Alaska, the
waters within Glacier Bay National Park and Preserve,
or tidal or submerged lands.
CO-CHAIR FATE asked if this Act affords some protection as to
the potential of future actions regarding navigable waters in
the state.
Number 1842
GEORGE UTERMOHLE, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, testified. Mr. Utermohle said this provision of the
bill is an attempt to maintain a status quo, so that anything
achieved in doing this bill does not adversely affect the
states' position at a later time in any litigation the state
might have with the federal government.
Number 1871
REPRESENTATIVE HEINZE talked about her experience in Glacier
Bay, and she said she'd heard that many whales calve inside
Glacier Bay. She said in reading through the bill she found a
lot of fish and game management, but very little on
conservation. She asked if [conservation] had been addressed.
REPRESENTATIVE WEYHRAUCH said whales are a marine mammal and are
not a commercial fishery. The commercial fisheries are affected
if there are vessels that interfere with the transit of a marine
mammal or interfere in their habitat or existence. The state's
jurisdiction over that is through the National Marine Fisheries
Service (NMFS) and NOAA [National Oceanic and Atmospheric
Administration]. Whales are not the subject of [HB 24], he
said; the fish that whales feed on, for example, the smaller
herring, needlefish, and other kinds of fish are not a
commercial fishery in those areas. Most [whales] feed on the
opposite side of the Glacier Bay entrance outside Point Carolus
at Point Gustavus, he said. Representative Weyhrauch said there
is no intent here to address marine mammals or marine mammal
protection, or any operation of federal law related to whales or
humpback whales. He said they may calve in there, but he wasn't
familiar with the calving habits of humpback whales, only with
the analyses and studies on humpbacks by NPS and NMFS.
Number 1976
REPRESENTATIVE GATTO asked if it would be regarded as federal
jurisdiction if a whale were to calve within the three-mile
limit.
REPRESENTATIVE WEYHRAUCH said he didn't think there was a
jurisdictional issue on calving; it's more plenary jurisdiction
over the whale itself. He indicated that regardless of where
they calve, whales are under the federal government's
jurisdiction.
Number 2036
CO-CHAIR FATE talked about the possibility of a jurisdictional
hiatus between the powers of government, in this case, the
legislature and the administration. He turned attention to
language on page 1, lines 9-10, "unless the legislature has
approved the agreement by law ...," and he asked if management
was a function of the administration rather than the
legislature. He also asked whether management agreements
between the State of Alaska and the federal government had been
or would need to be approved [by the legislature].
REPRESENTATIVE WEYHRAUCH told Co-Chair Fate that his question
was a separation-of-powers kind of argument. He said Mr.
Utermohle could address the legal question and he could address
the [intention of the sponsors].
MR. UTERMOHLE told the committee that the Constitution of the
State of Alaska provides that the legislature is the law making
body for the State of Alaska, and the role of the governor is to
execute or implement the laws passed by the legislature. Where
the role of the governor begins, and where the legislature's
ends in the management of the executive branch, is in large part
undefined, he said. The execution of laws is the responsibility
of the governor, he said, given the law relating to management
of game and the power to enter into agreements with other
agencies regarding management of that game. How much can the
legislature then go back into that process and inject itself
into it and successfully do that under Alaska constitution, he
asked. He said the issue has never been addressed.
MR. UTERMOHLE said there are a number of situations in which the
legislature does require approval of executive branch actions,
but only one of which, that he was aware of, had actually been
before the court. That situation dealt with approval of labor-
management agreements between the executive branch and the
unions, which are subject to legislative approval, and did not
take effect unless approved by the legislature by law. That's
an example of where legislative involvement in the executive
branch has been upheld by the courts, he said. In a situation
such as this, he said, he wasn't aware of any litigation or
cases that have involved this issue of requiring legislative
approval of an administrative or executive branch action,
although there are a number of cases where that is required in
statute.
Number 2219
REPRESENTATIVE KERTTULA said the situation is different than
with [State v. A.L.I.V.E. Voluntary], and the preapproval of
regulations.
MR. UTERMOHLE said the issue involved in A.L.I.V.E. Voluntary,
was that the legislature was trying to take action to amend law,
a regulation, by virtue of a resolution. The state legislature
did not take its action by law, he said. Mr. Utermohle, in
response to a question from Representative Kerttula, said the
agreements are with NPS, except there may be agreements out
there that would fall under the provision of this Act. He
explained that the bill does provide for those agreements to
stay in place until the legislature has an opportunity to review
them to see whether those agreements have somehow ceded, or
somehow affected the state's jurisdiction to the extent that the
legislature is not willing to approve those agreements. If the
legislature failed to approve any existing agreements, he said,
those agreements would be void under this bill after July 1,
2004, although he wasn't sure if there are any of these
agreements. Mr. Utermohle couldn't say how the provision -
impairment of contracts - relates to an agreement or contract
between the United States and the State of Alaska. Generally,
he said, the remedy for impairment of contract is damages. He
said he was unsure what damages the federal government might
have against the state for backing out of an agreement.
Number 2376
TED POPELY, Majority Legal Counsel, Majority Legal Office,
Alaska State Legislature, testified. He said he was in
agreement with Mr. Utermohle's testimony regarding the
impairment question and damages, and it's difficult to assess
what kind of damages would be available through the federal
government, even if there were an impairment question. Mr.
Popely offered his belief that most co-management agreements
[contain] termination clauses with a specified period of days
contained within them, so they're not interminable by nature.
REPRESENTATIVE KERTTULA asked if anything coming after this
would void any terminable [clauses].
REPRESENTATIVE WEYHRAUCH, in response, said there is no intent
in this bill to interfere with contracts to the extent that it
causes damages; if so, they need to be brought to the
legislature's attention when it is reviewing these things to
ensure that they are dealt with before the state incurs damages.
REPRESENTATIVE KERTTULA expressed concern that if there is an
impairment-of-contract question, it could be a constitutional
question under this law itself. She said there seem to be ways
to get around the issue.
REPRESENTATIVE WEYHRAUCH offered his understanding that there is
no contract or impairment-of-contract issue that exists at all
in this matter. He said what's being discussed is a
hypothetical contract that may exist and may result in some sort
of damage claim. That's much further afield, he said; this is
intended to ensure that the legislature reviews any management
or co-management agreement between the [NPS] and the State of
Alaska on the management of fish and game. Representative
Weyhrauch said it's intended not to interfere with a private
party action or the federal government's ability to obtain some
remuneration from the State of Alaska that results in a damages
claim. This is a management issue, he said, not a contract
issue.
REPRESENTATIVE KERTTULA offered her understanding that
management agreements can be contracts themselves.
Number 2541
REPRESENTATIVE WEYHRAUCH, in response, said they could, but
federal law that was enacted under S. 501 says that [the federal
government] shall cooperate in the development of a management
plan for the regulation of commercial fisheries in the outer
waters of the park. He offered his understanding that to date,
with the exception of any co-management of the Glacier Bay
compensation program, there has been no co-management agreement
between the federal government and the State of Alaska over
commercial fisheries in the waters of the park. To the extent
that some sort of contract had been brought to the NPS or the
state's attention in the negotiation of this kind of co-
management agreement and then brought to the legislature's
attention, he said, there would have to be a fiscal note
attached to compensate that party for harm or damages caused by
the violation of the contract; thus the legislature would know
in advance the fiscal impact of having to finance any contract
action that resulted in a damages claim.
Number 2578
CO-CHAIR FATE noted that he would honor Representative Gatto's
request to hold the bill over to allow for an opportunity to
hear further testimony.
REPRESENTATIVE WEYHRAUCH noted that both he and Representative
Kerttula are from an area that had been significantly affected
by Glacier Bay.
CO-CHAIR FATE mentioned public concerns about navigable waters
in Alaska, and he said it was an ongoing issue that is affected
by [the bill], and that the concerns need to be addressed.
Number 2634
CO-CHAIR FATE indicated HB 24 would be held in committee for
further review.
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 3:02 p.m.
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