00 SENATE CS FOR CS FOR HOUSE BILL NO. 109(RES) 01 "An Act relating to management of fish and game in Glacier Bay National Park 02 and Preserve and navigable waters." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. FINDINGS. (a) The legislature finds that 05 (1) sustained yield management of fish and game in accordance with the 06 mandate of the Constitution of the State of Alaska assures the maintenance of healthy 07 populations of fish and game and provides the opportunity for a wide range of uses of the fish 08 and game resource; 09 (2) the State of Alaska recognizes the value of Glacier Bay National Park and 10 Preserve, one of our nation's crown jewels; 11 (3) the State of Alaska has demonstrated competence by state managers in 12 assuring healthy, viable populations of fish and game within the park and preserve, with no 13 deleterious effects on the resources or the aesthetic appeal of the area, and the State of Alaska 14 desires to continue to do so; 01 (4) current uses of the park and preserve, including limited and controlled 02 commercial and subsistence uses, constitute integral parts of the park and preserve and reflect 03 precisely the purposes for the executive withdrawal that created the original Glacier Bay 04 National Monument. 05 (b) The legislature further finds that 06 (1) the State of Alaska is the only entity responsible for and capable of 07 assuring the sustained yield management of fish and game throughout the entire state; 08 (2) the multitude of federal entities that have authority to provide for the 09 management of fish and game in Alaska have jurisdiction over only a patchwork of land and 10 water in Alaska and operate under a variety of legal mandates regarding fish and game; 11 (3) only the State of Alaska bears the public trust responsibility of providing 12 a single, comprehensive scheme of sustained yield management of fish and game to 13 compensate for diverse management objectives pursued by the many federal agencies; 14 (4) the State of Alaska has consistently demonstrated a greater sensitivity than 15 the federal agencies to sound conservation principles, which, for example, resulted in a 16 dramatic recovery of Alaska's fisheries following statehood in 1959 after a lengthy period of 17 misguided federal management; 18 (5) the State of Alaska is committed to continuing its public trust responsibility 19 for the navigable waters within Glacier Bay National Park and Preserve; 20 (6) it is not in the best interest of the State of Alaska to acquiesce in and assist 21 in federal takeover of fisheries management in the park and preserve in the face of pending 22 litigation challenging federal preemption of state management. 23 * Sec. 2. AS 16.20.010 is amended to read: 24  Sec. 16.20.010. Legislative recognition. The legislature recognizes that 25  (1) the state has jurisdiction over all fish and game in the state except 26 in those areas where it has assented to federal control; 27  (2) the state has not assented to federal control of fish and game in 28  (A)  those areas that  [WHICH] were set apart as National Bird 29 and Wildlife Refuges while the state was a United States territory; and 30  (B) Glacier Bay National Park and Preserve or the navigable 31 waters within or adjoining the park and preserve;  01  (3) special recognition of the value to the state and the nation of areas 02 of unspoiled habitat and the game characteristic to it will be demonstrated by 03 designating as state game refuges those federal lands that  [WHICH] were National 04 Bird and Wildlife Refuges or Ranges at the time that Alaska achieved statehood. 05 * Sec. 3. AS 16.20.010 is amended by adding a new subsection to read: 06  (b) In recognition of the fact that the state has not assented to federal control 07 of fish and game in Glacier Bay National Park and Preserve or the navigable waters 08 within or adjoining the park and preserve, that the power to control the management 09 of fish and game within the boundaries of the state is an incident of state sovereignty, 10 and that the federal government cannot commandeer the lawmaking processes of the 11 states to compel the state to enact and enforce a federal regulatory program, an agency, 12 employee, or agent of the state may not expend funds to adopt or enforce the 13 implementation of the federal regulatory program or a part of the program for control 14 of fish and game in the park and preserve or the navigable waters within or adjoining 15 the park and preserve that is in conflict with a state statute or regulation regarding 16 management of fish or game within the park or preserve. This subsection does not 17 prohibit an agency, employee, or agent of the state from 18  (1) taking action necessary to protect life or property; 19  (2) commenting on proposed federal statutes or regulations; 20  (3) collecting data relating to claims of economic harm arising from the 21 closure of the park and preserve to commercial fishing; or 22  (4) participating in or cooperating with a federal program established 23 under 16 U.S.C. 703 - 712 (Migratory Bird Treaty Act); 16 U.S.C. 773 - 773k 24 (Northern Pacific Halibut Act of 1982); 16 U.S.C. 1361 - 1421h (Marine Mammal 25 Protection Act); 16 U.S.C. 1531 - 1544 (Endangered Species Act); 16 U.S.C. 1801 - 26 1883 (Magnuson-Stevens Fishery Conservation and Management Act); 16 U.S.C. 27 3631 - 3644 (Pacific Salmon Treaty Act of 1985). 28 * Sec. 4. AS 38.05 is amended by adding a new section to read: 29  Sec. 38.05.126. Navigable and public water. (a) The people of the state 30 have a constitutional right to free access to and use of the navigable or public water 31 of the state. 01  (b) The state has full power and control of all of the navigable or public water 02 of the state, both meandered and unmeandered, and the state holds and controls all 03 navigable or public water in trust for the use of the people of the state. 04  (c) Ownership of land bordering navigable or public water does not grant an 05 exclusive right to the use of the water and a right of title to the land below the 06 ordinary high water mark is subject to the rights of the people of the state to use and 07 have access to the water for recreational purposes or other public purposes for which 08 the water is used or capable of being used consistent with the public trust. 09  (d) This section may not be construed to affect or abridge valid existing rights 10 or create a right or privilege of the public to cross or enter private land. 11 * Sec. 5. AS 38.05.128(a) is amended to read: 12  (a) A person may not obstruct or interfere with the free passage or use  by a 13 person  [MEMBER] of [THE PUBLIC ON] any navigable water [AS DEFINED IN 14 AS 38.05.965] unless the obstruction or interference is 15  (1) authorized by a federal agency and a  [OR] state agency; 16  (2) authorized under a federal or state law or permit; 17  (3) exempt under 33 U.S.C. 1344(f) (Clean Water Act); 18  (4) caused by the normal operation of freight barging that is otherwise 19 consistent with law; or 20  (5) authorized by the commissioner after reasonable public notice. 21 * Sec. 6. AS 38.05.128 is amended by adding new subsections to read: 22  (e) Free passage or use of any navigable water includes the right to use land 23 below the ordinary high water mark to the extent reasonably necessary to use the 24 navigable water consistent with the public trust. 25  (f) Free passage or use of any navigable water includes the right to enter 26 adjacent land above the ordinary high water mark as necessary to portage around 27 obstacles or obstructions to travel on the water, provided 28  (1) entry is made without injury or damage to the land; 29  (2) entry is made in the least obtrusive manner possible; 30  (3) there is no reasonable alternative available to avoid the use of the 31 adjacent land above the ordinary high water mark; and 01  (4) the navigable water is reentered immediately below the obstacle or 02 obstruction at the nearest point where it is safe to do so.