Legislature(2003 - 2004)
05/19/2003 10:35 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 24(JUD)-AGREEMENTS ON MANAGEMENT OF FISH AND GAME
REPRESENTATIVE BRUCE WEYHRAUCH, sponsor of HB 24, told members
HB 24 follows on the heels of legislation introduced by Chair
Ogan that said the state will in no way cooperate or spend funds
on the Glacier Bay lawsuit. He explained that in the early
1980s, in the Alaska Wildlife Alliance versus Jensen case, the
District Court of Alaska and the Ninth Circuit Court indicated
that ANILCA did not prohibit commercial fishing in Glacier Bay
but that the National Park Service could prohibit it by
regulation. Thereafter, the National Park Service began a
process of promulgating regulations to prohibit and restrict
commercial fishing in Glacier Bay National Park. Senator Ted
Stevens then introduced legislation, which Congress adopted,
that said commercial fishing should be closed in certain areas
of the park and restricted to those who have a lifetime access
permit for the tanner, halibut and salmon troll fisheries. That
is the status of fishing in Glacier Bay now. Congress also
established a compensation program related to those closures and
restrictions. Senator Frank Murkowski then introduced
legislation, S 501, which Congress adopted, that said the State
of Alaska and the National Park Service shall enter into co-
management agreements on the management of commercial fisheries
in the outside waters of Glacier Bay National Park.
REPRESENTATIVE WEYHRAUCH told members HB 24 was originally
introduced to prohibit the State of Alaska from entering into
any co-management agreement with the federal government or a
sovereign entity. If it did enter into those agreements, the
legislature would have to review the agreements. During the
hearings in the House, it became apparent that certain co-
management agreements between the federal and state governments
benefit the State of Alaska, such as the management of bowhead
whales or waterfowl, so the House did not want to prohibit or
require legislative review of all co-management agreements. CSHB
24(JUD) now says the State of Alaska may not enter into an
agreement that cedes jurisdiction to the federal government. He
stated:
You do not want to have any state...public servant or
bureaucrat, having a co-management agreement with the
federal government that cedes jurisdiction by
contract, which we can't do by Constitution or
statute. And, tactically, the reason you want to do
that is because eventually if the federal government
says we have management jurisdiction over this
resource, and you agreed to that in a contract, then
that may undermine any argument that says no, federal
government, you don't have management jurisdiction
over our resources - the State of Alaska does. So, by
passing this statute, tactically, you can say if there
were a co-management agreement and it ceded
jurisdiction of management over a fishery, it would
have been void as against public policy of the State
of Alaska. And I think that's, sort of as a tactical
reason, why this was introduced, to prohibit by
contract what we can't do by statute or regulation,
the secession of our management and jurisdiction of
our resources to the federal government.
CHAIR OGAN said he toured the Situk River in Yakutat a few years
ago, an area with some conflicts. A federal permit is required
to float a state river. He said he got an earful from the locals
in the area and had to hold his tongue while the federal
officials were checking everyone's permits. He asked if this
legislation will deal with that problem.
REPRESENTATIVE WEYHRAUCH said it would if the State of Alaska
and the National Park Service said the federal government has
jurisdiction to manage the [riverbed] on behalf of the state or
if [the state] cedes jurisdiction of fish and game management on
that river. It is narrow on those issues. It arguably could
address the co-management agreement between the National Park
Service and the state if the state, by management agreement or a
memorandum of understanding, says it will give the federal
government the authority to do so, whether or not that is
allowable under the Alaska Constitution. He said the legislation
is intended to make any admission by the state void if the
federal government intends to use it against the state later in
court.
CHAIR OGAN asked a representative of the Department of Law to
comment on the legislation and describe its application "in the
field."
MR. STEVE WHITE, Assistant Attorney General, Department of Law
(DOL), told members he talked to staff at the Alaska Department
of Fish and Game (ADF&G) who could not identify any agreements
this legislation would apply to at this time. HB 24 would be
preventive for future agreements. He said as Representative
Weyhrauch said, the intent is not to interfere with the state's
interaction with the federal government on cooperative
management that does not give away the state's authority in any
manner. For example, the state cooperates with the federal
government to implement fishery management plans under the North
Pacific Fisheries Management Council and it shares research
information for subsistence management on federal lands. The
state and federal governments also have agreements involving
migratory waterfowl. In those situations, the state cooperates
with the federal government, which was given the authority by
Congress through the Supremacy Clause, to regulate in those
areas. The state assists to make sure its interests are
involved.
MR. WHITE said if ADF&G attempted to give away the state's
management authority, the contract would be subject to being
voided by the courts because it would be outside of the state's
authority to do so.
CHAIR OGAN said he begs to differ that no existing agreements
have given away authority. He said a recent ruling by the
federal subsistence board for subsistence fishing for rainbow
trout in western Alaska is egregious, according to some
biologists. He also referred to the 20 halibut per day
subsistence catch established by the federal subsistence board.
He said he is concerned that while the state might not
technically be ceding its authority, the federal subsistence
board does not have a mandate to manage for sustained yield.
Therefore, the state is allowing the federal government to
manage its resources in state waters and submerged lands by
doing nothing, which is ceding by default.
SENATOR SEEKINS asked if the state has cooperative agreements
with the federal government for the management of fish for any
purpose within the navigable streams or within three miles of
the coastline of the state at this time.
MR. WHITE said he is personally not aware of any. He noted that
Mr. Williams of ADF&G was shaking his head "no."
SENATOR SEEKINS asked, if the federal government claims it has
management authority over fish for subsistence uses in the Yukon
River, whether ADF&G recognizes that claim and enters into a co-
management agreement.
MR. WHITE said the situation on subsistence is very difficult
because the federal government has management authority over
some navigable waters but not all.
SENATOR SEEKINS said in the Totemoff case, the Alaska Supreme
Court said that is not true.
MR. WHITE agreed.
SENATOR SEEKINS asked if Mr. White is saying the Totemoff case
is tolled so that the state can have these agreements.
MR. WHITE replied, "No. The Ninth Circuit ruled contrary to the
state supreme court on the Totemoff case."
SENATOR SEEKINS disagreed. He said the Totemoff case was never
brought to the Ninth Circuit Court. The Alaska Supreme Court
said, in the Totemoff case, that the State of Alaska did not
have to recognize the federal claims.
CHAIR OGAN clarified the decision said that is the situation
unless the case goes to the U.S. Supreme Court.
SENATOR SEEKINS again asked if the state is now involved in any
co-management agreements in violation of the Totemoff decision
made by the Alaska Supreme Court.
MR. WHITE said he does not believe the state has any agreements
along those lines. ADF&G is closely watching the federal
government's exertion over subsistence management and, if the
federal government goes beyond what ANILCA allows, the state
would challenge.
SENATOR SEEKINS said that is his concern. He again asked if the
state is complying, via contract, or spending any money to
assist the federal government to exert management authority over
fish on the state's submerged lands.
MR. WHITE said he does not believe the state has any formal
agreements. He said the state shares research and comments on
proposals, such as the subsistence halibut fishery. He said
ADF&G objected to a recent proposal before the federal
subsistence board to allow for customary trade. He told members
to the extent the federal subsistence board is taking action,
ADF&G is commenting to protect the state's interests but it has
not entered into any agreements to assist the federal board.
CHAIR OGAN stated, "I'd like to add a comment. I can't resist
taking the bait. You said they were just watching it and the
department just sat back and watched while the feds undermine
the sovereign rights of our state to manage our resources and
the Governor rolled over - the last Governor rolled over and, in
my opinion, violated his oath in the process...."
SENATOR SEEKINS said he was just curious whether any existing
contracts would violate HB 24, if it is enacted.
MR. WHITE again said no existing contracts would.
SENATOR WAGONER asked Representative Weyhrauch whether the
lifetime permits in Glacier Bay include the halibut fishery and
whether they are transferable or restricted to the current
owners. He questioned whether [Congress] made a withdrawal so
that the state will never again be able to go into Glacier Bay
and harvest its resources.
REPRESENTATIVE WEYHRAUCH said the congressional action means
that no more commercial fishing operations will take place in
Glacier Bay. Sport fishing, charter fishing, cruise ships,
kayaking and hiking, among other activities, will be allowed in
Glacier Bay.
SENATOR BEN STEVENS said he believes the permit holders were
compensated as well.
REPRESENTATIVE WEYHRAUCH told members that $23 million was
awarded to people who made claims for compensation under the
portion of the congressional act that closed and restricted
commercial fishing in Glacier Bay. Those commercial fishermen
who received lifetime access permits may or may not have
received compensation; they could have applied. Some lifetime
access permit holders applied but were denied either initially
or because they initially obtained money but were then reversed
to zero on appeal because the National Park Service tinkered
with the numbers for the compensation program.
SENATOR BEN STEVENS stated, "If the federal government had a
clause like this in their law, the FMPs [Fisheries Management
Plans] and North Pacific and civil co-management agreements that
we manage for the feds now would not be able to exist."
REPRESENTATIVE WEYHRAUCH said outside of the three-mile
boundaries, those could still exist, particularly for the crab
FMP in the Bering Sea. The State of Alaska and federal
government could still enter into those co-management agreements
because that is a federally managed resource. The intent of HB
24 is to address state waters and to say if a co-management
agreement cedes management or jurisdiction unauthorized by
statute or the Alaska Constitution, an agreement could not be
made by contract.
SENATOR BEN STEVENS said if the table was turned and the federal
government could not cede management authority to the state, the
state could not enter into a management agreement with the
federal government.
REPRESENTATIVE WEYHRAUCH said the state could enter into an
agreement with the federal government if the State of Alaska had
a claim over the management and jurisdiction by constitutional
right. That jurisdiction would exist no matter what the
management agreement said. The jurisdiction and management,
whether federal or state, still exist. If the state has a claim
on the management and jurisdiction over those fishing rights
under law, it could not give those away by contract.
SENATOR BEN STEVENS asked if the state could not give away
management by contract.
REPRESENTATIVE WEYHRAUCH replied:
It can't give it away - it can't say we give you the
right to have management and jurisdiction of our
resources by contract because if that was prohibited
by Constitution or statute, the state couldn't give it
away by contract. The state couldn't cede that
jurisdiction by contract what it can't cede now by law
or Constitution. So, by entering into a co-management
agreement, or - if you want to call it a co-management
agreement - an agreement with the federal government
of federal fisheries, the state isn't ceding any
jurisdiction over those fishery resources because the
state by Constitution doesn't have jurisdiction over
those resources. It's a federal resource.
SENATOR BEN STEVENS said he was suggesting a role reversal so
the federal government could not cede its authority to manage to
the state. The state manages federal resources, in certain
instances, but the state would not be able to cede to them.
REPRESENTATIVE WEYHRAUCH said the state could allow the federal
government to manage the resource in the state. CSHB 24(JUD)
would prohibit any assertion that the state has given up its
management and jurisdiction over those resources by contract. If
the state has a dispute with the federal government over who has
the right, the federal government could not claim it in court
via the contract. The contract cannot override the state's
plenary ability to manage and have jurisdiction over the
resources and nothing by contract diminishes the legal argument.
SENATOR SEEKINS said he believes Representative Weyhrauch's
argument parallels a decision in an early 1990s case named New
York State versus United States of America. That decision
basically said a sovereign cannot realign the boundary between
these sovereigns by agreement. It would have to be done by
constitutional amendment.
REPRESENTATIVE WEYHRAUCH added, "Or to say that we have the
legal authority to do that - nothing diminishes that."
SENATOR SEEKINS agreed and said CSHB 24(JUD) is a restatement of
that decision. He said he likes that approach because it is also
consistent with the Dinkum Sands case. He asked if the State of
Alaska is involved in a [U.S.] Supreme Court case right now on
the ownership of the submerged lands in Glacier Bay.
REPRESENTATIVE WEYHRAUCH said that case is Alaska versus United
States, which is a quiet title action filed in the U.S. Supreme
Court.
SENATOR SEEKINS asked if CSHB 24(JUD) merely says that no
agreement the state enters into affects its sovereign control.
REPRESENTATIVE WEYHRAUCH said that is correct. He noted that Mr.
Somerville has provided him with several examples of how it
works with the federal fisheries.
SENATOR SEEKINS maintained that CSHB 24(JUD) will not prevent
the state from entering into a contract with the federal
government. It just allows the federal government to manage if
it has the manpower and will but it retains ownership by the
state.
CHAIR OGAN said his concern in the past has been that the state
has been terribly inconsistent with assertion of sovereignty on
navigable waters. He commented:
We're saying on one hand we want to assert sovereignty
in Glacier Bay because we all agree on that one. But,
losing by default by not appealing to the Supreme
Court, we gave up sovereignty of the rest of the
submerged lands - it's a pretty schizophrenic state
position and set a terrible precedent and it's
probably one of the reasons we're here now.
SENATOR BEN STEVENS pointed out that the reference to AS
16.20.010, on page 2, line 5, relates to legislative recognition
of a state game refuge. [Section 1] says the state has
jurisdiction over all fish and game in the state except in those
areas where it has assented to federal control but the state has
not assented to control of fish and game in Glacier Bay National
Park.
REPRESENTATIVE WEYHRAUCH asked that Mr. Somerville address some
of the federal issues that Senator Stevens raised.
MR. RON SOMERVILLE, advisor on natural resource issues to the
House and Senate Majorities, told members that the state has
concurrent jurisdiction but it can adopt regulations within the
regulations adopted by the federal agencies related to marine
mammals, waterfowl, and halibut. In other cases, such as federal
jurisdiction beyond the state's waters, the federal agencies
delegate authority to manage those areas; they do not cede that
authority to the state. The federal government allows the state
to manage halibut under the treaty, but it has not ceded
authority to the state.
CHAIR OGAN remarked, "In other words, we roll over but not
without kicking a little bit."
MR. SOMERVILLE said that is one way of putting it but, in some
cases, such as with marine mammals, the state is preempted so
anything it gets at the preemption process the federal
government can delegate back to the state.
SENATOR SEEKINS asked if the supremacy clause overrides the
state in the management of fish and game in state waters.
REPRESENTATIVE WEYHRAUCH said the State of Alaska came into the
Union with the promise that it would be on an equal footing with
other states. That was affirmed in a Utah lands case before the
U.S. Supreme Court. The state was in a constant battle with the
federal government to assert that it should be on equal footing
with the other states and colonies and that Alaska should have
control and management over its submerged lands and waters at
statehood. That has been a defining moment in the state's
history and the dispute will continue of who should control,
own, manage and have use of lands in the state. He said he
cannot answer Senator Seekins' question but he is very concerned
about the issue. He repeated that the intent of the legislation
is to make it clear that no agent of the state, who is not an
elected official, or through constitutional and statutory
amendment, is allowed to diminish our ability to claim
management and jurisdiction of our resources.
CHAIR OGAN commented that the state not only gained control of
submerged lands [at statehood] but it also gained title to those
submerged lands. The equal footing provision was specifically
included in the Statehood Act: the quitclaim of title to
submerged lands and with it the right to control not only the
lands but the water columns and fish and game in it.
REPRESENTATIVE WEYHRAUCH clarified that title case is before the
U.S. Supreme Court's master at this time.
CHAIR OGAN stated, "But the goofy ruling of the Ninth Circuit
saying the reserved water rights doctrine - because this
molecule of water ran across federal lands somehow gets them to
control all of the fishing downstream, is what the last Governor
dropped the ball on."
SENATOR SEEKINS asked if the Statehood Act provided that the
State of Alaska was the beneficiary of the 1953 Submerged Lands
Act in equal footing with all other states.
REPRESENTATIVE WEYHRAUCH said he could not answer that question.
SENATOR SEEKINS said it is his understanding that it did.
SENATOR BEN STEVENS asked why AS 16.20.010 is referenced on page
2 since it has no definition of management.
SENATOR SEEKINS pointed out the words, "added by Sec. 1 of this
Act." follow.
SENATOR BEN STEVENS said his point is that the language [in
Section 1] is restricted to AS 16.20.010, which pertains only to
Glacier Bay.
REPRESENTATIVE WEYHRAUCH said he continually queried George
Utermohle, who drafted the legislation, about Sec. 2. Mr.
Utermohle said Sec. 2 was necessary as a transitory provision
for existing agreements and was "phase-out" language to put the
agencies on notice. He said the "meat" of the legislation is
Sec.1, which addresses management.
SENATOR BEN STEVENS said the way he reads the bill, subsection
(c) only applies to AS 16.20.010.
REPRESENTATIVE WEYHRAUCH said that is correct.
SENATOR BEN STEVENS said then all of the talk about other fish
and game on state lands does not apply because AS 16.20.010
applies only to Glacier Bay National Park, bird and national
wildlife refuges or navigable waters within or adjoining the
park and preserve.
REPRESENTATIVE WEYHRAUCH replied:
...what happened in this committee is exactly the
dynamic that happened in House Judiciary, where people
wanted to make it very broad and the discussion got
very broad and philosophical and you bring in every
agency and every agreement. But the intent of this
bill was to deal with the co-management agreements in
Glacier Bay National Park and S 501 by Senator Frank
Murkowski, which required co-management agreements
between the state and federal government.
MR. SOMERVILLE said Senator Stevens is correct in that the
sponsor's intent was to cover Glacier Bay and the mandatory co-
management agreements. The request of the House committee to
expand it to include all state lands and waters should have been
placed in a separate section.
SENATOR BEN STEVENS said that is what he was trying to clarify.
REPRESENTATIVE WEYHRAUCH told members that the [House]
committees wanted to make the bill apply to every agreement with
every agency. However, that would have made the bill unwieldy
and could have harmed some of the potentially beneficial
ministerial contracts the state has entered into. He said the
focus was on Glacier Bay because of S 501, which mandated co-
management agreements with the state. He believes the Alaska
Department of Fish and Game should never cede management
jurisdiction that might somehow decrease the state's ability to
defend it later in court.
SENATOR DYSON said he appreciates the sponsor's efforts and
believes the legislation is narrowly aimed and well crafted. He
said his last comment characterized the feelings of legislators
in that they would all like to expand the legislation but it is
inappropriate to do so at this time. He then moved CSHB 24(JUD)
out of committee with individual recommendations and its zero
fiscal note.
CHAIR OGAN announced that without objection, the motion carried.
He then announced an at-ease.
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