02/26/1997 01:40 PM Senate JUD

         HB 120 STATE IMMUNITY FROM SUIT IN FED COURT                        
                                                                               
  SUSAN COX , Chief of the Civil Division, Department of Law, noted            
 her presence and offered to answer any questions the committee may            
 have on the tort aspect of HB 120.                                            
                                                                               
  REPRESENTATIVE BILL HUDSON , sponsor of HB 120, gave the following           
 overview.  He introduced HB 120 in concert with the Department of             
 Law and other legal counsel because the State of Alaska is                    
 presented with a rare opportunity to improve its situation in two             
 pending court cases.  The Eleventh Amendment to the U.S.                      
 Constitution prohibits suits against states in federal court from             
 damages brought by citizens of that state but on occasion it is               
 procedurally advantageous for a state to waive its Eleventh                   
 Amendment immunity to have a case heard in federal court.  The                
 Attorney General may waive the State's immunity only by express               
 authority of the Legislature; HB 120 provides that consent.  There            
 are two such cases before the State at this time.  The first case             
 is Peratovich v. United States where the State is asserting                 
 tideland ownership in the Tongass National Forest.  This case                 
 creates a prime opportunity for the State to assert that ownership,           
 but absent its ability to get into the federal court case, the                
 State has no standing.  The second case is the Smith v. State and           
 Melba Joseph et.al. v. State in which the State has been sued by            
 approximately 150 residents of Hooper Bay because of excess floride           
 in Hooper Bay's public water system.  In this case, a fair                    
 allocation for apportionment of tort claims against both the                  
 federal and state governments can only occur if the case is heard             
 in federal court, because the federal government can only be sued             
 in federal court.  The purpose of HB 120 is to allow the Attorney             
 General flexibility to favorably position the State in these two              
 lawsuits.                                                                     
                                                                               
  CHAIRMAN TAYLOR  commented he has discussed this case thoroughly             
 with Joanne Grace and appreciates the opportunity available to the            
 State.  He has been assured by Ms. Grace the Administration, for              
 some political reason, will not bail out on this case after getting           
 it started.                                                                   
                                                                               
 Number 100                                                                    
                                                                               
  JOANNE GRACE , Assistant Attorney General, testified she believes            
 the State will prevail in the tidelands case because it has a very            
 strong case for ownership of submerged lands.  If the Department of           
 Law was able to bring suit directly against the United States, it             
 would do so immediately but in light of jurisdictional problems, it           
 would like to use this case as a vehicle for litigation.                      
                                                                               
  CHAIRMAN TAYLOR  asked, if the State were to take corporate lands            
 conveyed to one of the regional corporations under ANILCA that abut           
 the waters of Southeast Alaska, whether a conflict with sovereignty           
 claims extended to those lands would exist, as opposed to the                 
 claims the State may make on lands adjacent to those properties.              
                                                                               
  MS. GRACE  did not believe that would be a problem as to tidelands           
 in territorial sea, because when the United States conveys the                
 uplands abutting those areas, it doesn't generally purport to                 
 convey the tidelands or the territorial sea.  That is not true,               
 however, of the inland waters in the Tongass. If the United States            
 takes the position that it has defeated the State's title to the              
 inland waters in the Tongass, then those waters, navigable, or non-           
 navigable, would be owned by Native Corporations and could be                 
 subject to Indian Country sovereignty claims.  This case will only            
 address tidelands in territorial sea.  If the State prevails on               
 tidelands in territorial sea, it will help the State's position on            
 inland waters as well.                                                        
                                                                               
 Number 141                                                                    
                                                                               
  SENATOR PARNELL  said he was considering amending the title of HB
 to maintain the narrow focus and prevent any mischief by the              
 Legislature.   CHAIRMAN TAYLOR  reminded Senator Parnell it is a              
 house bill.                                                                   
                                                                               
  SENATOR MILLER  moved CSHB 120(JUD) out of committee with individual         
 recommendations.  There being no objection, the motion carried.