Legislature(1999 - 2000)
03/26/1999 03:05 PM Senate RES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
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= bill was previously heard/scheduled
SB 68-COOPERATION WITH FEDERAL AGENCIES
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:05 p.m. and announced SB 68 to be up for consideration.
MR. BRETT HUBER, Aide to Senator Halford, explained the new CS,
LSO35/H, and amendment, H.1, to SB 68. The intent of SB 68 is, if
the federal government takes action to preempt our state's
authority to manage fish and game resources, they need to pay the
bill. Anything else is a unfunded federal mandate. The proposed
committee substitute addresses the committee's previous concerns.
The first change on page 1, Section (a) adds a finding section that
further clarifies the intent of the bill. It recognizes the
constitutional mandate for sustained yield management and the
State's commitment to providing for subsistence uses. It recognizes
Alaskans' relationship to and dependence upon fish and game
resources and that, managed for abundance, our fish and game
resources have the capacity to satisfy multiple uses provided the
State is able to maintain its sustained yield management.
Findings in Subsection (b) recognize the State is the only entity
with the mandate of sustained yield. With the additional
inefficiency of a federal multi-agency authority jurisdiction and
regulation and their preemptive fish and game management, they
recognize the State is bearing the additional burden of providing
for a comprehensive sustained yield management scheme that
compensates for the diverse objectives of the federal agencies.
They recognize the State's ability to manage for sustained yield
and to the benefit of all users is more complicated and more costly
due to federal preemption. They recognize the benefits to the
federal agencies, through the use of State management, expertise,
data, and research. And finally, the findings recognize the
overall benefit to the management of the resources if the federal
government pays their share of costs incurred to cooperate with
their preemptive efforts. These findings, to a great degree, were
based on the previous testimony of the Department, former
Commissioner Rosier, and comments by committee members.
The next change on page 4, line 22, subsection (e) was added to
address the concern raised by the Department of Public Safety and
specifically allows DPS to provide emergency backup without prior
determinations and agreements of compensation.
The next change is on page 4, line 26 and deals with concerns
raised about the interaction of the bill with several existing
state/federal management relationships like Migratory Waterfowl and
Pacific Black Cod. Subsection (f) specifically exempts the
Migratory Bird Treaty Act, the Marine Mammal Protection Act, the
Endangered Species Act, and the Magnuson Stevens Fishery Act from
the federal programs the bill affects.
There was an oversight in preparing the committee substitute and
the Pacific Salmon Treaty Act and the North Pacific Halibut Act
were unintentionally omitted. Amendment H.1 adds them to the list.
SENATOR TAYLOR moved to adopt the committee substitute, 3/23/99
Utermohle, to SB 68. There were no objections and it was so
ordered.
LIEUTENANT HOWARD STARBARD, Department of Public Safety, said the
committee substitute with the amendment address the Department's
concern with the inclusion of Subsection(e).
Number 110
MR. MYLES CONWAY, Assistant Attorney General, said, although he
hadn't seen the CS, it sounded like it would take care of their
concerns. One point, though, is that it's difficult to determine
the scope of the term "cooperate". There is question about if the
cooperation is confined to joint studies, enforcement programs or
whether it would implicate informal contact, etc.
A remaining concern the Department has is the concern over the
perception the statute might have in ongoing and future litigation
with federal government over their scope of management authority.
Legal challenges to federal management authority will always be
decided in the Ninth Circuit and our State has a very unfortunate
and inaccurate reputation with this court on subsistence issues.
There is concern they will look at this statute and be convinced
that we are not concerned with the health of the resource; that we
are only concerned about money issues. With this backdrop, they
may decide some difficult issues against us.
CHAIRMAN HALFORD explained that the latest draft includes an
extensive section on findings which is specifically aimed at
avoiding the perception problems he is concerned with. The scope
of "cooperation" is within the discretion of the commissioner of
ADF&G, the operating agency. He thought that answered the majority
of the perceived and potential problems.
MR. CONWAY responded that as he heard the findings, they would be
of some help in court, but there is the worry they will take things
out of context.
SENATOR TAYLOR said he shared those concerns and that is why there
are additional findings provisions clearly setting forth the
State's policies. Our biggest problem is that we can't get to the
Ninth Circuit unless you have someone with enough guts to stand up
and fight for this State and file a case.
Number 200
SENATOR LINCOLN said she didn't see how "discretion" was left to
the commissioner. It says, "the commissioner shall" which doesn't
leave him much discretionary authority.
CHAIRMAN HALFORD explained that on pages two and three it says
"cooperate or not cooperate" and is followed by "unless the
commissioner finds in writing that they have an agreement to
reimburse for additional costs". It basically says the State has
to receive its fair share for its cooperation.
SENATOR LINCOLN reiterated that she didn't see where the discretion
is left up to the commissioner.
MR. GERON BRUCE, ADF&G, said he had a brief opportunity to look at
the CS, but they still have major problems with the bill. The
direction of the bill leads the Department into a situation where
they will be further fragmenting our fish and game management. We
need to be able to work with federal managers where they have
authorities and we don't. He appreciated the committee's efforts
to make sure there are adequate resources provided by the federal
government to deal with some of the costs imposed on the State by
federal law.
SENATOR LINCOLN said her questions pertain to the findings in the
CS. Page 2 says "the fish and game resources of Alaska have
adequate biological and reproductive capacity to provide an
abundance of fish and game for subsistence uses as well as other
recreational, personal use, commercial...in perpetuity, provided
that the state is able to maintain its sustained yield management
of the fish and game resources." She did not think that was a fair
statement to make.
Also, on page 1, line 9 it says, "The State has made a commitment
to provide a preference for subsistence uses of fish and game."
She certainly didn't agree with that either.
CHAIRMAN HALFORD asked if we didn't have a general state law that
provides that subsistence is the highest and best use of wild food
resources.
SENATOR LINCOLN responded they are discussing whether the
preference complies with federal law. She wanted to hear Mr.
Bruce's response.
MR. BRUCE said that it is difficult to talk about Alaska's fish and
game resources as a total because there's so much variety. Some
species, like salmon, are extremely abundant across the state as a
whole. That doesn't mean that there aren't places where runs are
low and need rebuilding. The environment and conditions vary and
use patterns vary. Some wildlife populations are smaller like the
ones close to the road systems. He thought those factors would
have to be considered in evaluating a finding like that.
SENATOR LINCOLN asked him to respond to page 2, line 20 where
"federal agencies reap a significant cost savings through the use
of State management, expertise, data, and research..." She asked if
that was a true statement and if we also reap any benefits from the
federal government on their data and research, etc.
MR. BRUCE responded that estimates in an early document
accompanying the proposed regulations for federal subsistence
fishing said from around $11 million to around $30 million. There
are examples of information being provided by both governments. In
the history of fish and wildlife management in the State of Alaska,
there has been a lot of cooperation between the State and the
federal government. Programs have been developed to compliment one
another in many instances.
SENATOR TAYLOR moved to pass CSSB 68(RES) from committee with
individual recommendations. SENATOR LINCOLN objected to say that
there is no other committee of referral. They had just heard ADF&G
say they had not had an opportunity to look at it to analyze the
impact and determine a fiscal note. Since this is the Resources
Committee, she thought it right to hear from the Department on
those issues.
SENATOR TAYLOR noted that there were several large fiscal notes
attached to the bill now and he assumed that legally it would have
to go through finance.
CHAIRMAN HALFORD asked for those in favor to raise their hands.
SENATORS TAYLOR, PARNELL, GREEN, and HALFORD voted yes. SENATOR
LINCOLN voted no; and the bill moved from committee.
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