Legislature(1999 - 2000)
03/22/1999 03:20 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
SB 91-ENFORCEMENT OF SUBSISTENCE LAWS
CHAIRMAN HALFORD announced SB 91 to be up for consideration.
MS. MEL KROGSENG, Aide to Senator Taylor, sponsor, said SB 91
basically prohibits any member of our Department of Public Safety
or other state employee or a member of a police department of a
local municipality from enforcing any federal statute or regulation
that is inconsistent with out State Constitution or the
Constitution of the United States. It also prohibits federal
agents from the same thing. Another section of the bill repeals
the authority of the Commissioner of ADF&G from engaging in
agreements with federal law enforcement officers who are enforcing
laws pertaining to subsistence eligibility. Basically, she said,
we are not going to help them enforce laws that are in violation of
our constitution.
MR. LYNN LEVENGOOD, said he is an attorney in Fairbanks and
supported SB 91 for a number of reasons. He said, "There is a
train wreck scheduled and it's between the sovereignty of the State
of Alaska and the intrusions of the federal government into the
sovereignty of the State of Alaska." He said it's happening
rapidly. Last year, the federal Subsistence Board declared sheep
hunting areas where ADF&G had issued permits were open to federal
hunting only. This year, the Glacier Bay issue is coming to the
forefront. The federal government has kicked out our long-standing
fishermen and the sovereignty of the State of Alaska through the
Submerged Lands Act.
MR. LEVENGOOD said that AS 16.05.050 (a)1 requires the Commissioner
of ADF&G to cooperate with the federal government, he didn't think
there was federal reciprocity to cooperate with the State of
Alaska. This bill is necessary to repeal that requirement and to
prevent unfunded federal mandates. The Legislature should do
everything they can to prevent Alaskan's sovereignty from being
encroached upon and the federal government from violating the
constitutional rights of Alaskan citizens.
He thought the idea that federal and state law enforcement agencies
being so dependent upon each other for each other's safety was a
ruse. Clearly, this legislation doesn't prohibit cooperation; just
cooperating on federal regulations or laws that are in dispute.
MR. MYLES CONWAY, Assistant Attorney General, pointed out that
Section (c) of SB 91 would be unenforceable. It makes it illegal
for federal officials to enforce federal laws or regulations that
are inconsistent with the State's constitution. To prosecute
federal officials for enforcing their own laws would be dismissed
from the court with the supremacy clause of the U.S. Constitution.
In addition, we would be subjecting our state officers to potential
federal criminal liability. There is a federal statute making it
illegal to interfere with federal officials performing their
duties.
MS. KROGSENG responded that she had discussed this with Mr.
Levengood and even if this is unenforceable, it would put the
State's position on the table. We don't want the federal
government enforcing laws that are inconsistent with our
Constitution or the U.S. Constitution. Other lower 48 states have
put laws on the books recently about the federal government
purchasing land, because they don't want additional land being
bought by the federal government, although they realize they may
not be able to enforce it. The intent is to make a policy call.
MR. LEVENGOOD responded that he didn't disagree, but there are
certain requirements in some of the federal agencies that say some
of their regulations can only be carried out and enforced if there
is cooperation with the state and local governments. This would be
one regulation we are objecting to.
Number 569
MAJOR JOE D'AMICO, Department of Public Safety, testified his
biggest concern regarding SB 91, also stated in a letter to the
committee, is the unintended effect that Alaskan troopers will lose
some degree of safety, mostly for rural troopers, if it is passed.
He explained that most of our cross-deputization agreements are
reciprocal in nature. There is no current law now that requires us
to assist federal officers. In fact, in Glacier Bay we refused.
It's a policy that they will not enforce federal fishing laws or
assist the Park Service in that area. In rural areas, however, in
many instances the closest help is a federal officer.
SENATOR MACKIE asked if we had ever used any of our vessels to
"ferry around" Park Service Rangers or anything in Glacier Bay or
anywhere else.
TAPE 99-14, SIDE B
Number 590
His understanding was equipment was used in Glacier Bay only for
our troopers who were enforcing our own fish and wildlife laws.
MAJOR D'AMICO replied that he researched that issue using written
records dating back to 1986 and they had never carted federal
agents around in Glacier Bay. The Department has enforced state
laws for commercial fisheries in Glacier Bay. They have ridden in
Park Service vehicles for the Gustavus area state moose hunt which
does not occur on Park land. That's because they don't have state
vehicle available in Gustavus and it was convenient. They have
also moored state boats free of charge at the Park Service dock in
Glacier Bay in conjunction with state fisheries efforts.
SENATOR PARNELL asked if he currently helped enforce federal
statutes and regulations governing hunting and fishing.
MAJOR D'AMICO said he has tried to figure out what that really
means. He said the example in his letter with the brown bear and
swans actually happened to one of his troopers and in that case
they did directly assist a federal officer with a violation. A
trooper in Haines recently investigated the shooting of a bald
eagle. There are occasions where state troopers assist federal
officers.
SENATOR PARNELL asked if the swan example was unintended.
MAJOR D'AMICO said that is correct. The trooper was working on the
spring brown enforcement season, a state hunt, and they saw a
hunter with bear and checked it. When they unrolled it to seal it,
they found the swans.
SENATOR PARNELL said he didn't see how he was tying a prohibition
against direct enforcement of a federal subsistence hunting or
fishing statute with trooper safety being put at risk.
MAJOR D'AMICO said he could as in the case of the swans. In the
case of the swans, he wondered if the trooper would be in violation
of Section (a) in the direct assistance to the federal officer by
providing the transportation. He said he didn't know exactly what
"direct assistance" means. He explained that they have a good
relationship with most of the federal agencies to provide
reciprocal assistance and in many cases when the request is made,
the officer doesn't know that there's going to be a problem, but
they are concerned one will occur. The state receives the ratio of
8 or 9 to one assistances from the federal agencies in terms of
personnel and equipment. The state is on the winning end when that
occurs.
Number 532
SENATOR TAYLOR asked if there was any assurance that Major D'Amico
wouldn't provide backup to a federal agent in Glacier Bay.
MAJOR D'AMICO replied if they were requested to backup a federal
officer enforcing a federal law in Glacier Bay, they would probably
do it to prevent some type of problem.
SENATOR TAYLOR said he wasn't concerned about what happened in the
past. He was concerned about the "pickle" they would find
themselves in if there is something going on in Glacier Bay and
they ask for assistance. He said they would be enforcing something
that is very unconstitutional and we are going to file suit over.
MAJOR D'AMICO said they would want a trooper to prevent violence.
He was not just concerned about the federal officer, but the
Alaskan citizen that they are going to contact.
SENATOR TAYLOR asked if he thought the Alaskan would think he was
there to protect him and his sovereign rights as a citizen when he
walks up shoulder to shoulder with a federal officer to place him
under arrest.
MAJOR D'AMICO said he didn't know the answer to that. Whenever he
has assisted federal officers, they have been glad to have him.
SENATOR TAYLOR said whoever was with the swans inside the bear hide
had to make a decision about what the limit was for swans taken by
a qualified federal subsistence user and asked if there was a limit
at the time if you were a subsistence user.
MAJOR D'AMICO answered that he was not current on all federal law,
although he knows they allow some take of swans in the spring.
SENATOR TAYLOR said it wouldn't have been his problem, because they
are both violations of federal law. He asked what the trooper did
with the guys with the swans.
MAJOR D'AMICO said that the trooper didn't do anything, that the
federal officer handled it.
SENATOR TAYLOR asked if the defendant lived in the right community.
MAJOR D'AMICO replied that he did.
SENATOR TAYLOR asked if we have a law against shooting swans in
Alaska.
MAJOR D'AMICO answered that there are some state sanctioned swan
hunts in Alaska. They are in game management units and have
seasons and bag limits and firearms restrictions.
SENATOR TAYLOR asked if the state officer was aware of that.
MAJOR D'AMICO answered yes.
SENATOR TAYLOR asked why he didn't arrest the man for shooting six
swans.
MAJOR D'AMICO answered it was a federal problem and we generally
don't do federal enforcement.
SENATOR TAYLOR noted that we have Alaskan laws about killing swans
and asked if that wasn't an Alaskan problem if our officer caught
a man with six dead swans.
MAJOR D'AMICO said the federal government manages and enforces most
waterfowl cases.
SENATOR TAYLOR asked if his officers would not arrest him if he
were in violation of a bag limit on swans.
MAJOR D'AMICO said they would if they were shot in the spring.
SENATOR TAYLOR said shooting in the spring was even worse since
there is no season that time of the year.
MAJOR D'AMICO responded that he wasn't sure he understood the
point, but if he were out there during a season and was over limit,
he would be cited by a trooper. If he did it in the spring, they
would most likely turn it over to the federal government.
CHAIRMAN HALFORD thanked Major D'Amico for writing his long
detailed letter and asked about an item on the second page saying
a standing order is currently in place prohibiting our employees
from using equipment for transporting Park Rangers or to assist
federal officers in their attempts to enforce federal fishery laws
in the Glacier Bay area. He said if Major D'Amico can make a
policy like that work, it would seem that he could come up with a
policy using the same methodology that would keep the state out of
enforcing laws that are unconstitutional. He could see the reality
with regards to personal safety and federal criminal law. He
thought there was a way to work through that and produce a bill
that avoids those problems and actually does something.
MAJOR D'AMICO said if this bill passes he was not sure they could
aid federal officers with a valid federal warrant to make an
arrest.
CHAIRMAN HALFORD asked if they had a policy right now of not
helping or transporting federal officers to enforce fisheries law
in the Glacier Bay area.
MAJOR D'AMICO said that is right.
SENATOR TAYLOR said he was only concerned that we don't have our
officers violating our constitution as they go to aid a federal
agent. He asked if their policy was in writing.
MAJOR D'AMICO answered that Commissioner Otte put out a standing
order that this would not occur. Any request for assistance by the
Park Service has to come through his office and he or Colonel Glass
have to approve it except for emergencies.
SENATOR TAYLOR said he was trying to get that policy into writing.
MAJOR D'AMICO responded that's why the Department supports the
intent of the bill, but are concerned about the reciprocity on
backup.
SENATOR MACKIE said the reason he can't support this is because we
receive nine to one assists from them. He has participated in
enough law enforcement activities to know when you are out there by
yourself and need a backup, it's nice to have someone to back you
up. Many of the federal officers are Alaskans, too, and he didn't
want to support something that would put their life in danger.
Number 343
SENATOR PETE KELLY asked if there was a way to separate assaultive
behavior in the bill.
SENATOR TAYLOR said that not one of the examples citted are
impacted by this legislation.
SENATOR MACKIE disagreed.
SENATOR TAYLOR said an officer takes an oath saying he'll support
and defend the Constitution of the United States and the
Constitution of the State of Alaska and will fully discharge his
duties as an Alaskan state trooper to the best of his ability.
He's in violation of his oath when he steps up to enforce a law
that his Supreme Court has told him is an unconstitutional law.
SENATOR MACKIE said he is a lot more comfortable with our Alaska
state troopers handling a situation that has danger to the
perpetrator or to the officers involved. He thought it was bad
public policy to take away our ability to assist.
SENATOR TAYLOR said that's a red herring and the only thing they
are being precluded from doing is assisting federal officers in the
enforcement of subsistence regulations.
SENATOR KELLY said he also needed a level of comfort that is all
this is doing.
SENATOR MACKIE noted the section that says, "The Department of
Public Safety may not enforce or directly assist..." includes a
whole wide range of things. He didn't really didn't see how our
men would be involved if the feds were citing someone for a
subsistence offense. He explained in a lot of situations the
arresting officer finds out a little bit about the person being
arrested. If the officer feels there is a safety concern, although
it is a subsistence offense, he calls for backup. It happens all
the time. He said you can't craft all the circumstances into one
paragraph and just say subsistence when other factors are involved.
SENATOR TAYLOR reiterated that our officers cannot assist in
enforcement of a regulation governing eligibility to engage in
subsistence hunting or fishing. Period.
Number 165
SENATOR GREEN asked what the language on page 1, line 14 "(b) an
employee or law enforcement agent of a state department other than
the Department of Public Safety or other state agency or a police
officer employed by a municipality may not enforce...etc." meant.
She noted they are saying "other than" which exempts all the people
they are trying to include.
SENATOR TAYLOR moved to delete Section (c). There were no
objections and it was so ordered.
SENATOR MACKIE asked why they were using a statute to direct a
municipal law enforcement agency on whom they can and cannot
assist.
SENATOR KELLY told Major D'Amico that he didn't think his fears
were justified. He didn't see how he would be prohibited from
backing up a federal officer.
MAJOR D'AMICO answered on page 1, line 8 and 9 it says, "the
Department of Public Safety cannot enforce or directly assist the
enforcement of a federal statute or regulation governing
eligibility to engage in hunting or fishing in the state if the
statute or regulation cannot be enacted by the state or regulations
could not be adopted by the state department or agency because the
statute or regulation violates either the constitution of the State
of Alaska or the Constitution of the United States." As an
example, if someone came to Hoonah who did not qualify under
federal law to participate in a hunt and illegally took some deer,
then they went back to their home and the federal officer found out
who that person was and was prepared to issue a citation. If
during the computer records check, he discovered this person had
exhibited compulsive behavior in the past toward law enforcement
officers, he thought the trooper would be precluded under this
section from going along and providing that backup service, because
at this point the only violation was a federal regulation
pertaining to subsistence hunting. He thought the danger here was
if we don't provide that service, when we need that service, it
won't be available for us.
TAPE 99-15, SIDE A
Number 001
MAJOR D'AMICO said in Glacier Bay that under current law they can
still provide backup to prevent violence, but they will not help
enforce federal fishery laws.
SENATOR TAYLOR said that many are confused that they won't help
enforce federal fishery laws in Glacier Bay, but are upset if his
legislation precludes him from doing exactly the same thing on
federal subsistence laws.
SENATOR PARNELL explained the difference under their current
policy, if there was some danger of assault, they would be able to
assist the officers.
CHAIRMAN HALFORD noted that this wasn't even the entire subsistence
law, because there are a lot of areas where the state and federal
subsistence laws are consistent. It only refers to the
qualification differential based on the location of residence, the
only provision that has been found unconstitutional by our Supreme
Court.
SENATOR MACKIE asked Senator Taylor if he would consider adding
language like "unless it involved the threat of life or safety to
an officer."
MAJOR D'AMICO responded that he thought if it would allow them to
provide backup service, the Department could support it.
CHAIRMAN HALFORD said he wanted the feds to pay the bill for
stepping all over our constitution.
SENATOR MACKIE said he didn't disagree with that, but he feels
strongly about the backup provision. He said he has a lot more
confidence in our state troopers for handling these kinds of
situations than having federal officers or armed park rangers.
SENATOR TAYLOR said he would try to find some language to that
effect.
CHAIRMAN HALFORD suggested adding, "Unless the assistance is only
provided in an immediate case where no alternative backup is
available at any cost." He thought it would cover the rural
situation.
SENATOR PARNELL said they could add language on page 1, line 8 that
says "notwithstanding AS 18.65.090 and except in the case of threat
of imminent physical injury, the Department of Public Safety..."
CHAIRMAN HALFORD announced they would hold the bill for further
work.
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