Legislature(1995 - 1996)
04/12/1995 05:06 PM House FSH
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 296 - STATE AUTHORITY OVER FISH AND GAME Number 639 JOE RYAN, Legislative Assistant to Representative Al Vezey, read the following sponsor statement for HB 296 into the record: "HB 296, `An Act relating to the authority of the State of Alaska over fish and game' would codify the primacy of the state of Alaska over the federal government on matters concerning the management of fish and game resources. It is a state's right enjoyed by 49 other states. "The power to manage fish and game was given to the state of Alaska as a condition of our becoming a state and as a condition of entry into the Union. This power cannot be abridged or altered, except by mutual agreement of the people of the state of Alaska and the federal government. "This bill will give the state of Alaska a tool with which it can enforce the right of the state to manage its fish and game resources. The bill also provides that state funds cannot be used to implement or enforce federal fish and game regulations. "This bill will send a message to the Congress and people of the United States that the state of Alaska or an agency created by the state, will be the only one permitted to manage fish and game within the borders of the state of Alaska." Number 650 REPRESENTATIVE ELTON asked how this piece of legislation would affect the United States/Canadian salmon negotiations, Magnuson Act and some of the other federal and state protocols that we have in place for the management of fisheries resources. MR. RYAN explained that it has been a policy of the U.S. Department of State on managing those matters of foreign policy not to consult the state of Alaska. REPRESENTATIVE ELTON commented that he felt there was state participation because of the activities of our two U.S. Senators, our U.S. Congressman and the authorization of the Magnuson Act. He is concerned about the affect this bill would have on those protocols if this was to be enacted. MR. RYAN said that he really didn't know. This was a broad policy statement that the sponsor felt the legislature should adopt. REPRESENTATIVE ELTON indicated that he would hold any further questions for the Alaska Department of Law. Number 681 MR. BONDURANT testified via teleconference from Soldotna, in support of this proposal. He also voiced his opinion about Senate Joint Resolution 19 and its shortcomings. He is amazed that the state pays agency personnel to assist the federal subsistence board in enforcing Title 8 of the Alaska Native Interest Lands Conservation Act (ANILCA), after the Supreme Court tell us that Title 8 is in conflict with the Alaska State Constitution. Number 695 MIM ROBINSON, Chairman, Port Alexander Fish and Game Advisory Committee, testified via teleconference from Sitka, indicating that residents have written a letter to the Governor concerning cuts to the Alaska Department of Fish and Game budget. TAPE 95-22, SIDE B Number 000 GERON BRUCE, Legislative Liaison, Alaska Department of Fish and Game, had concerns about this piece of legislation. He stated, "It's our impression that this legislation is primarily motivated by the conflict that has existed between the ANILCA and the State Constitution. However, it also extends over into a lot of other arenas, where the state government and the federal government cooperate, in many instances very much to the state's benefit." He specified that the Pacific Salmon Treaty, Magnuson Fishery and Conservation Act, International Halibut Treaty and the Migratory Bird Treaty are a few examples of how the state and federal government cooperate. He further specified, "In all of these arenas, the ultimate decision making authority rests with the federal government, but the state as a member of the negotiating team, as a player at the table, has very significant input into the kind of program the federal government develops." MR. BRUCE commented that if we go further in polarizing our relationship with the federal government, it will jeopardize some of those areas of cooperation, which have been very beneficial to the state of Alaska. He mentioned that many of the fish and wildlife that the state manages or participates in, are highly migratory species and they only spend a portion of their life in Alaska. He said, "Whether we want to manage them entirely or not, it is not within our power to manage them entirely because they do not, their life cycles are not limited to the state of Alaska. We require the cooperation of other states and in some cases, other countries, in order to develop and implement successful management programs which provide for the sustained yield use of these resources for Alaskans." He further remarked that if we as a state can't participate in these joint forums, the state would be jeopardizing major tools they use in assuring Alaskans get their fair share of these resources. MR. BRUCE spoke to Section 1 (d) of HB 296. He wasn't sure what this section would do in respect to the Pacific Salmon Commission. He specified, "Several fisheries in Southeast Alaska, are managed under annexes of that salmon treaty. This is an international treaty. Of course, since it is an international treaty, the federal government is the signatory for Alaska and the rest of the United States." He went on to say, "This treaty has essentially had a preemptive impact on the management of these salmon resources within Southeast Alaska. However, I don't think that the passage of this law is going to make this treaty go away." Additionally he stated, "People from Washington and Oregon have requested significant reductions, more than 50 percent reductions, in the Chinook salmon harvest in Southeast Alaska. Every time those proposals have come forward, the Alaskan negotiating team has been able to go to the table and successfully beat those back and get a much larger allocation for Southeast Alaska. It's our interpretation of this Section 1 (d), that we would not be able to do that any more." MR. BRUCE wrapped up by saying the federal government provides tens of millions of dollars to the state of Alaska to manage fish and wildlife. He felt it was in the best interest of the state to maintain that funding. Number 184 REPRESENTATIVE DAVIS referred to Section 1 (d), lines 4, 5 and 6 of HB 296. He asked if it would take a law to continue the North Pacific Salmon Management Treaty. MR. BRUCE replied that he felt it would require a state law or regulation because of the language contained in Section 1 (d), but would do nothing to negate the federal law that is in place. Number 232 REPRESENTATIVE ELTON asked Mr. Bruce, as an example, what would happen if this law was in effect and the state of Alaska determined that they were going to take more Chinook salmon, because it wasn't worth taking any cuts to preserve a total of six Snake River fish. MR. BRUCE responded that the Endangered Species Act is a player in the Pacific Salmon Commission. He advised, "Because there are some listed species harvested in Alaska, we have to get a Section 7 permit from the National Marine Fisheries Service (NMFS) to even conduct any level of Chinook salmon harvest in Southeast Alaska. If we told the federal government, we were not going to comply with the terms of the treaty, we would probably not get a Section 7 permit from the NMFS. We would forego any commercial and recreational Chinook harvest in Southeast Alaska." Number 266 MARTIN WEINSTEIN, Assistant Attorney General, Alaska Department of Law, testified with concerns about HB 296. He followed up on a couple of points, as laid out by Mr. Bruce. In regards to Section 1 (d) of this bill he asserted, "As we manage the state resources, even under state law, we're going to be constrained by certain federal laws." He further specified, "We can't manage our resources inconsistent with these federal laws." His impression was that we leave ourselves wide open for civil and criminal violations under the Endangered Species Act. CHAIRMAN AUSTERMAN asked Mr. Weinstein why couldn't we manage our resources inconsistent with federal regulations. MR. WEINSTEIN specified that federal law supersedes state law. Number 310 MR. RYAN spoke again to the committee. He said, "We have a bone of contention in the state, of who actually owns the resources. We have a constitutional state Supreme Court ruling that said what these are. We have, as I've included in the small packet, a copy of the Statehood Agreement, that says the management of fish and game will be the conditions under which it will be turned over to the state." Number 342 REPRESENTATIVE ELTON expressed his feelings about how we can change things we don't like within the parameters of the law. He is offended by this piece of legislation. Number 353 REPRESENTATIVE DAVIS commented that this bill says we don't care what laws are in position in the federal government. He felt we would wind up in court if this legislation were to become law. He shared that this bill would state an opinion from the legislature over some related subsistence court cases that are still pending. He suggested that they hold HB 296 until they can hear from the sponsor on some of the questions and issues raised before the committee. Number 393 REPRESENTATIVE OGAN stated that he too, was committed to getting the federal government out of the management of our fish and wildlife. But he felt there were enough legal complications with HB 296 that he questioned the wisdom of proceeding with this bill. Number 403 CHAIRMAN AUSTERMAN indicated that HB 296 would be held until Representative Vezey is available to discuss it further with the committee. HB 296 - STATE AUTHORITY OVER FISH AND GAME Number 563 CHAIRMAN AUSTERMAN informed the committee that he was reopening public testimony on HB 296. REPRESENTATIVE AL VEZEY made himself available to answer any questions of the committee. CHAIRMAN AUSTERMAN indicated that several questions were raised by the committee. REPRESENTATIVE DAVIS mentioned that Alaska is party to several different treaties that accept a federal role. He asked Representative Vezey how HB 296 would affect some of those relationships. Number 577 REPRESENTATIVE VEZEY revealed that what this bill attempts to do is codify what is already in the Statehood Compact. Alaska has been a part of all of these international treaties involving its resources. REPRESENTATIVE DAVIS informed Representative Vezey that most of the discussion earlier had centered around Section 1 (d) of the proposed legislation. He wanted a clarification from the sponsor as to a conflict concerning the preemption clause of this section. REPRESENTATIVE VEZEY felt there wasn't a conflict. He explained, "The federal government really doesn't do much management of fish and game in Alaska." He further reported, "They get the state of Alaska to enact regulations, what it amounts to, and then they depend upon the state to enforce them. They don't have the resources to actually enforce virtually any of the regulations. You're trying to carry this over into the area of allocation of international resources." REPRESENTATIVE DAVIS indicated that a federal treaty regulates the halibut fishery in this state. He asked Representative Vezey if he was saying that those fish are not within our jurisdiction because they're international fish. REPRESENTATIVE VEZEY responded that halibut are international fish. He said, "It is my understanding that the enforcement of this is done by the state." He remarked that there is federal monitoring, including the Coast Guard protecting our waters. He also felt that if we hadn't agreed to abide by this halibut treaty, we wouldn't have an international treaty. REPRESENTATIVE DAVIS expressed that other comments from the committee included concerns about the Endangered Species Act and how HB 296 would affect this Act. He asked, "Should we tell the feds that we don't have authority in the state to enforce the Endangered Species Act?" Number 640 REPRESENTATIVE VEZEY agreed with that conclusion. His inclination was to say that he doesn't think this bill impacts the Endangered Species Act. He related, "The state of Alaska doesn't enforce the Endangered Species Act per se. We don't hunt endangered species, we do in some cases fish for them in incidental catch, but again I don't know that I see a conflict there, because the Endangered Species Act has more to do with habitat than actual management of the resource itself." REPRESENTATIVE DAVIS presented an example of the federal government placing the coho salmon on the endangered species list. REPRESENTATIVE VEZEY asserted that federal law would still supersede state law. He said, "We still have an agreement where we manage our fish and game resources. It would still be up to the state of Alaska to manage its coho salmon." REPRESENTATIVE DAVIS understands this bill to be a management tool for the resources, without consideration of any laws made by the federal government. REPRESENTATIVE VEZEY replied this was what the bill was attempting to do. REPRESENTATIVE DAVIS indicated that it clarifies it for him in some degree. Number 665 CHAIRMAN AUSTERMAN referred to HB 296, Section 1 (b) and asked Representative Vezey if this paragraph is trying to pre-empt subsistence. REPRESENTATIVE VEZEY said that the intent was not to pre-empt subsistence, but it would pre-empt the federal government from managing a subsistence program in the state. Number 680 REPRESENTATIVE ELTON thanked Representative Vezey for coming down to the committee and clarifying the intent of this bill. He again referred back to Section 1 (d) of HB 296 and the Endangered Species Act. He stated, "It would seem to me that if the federal government makes a decision, and there is a management plan that results in reduction of power at certain..." TAPE 95-23, SIDE A Number 000 REPRESENTATIVE ELTON "...which would mean that any state agency that acquiesced in the management plan, would be in violation of this law." REPRESENTATIVE VEZEY said, "If you're dealing with salmon that spawn in territory other than the state of Alaska, you're dealing with the management of that fisheries in Alaskan waters. Again, it's my understanding that the state is a part of those international and national negotiations. And we agree to abide by them. I do realize that there probably has been some cases, more than one, where there has just been an edict. You simply won't do that, because it's in violation of federal law. We still have to recognize that federal law would have primacy. But it would get down to a question of, would federal regulation have primacy over state law." Number 050 REPRESENTATIVE ELTON commented that because of federal requirements, hundreds of fishermen have seen a diminishment in their catch. This in turn translates into lost income. REPRESENTATIVE VEZEY agreed that this was a complex subject in regards to this bill. REPRESENTATIVE ELTON felt that at some point, someone is going to take the state to court because the state is not doing something they're supposed to be doing and a judge will make a decision concerning allocation. REPRESENTATIVE VEZEY asked Representative Elton to clarify if he was talking about state or federal. REPRESENTATIVE ELTON answered that he was talking about the issue of supremacy in federal law. REPRESENTATIVE VEZEY specified that what this bill is saying is, "Going back to paragraph 1 (b), that whatever your fish and game laws are, they will be managed by state persons. The implication there is, if the federal government comes in and says state law doesn't permit you to do this, and we're going to come in and manage your fish and game. This very simply says, if you try and manage our fish and game, it is against our law." Number 130 CHAIRMAN AUSTERMAN asked Representative Vezey if the Alaska Native Land Claims fell under federal law. REPRESENTATIVE VEZEY indicated that ANILCA is under federal law. CHAIRMAN AUSTERMAN asked if they're guiding subsistence under a federal law already, then would Section 1 (b) change this status. REPRESENTATIVE VEZEY stated that Section 1 (b) wouldn't change that. It simply says only the state would manage the resource. CHAIRMAN AUSTERMAN reiterated that this was the case except for subsistence, which is in ANILCA. REPRESENTATIVE VEZEY indicated that ANILCA doesn't specifically provide for the federal government to come in and manage the resources. ANILCA provides for a subsistence preference, and the Secretary of the Interior designates what steps to take. Number 150 REPRESENTATIVE OGAN commented that ANILCA provides for a rural preference in subsistence. Number 154 REPRESENTATIVE ELTON again referred to paragraph (b) in conjunction with paragraph (d). REPRESENTATIVE VEZEY responded to Representative Elton's concerns. He set forth, "The federal government exercised its supremacy in law and enacted the Marine Mammals Act. That was in contradiction to Alaska's management policy for marine mammals. What the federal government wanted to do and negotiated for a long period of time, was to get the state to manage the federal regulations. In my opinion, the state of Alaska had the insight to say, we're not going to manage that program." REPRESENTATIVE ELTON reaffirmed what Representative Vezey said about the federal government having the responsibility to manage the Marine Mammals Act. REPRESENTATIVE VEZEY also reiterated that the state does not enforce the Marine Mammals Act. REPRESENTATIVE ELTON said he would be concerned for the future, because it puts the resource at risk. The federal and state governments have less and less to manage these resources. REPRESENTATIVE VEZEY asserted that Alaska still has a management policy on marine mammals. But even those regulations refer to the federal regulations. He further stated, "What this bill does is it really puts pressure on the federal government to look at the jeopardy it's putting itself in. Number 220 REPRESENTATIVE OGAN thought it would be appropriate to contact the Alaska Attorney General's office in regard to this bill. Number 227 REPRESENTATIVE DAVIS asked Representative Vezey if he would put salmon in the same category as halibut in regards to the federal government passing some law regulating the catch. REPRESENTATIVE VEZEY was inclined to say yes. Alaska's fish could be harvested outside of our territorial waters. We have a vested interest in working with neighboring states and countries in regulating any harvest of fish. He alleged, "In 1976, when we adopted the 200-mile limit, I think the next five years, I think our fish harvest increased 500 percent." Number 267 REPRESENTATIVE ELTON appreciated Representative Vezey for taking the time to answer the questions and concerns of this committee. REPRESENTATIVE VEZEY thanked the committee and again apologized for not being here earlier. Number 276 CHAIRMAN AUSTERMAN announced that this bill also has a referral to the Resources Committee. He suggested that HB 296 should be moved out of this committee. He also suggested that it could be moved out with a recommendation that the Attorney General's office be contacted. Number 289 REPRESENTATIVE ELTON felt that this bill should have a Judiciary Committee referral as well. Number 299 REPRESENTATIVE VEZEY didn't have a problem with it going to the Judiciary Committee. He indicated that it would take a letter from the Chairman to request that the Fisheries Committee recommends that this bill gets a referral to the Judiciary Committee. Number 306 REPRESENTATIVE DAVIS moved HB 296 out of the House Special Committee on Fisheries to the Resources Committee with individual recommendations, and the attached fiscal note. This motion also included a letter be sent, indicating the committee's desire that the bill also have a Judiciary Committee referral. Number 321 REPRESENTATIVE OGAN objected to the motion. He was amazed at the turn around by other members of the committee. He has reservations about the legal implications that this bill presents. CHAIRMAN AUSTERMAN stated that since he and Representative Ogan both sit on the Resources Committee, they could make sure these concerns were addressed by the ADF&G and the Attorney General's office. Number 340 REPRESENTATIVE OGAN lifted his objections based on those recommendations. Number 344 REPRESENTATIVE DAVIS accepted this as a friendly amendment to his motion. He indicated that the letter would request that the appropriate agencies would be contacted and involved. Number 349 CHAIRMAN AUSTERMAN hearing no further objections, passed HB 296 out of Fisheries Committee with individual recommendations and a letter of our concerns and desires to the Speaker of the House. This letter would include a recommendation for a referral to Judiciary and input from ADF&G on subsistence.
| Document Name | Date/Time | Subjects |
|---|