Legislature(1997 - 1998)
04/23/1997 01:00 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 19 am - REPEAL FED ENFORCEMENT DUTIES/F&G COMSNR CHAIRMAN GREEN announced the first item of business was Senate Bill No. 19 am, "An Act relating to enforcement of federal laws relating to fish and game; and repealing the power and duty of the commissioner of fish and game to assist in the enforcement of federal laws relating to fish and game." A brief sponsor statement had been presented on April 21, 1997. JOSEPHINE HARDY, Legislative Secretary to Senator Bert Sharp, presented the same sponsor statement given April 21. Number 0130 REPRESENTATIVE CON BUNDE asked whether Ms. Hardy was addressing the committee substitute passed out of the House Resources Standing Committee. MS. HARDY said yes. She advised members that back-up materials in committee packets from the Department of Law and the Department of Public Safety should be disregarded. Those addressed concerns about a previous version of the bill. Number 0208 CHAIRMAN GREEN asked: If this action is taken, does Senator Sharp feel this will adversely affect reciprocity with the federal government relating to their looking after the state's interests in other areas? MS. HARDY said the state has usually helped past the three-mile limit, for example; that would not change. In other areas, taking away this mandate will do no harm in working with the federal government. It will simply give the commissioner discretion. Number 0295 CHAIRMAN GREEN said his concern was more than the three-mile limit. The state scratches the federal government's back in certain areas, which the federal government reciprocates elsewhere. He asked whether the sponsor had considered that this could irritate the federal government into refusing to assist the state. Number 0340 MS. HARDY replied that eliminating this statute does not mean there will be no assistance by the state. That is only when state and federal laws are in conflict. Number 0365 REPRESENTATIVE BUNDE asked Representative Porter, "If a sworn officer in fish and game observes a federal violation of fish and game laws, isn't he, by his oath of office, duty-bound to act on that observation?" REPRESENTATIVE BRIAN PORTER replied that the officer would be empowered to do so. However, policy can be set by the commissioner. Noting that both the Department of Law and the Department of Public Safety had expressed problems with the bill, he asked whether representatives from those departments were present. CHAIRMAN GREEN advised members that Colonel Glass had not yet joined the teleconference. REPRESENTATIVE PORTER stated his understanding that the bill, by deletion of this provision to return to common law, would allow a state officer to enforce federal law if policy, time and circumstance required it. Federal fish and game enforcement officers and state Division of Fish and Wildlife Enforcement officers get agreements throughout the state, informal and formal, regarding mutual assistance; they often come to each other's aid in the field. Representative Porter assumed it was not the intent of the sponsor to interfere with those kinds of safety issues. Number 0509 MS. HARDY explained that although both departments had problems with a previous version of the bill, those concerns had been satisfied through HCS SB 19(RES). Repealing the mandate simply gives discretion to the commissioner in allowing the department to enter into agreements, memoranda of understanding and enforcement protocols. It removes the "hammer" if the department does not feel comfortable or appropriate in assisting. Number 0555 REPRESENTATIVE BUNDE asked whether this would preclude a state enforcement officer from charging someone under a federal statute. He noted that sometimes federal penalties are greater than the state's, and it is possible to charge someone with violation of the Lacey Act, which he understands to have no statute of limitations. MS. HARDY said the answer would be no. Number 0623 REPRESENTATIVE ERIC CROFT read from AS 16.05.050, which says, "The commissioner has, but not by way of limitation, the following powers and duties". He stated his understanding that they were taking away the duty but not the power. CHAIRMAN GREEN agreed. He indicated that he questioned whether by removing that duty, they were also removing the power; but he noted that apparently the sponsor's representative was saying no. He then asked whether this removed power from the ADF&G and whether if, in their normal, routine duties, ADF&G personnel find a violator, they can still act if they so wish. REPRESENTATIVE PORTER pointed out that the Department of Fish and Game (ADF&G) contains biologists, whereas the Division of Wildlife Protection enforces fish and game laws and regulations. He said fish and game enforcement officers work for the federal government. He acknowledged it is confusing. REPRESENTATIVE BUNDE stated that he needed to have questions answered by Colonel Glass. Number 0760 REPRESENTATIVE ETHAN BERKOWITZ said he saw nothing in his packet regarding what the Department of Law thinks of this. In particular, he wanted to know the district attorneys' opinions. MS. HARDY stated that the Department of Law's concerns have been satisfied with the current version of the bill. REPRESENTATIVE BERKOWITZ said he was concerned about the Criminal Division's response. He asked whether they had addressed this. MS. HARDY said no. CHAIRMAN GREEN asked whether Representative Berkowitz wished to offer the amendment included in the packets. REPRESENTATIVE BERKOWITZ said no; he was withdrawing it. Number 0826 DALE BONDURANT testified via teleconference from Kenai, saying he was deeply involved in the subsistence priority issue. He referred to the McDowell case and said the Alaska Supreme Court had found that the subsistence priority cannot be determined by where Alaskans reside. They had stated that the common use clause imposes upon the state a duty to manage fish, wildlife and waters for the benefit of all the people. The minimum requirement of that duty is a prohibition against special privileges. MR. BONDURANT said for the "Alaska fish and wildlife to continue to manage and enforce these public resources, contradictive to this ruling, is a violation of the supreme court findings and the constitution of the state." He said one year ago, the Alaska Federation of Natives (AFN) took a written position that they would no longer even discuss the subsistence issue with the state of Alaska but would deal only with the federal authorities. MR. BONDURANT said continuing to support management enforced contrary to the state constitution violates Article VIII and, possibly more importantly, Article I, Section 1, which says in part, "all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State." MR. BONDURANT concluded that it is time to abide by the Alaska Supreme Court and the state constitution and stick to enforcing those requirements. Number 1030 REPRESENTATIVE BUNDE asked Colonel Glass, now on teleconference, to comment on the bill. JOHN GLASS, Colonel, Director, Division of Fish and Wildlife Protection, Department of Public Safety, verified that they were addressing the committee substitute, then stated, "The bill, in its entirety, as it presently stands, we have no objections to whatsoever. It will not affect our abilities to continue doing the work that we have been doing, and we'll be able to continue to do so under the present wording of this bill." REPRESENTATIVE CROFT asked what objection there was previously and how that was cured. COLONEL GLASS responded, "The other amendments that were on this bill originally is where our objections were. We were afraid it was going to impose upon us a situation where we would not be able to continue working with the federal agencies as we do currently, use of the Lacey Act, et cetera, enforcing some of the rules and regulations that we handle." CHAIRMAN GREEN noted that an earlier version contained a prohibition, as opposed to not having a duty. Number 1096 REPRESENTATIVE CROFT asked whether Colonel Glass's interpretation was that elimination of subparagraph (1) left his division the ability, but not the duty, to assist the U.S. Fish and Wildlife Service. COLONEL GLASS said as currently written, the bill affects only the ADF&G. The Division of Fish and Wildlife Protection obtains enforcement authority under Title 18, not through the commissioner of the ADF&G under Title 16. REPRESENTATIVE CROFT asked whether an ADF&G representative would testify. CHAIRMAN GREEN indicated none was scheduled to appear. REPRESENTATIVE CROFT inquired whether Colonel Glass believed this meant the ADF&G no longer would have the duty to act, but would have the power. COLONEL GLASS estimated that up to 99 percent of the enforcement is done by the Division of Fish and Wildlife Protection, rather than by the ADF&G. He commented, "And I asked Director Regelin to respond to that during our last hearing in the House Resources Committee, and I never did hear exactly how much they do." Number 1170 REPRESENTATIVE BUNDE reported, based on his personal experience fishing, that a fisheries biologist may come by who also checks licenses and who could write a ticket if there was a violation. He asked whether that person would be precluded from bringing a charge under the Lacey Act, for example. COLONEL GLASS replied, "No, I don't believe they would, as long as it is -- it would not be against what the federal mandate would be, no." Although he could not speak directly for the ADF&G, he had never known them to bring charges under the Lacey Act. He explained, "That has always been ours, because most of those are on guided hunts, which we have the ability to police." Number 1224 REPRESENTATIVE BERKOWITZ stated, "Colonel, I don't want to put you in an awkward spot, but it seems to me that this bill doesn't do anything." COLONEL GLASS responded, "Representative Berkowitz, it does not do anything to us directly; no, it does not, sir. It is directly aimed at Fish and Game." REPRESENTATIVE BERKOWITZ said it seemed to be just another way of telling the federal government that the state is unhappy with federal management of fish and game. COLONEL GLASS replied, "In my opinion, that's exactly what it is, sir." Number 1260 REPRESENTATIVE PORTER made a motion to move the bill from committee with individual recommendations. There being no objection, HCS SB 19(RES) moved from the House Judiciary Standing Committee.