Legislature(1997 - 1998)

04/23/1997 01:00 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 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.                    

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