Legislature(2001 - 2002)

04/05/2002 01:11 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 376 - FISH & GAME IN NAVIGABLE WATERS                                                                                      
                                                                                                                                
[Contains brief mention  of the commission proposed  by HB 266 and                                                              
SB 219.]                                                                                                                        
                                                                                                                                
Number 0026                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  announced that the  first order of  business would                                                              
be HOUSE  BILL NO.  376, "An  Act relating  to management  of fish                                                              
and game  in and on  the navigable waters  and submerged  lands of                                                              
Alaska."                                                                                                                        
                                                                                                                                
Number 0063                                                                                                                     
                                                                                                                                
BILL  CHURCH, Staff  to Representative  Scott  Ogan, Alaska  State                                                              
Legislature,   sponsor,   presented    HB   376   on   behalf   of                                                              
Representative  Ogan.    Paraphrasing the  sponsor  statement,  he                                                              
said:                                                                                                                           
                                                                                                                                
     In 1953,  the U.S. Congress  passed the Submerged  Lands                                                                   
     Act, which  affirmed the constitutional  doctrine giving                                                                   
     state  sovereignty  over  all  navigable  waters  within                                                                   
     their  borders.  This  sovereign power  was devolved  to                                                                   
     the State  of Alaska on  equal footing in the  Statehood                                                                   
     Act and  Compact.   In an Anchorage  Daily News  article                                                                 
     dated  March   3,  2000,  Governor  Knowles   said,  "No                                                                   
     governor  of  any  state  would   -  or  should  -  ever                                                                   
     voluntarily  relinquish authority  back  to the  federal                                                                   
     government."     He  went   on  to  say,  "As   Alaska's                                                                   
     governor,  I  believe  it is  my  clear  responsibility,                                                                   
     even [in] the  face of a difficult political  battle, to                                                                   
     vigorously  defend   this  important  aspect   of  state                                                                   
     sovereignty."    Additionally  the governor  said,  "The                                                                   
     Alaska  State  Supreme  Court   has  ruled  exactly  the                                                                   
     opposite  of  federal  court and  unanimously  said  the                                                                   
     State of Alaska controls all navigable waters."                                                                            
                                                                                                                                
     In New  York v.  United States,  1992, the U.S.  Supreme                                                                 
     Court  ruled that  Congress may  not simply  "commandeer                                                                   
     the  legislative processes  of  the States  by  directly                                                                   
     compelling   them  to  enact   and  enforce  a   federal                                                                   
     regulatory  program."   By  choosing not  to appeal  the                                                                   
     Ninth Circuit  Court of Appeals decision in  the John v.                                                                 
     U.S. case  to the U.S.  Supreme Court, Governor  Knowles                                                                 
     made  Alaska a  second-class  state,  ignoring the  fact                                                                   
     that we  were admitted  to the  union on equal  footing.                                                                   
     This  bill affirms  that  the State  of  Alaska has  not                                                                   
     assented to  federal control of  fish and game in  or on                                                                   
     the navigable waters and submerged lands in Alaska.                                                                        
                                                                                                                                
Number 0213                                                                                                                     
                                                                                                                                
MR. CHURCH paraphrased the fourth paragraph of the sponsor                                                                      
statement, which read:                                                                                                          
                                                                                                                                
     In the  "Alaska 'Digest' Email  News" of September  3-9,                                                                   
     2001,   Alaska  [Senator]   Frank  Murkowski   supported                                                                   
     appealing  the Ninth Circuit  Court of Appeals  decision                                                                   
     to the  U.S. Supreme  Court.   Murkowski said, "I  don't                                                                   
     believe   such  an  appeal   would  endanger   justified                                                                   
     subsistence  protections,   but  it  would  protect  the                                                                   
     rights Alaskans  thought they had secured  at Statehood.                                                                   
     An appeal  would actually help  to end the  discord over                                                                   
     subsistence   by  providing   finality   to  the   legal                                                                   
     arguments.   That would help all Alaskans  come together                                                                   
     and  settle   this  in  Alaska,   where  it   should  be                                                                   
     settled."     Governor  Knowles  abrogated   his  "clear                                                                   
     responsibility  to  defend   this  important  aspect  of                                                                   
     state sovereignty."                                                                                                        
                                                                                                                                
MR. CHURCH, again paraphrasing the sponsor statement, said:                                                                     
                                                                                                                                
     [House  Bill]   376  further  strengthens   the  State's                                                                   
     position  with language  asserting  that  the State  may                                                                   
     not   expend   funds   to   adopt   [or]   enforce   the                                                                   
     implementation   of  federal  regulatory   programs  for                                                                   
     control of fish  and game in or on the  navigable waters                                                                   
     or  submerged  lands  in  the   state.    It  does  not,                                                                   
     however,    prevent    authorities    from    conducting                                                                   
     emergency,    life   saving,    statutory,   or    other                                                                   
     appropriate activities.                                                                                                    
                                                                                                                                
CHAIR ROKEBERG asked Mr. Church to speak to Amendment 1.                                                                        
                                                                                                                                
MR. CHURCH said  that Amendment 1 adds a paragraph  (4) to Section                                                              
3 of  HB 376.  Paragraph  (4) would ensure  that the state  is not                                                              
prohibited  from "participating  in  or cooperating  with a  joint                                                              
state-federal   program   relating   to  the   identification   of                                                              
navigable  waters in  the state".   Such a  program, he  surmised,                                                              
would be  specifically designed  to help settle  the issue  of who                                                              
has control of the navigable waterways within Alaska.                                                                           
                                                                                                                                
CHAIR  ROKEBERG  sought  confirmation that  there  is  legislation                                                              
pending that would establish "a commission on this topic."                                                                      
                                                                                                                                
MR. CHURCH said that  there is:  HB 266 and SB 219.   He confirmed                                                              
that the  purpose of Amendment 1  is to allow for  the cooperative                                                              
activity of that proposed commission.                                                                                           
                                                                                                                                
Number 0399                                                                                                                     
                                                                                                                                
REPRESENTATIVE MEYER  made a motion  to adopt Amendment 1.   There                                                              
being no objection, Amendment 1 was adopted.                                                                                    
                                                                                                                                
REPRESENTATIVE MEYER  asked Mr. Church whether he  agrees with the                                                              
indeterminate fiscal  note [provided  by the Alaska  Department of                                                              
Fish &  Game (ADF&G)].   He added  that he is  having a  hard time                                                              
seeing where there would be additional costs.                                                                                   
                                                                                                                                
MR. CHURCH said  that he did not  agree with the fiscal  note.  He                                                              
said that  one of the  main reasons he  disagrees is that  back in                                                              
the  21st  legislature,  when Representative  Ogan  introduced  HB
109, which  added "Glacier Bay National  Park and Preserve  or the                                                              
navigable waters  within or  adjoining the  park and preserve"  to                                                              
AS 16.20.010(a)(2),  the ADF&G had  submitted a zero  fiscal note.                                                              
He  opined that  the indeterminate  fiscal note  submitted by  the                                                              
ADF&G  for  HB   376  merely  reflects  that  the   department  is                                                              
concerned  that  fiscally, under  dual  federal/state  subsistence                                                              
management,  it will  not be  able  to achieve,  in a  cooperative                                                              
manner, its  constitutional mandate  of maintaining  the sustained                                                              
yield  principle.   He  stated  that HB  376  is not  intended  to                                                              
impact   or   limit   the  ADF&G's   ability   to   maintain   its                                                              
constitutional  mandate.   Therefore, he  doesn't believe  that an                                                              
indeterminate  fiscal note  is appropriate;  rather, it should  be                                                              
the same as was submitted for HB 109 - a zero fiscal note.                                                                      
                                                                                                                                
REPRESENTATIVE MEYER  asked what the difference is  between HB 109                                                              
and HB 376.                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGAN,  as the sponsor,  explained that HB  109 just                                                              
dealt  with  navigable  waters   in  Glacier  Bay  and  associated                                                              
[areas], whereas HB 376 deals with navigable waters statewide.                                                                  
                                                                                                                                
CHAIR  ROKEBERG posited,  then, that  if there  was a zero  fiscal                                                              
note "for  Glacier Bay" there  should also  be a zero  fiscal note                                                              
[for HB 376].                                                                                                                   
                                                                                                                                
MR. CHURCH agreed.                                                                                                              
                                                                                                                                
Number 0632                                                                                                                     
                                                                                                                                
REPRESENTATIVE  MEYER made a  motion to  adopt Amendment  2, which                                                              
would  turn the  ADF&G's  indeterminate fiscal  note  into a  zero                                                              
fiscal note.  There being no objection, Amendment 2 was adopted.                                                                
                                                                                                                                
REPRESENTATIVE  OGAN, returning  to  the issue  of  HB 376,  said:                                                              
"It's really unfortunate that we're at this juncture."                                                                          
                                                                                                                                
CHAIR  ROKEBERG  asked Mr.  Church,  "It's my  understanding  that                                                              
because  we  cannot  expend  any   funds,  would  any  cooperative                                                              
activities  between  the federal  Fish  and Wildlife  Service  and                                                              
[ADF&G]  be  curtailed,  or  would those  activities  have  to  be                                                              
stopped because of this bill, were it enacted?"                                                                                 
                                                                                                                                
MR. CHURCH  replied:  Not  at all.   He pointed out  that language                                                              
in HB  376 specifies:   "the state may  not expend funds  to adopt                                                              
or enforce  the implementation  of a  federal regulatory  program,                                                              
or  part  of  a   program".    He  said  that   according  to  his                                                              
understanding,  the cooperative action  currently taking  place is                                                              
that  of  tracking  and  maintaining  the  resources  in  adequate                                                              
numbers to support  all users, if at all possible.   He noted that                                                              
the  information  the  ADF&G receives  from  federal  agencies  is                                                              
important  in ensuring  that  those  resources are  maintained  as                                                              
required.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  JAMES,  referring  to  a letter  provided  by  the                                                              
Department of Law (DOL), said:                                                                                                  
                                                                                                                                
     The second  paragraph ... indicates  that the  state law                                                                   
     is naturally  preempted  to the extent  of any  conflict                                                                   
     with federal statute.   And I agree that's  where we are                                                                   
     today,  and  that the  state  has no  other  alternative                                                                   
     except to  go where  we're going.   But I disagree  with                                                                   
     the  fact that  there isn't  some  remedy.   And ...  we                                                                   
     ought  to be  able to  take  the remedy  of taking  this                                                                   
     issue  to the  U.S.  Supreme  Court, because  I  believe                                                                   
     that the  law on  the books  in ANILCA [Alaska  National                                                                   
     Interest  Lands Conservation  Act] is  against our  U.S.                                                                   
     Constitution,     ...    specifically    under     equal                                                                   
     protection....                                                                                                             
                                                                                                                                
     Had  ANILCA mentioned,  as  the identification  for  the                                                                   
     rural priority,  that it was for Natives -  which it has                                                                   
     already  been, in  court, determined  not  to be  Indian                                                                   
     Law -  but had  they put Native,  I think  we'd be  in a                                                                   
     different situation  today.   But they put "rural",  and                                                                   
     we've  heard recent  testimony  that 50  percent of  the                                                                   
     people  living in  the  rural area  are  Native and  the                                                                   
     other 50  percent are not,  so there's a definite  issue                                                                   
     in  the state  in applying  this.  And  the language  in                                                                   
     ANILCA   is  what   we're   being  driven   under;   so,                                                                   
     therefore,  I  am confirmed,  again,  that ANILCA  -  by                                                                   
     itself, as  is stated -  is unconstitutional  under U.S.                                                                   
     law under the equal protection [clause].                                                                                   
                                                                                                                                
Number 0967                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  opined that  Representative James's  comments say,                                                              
in a nutshell,  what the majority  of the committee believes.   He                                                              
said  that it  is unfortunate  that  the governor  did not  pursue                                                              
"our legal  remedies that were  underway."   He noted that  one of                                                              
his concerns, as  implied in the letter from the  DOL, is that [if                                                              
HB  376 is  adopted], the  state regulators  will have  difficulty                                                              
coordinating  with  the  federal   regulators,  particularly  with                                                              
regard  to  keeping  track  of harvests.    He  asked,  "Is  there                                                              
anything constraining in this bill that would prohibit that?"                                                                   
                                                                                                                                
MR.  CHURCH said  no,  there isn't.   "Quite  to  the contrary,  I                                                              
believe that  the bill allows  the room  for the state  to operate                                                              
and  fulfill its  mission," he  added.   [House Bill  376] is  not                                                              
intended to hinder  the legitimate efforts of the  ADF&G; it's not                                                              
intended to prohibit  the state from protecting  and enhancing the                                                              
state's fish  and wildlife  resources.   He said  the state  has a                                                              
priority of  maintaining opportunities for  all users of  fish and                                                              
game; HB 376 is just part and parcel of that process.                                                                           
                                                                                                                                
REPRESENTATIVE  OGAN offered that  HB 376  is consistent  with the                                                              
Alaska  Supreme  Court ruling  that  the  state, not  "the  feds,"                                                              
control the  navigable waterways in  Alaska.  He remarked  that HB
376  does not  say  that the  state  is not  going  to manage  its                                                              
[resources]; it  is simply saying,  in statute, that the  state is                                                              
not willfully ceding its sovereignty to the feds.                                                                               
                                                                                                                                
CHAIR  ROKEBERG  mentioned  that   the  governor  issued  a  press                                                              
release  that morning  pertaining to  the commencement  on May  15                                                              
[2002] of a special session regarding subsistence.                                                                              
                                                                                                                                
REPRESENTATIVE  OGAN mentioned  that he  would be  back in  Juneau                                                              
around May 1.                                                                                                                   
                                                                                                                                
Number 1178                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES  moved to report  HB 376, as amended,  out of                                                              
committee  with individual  recommendations  and the  accompanying                                                              
amended  zero  fiscal  note.    There  being  no  objection,  CSHB
376(JUD)  was  reported  out  of   the  House  Judiciary  Standing                                                              
Committee.                                                                                                                      
                                                                                                                                
REPRESENTATIVE JAMES,  with regard to  the issue of  fiscal notes,                                                              
remarked  that  when  the  departments are  "given  a  chore  that                                                              
they're  already  supposed to  be  doing,  they shouldn't  have  a                                                              
fiscal note."                                                                                                                   

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