Legislature(1995 - 1996)
04/28/1995 08:10 AM House RES
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* 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 596 REPRESENTATIVE AL VEZEY, PRIME SPONSOR, stated HB 296 is an attempt to codify a principle found in the statehood compact. He said HB 296 takes from the compact and puts into state statutes that the state of Alaska has the right to manage its fish and game resources. He noted a paragraph was also inserted which prohibits other people from interfering with the state's right. He added that paragraph was the topic of most of the discussion when HB 296 was in the House Special Committee on Fisheries. For that reason, a work draft committee substitute has been prepared for consideration. REPRESENTATIVE ALAN AUSTERMAN said in the written sponsor statement it says, "This power cannot be abridged or altered, except by mutual agreement of the people of the State of Alaska and the federal government." He stated on Kodiak Island, the national wildlife refuge was set up specifically for bears. He wondered if that is what is being discussed in that particular statement--that the management of bears on Kodiak Island is not necessarily done by the state but is done by the federal government because of the agreement of that national wildlife refuge. REPRESENTATIVE VEZEY asked what specific part of the bill is he referring to. REPRESENTATIVE AUSTERMAN stated he is referring to the sponsor statement and wondered if the statement he just read is addressed in the bill. REPRESENTATIVE VEZEY responded that statement specifically was not addressed in the bill discussed in the Fisheries Committee. He said the work draft committee substitute says the state could do that and comply with the law. What was said in the Fisheries Committee was there is recognition of the federal law but it is still the state's prerogative to manage its fish and game resources in Alaska as outlined in the state compact. REPRESENTATIVE AUSTERMAN asked if the state compact addresses the statement he read from the sponsor statement. REPRESENTATIVE VEZEY stated the compact does not prohibit mutual agreement, it says the responsibility shall be the state's. He said the compact does not prohibit the state from agreeing to work with other agencies. Number 645 REPRESENTATIVE DAVIES observed Representative Vezey had acknowledged there is a primacy of federal law. He pointed out the statehood compact provides that the management of fish and game shall be transferred and conveyed to the state of Alaska and noted there is a series of provisos. He stated those provisos reserve the management of fish and game on federal reserves to the federal government. He asked what is being accomplished with HB 296. REPRESENTATIVE VEZEY responded there is an attempt being made to put the basic provisions of the statehood compact in state law. REPRESENTATIVE DAVIES felt the statute (HB 296) goes farther than what is contained in the compact. Specifically, it requires the federal government, if they ever decide they have some management authority, to transfer that authority to the state. He said the state statute seems to prohibit the federal government from reserving any management authority at all. REPRESENTATIVE VEZEY disagreed. He felt the state statute makes a very strong statement about the rights of the state but does not preclude any good management practice. REPRESENTATIVE DAVIES stated he did not believe this is a detailed fish and game management issue but rather a federal government versus state authority issue as indicated on page l, subsection (c). He thought the paragraph was very confusing. REPRESENTATIVE VEZEY responded what is being recognized is that the federal law does have primacy and the federal government has some authorities in some areas, particularly in areas on federal land or public lands. TAPE 95-60, SIDE B Number 000 CO-CHAIRMAN WILLIAMS asked if HB 296 will work under the subsistence issue and in light of the Katie John case. REPRESENTATIVE VEZEY said he would not want to go into the Katie John case because he has not even read the recent court decisions. CO-CHAIRMAN WILLIAMS stated if for example, the federal government was going to manage the fisheries in navigable waters within the state, how would HB 296 affect that situation. REPRESENTATIVE VEZEY responded, "assuming that navigable waters are not recognized as public lands...they could be either public lands or state lands depending on other factors other than the navigability servitude factor. The federal government...and again there are a lot of issues about federal management of fish and game resources on federal land that other people could answer better than I but on state lands, the state law says the state has the right to manage those resources. The reason I cannot specifically answer your question is because I recognize two areas of navigable waters, one of which there would be some basis to say that it is public lands and could be managed by the federal government. Most of the navigable waters in the state are not public lands but are state lands. I am using the federal definition of public lands which is found in the Alaska National Interest Land Conservation Act (ANILCA)." CO-CHAIRMAN WILLIAMS stated he still feels uncomfortable about how HB 296 is going to affect the subsistence issue. Number 055 REPRESENTATIVE VEZEY said HB 296 will simply say the state has strong rights in managing fish and game and that the federal government cannot assert some of those rights. He added there is a gray area he is not capable of saying much about. He stated there are some black and white areas he can tell the committee about. REPRESENTATIVE VEZEY thought Representative Williams was referring to the gray areas. He said if Representative Williams is referring to an area where there is no question that it is navigable water, the federal government is not claiming it as federal land, and the land is recognized as state land and state sovereignty, then it would be the state's right to manage those areas. CO-CHAIRMAN GREEN noted the situation where the court has ruled if a river passes through a federal jurisdiction area, then there is an exercise of federal control. He wondered if HB 296 passes, will there likely be a collision course with the federal courts and their interpretation of federal primacy. REPRESENTATIVE VEZEY stated the Fisheries Committee had requested HB 296 receive a Judiciary Committee referral. He said he did not think that had formally been done but felt it probably would happen. Number 107 REPRESENTATIVE DAVIES recalled Representative Vezey had mentioned in a case where the federal government made no claim over a particular navigable water, the state would clearly have fish and game management authority. REPRESENTATIVE VEZEY said that was his interpretation of the statehood compact. REPRESENTATIVE DAVIES clarified in stipulating those provisions, are there any cases of that nature where the federal government is asserting management authority. REPRESENTATIVE VEZEY responded there are substantial areas of conflict. REPRESENTATIVE DAVIES clarified the conflict is over navigable waters. He asked are there white areas where the federal government is asserting its management authority. REPRESENTATIVE VEZEY responded the federal government is taking steps to assert sovereignty over all navigable waters, through a whole chain of events involving Congress, the Judicial Branch of government, etc. Number 150 STEVEN WHITE, ASSISTANT ATTORNEY GENERAL, NATURAL RESOURCES SECTION, DIVISION OF LAW, stated he was available for questions. He said some of the questions previously asked he will be able to answer and some he will not be able to answer because he does not have personal knowledge due to the fact that many of the state/federal cases are being handled by an attorney in Anchorage. He said the department did have comments about the enforceability and cooperation portion of HB 296 in subsection (d). CO-CHAIRMAN GREEN asked if there will be a collision course due to the federal rendering that if a river flows through a federal park, there is primacy granted to the federal government as opposed to what HB 296 says. MR. WHITE said HB 296 tries to counter the fact that federal law is supreme over state law in all aspects. He stated there are many federal fish and wildlife laws which govern fish and game activities in Alaska and ANILCA is only one of them. He noted in the Katie John case, a part of ANILCA is being interpreted. The appeals court has said if the water is needed by a federal reservation, reserve, park, etc., the Federal Subsistence Board can regulate and manage subsistence and other fisheries to provide for the subsistence opportunity happening in those waters. He reiterated that is an interpretation of ANILCA and added that ANILCA is supreme over state law and the State Constitution. He stressed HB 296 would not change that circumstance. CO-CHAIRMAN GREEN asked if passage of HB 296 would be useful or contradictory. He wondered how a court would utilize a law like HB 296 as opposed to federal supremacy. MR. WHITE responded HB 296 would not have any affect on the issue of federal supremacy. He said federal supremacy is an interpretation of the U.S. Constitution and a court would not even look at a state's attempt, through statutes, to interpret the federal Constitution. He explained HB 296 would not have any affect on the state's legal efforts to circumscribe the statehood compact. Number 217 REPRESENTATIVE DAVIES asked in regard to the Katie John case and the reserve water interpretation, is there an implied geographical proximity in that notion. He questioned when it is determined that the water is necessary for the reserve, can that interpretation mean an extension of the management to the entire river system if the reserve is there for fish and game purposes and in order to get the fish preserved, they have to come up an entire river system. MR. WHITE stated that is a legitimate question and is a concern in regard to the Copper River where the fishery occurred. The federal reserve is the St. Elias Park which is at the top of the Copper River. The question is how far down river does the federal reserve water rights extend. Conceivably, the rights go further than just the boundaries of the park but it is not certain how much further those rights go. He said the Federal Subsistence Board has to make that interpretation. REPRESENTATIVE DAVIES felt that question is a key question to the entire issue. He thought it might be good to hear from the attorney working on these issues. REPRESENTATIVE NICHOLIA thought HB 296 should be held in the committee. She stated she just received the committee substitute and has not had time to look at it. She has many questions and would like to talk to the attorney in Anchorage. CO-CHAIRMAN GREEN recessed the meeting for 15 minutes. CO-CHAIRMAN GREEN called the meeting back to order at 9:38 a.m. MR. WHITE said during the break he was able to talk with the attorney who is representing the state in all of the federal/state fish and wildlife cases. He stated the question he struggled with earlier is how far away from the federal reservations does the federal reserve water rights extend in regard to allowing federal management. He noted unfortunately the answer is not clear since the Ninth Circuit did not say anything about it other than the federal reserve water rights allow the federal government to manage navigable waters which are necessary to serve the purposes of the federal reserves. MR. WHITE stated the issue now goes back to the Federal Subsistence Board and based on advice from their attorneys, they will then determine how far away they will attempt to manage subsistence and other fisheries dependent on subsistence or that are related to subsistence determinations. He said the state's position is those rights only go as far as the actual boundaries--that is, the waters laying within the physical boundaries of those parks, etc., are subject to federal jurisdiction under this decision. MR. WHITE told committee members the federal government, before the Ninth Circuit, also advocated the position that the court held-- that is, the federal reserve water rights allow some management over navigable waters but they did not clarify what that meant. He said the plaintiffs in the case argued, under various theories and will argue under the federal reserve water rights, that the federal government should manage all the way out to the ocean. MR. WHITE stated the issue is particularly problematic because the concept of federal reserve water rights has never been used in this context but is used in the western states for the appropriation of water for drinking water and other water uses. Typically, the rights extend upstream to stop upstream users from using too much water which is necessary for the purpose of the park. He pointed out it has never been argued to extend the rights downstream for fisheries migrating up. He noted the next step is for the Federal Subsistence Board to declare how far the jurisdiction goes and then everyone will be back in front of Judge Holland to clarify what it means. MR. WHITE said also before Judge Holland are other parts of the Katie John case which were not decided and were not up before the Ninth Circuit, and therefore, are still before him. He stated included is the question of how far off federal land areas ANILCA allows federal managers to manage migratory herds. If they are on state land or private land, can the federal government, under ANILCA, manage those herds because they affect subsistence opportunities. Number 368 CO-CHAIRMAN GREEN clarified the state is given rights when an area is not in a federal park or under federal control, and yet he heard that because of ANILCA, those rights are circumvented. MR. WHITE said the interpretation of where those rights are and how far down they extend will be determined by an interpretation of the doctrine and that law. He stated HB 296 will not affect the outcome. He noted the department has problems with one part of HB 296 and agrees there are beneficial things in the bill too. He explained the problem includes some of the restrictions on the state being involved with enforcement and cooperation of the federal laws. He could foresee scenarios in which the state's efforts on conservation, which is done cooperatively with the federal government, could be curtailed because of the prohibition against that kind of activity in subsection (d). MR. WHITE stated there is a subsection in HB 296 which says people under the jurisdiction of the state, such as local governments or municipalities, are told that the state and state boards have the primary jurisdiction and the only jurisdiction over fish and game. It would help to clarify some situations. For example, certain coastal zone districts now are attempting to manage fish and game under the authority of the coastal zone management act. He said he can foresee conflicts regarding who has management authority, the coastal districts or the state boards. CO-CHAIRMAN GREEN said, "Is there some merit to what could happen in the interim nine months. Is there anything on the horizon that might be resolved. What I am concerned about is this thing just becoming a mood document if we have higher and stronger authority being handled somewhere else." MR. WHITE responded he did not believe HB 296 accomplishes the intended purpose because federal laws have to be dealt with. He stated HB 296 does not accomplish diminishing the federal government's authority under the supremacy clause. He explained the part of the bill prohibits state employees from cooperating in enforcement of federal laws, which could have a negative affect in the state's ability to prosecute fish and game violations cooperatively with the federal government. Conceivably, a state trooper would be prohibited, under HB 296, from being a witness in a federal prosecution for a fish and game violation which the state might want to further. MR. WHITE said another scenario is where the state cooperatively manages off-shore fisheries beyond three miles under the Magnuson Act in which if the state cannot cooperate and get involved with enforcement, the state's ability will be curtailed to affect whether federal jurisdiction is extended into state waters or whether or not the state can extend its management in federal waters which the Magnuson Act provides for. He pointed out under the Magnuson Act, the state can manage offshore vessels beyond the three miles if the vessels are registered with the state. Conceivably, HB 296 could prevent the state from doing that activity. Number 437 MR. WHITE stated under the Magnuson Act, the federal government can manage inside state waters if certain things are found such as the state not managing appropriately and aggravating the federal government's management offshore. He said that kind of extension into state waters has been prevented by negotiating with the federal government and convincing them the state has an adequate management scheme and can make adjustments to that scheme so extending federal jurisdiction into state waters is not necessary. He stressed HB 296 would prevent the state from that kind of cooperation. He reiterated subsection (d) would provide some troubling aspects. MR. WHITE noted subsection (e) talks about the Attorney Generals office enforcing subsection (d) to the fullest possible extent allowed under law. He said it is not clear if that means the attorney general is the only entity that can enforce the law. He thought a private citizen could enforce subsection (d). If a person was being prosecuted for a violation of a federal fish and game law and the evidence for that prosecution was provided by state fish and wildlife protection officers, under HB 296 that person could prevent a state officer from being a witness against him in a federal prosecution. REPRESENTATIVE NICHOLIA asked if subsection (e) can be put into law since the Attorney General works for the Governor. She noted the Governor is voted into office statewide. MR. WHITE stated Representative Nicholia's comments raise a good point, which is a separation of powers issue. He noted the Attorney General does work in the Executive Branch and many of the state's enforcement decisions are statewide but generally are directed by the Governor's office. He said he was not sure what effect subsection (e) might have. He pointed out subsection (e) would require telling a state trooper he or she cannot testify in a particular case, or fish and game employees they cannot cooperate with the Magnuson Act negotiations, etc. REPRESENTATIVE OGAN made a MOTION to ADOPT CSHB 296(RES), version K. CO-CHAIRMAN GREEN asked if there were any objections. Hearing none, the MOTION PASSED. Number 497 GERON BRUCE, REPRESENTATIVE, ADF&G, stated Mr. White raised many of the issues the department is concerned with. He said Alaska's fish and wildlife are highly migratory and transude over a large expanse of Alaska. With Alaska's complicated and checkerboard land ownership pattern, cooperation between the various landowners and entities having jurisdiction in those different bodies of land is essential for the good management of Alaska's fish and wildlife. Regardless of the problems the state has with other entities, especially the federal government on certain issues, it is in the fish and wildlife's best interest, and ultimately in the best interest of the people using those fish and wildlife resources that the cooperation exists and be as good as possible. MR. BRUCE said examples of federal legislation which apply to the department and the department works with the federal government on include the Magnuson Act, the Marine Mammal Protection Act, the Endangered Species Act (ESA), the Pacific Salmon Treaty, and the Migratory Bird Treaty. He noted CSHB 296(RES) does address the treaty situations but even in those situations, it is unclear what the effect is on the state. The department is concerned that CSHB 296(RES) will make it more difficult to cooperate with the other entities who have management authority or some management authority in some areas. He noted the fish and wildlife resources require this management over their entire range. MR. BRUCE told committee members the ESA has a provision which says a state employee who does not comply with the ESA or does not do his part to enforce the ESA is personally liable. He noted the ESA, as it is involved in the problems with the Snake River salmon in the Pacific Northwest, does have an effect in Southeast Alaska. He said the department has people who would be in jeopardy under CSHB 296(RES) and would have two different missions--to enforce state law, which would say they cannot enforce or cooperate with a federal law that preempts state law; and then the ESA which says if they do not enforce it and comply with it, they will be personally liable. He urged the committee not to move the bill out of committee until these concerns are addressed. CO-CHAIRMAN GREEN stated a subcommittee would be formed to address the concerns raised. He said he is not favorable of legislation designed for possible conflict. He noted if the bill can be worked out in a way where there will not be any conflicts or if it is known there may be a conflict and the committee agrees to move the bill, that would be preferable. He assigned a subcommittee consisting of Representatives Austerman, Davies, and Ogan to review the legislation with Representative Austerman as Chairman. REPRESENTATIVE OGAN noted many of the issues raised could be addressed by the Judiciary Committee. He wondered if the bill could be referred to the Judiciary Committee rather than assigning it to a subcommittee. CO-CHAIRMAN GREEN felt the concerns voiced by Mr. Bruce were regarding the state's resources and therefore, he would prefer to hold the bill in the committee.
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