Legislature(1997 - 1998)
04/10/1997 01:15 PM House RES
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* first hearing in first committee of referral
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SB 19 am - REPEAL FED ENFORCEMENT DUTIES/F&G COMSNR Number 0269 CO-CHAIRMAN OGAN announced the next 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." Number 0288 JOSEPHINE HARDY, Legislative Secretary to Senator Bert Sharp, read the sponsor statement into the record: "Senate Bill 19 repeals the present statutory mandate (AS 16.05.050(1)) that the State of Alaska will assist the federal government agencies in the enforcement of federal laws and regulations as they apply to fish and game resources in Alaska. "In light of aggressive federal actions to assume management of fish and game over large areas of our state in violation of our statehood compact, Senator Sharp believes that repealing this statute is prudent and in the best interests of the citizens of Alaska." MS. HARDY added that this bill was a section of the previous year's SB 77, which passed both bodies but was vetoed by the Governor. Number 0420 GEORGE UTERMOHLE, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, came forward to answer questions. Number 0437 CO-CHAIRMAN HUDSON referred to a letter dated April 8, 1997, from the Department of Law. He asked whether Mr. Utermohle believes the current version of SB 19 presents any major conflict with Alaska enforcement officers in the conduct of their business. Number 0490 MR. UTERMOHLE said he had read that letter and that the points contained in that letter are valid. To the extent that a state law enforcement officer is put in an awkward position by virtue of any cross-deputization received from a federal agency, this will cause problems for that officer. The burden put on the officer is determining which laws are in conflict and therefore which laws the officer will be unable to assist the federal government in enforcing. He concluded, "He's going to end up requiring to have a lawyer at his side in the field." Number 0551 CO-CHAIRMAN HUDSON said having been an enforcement officer himself for over 20 years with the U.S. Coast Guard, where there was multiple-agency enforcement responsibility, it does put somebody in a delicate situation. He asked whether officers are sworn to uphold the federal and state constitutions, as well as the laws of the state. MR. UTERMOHLE said he could not say what the text of the oath is. Number 0622 REPRESENTATIVE JOULE asked whether the intent of SB 19 is to cover all land in the state of Alaska. MR. UTERMOHLE replied yes, this is to be a law of general applicability, applicable throughout the state. Number 0651 CO-CHAIRMAN OGAN referred to the federal government taking over management of Alaska's fisheries in October. He asked whether SB 19 would preclude Alaska's Division of Fish and Wildlife Protection from enforcing fisheries laws in navigable waters. MR. UTERMOHLE replied, "At this point, I don't think anyone knows what the extent of the federal takeover might be come this fall. What this bill would preclude is preclude a state protection officer from assisting a federal officer in enforcing federal law that is contrary, or conflicts with, a state law, that is ... equally applicable to that situation." Number 0714 CO-CHAIRMAN OGAN suggested the federal government managing Alaska's fisheries is a conflict with state law. He asked, assuming that can reasonably be considered a conflict, whether state officers would be precluded from doing fisheries enforcement work in navigable waters. MR. UTERMOHLE replied, "No, they would not be precluded from enforcing state law." He further explained, "They will not be able to assist a federal officer in enforcing a federal law that is contrary to a state law that addresses that exact situation." Number 0804 CO-CHAIRMAN OGAN said for example, if the federal government precluded fishing but state law did not, and state officers caught someone fishing in violation of the federal law, they could not, under SB 19, do anything about it. But as long as it agreed with state law, they could. MR. UTERMOHLE agreed. As long as the law is not in conflict with a state statute, it would be enforceable by a state officer. Number 0864 REPRESENTATIVE JOULE mentioned there are different priorities in allocations. MR. UTERMOHLE said at some point, different prioritizations or allocations of resources would be reflected in regulations applicable on the grounds. That is where enforcement problems would arise. Number 0948 REPRESENTATIVE WILLIAMS referred to Mr. Utermohle's earlier comment about needing an attorney present. MR. UTERMOHLE said an officer will have to determine what is a conflict between state and federal law in deciding whether to assist a federal officer. Number 1009 CO-CHAIRMAN OGAN asked whether that is not usually the district attorney's job, with the cop writing a ticket and the district attorney looking at it. They throw a few out and they get precedents, he said. MR. UTERMOHLE replied that this requires the officer in the field to not assist, before any court determination. The officer must make that determination. Number 1041 REPRESENTATIVE JOULE suggested when that is the case, what really suffers is the resources. Number 1073 JOHN GLASS, Colonel, Director, Division of Fish and Wildlife Protection, Department of Public Safety, came forward again to testify on SB 19. He said they had followed this bill since its inception and had testified before the Senate about concerns. He submitted a letter from Commissioner Otte addressing the Department of Public Safety's concerns; attached was a discussion with Assistant Attorney General Stephen M. White regarding some of the Department of Law's concerns with this bill relating to definition of "in conflict with". Number 1116 COLONEL GLASS said his agency is extremely concerned with the ability to work with federal agents in protecting resources in Alaska. He has 81 commissioned personnel to work 586,000 square miles. Taking away their ability to work with federal counterparts would be counterproductive to their efforts. COLONEL GLASS indicated various attorneys have given different responses as to what conflict will be under the bill. That also concerns them a great deal. He referred to Co-Chairman Hudson's questions about a constitutional oath. As a state trooper, he has a copy of it. He said 24 years ago, he took this oath to defend and support both the federal and state constitutions. He said that oath is administered to every Alaska state trooper, both for fish and wildlife and other protection. He believes SB 19 may in fact jeopardize that oath of office. COLONEL GLASS is extremely concerned about the additional burden placed on officers in the field of trying to determine what "in conflict" means between state and federal laws at any given time. This frequently requires federal and state judges, as well as supreme courts and courts of appeals, months to determine. "They want us to determine it on the spot, in the field, when we're working with a federal agency," he said. "I think that puts an unfair burden on my people." COLONEL GLASS concluded by stating he does not believe SB 19 is in the best interest of the resources of Alaska, which he is here to protect. Number 1233 CO-CHAIRMAN HUDSON said the issue of a federal law that essentially violates the state constitution places it squarely in front of the courts, but it has not been fully resolved. He stated that the Alaska National Interest Lands Conservation Act (ANILCA) is in conflict with Alaska's constitution. He asked what kind of guidance Colonel Glass gives field officers in dealing with conflicts involving gray areas. COLONEL GLASS responded, "I don't have an answer for you, because I don't know what to tell them. It is a major problem for this division, absolutely, sir." Number 1325 CO-CHAIRMAN OGAN referred to the Babbitt court suit, which he said was dropped with prejudice by this Administration. He asked whether there were other areas this would affect. Specifically, he asked whether it would affect the Lacey Act. COLONEL GLASS at first said that presently, it probably will not. In fact, they were having a difficult time finding state laws in direct conflict with federal laws, rules and regulations relating to fish and game resources. Down the road, however, some could be passed. COLONEL GLASS then acknowledged it may, in fact, affect the Lacey Act. He stated, "My fear and concern is if we quit cooperating with the federal agencies, they may in turn quit cooperating with us, as a retaliation, if you will." He explained that they consistently use the Lacey Act to assist in prosecution of big game guides for same-day-airborne activities, for example; those guides have a far greater capability of "reaching out to the Lower 48," where most guided hunts originate. It could possibly affect Lacey Act use by the federal government, he said. Number 1423 CO-CHAIRMAN OGAN advised that the Lacey Act relates to transporting game illegally taken under Alaska law across state lines. COLONEL GLASS clarified it is for game or trophies. "And that's where the Lacey Act really goes into effect, is when they do take a trophy in Alaska and transport it out of the state line," he said. "That's where we use it. All of those are misdemeanors, and at the current Department of Law, they do not, or will not, even, transport witnesses back up from the Lower 48 to prosecute the misdemeanors. Therefore, that's why we use the Lacey Act in that regard, in order to get our prosecution on those cases." Number 1459 CO-CHAIRMAN OGAN said this bill, as written, would not directly affect that unless it affects the relationship between the federal and state authorities. COLONEL GLASS said that is correct, unless somewhere down the road the Board of Game or legislature passes a law in conflict with the Lacey Act. It is an unknown. "And I believe that's really what our concern is because most of this bill is unknown, to what effect it will have on us," he concluded. Number 1498 DICK BISHOP, Executive Director, Alaska Outdoor Council, came forward to testify in favor of SB 19. He said he found the discussion absolutely fascinating in that it is totally lopsided. There had been no discussion of the compromise of the integrity of state law or state law enforcement agencies as a result of putting them in a position of having to enforce a law that is inconsistent with state law and the state constitution. All testimony thus far had simply said, "Gee, this puts them in a tough spot to make a decision." Acknowledging that Colonel Glass's crew is overworked and has too many rules to enforce, he said they must make decisions at least that difficult many times a day, in order to decide whether to write tickets or not. MR. BISHOP indicated he had experience as a former deputized officer with the ADF&G. He cited a personal example where he fishes for both personal and commercial use near the Tanana River, fishing under state law that protects the resource. He envisions a possible situation where federal rules prohibit him to fish there because it may compromise opportunities for subsistence uses in that drainage, for example. The state law may say that the resource has the capability of sustaining a use that federal government prohibits. He suggested asking a state enforcement officer to enforce a law inconsistent with the state statute and the constitution would place a conscientious officer in an untenable position. Therefore, he believes there is every reason to support this amendment to Title 16. Number 1669 REPRESENTATIVE WILLIAMS asked whether Mr. Bishop knows why subsistence was put in ANILCA. MR. BISHOP said yes. First, many people felt the subject had not been adequately addressed under the Alaska Native Claims Settlement Act (ANCSA). And second, in order for the environmental movement to successfully legislate, or have legislated, immense parks and refuges in the state, they had to make a deal to accommodate subsistence uses in order to get those large parks. Number 1711 REPRESENTATIVE WILLIAMS asked which of those examples Mr. Bishop believes. MR. BISHOP replied, "I was there. They both operated on the negotiations at that time." Number 1719 REPRESENTATIVE WILLIAMS said, "What you're saying then is subsistence is into ANILCA because it wasn't clear enough or the state and federal government wasn't living up to their word in making subsistence available to the Native community." MR. BISHOP replied that he had not said that. "What I did say was that some people believed that it needed to be addressed in ANILCA because it had not been adequately addressed in ANCSA," he clarified. "I personally did not say that either the state or the federal government was remiss in providing for it." Number 1745 REPRESENTATIVE WILLIAMS said subsistence was mentioned during negotiations over ANCSA. He suggested that was part of a deal made then. He said, "And apparently it was believed by this state to agree to even have that portion, Title VIII, in ANILCA. Otherwise it probably wouldn't be in ANILCA." He asked whether Mr. Bishop agrees with that. MR. BISHOP replied, "Yes, that's right. There was an agreement ... by the state of Alaska at that time to go along with that compromise, even though at that time, the state representatives were advised that there was every probability that the rural priority in ANILCA was going to be unconstitutional under the state constitution. The state nevertheless agreed to it." Number 1816 REPRESENTATIVE WILLIAMS said as far as ANILCA and the state's agreement to get Title VIII in ANILCA, subsistence was not lived up to. He said in an ANCSA conference report it says the Secretary of Interior and the state of Alaska will take care of subsistence for Natives. In 1980, the state said that "the only way you're going to get subsistence into ANILCA is if you make it for rural communities and leave Natives out -- leave the word `Natives' out." He asked whether that is correct. MR. BISHOP replied, "Yes, the state at that time did say that if the state was going to be expected to participate in management, that they would be unable to do so under the state's constitution if the priority was limited to Alaska Natives. And so the suggestion was made that - actually, I don't think by the state - but it was made, in fact, it was insisted upon, that the term `rural' be included. It was very interesting because the state, as you probably know, had passed a subsistence priority law in 1978, which did not include the term `rural.' And the rationale of passing that law was that if the state had a subsistence law that related to subsistence uses, it would be unnecessary to include such a provision in ANILCA." MR. BISHOP continued, "However, when the negotiations continued on ANILCA, the argument was made, `Well, the state has a subsistence law; therefore, there should be no objection to putting it in federal law,' and it was included. Then, just to make it a little more complicated, the representative of the Alaska Federation of Natives said the law that is in state statutes is not adequate because it does not specify rural; therefore, if AFN is going to agree to this compromise - the compromise at large of ANILCA in total - there is going to have to be `rural' put into the subsistence priority. And that was the ultimatum. That was made by Don Mitchell (ph). I was sitting at the table when he made it." MR. BISHOP indicated the state's response was negative. He said they were advised it may well be unconstitutional. But everybody wanted to get past ANILCA, and so they agreed to it. He noted that although they were advised it was probably unconstitutional, it had not yet been determined. The state tried to comply with that law and passed a statute in 1986 that conformed to the rural priority of federal law. However, in 1989, it was found unconstitutional under Alaska's constitution. He suggested that while they had been hoping for the best, it turned out it was the wrong thing to have done. Number 1985 REPRESENTATIVE WILLIAMS said he understands that subsistence was part of ANCSA. He suggested there was an agreement with the Native community relating to ANCSA that should be lived up to. MR. BISHOP commented that in ANCSA, there are at least a couple of places where reference to subsistence is made. One is in the conference report mentioned by Representative Williams, which said it was anticipated both the state and federal governments would ensure that subsistence needs of Alaska Natives are addressed. In addition, an earlier report by then-Secretary Morton (ph) pointed out that "it was anticipated, in the Department of Interior's recommendation on lands for selection by Native corporations, that those lands would be used not only for economic development but to support subsistence needs and activities of Alaska Natives." He concluded by suggesting that reading ANCSA or ANILCA is a little like reading the Bible, in that people can often reach their own conclusions. Number 2065 CO-CHAIRMAN OGAN advised that the bill would be held over. Number 2080 PAULA TERRELL, Researcher for Representative Irene Nicholia, reported that Representative Nicholia was ill. She said Gabe Sam, "fish and wildlife staff person" for Tanana Chiefs Conference, Incorporated, had asked her to testify on his behalf, as he had been unable to get a teleconference line from Fairbanks. She advised that the Tanana Chiefs Conference, which represents approximately 70 villages in Representative Nicholia's district, is strongly opposed to SB 19. Number 2131 DALE BONDURANT testified via teleconference from Kenai in support of SB 19, saying he opposes any "quasi-support for federal mandated subsistence priority for restricted classes of resource users." He adamantly opposes federal takeover of management of Alaska's fish, wildlife and waters. Even more adamantly, he opposes amending the state constitution "just to assume a lackey type of responsibility with no true authority." MR. BONDURANT, referring to the Alaska Supreme Court McDowell decision, said it addressed the state's defense of "it's third purpose" or unconstitutional compliance with ANILCA. He quoted, "A third purpose to comply with ANILCA in order to retain state fish and game control on federal lands. It is difficult to view this as a sufficiently important purpose. ANILCA does not require state compliance. State control merely for the sake of control is a questionable goal when the terms infringe upon the open access values of Article II." MR. BONDURANT said in the past, he had questioned ADF&G employees as to why they even participate as advisors in the federal subsistence regulation hearings; he said they feel obligated to furnish expert advice to help with resource protection. "But I've told them that they are in fact helping the enemy, the feds, in an infringement of Alaska statehood authority to manage these public trust resource properties," he stated. "Those who claim that Alaska must amend the state constitution `common use' and `no exclusive right or special privileges' clauses, to gain subjugated management, ignore that this makes Alaska responsible but the state will be given no actual authority under federal oversight. And even worse, it will require the abrogation of an equal protection under the law in Article I, Section 1." MR. BONDURANT asked: If the federal government was enforcing the right to barter for cash, would Alaskan enforcement agents be expected to enforce that? He referred to earlier discussion of the oath to uphold state and federal constitutions. "Maybe this is the lever we need to get into the Supreme Court with the problems with ANILCA," he said, suggesting the state try to obtain a ruling on giving priority to a segment of the population for use of this public trust resource. Number 2281 RICHARD ANDREW testified via teleconference from Ketchikan in support of SB 19. An Alaska resident for 43 years, he believes this will provide a wake-up message to the federal government that if they are going to take over Alaska's fish and game, the state is unwilling to help. He thanked the sponsors. Number 2305 CO-CHAIRMAN OGAN asked if anyone else wished to testify, then concluded the meeting. (SB 19 am was held over.)
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