Legislature(1997 - 1998)

04/10/1997 01:15 PM RES

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                         
                                                                               
 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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