Legislature(2001 - 2002)

03/01/2002 01:10 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 376-FISH & GAME IN NAVIGABLE WATERS                                                                                        
Number 1800                                                                                                                     
CO-CHAIR MASEK announced  the next order of  business, 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 1815                                                                                                                     
REPRESENTATIVE  SCOTT OGAN,  Alaska State  Legislature, testified                                                               
via  teleconference as  sponsor of  HB 376.   He  referred to  AS                                                               
16.020.010  and explained  that  the state  had  not assented  to                                                               
federal  control  of  the  Alaska Department  of  Fish  and  Game                                                               
(ADF&G) and those  areas set apart as national  bird and wildlife                                                               
refuges when  Alaska was a  U.S. territory.  He  said legislation                                                               
was  enacted when  Alaska became  a  state.   He said  apparently                                                               
there was a  dispute over control of ADF&G and  those areas:  the                                                               
state  wanted  to say  unequivocally  that  it didn't  assent  to                                                               
control of those  areas.  He indicated it was  his [prior] change                                                               
to have  [AS 16.20.010(a) read,  as found  on page 2,  Section 2,                                                               
subparagraph (B),  of the current  bill]:  "Glacier  Bay National                                                               
Park and  Preserve or  the navigable  waters within  or adjoining                                                               
the park and preserve".                                                                                                         
REPRESENTATIVE OGAN noted that a  point of contention is still in                                                               
the courts; moreover,  it's a case the governor  has not dropped,                                                               
asserting state control of the  submerged lands and the resources                                                               
in  Glacier Bay  National Park  and Preserve.   He  recalled that                                                               
there was  a buyout  program in place  after the  [National] Park                                                               
Service (NPS)  decided commercial  fishing boats were  an eyesore                                                               
to the cruise ships there,  although he suggested it was probably                                                               
the  opposite:   people on  cruise ships  look outward  and don't                                                               
realize how obtrusive [their ships]  are.  Commercial fishing was                                                               
deemed an  inappropriate activity in  Glacier Bay, he noted.   He                                                               
mentioned that  the bill was passed  at that time and  was widely                                                               
Number 1992                                                                                                                     
REPRESENTATIVE OGAN  remarked that  the situation  is interesting                                                               
because the governor didn't pursue  the lawsuit in John v. United                                                             
States [known as the Katie John  case] to the U.S. Supreme Court,                                                             
even though he'd previously said  no governor of any state should                                                               
ever  voluntarily  relinquish  authority   back  to  the  federal                                                               
government,   and   that   he  believed   it   was   his   "clear                                                               
responsibility,  even  in  the  face  of  a  difficult  political                                                               
battle,  to  vigorously defend  this  important  aspect of  state                                                               
REPRESENTATIVE  OGAN said  the  federal  government, through  the                                                               
reserved  water rights  doctrine,  has taken  over management  of                                                               
subsistence fishing  in state sovereign  waters.  He  referred to                                                               
the Totemoff  case and said  the state supreme  court unanimously                                                             
ruled  that  submerged  land  gives ownership  of  title  to  and                                                               
management powers over lands beneath  navigable waters of Alaska,                                                               
navigable  waters  themselves, and  fish  and  other marine  life                                                               
located  in  Alaska's  navigable  waters.    Moreover,  navigable                                                               
waters are generally  not public lands under  the Alaska National                                                               
Interest Lands Conservation Act (ANILCA).                                                                                       
Number 2188                                                                                                                     
REPRESENTATIVE  OGAN said  the [federal]  Submerged Lands  Act of                                                               
1953  specifically  gives  the  state  authority  over  fish  and                                                               
animals   in  navigable   waters  and   precludes  [navigational]                                                               
servitude  or  reserved rights  from  being  used to  erode  that                                                               
authority.   He said [navigational] servitude  and reserved water                                                               
rights are not interests to which  title can be held.  He offered                                                               
his understanding  that both servitude and  reserved water rights                                                               
are limited  interests, and  do not  give the  federal government                                                               
power over navigable reserved waters unrelated to those areas.                                                                  
REPRESENTATIVE  OGAN offered  his understanding  that the  Alaska                                                               
Supreme Court is  not bound by decisions of  federal courts other                                                               
than the  U.S. Supreme  Court on  questions of  federal law.   He                                                               
said [the state] has the right  to manage its resources.  He said                                                               
the Submerged Lands  Act was mentioned in the  Statehood Act, and                                                               
it was  mentioned that Alaska  was admitted to [statehood]  on an                                                               
equal  footing with  the rest  of the  states; this  included the                                                               
1953 Submerged  Lands Act,  which gave  to the  states fee-simple                                                               
title  [to]  submerged  lands  and   the  right  to  control  the                                                               
resources  within   those  submerged  lands.     Referring  to  a                                                               
Submerged Lands  Act handout  he'd provided,  Representative Ogan                                                               
read  from  a portion  that  said,  "...  the U.S.  releases  and                                                               
relinquishes to the states all  rights, title and interest it may                                                               
have,  unless  otherwise  reserved, in  lands,  improvements  and                                                               
natural resources beneath or within the navigable waters".                                                                      
Number 2269                                                                                                                     
REPRESENTATIVE  OGAN  mentioned a  case  in  which [U.S.  Supreme                                                               
Court] Justice  Sandra Day  O'Connor wrote that  the state  has a                                                               
right to  control fishing.   He explained  that Section 1  [of HB
376]  has  a [number]  of  legislative  findings; Section  2,  in                                                               
addition to the  other areas, says [the state]  doesn't assent to                                                               
federal  control and  lists the  navigable  waters and  submerged                                                               
lands; and Section 3 talks  about various findings and recognizes                                                               
that the  state hasn't assented  to federal control and  that the                                                               
federal government  cannot commandeer the lawmaking  processes of                                                               
the state  to compel  the state  to enact  and enforce  a federal                                                               
regulatory program.   Indicating there is case law  from the U.S.                                                               
Supreme  Court,  he  said  this section  also  mentions  that  it                                                               
doesn't prohibit  the agency  or an agent  from taking  an action                                                               
necessary  to protect  life or  property,  commenting on  federal                                                               
statutes or  regulations, or  participating and  cooperating with                                                               
the established programs.                                                                                                       
REPRESENTATIVE  OGAN,  in  response  to  Representative  McGuire,                                                               
clarified  that the  bill adds  a  new subsection  in Section  3;                                                               
however,  it  doesn't  change  Title   16  on  those  other  four                                                               
[paragraphs in AS  16.20.010(b)].  Aside from  Section 2, nothing                                                               
eliminates existing statute.                                                                                                    
Number 2491                                                                                                                     
REPRESENTATIVE  KAPSNER mentioned  the constitutional  mandate to                                                               
manage for sustained yield.   She asked Representative Ogan if he                                                               
thought it irresponsible to prohibit  state managers from working                                                               
with federal managers.                                                                                                          
REPRESENTATIVE OGAN said the problem  is that the [state] doesn't                                                               
have the  ability to manage  those resources for  subsistence use                                                               
because the  [federal government]  has taken over.   He  said the                                                               
federal  government doesn't  have an  obligation to  manage on  a                                                               
sustained  yield  [basis], and  prior  to  statehood the  federal                                                               
government didn't manage  for sustained yield.   He indicated the                                                               
federal government would be prohibited  from compelling the state                                                               
to enact and enforce a  federal regulatory program.  He mentioned                                                               
that he thought ADF&G had  a clear responsibility to [monitor the                                                               
federal  government's management  of  resources].   He  suggested                                                               
ADF&G can  comment on proposed federal  statutes and regulations.                                                               
He  added, "It  just  is saying  that we  don't  assent to  their                                                               
control; it's a matter of fundamental state sovereignty."                                                                       
REPRESENTATIVE  KAPSNER offered  her  understanding that  federal                                                               
law preempts any state law, across the board.                                                                                   
REPRESENTATIVE  OGAN  replied  that federal  law  didn't  preempt                                                               
state law;  furthermore, it  gave the state  the right  to manage                                                               
its  resources.   Moreover,  he  said  the Alaska  Supreme  Court                                                               
unanimously agreed  to that  position in  the Totemoff  case, and                                                             
there  is a  mandate from  the  [Alaska] Supreme  Court that  the                                                               
state,  not   the  federal  government,  manage   its  resources.                                                               
Representative Ogan  said the [Alaska] Supreme  Court has [ruled]                                                               
that the  state is not  obligated to  follow any court  ruling on                                                               
the issue other than [from] the  United States Supreme Court.  He                                                               
said when the  governor decided to "cede  sovereign authority" to                                                               
the federal government [by not  pursuing the lawsuit], he ignored                                                               
the  constitution,  the  state's sovereignty,  and  the  [Alaska]                                                               
Supreme Court.                                                                                                                  
Number 2666                                                                                                                     
REPRESENTATIVE  KERTTULA asked  if the  goal is  to regain  state                                                               
REPRESENTATIVE OGAN  said, "Sure."   He mentioned  the governor's                                                               
statements about not voluntarily  relinquishing authority and why                                                               
he had to appeal the case.                                                                                                      
REPRESENTATIVE KERTTULA suggested the  state should be monitoring                                                               
and participating  [with the  federal government's  management of                                                               
resources]  to  get  as  much   information  as  possible.    She                                                               
expressed concern that the bill might limit that ability.                                                                       
REPRESENTATIVE  OGAN   said  he  didn't  believe   that  was  the                                                               
intention of HB 376.  The bill  would allow the state to have its                                                               
biologists  [monitor]   the  federal  [government],   comment  on                                                               
proposed  federal statutes  and regulations,  and still  fund the                                                               
positions.    Representative Ogan  acknowledged  that  HB 376  is                                                               
basically posturing  until the  matter is settled  in court.   He                                                               
pointed out that this had been done [regarding] Glacier Bay.                                                                    
REPRESENTATIVE   KERTTULA  reiterated   her  concern   about  the                                                               
language of HB 376.                                                                                                             
REPRESENTATIVE  KAPSNER pointed  out  that Representative  Ogan's                                                               
answer to  a previous question  had made  it sound as  though the                                                               
reason the state  has federal management is  because the governor                                                               
didn't  appeal  the  Katie John  case.    Representative  Kapsner                                                               
suggested the  reason the state has  federal management, however,                                                               
is  because the  state has  failed to  comply with  ANILCA.   The                                                               
federal  government allowed  the  state three  moratoriums so  it                                                               
could  come into  compliance, but  the  legislature refused,  she                                                               
recalled.  She  mentioned a legislative remedy of  putting a vote                                                               
to the public to change  the constitution to come into compliance                                                               
with  ANILCA.   She said  the court  is not  the solution  to the                                                               
subsistence [issue].                                                                                                            
Number 2836                                                                                                                     
REPRESENTATIVE OGAN referred to the  Totemoff case, which he said                                                             
[found]  that navigable  waters  are generally  not public  lands                                                               
under  ANILCA.    He  said   the  Submerged  Lands  Act  of  1953                                                               
specifically  gave  state  authority  over fish  and  animals  in                                                               
navigable waters;  moreover, it mentioned  navigational servitude                                                               
or reserved  rights.   He mentioned  that the  federal government                                                               
has maintained that  it has the right to manage  fish up to three                                                               
miles [from the coastline], which  the Alaska Supreme Court found                                                               
to be  incorrect.  Furthermore,  the Alaska Supreme Court  is not                                                               
bound by decisions of federal  courts other than the U.S. Supreme                                                               
Court on questions of federal law, he suggested.                                                                                
REPRESENTATIVE OGAN offered his belief  that HB 376 is consistent                                                               
with the Alaska  Supreme Court's ruling.  He  offered his opinion                                                               
that  the  governor's actions  have  made  Alaska a  second-class                                                               
state, not on  equal footing with the other states  of the Union.                                                               
Representative Ogan said 14 other  states had filed amicus curiae                                                               
briefs on  [Alaska's] behalf  in the John  v. United  States suit                                                             
because  they worry  about their  sovereign rights  as states  to                                                               
manage  their resources.   This  sets a  precedent that  goes far                                                               
beyond the State  of Alaska, he said.  He  mentioned remarks from                                                               
[U.S.]  Senator  Murkowski about  appealing  the  John v.  United                                                             
States  case.   Representative  Ogan  again  suggested that  this                                                             
issue  is not  about  subsistence, but  about Alaska's  sovereign                                                               
rights as a state.                                                                                                              
TAPE 02-12 SIDE B                                                                                                               
Number 2990                                                                                                                     
REPRESENTATIVE FATE indicated his  reason for cosponsoring HB 376                                                               
was  because  there had  been  no  adjudication by  the  [Alaska]                                                               
Supreme Court in  contract law.  He said the  Submerged Lands Act                                                               
of 1953 is incorporated within  the Statehood Act and the compact                                                               
that  the people  of  Alaska  signed saying  that  compact is  no                                                               
longer  valid.   He  agreed  that  ordinarily congressional  laws                                                               
supersede state  law, but not contract  law.  To get  the [issue]                                                               
adjudicated by  a court of the  land is probably going  to be the                                                               
only  way to  settle the  issue of  the Submerged  Lands Act,  he                                                               
suggested.  He  said the [Submerged Lands Act]  was [related] not                                                               
to  subsistence, but  rather  to the  sovereign  right to  manage                                                               
navigable  waterways.   He indicated  there  hasn't been  harmony                                                               
between the  federal government [and  the state] as  it endeavors                                                               
to manage a state waterway and [ADF&G].                                                                                         
REPRESENTATIVE  OGAN  mentioned  that   he  thought  the  federal                                                               
government didn't honor the deals made at statehood.                                                                            
Number 2842                                                                                                                     
DICK  BISHOP,   Alaska  Outdoor  Council  (AOC),   testified  via                                                               
teleconference,  informing the  committee  that  AOC supports  HB
376.    Moreover,  he  said  AOC  believes  it  is  important  to                                                               
reemphasize   what  the   Alaska   Supreme   Court  has   already                                                               
enunciated:   the  state's authority  over  navigable waters  and                                                               
submerged  lands, and  the management  of resources  found there.                                                               
He said  AOC appreciates the  recognition of the  state's public-                                                               
trust  responsibility for  renewable  resources.   However,  it's                                                               
also important to  ensure that the state, in its  efforts to be a                                                               
good  neighbor and  to ensure  sound  conservation of  resources,                                                               
does not contribute to the  perception of federal authority where                                                               
none  exists,  he  said.   This  bill  addresses  that  potential                                                               
problem while also citing federal  laws that authorize legitimate                                                               
federal authority.   Therefore, AOC  urges the passage of  HB 376                                                               
to  ensure  the  authorities  are  clear  and  that  the  state's                                                               
authority and responsibility is clear and is followed, he said.                                                                 
MR.  BISHOP   told  members  he   doesn't  believe   federal  law                                                               
supersedes state  law in all  cases.  There are  limitations that                                                               
vary from federal  law to federal law; for example,  it has often                                                               
been cited  that the federal government  has management authority                                                               
for fish  and game on  public lands through the  property clause,                                                               
but  that's   not  necessarily  the  case   unless  Congress  has                                                               
specifically said  that should be  the case.  Another  example is                                                               
that nowhere in  ANILCA was that specific authority  given to the                                                               
federal  government by  Congress; consequently,  that's still  an                                                               
open question, even though it  has not been adequately pursued in                                                               
court, he told members.                                                                                                         
Number 2703                                                                                                                     
REPRESENTATIVE OGAN asked Mr. Bishop if  he was aware of the case                                                               
of New  York v. United States.   He read from  the case [original                                                             
text provided]:                                                                                                                 
     This  case  instead  concerns the  circumstances  under                                                                    
     which  Congress may  use the  States  as implements  of                                                                    
     regulation;  that is,  whether Congress  may direct  or                                                                    
     otherwise  motivate   the  States  to  regulate   in  a                                                                    
     particular field or  a particular way.   Our cases have                                                                    
     established a few principles  that guide our resolution                                                                    
     of the issue.   As an initial matter,  Congress may not                                                                    
     simply "commandee[r]  the legislative processes  of the                                                                    
     States  by  directly  compelling   them  to  enact  and                                                                    
     enforce  a  federal  regulatory  program."    Hodel  v.                                                                    
     Virginia Surface Mining &  Reclamation Assn., Inc., 452                                                                    
     U.S. 264, 288 (1981).                                                                                                      
MR. BISHOP  indicated he wasn't familiar  with the aforementioned                                                               
case.   He said it's  very reassuring that there  are limitations                                                               
on the  reach of the  federal government in compelling  states to                                                               
do things they might not otherwise be  willing to do.  He said it                                                               
is a  good example that the  federal government does not,  in all                                                               
cases, have the  option of preempting the state's  authority.  He                                                               
mentioned  that  ownership,  authority,  and  responsibility  for                                                               
management of  navigable waters have  been granted to  the states                                                               
and upheld until  the circumstances in Alaska.   Mr. Bishop spoke                                                               
about   limitations  and   lack  of   clarity  on   the  relative                                                               
authorities of  federal and state  governments in  the management                                                               
of fish and wildlife and renewable resources in the state.                                                                      
Number 2565                                                                                                                     
CO-CHAIR  MASEK mentioned  the Submerged  Lands Act.   She  spoke                                                               
about the  intent of  Congress, the appeal  to the  Ninth Circuit                                                               
Court, and the impact on the state.   She asked if [HB 376] would                                                               
clear up [the issue].                                                                                                           
MR. BISHOP  said he thought  it would clear  it up by  laying out                                                               
the  matters of  law and  the relative  authorities; however,  it                                                               
won't clear  up what authority the  state will be able  to retain                                                               
and  what  authority  the  federal  government  will  attempt  to                                                               
assume.  What the federal  government assumes and what it chooses                                                               
to  do  under  the  [John   v.  United  States]  ruling  will  be                                                             
consistent  with the  ruling, he  said.   He  indicated that  the                                                               
federal  government  is not  going  to  subside in  its  position                                                               
because of the passage of HB  376.  It is an important expression                                                               
of a  recognition of the  state's sovereignty with regard  to the                                                               
ownership,  authority, and  responsibility over  navigable waters                                                               
and submerged lands, he concluded.                                                                                              
Number 2463                                                                                                                     
CO-CHAIR MASEK  referred to a  set of documents in  the committee                                                               
packet, the first page of  which was headed, "Alaska Digest Email                                                               
News; September  3-9, 2001; Murkowski Laments  State Decision Not                                                               
To Appeal 9th  Circuit Case."  She offered  an excerpt attributed                                                               
to U.S. Senator Murkowski, which read:                                                                                          
     "Even  if  we  succeed   in  passing  a  constitutional                                                                    
     amendment   to  protect   subsistence  and   solve  the                                                                    
     subsistence problem,  which I  have supported  and will                                                                    
     continue  to work  for, Alaskans  will not  be afforded                                                                    
     the chance to recover  control over state waters, which                                                                    
     the Governor has chosen to give away."                                                                                     
MR. BISHOP offered  his belief that if the state  were to adopt a                                                               
rural  subsistence-priority  amendment  in its  constitution,  it                                                               
wouldn't  solve  the dilemma  relating  to  state sovereignty  in                                                               
navigable waters.  Moreover, it  would address the ability of the                                                               
state to assume the responsibility  for administering the federal                                                               
law, but  wouldn't return management  to the State of  Alaska, he                                                               
said.   The state would  be obligated  to implement the  terms of                                                               
federal law, and  the federal court would enforce them.   He said                                                               
that was the  situation that existed from 1986 to  1989, when the                                                               
state was in conformity with the  federal law.  If the state were                                                               
to come into  conformity with the federal  subsistence law [now],                                                               
then  the   same  terms  would  dictate   the  state's  operation                                                               
[regarding] the state's  implementation of that federal  law.  It                                                               
leaves the issue of authority  of the state over navigable waters                                                               
unresolved, he added.                                                                                                           
Number 2314                                                                                                                     
REPRESENTATIVE  KERTTULA referred  to John  v. United  States and                                                             
offered her  understanding that the  court had said if  the state                                                               
followed  ANILCA and  changed the  state  constitution, then  the                                                               
state would regain jurisdiction over navigable waters.                                                                          
MR.  BISHOP  said  he  didn't  recall  that  particular  passage.                                                               
However, if that  was [the case], then perhaps the  issue is that                                                               
the state would be able to  implement the federal law with regard                                                               
to the regulation  of subsistence uses.   It wouldn't necessarily                                                               
affect  the  state's  options  or   autonomy  in  deciding  other                                                               
questions with  regard to the  use of navigable waters,  he said.                                                               
He  asked how  it would  relate to  timber harvests,  tourism, or                                                               
mining,  for example.    Mr.  Bishop said  if  those are  federal                                                               
reserved  waters  and the  authority  of  the federal  government                                                               
remains unchallenged, then the federal  policies would prevail on                                                               
what  can  and cannot  be  done,  regardless  of what  the  state                                                               
thinks.  If  the rural priority [were] in  the constitution, then                                                               
the   state  would   be  compelled   to  administer   subsistence                                                               
regulations consistent with federal law, he said.                                                                               
Number 2212                                                                                                                     
CO-CHAIR  MASEK   mentioned  the  issue  of   judicial  oversight                                                               
extending toward the navigable waters.                                                                                          
REPRESENTATIVE KERTTULA  referred to page  704 of John  v. United                                                             
States.   She  reiterated  her  point that  the  court said  [the                                                             
state]  could resume  management  of subsistence  uses on  public                                                               
lands including  navigable waters.   She added [referring  to the                                                               
Katie John case]:                                                                                                               
     It never  reached any  of the other  issues, and  ... I                                                                    
     think that this  is segueing over into some  kind of an                                                                    
     argument  that just  doesn't exist  anymore.   ... This                                                                    
     was a  subsistence case;  it's a  subsistence argument.                                                                    
     The court may  have reached somewhat to  get there, but                                                                    
     that's what it concerns.   So, just from my standpoint,                                                                    
     I am not  as concerned, as we seem to  be building this                                                                    
     concern up about other issues.                                                                                             
Number 2161                                                                                                                     
MR.  BISHOP said  he  couldn't  disagree more.    He offered  his                                                               
belief that  clearly the federal jurisdiction  on reserved waters                                                               
under  the John  v. United  States decision  goes far  beyond the                                                             
issue of  the provision  for subsistence  uses.   Furthermore, he                                                               
suggested,  the court  failed to  recognize that  in making  that                                                               
statement, and doesn't  have a clue about what is  or isn't state                                                               
management.   When [the  court] said  fish and  game [management]                                                               
would return to the state, that  is simply not the case; it's not                                                               
atypical of the Ninth Circuit Court  to make that kind of leap in                                                               
logic, he contended.                                                                                                            
REPRESENTATIVE OGAN said the Ninth  Circuit Court can say what it                                                               
wants, but the [Alaska] Supreme  Court said [Alaska] is not bound                                                               
by those decisions.  He  mentioned that reserved water rights are                                                               
precluded from being  used to erode that authority,  and that the                                                               
[Alaska] Supreme  Court cannot  be ignored.   He added,  "We have                                                               
this authority, and that's all this bill does."                                                                                 
Number 1999                                                                                                                     
CO-CHAIR  MASEK  indicated  HB  376 would  be  held  for  further                                                               

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