Legislature(2001 - 2002)

03/04/2002 01:07 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 376-FISH & GAME IN NAVIGABLE WATERS                                                                                        
VICE  CHAIR FATE  announced the  final 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 1653                                                                                                                     
REPRESENTATIVE SCOTT  OGAN, Alaska State Legislature,  sponsor of                                                               
HB 376, reminded  members that the bill was  heard extensively in                                                               
a  previous committee  meeting.   He  said he  was available  for                                                               
Number 1631                                                                                                                     
DALE BONDURANT, Alaska  Constitutional Legal Defense Conservation                                                               
Fund,  testified  via teleconference.    Mr.  Bondurant told  the                                                               
committee that  he supports  HB 376.   He said  he had  been very                                                               
active in  the issues  on navigable  waters for  many years.   He                                                               
offered the following  history:  In 1977,  Alaska Public Easement                                                             
Defense Fund v. Andrus, "we"  won reasonable access to all public                                                             
waters of the  state, and [legislation] was  passed that included                                                               
all surface  waters.   In 1987,  "we" backed  the state  into the                                                               
Gulkana decision [Alaska v. Ahtna,  Inc., 891 F.2d 1401 (9th Cir.                                                             
1989)], which resulted  in winning 30 million  acres of submerged                                                               
lands  and  187,000 miles  of  navigable  waters.   He  said  the                                                               
governor has failed  to fight for [state rights].   Mr. Bondurant                                                               
spoke about  plants, waters, and  nonrenewable resources  such as                                                               
gas and oil.   He also spoke about renewable  [resources] such as                                                               
fish and  marine animal  life in the  aforementioned waters.   He                                                               
referred to  a paragraph in  the Submerged Lands Act  that allows                                                               
the state control all [surface] and ground waters.                                                                              
MR. BONDURANT recounted  details of meetings and  events that led                                                               
up to  the initiation of the  Gulkana decision, in which  he said                                                               
he'd had  a large role.   He mentioned an ad  hoc committee, John                                                               
Shively, and Sam  McDowell.  He concluded, "So  our names weren't                                                               
on  that  suit,  but  we're  the ones  that  carried  the  battle                                                               
through."   He agreed  that the federal  government is  using the                                                               
reserved water rights  to take away the state's  rights to manage                                                               
its  resources  in  navigable  waters.     He  said  the  federal                                                               
government has a responsibility to  protect the fish and wildlife                                                               
and other  uses, including recreation.   He said the  taking that                                                               
exists, which comes under "users,"  is the state's responsibility                                                               
under [the Tenth Amendment].                                                                                                    
MR. BONDURANT  said the  reserved water  rights have  a different                                                               
intent -  to ensure  quantity and quality.   Moreover,  Alaska is                                                               
one  of the  states that  has  an article  [in its  constitution]                                                               
about water  rights; it says  there is a general  reservation for                                                               
fish and  wildlife.  He said  the "McCarran Act" says  the states                                                               
know more about their water,  so these [issues] should be handled                                                               
in state courts, but also  recognizes that the federal government                                                               
might have some  concern, so a writ of certiorari  to the Supreme                                                               
Court was allowed  in case of that.  He  said the biggest trouble                                                               
is that  these cases are  won but  aren't enforced, which  is why                                                               
[the  state]  is back  in  court  to say  "we"  have  a right  to                                                               
represent the  state, since "they"  aren't doing a very  good job                                                               
representing the  citizenship of the  country.  He  concluded, "I                                                               
would  like to  see  this  passed, [to]  give  us  a little  more                                                               
leverage,  but I'd  also like  to  see the  legislature join  our                                                               
suit, and we're fighting - ourselves - on."                                                                                     
Number 1213                                                                                                                     
REPRESENTATIVE  OGAN referenced  United  States  v. Alaska,  [117                                                             
S.Ct. 1888,  138 L.Ed.2d 231  (1997)].   He said Alaska  lost the                                                               
case,  which was  about  whether or  not  the federal  government                                                               
intended to reserve the offshore islands  on the North Slope.  It                                                               
was a  royalty dispute  case; moreover,  Alaska lost  millions of                                                               
dollars in potential  revenues over that case.   He told members,                                                               
"In the  majority opinion, [U.S. Supreme  Court] Justice O'Connor                                                               
said  that several  general principles  governed our  analysis of                                                               
the  parties'  claims.    Ownership  of  submerged  lands,  which                                                               
carries with  it the  power to  control navigation,  fishing, and                                                               
other  public  uses  of  water,  is  an  essential  attribute  of                                                               
REPRESENTATIVE OGAN  said [the purpose]  of this bill is  to stay                                                               
consistent with  the sovereign rights  of the State of  Alaska to                                                               
manage its resources.  He offered  his view that [the bill] gives                                                               
adequate protections  for "them" to  comment, keep an eye  on the                                                               
resources, and  work with the  federal government as far  as what                                                               
the state's  positions are;  moreover, [the  bill] is  stating in                                                               
law that  [Alaska] doesn't assent  to [federal] control  of [its]                                                               
submerged lands.                                                                                                                
Number 1110                                                                                                                     
REPRESENTATIVE KAPSNER asked if [passing  HB 376] would cause the                                                               
federal government to [convey control  of submerged lands back to                                                               
REPRESENTATIVE OGAN said no.                                                                                                    
REPRESENTATIVE KAPSNER asked,  "What is the point?   Doesn't this                                                               
seem futile if they're not going to pull out?"                                                                                  
REPRESENTATIVE OGAN  replied, "I  think the point  is, we  can do                                                               
all we  can do - what  I believe is  our duty as trustees  of the                                                               
public  trust  to  defend  our sovereign  rights  to  manage  our                                                               
resources."   He offered  his opinion  that the  best way  to get                                                               
closure would  be to have  the case litigated, but  said, "That's                                                               
water under the bridge.  The governor  chose not to do it, and we                                                               
don't have much left, other  than maybe Mr. Bondurant [and other]                                                               
private citizens  who are willing to  step up to the  plate."  He                                                               
talked  about  [Alaska's] history  of  not  assenting to  federal                                                               
control,  such as  in  the Glacier  Bay issue.    He offered  his                                                               
belief  that putting  it into  statute is  as appropriate  now as                                                               
when "we" did it for Glacier Bay.                                                                                               
Number 0989                                                                                                                     
REPRESENTATIVE  KAPSNER  said she  thinks  there  can be  closure                                                               
through the legislative process  that is probably more meaningful                                                               
[than through  litigation].  She  asked what would happen  to [HB
376]  on the  books once  the issue  is resolved.   She  recalled                                                               
previous  testimony  this day  by  Nancy  Wainwright [during  the                                                               
hearing  on HB  439]  that lawsuits  do  not generate  meaningful                                                               
resolutions for problems.                                                                                                       
REPRESENTATIVE OGAN  remarked that he thought  it was speculative                                                               
as to how  [the issue] would be resolved.   He mentioned that the                                                               
issue of  a constitutional amendment  [to add a  rural preference                                                               
for subsistence] has  been [before the state  legislature] for 20                                                               
years.   He said,  "I suppose  we can cross  that bridge  when it                                                               
happens."  He suggested that  once the constitution is amended to                                                               
conform to federal law, "we" have assented to it.                                                                               
REPRESENTATIVE OGAN  said he didn't  think [Alaska] was  going to                                                               
get  state management  back.    He said  [Alaska]  would have  to                                                               
enshrine  the federal  law into  its constitution,  statutes, and                                                               
regulations.   He added,  "We can call  it state  management, but                                                               
it's federal  management with a gun  to our head."   He mentioned                                                               
that  the legislature  doesn't  have  a constitutional  amendment                                                               
before  it;  nor has  it  been  placed  before  the voters.    He                                                               
remarked that he thought [legislators] should take this measure.                                                                
Number 0854                                                                                                                     
REPRESENTATIVE McGUIRE  moved to report  HB 376 out  of committee                                                               
with individual recommendations and  the accompanying zero fiscal                                                               
Number 0837                                                                                                                     
REPRESENTATIVE KAPSNER objected.                                                                                                
[A  few  seconds  of  the  tape  is  blank  due  to  a  technical                                                               
Number 0808                                                                                                                     
REPRESENTATIVE KERTTULA  explained, "I  just see this  as cutting                                                               
off our nose to spite our  face."  She mentioned that under this,                                                               
there may  be a  risk of possibly  getting some  information from                                                               
the  federal subsistence  board that  might be  useful after  the                                                               
issue is  resolved.  She said,  "This is neither here  nor there;                                                               
it's just sort of another shot,  and I just don't think it's very                                                               
Number 0786                                                                                                                     
REPRESENTATIVE   GREEN   recounted    earlier   discussion   that                                                               
litigation is  not a good  way to solve  an issue.   However, the                                                               
whole judicial system  is based on that:  if  "we" can't mediate,                                                               
"we" have to  go to court.   He said he agreed  with the sponsor.                                                               
He said  he thought the  only way  [the issue would  be resolved]                                                               
would [be through] the courts.                                                                                                  
VICE CHAIR FATE  said the final court of the  land does certainly                                                               
settle issues.                                                                                                                  
REPRESENTATIVE  OGAN  offered his  view  that  there wouldn't  be                                                               
closure [on the issue] regardless of  what happens.  He said even                                                               
if  the  [state]  constitution  were  amended  to  give  a  rural                                                               
priority  [for  subsistence,  to  conform to  federal  law],  the                                                               
lawsuit  in  process now  isn't  necessarily  based on  submerged                                                               
lands and  the water rights  doctrine; rather, it's  a Fourteenth                                                               
Amendment  issue  of  equal  protection  and  due  process.    He                                                               
suggested that  [the issue] would  be carried  forward regardless                                                               
of whether  it relates  to an  arbitrary class  of discrimination                                                               
based  on  residency and  whether  it  passes the  rational-basis                                                               
test.  He continued:                                                                                                            
     Really,  the only  way to  get closure  and get  all of                                                                    
     this behind  us is ...  - and [U.S.]  Senator Murkowski                                                                    
     alluded to it  - that we need the issue  ruled on so we                                                                    
     can figure  out where we're  at.  And  it's unfortunate                                                                    
     that the governor chose, in  my opinion, the actions he                                                                    
     did.  And I can't change that.  This is all I can do.                                                                      
Number 0686                                                                                                                     
A  roll call  vote was  taken.   Representatives Fate,  Chenault,                                                               
Green,  and  McGuire voted  to  move  HB  376 out  of  committee.                                                               
Representatives Stevens, Kapsner, and  Kerttula voted against it.                                                               
Therefore  [because  a  majority  of  the  nine-member  committee                                                               
didn't vote  to move the bill  from committee], HB 376  failed to                                                               
move out of  the House Resources Standing Committee by  a vote of                                                               
[There was a  motion by Representative McGuire  to reconsider her                                                               
vote  "for a  later date,"  which Vice  Chair Fate  acknowledged,                                                               
although  that particular  motion  technically  doesn't apply  to                                                               
moving a bill from committee.]                                                                                                  

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