Legislature(1999 - 2000)
03/17/1999 03:10 PM Senate RES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 90-STATE JURISDICTION OVER FISH & GAME
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:10 p.m. and announced SB 90 to be up for consideration.
MS. MEL KROGSENG, Staff to Senator Taylor, sponsor, said SB 90 was
introduced to bolster Alaska's sovereign authority to manage its
fish and game resources as provided by the Alaska Statehood Act.
Alaska is currently fighting the federal government's encroachment
into Alaska's sovereign ability to manage these resources.
Recently, the Governor officially notified the federal government
of Alaska's opposition to federal regulations regarding the
management and harvest of Alaska's fisheries resources in Glacier
Bay. SB 90 is intended to preempt the federal government from
exercising management over Alaska's fish and wildlife resources.
MAJOR JOE D'AMICO, Enforcement Commander, Division of Fish and
Wildlife Protection, supported the intent of SB 90, but Section (d)
is problematic and inconsistent with some of their objectives.
Most notably is his concern about whether or not the Division would
still be able to use the Lacey Act as a tool to reach out and
apprehend nonresident hunters and fishers who violate state law and
flee or leave Alaska's jurisdiction. They are also concerned that,
since officers are cross-deputized, if state personnel are unable
to assist federal agencies, they would no longer be able to assist
us. Currently, the Department benefits a great deal by assistance
from federal agencies, most notably the Coast Guard, the Marine
Fishery Service, and the U.S. Fish and Wildlife Service. They
assist us usually, not the other way around, he said.
MAJOR D'AMICO explained that the Lacey Act allows the federal
government to step in and prosecute persons who violate state law,
but who leave our jurisdiction. A recent case was a well known
host of a hunting show who was convicted of a same-day airborne
violation and then left the state. We weren't able to extradite,
because the Department of Law has a policy not to extradite
anything less than a class B felony. The federal government was
able to use our underlying same-day airborne law to file a federal
Lacey Act charge against this person. In fact, he was convicted in
federal court for our violation. He was afraid they would lose the
ability to cross-deputize if this bill passes.
SENATOR TAYLOR responded in the example he cited that the reason we
didn't prosecute in the state is not because of a law, but because
of Department of Law policy not to extradite for that type of an
offense. Provision (d) talks about restricting a state employee
from participating with a federal agency to enforce a federal law,
not a state law, that preempts or supersedes state management of
fish and game. He didn't see how the example would fit within
that.
Number 115
MAJOR D'AMICO said that is a good point, but in this particular
case our troopers assisted in the federal investigation because we
wound up using the federal law to bring this person back to justice
in Alaska. He understood Section (d) to mean that the Department
of Public Safety would be precluded from assisting in enforcement
of a federal law.
SENATOR TAYLOR repeated that Section (d) speaks specifically to
enforcement of a federal law that preempts or supersedes our law.
He thought it would provide him with an additional tool to overcome
a policy set by the Department of Law that prevents him from
extraditing people. Although he thought the reason DOL didn't want
to extradite was because of the cost.
CHAIRMAN HALFORD asked if the Lacey Act violations are only
felonies while all the other underlying state violations are
misdemeanors.
MAJOR D'AMICO answered that the Lacey Act has felony and
misdemeanor provisions. What triggers them is the amount of
commerce the violation incurred.
CHAIRMAN HALFORD asked if virtually all big game violations were in
excess of $500.
MAJOR D'AMICO replied that a Ninth Circuit Court of Appeals
decision saying that guiding fees can no longer be used to
determine the value of a hunt was the most current interpretation
and he didn't know if it was on appeal.
CHAIRMAN HALFORD asked if sheep horns and capes were worth more
than $500.
MAJOR D'AMICO replied with that Ninth Circuit ruling they were no
longer able to assign values to the animals like we do in State
statutes. The federal government doesn't recognize that at this
time.
CHAIRMAN HALFORD said he would be interested in seeing where they
turned down a felony based on the value. He can't believe any of
the significant big game violations aren't of felony values in
terms of the trophy.
MAJOR D'AMICO replied that the Ron Hayes a few years ago was
charged with a felony, but part of the reason he met felony
criteria was because of his past violations. On animal parts sales
it's fairly easy to get to a felony Lacey Act, but on the regular
old hunt it's much more difficult. He thought that was right,
because the misdemeanor provisions of the Lacey Act are
significant. They can be fined upwards from $100,000.
Number 230
SENATOR MACKIE asked Senator Taylor for an example of what he is
trying to accomplish.
SENATOR TAYLOR responded that currently the Glacier Bay situation
is an example and this act would prevent our fish and game officers
from being placed in the very uncomfortable situation of enforcing
federal law in Glacier Bay against Alaskans.
SENATOR MACKIE said that was near and dear to him and asked for
another example. He asked how this would apply to federal
management of a subsistence resource.
SENATOR TAYLOR replied that subsistence would be part of it.
SENATOR MACKIE asked if that means that the federal government, if
they took over management, would not be able to contract with the
State of Alaska for enforcement.
SENATOR TAYLOR answered yes.
SENATOR MACKIE asked if it was an issue of a federal officer
enforcing a federal regulation and requesting the assistance or
backup of a state official.
SENATOR TAYLOR said he wanted it to apply to both instances. He
didn't want the state's employees to be utilized to enforce a
federal law that currently violates the State Constitution and is
not a law passed by the people of Alaska.
SENATOR MACKIE responded that his concern is, having been in law
enforcement in a rural area himself, a lot of times the local law
enforcement personnel need assistance from federal people. If
there is a threat to health or life of the officer, he has a real
problem. He asked if there was a federal officer attempting to
enforce a federal law because the federal government came in and
took over mange, would Mr. D'Amico feel he was restricted in
allowing his officers to be able to assist that individual.
MAJOR D'AMICO answered that, if he understands the bill correctly,
he would be precluded from assisting a federal officer who is
enforcing federal law.
SENATOR MACKIE asked even if he was being assaulted or having his
life threatened.
MAJOR D'AMICO said that's how he understood it.
SENATOR MACKIE said that was his problem.
SENATOR TAYLOR said if an officer's life is in danger, we are not
talking about a fish and game law. We are talking about a criminal
law. There is nothing in this bill that would preclude State
officers from responding to assist federal agents in that instance.
He thought the officer would have the right to deputize anyone on
the spot. This bill just precludes our officers from going out
with our airplanes and providing them with the transportation to
arrest a fellow Alaskan who happens to have the wrong zip code on
his driver's license.
SENATOR MACKIE responded that he wished law enforcement officials
had the ability to make that kind of judgement. Unfortunately,
sometimes there is potential danger and that takes preplanning.
They would be precluded from requesting backup assistance under
this legislation. The whole reason for backup is to avoid that
type of situation. Under Senator Taylor's scenario, a person would
have to be shot or assaulted before a crime had been committed and
then state law enforcement officials could come in. He guaranteed
him that it didn't work that way.
SENATOR MACKIE said he could not support this bill as long as that
issue is unclear.
MR. MYLES CONWAY, Assistant Attorney General, testified on
Subsection (a) saying while they support the intent, it essentially
provides that the State has exclusive management authority over
fish and game resources. He is concerned that this statute would
lead to the expectation that federal authority and federal
management had been defeated when, in fact, it has not. Although
the scope of federal authority can be debated, there is no doubt
that there is some level of it and he is concerned that a person
reading the statute would think that it did not exist.
Unfortunately, we are not able to defeat federal authority with a
state statute. Federal courts will look to the federal
constitution and federal statutes in defining the scope of that
authority.
Subsection (b) provides that management authority cannot be
delegated to a person, group, or government agency. It's currently
the Department's position that discretionary management authority
over fish and game cannot be delegated. There is a July 31, 1986
Attorney General's opinion that distinguished between management of
discretionary and ministerial functions. It defines that
discretionary functions such as management or rule making cannot be
delegated.
MAJOR D'AMICO agreed that discretionary rule making functions could
not be delegated. In the fish and game context that would mean
allocations and that level of decision couldn't be delegated. More
ministerial functions like studies and fish counting could be
delegated.
CHAIRMAN HALFORD asked for a written statement saying that opinion
was the official position of the Department of Law. He asked how
it applied to co-management agreements.
He noted that in Subsection (c) the statute provides that the
federal government cannot delegate management authority and he is
concerned that this language might lead to the expectation that the
federal government has no authority to delegate. Again, the scope
of federal authority to delegate is going to be defined by federal
statute and the federal constitution and, unfortunately, we are not
able to limit that with a state statute.
Number 347
SENATOR MAKCIE asked Senator Taylor if the federal government
assumes management of subsistence resources in the State, why would
we not at least have the option for the State of Alaska to contract
the enforcement of the management with our own state troopers.
SENATOR TAYLOR replied that we do and it's covered in paragraph
(c).
SENATOR MACKIE said his concern was federal agents harassing our
citizens. He would rather have our own people enforcing the laws
and protecting the resources.
SENATOR TAYLOR said paragraph (c) provides that opportunity, but it
would require an amendment on line 7 after the word "or" to insert
"contract with to" administer federal authority. He explained that
he is attempting to say if the federal government is found by a
court of competent jurisdiction to have the jurisdiction over a
fish or game species within the state, the only entity they could
contract with recognized by the State of Alaska would be the State
of Alaska. This would stop them from using the "Pinkertons."
CHAIRMAN HALFORD asked Mr. Conway if the State could, by contract,
do that which is unconstitutional under our constitution with State
officers.
MR. CONWAY answered no, we can't avoid our constitutional
obligations to our contract.
SENATOR TAYLOR added that's after a finding by a federal court.
SENATOR MACKIE asked if they had already found that. He repeated
that Section (c) is still not clear to him.
SENATOR TAYLOR offered his amendment on page 2, line 7 after "or"
insert "contract with to".
SENATOR MACKIE asked if that would include the enforcement.
SENATOR TAYLOR answered that would provide for it. There were no
objections and the amendment was adopted.
SENATOR MACKIE said he still had an objection to the other issue.
Number 400
SENATOR GREEN asked if the scope of this legislation was very
narrow, especially the last line, "May not engage in police
activities or other law enforcement activities to enforce a federal
law that preempts or supersedes state management of fish and game."
SENATOR MACKIE said he thought if it's done through contracting,
it's not an issue. He said he has been in this type of situation
as an enforcement officer and the federal officers assisting local
officers in the enforcement of a crime are Alaskans most of the
time even though they work for the federal government. He
emphasized that he has a problem with having a statutory
prohibition for assisting.
SENATOR TAYLOR responded that the only restriction in the bill is
the prevention of our people and equipment from being utilized to
harass people in Glacier Bay today.
SENATOR MACKIE said he didn't disagree with that. In fact, he was
totally insulted when he heard that had taken place. However, his
problem is if there is a situation where the feds required backup
and we were statutorily requiring our officers not to provide it
and he didn't know how they would work around it.
SENATOR TAYLOR responded if the federal officer knows that he's not
going to get free transportation or any backup, maybe he'll think
twice before he goes out there to hassle some Alaskans in Glacier
Bay.
SENATOR TAYLOR moved to pass CSSB 90(RES) from committee with
individual recommendations. SENATOR MACKIE objected.
CHAIRMAN HALFORD announced since there were only four members, they
would hold the bill.
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