Legislature(1999 - 2000)

03/26/1999 03:05 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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            SB 68-COOPERATION WITH FEDERAL AGENCIES                                                                             
                                                                                                                                
CHAIRMAN HALFORD called the Senate Resources Committee meeting to                                                               
order at 3:05 p.m. and announced SB 68 to be up for consideration.                                                              
                                                                                                                                
MR. BRETT HUBER, Aide to Senator Halford, explained the new CS,                                                                 
LSO35/H, and amendment, H.1, to SB 68.  The intent of SB 68 is, if                                                              
the federal government takes action to preempt our state's                                                                      
authority to manage fish and game resources, they need to pay the                                                               
bill.  Anything else is a unfunded federal mandate. The proposed                                                                
committee substitute addresses the committee's previous concerns.                                                               
                                                                                                                                
The first change on page 1, Section (a) adds a finding section that                                                             
further clarifies the intent of the bill.  It recognizes the                                                                    
constitutional mandate for sustained yield management and the                                                                   
State's commitment to providing for subsistence uses. It recognizes                                                             
Alaskans' relationship to and dependence upon fish and game                                                                     
resources and that, managed for abundance, our fish and game                                                                    
resources have the capacity to satisfy multiple uses provided the                                                               
State is able to maintain its sustained yield management.                                                                       
                                                                                                                                
Findings in Subsection (b) recognize the State is the only entity                                                               
with the mandate of sustained yield. With the additional                                                                        
inefficiency of a federal multi-agency authority jurisdiction and                                                               
regulation and their preemptive fish and game management, they                                                                  
recognize the State is bearing the additional burden of providing                                                               
for a comprehensive sustained yield management scheme that                                                                      
compensates for the diverse objectives of the federal agencies.                                                                 
They recognize the State's ability to manage for sustained yield                                                                
and to the benefit of all users is more complicated and more costly                                                             
due to federal preemption.  They recognize the benefits to the                                                                  
federal agencies, through the use of State management, expertise,                                                               
data, and research.  And finally, the findings recognize the                                                                    
overall benefit to the management of the resources if the federal                                                               
government pays their share of costs incurred to cooperate with                                                                 
their preemptive efforts.  These findings, to a great degree, were                                                              
based on the previous testimony of the Department, former                                                                       
Commissioner Rosier, and comments by committee members.                                                                         
                                                                                                                                
The next change on page 4, line 22, subsection (e) was added to                                                                 
address the concern raised by the Department of Public Safety and                                                               
specifically allows DPS to provide emergency backup without prior                                                               
determinations and agreements of compensation.                                                                                  
                                                                                                                                
The next change is on page 4, line 26 and deals with concerns                                                                   
raised about the interaction of the bill with several existing                                                                  
state/federal management relationships like Migratory Waterfowl and                                                             
Pacific Black Cod.  Subsection (f) specifically exempts the                                                                     
Migratory Bird Treaty Act, the Marine Mammal Protection Act, the                                                                
Endangered Species Act, and the Magnuson Stevens Fishery Act from                                                               
the federal programs the bill affects.                                                                                          
                                                                                                                                
There was an oversight in preparing the committee substitute and                                                                
the Pacific Salmon Treaty Act and the North Pacific Halibut Act                                                                 
were unintentionally omitted.  Amendment H.1 adds them to the list.                                                             
                                                                                                                                
SENATOR TAYLOR moved to adopt the committee substitute, 3/23/99                                                                 
Utermohle, to SB 68.  There were no objections and it was so                                                                    
ordered.                                                                                                                        
                                                                                                                                
LIEUTENANT HOWARD STARBARD, Department of Public Safety, said the                                                               
committee substitute with the amendment address the Department's                                                                
concern with the inclusion of Subsection(e).                                                                                    
                                                                                                                                
Number 110                                                                                                                      
                                                                                                                                
MR. MYLES CONWAY, Assistant Attorney General, said, although he                                                                 
hadn't seen the CS, it sounded like it would take care of their                                                                 
concerns.  One point, though, is that it's difficult to determine                                                               
the scope of the term "cooperate".  There is question about if the                                                              
cooperation is confined to joint studies, enforcement programs or                                                               
whether it would implicate informal contact, etc.                                                                               
                                                                                                                                
A remaining concern the Department has is the concern over the                                                                  
perception the statute might have in ongoing and future litigation                                                              
with federal government over their scope of management authority.                                                               
Legal challenges to federal management authority will always be                                                                 
decided in the Ninth Circuit and our State has a very unfortunate                                                               
and inaccurate reputation with this court on subsistence issues.                                                                
There is concern they will look at this statute and be convinced                                                                
that we are not concerned with the health of the resource; that we                                                              
are only concerned about money issues.  With this backdrop, they                                                                
may decide some difficult issues against us.                                                                                    
                                                                                                                                
CHAIRMAN HALFORD explained that the latest draft includes an                                                                    
extensive section on findings which is specifically aimed at                                                                    
avoiding the perception problems he is concerned with.  The scope                                                               
of "cooperation" is within the discretion of the commissioner of                                                                
ADF&G, the operating agency.  He thought that answered the majority                                                             
of the perceived and potential problems.                                                                                        
                                                                                                                                
MR. CONWAY responded that as he heard the findings, they would be                                                               
of some help in court, but there is the worry they will take things                                                             
out of context.                                                                                                                 
                                                                                                                                
SENATOR TAYLOR said he shared those concerns and that is why there                                                              
are additional findings provisions clearly setting forth the                                                                    
State's policies.  Our biggest problem is that we can't get to the                                                              
Ninth Circuit unless you have someone with enough guts to stand up                                                              
and fight for this State and file a case.                                                                                       
                                                                                                                                
Number 200                                                                                                                      
                                                                                                                                
SENATOR LINCOLN said she didn't see how "discretion" was left to                                                                
the commissioner.  It says, "the commissioner shall" which doesn't                                                              
leave him much discretionary authority.                                                                                         
                                                                                                                                
CHAIRMAN HALFORD explained that on pages two and three it says                                                                  
"cooperate or not cooperate" and is followed by "unless the                                                                     
commissioner finds in writing that they have an agreement to                                                                    
reimburse for additional costs".   It basically says the State has                                                              
to receive its fair share for its cooperation.                                                                                  
                                                                                                                                
SENATOR LINCOLN reiterated that she didn't see where the discretion                                                             
is left up to the commissioner.                                                                                                 
                                                                                                                                
MR. GERON BRUCE, ADF&G, said he had a brief opportunity to look at                                                              
the CS, but they still have major problems with the bill.  The                                                                  
direction of the bill leads the Department into a situation where                                                               
they will be further fragmenting our fish and game management.  We                                                              
need to be able to work with federal managers where they have                                                                   
authorities and we don't.  He appreciated the committee's efforts                                                               
to make sure there are adequate resources provided by the federal                                                               
government to deal with some of the costs imposed on the State by                                                               
federal law.                                                                                                                    
                                                                                                                                
SENATOR LINCOLN said her questions pertain to the findings in the                                                               
CS.  Page 2 says "the fish and game resources of Alaska have                                                                    
adequate biological and reproductive capacity to provide an                                                                     
abundance of fish and game for subsistence uses as well as other                                                                
recreational, personal use, commercial...in perpetuity, provided                                                                
that the state is able to maintain its sustained yield management                                                               
of the fish and game resources."  She did not think that was a fair                                                             
statement to make.                                                                                                              
                                                                                                                                
Also, on page 1, line 9 it says, "The State has made a commitment                                                               
to provide a preference for subsistence uses of fish and game."                                                                 
She certainly didn't agree with that either.                                                                                    
                                                                                                                                
CHAIRMAN HALFORD asked if we didn't have a general state law that                                                               
provides that subsistence is the highest and best use of wild food                                                              
resources.                                                                                                                      
                                                                                                                                
SENATOR LINCOLN responded they are discussing whether the                                                                       
preference complies with federal law.  She wanted to hear Mr.                                                                   
Bruce's response.                                                                                                               
                                                                                                                                
MR. BRUCE said that it is difficult to talk about Alaska's fish and                                                             
game resources as a total because there's so much variety.  Some                                                                
species, like salmon, are extremely abundant across the state as a                                                              
whole.  That doesn't mean that there aren't places where runs are                                                               
low and need rebuilding.  The environment and conditions vary and                                                               
use patterns vary.  Some wildlife populations are smaller like the                                                              
ones close to the road systems.  He thought those factors would                                                                 
have to be considered in evaluating a finding like that.                                                                        
                                                                                                                                
SENATOR LINCOLN asked him to respond to page 2, line 20 where                                                                   
"federal agencies reap a significant cost savings through the use                                                               
of State management, expertise, data, and research..." She asked if                                                             
that was a true statement and if we also reap any benefits from the                                                             
federal government on their data and research, etc.                                                                             
                                                                                                                                
MR. BRUCE responded that estimates in an early document                                                                         
accompanying the proposed regulations for federal subsistence                                                                   
fishing said from around $11 million to around $30 million.  There                                                              
are examples of information being provided by both governments.  In                                                             
the history of fish and wildlife management in the State of Alaska,                                                             
there has been a lot of cooperation between the State and the                                                                   
federal government.  Programs have been developed to compliment one                                                             
another in many instances.                                                                                                      
                                                                                                                                
SENATOR TAYLOR moved to pass CSSB 68(RES) from committee with                                                                   
individual recommendations.  SENATOR LINCOLN objected to say that                                                               
there is no other committee of referral.  They had just heard ADF&G                                                             
say they had not had an opportunity to look at it to analyze the                                                                
impact and determine a fiscal note.  Since this is the Resources                                                                
Committee, she thought it right to hear from the Department on                                                                  
those issues.                                                                                                                   
                                                                                                                                
SENATOR TAYLOR noted that there were several large fiscal notes                                                                 
attached to the bill now and he assumed that legally it would have                                                              
to go through finance.                                                                                                          
                                                                                                                                
CHAIRMAN HALFORD asked for those in favor to raise their hands.                                                                 
SENATORS TAYLOR, PARNELL, GREEN, and HALFORD voted yes.  SENATOR                                                                
LINCOLN voted no; and the bill moved from committee.                                                                            

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