Legislature(2003 - 2004)

02/10/2003 01:35 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
                         JOINT MEETING                                                                                        
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                       February 10, 2003                                                                                        
                           1:35 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
SENATE JUDICIARY                                                                                                                
                                                                                                                                
 Senator Ralph Seekins, Chair                                                                                                   
 Senator Scott Ogan                                                                                                             
 Senator Gene Therriault                                                                                                        
 Senator Johnny Ellis                                                                                                           
 Senator Hollis French                                                                                                          
                                                                                                                                
HOUSE JUDICIARY                                                                                                                 
                                                                                                                                
 Representative Lesil McGuire, Chair                                                                                            
 Representative Tom Anderson, Vice Chair                                                                                        
 Representative John Coghill                                                                                                    
 Representative Jim Holm                                                                                                        
 Representative Ralph Samuels                                                                                                   
 Representative Les Gara                                                                                                        
 Representative Max Gruenberg                                                                                                   
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
SENATE JUDICIARY                                                                                                                
                                                                                                                                
 All members present                                                                                                            
                                                                                                                                
HOUSE JUDICIARY                                                                                                                 
                                                                                                                                
 All members present                                                                                                            
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
Confirmation Hearing: Attorney General Gregg D. Renkes                                                                          
CONFIRMATION ADVANCED                                                                                                           
                                                                                                                                
PREVIOUS ACTION                                                                                                               
                                                                                                                                
No previous action to record.                                                                                                   
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                              
Gregg D. Renkes, Attorney General designee                                                                                      
P.O. Box 110300                                                                                                                 
Juneau, AK  99801-0300                                                                                                          
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 03-3, SIDE A [SENATE JUD TAPE]                                                                                           
                                                                                                                                
CHAIR  RALPH  SEEKINS called  the  joint  meeting of  the  Senate                                                             
Judiciary  Standing Committee  and the  House Judiciary  Standing                                                               
Committee  to order  at 1:35  p.m.   Senate members  present were                                                               
Senator   Therriault,   Senator    Ogan,   Senator   French   via                                                               
teleconference and Chair Seekins.   Senator Ellis arrived at 1:36                                                               
p.m.   The  business before  the committee  was the  confirmation                                                               
hearing  for  Attorney  General  Gregg  D.  Renkes  and  a  brief                                                               
overview  of the  Department of  Law (DOL).   Without  objection,                                                               
Chair  Seekins  turned the  gavel  over  to Representative  Lesil                                                               
McGuire, Chair  House Judiciary Standing  Committee to  chair the                                                               
meeting.                                                                                                                        
                                                                                                                                
CHAIR  McGUIRE announced  the House  Judiciary Committee  members                                                               
present  were  Representative   Gruenberg,  Representative  Gara,                                                               
Representative  Anderson, Representative  Samuels, Representative                                                               
Holm and Chair  McGuire.  Representative Coghill  arrived at 2:32                                                               
p.m.   She invited Attorney  General designee Gregg D.  Renkes to                                                               
give a  brief overview of  the Department  of Law and  to provide                                                               
personal information.                                                                                                           
                                                                                                                                
ATTORNEY  GENERAL DESIGNEE  GREGG  D.  RENKES introduced  Barbara                                                               
Richie,  Chief of  Staff in  the Attorney  General's Office.   He                                                               
said he  met with  many committee members  earlier and  wanted to                                                               
meet with the remaining members as soon as possible.                                                                            
                                                                                                                                
He emphasized  one goal of the  Governor and that was  to have an                                                               
excellent  working  relationship  with   the  Legislature.    The                                                               
Department  of  Law  is  statutorily   required  to  support  the                                                               
legislature.  He  wants to  be  responsive  to the  Legislature's                                                               
needs  and gain  the  legislature's trust  that  DOL's views  are                                                               
accurate. He feels  it is important that the  legislature and DOL                                                               
work together  in the  best interest  of the state.   He  and the                                                               
Governor want  the state to  carry out  its obligations in  a way                                                               
that is  more efficient  and responsive  to the  people and  in a                                                               
frugal  manner and  to create  a stronger  economy that  provides                                                               
more opportunities for young people.                                                                                            
                                                                                                                                
ATTORNEY  GENERAL-DESIGNEE RENKES  informed committee  members he                                                               
grew  up in  Michigan and  went to  college in  upstate New  York                                                               
where he enjoyed the sciences  and focused his studies on biology                                                               
and geology.  He developed  a strong interest in the out-of-doors                                                               
and   studied  wildlife   ecology.  His   interest  in   wildlife                                                               
conservation  and  related  land-use  policies led  him  to  Yale                                                               
University where he received a  Masters of Science.  While there,                                                               
he  was exposed  to  "a heavy  dose of  western  land policy  and                                                               
Native  American affairs"  that led  him to  decide on  law as  a                                                               
career. He then  studied at the University of  Colorado School of                                                               
Law.   He studied resource  law, oil and  gas law, water  law and                                                               
Indian law  from nationally recognized  experts in  those fields.                                                               
He assisted in  writing a public land law casebook  and an Indian                                                               
law casebook and produced a mining law publication.                                                                             
                                                                                                                                
His interest in land resources and  Indian law led him to Alaska.                                                               
He  worked in  Anchorage during  law school  and wrote  a lengthy                                                               
final year  paper on  subsistence and Title  8 of  ANILCA (Alaska                                                               
National Interest  Lands Conservation Act).   He moved  to Alaska                                                               
in 1986  to take  the Alaska  bar examination and  work as  a law                                                               
clerk for the  Alaska Superior Court in Palmer.   At the court in                                                               
Palmer,  he was  sworn  in  as a  magistrate  to conduct  trials,                                                               
hearings and arraignments.                                                                                                      
                                                                                                                                
He maintained  his interest in  Alaska Native affairs  by writing                                                               
weekly  articles  on legal  issues  affecting  people in  village                                                               
Alaska for  the Tundra Times.   He  was drawn to  Washington D.C.                                                               
where Senator  Murkowski hired him to  help with his work  on the                                                               
Indian  Affairs  Committee  in  the  Senate  Energy  and  Natural                                                               
Resources Committee.   He  thought he would  be there  two years,                                                               
but  stayed longer  and  worked  on the  1991  amendments to  the                                                               
Alaska Native  Claims Settlement  Act (ANCSA) and  became Senator                                                               
Murkowski's  legal counsel.   His  return to  Alaska was  delayed                                                               
when he  became chief of staff  and staff director of  the Senate                                                               
Energy  and   Natural  Resources   Committee.  He   ran  Governor                                                               
Murkowski's  Senate reelection  campaigns  in 1992  and 1998.  He                                                               
told members:                                                                                                                   
                                                                                                                                
     During my many years in  the Senate working for Alaska,                                                                    
     I  had  the opportunity  to  work  on issues  and  with                                                                    
     people from  virtually every  area of  our state.   You                                                                    
     know,  I've  witnessed  the   work  of  family  alcohol                                                                    
     treatment in  St. Mary's, listened to  the concerns and                                                                    
     fears  of  people in  Pt.  Hope  when they  learned  of                                                                    
     nuclear experiments in their  back yard. I participated                                                                    
     in economic summits in Kotzebue  and Barrow and with my                                                                    
     wife,  visited   the  health  clinics  in   Norvik  and                                                                    
     Anapuchuk (ph).  Traveled to  Bethel with the Assistant                                                                    
     Secretary  for Indian  Affairs to  finally got  the old                                                                    
     BIA  facility  in  the hands  of  the  Yukon  Kuskokwim                                                                    
     Health  Corporation and  I've been  to Bethel  on other                                                                    
     occasions to  listen to children tell  their stories of                                                                    
     inhalant abuse.   I've  fought battles  over wilderness                                                                    
     in the Tongass and cruise  ships and fishing in Glacier                                                                    
     Bay.   I've  visited  nearly every  small community  in                                                                    
     Southeast  Alaska.    I've worked  with  the  community                                                                    
     leaders in Ketchikan and Sitka  as they coped with mill                                                                    
     closures  and  I  spent  time in  Adak  with  the  base                                                                    
     closure  and  land  transfer.     I've  held  community                                                                    
     meetings  at the  coffee shops  in McCarthy,  Northway,                                                                    
     Wasilla  and  Pelican,  not  to  mention  those  policy                                                                    
     discussions that  lasted late  and moved into  the bars                                                                    
     at the  Stikine Inn  and the  Talkeetna Road  House. On                                                                    
     more  than  one  occasion,   I  introduced  members  of                                                                    
     Congress to the people of Kaktovik.                                                                                        
                                                                                                                                
     I could go  on and on, because it lasted  16 years, but                                                                    
     I won't.   The point  is that I've dedicated  my entire                                                                    
     professional career  to working  for and  with Alaskans                                                                    
     from  all over  Alaska and  I believe  this gives  me a                                                                    
     very good  perspective to  bring to  the office  of the                                                                    
     Attorney General.                                                                                                          
                                                                                                                                
ATTORNEY  GENERAL-DESIGNEE  RENKES  said the  Department  of  Law                                                               
carries out widely varied and  important functions to protect and                                                               
further the  interests of the state  and its citizens.   It has a                                                               
highly professional and skilled staff. He explained:                                                                            
                                                                                                                                
     By  law,  the  attorney  general serves  as  the  legal                                                                    
     advisor  to the  governor and  to other  state officers                                                                    
     and   agencies.     We  represent   the  14   principal                                                                    
     departments  of the  state government  and in  addition                                                                    
     such  agencies as  the  Permanent  Fund, AIDEA  [Alaska                                                                    
     Industrial Development  and Export  Authority], the RCA                                                                    
     [Regulatory Commission of Alaska]  and the AHFC [Alaska                                                                    
     Housing Finance Corporation].  We  are also called upon                                                                    
     to represent  the judicial and legislative  branches of                                                                    
     government.  In  addition  to the  duties  set  out  in                                                                    
     statute,  the attorney  general has  those powers  that                                                                    
     existed in a  common law.  I think  this is interesting                                                                    
     and  important.    Our  state  supreme  court  recently                                                                    
     described  this  authority  as follows:  'Under  common                                                                    
     law, the  attorney general has  the power to  bring any                                                                    
     action which he thinks  necessary to protect the public                                                                    
     interest' -  a broad grant of  authority which includes                                                                    
     the power to enforce Alaska statutes.                                                                                      
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE  RENKES asked  members to think  of the                                                               
variety  of operations  the state  undertakes.  Virtually all  of                                                               
those undertakings require legal  services from the Department of                                                               
Law.   He  noted   that  DOL   handles  everything   from  felony                                                               
prosecutions to  collection of  restitution payments  for victims                                                               
of  crime,  "from  the  review  and analysis  of  each  piece  of                                                               
legislation introduced in this body  to taking action against the                                                               
federal government  to protect and  enhance the  state's rights."                                                               
He informed members:                                                                                                            
                                                                                                                                
     Some case  numbers and statistics  from 2002  will give                                                                    
     you a  sense of  the volume of  work the  Department of                                                                    
     Law  does.   In  2002,  the  criminal division  handled                                                                    
     approximately  6,000 new  felony cases  and 21,000  new                                                                    
     misdemeanor  cases.  The  number  of  new  felony  case                                                                    
     referrals has increased steadily  over the last decade.                                                                    
     In  1993,  for example,  there  were  3,800 new  felony                                                                    
     cases referred. That's an increase  of 55 percent.  The                                                                    
     only good news  in these figures is that  the number of                                                                    
     felony sex crimes has not gone  up, but the bad news is                                                                    
     that felony  drug cases have increased,  felony assault                                                                    
     has  tripled and  we're  now  identifying felony  drunk                                                                    
     drivers.  Our streets  are simply  more dangerous  than                                                                    
     they used to be.                                                                                                           
                                                                                                                                
     The  number  of  new  misdemeanor  case  referrals  had                                                                    
     stayed  steady  for several  years,  but  this year  it                                                                    
     jumped  a full  10  percent solely  because of  renewed                                                                    
     interest in  minor consuming cases. With  the exception                                                                    
     of   minor  consuming,   the   numbers  have   remained                                                                    
     relatively  stable, but  it is  the seriousness  of the                                                                    
     misdemeanor  cases  that  has  changed.  In  the  past,                                                                    
     domestic violence was hushed  up and overlooked.  We've                                                                    
     come a  long way  in a short  period of  time, however.                                                                    
     In  the  past,  the typical  misdemeanor  assault  case                                                                    
     presented to  the D.A.'s  office was a  drunk in  a bar                                                                    
     getting into a fight. Now  two out of three misdemeanor                                                                    
     assaults  is  a   domestic  violence  assault.  Despite                                                                    
     increased  penalties  and  certainly  as  a  result  of                                                                    
     increased   police   enforcement,   misdemeanor   drunk                                                                    
     driving   continues   unabated.   This  is   where   we                                                                    
     concentrate our effort in  misdemeanor cases - domestic                                                                    
     violence and drunk driving.                                                                                                
                                                                                                                                
     Note that up  to now, I have used the  term "new felony                                                                    
     and  misdemeanor cases."   This  is to  distinguish old                                                                    
     cases  that  might  be handled  again  and  again.  The                                                                    
     courts have become sensitive to  the plight of crowding                                                                    
     in the  Department of Corrections facilities  and often                                                                    
     substitute  supervised  probation  for  a  longer  jail                                                                    
     sentence.  The legislature  has  responded by  allowing                                                                    
     the  courts to  impose longer  periods of  supervision,                                                                    
     but  this means  that more  and more  offenders are  on                                                                    
     probation,  thus more  and more  proceedings to  revoke                                                                    
     probation  and  impose   the  suspended  sentence.  The                                                                    
     number  of these  old felonies  has increased  steadily                                                                    
     and  we now  handle  2,000 additional  cases of  felony                                                                    
     probation  revocation. There  are also  a few  thousand                                                                    
     misdemeanor   probation  revocation   proceedings,  but                                                                    
     those  are typically  perfunctory  hearings. The  grand                                                                    
     total  is over  30,000  cases handled  by the  criminal                                                                    
     division each year - a heavy, heavy load of work...                                                                        
                                                                                                                                
ATTORNEY  GENERAL-DESIGNEE  RENKES  said  he  met  with  all  the                                                               
district  attorneys to  begin to  better understand  their needs,                                                               
workloads and  concerns. Criminal  justice and public  safety are                                                               
high priorities for both he and Governor Murkowski. He stated:                                                                  
                                                                                                                                
     I will be  looking for ways to  strengthen our criminal                                                                    
     prosecution  efforts in  both  urban  and rural  Alaska                                                                    
     through such means as changes  to state laws, increased                                                                    
     cooperation  with the  United States  Attorney's Office                                                                    
     and   seeking   available   federal   funds   for   law                                                                    
     enforcement.                                                                                                               
                                                                                                                                
He  was in  Philadelphia the  previous week  at the  Project Safe                                                               
Neighborhoods  Conference  held  by the  Justice  Department.  He                                                               
learned that  federal money is available  in the form of  over 20                                                               
grant programs  but the  grants being awarded  in Alaska  are not                                                               
coordinated    with    Alaska's   criminal    justice    program.                                                               
Coordinating these grants is a  priority to ensure funds are used                                                               
for the  highest purpose. One person  at DOL will be  assigned to                                                               
coordinate those funds.                                                                                                         
                                                                                                                                
ATTORNEY   GENERAL-DESIGNEE   RENKES   met   with   the   section                                                               
supervisors of  the Civil  Division in  Anchorage and  Juneau and                                                               
intends to  meet with  the supervisors in  Fairbanks.   The Civil                                                               
Division has  11 sections  that focus on  different areas  of the                                                               
law:   natural   resources,   human   services,   transportation,                                                               
collections   and    support,   legislation    and   regulations,                                                               
commercial, environmental, fair  business practices, governmental                                                               
affairs,  oil,  gas  and  mining, and  special  litigation.    He                                                               
explained:                                                                                                                      
                                                                                                                                
     In  2002, the  Civil Division  collected just  over $71                                                                    
     million in  disputed oil and  gas taxes and  nearly $23                                                                    
     million  in  disputed  royalties. We  collected  nearly                                                                    
     $3.6 million  in civil and criminal  judgments owed the                                                                    
     state.  We  opened  505   new  child  protection  cases                                                                    
     representing  858  Alaskan  children and  we  completed                                                                    
     1,420 child support enforcement cases.                                                                                     
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE  RENKES said  he is working  with Civil                                                               
Deputy Scott Nordstrand  to get to know all the  sections and the                                                               
staff, what they  are doing, what the caseloads  are like, what's                                                               
working well and  what could or should be changed  to improve how                                                               
the state  provides legal services.   This is to insure  that the                                                               
legal demands of the state  are met and the Governor's priorities                                                               
are receiving the attention and resources needed.                                                                               
                                                                                                                                
He explained  the Conference of  Western Attorneys  General would                                                               
undertake a performance  review of the department  the first week                                                               
of  March.   Their report  and the  Governor's transition  report                                                               
will provide  fresh recommendations  and ideas  on how  to better                                                               
focus  the department's  resources on  the Governor's  priorities                                                               
and improve accountability. He continued:                                                                                       
                                                                                                                                
     So what  are our priorities  of the Department  of Law?                                                                    
     I will  focus the department  on making Alaska  a safer                                                                    
     and better  place to live  and work, insuring  that the                                                                    
     state fully  asserts and  protects its  sovereignty and                                                                    
     making sure that the state  receives full value for its                                                                    
     oil and gas  resources.  I believe  that the Department                                                                    
     of  Law plays  a key  role in  achieving each  of these                                                                    
     goals.   I've already  discussed my strong  interest in                                                                    
     criminal justice  and my plans  for a  renewed emphasis                                                                    
     on  our criminal  prosecution efforts.  In addition,  I                                                                    
     believe   that   the   Department  of   Law   will   be                                                                    
     instrumental   in   the  implementation   of   Governor                                                                    
     Murkowski's  programs  for   economic  development  and                                                                    
     responsible resource development.  These are priorities                                                                    
     for  the Governor  and they  are priorities  for me  as                                                                    
     well.                                                                                                                      
                                                                                                                                
ATTORNEY  GENERAL-DESIGNEE  RENKES   explained  DOL  advises  the                                                               
resource agencies  daily on legal  issues relating  to permitting                                                               
decisions.  They  work closely with agencies to  make sure Alaska                                                               
laws  are followed  to minimize  legal challenges.  If there  are                                                               
challenges,  DOL will  defend the  Attorney General's  actions as                                                               
expeditiously  as possible.   Oil,  gas and  mining issues  are a                                                               
high  priority:   developing  Alaska's   oil,  gas   and  mineral                                                               
resources  and  insuring  the  state  receives  taxes  owed,  its                                                               
correct share of royalties  and monitoring appropriate protesting                                                               
tariffs  charged for  transportation  of oil  and gas  production                                                               
through pipelines.  DOL provides  legal advice and representation                                                               
in all these critical areas.                                                                                                    
                                                                                                                                
In  FY  2003, over  $23  million  was collected  through  actions                                                               
pursued by DOL.  He offered  to provide a briefing on pending and                                                               
future matters upon request in an executive session.                                                                            
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE RENKES added:                                                                                         
                                                                                                                                
     State sovereignty  and statehood defense is  also a top                                                                    
     priority.  I believe  that resolving  the state/federal                                                                    
     disputes  and  clearly   establishing,  protecting  and                                                                    
     defending the State of Alaska's  rights with respect to                                                                    
     our lands,  water and resources including  title to our                                                                    
     navigable  water, access  rights, salmon  resources and                                                                    
     timber  resources  will  have a  profound  and  lasting                                                                    
     impact   on   the   management  of   Alaska's   natural                                                                    
     resources.  Here I think  it is important to reflect on                                                                    
     some of the activities under way.                                                                                          
                                                                                                                                
     The  Southeast Alaska  Tidelands  case -  we call  this                                                                    
     original  number  128.  Last  week we  argued  this  in                                                                    
     Washington  D.C., our  oral argument.  The State  filed                                                                    
     this action  against the United  States in  November of                                                                    
     1999  to quiet  title  in the  lands underlying  marine                                                                    
     waters in Southeast Alaska.   The state claims title to                                                                    
     the  lands   underlying  all   marine  waters   in  the                                                                    
     Alexander  Archipelago   including  those   within  the                                                                    
     boundaries of  the Tongass National Forest  and Glacier                                                                    
     Bay  National  Park.  Because   the  case  addresses  a                                                                    
     boundary dispute, it's filed  originally in the Supreme                                                                    
     Court.  The  parties  had  filed  motions  for  summary                                                                    
     judgments on all  four counts of the  complaint and the                                                                    
     oral argument was held, as I said, last week.                                                                              
                                                                                                                                
     In  response   to  the   Tongass  count,   the  federal                                                                    
     government  has   conceded  the  title  to   the  lands                                                                    
     underlying the  Tongass National Forest.   The parties'                                                                    
     special  master  will  provide a  recommended  decision                                                                    
     with the court in the  next term beginning September of                                                                    
     next year.  Once the  special master's report is filed,                                                                    
     we'll read  it, obviously,  and then provide  briefs on                                                                    
     exceptions that  we take to  that.  Then there  will be                                                                    
     an oral argument in the  Supreme Court and we hopefully                                                                    
     can get a  decision on this case in  the following term                                                                    
     in 2005  of the Supreme  Court.   It seems like  a long                                                                    
     time,  1999 to  2005,  but you'll  recall Dinkum  Sands                                                                    
     [United  States v.  Alaska, No.  84  Original] took  19                                                                    
     years.  So we'll do better than that I hope.                                                                               
                                                                                                                                
     Roadless lawsuit,  this is another  one that  I've been                                                                    
     working on.  The state filed suit  challenging the U.S.                                                                    
     Forest Service's  decision to  apply the  roadless rule                                                                    
     to the Tongass  and the Chugach National  Forests.  The                                                                    
     rule  prohibits road  construction, reconstruction  and                                                                    
     timber harvest  except for stewardship purposes  in all                                                                    
     inventoried roadless  areas. The  suit argues  that the                                                                    
     roadless  rule   violates  numerous   federal  statutes                                                                    
     requiring a  public planning process  and consideration                                                                    
     of   local  conditions   concerns   and  impacts   and,                                                                    
     importantly, is  a violation of  the 'No  More' clauses                                                                    
     of ANILCA.  The rule remains  enjoined nationwide while                                                                    
     the matter is before the  9th Circuit.  Should the rule                                                                    
     take  effect,  the  State  will  consider  its  options                                                                    
     including  the possibility  of asking  the court  for a                                                                    
     preliminary injunction in  Alaska.  And I  met with the                                                                    
     Justice Department  last week to discuss  the status of                                                                    
     the case.                                                                                                                  
                                                                                                                                
     Recordable disclaimers  from navigable waters,  this is                                                                    
     an  important  area.  The Department  of  the  Interior                                                                    
     recently   amended  its   regulations  for   recordable                                                                    
     disclaimers of  interest. What a  recordable disclaimer                                                                    
     is  is a  regulation that  allows the  state to  assert                                                                    
     title.   The  federal   government  can   consider  the                                                                    
     assertion and  on the facts  disclaim its  interest and                                                                    
     provide a  disclaimer that then  can be  recordable and                                                                    
     bring some  finality to these  title issues  that we've                                                                    
     had  difficulty   moving  through  the  courts.     The                                                                    
     regulations are  authorized by  the FLMPA,  the Federal                                                                    
     Land  Management Policy  Act, and  provide this  simple                                                                    
     process.  The  BLM will in the  first instance evaluate                                                                    
     these  applications  and  file the  disclaimers  should                                                                    
     they  believe that  the applicant  meets the  criteria.                                                                    
     If   not,  then   we  can   pursue  litigation.   These                                                                    
     regulations  became final  last Wednesday  and on  that                                                                    
     day,  purposely, I  met with  the  Deputy Secretary  of                                                                    
     Interior, Steve  Griles, in Washington D.C.  to discuss                                                                    
     how Alaska will proceed under these regulations.                                                                           
                                                                                                                                
     I'll waste  no time  in using whatever  means available                                                                    
     to  establish   state  title  in   its  rights-of-ways,                                                                    
     submerged lands  and navigable waters.   We can clearly                                                                    
     use this new  regulation to remove the  clouds on lands                                                                    
     underlying  navigable waters  in Alaska.  At statehood,                                                                    
     Alaska  took   title  to  lands   underlying  navigable                                                                    
     waters.   Under   the  constitutional   Equal   Footing                                                                    
     Doctrine, the  state holds the  lands in trust  for the                                                                    
     public  to use  for navigation,  commerce and  fishing.                                                                    
     Clouds remain  on the  state's title  to much  of these                                                                    
     submerged   lands.   However,   because   the   federal                                                                    
     government   has   not    been   willing   to   concede                                                                    
     navigability   in    any   permanent    matter,   these                                                                    
     regulations will change  that. Obviously, litigation is                                                                    
     time consuming. Importantly,  we're already prepared to                                                                    
     file our first application  under these new regulations                                                                    
     for  the  Black  River in  Northeastern  Alaska.  We've                                                                    
     chosen this  one because it  provides the  best factual                                                                    
     case for the  first application.  The  state intends to                                                                    
     follow  with other  applications beginning  with waters                                                                    
     the BLM has already found to be navigable.                                                                                 
                                                                                                                                
     A  word  on a  related  issue  -  RS 2477's  -  another                                                                    
     priority.  We'll  be  reviewing inventory  of  RS  2477                                                                    
     rights-of-way  and examining  all appropriate  means to                                                                    
     increase access  for Alaskans. In two  recently settled                                                                    
     RS  2477  cases, Harrison  Creek  and  the Jualin  Mine                                                                    
     Road, we're  awaiting final  survey of  the established                                                                    
     rights-of-way. I will work  closely with the Department                                                                    
     of Interior  as they review their  existing regulations                                                                    
     adopted  by Secretary  Babbit to  frustrate Alaska  and                                                                    
     Utah for asserting  their claims and I  will press them                                                                    
     for  new  regulations or  guidelines  that  allow us  a                                                                    
     speedy  process  to  finally  establish  title  to  our                                                                    
     access routes.   It may be that we are  able to use the                                                                    
     recordable  disclaimer process  for RS  2477 rights-of-                                                                    
     way, however  the Babbit regulations  stand in  the way                                                                    
     of   that,  the   definitions   of  construction,   the                                                                    
     definitions of  highway, which basically if  it's not a                                                                    
     paved road  you're not going to  get title to it  as an                                                                    
     RS  2477  under  current regulations.  At  our  urging,                                                                    
     Deputy  Secretary  Griles   and  Secretary  Norton  are                                                                    
     taking  a   hard  look  at  this   and  evaluating  the                                                                    
     possibility  of  new  national   guidance  on  RS  2477                                                                    
     rights-of-way that  should give  us a  workable process                                                                    
     to achieve title.                                                                                                          
                                                                                                                                
2:02 p.m.                                                                                                                     
                                                                                                                                
     Endangered  Species  Act,  there are  some  interesting                                                                    
     things  going  on  that  we're  involved  in  with  the                                                                    
     Endangered  Species Act.   The  Alaska  Center for  the                                                                    
     Environment v. State [(6/13/97),  940 P2d 916], in that                                                                    
     case we're defending in the  Alaska Supreme Court, Fish                                                                    
     and Game's  decision not to  add the Cook  Inlet Beluga                                                                    
     whales to the  Alaska list of endangered  species.  The                                                                    
     population appears healthy and  is expected to increase                                                                    
     and  the  Cook Inlet  population  is  not a  recognized                                                                    
     subspecies.                                                                                                                
                                                                                                                                
     The  state  is reviewing  its  options  to protect  its                                                                    
     interests  in  Greenpeace  versus the  National  Marine                                                                    
     Fisheries  Service [No.C98-492Z].   This  is a  lawsuit                                                                    
     filed in  Washington State challenging the  legality of                                                                    
     federal  groundfish  fisheries  in  Alaska  under  NEPA                                                                    
     [National  Environmental Policy  Act  of 1969] and  the                                                                    
     Endangered Species Act in an  effort to protect Stellar                                                                    
     sea  lions.  The  state  formally  participated  as  an                                                                    
     amicus  [curiae] in  the 9th  Circuit and  I will  very                                                                    
     soon  increase our  involvement by  filing a  motion to                                                                    
     intervene in  this case.   We  are concerned  about the                                                                    
     impacts the  suit may have  on the state's  economy and                                                                    
     the state  fisheries and it  is my view that  the state                                                                    
     must be  at the  table in this  litigation and  part of                                                                    
     any resolution that flows from it.                                                                                         
                                                                                                                                
     Our attorneys also regularly  participate in review and                                                                    
     preparation  of comments  on  proposals that  designate                                                                    
     critical habitat  under the Endangered Species  Act and                                                                    
     a  variety of  other issues  related to  hatchery fish,                                                                    
     sea  otters and  groundfish.  In  addition, we  monitor                                                                    
     federal  actions  relating  to  management  of  federal                                                                    
     fisheries,  federal  preemption,  groundfish  and  crab                                                                    
     issues.                                                                                                                    
                                                                                                                                
     Related  to  that is  the  Pacific  Salmon Treaty.  Two                                                                    
     cases  filed in  Washington State,  Confederated Tribes                                                                    
     and  Bands   of  the   Yakima  Indian   Nations  versus                                                                    
     Baldridge [U.S.  9th Circuit Court  of Appeals  No. 95-                                                                    
     35901]  and  the   U.S.  versus  Washington  [C70-9213]                                                                    
     challenged  the  allocation  of and  treaty  rights  to                                                                    
     salmon resources  in Alaska  waters as  well as  in the                                                                    
     Pacific  Northwest.  We are  a  party  to these  cases.                                                                    
     While the  cases are currently  stayed based  on recent                                                                    
     agreements in  the Pacific  Salmon Treaty,  we continue                                                                    
     to review  biological opinions  and recovery  plans for                                                                    
     the  West  Coast  salmon  populations  and  assess  the                                                                    
     actions [of]  the United States,  the tribes  and other                                                                    
     states and Canada.                                                                                                         
                                                                                                                                
     Subsistence,  we   regularly  review  and   comment  on                                                                    
     proposals   before  the   federal  Subsistence   Board,                                                                    
     testifying   at  board   meetings   and  requesting   a                                                                    
     reconsideration of  decisions we believe are  in error.                                                                    
     We are  also defending litigation manning  the state in                                                                    
     which the  state subsistence law  is challenged  on the                                                                    
     ground   that  the   scoring  process   for  tier   two                                                                    
     applications   unconstitutionally    takes   place   of                                                                    
     residence into account.                                                                                                    
                                                                                                                                
     Statehood  Act  Entitlement,  both the  litigation  and                                                                    
     through  negotiation  and  review of  proposed  federal                                                                    
     actions -  we work  to insure  that the  state receives                                                                    
     the land  to which it  is entitled under  the Statehood                                                                    
     Compact. In  addition to our  efforts to  protect state                                                                    
     title to  navigable waters,  this work  includes review                                                                    
     of BLM  decisions to convey  land to others as  well as                                                                    
     ensuring   that  our   land  selections   are  properly                                                                    
     considered, surveyed and conveyed.                                                                                         
                                                                                                                                
     Related  to   that  we  also  took   up  in  Washington                                                                    
     recently, the  wilderness reviews and  wilderness study                                                                    
     reviews that are  underway as part of the  BLM and Fish                                                                    
     and Wildlife Service planning  process.  The Department                                                                    
     of  Interior -  we formally  asked the  department, the                                                                    
     Secretary of  Interior, to  look again  to the  No More                                                                    
     clauses of ANILCA and what  we believe is a prohibition                                                                    
     on further federal wilderness study and review.                                                                            
                                                                                                                                
ATTORNEY  GENERAL-DESIGNEE RENKES  pointed  out  that because  of                                                               
Alaska's unique  circumstances, the congressional  delegation and                                                               
the  Washington  D.C.  Office  of the  Governor  often  need  the                                                               
support of the Department of Law  to review, analyze and flag for                                                               
action  things  being  proposed in  Congress.  It  is  frequently                                                               
necessary to  remind Congress of  the particular  protections and                                                               
exemptions in  ANILCA, like  the No More  clauses as  they affect                                                               
federal action.  He pointed out:                                                                                                
                                                                                                                                
     In  this regard,  one thing  I  want to  bring to  your                                                                    
     attention   I    think   is   significant,    the   EPA                                                                    
     [Environmental  Protection Agency]  and the  Army Corps                                                                    
     of Engineers are soliciting comments,  I believe due by                                                                    
     the first part  of March, as they  review and establish                                                                    
     new  definitions for  waters  of the  United States.  A                                                                    
     2001 Supreme  Court decision known  as the  SWANCC case                                                                    
     [Solid  Waste Agency  of Northern  Cook County  v. U.S.                                                                    
     Army Corps  of Engineers, No. 99-1178]  determined that                                                                    
     isolated waters  including wetlands are not  subject to                                                                    
     federal  jurisdiction.  The  regulations that  will  be                                                                    
     adopted   to  reflect   new  definitions   of  wetlands                                                                    
     consistent    with    the   SWANCC    decision    could                                                                    
     fundamentally change  the way much of  our wetlands are                                                                    
     regulated in Alaska.                                                                                                       
                                                                                                                                
     Another priority  for our state,  for us, is  our state                                                                    
     tribal  relations.  I   believe  clarification  of  the                                                                    
     authority of  the Alaska Native entities  under the law                                                                    
     will  be critical  as  we move  forward  to bridge  the                                                                    
     urban/rural  divide and  empower  people  at the  local                                                                    
     level.  This is  a complex  area  of the  law, which  I                                                                    
     intend to  devote time and  attention [to]  as attorney                                                                    
     general.                                                                                                                   
                                                                                                                                
     Clearly  many challenges  lie ahead  for  the State  of                                                                    
     Alaska. The Department of Law  is likely to be right in                                                                    
     the middle of many of  them, advising and assisting the                                                                    
     state in determining  the best course of  action. I see                                                                    
     the Department of  Law, really, as an  engine of change                                                                    
     and I intend  for the department to  be instrumental in                                                                    
     carrying  out the  Governor's vision  for Alaska.  With                                                                    
     that, I  hope this wasn't  too long, thank you  and I'd                                                                    
     be happy to answer questions.                                                                                              
                                                                                                                                
CHAIR McGUIRE  thanked Attorney  General-designee Renkes  for his                                                               
time and the thorough overview.                                                                                                 
                                                                                                                                
SENATOR  OGAN   thanked  Attorney  General-designee   Renkes  and                                                               
appreciated his  experience with  the federal  government because                                                               
the state  has been  "wrapped around the  axle" with  the federal                                                               
government for a  number of years over various  issues. He asked,                                                               
"The  recordable disclaimer  issue  is one  that  interests me  a                                                               
great deal.   You said it  would 'remove clouds to  our navigable                                                               
waters  issues.' Is  one of  the  'clouds' that  you are  talking                                                               
about the Reserved Water Rights Doctrine?"                                                                                      
                                                                                                                                
ATTORNEY  GENERAL-DESIGNEE   RENKES  said  the  'cloud'   is  the                                                               
assertion  of  federal title.  The  federal  government has  been                                                               
reluctant  to permanently  waive  title to  our submerged  lands.                                                               
Without  a specific  issue in  conflict, it  is difficult  to get                                                               
into  court to  establish finality  in  a quiet  title action  on                                                               
specific  navigable waters  cases. This  regulatory process  will                                                               
provide a  way to get to  finality so as to  receive a disclaimer                                                               
of interest that is recordable.                                                                                                 
                                                                                                                                
SENATOR OGAN  said in the  1953 Submerged  Land Act the  title to                                                               
submerged land  came with the  right to manage all  the resources                                                               
including the fisheries.  The  9th Circuit Court has decided that                                                               
because water originated on federal  land, the federal government                                                               
has  the right  to control  subsistence  fishing all  the way  to                                                               
saltwater and probably beyond. In  the Dinkum Sands case, Justice                                                               
Sandra  Day   O'Connor  said,  "If  those   disputed  lands  were                                                               
submerged lands, which  the state owns and with  it including the                                                               
right  to control  fishing, they  would have  ruled a  little bit                                                               
differently on  Dinkum Sands." He  supported the DOL  priority to                                                               
assert state  sovereignty. One of the  most fundamental sovereign                                                               
rights is to  manage all state fisheries  including the submerged                                                               
lands  fisheries. He  asked  what DOL  was going  to  do in  that                                                               
regard and  would that  also fit  under the  No More  clause. The                                                               
federal government was not to take  any more land with ANILCA yet                                                               
they have taken  away the management on submerged  lands with the                                                               
Reserved Water Rights Doctrine.                                                                                                 
                                                                                                                                
ATTORNEY  GENERAL-DESIGNEE  RENKES  said the  9th  Circuit  Court                                                               
pressed this expansive view of  federal reserved water rights and                                                               
12  to 14  states are  prepared to  file an  amicus brief  on the                                                               
appeal.  Alaska is still  litigating attorney's fees in the Katie                                                               
John  Case [State  of Alaska  v. Babbitt,  No. 94-35480]  and the                                                               
state may owe about $1 million  in attorney's fees as a result of                                                               
dropping the  appeal.  To  get the Federal Reserved  Water Rights                                                               
Doctrine before  the U.S. Supreme  Court, a related  fact pattern                                                               
will have  to arise in  Alaska or another circuit  court allowing                                                               
another lawsuit on a slightly different angle.                                                                                  
                                                                                                                                
He  felt Alaska's  most expedient  remedy is  to go  to the  U.S.                                                               
Congress  to clearly  define the  extent of  the Federal  Reserve                                                               
Waters Rights  Doctrine created by  the 9th Circuit Court  in the                                                               
Katie  John case.  The Reserve  Water Rights  is a  controversial                                                               
issue and very difficult legislation  to move though Congress but                                                               
with Republican  majorities in  the U.S. House  and Senate  and a                                                               
Republican  in  the White  House  it  is  a legitimate  area  for                                                               
review.  Some western  Senators, like  Senator Craig  from Idaho,                                                               
have been  champions in  working to  restrict the  application of                                                               
federal reserve water rights in the  West.  The 15 members of the                                                               
Conference  of  Western  Attorneys   General  are  to  meet  with                                                               
Secretary Norton in Washington D.C.  in March and federal reserve                                                               
water rights  will be one of  the issues raised at  that meeting.                                                               
Education and  advancing the state's interest  in Washington D.C.                                                               
will  be the  way to  address the  9th Circuit  Court's decision,                                                               
probably not through the courts.                                                                                                
                                                                                                                                
SENATOR  THERRIAULT asked  Attorney  General-designee Renkes  his                                                               
opinion  on where  the  state  stands with  regard  to state  and                                                               
tribal relations and the "legal  underpinnings" of the Millennium                                                               
Plan signed by the previous administration.                                                                                     
                                                                                                                                
2:15 p.m.                                                                                                                     
                                                                                                                                
ATTORNEY  GENERAL-DESIGNEE   RENKES  said  as  he   read  it  the                                                               
Millennium Agreement  only applies  to the  extent that  there is                                                               
law to  support it. About  80 tribes  have signed to  be parties.                                                               
It  creates  a great  amount  of  confusion with  state  agencies                                                               
because agencies  are told to cooperate  with these organizations                                                               
on   a  government-to-government   basis  and   the  tribes   get                                                               
consulting  agency  status  in  permitting  decisions.  With  223                                                               
organizations  theoretically qualifying,  it can  cause a  lot of                                                               
problems in  the way  things are  done in  Alaska. He  planned to                                                               
review  the creation  history of  the  Millennium Agreement,  the                                                               
dialogue that  went into forming  it, and look at  the objectives                                                               
that were meant.  He stated:                                                                                                    
                                                                                                                                
     I  think   the  objectives   were  good,  I   mean  the                                                                    
     objectives  were -  we need  to have  a better  working                                                                    
     relationship with the groups in  rural Alaska.  We need                                                                    
     to  enhance our  way  we work  together  as opposed  to                                                                    
     against  each other  and empower  people  at the  local                                                                    
     level  to  take  responsibility and  control  of  their                                                                    
     lives and circumstances.   I think those  are very good                                                                    
     objectives, but  I'm not sure  just calling  everyone a                                                                    
     tribe  and  saying  that they're  on  a  government-to-                                                                    
     government  relationship  with the  state  accomplishes                                                                    
     those objectives.  I think  that often when we focus on                                                                    
     legal victories,  or you know  what we  call something,                                                                    
     we lose  in the  translation the  rights of  the people                                                                    
     who live  there.  And  so I'm very concerned  about how                                                                    
     the law and,  I'll say, the legal fiction  in this area                                                                    
     has developed in Alaska and  what impact it's having on                                                                    
     people,  on  children, the  people  who  live in  rural                                                                    
     Alaska  and  the rights  that  they  believe they  have                                                                    
     under the  state constitution.   So I think  this whole                                                                    
     area needs to be looked at.                                                                                                
                                                                                                                                
     I really  think that what we  have in Alaska is  a full                                                                    
     spectrum  of  organizations  and  tribal  organizations                                                                    
     with many different capabilities  and to treat them all                                                                    
     the same  or to  say they are  all on  a government-to-                                                                    
     government basis with the state is troubling I think.                                                                      
                                                                                                                                
ATTORNEY  GENERAL-DESIGNEE  RENKES  explained that  Congress  has                                                               
plenary  authority  to recognize  tribes  and  that authority  is                                                               
delegated   to  the   Secretary  of   Interior  in   the  federal                                                               
acknowledgement  process.   Under  the   Clinton  Administration,                                                               
Assistant  Secretary of  Indian  Affairs, Ada  Deer, published  a                                                               
list  that included  every  Alaska village  and  called them  all                                                               
Indian  tribes with  government-to-government status.   She  took                                                               
every Alaska Village Corporation off  the list and this was wrong                                                               
because  those corporations  do  qualify to  provide benefits  to                                                               
their shareholders because their status is Native American.                                                                     
                                                                                                                                
In 1994, Congress  passed the Federal Indian Tribe  List Act that                                                               
purported to  ratify the action  taken by Assistant  Secretary of                                                               
Indian  Affairs,  Ada  Deer.   Attorney  General-designee  Renkes                                                               
said, in  his opinion that  statute fails  to meet the  burden of                                                               
clearly  employing  Congress's   plenary  authority  over  Indian                                                               
Affairs in  recognizing those  tribes. This  was an  assertion of                                                               
authority that  did not exist  in the executive branch  and needs                                                               
careful  examination.  He  added,  "I think  the  spirit  of  the                                                               
Millennium Agreement is good and I  think we have to find ways to                                                               
empower people."                                                                                                                
                                                                                                                                
TAPE 03-3, SIDE B [SENATE JUD TAPE]                                                                                           
2:21 p.m.                                                                                                                     
                                                                                                                                
ATTORNEY  GENERAL-DESIGNEE  RENKES  said  there  needs  to  be  a                                                               
positive  working relationship  between rural  and urban  Alaska.                                                               
It  is  a tall  order  to  have  the  Millennium Agreement  be  a                                                               
positive exercise  that improves  the quality of  people's lives,                                                               
makes sure  rights are  protected and  protects children  who are                                                               
often pawns  in jurisdictional fights.   He  said the issue  is a                                                               
high priority.                                                                                                                  
                                                                                                                                
SENATOR THERRIAULT agreed.   He understood Alaska's congressional                                                               
members do not agree there was  ratification of the list and that                                                               
caused confusion.  He asked if  Congress was going to take action                                                               
to clarify  that and said,  "Because quite often now  when pieces                                                               
of legislation  come up  we've got  some [indisc.]  language that                                                               
gets added to  the bills that says  nothing in the act  is to add                                                               
to or  detract from potential  tribal sovereignty."   Legislative                                                               
counsel advises  the continued addition of  that language because                                                               
this  is an  issue  Congress has  yet to  take  final action  on.                                                               
Senator Therriault said there  were recommendations that language                                                               
should  not  be added  to  bills  because Congress  never  really                                                               
intended   to  create   this  cloudy   area  and   therefore  the                                                               
Legislature should not pretend it exists.                                                                                       
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE  RENKES said he met  with Steve Griles,                                                               
Deputy  Secretary  of  Interior,   and  Matt  McCowen,  Solicitor                                                               
General First Assistant,  and requested they look  at the current                                                               
state of  the law, the  impact of  the federal Indian  Tribe List                                                               
Act  on  the  list  and  the  purposes  for  which  the  list  is                                                               
published.   The  congressional delegation  is interested  in the                                                               
consolidation of  grants coming  to the  tribes in  rural Alaska.                                                               
He will  ask the congressional  delegation to raise the  issue at                                                               
the first opportunity.                                                                                                          
                                                                                                                                
SENATOR ELLIS  said oil and gas  issues are very topical  for the                                                               
Alaska Legislature. He asked  Attorney General-designee Renkes to                                                               
tell the  committee how many years  he served as a  lobbyist, who                                                               
his  clients were,  which  particular oil  and  gas interests  he                                                               
represented in the past and how he did so for the public record.                                                                
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE  RENKES testified  he had  a consulting                                                               
business and was of  counsel to a law firm for  about three and a                                                               
half years in  Washington D.C.  He did advisory  work and a small                                                               
amount  of lobbying  for  ARCO. Most  of his  work  for ARCO  was                                                               
related to permitting and  litigation surrounding the development                                                               
of the Alpine Oil Field.  He  worked for ARCO on a strategic plan                                                               
for  achieving the  reauthorization of  the right-of-way  for the                                                               
TAPS line. He worked on  merger issues during the BP/ARCO merger.                                                               
His work  for BP  related to  constructing a  federal legislative                                                               
strategy  for   natural  gas  pipeline  incentives   and  solving                                                               
regulatory  issues  left  over   by  ANGTA  (Alaska  Natural  Gas                                                               
Transportation Act of 1976).                                                                                                    
                                                                                                                                
SENATOR ELLIS  said the Nuclear  Energy Institute  doesn't really                                                               
apply  to Alaska  and added,  "Nothing  nuclear in  our future  I                                                               
hope."                                                                                                                          
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE  RENKES said he  did work on  a nuclear                                                               
issue once that involved Alaska.   In 1988 or 1989 the Department                                                               
of State, the Department of  Energy and the Department of Defense                                                               
negotiated the  U.S./Japan agreement for peaceful  cooperation in                                                               
the use of nuclear fuel.   The transportation section would allow                                                               
plutonium to  be flown from Europe  to Japan.  This  caused great                                                               
concern because  the planes  would land  in Anchorage  to refuel.                                                               
The  agreement  had  to  come   before  the  U.S.  Senate  for  a                                                               
resolution  of approval  or disapproval  under the  Atomic Energy                                                               
Act.  He  constructed an amendment that was added  to the Nuclear                                                               
Waste Policy Act that banned  the air transport of plutonium from                                                               
Europe to Japan and mandated sea shipment.                                                                                      
                                                                                                                                
CHAIR  McGUIRE  announced  for  the  record  that  Representative                                                               
Coghill joined the committee.                                                                                                   
                                                                                                                                
2:32 p.m.                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  explained initially he wanted  to be assured                                                               
Attorney General-designee Renkes had  the legal experience needed                                                               
to fulfill the duties of Attorney General.  He asked:                                                                           
                                                                                                                                
     Let me say for the record  that if you were here before                                                                    
     us  as the  Governor's  selection to  be  his chief  of                                                                    
     staff  I  would  have  not even  a  second's  worth  of                                                                    
     concern.  You  are  bright, you  share  the  Governor's                                                                    
     philosophy  and I  think the  Governor has  a right  to                                                                    
     choose folks  who share his  philosophy.  You  are well                                                                    
     spoken.  You  were polite when you came over  to see me                                                                    
     and that  meant a lot.  So -  but my real  questions in                                                                    
     that regard  are as Attorney  General, do you  have the                                                                    
     background really to fulfill the duties?                                                                                   
                                                                                                                                
REPRESENTATIVE GARA  said he  still had  those questions  but was                                                               
sidetracked because  of Senator Therriault's questions  about the                                                               
Millennium Agreement.  He asked,  with the Tribal Recognition and                                                               
Indian  Bureau  Enhancement  Act  of 2001,  whether  roughly  229                                                               
tribes were  federally recognized  in the State  of Alaska.   The                                                               
former  governor  and many  tribes  within  the State  of  Alaska                                                               
signed  the Millennium  Agreement.   He  asked if  there was  any                                                               
chance this Administration  was going to depart  from that signed                                                               
agreement.                                                                                                                      
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE  RENKES answered  no, however  they had                                                               
to look carefully at the  assumptions presented. There may not be                                                               
229  federally recognized  tribes. The  list and  the attempt  to                                                               
ratify the  list may  not have accomplished  what was  hoped. The                                                               
Millennium Agreement  sets the  way the state  will seek  to deal                                                               
with the  federally recognized tribes.  The state will  listen to                                                               
their needs, goals and objectives  and afford them the courtesies                                                               
that would be  afforded another government. He  thought the state                                                               
should  examine  who has  the  capability  to benefit  from  that                                                               
government-to-government  relationship  and   who  the  federally                                                               
recognized tribes are that can benefit from it.                                                                                 
                                                                                                                                
REPRESENTATIVE  GARA asked  if  Attorney General-designee  Renkes                                                               
was suggesting the Administration is  going to take action to de-                                                               
list some currently federally recognized tribes.                                                                                
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE  RENKES asked  if he meant  the federal                                                               
administration.                                                                                                                 
                                                                                                                                
REPRESENTATIVE GARA said the Murkowski  Administration.  He asked                                                               
if he, as  Attorney General, was going to take  action to try and                                                               
de-list any of the recognized Alaska tribes.                                                                                    
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE RENKES answered  there was no action he                                                               
could take  to de-list tribes. The  state can look at  whether or                                                               
not  groups have  been federally  recognized. Those  that clearly                                                               
have the attributes  of federal recognition should  be dealt with                                                               
on a government-to-government basis.  There are groups that don't                                                               
have the requisite  attributes but are on the  ANCSA village list                                                               
from 1971,  which might have  been used  as a basis  for creating                                                               
this list.  He said he  was voicing  his skepticism that  all 229                                                               
groups  listed have  the  same  capacity, capabilities,  history,                                                               
inherent powers and governmental status. He continued:                                                                          
                                                                                                                                
     I  think   that  that  assumption  bears   some  closer                                                                    
     examination on  a case-by-case basis to  determine just                                                                    
     what  are  the  capacities,  [indisc.]  history,  legal                                                                    
     status of  each of our  tribes and we should  deal with                                                                    
     them accordingly.  Because I  think if we do that... we                                                                    
     will  not  be  denying   citizens  of  this  state  the                                                                    
     protections   of  state   laws,   for   example  on   a                                                                    
     sovereignty  immunity situation,  where they  shouldn't                                                                    
     be   denied   the   protections  of   those   laws   or                                                                    
     transferring   children  to   tribes   that  lack   the                                                                    
     capability  of protecting  the interest  of the  child.                                                                    
     Those kind, those are areas  that, you know disturb me.                                                                    
     I  don't think  that we  have room  in those  cases for                                                                    
     assumptions  about  the  capabilities  or  governmental                                                                    
     status.                                                                                                                    
                                                                                                                                
     This state  has an obligation; I  think particularly in                                                                    
     the case of children, we  have an obligation to protect                                                                    
     the best interest of the  child. And unless the state's                                                                    
     convinced  that the  tribal  organization, which  we're                                                                    
     transferring  jurisdiction over  a  child, can  provide                                                                    
     the  same level  or better  of protection  and services                                                                    
     for  those children,  I feel  strongly  that the  state                                                                    
     should  not readily  give  up  jurisdiction over  those                                                                    
     children.  I'm  just  saying let's  be  thoughtful  and                                                                    
     let's  look at  these things  on a  case-by-case basis.                                                                    
     Let's  be less  concerned  about whether  we are  anti-                                                                    
     tribal or pro-tribal  or whether we are  creating a new                                                                    
     body  of   law  here.   Let's  look  at   the  specific                                                                    
     circumstances  on the  ground in  Alaska, evaluate  the                                                                    
     legal   status  of   the  groups   individually,  their                                                                    
     capabilities, capacities and work  in a positive way to                                                                    
     empower people,  train people, do  the things  that are                                                                    
     necessary  to make  sure that  the  interests that  are                                                                    
     sought  to  be protected  here,  the  interests of  the                                                                    
     citizens of the State of Alaska, are protected.                                                                            
                                                                                                                                
REPRESENTATIVE GARA said it is  his understanding there is a list                                                               
of 229 tribes, essentially Alaska's  villages that are recognized                                                               
tribes under  the Federal  Recognized Tribal  List Act  signed by                                                               
the President  of the United States.  He asked if he  was hearing                                                               
that  Attorney  General-designee  Renkes  does  not  agree  those                                                               
villages have been properly established as tribes.                                                                              
                                                                                                                                
ATTORNEY  GENERAL-DESIGNEE RENKES  opined  that  was an  arguable                                                               
point of law.  There were  no tribes listed in the Federal Indian                                                               
Tribe List  Act and the  Assistant Secretary of Interior  may not                                                               
have  had statutory  authority to  publish  the subsequent  list.                                                               
Attorney General-designee  Renkes could  not answer  the question                                                               
at the time.   He said he  had been asked to take  a very careful                                                               
look  at  the issue  and  would  do so  in  an  open, honest  and                                                               
positive  way and  maintain a  dialogue with  Representative Gara                                                               
and others.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  said  he  heard  Attorney  General-designee                                                               
Renkes, speaking on behalf of  the Governor's office, intended to                                                               
honor  the spirit  of  the Millennium  Agreement.  He asked,  "Is                                                               
there  not an  intention  to  honor the  word  of the  Millennium                                                               
Agreement?   Is there any  question about whether  the Millennium                                                               
Agreement needs to be rewritten in  some sense or are we going to                                                               
honor the document and the words of it?"                                                                                        
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE  RENKES said a new  administration must                                                               
take a  hard look at  previous administrative orders  and actions                                                               
and make sure they achieve policy  objectives.  He wanted to work                                                               
closely with Representative  Gara and look at  what the agreement                                                               
means,  what the  experience has  been  and how  it is  impacting                                                               
activities of  state agencies.  He felt the  tribes have  to sign                                                               
the agreement  to benefit  from it. The  agreement may  need some                                                               
strengthening,  tinkering  and  adjusting. It  was  an  important                                                               
step; a culmination of two  years of work, hearings and dialogue,                                                               
to  improve the  relationship with  rural Alaska,  but it  is not                                                               
locked in stone.                                                                                                                
                                                                                                                                
2:43 p.m.                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  said it was clear  he was bringing up  issues that                                                               
may  have legal  questions  surrounding them  and discussing  the                                                               
kind of things he would be working on as Attorney General.                                                                      
                                                                                                                                
REPRESENTATIVE SAMUELS  said for the  past four to six  years the                                                               
Legislature  has  been  focusing  on  a  'mission  and  measures'                                                               
approach  so as  to measure  the results  and effectiveness  of a                                                               
program.  He asked Attorney  General-designee Renkes how he would                                                               
measure whether he  had done a good job in  the Criminal Division                                                               
and  how he  would  measure his  effectiveness  with the  dollars                                                               
budgeted by the Legislature.                                                                                                    
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE RENKES said  it is difficult to measure                                                               
effectiveness  but one  way would  be  to measure  the number  of                                                               
successful prosecutions and the  resulting sentences. The support                                                               
given victims  through the  tragedy of crime  is another  area to                                                               
judge how  well DOL  had done. If  the criminal  prosecution area                                                               
has  insufficient resources,  prosecutors become  overloaded with                                                               
cases and some expediency results.  Cases are pled that otherwise                                                               
would  go to  trial  and public  safety suffers  as  a result  on                                                               
occasion. The  district attorneys and prosecutors  explained that                                                               
a  lack of  resources is  the problem.  The increase  in criminal                                                               
misdemeanors, domestic violence and  drunk driving cases referred                                                               
to prosecutors take increased time and resources.                                                                               
                                                                                                                                
REPRESENTATIVE SAMUELS  referred to the increase  in felony cases                                                               
from 3800  cases to 6000  cases in ten  years.  He  asked whether                                                               
the Legislature  had criminalized  more behavior or  had behavior                                                               
changed.  He asked what  the district attorneys had indicated was                                                               
the cause of the increase.                                                                                                      
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE  RENKES said the increase  in cases was                                                               
due  to population  increases along  with improved  detection and                                                               
enforcement of certain criminal  statutes, particularly in felony                                                               
domestic  violence,  sexual  assault   and  sexual  abuse  cases.                                                               
Moving from community policing to  a system focused on particular                                                               
types of  crimes seems to  result in  more cases.   The Anchorage                                                               
Police  Department  doubled  the  number of  sexual  assault  and                                                               
sexual abuse  cases in  one year  by shifting  the way  they deal                                                               
with them. It is a  combination of factors: increased population,                                                               
increased awareness on the part of  the public and the police and                                                               
a changing pattern in the way the police do their business.                                                                     
                                                                                                                                
CHAIR  McGUIRE  informed  Attorney  General-designee  Renkes  she                                                               
chaired the  Administrative Regulation  Review Committee  for two                                                               
years  her  first  term  and  the  Uniform  Mechanical  Code  and                                                               
International Mechanical Code case was  a "black and white" case.                                                               
The  Department of  Public  Safety  (DPS) has  a  broad grant  of                                                               
authority  from   the  Legislature  involving   regulations  that                                                               
pertain  to  public safety  and  they  adopted the  International                                                               
Mechanical  Code.   Her first  objection was  that DPS  failed to                                                               
listen to the  people in the field.  The  Department of Community                                                               
and Economic Development  (DCED) got involved and  at a committee                                                               
meeting  in  September  in  Anchorage,   she  pointed  out  three                                                               
different sections  of the  statute where  it clearly  states the                                                               
Uniform Mechanical  Code is  to be  adopted.   She asked  DCED to                                                               
work with  the Legislature  to sort  it out  because that  is the                                                               
law.  She said, "They in  turn thumbed their nose at my committee                                                               
and  turned  around and  adopted  that  regulation, adopting  the                                                               
International Building  Code and  Mechanical Contractor  Codes in                                                               
violation of the  law." There was a statute that  said "X" and an                                                               
agency that adopts "Y" and the  two are completely different.  No                                                               
solution was reached and a  legislative battle ensued.  She asked                                                               
Attorney General-designee  Renkes how he would  handle situations                                                               
to  ascertain  whether or  not  an  agency has  overextended  its                                                               
authority.                                                                                                                      
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE  RENKES said he hired  David Marcus who                                                               
worked as  the liaison for  legislation and regulations.   He has                                                               
experience in  negotiated rule making  and the  regulatory review                                                               
process.  Mr.  Marcus   will  be  in  direct   contact  with  the                                                               
Legislature and  the regulatory review process  and be responsive                                                               
to concerns.  The Legislature needs  to be part of the evaluation                                                               
of whether regulations fit within the laws.                                                                                     
                                                                                                                                
He explained the code issues  are very contentious.  The building                                                               
officials, architects  and engineers have  one point of  view and                                                               
the mechanical  contractors and laborers  have another.  The only                                                               
way  to  work   through  the  different  views   about  what  the                                                               
appropriate  codes  should be  is  through  some kind  of  public                                                               
process  that brings  in views,  evaluates them,  and comes  to a                                                               
decision. Senate President  Therriault has introduced legislation                                                               
that provides  a process for this  kind of thing. It  is going to                                                               
be contentious  regardless of  the results.  The experts  need to                                                               
meet  with  the  certification   and  training  boards  and  some                                                               
resolution found. The  superior court did not  see the regulation                                                               
exactly the  way Chair McGuire saw  it in terms of  the affect of                                                               
the  statutes with  respect to  the  regulation; that  is now  on                                                               
appeal.  He said he was stuck with what the law is.                                                                             
                                                                                                                                
CHAIR McGUIRE asked what the law is.                                                                                            
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE  RENKES said  a regulation that  is the                                                               
law adopted under the state  rule making process. Since September                                                               
of 2001, it has been the International Code.                                                                                    
                                                                                                                                
CHAIR  McGUIRE  asked,  "Why  isn't   the  law  what  is  in  the                                                               
statutes?"                                                                                                                      
                                                                                                                                
ATTORNEY  GENERAL-DESIGNEE  RENKES  answered  that  is  what  the                                                               
courts  are  for; the  superior  court  disagreed and  found  the                                                               
provisions in the  statute that referred to the  Uniform Code did                                                               
not require  that only  the Uniform  Mechanical Code  be adopted.                                                               
It is on  appeal and could very well be  overturned.  The process                                                               
needs   new  rule   making  or   Senate  President   Therriault's                                                               
legislation to  pass so  the different  interest groups  can have                                                               
confidence in the result being the right decision.                                                                              
                                                                                                                                
CHAIR McGUIRE  said she  did not  and did  not think  anyone came                                                               
into  that  battle  for  proprietary reasons.  She  saw  a  clear                                                               
violation  of  the separation  of  powers.  As  a member  of  the                                                               
Legislature,  she  was  disturbed  by how  it  was  handled.  She                                                               
trusted  Attorney General-designee  Renkes  and  David Marcus  to                                                               
work on the issue in the future.                                                                                                
                                                                                                                                
ATTORNEY GENERAL-DESIGNEE  RENKES said  he would  do the  best he                                                               
could and had no predisposition on the issue.                                                                                   
                                                                                                                                
3:00 p.m.                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced the meeting  would be adjourned  at 3:10                                                               
p.m.  and   asked  if  Representative  Gara,   Senator  Ogan  and                                                               
Representative  Gruenberg  wanted  to  discuss  the  use  of  the                                                               
remaining time.                                                                                                                 
                                                                                                                                
The committee took an at-ease from 3:03 p.m. to 3:04 p.m.                                                                       
                                                                                                                                
SENATOR  OGAN  moved the  appointment  be  forwarded to  a  joint                                                               
session for  consideration with the  understanding this  does not                                                               
reflect the intent  by any of the members to  vote for or against                                                               
Attorney General-designee Renkes during any further session.                                                                    
                                                                                                                                
There being  no objection, Chair McGuire  announced that Attorney                                                               
General-designee Renkes' name would be  advanced to the full body                                                               
for a vote.                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG   supported   the  motion   with   the                                                               
understanding  that  Attorney  General-designee Renkes  would  be                                                               
back in  the near future  to answer questions.   He noted  he was                                                               
favorably impressed, but had a couple of questions.                                                                             
                                                                                                                                
There  being  no further  business  before  the joint  House  and                                                               
Senate Judiciary  Committees, the  meeting was adjourned  at 3:05                                                               
p.m.                                                                                                                            

Document Name Date/Time Subjects