Legislature(2003 - 2004)
02/10/2003 01:35 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ 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.
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