Legislature(2001 - 2002)

06/08/2001 10:50 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                    
                   SENATE JUDICIARY COMMITTEE                                                                                 
                          June  8, 2001                                                                                         
                           10:50 a.m.                                                                                           
                                                                                                                                
MEMBERS PRESENT                                                                                                               
Senator Robin Taylor, Chair                                                                                                     
Senator Dave Donley, Vice Chair                                                                                                 
Senator John Cowdery                                                                                                            
Senator Gene Therriault                                                                                                         
Senator Johnny Ellis                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All Members Present                                                                                                             
                                                                                                                              
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
CONTINUATION OF HEARING ON CURRENT STATUS OF THE KATIE JOHN CASE                                                                
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
See Senate Judiciary minutes dated 6/7/01.                                                                                      
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Mr. Bruce Botelho                                                                                                               
Attorney General                                                                                                                
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 01-36, SIDE A                                                                                                            
Number 001                                                                                                                      
                                                                                                                                
                                                                                                                                
CHAIRMAN ROBIN  TAYLOR: ... an  hour ago and  I want to  thank him                                                            
for his  patience in abiding  with us  until we could  establish a                                                              
quorum.  The record should reflect  we have a quorum present, that                                                              
being Senators  Therriault, Cowdery and  Chair Taylor and  that we                                                              
are joined  by Representative  John Coghill from  the House.   Mr.                                                              
Botelho,  the primary reason  that I  had asked  to meet  with you                                                              
yesterday was just  to get an update and a status  report on where                                                              
your good  offices are  on the  Katie John  case and basically  to                                                              
inquire of  you how  might we  assist you  if you need  assistance                                                              
further on this matter through the legislative process.                                                                         
                                                                                                                                
MR.  BRUCE BOTELHO,  ATTORNEY  GENERAL, DEPARTMENT  OF  LAW:   The                                                              
status, Mr.  Chairman, is,  as you know,  the state must  file its                                                              
petition for  cert actually  by August  6th.  That  will be  the -                                                              
running the  90 day period.   The Governor  has not yet  reached a                                                              
decision  about whether  that  petition  will be  filed.   We,  of                                                              
course, are  preparing the  appropriate paperwork  so that  if the                                                              
decision is  to file, it will be  of a quality that we  trust will                                                              
get the  attention of the  Supreme Court.   We are,  again, making                                                              
use of John  Roberts, whom I think  all of you are aware  has been                                                              
nominated by  President Bush to serve  as a member of  the Circuit                                                              
Court of Appeals  for the District of Columbia.   But, even before                                                              
the change  of leadership in the  U.S. Senate, the sense  was that                                                              
Mr. Roberts would  be available to us at least through  the end of                                                              
August.  And, at this point he has  indicated to us that it's much                                                              
more ambiguous about whether his  nomination will continue or when                                                              
it will be brought to a vote.  In  any event, that's the status of                                                              
our preparation.  We believe we've  got the adequate resources and                                                              
we've got  the right  people to  prepare the  state's case  to the                                                              
Supreme Court if the Governor makes the decision to go ahead.                                                                   
                                                                                                                                
CHAIRMAN TAYLOR: Senator Cowdery.                                                                                               
                                                                                                                                
SENATOR COWDERY:  Well, you know,  in this article, it was dated -                                                              
it  seemed that  he had  made a  decision.   It says,  in his  own                                                              
words,  that  no  governor  of any  state  would  or  should  ever                                                              
voluntarily  relinquish  their  authority   to  back  the  federal                                                              
government - authority  back to the federal government.   To me, I                                                              
read that as  a clear statement that  he was going to  - he wasn't                                                              
going to relinquish our right.  How  - maybe I'm missing something                                                              
in that statement.  Can you tell me?                                                                                            
                                                                                                                                
ATTORNEY GENERAL  BOTELHO:   I don't think  that the  statement is                                                              
unambiguous.  I think the Governor  has been clear that he did not                                                              
intend to, and I don't think that ...                                                                                           
                                                                                                                                
SENATOR COWDERY: Did not intend to?                                                                                             
                                                                                                                                
ATTORNEY GENERAL  BOTELHO:  ...  intend to relinquish  voluntarily                                                              
state authority to  the federal government.  He's  been consistent                                                              
in his  view that  he has  fought the  federal management  for the                                                              
last  seven years  of this  administration.   He  has, of  course,                                                              
taken that  battle both in the district  court - it's been  to the                                                              
Ninth Circuit, we  petitioned the Supreme Court for  cert before -                                                              
that  was denied.   We  went back  to  the district  court and  we                                                              
appealed to the Ninth Circuit yet  again, in a [indisc.] decision,                                                              
so I  think the  Governor will  be the  first to  say that  he has                                                              
stood  up  for  state  sovereignty,  that he  has  in  good  faith                                                              
discharged his responsibilities.   We have lost at  every turn and                                                              
he  obviously,  right  now,  is  seeking  public  views.    He  is                                                              
consulting  with  a wide  range  of  persons  on the  question  of                                                              
whether  the state  should appeal  -  what is  at stake  - or  not                                                              
simply appeal or  not appeal, what are the consequences  of taking                                                              
the appeal  recognizing that  for the first  time, with  the Ninth                                                              
Circuit concurring  opinion, we have  three judges who have  put a                                                              
very  compelling argument  on  the table  that  the Ninth  Circuit                                                              
decision didn't  go far  enough.   The concurring decision  bought                                                              
many of  the arguments we  made about  the rationale of  the Ninth                                                              
Circuit original  panel being  entirely misdirected,  particularly                                                              
in  its reliance  on  the deference  to  agency.   The  concurring                                                              
opinion says  that's absolutely  right -  it's not  a basis  for a                                                              
decision but,  what we  do find,  and if we  were the majority  we                                                              
would hold, that  Title 8, read as a whole, is  a clear expression                                                              
of Congress's intent  to entirely preempt state  management on any                                                              
navigable  water  of  the  state.    So  one  of  the  issues  the                                                              
Governor's got  to weigh here  - and he is  now and intends  to be                                                              
talking  with lawyers,  not just  my  staff, but  outside of  that                                                              
framework,  former  attorneys general,  as  well  as Mr.  Roberts,                                                              
about what  the risks are to the  state if the Supreme  Court were                                                              
to take  the case and  adopt the view  of the concurring  opinion.                                                              
That is  a clear risk  that is out there.   That is  obviously one                                                              
factor that  is weighing  on him.  He  obviously is  very familiar                                                              
with  the current  conflict  between  the  Ninth Circuit  and  the                                                              
Alaska  Supreme Court  in the Totemof  case and  has spoken  quite                                                              
eloquently about his views in upholding  the dignity of the Alaska                                                              
Supreme Court's  decisions as well.   I guess what  I'm suggesting                                                              
is that the statements  he has made are not - have  not in any way                                                              
been  repudiated   but   he  is  carefully   reviewing  what   the                                                              
consequences are of either taking  appeal or not taking appeal and                                                              
listening to Alaskans  who universally have expressed  to him that                                                              
this is  an important  decision and  he is  getting, as  you might                                                              
imagine, those on one side who say  that if he were to appeal it's                                                              
a betrayal,  and while others who  would say if he  doesn't appeal                                                              
it is a  betrayal of his duty  as governor to bring the  people of                                                              
Alaska together.                                                                                                                
                                                                                                                                
SENATOR COWDERY:   Well, he says, right in his own  words, that it                                                              
remains -  and this is  say a month  - I don't  know -  two months                                                              
ago, March, - it remains my firm  stand today that as I appeal the                                                              
same  case to  the  Ninth  Circuit Court  of  Appeals  and to  the                                                              
Supreme Court  if necessary.  It  seems to me, maybe I'm  wrong or                                                              
missing something, but  I don't know what has  changed since March                                                              
and today but we  were in - with a new political  make-up - with a                                                              
new President and this and that and  with our entire Department of                                                              
Interior  and I  know  that that's  not court,  and  to a  certain                                                              
extent  our attorney  general  there,  that we'll  never  be in  a                                                              
better position to pursue this case.   I think that Senator Taylor                                                              
said that we want  to work with you to do this and  I would hope -                                                              
I  -  is  there something  changed  that  I'm  missing  since  his                                                              
statement of May the 3rd 'til today?  What facts are changed?                                                                   
                                                                                                                                
ATTORNEY GENERAL BOTELHO:  Mr. Chairman,  I believe the article is                                                              
actually of  the year  2000 so it's  not a matter  of a  couple of                                                              
months so what  has changed significantly from  a legal standpoint                                                              
is  we have  a decision  of the  Ninth  Circuit, not  only of  the                                                              
majority  panel  but  again,  as  the  concurring  and  dissenting                                                              
opinions.  And, as I said, one of  the factors, it is not the only                                                              
factor, but  one that is certainly  part of the  calculation here,                                                              
is what is the risk of the Supreme  Court adopting the view of the                                                              
concurring opinion,  not that of  the majority, which  again, both                                                              
they and we reject.  So that's clearly  one factor.  I think there                                                              
are  other  policy   concerns  that  the  Governor   has  publicly                                                              
expressed,   not  just   in  the   context  of   Katie  John   but                                                              
understanding  that Katie  John,  however it's  decided, will  not                                                              
ultimately resolve  the question of dual management  in the state.                                                              
It is  in many  respects an interim  solution, as  it were,  it is                                                              
simply trying  to draw  the line, allocate  the power  between the                                                              
federal  government, how  much geographically  it  gets to  manage                                                              
versus the state  and if we win it's cut back  dramatically.  It's                                                              
largely a game  issue and not a  fish issue.  But, if  we lose, it                                                              
means  the federal  government and  the entrenchment  that it  has                                                              
today  stays in  place  or the  worst case  scenario  - under  the                                                              
concurring opinion is that they will  control all navigable waters                                                              
of the  state for subsistence  fishing.   So, whatever  is decided                                                              
there,  we're  still going  to  be  facing  the question  of  dual                                                              
management and the Governor's solution  has been, and I understand                                                              
respectfully  that  people disagree  with  the  view that  it's  a                                                              
resolution,   is  a  constitutional   amendment  which   would  be                                                              
consistent  with  ANILCA  -  provide  for  the  priority  and  the                                                              
participation and the consequence  of that would be that the state                                                              
gets  to  manage on  all  waters  of the  state,  whether  they're                                                              
navigable  or  not, and  the  federal  government  is out  of  the                                                              
business of day-to-day management.                                                                                              
                                                                                                                                
Number 748                                                                                                                      
                                                                                                                                
SENATOR COWDERY:   Well  he said  that basically,  excuse me  - he                                                              
said this last  week in his radio  - you know - but  the votes are                                                              
not there.  He  should realize the votes on  the subsistence issue                                                              
are not  there and he  can - he  seems to  bring that up,  which I                                                              
think he's entitled  to of course, but the fact is,  we don't want                                                              
to lose this.   He should appeal  this to keep this going.   Maybe                                                              
in  the next  legislature  the  votes would  be  there  but if  he                                                              
doesn't appeal  this, as  I understand,  we're set  back 10  or 15                                                              
years and through a new process.                                                                                                
                                                                                                                                
ATTORNEY  GENERAL BOTELHO:   Mr.  Chairman,  I think  part of  the                                                              
discussion  as well,  and  maybe this  is one  that  you would  be                                                              
prepared  to advise,  is the  consequence of  the Governor  taking                                                              
appeal and  the petition for cert  being denied.  What  steps then                                                              
should we be  prepared to take, either as an  administration or as                                                              
a legislature, as  a state.  Again, recognizing that  the court is                                                              
getting  between eight  [thousand]  and 10,000  petitions a  year.                                                              
This last term,  they took 75 or  76 cases out of that  bunch.  We                                                              
recognize -  and I  will tell you  personally, I  think we  have a                                                              
compelling story to tell if we decided  to take an appeal.  But, I                                                              
think it is  far from a sure  thing that the court would  take it.                                                              
What do we  do then?  And,  I think the Governor  is strategically                                                              
thinking  about what the  consequences of  all these  alternatives                                                              
are and he's wanting to hear solutions on all of these tracks.                                                                  
                                                                                                                                
SENATOR COWDERY:   But -  excuse me -[indisc.]  - I don't  want to                                                              
belabor this  but we all  know - I mean  - that the  Supreme Court                                                              
probably has a hundred appeals to  them and they don't take one or                                                              
two.  But we also know that the Ninth  Circuit Court of Appeals on                                                              
the Supreme Court's  - their track record is not  very good on the                                                              
cases.                                                                                                                          
                                                                                                                                
ATTORNEY  GENERAL BOTELHO:   Absolutely  right, you're  absolutely                                                              
right.                                                                                                                          
                                                                                                                                
SENATOR COWDERY:  Anyway, I'm sorry.                                                                                            
                                                                                                                                
CHAIRMAN TAYLOR:   No, no, John,  thank you.  Those were  all very                                                              
good questions.   Let me, if I could, just ask  a couple of things                                                              
Bruce,  and  I really  appreciate  the  candor with  which  you've                                                              
addressed these  issues before the  committee.  When  the Governor                                                              
wrote this  article that  many of us  have been referring  to, did                                                              
you consult with him or did he talk with you before he wrote it?                                                                
                                                                                                                                
ATTORNEY GENERAL BOTELHO:  I don't  have any specific recollection                                                              
but I'm sure he did.                                                                                                            
                                                                                                                                
CHAIRMAN TAYLOR:   On a legal matter [indisc.],  I'm just assuming                                                              
that  either  you  or someone  in  your  office  participated  and                                                              
probably  assisted in  writing  it to  help  him out  on what  the                                                              
issues were.                                                                                                                    
                                                                                                                                
ATTORNEY GENERAL BOTELHO:  Yes, I  would have been involved in the                                                              
editing.                                                                                                                        
                                                                                                                                
CHAIRMAN TAYLOR:   Yea, and how to  handle it and - I  mean - this                                                              
was  a   Metro  article  where   it  wasn't  some   reporter  just                                                              
interviewing somebody  and maybe taking statements  out of context                                                              
or misstating them.   These are things the Governor  actually said                                                              
himself.    I was  particularly  taken,  when  I first  read  this                                                              
article,  by  the strong  sense  of  concern expressed  about  the                                                              
sovereignty  of the state.   In fact,  the title  of it  is 'Katie                                                              
John Appeal  is all  about Sovereignty'  - state  sovereignty.   I                                                              
can't imagine a  more important issue for any  governor to address                                                              
than the very essence of statehood,  and that is whether or not we                                                              
are sovereign.   So I guess my  question to you is  that certainly                                                              
none of your  advice on that issue  has changed, has it  Bruce, on                                                              
the overall question of sovereignty?                                                                                            
                                                                                                                                
ATTORNEY GENERAL BOTELHO:  My advice  has been consistent in terms                                                              
of trying to give  him the best views that I can  about the merits                                                              
of the case and likelihood of prevailing.                                                                                       
                                                                                                                                
CHAIRMAN TAYLOR:   Has your  view on  that changed any,  because I                                                              
know we have talked about that a lot?                                                                                           
                                                                                                                                
ATTORNEY GENERAL  BOTELHO:  My view  about our likelihood  and the                                                              
correct legal position has not changed.                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR:   Good, good.  So  you agree then that  we have a                                                              
strong  stance  of prevailing  in  this case  if  it  gets to  the                                                              
Supreme Court?                                                                                                                  
                                                                                                                                
ATTORNEY  GENERAL BOTELHO:   If  the  matter gets  to the  Supreme                                                              
Court, I think  the State of Alaska  has a fairly strong  chance -                                                              
again, the caveat on the recurring opinion.                                                                                     
                                                                                                                                
Number 1022                                                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR:   I'm  pleased to hear  that because  that's been                                                              
consistent throughout.   I  mean even when  this matter  was first                                                              
started  under  the Hickel  Administration  and  we were  bringing                                                              
these issues up,  you remained consistent in that  throughout, and                                                              
that's nine  years almost  now, or  eight years.   My concerns,  I                                                              
guess, are  that why would  we want to  amend a constitution  that                                                              
the Governor may very well not defend?                                                                                          
                                                                                                                                
ATTORNEY GENERAL BOTELHO:  I'm not sure I follow the ....                                                                       
                                                                                                                                
CHAIRMAN TAYLOR:  You were talking  with Senator Cowdery about how                                                              
it  plays into  a bigger  picture,  how Katie  John  relates to  a                                                              
bigger  picture of  subsistence and  that shouldn't  we move  away                                                              
from the dual  management - we're actually into  triple management                                                              
because  several Native  corporations,  through their  sovereignty                                                              
aspects,  are  now  seriously  discussing  and,  to  some  extent,                                                              
managing  fish and  game opportunities  on  their own  lands.   So                                                              
you've got three  different management schemes going  on: federal,                                                              
state,  and  privately-owned  Native  corporations  licensing  and                                                              
doing other  things. But  you were saying  we wanted to  move away                                                              
from that and move  back to state management and yet  to do so you                                                              
would  amend the  very constitution  that  we are  asking that  he                                                              
defend -  and some of  the very same  provisions would have  to be                                                              
amended that we're asking that he defend in the Katie John case.                                                                
                                                                                                                                
ATTORNEY GENERAL BOTELHO:  I don't  see any inconsistency with the                                                              
Governor  calling for  an  amendment to  the  Constitution of  the                                                              
State  of Alaska,  even  as  he has  taken  the challenge  to  the                                                              
federal courts over the extent of  federal jurisdiction.  I do not                                                              
think that's inconsistent at all.                                                                                               
                                                                                                                                
CHAIRMAN TAYLOR:   What about the odds - you were  talking also in                                                              
your response  to John about the  odds of getting before  the U.S.                                                              
Supreme Court.   Are those odds  any different than what  we cased                                                              
in the Venetie case?                                                                                                            
                                                                                                                                
ATTORNEY GENERAL BOTELHO:   I don't think, in  general terms, they                                                              
are.  The odds  were long there.  As I look at  them, certainly to                                                              
our advantage are - the fact that  it is a Ninth Circuit decision.                                                              
Again,  looking  at  the  statistics.    The  issue  of  statutory                                                              
construction may be intriguing in  the context of navigable waters                                                              
that -  and in a  broader sense the  issue of the  Clear Statement                                                              
Doctrine, in  terms of  the allocation of  powers between  a state                                                              
and the  federal government  I think  are attractive,  in a  court                                                              
that is  obviously -  is primarily  focused on constitutional,  as                                                              
opposed to statutory, construction cases.  On the other hand ...                                                                
                                                                                                                                
CHAIRMAN TAYLOR:   The  record should  reflect that Senator  Ellis                                                              
has joined us.                                                                                                                  
                                                                                                                                
ATTORNEY GENERAL  BOTELHO: ... on the  other hand, this  is a case                                                              
that  directly  applies only  to  the  State of  Alaska,  although                                                              
again,   we   have   argued   that   it   has   implications   and                                                              
interpretations  of  navigable  waters   in  other  parts  of  the                                                              
country.  And  then I think the  sheer number of cases  that go to                                                              
the court -  if I were to  balance generally, that's what  I would                                                              
say are the factors [indisc.] in  favor or in opposition to taking                                                              
it.   I guess  there's one  other factor  that is,  in essence,  a                                                              
prerequisite  to any  case that  goes to  the Supreme  Court on  a                                                              
petition  for  cert  is  that  there  has  to  be  a  conflict  of                                                              
jurisprudence  and that  is  usually a  situation  where you  have                                                              
conflicting  circuit court  opinions on  the same  subject -  that                                                              
there's been an opportunity for full  development on the issues, a                                                              
situation  where  the  Ninth  Circuit  conflicts  with  an  Eighth                                                              
Circuit or  [indisc.] case.  We don't  have that but we  do have a                                                              
conflict between the highest court  of the State of Alaska and the                                                              
Ninth  Circuit -  two competing  highest authorities  that are  of                                                              
equal  stature, interpreting  a federal  law that  applies to  the                                                              
State of  Alaska and  that provides the  analogous situation  to a                                                              
conflict in circuits so - I'm not  sure that that is a factor that                                                              
favors.   I would simply say  it's a threshold  consideration that                                                              
gets us and 9,000 other cases over the first hurdle.                                                                            
                                                                                                                                
CHAIRMAN  TAYLOR:    I  wanted to  note  that  Senator  Ellis  had                                                              
arrived.   Senator,  we've been  discussing with  Mr. Botelho  the                                                              
concerns we had  about - does he have sufficient  funding, does he                                                              
need additional  support or  assistance financially  from us?   He                                                              
said  he did  not, he  had  adequate funding  and  that was  there                                                              
anything else  we could  do to assist  with him in  preparing this                                                              
appeal  so that  it is ready  to go  when the  Governor makes  his                                                              
decision about  what he's going  to do.   He's assured us  that he                                                              
has that well in hand and - is that a fair statement?                                                                           
                                                                                                                                
ATTORNEY GENERAL BOTELHO:  Yes it is.                                                                                           
                                                                                                                                
CHAIRMAN TAYLOR:   Moving  along.  Well  and then Senator  Cowdery                                                              
asked several questions,  I asked a couple and  that's about where                                                              
we're at  right now.   And I'm  sorry about  - we've been  chasing                                                              
people  all over  the building  right  now trying  to find  folks.                                                              
Senator Therriault.                                                                                                             
                                                                                                                                
SENATOR THERRIAULT:   Thank you.  From the people  that contact me                                                              
that  have followed  this  case and  the  general population,  the                                                              
general public,  they really don't  know much about this  case but                                                              
the ones  that have followed  it and give  me a call  because they                                                              
hear things  out on the street  that causes them concern,  to them                                                              
it's clearly  sovereignty.   It's a  sovereignty issue  and that's                                                              
what the op ed  piece sort of indicated and [indisc.]  the way the                                                              
administration looked at it too...                                                                                              
                                                                                                                                
CHAIRMAN TAYLOR:   Senator Donley  has also joined us,  the record                                                              
should reflect that.                                                                                                            
                                                                                                                                
SENATOR THERRIAULT:   With the Ninth Circuit's  track record, with                                                              
other states filing - is it amicus?                                                                                             
                                                                                                                                
ATTORNEY GENERAL BOTELHO:  Amicus briefs.                                                                                       
                                                                                                                                
SENATOR THERRIAULT:  ... supporting  us, saying that they also see                                                              
implications in their  states based on the decision  that would be                                                              
reached.   The conflict  with our  Supreme Court  - we heard  some                                                              
testimony, I  think yesterday, that  there are other  U.S. Supreme                                                              
Court cases  similar that the Ninth  Circuit sort of  runs counter                                                              
to.  It just  seems like we're certainly not assured  of a victory                                                              
but there's  a lot of issues here  that we need to take  that next                                                              
step  to get  a  final answer  from  and to  weigh  that with  the                                                              
possibility and  that the Supreme  Court might go with  a minority                                                              
opinion in the Ninth Circuit just  doesn't seem to be that much of                                                              
a risk.   I  guess the  concern that  I'm hearing  is that  people                                                              
think that because the Governor appears  to have backed off of his                                                              
fervor  for taking this  to a  final decision,  that politics  has                                                              
come into  play here and that  politics may dictate  the decision,                                                              
really.   That's the concern that  we're hearing and I  do believe                                                              
that it is  a case that we need  to take to a final  decision.  If                                                              
we don't appeal  and we end up with the Ninth  Circuit, it doesn't                                                              
seem like  that's any worse than  the Supreme Court  affirming the                                                              
Ninth  Circuit or  turning down  the cert.   You  said well,  they                                                              
might turn  down the  cert and  leave us  with the Ninth  Circuit.                                                              
Well, one is not any worse than the  other but we wouldn't be left                                                              
knowing or  wondering whether we  could have gotten  it considered                                                              
by the court and potentially overturned.                                                                                        
                                                                                                                                
Number 1442                                                                                                                     
                                                                                                                                
ATTORNEY  GENERAL  BOTELHO:    Mr.   Chairman,  I  understand  the                                                              
concerns that you've  heard because I think they've  in one way or                                                              
another surfaced in other contexts  and, in fact I think surfaced,                                                              
as I  understand it,  yesterday in  the testimony  of some  of the                                                              
persons who  appeared before  you.   I truly do  not know  at this                                                              
point -  the Governor has  not made a  decision other than  to say                                                              
that  he is  in a  consultative mode  right  now.   He clearly  is                                                              
weighing what the risks are.  I'm  not in a position to share with                                                              
you directly  more than I've said  - how I evaluate those  risks -                                                              
but it  is not  simply a situation  of if  the Supreme  Court and,                                                              
unlikely but, if the Supreme Court  both took the case and decided                                                              
that it  would go with a  concurring opinion, a  minority opinion,                                                              
we're asking  - we would  be asking the  court to go  with another                                                              
minority  opinion that  Title 8  meant preemption  by Congress  of                                                              
state  management   over  all  navigable   waters,  we   would  be                                                              
appreciably worse off than where  we are today and where the Ninth                                                              
Circuit  Court opinion  where it  is.   How great  a risk of  that                                                              
scenario is  one that's  going to be  evaluated by people  who are                                                              
more  scholarly than  I.   I trust  that the  Governor intends  to                                                              
consult with people  like John Roberts about that  risk as part of                                                              
the [indisc.  - coughing] here.   But, again, working  through the                                                              
steps  of if  we appeal,  cert  is denied,  what  is that  state's                                                              
stance towards  the status quo?   Are we going to say  well, we're                                                              
satisfied  with  dual  management   where  the  feds  will  handle                                                              
subsistence on  six percent of the  waters of the state  or what's                                                              
our  other  alternative?    Are   we  going  to  then  look  at  a                                                              
constitutional  amendment?    We're  going  to  continue  to  hear                                                              
discussions  about changing  ANILCA.  Under  the present  climate,                                                              
certainly  that has  changed -  I would  suggest for  the worst  -                                                              
given the leadership  in the Senate change.  Certs  is granted and                                                              
we have either  of three alternatives, there are  probably others,                                                              
one  of  which is  that  the  court conclude  ultimately  that  it                                                              
improvidently  granted cert in  the first place,  but it  could be                                                              
affirmation of the  original Ninth Circuit decision.   It could be                                                              
buying into the concurring opinion  or it could adopt the views of                                                              
the  minority,  which  we  espoused, which  is  that  the  federal                                                              
government, Congress,  did not have the power - had  the power but                                                              
did not  exercise it in making  a clear and unequivocal  statement                                                              
that it  intended to  trump the traditional  allocation  of powers                                                              
between  the  state  and  federal  governments.    Those  are  all                                                              
consequences,  a couple  of  which would  be  unacceptable to  the                                                              
State of Alaska.  What is our game plan?                                                                                        
                                                                                                                                
CHAIRMAN TAYLOR:  Bruce, first, let  me make something real clear.                                                              
This is not a game  to this committee.  This is not  a game to the                                                              
people of  this state and  for anybody to  suggest - I  don't care                                                              
who it  is, I don't care  who it is  - for anyone to  ever suggest                                                              
that    the   Governor    has   exhausted    his    constitutional                                                              
responsibilities should  he fail to  appeal because he took  it to                                                              
the Ninth Circuit or someplace else,  that would be a complete and                                                              
flagrant disregard of your good advice  and I would sincerely hope                                                              
he does not do that based on some  other motivating factor because                                                              
I know sincerely, Bruce, how hard  you have worked on this and how                                                              
strongly you believe and each of  your staff believes that this is                                                              
a  good case  and a  strong  case and  that  there's nothing  more                                                              
important pending  before the State  of Alaska right now  than the                                                              
sovereignty  of the  state  itself in  this  conflict between  the                                                              
federal government  and the state.   And to forfeit that,  to have                                                              
one  man unilaterally  forfeit  that,  and  then say,  well,  it's                                                              
because we  may have run  into something or  that may have  been a                                                              
game plan out here of others to do  various things, that would not                                                              
be acceptable.   It just wouldn't  be and I know that  wouldn't be                                                              
acceptable to  you either as an attorney  and as a person  who has                                                              
defended  this state  and,  in fact,  vigorously  asserted to  the                                                              
Governor, the very words used in this article.                                                                                  
                                                                                                                                
ATTORNEY GENERAL  BOTELHO:  Mr. Chairman,  let me respond.   First                                                              
of all, this is  not a game - [you're] absolutely  right.  There's                                                              
a  lot at  stake here.   We  all appreciate  that and  one of  the                                                              
possible outcomes  is what  does this state  do in the  event that                                                              
the  state is  unsuccessful  in  making its  case.    What is  the                                                              
alternative that  you, the Legislature,  along with  the Governor,                                                              
are  prepared to  contemplate to  solve this  dilemma that's  been                                                              
facing  the state  for  the last  11 years  -  dual management  or                                                              
unitary management of fish and game under the State of Alaska.                                                                  
                                                                                                                                
CHAIRMAN TAYLOR:   But you see,  Bruce, that begs the  question of                                                              
are we going to  have a decision.  You and I and  everybody in the                                                              
room could make  a guess about what would the state  do if any one                                                              
of the three  alternatives that you very graciously  have outlined                                                              
for us, if any one of those happened,  what would we do?  Well, we                                                              
may make that decision.  Others following  us in these offices may                                                              
make that  decision but  that is a decision  that they  would only                                                              
have the  opportunity to  face if, in  fact, the appeal  is taken.                                                              
And once the appeal is taken, the  state has then exhausted all of                                                              
its  alternatives  and  the  Supreme Court  has  then  rendered  a                                                              
decision if  it gets that far,  and we will have  their direction.                                                              
But to speculate  at this point and  then to base our  action upon                                                              
that  speculation, would  seem  to  do a  disservice  both to  the                                                              
people of the state and to the Supreme  Court itself, who may very                                                              
well  wish  to  resolve  the  question.    It's  a  huge  question                                                              
involving not only  the State of Alaska, at least  14 other states                                                              
have seen  fit to  file amicus,  so I  think there is  significant                                                              
concern about the  issue of who controls our navigable  waters.  I                                                              
don't mean  to belittle it but -  because I think it  is a serious                                                              
matter that we're  here upon today and that is  pollution in these                                                              
very  same   waters.    The   Governor  was  so   concerned  about                                                              
jurisdiction in these waters that  he called us back for a special                                                              
session and that's  just jurisdiction over who's going  to poop in                                                              
them.   I think the more  important question is  jurisdiction over                                                              
who owns  them.   If we  yield to  the federal  government on  the                                                              
Katie  John  case,  do  we  even   have  the  ability  to  enforce                                                              
regulations  against the  tour  ships if  the  true ownership  and                                                              
jurisdiction  of   those  waters   is  reserved  to   the  federal                                                              
government?  I mean, this becomes a secondary issue, doesn't it?                                                                
                                                                                                                                
ATTORNEY GENERAL  BOTELHO:   There is much  meat to talk  about in                                                              
the comments you've  made but let me start out - we  do agree on a                                                              
couple issues, one of which is the  Governor does get to make this                                                              
decision and he's  the only one who does get to  make the decision                                                              
about whether an appeal is taken.   Second, there is no doubt that                                                              
in  my  mind,  perhaps in  yours,  about  the  Governor's  ongoing                                                              
commitment  to   the  role  -   his  role,  in   protecting  state                                                              
sovereignty -  and I think he has  a great record in  doing so and                                                              
you  alluded yourself  to  the  navigable waters,  the  cruiseship                                                              
issue is absolutely  battling the issue of ownership  in submerged                                                              
lands in the  Tongass and Glacier Bay.   It was not a  question of                                                              
ownership.   Katie  John  will not  decide  the  ownership of  the                                                              
navigable waters of the state.  That  has long since been resolved                                                              
in  the Submerged  Lands Act  of 1953.   The  question is  whether                                                              
Congress has  the ability to preempt  and did it in fact  do so in                                                              
passing ANILCA.   If  they, in fact,  did so,  we're going  to see                                                              
federal management wherever  they decide to exercise  it.  That, I                                                              
think,  is also  clear.   We  wouldn't be  faced  with Katie  John                                                              
today.    This  litigation  wouldn't  be happening  if  we  had  a                                                              
constitutional amendment that provided  for the same priority that                                                              
ANILCA provides and ....                                                                                                        
                                                                                                                                
CHAIRMAN  TAYLOR:    But  we would  have  already  forfeited  that                                                              
portion of our Constitution to a  federal takeover so that kind of                                                              
begs that issue.                                                                                                                
                                                                                                                                
ATTORNEY  GENERAL  BOTELHO:    It  is  not  a  forfeiting  of  the                                                              
Constitution,  Mr.   Chairman,  it   is  the  Constitution.     An                                                              
amendment, once  enacted, is  part of that  basic document  and it                                                              
can  say whatever  it  wishes  and to  the  extent  that it  isn't                                                              
preempted  by  federal  law,  the   federal  Constitution,  it  is                                                              
entitled to  the same weight  as any  other part of  that document                                                              
and I, again, ....                                                                                                              
                                                                                                                                
CHAIRMAN TAYLOR:   No - I understand the amending  process, Bruce.                                                              
I'm not saying  that.  But to  suggest that the Constitution  - we                                                              
wouldn't have  to take up  a case before  the Supreme Court  if we                                                              
would have forfeited our equal protection  rights in this state by                                                              
amending our  Constitution so we  no longer have them,  that seems                                                              
to  be  begging  that issue  a  bit.    We could  also  amend  our                                                              
Constitution  to take away  the freedom of  speech and  I wouldn't                                                              
have to worry about these reporters  in the room, would I?  And it                                                              
would  be  constitutional  because   we  would  have  amended  the                                                              
Constitution.  I don't think we want to go there, do we?                                                                        
                                                                                                                                
ATTORNEY GENERAL  BOTELHO:   Certainly not  under the framework  I                                                              
provided,  which is  consistent  with the  U.S.  Constitution.   I                                                              
think you would have some difficulty with that, Mr. Chairman.                                                                   
                                                                                                                                
CHAIRMAN TAYLOR:   Well we  just have to  convince them to  do the                                                              
same thing.  I could get rid of those pesky fellows too, see?                                                                   
                                                                                                                                
ATTORNEY  GENERAL BOTELHO:   Right.   I  leave that  - leave  that                                                              
campaign to you, Mr. Chairman.                                                                                                  
                                                                                                                                
CHAIRMAN TAYLOR:   Let  me just say  this.   We agreed  Bruce, the                                                              
Governor has stood  up and defended this Constitution  in Venetie,                                                              
when there was extreme pressure,  against him not to do so, and in                                                              
fact the same arguments were used  with him on that issue - 10,000                                                              
cases  get  filed, only  one  or  two get  heard.   The  odds  are                                                              
terrible.    Shouldn't  we  all   roll  over  and  give  away  the                                                              
sovereignty of this state and call  it Indian Country and let them                                                              
issue license plates and call themselves  a nation and do the rest                                                              
of it.  He stood up against that  and he actually brought the suit                                                              
and we won  the suit, 9 -  zero.  That was again,  an overturning,                                                              
of  the  very same  Ninth  Circuit.    Now  I know  that  you  are                                                              
concerned,  other  states  are  certainly   concerned,  about  the                                                              
minority opinion - concurring opinion.   I share that concern with                                                              
you.  My God,  do we dare leave that opinion sitting  on the books                                                              
unchallenged?  Will it  not  then become  the  argument for  every                                                              
advocate for federal  mandate and control to cite to  us?  I think                                                              
leaving  it  there  is  much  more  dangerous  to  us  Bruce  than                                                              
challenging it.                                                                                                                 
                                                                                                                                
ATTORNEY GENERAL BOTELHO:   I understand your  view, Mr. Chairman,                                                              
and I will share it with the Governor.                                                                                          
                                                                                                                                
CHAIRMAN TAYLOR:   And I would hope you would share  that with the                                                              
Governor  and  I hope  you  agree  with  me  on that  because  I'm                                                              
concerned  about the  very sovereignty  of our  state and I  don't                                                              
think that  issue can  get resolved without  us making  that final                                                              
effort  and  I believe  the  Governor's  words  when he  said,  if                                                              
necessary  to  take it  to  the  United  States Supreme  Court.  I                                                              
believe that  was based on  your good advice  at the time  and you                                                              
tell me your advice has not changed.   You're certainly cautioning                                                              
him about  what happened in the  Ninth Circuit but I  applaud that                                                              
and I  support you and I  want you to  know I support him  in that                                                              
effort.   If there  are any  detractors out  there telling  him he                                                              
should not appeal,  the Governor can say Robin Taylor  wants me to                                                              
appeal, he's  a supporter of  mine on this  issue.  And I  know of                                                              
many others in  this same room who  feel the same way.   I mean if                                                              
he would appreciate or feel assisted  by a sense of the Senate, or                                                              
a sense  of the House  and Senate, there's  a joint  session here.                                                              
We  could accomplish  that for  him very  quickly if  he feels  he                                                              
needs  that or  if he  would like  a  sense of  this committee  to                                                              
support him in that effort.  That's what we're here for.                                                                        
                                                                                                                                
ATTORNEY  GENERAL BOTELHO:   Mr.  Chairman, I'm  sure that  if the                                                              
Legislature  cared  to  express   its  views,  he  would  be  very                                                              
interested in receiving that.                                                                                                   
                                                                                                                                
CHAIRMAN TAYLOR:  Senator Donley.                                                                                               
                                                                                                                                
SENATOR DONLEY:   I think we should do a sense  of this committee.                                                              
I mean,  it's timely.   We're not going  to get another  chance at                                                              
it.  Special session  is coming to a close rapidly  here, I think.                                                              
I think we should  have a sense of the Senate  Judiciary Committee                                                              
that the Governor should appeal to the Supreme Court.                                                                           
                                                                                                                                
CHAIRMAN TAYLOR:   That's an excellent  idea.  I  appreciate that,                                                              
and thank you for  those comments Bruce.  I appreciate  them.  The                                                              
Chair would entertain a motion.  Senator Donley?                                                                                
                                                                                                                                
SENATOR THERRIAULT:  Before you make the motion -                                                                               
                                                                                                                                
CHAIRMAN TAYLOR:  Yes.                                                                                                          
                                                                                                                                
SENATOR THERRIAULT:   There's something  we could  also accomplish                                                              
which is a letter signed by members of the committee.                                                                           
                                                                                                                                
CHAIRMAN TAYLOR:   Well that's what would be my intent  that if it                                                              
passes, that  we'll put  it in letter  form and make  it available                                                              
for signatures for the members.                                                                                                 
                                                                                                                                
SENATOR  THERRIAULT:    I think  that  would  be  the motion.    I                                                              
personally am leery of the sense of anything.                                                                                   
                                                                                                                                
CHAIRMAN TAYLOR:  I can understand.                                                                                             
                                                                                                                                
SENATOR THERRIAULT:   That that becomes  then a tool that  we just                                                              
have one motion after another whereas  a letter from the committee                                                              
is something  - controlled a little  bit more by the  chairman and                                                              
that'd be my preference.                                                                                                        
                                                                                                                                
SENATOR  DONLEY:   We've got  a motion  that the  committee -  the                                                              
chairman  be  authorized  to  send  a  letter  on  behalf  of  the                                                              
committee expressing the committee's position.                                                                                  
                                                                                                                                
SENATOR THERRIAULT:  With our signatures.                                                                                       
                                                                                                                                
CHAIRMAN  TAYLOR:   Yes.   Is  there objection?    There being  no                                                              
objection, that  passes.   Bruce, again, I  want to thank  you for                                                              
taking  the time  to come  down.   Were there  other questions  of                                                              
committee members?                                                                                                              
                                                                                                                                
SENATOR WARD:  I have one - and I'm not a committee member.                                                                     
                                                                                                                                
CHAIRMAN TAYLOR:  Okay. Go ahead, Senator.                                                                                      
                                                                                                                                
SENATOR  WARD:    Thank  you  for the  courtesy  and  I  know  the                                                              
session's about  to come  forth.  Mr.  Attorney General -  and you                                                              
have brought up  constitutional amendments several  times at least                                                              
while -  and I apologize, I  was up in  Finance - but I  wanted to                                                              
ask you a  question and I know  that the Governor, when  he was in                                                              
Anchorage, he spoke  to a very large group of  Alaska Natives that                                                              
happened to be my  relatives that live in urban areas  and this is                                                              
a  lot   of  people,  and   they're  concerned  about   passing  a                                                              
constitutional  amendment that makes  it to  where they  don't get                                                              
subsistence,  even though  when my  Mom was born  there were  more                                                              
Natives in Alaska  than there were white people, and  my Mom is an                                                              
Athabaskan  and because  she lives  in a different  zip code,  she                                                              
won't  have a  subsistence preference  but the  dentist that  just                                                              
moved  35 days ago  to rural  Alaska,  he will have  it, not  even                                                              
taking in the fact  that he's making the money of  a dentist.  The                                                              
Governor said he's concerned about  that and would address that to                                                              
a group  of people  and  - so what  have  you done  as far as  the                                                              
thought process  about urban  Natives according  to this  zip code                                                              
criteria because I've heard nothing back on it at all?                                                                          
                                                                                                                                
ATTORNEY GENERAL  BOTELHO:  Mr. Chairman,  this is the  first I've                                                              
heard  of  this particular  speech.    Obviously  there -  in  our                                                              
earlier versions  - not in the  Constitution itself, but  in terms                                                              
of the statutory  scheme, we had  looked at a couple  of different                                                              
measures, the educational  permitting, which is done  in some form                                                              
today, to make sure that urban Natives  have the ability - but not                                                              
just urban  Natives  - to learn  traditional ways  of hunting  and                                                              
fishing.                                                                                                                        
                                                                                                                                
SENATOR WARD:  I  won't belabor it.  Maybe if  you could just look                                                              
at it a  little bit because we  do have an education  on that down                                                              
on the Kenai  Peninsula but, you  see, we really already  know how                                                              
to fish.  We don't need to be educated.   We need to be able to go                                                              
get some meat  and put it in there  and we want to be  able to get                                                              
the meat as much  as the dentist that just happened  to move right                                                              
across  the line  in the other  zip code.   It  just doesn't  seem                                                              
fair.                                                                                                                           
                                                                                                                                
ATTORNEY GENERAL BOTELHO:  [Indisc.]  as long as it's on the Kenai                                                              
you're in.                                                                                                                      
                                                                                                                                
SENATOR WARD:   Yea.   They're not  all on the  Kenai.   Also, the                                                              
village of Eklutna is what I'm talking  about.  That's an original                                                              
Athabaskan  village,  as  Anchorage  was  an  original  Athabaskan                                                              
village until  everybody moved  in on  top of  us and that's  what                                                              
happened.   But,  because they  did,  some reason  or another,  we                                                              
don't get  to have the  luxury of living  off the land  any longer                                                              
but the  dentist in Soldotna  that's been  there for 34  days does                                                              
get to.   It just doesn't  seem right to  my Athabaskan Mom  or my                                                              
aunt or any of the other relatives that I have.                                                                                 
                                                                                                                                
ATTORNEY  GENERAL BOTELHO:   Mr.  Chairman, I'll  look forward  to                                                              
engaging  in discussions  about  what a  constitutional  amendment                                                              
should look like.                                                                                                               
                                                                                                                                
SENATOR WARD:  Thank you.                                                                                                       
                                                                                                                                
CHAIRMAN TAYLOR:  And I want to thank  you again for your patience                                                              
and your courtesy today to come down  and visit with us.  I really                                                              
do  appreciate  that Bruce,  and  I  also appreciate  the  answers                                                              
you've  given us and  the fact  that -  and I  think this  is very                                                              
important -  that as attorney  general, and  as the often  - would                                                              
indicate  that  you  have  been  advising  the  Governor  on  this                                                              
consistently  and  that  your  advice  has not  changed.    And  I                                                              
appreciate hearing  that.  We  still have a  strong case.   It's a                                                              
case that needs to be resolved for  all the people of Alaska and I                                                              
sincerely hope that  he will - as he gave us his  word a year ago,                                                              
and  as you  have given  us your  advice today,  I sincerely  hope                                                              
you'll continue  to follow  that same pattern  and I'm  pleased to                                                              
hear you'll be  prepared to file whatever documents  are necessary                                                              
by  August 6th,  and that  you feel  comfortable that  that -  and                                                              
competent that  that will  be a good  document and something  that                                                              
the supremes hopefully  will take a look at.  Thank  you very much                                                              
for that Bruce, appreciate it.  We are adjourned [11:30 a.m.].                                                                  
                                                                                                                                
                                                                                                                                

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