Legislature(2007 - 2008)BELTZ 211
02/28/2007 01:30 PM Senate JUDICIARY
| Audio | Topic |
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| Start | |
| Confirmation Hearing - Talis Colberg, Attorney General | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 28, 2007
1:35 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Charlie Huggins, Vice Chair
Senator Bill Wielechowski
Senator Lesil McGuire
Senator Gene Therriault
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Lindsey Holmes
COMMITTEE CALENDAR
Confirmation Hearing - Talis Colberg, Attorney General Appointee
CONFIRMATION ADVANCED
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
Talis Colberg, Attorney General Appointee
Department of Law
Juneau, AK
POSITION STATEMENT: Confirmation Appointee
ACTION NARRATIVE
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:35:21 PM. Present at the call to
order were Senator Huggins, Senator Therriault, Senator McGuire,
and Chair French. Senator Wielechowski arrived shortly
thereafter. Representative Lindsey Holmes was also in
attendance.
^Confirmation Hearing - Talis Colberg, Attorney General
CHAIR FRENCH announced the business before the committee is the
confirmation hearing for Talis Colberg as Attorney General of
the State of Alaska. He stated that of the confirmations that
the legislature considers, he judges this to be among the most
important. Forty-four states elect their attorney general;
Alaska has a better system and the confirmation process is a
vital part. It's necessary that legislators uphold the
gatekeeper function in order for the system to work. Therefore
confirmation designates come before the people's representatives
so that they can make a reasoned judgment about their
qualifications.
CHAIR FRENCH advised Attorney General Designee Colberg that he
had been contacted by email, telephone, and in person by
individuals who know him personally and professionally. A large
majority of the comments have been positive. It appears that he
is well respected and liked in his community. The dominant
quality that comes through is his thoughtfulness.
CHAIR FRENCH noted that the list of questions that he sent last
Friday has been distributed to the other committee members who
probably have questions of their own. He said he hopes to get
through his list in about 30 minutes to give other members
sufficient time to pursue their own areas of interest.
1:37:22 PM
TALIS COLBERG, Attorney General Designee, introduced himself and
provided the committee with some personal information, including
where he was born, where he grew up, the various cities and
towns that he's lived in, where he went to school, his
accomplishments while a child and a young adult. He explained
that he had attended Pacific Lutheran University in Tacoma
Washington, graduating in three years with a degree in Oriental
history. He attended Pepperdine University School of Law in
Malibu, California. He was not on law review and had no
particular distinction in terms of honors, but he was in moot
court to the extent that it was required in his classes and he
did provide legal aid to poor people doing taxes.
1:39:28 PM
ATTORNEY GENERAL COLBERG said that after law school he worked
for Kopperud & Hefferan in Wasilla in a very general practice.
His only real trial experience was as a participant with Mr.
Kopperud. That included a variety of cases including appellate
work. His practice became focused in 1985 when Travelers
Insurance Company hired him as their workers' compensation
representative. He became staff council and ran the Anchorage
property casualty office. For a brief time he worked in the
staff council office in Seattle and for a time his activities
expanded to include other property casualty defense work for
institutional clients.
ATTORNEY GENERAL COLBERG relayed that he returned to Palmer, his
hometown, and established his private practice and has been
there for the past 15 years. He has continued to focus on
workers' compensation, but now he represents injured workers
rather than institutions. Although he did some divorce work, his
primary practice had been administrative in front of the
Workers' Compensation Board. Thus no Alaska Supreme Court cases
or Ninth Circuit Court of Appeals cases are associated with him.
The main distinction between what he's done in the last 15 years
compared to the first 7 years is that he has been representing
individual Alaskans in their day-to-day needs. He's had about
2,000 clients in that time and he understands their concerns
about how slow the system is, how expensive it is, and how hard
it is to pay for it.
ATTORNEY GENERAL COLBERG said this practice has been much more
rewarding than representing the institutions. He said he's also
been involved in the community in a number of ways. He's worked
for the University of Alaska Matsu as an adjunct faculty member
mostly teaching Eastern and Western Civilization. In 1999 he
received an award for outstanding teaching. Also, he's been
involved in local government serving twice on the Matsu Borough
Assembly. Both times he was elected by substantial margins and
he feels he knows how to work with people and address their
concerns and needs as an elected official. In addition he has
pursued his passion for history working as a graduate student at
the University of Alaska Fairbanks in the Northern Studies
program. He's at the dissertation stage.
1:44:35 PM
SENATOR WIELECHOWSKI joined the hearing.
Responding to a question about publications, Mr. Colberg said he
has nothing formal but he has been preparing class texts through
Penguin Publishing assembling classic writings. As a graduate
student he has written research papers on circumpolar health
issues associated with Alaska and all the northern regions.
Those are becoming more relevant to what he would be doing as
attorney general, he said. Also he's been writing on issues of
comparative histories in northern areas between Quebec,
Scandinavia, Alaska, and the Soviet Union. In terms of
comprehensive papers he's done a survey of Alaska history, a
survey of Alaska Territorial Politics, and a survey of the
origins of Native and non Native affairs in Alaska. All of the
foregoing that used to be a hobby could be beneficial to the
job, he stated. He noted that he received a membership in the
Phi Kappa Phi academic fraternity related to those studies.
ATTORNEY GENERAL COLBERG noted that the state's largest daily
newspaper introduced him to the state as an outsider. He
believes that the only way it applies to him is that he may be
an outsider to certain circles in the largest urban area of the
state. They don't know who he is, but in terms of comparing him
to his predecessors he said he would point out that at 48 years
of age he is among the three oldest people ever appointed to be
attorney general in the state; he has practiced law longer than
all but three of his predecessors; he has been involved in law
practice in the state for 23 years; he has been involved
teaching in the state university system for 15 years; he has
participated in local government for 6 years; and he has
participated as a student in the state university system for the
past 4 years. Although he wasn't well known statewide before his
appointment, he said that is arguably true of a number of his
predecessors.
ATTORNEY GENERAL COLBERG concluded his introductory statement
saying this is a job in which he has an interest; he's been
involved in the state his entire life and he looks forward to
making use of what he's learned to achieve the ends of the
governor.
1:47:58 PM
CHAIR FRENCH asked Mr. Colberg to work through the questions he
been given, beginning with the U.S. Supreme Court Justice he
admires the most.
ATTORNEY GENERAL COLBERG responded that in his view it comes
down to a tie in terms of the two who would have meant the most
to him. John Jay was the first and certainly there's some value
to that. [John] Rutledge and [Oliver] Ellsworth were Chief
Justices both of whom served very briefly. Then there was [John]
Marshall who established the idea that the power of the Supreme
Court is the final say on matters and some deference ought to be
given to the final word on court jurisdiction being the end of
the matter. Justice Taney was forever tarred by the Dred Scott
decision, but he had a lot of reaffirmation for what Marshall
had established. It was under his tenure that Marbury v. Madison
was reaffirmed.
Chief Justice Charles Evans Hughes came later and would be a
favorite because he straddled the difficult New Deal, which came
into play during his tenure even though he was a Hoover judge.
He exhibited a willingness to be open minded and he was part of
the "switch in time to save nine" that avoided Franklin
Roosevelt's effort to add six judges in order to get his way. A
lot in Chief Justice Hughes background suggests he was
conservative and "I consider myself to be someone who is partial
to conservatives," he stated. At the same time he was
progressive on race matters. He described him as a nice
combination of conservative and progressive.
ATTORNEY GENERAL COLBERG said he also admires Chief Justice
Rehnquist because of his appreciation for history and the law.
To a great extent what he knows about the chief justices is from
the books he wrote. One was about the Supreme Court itself and
the other outlines the history of different judicial crises in
the U.S. and how they were handled.
ATTORNEY GENERAL COLBERG said with regard to which U.S. Supreme
Court Justice he admires the most it's a tie between Chief
Justice Hughes and Chief Justice Rehnquist.
1:51:10 PM
CHAIR FRENCH asked which U.S. president he admires most.
ATTORNEY GENERAL COLBERG replied that a lot have noteworthy
virtues, which makes selecting a favorite problematic.
Washington was the first in history to have total power that he
gave up willingly. That wasn't an easy thing to do and it became
the pattern citizens have come to expect over time. John Adams
did a lot to continue that tradition. Jefferson had an
effervescent brilliance but he had nasty streaks. The next six
were accomplished and he would argue that John Quincy Adams was
probably the best prepared to be president because he knew the
first six personally and they guided him. Andrew Jackson did a
great deal to make people feel that the American democracy was
for the common person. He was not an aristocrat. The next few
presidents - Martin Van Buren, William Henry Harrison, John
Tyler, James Polk, Zachary Taylor, Millard Fillmore, Franklin
Pierce, James Buchanan-are sort of eclipsed because they come
between Jackson and Lincoln. All but Harrison, who only lasted
about a month, contributed stability of the republic.
Lincoln would be one of his two favorites, he said because he
had a natural gift and was able to transcend his lack of formal
education. He had the gift to command attention and ideas and he
probably would have eclipsed people in any event.
The presidents following Lincoln are eclipsed much the same as
those before Lincoln. Andrew Johnson is underestimated because
he put a great deal of his personal life on the line for joining
the North when everyone he knew was on the Confederate side. But
Ulysses S. Grant, Rutherford B. Hayes, James Garfield, Chester
Arthur, Grover Cleveland-twice, Benjamin Harrison, and William
McKinley are all shadowed by Theodore Roosevelt. Roosevelt had
incredible energy and Woodrow Wilson was thoughtful and
contributed a lot. In more recent times people tend to be more
judgmental but Herbert Hoover, much like Jimmy Carter, was
someone who wasn't in the right element for his training.
ATTORNEY GENERAL COLBERG said his other favorite is Ronald
Reagan. He has always been an inspiration and not just because
he had a gift for communicating his ideas in a pleasant and
thoughtful way. He's a favorite because he's half Latvian and
his great grandparents died in a concentration camp in Siberia.
His mother was a refugee from Eastern Europe and his family
always wanted to see a president who understood Communism.
Ronald Reagan was always able to effectively communicate his
views on Communism in a very meaningful way.
ATTORNEY GENERAL COLBERG said his two favorites would be
President Lincoln and President Reagan.
1:55:14 PM
CHAIR FRENCH asked what he sees the primary mission of the
attorney general to be.
ATTORNEY GENERAL COLBERG stated that when you look at the
statute governing what the attorney general is supposed to do
you can see when it can be contentious. As attorney general he
would represent the State of Alaska, the governor, and elected
officials, and he would advise the legislature. In a political
context it's not difficult to see that it could become a problem
at times. Ultimately the mission of the attorney general is to
serve the best needs of the people of Alaska and advise the
governor accordingly. The mission becomes difficult when one
decides how to pursue that. Ultimately the safest course of
action is to look at what might be the correct answer to
questions as opposed to what might be popular. That may account
for the fact that the tenures of attorneys general in the state
are fairly short. Discounting the two longest tenures the
average is about 1.6 years. More than likely the high turnover
comes from trying to serve many masters, he stated.
CHAIR FRENCH elicited questions from the committee.
1:57:15 PM
SENATOR WIELECHOWSKI asked how he would reconcile conflicts
between the best interest of the people and what the governor
might want to do.
ATTORNEY GENERAL COLBERG answered that the recent contentious
issue regarding a Board of Regents member is a good example of
how that issue can arise. He explained that the governor sent a
letter asking a regent to resign and that indicates that the
governor is looking for a way to bring the issue to a
conclusion, but he and his staff are advising caution about
that. Clearly if you were looking for a result-driven conclusion
it would be natural to just terminate the discussion rather than
following a lengthier course of action. He described it as a
case of trying to do the right thing and said he believes the
governor is appreciative of that.
SENATOR WIELECHOWSKI referenced the opinion that was issued on
removing a regent. The question in that opinion was whether the
governor has the power to remove a University of Alaska regent
without cause. He then asked if the governor doesn't have cause
if someone has 92 indictments, has allegedly misused the state
seal, and has missed a number of regent meetings.
ATTORNEY GENERAL COLBERG replied the premise of the system is
that a person is innocent until proven guilty and an indictment
is not a finding. Cause is being interpreted as proven guilty,
he stated.
SENATOR THERRIAULT said there isn't any proof for the federal
indictments, but he would think that misuse of the university
seal for personal gain and a lack of fulfillment of the function
of the position could be addressed on the state level by the
governor and potentially the legislature.
ATTORNEY GENERAL COLBERG responded that he believes there would
be room to create a mechanism for a hearing process to establish
those things, but to act without going through the process would
be open to question.
SENATOR THERRIAULT asked if part of his advice to the governor
was that the potential power of the governor is unclear in the
constitution and not clarified in statute and it's likely to be
opposed by the university. And avoiding the quagmire is
advisable if that's at all possible.
ATTORNEY GENERAL COLBERG replied that he believes that's a fair
assessment.
2:01:43 PM
SENATOR McGUIRE said she disagrees with his legal opinion on
this matter and noted that it is contrary to the legal opinion
from the legislative legal division. Her personal opinion is
that the governor handling the situation would have been in the
public's best interest and a more appropriate legal action. She
asked what process he went through to determine that opinion.
Did he have conversations with the governor and receive
instructions that he might use now or in the future?
ATTORNEY GENERAL COLBERG replied that he didn't receive any pre-
instruction. He arrived at the decision working with staff that
was familiar with that area of the law and they relied on
previous similar opinions to reach the conclusions. The normal
process is that when a question is presented the deputy from the
appropriate division is asked to bring forward the person most
familiar with that area. Discussions ensue and an opinion is put
together and delivered.
SENATOR McGUIRE asked how he views his job and the distinction
between his relationship with the public and his relationship
with the governor in light of past behavior by a former attorney
general who sometimes appeared to be serving at the then
governor's right hand.
ATTORNEY GENERAL COLBERG explained that although he and the
current governor are from the same borough, he didn't know her
socially before his appointment. She would have known him from
his service on the assembly when she was mayor of an adjacent
town, but he hasn't been her personal advisor or lawyer. He
believes she appointed him because she knows enough about him to
know he's trustworthy, not because he's been active in her
political activities or campaigns.
SENATOR McGUIRE asked if he would feel comfortable saying no if
the governor asked him to perform a task related to a resource
development company that he felt was outside the scope of his
duty as attorney general for the state.
ATTORNEY GENERAL COLBERG replied he feels he has the ability to
say no if the governor asked him to do something he didn't feel
comfortable doing.
2:07:50 PM
SENATOR WIELECHOWSKI asked if knowing that a university regent
allegedly misused the state seal and missed state meetings rises
to the level of just cause and gives her the ability to dismiss
the regent.
ATTORNEY GENERAL COLBERG replied there isn't a hearing process
currently in place to make such an assessment, although one
could be created. Clearly there are issues that look to be
overwhelmingly conclusive, but the definition of cause isn't a
preponderance of allegations, he stated.
2:08:39 PM
CHAIR FRENCH offered the view that sometimes there has to be
some definition short of a guilty verdict at trial. When the
evidence is strong, irrespective of the guilty or innocent
verdict, there are times that the state has to take action and
protect itself. This is one of those instances, he said.
SENATOR HUGGINS highlighted the words trust, honesty, and
integrity and said what he likes about Mr. Colberg is that he
doesn't see a lot of lawyer in him. He has lawyer capabilities
and he's a good man, he said.
SENATOR THERRIAULT observed that as attorney general Mr. Colberg
wouldn't be in court arguing cases on a day-to-day basis and he
questioned if he had the expertise to weigh in on particular
issues.
ATTORNEY GENERAL COLBERG responded there's a reason the line of
people is sitting behind him today. He explained he spends a
good part of every day delegating things to get an answer and he
gets to see the things that are of the most concern to the
people who are asking questions on a day-to-day basis. He agreed
it's not possible for him to become the attorney in all cases
and he doesn't know of an instance where someone has claimed to
be an expert on all fields.
Noting that the civil division has 13 subcategories, he
explained that it's not uncommon to hire outside counsel to get
expertise in even more specialized areas. It's a matter of
trying to be the communication point between the Department of
Law, the Governor and the Legislature and whoever else is
seeking issues that are at the top of their screen on a given
day, he said.
2:13:50 PM
CHAIR FRENCH remarked that's a nice segue to question 6, which
is about the civil division. He asked if he has had time to meet
the section chiefs, what he sees as the biggest challenge facing
that division, and what plans he has developed to take action.
ATTORNEY GENERAL COLBERG answered that in some ways he'd lump
the civil and criminal divisions together. Department of Law
salaries are an increasing issue that doesn't seem to be on the
legislature's immediate screen. He cautioned that there is a
real gap between the DOL salaries and parallel positions in
municipalities in this and other states. It's clear that the DOL
is lagging roughly $10,000 behind on 3 and 5 year positions and
probably further than that on 10 year positions when compared to
boroughs. For private jobs it's more problematic to give a
definitive answer because of the variety of compensation
packages.
He pointed out that the civil division has only 14 positions; 12
are filled and 2 are in a state of change because of the state's
lack of competitiveness. Also from a pure economic point of
view, state service becomes less attractive once a person has
experience so they have high turnover. The beginning positions
in both the civil and criminal divisions are not such a big
problem, but there's a disproportionate number of 5-year
employees to 20-year employees leaving compared to attorney
general offices in other states.
ATTORNEY GENERAL COLBERG said that leads to the secondary issue
of mentoring people to carry on the job. As more 20-year
employees approach retirement, the question is who will replace
those experienced workers when there are fewer and fewer people
to train the new folks. What's needed is a comprehensive review
of the salary structure for both divisions and that should
address the retention and mentoring of the mid-level attorneys
and getting people interested in a career path rather than just
using it as a training ground.
2:18:09 PM
Responding to an earlier question, Attorney General Colberg said
he hadn't met with all the division heads, but he had met a
number of people some of whom said they'd never met an attorney
general before. Of the 13 criminal divisions statewide, he's met
Mr. Svobodny and Mr. Gardner in the Juneau office, Mr. O'Bryant
in the Fairbanks office, and Mr. Kalytiak in the Palmer office.
2:18:26 PM
CHAIR FRENCH referenced question 10 and asked if prosecutions of
sex abuse and sex assault are increasing and if he and members
of the department have plans to take action on this extremely
important public safety issue.
ATTORNEY GENERAL COLBERG replied statistics are more difficult
to get a hold of than he imagined, but he does have the total
number of reported assaults for adults and minors. With regard
to the prosecution numbers, he said he has a chart from 1997-
2006. A fairly comprehensive number of referrals on sex assault
for adult cases ranged statewide from about 289 in 1997 to 351
in 2002. It's not clear that there has been an overall statewide
increase and the numbers are down from the peak in 2002. Last
year there were 321 cases and 323 cases the year before. It's a
fairly steady range that would probably average out to about 320
per year. Those cases suggest a slight decline if population
increases are taken into consideration.
Sexual assaults on minors are down by almost one third
statewide. He said these statistics don't take into account the
demographic divisions within the state which points to a
completely different story. Last year, he said, Bethel had more
sexual assaults than the entire city of Anchorage. What is
apparent from that snapshot is that while statewide it doesn't
appear to be a burgeoning problem, it may very well be an
extremely serious problem disproportionate to Bush Alaska.
Prosecution levels suggest that in the last ten years it is
averaging a 75 percent conviction rate for adults and closer to
82 percent for children in the last five years. The last two-
year statistics are not useful because the numbers may be skewed
since some of the cases may not be resolved yet.
Ultimately he said he thinks there is a very serious problem in
Bush Alaska. The government services and prosecutions have a
very complex relationship and relating back to the issue of
retention, he said that here it is slightly different. It is
extremely problematic to keep people in places like Bethel and
he must make deals for people to stay out there for two years.
It is difficult to even get any response to some of the Bush
attorney positions. So, there is a disproportionate need as well
as a service problem even with the apparatus in place and
funding. A solution has to do a lot with addressing the problem
early on which gets to education and alcohol and drug abuse
issues. He said that problems come with isolation, the absence
of law enforcement authority on the spot, the ability to follow
through with a response in a timely and effective manner.
2:24:43 PM
CHAIR FRENCH noted that last year the legislature provided
funding for six new superior court judges. He asked if there
would be an increase in either civil or criminal attorneys in
response to those new judges. Some representatives from the DOL
have opined that they are chasing judges and they don't have
enough state attorneys to fill the court rooms.
ATTORNEY GENERAL COLBERG replied that may be reality and not
just anecdotal. It appears that with those six new judges there
were only two new attorneys in the Palmer office, which is one
of the fastest growing areas of the state. There is one criminal
division office assistant in addition to those two attorneys. It
doesn't appear that there was a corresponding statewide increase
in the number of attorneys to match the increase in judges.
CHAIR FRENCH asked if he anticipates asking for more positions
to compensate for the new judgeships.
ATTORNEY GENERAL COLBERG replied part of what's in the process
is looking at the overall state budget. He doesn't want to get
in front of what may be a budget decision.
SENATOR WIELECHOWSKI asked if the state needs to change the way
it selects and retains judges.
ATTORNEY GENERAL COLBERG clarified that he has no difficulty
with any of the sitting judges. Part of his graduate work was a
review of the selection system, which is generically called the
Missouri system as opposed to elected systems or a combination
of systems. One of the most interesting books he read suggested
that when analyzing the quality of judges - their training,
background, and effectiveness - there is little statistically
measurable difference between the type of judge selected under
our system and judges selected under other systems.
ATTORNEY GENERAL COLBERG observed that the only time anyone has
an encounter with a judge outside the legal system is on a
retention ballot and this state has 30-40 percent of the people
voting "no" without distinguishing between anyone. He thinks
this might stem from a frustration of not knowing who the people
are. One of the benefits of the elected system is that people do
have some reason to know something about who their judges are.
The downside of our system is that if someone really wants to
take a shot at a judge and be clever about it, they can organize
at the last minute to hurt a judge - like in the Rabinowitz
case. Our system makes it problematic for a judge to defend
himself on short notice and they can be quite vulnerable to a
concerted effort to remove them. He can see arguments for both
sides even though they are not all that different.
SENATOR WIELECHOWSKI asked if he is advocating change in
selection of judges.
ATTORNEY GENERAL COLBERG replied no.
SENATOR WIELECHOWSKI asked if he thinks Alaska Supreme Court
judges are too activist.
ATTORNEY GENERAL COLBERG replied it would be inappropriate for
him to comment on the issue.
SENATOR WIELECHOWSKI asked if he disagrees with any decisions
they have made in the last 10 years.
ATTORNEY GENERAL COLBERG replied probably, but he doesn't think
it appropriate to comment. "I have a lot of respect for the
court," he said.
2:30:46 PM
CHAIR FRENCH went to question 12 on the power of taxation - the
no surrender clause in the Alaska Constitution. He thinks the
proposed contract last year violated that constitutional
provision. It is a difficult position because the producers make
a compelling argument that they need some form of tax stability.
In his view, they just can't get to it through Alaska's
constitution. He asked his view and rationale on the matter.
ATTORNEY GENERAL COLBERG replied that he read Attorney General
Marcus' opinion (May 2006) about Article 9, Sections 1 and 4. He
said the cases they seem to be relying on are from other states.
Washington and Arizona are very prominent in the citations.
Ultimately, he thinks future legislatures would always retain
the right to change their view on things. The federal contracts
clause was the crucial component. While there would be a remedy
for the party that felt it was damaged because they had relied
on this commitment, he doesn't think they could guarantee anyone
that the legislature could not be unbound by a subsequent
legislature. In the context of a contract there could be real
damages issues - especially over a three or four-decade period.
He could see how Attorney General Marcus got to the point where
he thought he could defend it.
2:34:39 PM
SENATOR THERRIAULT said in the Governor's press conference
today, Marty Rutherford indicated AGIA would have a possible tax
exemption or tax credit offered between an open season and when
gas actually flows - for a period of ten years.
ATTORNEY GENERAL COLBERG responded that there will always be a
question of binding a future legislature. The shorter the time
period, the less problematic it becomes.
SENATOR THERRIAULT asked if he could he make the case of
impacting the investment decision within this time period if he
had to justify it in court. But once you get past that, it's
completely unsupportable, he added.
ATTORNEY GENERAL COLBERG replied that he wouldn't say it's
completely unsupportable. Attorney General Marcus laid out the
argument for why he could support it, but it does have a lot of
speculative aspects.
SENATOR THERRIAULT asked if he had been actively involved in
shaping the language on this provision.
ATTORNEY GENERAL COLBERG replied he was not personally involved.
The Department of Law's Oil and Gas Section was involved along
with outside counsel. He said he is not an expert in that area.
2:38:10 PM
CHAIR FRENCH turned to the next question and said you filed a
notice with the TAPS owners that the state may opt out of the
1985 and 1986 settlement agreements. He asked if negotiations
had begun and what are the financial implications of this step.
ATTORNEY GENERAL COLBERG replied the answer has three parts.
First he did not just walk in and decide to do it without
talking to someone. This action was taken because it is in the
best interest of the state. The department has ongoing
litigation with the FERC about what is the proper tariff. The
difference ranges from $1.96/barrel to $5/barrel; probably the
right answer is somewhere between the two. Approximately $80
million to $100 million per year is in question. To not move to
renegotiate would leave this on a year-by-year basis as an
ongoing battle until 2011. The department believed the best
approach would be to give notice that it would like to
renegotiate which opens a two-year window. Negotiations haven't
started; they are waiting for the conclusion of the FERC
decision regarding the proper tariff. He expects that will
probably be in May. That decision will be a starting point.
CHAIR FRENCH asked what the timeline is for go or no go.
ATTORNEY GENERAL COLBERG replied that has to be done within the
next two years - 24 months from January.
SENATOR THERRIAULT asked if the current structure stays in place
until replaced.
ATTORNEY GENERAL COLBERG couldn't say for sure.
2:41:07 PM
SENATOR WIELECHOWSKI said the constitution talks about getting
the maximum benefit for Alaskans for its resources and asked
what that means with regard to oil and gas.
ATTORNEY GENERAL COLBERG replied that depends on the particular
resource and accessibility and whether there is a desire to
develop it. For example, he is trying to get the best tariff
rate possible with the FERC.
SENATOR WIELECHOWSKI said for example, there's sometimes an
issue of whether or not royalty gas can be used as low-cost gas
for Alaskans or whether it has to be sold for the maximum
profit. He asked if he has an opinion on that.
ATTORNEY GENERAL COLBERG said he likes having that option.
There's a great argument for Southcentral Alaska using royalty
gas.
SENATOR WIELECHOWSKI said there is a big issue with the natural
gas supply and increase in price in Southcentral. He asked if he
intends to take an active role by intervening in RCA and other
types of cases to protect Alaska consumers.
ATTORNEY GENERAL COLBERG responded protecting consumers is part
of his statutory duty. In the RCA cases, the department is
effectively doing that by looking at tying gas rates to Enstar
in Louisiana.
SENATOR WIELECHOWSKI asked if he has given any thought to
disallowing the use of Henry Hub or placing caps on the rates
that can be charged.
ATTORNEY GENERAL COLBERG replied he hasn't personally considered
price caps. However, it is a concern and people are looking at
it, he said.
2:45:44 PM
CHAIR FRENCH said tribes and tribal sovereignty in Alaska is a
contentious area. He asked what his department approach would
be.
ATTORNEY GENERAL COLBERG replied this is perhaps the most
complicated and persistent topic. It comes from geography,
isolation and federal neglect. When the Organic Act was finished
in 1884 it wasn't like others that had a process for kicking in
self-government. It was purposely deleted and basically a few
federal officials were appointed to oversee an area. With the
gold rushes, the federal government decided that something
should be done with the increasing non-Native population. The
premise, which was somewhat racially motivated, was that Native
people didn't want a form of government involvement.
Thus, a dual system developed and in 1906 Alaska got an elected
non-voting delegate to Congress. The second Organic Act of 1912
finally allowed some self-government, but with unusual
limitations compared to other states. Alaska wasn't allowed to
have counties for instance. It had small enclaves of municipal
governments, a territorial government with severe limitations on
taxation, and certain rule-making powers in the legislative
arena largely representing only the non-Native portions of the
state. In the meantime the Native areas were kind of starting to
drift into a separate system so that by the time of the New Deal
with the Indian Reorganization Acts in 1934 and 1936, about 70
tribes were established. They were given certain rights and
certain government opportunities and a dual education system
through the Bureau of Indian Affairs (BIA). That arrangement
persisted until statehood. Alaska didn't really have boroughs
until 1963 or 1964. By the time Alaska had some sense of
statewide government, it had two governments that didn't mesh.
ATTORNEY GENERAL COLBERG relayed that outside of Metlakatla,
Alaska doesn't have the traditional reservation system. It has
tribes and federal recognition of certain rights that aren't on
track with state government. It has the absence of Indian
Territory in the Venetie case. It's confusing. Ultimately the
solution is to figure out a way to encourage people to
participate from all parts of the state. In the long term, he
thinks a change in population will provide less reason for
friction.
A book called "The Western Paradox" wrestled with the nature of
frontier population compositions, he said. It made two broad
classifications: people who are trying to be
adventurers/exploiters or people who want to be settlers. Alaska
can be classified as an exploited state where people came, made
their fortunes and left, but Alaska Natives already consider
this their home. He thinks that more people will begin to see
Alaska as a destination and this will be the beginning of a more
common ground. If confirmed, he wants to make this the focus of
his interest.
2:54:32 PM
SENATOR WIELECHOWSKI asked what he thinks about rural preference
for subsistence.
ATTORNEY GENERAL COLBERG replied the state has always taken the
position that there is a rural preference; just how that is
established is what has clouded the issue. There is no magic
solution, he said, but there has to be a way to work it out. He
mentioned that he was chair of the Alaska Humanities Forum
Board, Alaska's branch of the National Endowment for the
Humanities. One of the nicest features of its many programs was
the Rose Urban Rural Exchange where Railbelt school children
could live in villages for two weeks at a time and Native
children could likewise live with urban families. It was an eye-
opener because a lot of people in the Railbelt don't venture
beyond the road system. It's hard for them to sometimes realize
that life is comparatively difficult in some parts of Alaska.
The program fosters more of an appreciation of why this is such
a sensitive issue for Native Alaskans. On the other hand, he
said, many people come to live in Alaska because it is an
opportunity to hunt and fish and they don't like the idea that
somehow enclaves will be created that are off limits for what
they perceive to be racial reasons.
SENATOR THERRIAULT pointed out that the Alaska Supreme Court
ruled rural preference to be unconstitutional under the state
constitution. He asked him if he really meant to say "rural
preference."
ATTORNEY GENERAL COLBERG apologized for misspeaking and
clarified that he meant to say "subsistence preference."
SENATOR THERRIAULT asked if he spoke with either Mr. Popley or
others on certain concerns the legislature had been tracking for
a number of years with regard to tribal status and if there are
in fact tribes. Former Senator Halford cautioned him to watch
out for peoples' access to health care or other services that
are only offered through a tribal entity. If that tribal entity
isn't subject to Alaska's laws, then the citizens of the state
can only avail themselves of services that are available to the
general public through a mechanism by which they potentially
have to shed their state constitutional rights in order to get
those services. Some entities have attempted to separate
themselves from the state through the cloak of tribalism. We
need to be mindful of that because we are all Alaska citizens
and constitutional protections should be available to everyone
equally.
ATTORNEY GENERAL COLBERG responded that he had met with Mr.
Popely and he is aware that this is a thorny issue. His most
recent encounter was through the Rural Justice Commission that
deals in particular with the Indian Child Welfare Act. It is
applicable in states that have reservations. Absent reservations
the commission worked on a Memorandum of Understanding (MOU)
with tribes trying to address these issues. There is no solution
yet.
3:01:02 PM
SENATOR McGUIRE noted that he wasn't on Law Review, but if he
was today and was writing a comment on the Venetie case, what
would his brief summation be. Would he agree with the Supreme
Court of the United States or with the Ninth Circuit? She also
asked what legacy he would like to leave.
ATTORNEY GENERAL COLBERG replied he wouldn't want to be
remembered only for his answer to her first question. He said
the Venetie conclusion that there was no Indian country is
appropriate in that Alaska really doesn't have the same
structure as the other states. Creating Indian country would
open another set of problems that wouldn't resolve much. The
concern he had about answering this question is that he didn't
want it to appear that he is insensitive to the motivations
behind that lawsuit in the first place. "The people in those
villages - many of them feel very aggrieved for often things
that may have happened long before they were around and there
[are] a lot of reasons for them to feel that way."
ATTORNEY GENERAL COLBERG summarized that he supported the
Supreme Court decision on the Venetie case, but that doesn't
mean there weren't legitimate motivations behind Natives trying
to assert claims for their heritage.
3:04:46 PM
SENATOR HUGGINS moved to forward Attorney General Colberg's name
to the full body for consideration. There were no objections and
it was so ordered.
CHAIR FRENCH stated that signing the letter does not reflect
intent by any of the members to vote for or against the attorney
general designee in any further sessions. There being no further
business to come before the committee, he adjourned the meeting
at 3:05:16 PM.
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