Legislature(1997 - 1998)
04/20/1998 03:40 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE RESOURCES COMMITTEE
April 20, 1998
3:40 p.m.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Lyda Green, Vice Chairman
Senator Loren Leman
Senator Bert Sharp
Senator Robin Taylor
Senator John Torgerson
Senator Georgianna Lincoln
MEMBERS ABSENT
None
COMMITTEE CALENDAR
Alaska Department of Fish and Game Briefing: Public Trust Doctrine
CS FOR HOUSE BILL NO. 285(RES) am
"An Act relating to suspension or revocation of commercial fishing
permits, licenses, and privileges; and providing for an effective
date."
- MOVED SCS CSHB 285(RES) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
HB 285 - See Resources Committee minutes dated 3/30/98.
WITNESS REGISTER
Tina Cunning
ANILCA Program Manager
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, AK 99802-5526
Robin Willis
Division of Habitat & Restoration
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, AK 99802-5526
Christopher Estes
Division of Sport Fish
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, AK 99802-5526
JoAnne Grace, Assistant Attorney General
Natural Resources Section
Department of Law
1031 W. 4th Ave., Suite 200
Anchorage, AK 99501-1994
Brett Huber, Staff to Senate Resources Committee
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Explained changes in SCS CSHB 285(RES)
Tom Wright, Staff to Representative Ivan
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Offered information on SCS CSHB 285(RES)
Joel Hard, Captain Commander
Division of Fish and Wildlife Protection
Department of Public Safety
435 S Valley Way
Palmer, AK 99645-6494
POSITION STATEMENT: Responded to questions on SCS CSHB 285(RES)
Bruce Twomley, Chairman
Commercial Fisheries Entry Commission
8800 Glacier Highway, Suite 109
Juneau, AK 99801-8079
POSITION STATEMENT: Offered comments on SCS CSHB 285(RES)
ACTION NARRATIVE
TAPE 98-31, SIDE A
Number 001
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:40 p.m. Present were Senators Green, Sharp, Taylor and
Chairman Halford. The first order of business before the committee
was a presentation by the Department of Fish and Game on the Public
Trust Doctrine. CHAIRMAN HALFORD informed committee members their
files contained a copy of a letter sent from the Chair to the
Attorney General and to the Commissioners of Natural Resources
(DNR), Fish and Game (ADFG), and the Department of Transportation
and Public Facilities (DOTPF), on the land status, easements,
waterway management and related issues. He has not received a
response to the questions in that letter, but ADF&G is present to
provide information pertaining to some of the questions.
TINA CUNNING, ANILCA Program Manager for ADF&G, explained ADF&G has
had oversight over the activities of the federal agencies since
1981 to assure that the public's ability to access resources and
the state's ability to manage resources are protected, consistent
with the compromise provisions of ANILCA.
ROBIN WILLIS, Division of Habitat and Restoration, ADF&G, stated
she has worked on the Alaska Native Claims Settlement Act land
conveyances for the past five to seven years as well as other state
land conveyances to the boroughs and municipalities.
CHRISTOPHER ESTES, the In-Stream Flow Coordinator with the Division
of Sport Fish, ADF&G, explained he quantifies the amount of water
required by fish and wildlife in the rivers and lakes in the State
in an attempt to protect that amount.
The committee watched a videotape on the Public Trust Doctrine
provided by Ms. Cunning, Ms. Willis, and Mr. Estes. The videotape
covered the four fundamental points of the Public Trust Doctrine:
it is common law; it is state law; it is property law; and it is a
public right. Although the Public Trust Doctrine is not codified
in state statute, it is interpreted by judges. This makes the
Public Trust Doctrine very flexible. The Public Trust Doctrine is
a right that is available to all citizens, and it creates a
property right. Judicial decisions have held that navigable
waters, and the lands beneath them, are the property of the state,
to be held in trust, therefore it is the responsibility of the
natural resource agency to document and to inform when the public
trust resources are being harmed. The Public Trust Doctrine is not
self-enforcing; any individual can invoke his/her rights against
the Trust. A Public Trust lawsuit is most effective when used in
conjunction with existing statutes, and if the suit is lost, only
the statute is at risk. Many proponents of the Public Trust
Doctrine have called it a sleeping giant because, while the concept
has been in existence for centuries, it has not been used
extensively to protect natural resources. As the giant awakens,
citizens have the opportunity to learn more about how to use this
powerful tool to effectively protect valuable fish and wildlife
resources. The videotape went on to inform citizens of ways to be
effective in protecting the Public Trust Doctrine, such as
contacting their attorneys general and educating legislators, and
discussed ways to get further information on the doctrine.
Number 190
MR. ESTES noted the videotape is part of a larger series that was
produced. He pointed out that Section A of the notebook provided
to each committee member lists references that deal with the Public
Trust Doctrine, specific to national interests and Alaska; a list
of the remainder of the videotape series, and case history from
throughout the country.
MS. CUNNING noted the group would refer to the notebook by tab
numbers throughout their presentation in an effort to cover a
tremendous amount of complex material. The first sheet in the
notebook contains a list of the key points of the Public Trust
Doctrine. As biologists, not attorneys, agency staff apply the
principles of the Public Trust Doctrine to the best of their
ability. She pointed out Chairman Halford asked Joanne Grace of
the Department of Law to be available via teleconference to answer
legal questions related to the Public Trust Doctrine at the end of
the presentation. She clarified there is a difference between the
body of public law that is associated with public trust versus
public trust doctrine. A lot of misuse of those terms occurs.
The Public Trust Doctrine addresses water allocation and uses, the
allocation of habitat needs for fish and wildlife that live within
the waters, and the public's rights of access on the waters between
the banks of ordinary high water of waterways which are navigable
under the federal definition of "navigability." The public trust
involves the trustee responsibilities for all public interest laws,
including fish, wildlife, and mineral resources on all lands and
waters throughout the state. Tab A contains all of the resource
materials. Tab B contains a memo from Commissioner Rue to
Commissioner Shively which explains some problems ADF&G was going
to have in 1995, due to some budgeting problems within DNR, and the
impacts that would have on ADF&G as the trustees for fish and
wildlife resources. The consequence of that memo and further
discussion in the Legislature prompted by Senator Halford, was
emergency funding to assure that active and aggressive monitoring
of the navigable waters in the state took place. The funding was
appropriated to ADF&G, DNR, and the Department of Law, for this
specific cause.
MR. ESTES added that the funding led to the legislative audit that
reviewed how the state agencies were actually handling the ability
of the state to provide for the usage of, and access to, those
waterways. He thanked legislators for assistance in that area.
MS. CUNNING explained Tab C contains a flow chart that lists the
key points that are part of the application of Public Trust
Doctrine for reference. The Public Trust Doctrine is a national
body of law, but it is the sovereign responsibility of each state
to implement it. It is defined in each state differently. The
Green Book is a compilation of case law in all of the states which
explains a number of different problem areas that have been
litigated and how each state has defined the Public Trust Doctrine
under those arenas. Key pieces of the Alaska Constitution,
statutes and regulations, federal laws, such as ANCSA and ANILCA,
court decisions, and budgetary decisions, as well as the
legislative audit report, affect how the state agencies are
implementing their trustee responsibilities. Tab D contains
summaries of Public Trust Doctrine in Alaska. This law is 2,000
years old and is the sovereign responsibility of the state to
implement. The summaries contain excerpts from the Alaska
Constitution that implement the Public Trust Doctrine. Section 3
is the common use provision; sections 13, 14, and 15 address access
on waters and the exclusive rights preferences related to
fisheries; the state statute which defines navigable waters; and
the legislative intent in 1995 which accompanied legislation that
basically said thou shalt not interfere or obstruct access on
waterways. The attachments to the summary sheet in Section D are
the pieces of the Constitution and the statutes in context.
MS. CUNNING noted the flip side of the flow chart in Tab C contains
a sample map which includes public land with a lake, a chunk of
state land, and a drainage to the ocean, which is a navigable
waterway, with conveyed land. Her job in the ANILCA program has
been to monitor the federal agencies where the federal lands are to
ensure that the state's ownership of its navigable waters that go
through that area is protected, and that the public's rights of
access on those waterways is protected.
MS. WILLIS said the next phase occurs when land is conveyed to a
Native corporation or a municipal entity. It is necessary for the
state to reserve access at that point. In most cases, as far as
ANCSA is concerned, an easement that needs to be reserved needs to
be on a navigable water as defined by the federal, or at least a
major water body. Part of the discussion with Public Trust
Doctrine defines the parameters of the navigable waterway and gives
her the opportunity to reserve those easements. Additionally, if
there is an inholding that is a Native allotment or private
property of any sort, she has the opportunity to reserve access at
that point. It is important to pay attention to the land as it is
conveyed from the federal to state government and to a private
entity, because that is the only time when the state can maintain
the easements. Some of the information she needs comes from Mr.
Estes' water work.
Number 303
CHAIRMAN HALFORD referred to the 17B easement on the sample map
which goes through an allotment. He noted 17B was a provision of
ANCSA.
MS. WILLIS said that is correct, and it can only be reserved
through an allotment under a different condition: it is not
reserved as a 17B easement.
CHAIRMAN HALFORD agreed, and said the allotment preceded 17B
because the same map that created 17B did away with the allotments
in the short close out time.
MS. WILLIS said they try to reserve it as a historic trail which
can be done if it predated the allotment, or, if this was a
different kind of an in-holding, they could reserve it. There are
some cases now where an allotment is coming in after the fact and
the rules have changed so that, if this is the only method that was
reserved across the corporation's land, it can still be reserved
through the allotment as well. It does not fit under the 17B
definition, however.
CHAIRMAN HALFORD said essentially, if the allotment was preceded by
the 17B easement, it is subject to it. If it was not, it is not,
and the easement has to be reserved under the old alumni.
SENATOR TAYLOR referred to Tab D which contains the sections of
Alaska's Constitution that provided for the Public Trust Doctrine,
and asked why the section contains no notation of the Alaska
Statehood Act, the Omnibus Act, Presidential Proclamation 32-69, or
Executive Order 10-85-7, or the 53 submerged lands acts, or the
Equal Footing Doctrine.
Number 374
MS. CUNNING explained they tried to create a 35 minute presentation
that highlighted the Public Trust Doctrine pieces and how it works
within ADF&G. She informed committee members the group has a three
hour work session in which it covers all of the different pieces of
law. She noted the information she has provided to committee
members is a condensed version, and even the constitutional pieces
she referred to are only some of the pieces that address the Public
Trust Doctrine.
SENATOR TAYLOR said he was aware the presentation was to make
certain that the public is aware of the Public Trust Doctrine and
the rights to access that flow from it, but he believes the Public
Trust Doctrine supersedes the subsistence argument, as well as each
of the Acts he cited, when incorporated with the Public Trust
Doctrine. He asked if anyone believes that the State of Alaska
does not own all of the subsurface below the navigable waters.
MS. CUNNING asked the Senator if the group could answer that
question at the end of the presentation.
SENATOR TAYLOR agreed.
MS. CUNNING clarified the hypothetical map applies to municipal and
ANCSA conveyances and other types of land transfers that occur.
MR. ESTES commented knowing the amount of water that must be left
in a waterway is just as important in terms of protecting the fish
and wildlife as ensuring that boats can navigate within that
waterway.
CHAIRMAN HALFORD asked Mr. Estes to explain how a federal reserve
water right works.
MR. ESTES explained a federal reserve water right is a law with a
legal basis that goes back to the early 1900's when Native American
reservations were established in the lower 48 states. The
reservations needed to have a livable amount of water to support
the inhabitants. From that concept, the need to set aside a
certain amount of water for the established purpose, such as
national parks, in the rivers on other federal land developed. In
terms of how it relates now, the date at which the federal
reservation was created establishes what the priority use of the
water is, as well as the enabling legislation that Congress passed.
MS. CUNNING informed committee members the next tab in the
notebook, Tab E, contains two Alaska Supreme Court decisions that
specifically address some issues currently before the Legislature.
The first case is 14 pages of the Ostrosky decision, the second
case contains excerpts from the Holland decision (the Fish
Initiative decision). On page 16 of the Holland decision, the
Supreme Court specifically addressed the authority and
responsibility of the state to control naturally occurring fish,
which gives the state property-like interests in these resources.
For that reason, naturally occurring salmon are, like other state
natural resources, state assets belonging to the state which
controls them for the benefit of all of its people. In a
concurring attachment to this decision, Judge Compton explains what
he believed the Commissioner's, Board's and Department of Fish and
Game's roles are related to the Trust responsibilities for
management of fisheries and wildlife in Alaska. He says, "In my
view, an initiated law is clearly inapplicable to the allocation of
a resource reserved to the people for their common use. This is
particularly so when the state holds the resource in trust for all
of the people of the state. The people as beneficiaries of this
trust cannot dictate to the trustee the manner in which the trust
is to be administered...." Judge Compton goes on the explain the
unique trust responsibility of the Commissioner and the Boards.
The Ostrosky decision is the limited entry decision in which the
state adopted a constitutional amendment which established a
preference within one of the user groups. Section 15 of the
Constitution had been amended, which set up a conflict with Section
3, the common use provision. The court dealt with this very
clearly and laid out the criteria under which the public can amend
its constitution, where the Supreme Court will uphold that
constitutional amendment, and when that can be upheld even when
there is a tension between Section 3 and Section 15. The green
book talks about some of these types of difficulties in other
states. The Alaska Supreme Court tends to review what is going on
in other state supreme court decisions regarding implementation of
the Public Trust Doctrine because Alaska has a relatively small
body of case law.
CHAIRMAN HALFORD asked why Judge Rabinowitz dissented on the
Ostrosky case.
Neither MS. CUNNING nor JOANNE GRACE of the Department of Law were
able to recall the contents of the dissenting opinion.
CHAIRMAN HALFORD commented Judge Rabinowitz started out with the
McDowell case, which was based on it not being a fundamental right.
By the time the court heard the Kenaitze case, Judge Rabinowitz was
on the majority side accepting a fundamental right, and then going
forward with the other standard of review. Following his process
could be instructive.
MS. CUNNING responded they try to review only the final judicial
opinion for guidance. She explained the item under Tab F is a
generic letter used to respond to public inquiries regarding
activities on waterways. An intensive number of conflicts are
occurring across the state as land patterns change. Property
owners believe they have certain rights related to access on the
waterways and fishing and hunting within those waterways. The NAV
team, which is made up of DNR, ADF&G, and DOL, reviews the land
status in each case, and tries to identify correct access and
activities on those waterways, and responds back to the individual
members of the public. The generic letter was provided to
committee members as an example of the kinds of answers that can,
and cannot be given. In some cases, state statutes are not clear
in defining the public's rights on the waterways. Tab G contains
two recent publications by a private attorney in Alaska who has
specialized in Public Trust and Public Trust Doctrine issues. She
reminded committee members there is a difference in the case law
which accompanies Public Trust Doctrine versus the general public
trust laws. Tab H contains additional background materials related
to how the departments work with each other and some of the
materials each has produced in the last year.
MR. ESTES described an illustration that provides the basis for
defining where the Public Trust Doctrine would apply, which is
below the ordinary high water line. The Public Trust Doctrine
applies to the submerged lands as well as the waters that cover the
submerged lands. If those areas meet the federal definition of
navigability, then the state would own the submerged lands and
would have a duty of supervision with respect to public trust uses.
CHAIRMAN HALFORD noted most times of the year there is probably
significant shoreline on either side that is state owned.
MR. ESTES said it would depend upon the geometry of the channel,
but there could be areas in which that is correct.
Number 502
MS. WILLIS discussed the generic letter used to respond to public
inquiries about conflicts on rivers. One area that was
particularly problematic was the Karluk River, and as a result a
brochure was created to inform the public of where public and
private property is located, where easements have been reserved,
what uses are allowed on the easements, and how they are to be
used. The brochure also contains answers to commonly asked
questions, and contact names for application for use of easements.
MS. CUNNING pointed out the brochure was the product of an
extensive amount of work and meetings with private upland owners to
ensure that they agreed with the presentations given on both the
map and the narrative. The process was beneficial for everyone as
they came to an understanding of the uses allowed on navigable
waterways as well as the rights of private property owners.
MS. WILLIS stated a similar approach was used for another area of
contention this last year, the Chuitt River which had borough
property, utility lines, subdivisions, and in holdings that were
old homesteads. A similar write up was produced explaining legal
use of the area to be distributed to keep people from trespassing
on private upland property.
MS. CUNNING noted the narrative for the Chuitt River brochure is in
draft form.
CHAIRMAN HALFORD stated the road that goes to the Southwest on the
Chuitt River map appears to be public except for one parcel which
appears to be private. He asked what the benefit is to a public
road that has + mile of private closed road in the middle of it.
MS. WILLIS replied to date, the owner of the private property is
amenable to allowing the public to use it. Discussions with the
residents of Beluga about helping to subsidize a new road on
borough property has not been successful to date.
CHAIRMAN HALFORD asked if that road was constructed after the
property went to patent, so it is patented land with no easement on
it.
MS. WILLIS said that is correct; it is a very old patent that had
no easement on it. The individual who currently owns the land is
trying to decide whether to charge people for its use.
CHAIRMAN HALFORD asked about the other private section up the river
between mile 7 and mile 9.
MS. WILLIS replied that section was an allotment for which DNR
negotiated with the Tyonek Native Corporation for a different
easement to go around the allotment to prevent a conflict. The
easement would be a continuous 17B easement, but that portion has
not been constructed. At present, it is not a thoroughfare so
travelers have to got through the allotment at the discretion of
the allottee.
CHAIRMAN HALFORD asked if that allotment preceded the construction
of the road as well.
MS. WILLIS said that was correct.
MS. CUNNING informed committee members the only other map in the
packet is the Arolik River on which conflicts are increasing.
People fly into Arolik Lake which is within the exterior boundary
of the federal conservation system unit within the Togiak Refuge.
CHAIRMAN HALFORD asked if that is state navigable water.
MS. CUNNING said she believes it is.
CHAIRMAN HALFORD asked if it predated the refuge.
MS. CUNNING replied it does not matter if it predated the Refuge or
not because it is a navigable waterway. People land on the lake
and float out of the Refuge. Once out of the Refuge, there are
long pieces of the river bottom that have been conveyed to the
private upland owner. People that float this waterway believe they
are on a navigable waterway, participating in the boating and
fishing activities allowed under the Public Trust Doctrine. The
upland owners, because perhaps they erroneously have been conveyed
the submerged land, believe they can control the access on the
waterway. The conflicts in that area are increasing as a result.
In this particular case, the NAV team tried to make a presentation
to the affected upland owner, explaining that if they are coming
under the ANCSA conveyance process and they erroneously got
submerged lands that are navigable waterways, it is to their
benefit to request BLM to reassess the waterway and take out the
portion of submerged land under the waterway, and acquire that
additional acreage in upland acreage. At some point in the future,
the state will sue to quiet the title to its navigable waterways.
If it is after the conveyance process is completed and their land
selections are signed off on, they will simply lose that acreage.
The Public Trust Doctrine activities are fairly clearly protected
under the Doctrine, Alaska Constitution, and Alaska statutes.
CHAIRMAN HALFORD said he would like to come back to the maps and
the generic letter that the NAV team sends to respond to inquiries.
TAPE 98-31, SIDE B
CHAIRMAN HALFORD said at some point, people on both sides of this
equation, believing they are right, will resort to force to protect
those beliefs. The worst kinds of conflict are the kinds in which
both sides believe they are morally right.
MS. CUNNING said most states look to their case history, some look
to redefining their legislation that implements the Doctrine
rights. The public's rights under the Doctrine, for boating,
navigation, commerce, and fishing, are clearly laid out. Two
things can be done if there is insufficient case history: the state
can clearly lay some of those pieces out in legislation or private
individuals will end up going to court.
JOANNE GRACE, Assistant Attorney General, added the dilemma the NAV
team faces in writing this type of letter is that it wants the
public to understand the status of the law, which is that the
public has a right to use waterways regardless of who owns the bed,
even when there is no court-determined navigability designation.
Even though the public's right to use the waterways regardless of
ownership, it is not clear exactly what that means. Because
Alaska's constitutional provisions so strongly protect the public's
right to use, it also includes incidental use of the beds, and they
do not want to make that representation to the public without
having a court decision or some tangible basis to back up that kind
of statement. The approach has been to at least explain to the
public what the status of the law is, and if an individual wants to
pursue their case, he/she will do so knowing there may be some
legal conflict involved.
CHAIRMAN HALFORD stated his concern is the basic principle that
when one is right, he/she has the ability to defend their case in
the use of something. He noted these people are not going to
court, they may use violent confrontation at some point. He asked
what the state is doing about curing the problem.
MS. GRACE responded in terms of the letter, the NAV team is trying
to give people all of the information in order to avoid conflict.
She pointed out the letter informs people how the NAV team
interpreted the law, and how the private upland owners interpret
the situation, so that the individual can choose to avoid conflict
by getting permission from the upland owner.
CHAIRMAN HALFORD asked if a family is camping on what is obviously
land below high water and they are confronted by an upland owner
who is telling them they have to leave, how do the State Troopers
and Village Public Safety Officers respond if the family refuses to
leave.
MS. GRACE stated she cannot answer the question, but repeated the
point of the letter is to inform the public so that they can avoid
that situation unless they are ready to get involved in that kind
of confrontation. The State Troopers would react according to how
well informed they are about the rights of the public, but without
some kind of legal determination of ownership and the public
rights, she does not know what the State Troopers would do to
resolve the situation.
MS. CUNNING said that situation occurred at the Chuitt River. The
NAV team was able to get land status information to the Village
Public Safety Officers and State Troopers. They took a look at the
information and thought the public's right of access was clear.
Even though a portion of the riverbed was conveyed, they would not
charge people with trespass. If a person pulled a gun on another
on the waterway, that individual would be guilty of other
violations under state law.
CHAIRMAN HALFORD questioned whether there is a statewide policy
that provides some kind of training to State Troopers and Village
Public Safety Officers so that they have information for their
areas.
MS. CUNNING replied the NAV team talked about that kind of
education outreach but they are swamped with making assertions on
ownership and have not made a big effort to educate beyond the
short briefings they are providing to interested parties statewide.
CHAIRMAN HALFORD asked what is happening with regard to transfers
at this point. The DNR working group was successful but was
dropped and the Legislature had to appropriate funds. He asked if
conveyances are being reviewed by someone right now who is making
comment on every conveyance regarding public access and interests.
MS. CUNNING said two of the staff people look at all of the
conveyance documents. When it comes to the determination of
navigability, that is not really included within the conveyance
document unless an access easement is strictly based on that
determination at that time.
CHAIRMAN HALFORD said from navigable water to public property is
the definition of why a 17B easement is needed. He asked if she
was assuming that everything that could be navigable, is navigable,
in her request for 17B easements.
MS. CUNNING said yes, but as far as the federal determination of
navigability and those parts of meandering and surveying and title
ownership, that is not done within the conveyance process. It is
done prior to the actual ground survey and the patenting process.
CHAIRMAN HALFORD asked if, in this process, after they make a
request for 17B easements they get to review whether the easement
was granted and to complain if it was not.
MS. CUNNING said they get to see if it was granted, and if it was
not, they can protest or appeal, which they do if it is in an
important area with historical use.
CHAIRMAN HALFORD asked if 17B easements require historical use.
MS. CUNNING said it is called, in the register, present existing
use, but that was defined as of December 1976. If they are going
to appeal the lack of the reservation, then they frequently have to
include finding people or individuals who have used that area
during that time period.
SENATOR LEMAN asked what happened in December of 1976.
MS. CUNNING said a court decision was made at that time.
SENATOR LEMAN said he recently saw that date on something else, and
he could not recall the passage of a major piece of legislation at
that time.
MS. CUNNING clarified it was the date of a court decision.
CHAIRMAN HALFORD added it was probably a court case based on the
1971 act.
CHAIRMAN HALFORD asked Ms. Cunning if Alaska has a lot of wrongly
conveyed navigable water beds, and conflicting state and federal
determinations as to navigability, how Alaska can avoid 237 years
of legal cases, stream by stream, across the state.
MS. CUNNING said a number of states took action similar to what
Chairman Halford asked for at the last Senate Resource Committee
hearing. Those states actually asserted that the state owned
navigable waterways based on its definition of "navigability". She
noted there is interesting associated case law which the committee
might want to review. She added questions have come up during the
presentations she has given. For example, under the public trust
pieces of activities allowed on navigable waters under Alaska
statute, it says, "...these activities that are allowed on these
waterways include trapping...." She questioned whether a trapper
would be allowed up a frozen waterway to set traps even though the
submerged land may have been conveyed to a private upland owner.
CHAIRMAN HALFORD asked what the answer is to that question.
MS. CUNNING said they do not have an answer.
MR. ESTES said Alaska is in its infancy in terms of applying these
concepts as well as testing how the Alaska Constitution and state
laws apply to this topic. The state agencies are essentially
beginning with the educational process, so that they can look at
all of the options they have so that they can provide the answers
to Chairman Halford's questions in his letter and the Legislature
can choose among ideas to take action. He also suggested the
Committee might want to contact some of the nation's foremost
experts in this area because, although each state applies the
public trust doctrine in an individual manner, the law is still in
its evolutionary stages.
MS. CUNNING remarked other states are envious of language in
Alaska's Constitution and statutes, yet they have more case law
that defines what the public trust doctrine rights are. She
repeated it is worth reviewing case law from other states to assess
what Alaska does and does not have in statute, and where the
problems are occurring, so that Alaska can head off a long history
of court cases.
MR. ESTES added Alaska has a different hydrologic climate, in terms
of the duration of time the areas are frozen and its overall
climate, and many other state's histories are based upon a
different climatic situation. Alaska may have the opportunity to
advance the definition used elsewhere to definir what is navigable.
CHAIRMAN HALFORD stated avoiding court cases is a worthy goal but,
more importantly, the state needs to solve definitional problems to
avoid horrible situations in which people are getting killed for
doing what they thought was right. He noted he thought questions
should be asked of the Department of Public Safety.
MS. CUNNING said the Public Trust Doctrine only applies between the
banks of ordinary high water unless there is specific court action
that allows it to go upstream or up on the banks. There have been
some instances in other states where activities occurring in
uplands were affecting the water supply and the Doctrine was able
to be used to protect the water supply. The Doctrine does not
apply all over the entire State of Alaska. It only applies between
the ordinary high water marks.
CHAIRMAN HALFORD asked if it applies after something like a Forest
Practices Act has been enacted that creates a watershed protection
area around a stream that has significant value.
MR. ESTES replied the Public Trust Doctrine applies to those areas
between the ordinary high water of waterways that are defined as
being navigable under the federal definition which is a key point.
CHAIRMAN HALFORD asked if the Public Trust Doctrine applies to the
state definition even if it is successful.
MR. ESTES answered the state has its own definition of public trust
as a police power that is parallel to, but not the same as, the
Public Trust Doctrine. In the case of the Forest Practices Act,
the Public Trust Doctrine would be parallel to that Act on
navigable waters. Should the Forest Practices Act not provide the
desired protection in a navigable waterway, one might be able to
invoke the Public Trust Doctrine.
MS. CUNNING added the Doctrine applies to the tidelines.
CHAIRMAN HALFORD asked if it applies to whatever the state
territorial water is.
MR. ESTES said that is correct.
SENATOR TAYLOR asked if anyone in the room did not believe that the
state owns all of the land under the navigable waters. He noted
according to the decision in the Dinkum Sands case, written by
Sandra Day O'Connor, he believes the state does.
MS. CUNNING said no one disagrees the state owns the water and the
fish that swim within it.
SENATOR TAYLOR asked how, then, can the federal government attempt
to regulate Alaska's fish and waters.
MS. CUNNING suggested Senator Taylor look at page 316 of the green
book which describes the sovereignty issues between the state and
federal government. It discusses where federal supremacy applies
if there has been special federal legislation that modifies the
state's traditional role, such as the Marine Mammal Protection Act
or the Endangered Species Act.
MR. ESTES added that in the Public Trust Doctrine videotape series
some of the concepts raised by Senator Taylor are addressed.
SENATOR TAYLOR asked if that is for the protection of species.
MS. CUNNING replied each of those pieces of federal legislation has
its own purposes.
MS. GRACE commented in terms of state ownership of the resources,
the Alaska Supreme Court did refer to the fish as being state
resources for purposes of a prohibition on an initiative allocating
resources. The United States Supreme Court, however, has held that
the state does not own the fish in the sense of owning property.
The state has a trust duty to manage the fish for the benefit of
the public. That is constitutionalized in the state constitution
in the Common Use Clause and other provisions. The supremacy
clause of the United States Constitution says that federal law
shall be the supreme law of the land, anything in the constitution
or laws of the state to the contrary notwithstanding.
SENATOR TAYLOR questioned whether federal law preempts the Alaska
Constitution on the Public Trust Doctrine.
MS. GRACE replied the Public Trust Doctrine says the state has the
obligation to manage navigable waters for the benefit of the public
for fishing, navigation and commerce. The public trust obligation
that the state has to manage fisheries for the common use of all
people is a state constitutional obligation. The common law public
trust doctrine is also in Alaska's constitution under Section 3.
The supremacy clause expressly states that it preempts state
constitutional law.
SENATOR TAYLOR said he does not question that aspect, but asked how
the federal government can have supremacy or jurisdiction over a
subject matter that they no longer possess. There was a total and
complete conveyance of the tidelands and the navigable waters from
Congress to the people of the State of Alaska upon statehood. That
is why the state is the trustee.
MS. GRACE indicated had Congress conveyed the resources to the
state in a property sense, that argument might be viable, but a
state constitutional law sets the state up as a trustee with an
obligation to manage the resources for the benefit of the people.
Nothing in the U.S. Constitution would prohibit Congress from
regulating fisheries management.
SENATOR TAYLOR asked if he was misreading the Alaska Omnibus Act
which conveyed any property or interest in property owned or held
by the United States in connection with fish and wildlife
management to the State of Alaska.
MS. GRACE thought the Submerged Lands Act, which was incorporated
in the Statehood Act, has even stronger language that appears to be
a transfer of the fish themselves, but the U.S. Supreme Court has
held that the state does not own those resources in any legal
sense; it has a trust obligation in managing them.
SENATOR TAYLOR agreed and said that trust obligation was conveyed
to the Alaska Legislature and the courts.
MS. GRACE maintained it is conveyed in a federal law to the extent
that Congress passes a law that permits the state to manage
fisheries. Congress can later amend that law which it would
presumably argue it did in ANILCA.
SENATOR TAYLOR indicated he had a brief he would distribute to the
members of the NAV team and he would like their individual
responses to it regarding its logic and errors. He noted he does
not believe that Congress can unilaterally pass a law that abridges
and denies the obligations that it incurred with the people of this
state at Statehood. He added the property clause does not extend
to fish under any interpretation he is aware of. Neither the
federal nor state government own the fish, but the state has the
trust obligation to protect and utilize those fish in a non-
discriminatory fashion. He emphasized he is unaware of any trust
law in which the trustee can decide to allocate some portion of the
trust to one group of beneficiaries, and deny it to another.
MS. CUNNING stated that is clearly discussed in the Ostrosky
decision.
Number 253
SENATOR LINCOLN asked who wrote the brief distributed by Senator
Taylor.
SENATOR TAYLOR said a whole series of people have worked on it,
Ralph Seekins and Lynn Levengood being among them.
CHAIRMAN HALFORD noted a lot of questions remain, and the committee
needs to pursue this issue, at least with regard to minimizing on
the ground conflicts and legal conflicts.
MR. ESTES urged committee members to review the other videotapes in
the series as it is making a big impact on other states. He also
reminded committee members that the Public Trust Doctrine is common
law which is judge-made law, as opposed to legislative law, so its
future is more uncertain. The more informed policy makers are, the
more likely it is that judicial decisions will be made that move
Alaska in the right direction.
SENATOR TAYLOR commented that one way that the common law countries
handled the very same problem by referring to it as the Queen's
Chain. The property that is within one chainlink back from the
cutbank of a river is available for the public to traverse in the
utilization of fishing.
CHAIRMAN HALFORD thanked NAV team members for their efforts and
responses.
CSHB 285(RES) am - COMM. FISH PERMIT/LIC. REVOCATION
SENATOR GREEN moved to adopt SCS CSHB 285(RES), version Q, as the
working document of the committee. There being no objection, the
motion carried.
BRETT HUBER, Senate Resources Committee Aide, discussed the changes
made in the committee substitute as follows. First, he noted on
page 2, line 9 of the committee substitute, the number 4 was
handwritten in.
The first change in the committee substitute is on page 2 in the
listing of violations and points. Several two point violations
appeared in the original version of the bill. The committee
expressed concern that those violations could occur erroneously,
therefore those two point violations were removed from the
committee substitute.
The second change is also on page 2. The original bill provided
that an offender who admitted to an offense and paid the fine,
would be charged with a violation rather than a misdemeanor, and
would get half the amount of points. That provision was removed
because it provided an incentive to purposely violate since it
could make economic sense in. By merely paying the violation, one
could reduce his/her points by half, which only made the cost of
doing business a little higher.
The next change on page 3 removed a provision that allowed a two-
point reduction in the total cumulative points for every 12-month
period that a permit holder went without another violation.
The fourth change is on line 25, and adds subsection (b). This
provision says a permit holder whose privilege has been revoked may
not engage in the fishery either as a crew member or renting of the
boat to be used in the same fishery from which he/she is suspended.
The concern with that provision was the scenario in which several
family members work one permit, through transfers, so that
provision would limit the economic association with the fishery if
the person's permit was suspended.
The final change is on page 4, line 12. Basically, the bill
disallows emergency transfer of a permit if a person's privileges
were suspended, but there is a loophole in that if someone had 10
points and was charged with another six point violation, a person
could do an emergency transfer of the permit before the six point
violation was adjudicated. This provision disallows emergency
transfers if one has pending violations that would total more than
the allowable points.
CHAIRMAN HALFORD summarized the two basic areas of change as: the
way to stop the family members with the economic association crew
member license and the emergency transfer provision; and how the
points are counted. The minor violations that have no economic
impact on the fisherman were removed. The permit holder not
present violation was dropped from six points to four points
because that is a nebulous area. And, the provision that removes
two points for being good was deleted. He commented he was
originally interested in tying the bill back to the permit. He met
with the Division of Investments' and CFAB staff and they pointed
out many problems associated with that approach. If this bill does
not work after a few years, he would like to readdress that
approach. He noted that using a market approach by devaluing
permits with points against it would provide a strong disincentive.
MR. HUBER stated one open question remains, that being who is
charged if a permit holder is on board asleep and another crew
member commits a violation. He noted that Mr. Hard from the
Department of Public Safety (DPS)was on teleconference and would
respond to questions.
CHAIRMAN HALFORD said that kind of situation happens when a permit
holder is hired by a boat owner. If the only person who gets
charged is the permit holder, even though the boat owner committed
the violation, the boat owner can just hire a different permit
holder the next season. He asked Mr. Hard whether DPS only cites
the permit holder or does DPS cite the operator if the operator and
permit holder are in a partnership and the operator makes the
decisions.
MR. JOEL HARD, Division of Fish and Wildlife Protection, replied
DPS cites both when it can clearly tie the two.
CHAIRMAN HALFORD asked if this bill can then apply to a person who
does not hold a permit.
MR. HARD said that is correct.
CHAIRMAN HALFORD asked the sponsor's staff to comment on the Senate
Resources SCS.
TOM WRIGHT, staff to Representative Ivan, stated Representative
Ivan is concerned about eliminating half-points for violations.
The main concern is that two types of violations exist: a
misdemeanor is committed if there is intent to commit an offense as
opposed to a violation in which a permit holder might drift into
closed waters while asleep at the wheel. The sponsor believes the
half-points for violations should remain in effect. Representative
Ivan's second concern is the elimination of the two point reduction
for no violations within a one year period after a conviction
because it provides incentive to keep one's record clean.
CHAIRMAN HALFORD asked what the ratio of violations versus
misdemeanors is. He noted he understood that in all but the most
obvious cases, offenses are charged as violations because intent
must be proved, which is difficult to do.
MR. HARD replied in most cases, the criminal act is charged as a
misdemeanor initially, and for reasons of convenience at the
prosecutorial stage, many are reduced to violations where the
burden of proof is reduced. There is an incentive for defendants
to quickly adjudicate the matter through the lower penalties.
DPS's position is that by getting too tough, it threatens its
ability to enforce the regulations. When costs become so great or
threatening to fishermen, more intense and regular defenses will
result, and they will undoubtedly take DPS officials out of the
field to answer those defenses. DPS does not want to encourage
that and would like to see the violation point schedule retained.
CHAIRMAN HALFORD asked if Representative Ivan would like to see the
point schedule be doubled for violations versus misdemeanors.
MR. HARD asked for further clarification.
CHAIRMAN HALFORD explained the bill cut the point schedule in half.
All of the points would have to be doubled to have any effect on
violations.
TAPE 98-32, SIDE A
MR. HARD said under the current draft, the points are aimed against
the misdemeanant.
CHAIRMAN HALFORD explained that is correct because otherwise, it
takes four of the worst violations at six points within a three
year period to have any impact at all. Former Deputy Commissioner
Swackhammer made a major push to catch violators. Some people had
three or four violations within one fishing season but the fines
the violators paid were written off as a cost of doing business.
Chairman Halford said he is concerned that if we go all of the way
back to half the points, the schedule will never apply to anyone.
MR. HARD stated DPS is in its second fishing season of having a
district attorney who clearly oversees all of its commercial
fishing cases, primarily in the Bristol Bay area. DPS believes it
will not see those sorts of reductions that it has seen in past
cases, or at least there will be more argument against the
reductions in court.
CHAIRMAN HALFORD said he can understand the incentive to encourage
people to go down the scale, but he hates to give them half of the
points. He questioned whether there is anything in between that
still provides incentive to not contest, without making the
schedule out of reach.
SENATOR TAYLOR stated he has been frustrated by the gross numbers
of violations in the Bristol Bay fishery. He noted ADF&G has had
the ability to enforce those lines and do it in such a way that it
would have significant impact upon violators since day one. ADF&G
has always had the right to forfeit a vessel. Instead, it does not
opt to do that although it forfeits airplanes on guides frequently.
He stated the Legislature passed legislation that created the
violation approach which brings DPS a lot more revenue off of a
whole bunch of cases it did not want to have to try. They write
the cases up as misdemeanants assuming 90 percent will plead out
and not go to trial. Senator Taylor stated the Legislature needs to
make a philosophical decision about whether the state is going to
get serious about patrolling for violators in that area. He said
there should be some notification requirement for fishermen who are
in the process of crossing into a closed fishing area because of
engine failure or other uncontrollable situations so that those
fishermen do not get cited for violations when circumstances were
beyond their control.
CHAIRMAN HALFORD questioned whether cutting the points in half for
a first violation, but not for the second one within a 36 month
period, no matter whether it is a misdemeanor or a violation. He
stated he wants to give DPS and the prosecution the incentive to
plead out because it is a practical application that has a
deterring effect.
Number 143
SENATOR LINCOLN commented this bill will apply to all of Alaska,
not only Bristol Bay, and she is concerned that a person could
easily get 12 points in one season for doing something erroneously,
which is not the intent of the bill. She discussed a situation her
cousin found herself in when someone used her set net without her
knowledge. She was then forced to go and pick the net up which was
in closed waters. Her second concern is if this bill is enacted,
more violators will challenge their citations and the fiscal note
should not be zero.
CHAIRMAN HALFORD said, as Senator Taylor pointed out, this bill
will create another tool and DPS does not even use all of the tools
it has. He thought providing the flexibility to be lenient on the
first violation would work. He asked Mr. Hard if a fishermen had
a net in the water in a closed area, whether that fishermen would
be charged with fishing in closed waters or fishing out of season.
MR. HARD said it would be a closed waters citation and would not be
both.
CHAIRMAN HALFORD said that is why the two point violations were
removed because those types of violations do not make fishermen
money, they were usually mistakes.
SENATOR LINCOLN asked if DPS would cite a violator for both fishing
with gear not allowed in the fisheries and for possessing
prohibited size fish, which would add up to 12 points.
CHAIRMAN HALFORD said he was sure there were some combinations.
SENATOR LINCOLN questioned whether the maximum could be six points
for one incident.
CHAIRMAN HALFORD asked Mr. Hard to address that question.
MR. HARD replied each case is evaluated on its individuality by the
trooper's assessment. In cases where someone has committed an
egregious violation and multiple violations, multiple citations
could be issued and boats could be seized as well. Regarding the
scenario described by Senator Lincoln, he did not believe multiple
citations would be issued.
CHAIRMAN HALFORD asked Senator Lincoln what happened in her
cousin's situation.
SENATOR LINCOLN said she did not know what happened, she assumes
her cousin paid the fine.
SENATOR LEMAN remarked the gear was stolen.
SENATOR LINCOLN stated the state troopers do no know that. Her
cousin was cited for fishing in closed waters.
CHAIRMAN HALFORD suggested including a provision that decreases the
number of points by half for the first violation. That would
provide an incentive to plead out and take some of the load off of
the criminal justice system, but it still strengthens the schedule
against major violators.
Number 245
MR. WRIGHT stated he would have to speak to the sponsor, but did
not see anything wrong with that approach at first blush. He asked
whether that would apply to a second violation for the same
violation or for any violation.
CHAIRMAN HALFORD clarified the first time, no matter what the
violation is, the offender gets half the amount of points. The
second time the offender gets any violation, the full number of
points would be assessed.
CHAIRMAN HALFORD said the other question that remains is in regard
to the provision that gives two points back for each year a
violator gets no citations.
SENATOR TAYLOR stated some years ago he and Judges Hornaday and
Keane traveled all over the state and held hearings about the topic
of fish and game violations and disparate sentences, meaning
sentences that were dramatically different for the same offense.
The three judges recommended to the Supreme Court that a few more
people needed to be involved in the sentencing process at the
district court level, and that the judiciary needed to be better
educated about what was a meaningful violation. The Judiciary
disregarded the recommendations. Senator Taylor stated ADF&G
commits just as many errors as does the other side.
SENATOR GREEN moved to adopt a conceptual amendment dealing with
first violations at half points.
SENATOR TAYLOR clarified the amendment should specify within a 36
month period. He asked if the points are reinstated if a second
violation occurs.
CHAIRMAN HALFORD explained if a person commits a first violation,
not a misdemeanor, he/she will receive half of the points.
CHAIRMAN HALFORD stated there being no objection to the adoption of
the conceptual amendment, the motion carried.
Number 338
CHAIRMAN HALFORD stated there was a question on the two points per
year of no violations. The sponsor was concerned about that
provision. Chairman Halford said he would like to make the bill as
strong as possible but does not want to make it unworkable. He
clarified the bill allowed two points every year.
MR. HUBER said that was correct, two points every year from the
date of the last conviction. It was modeled after provisions in
the drivers' license program.
SENATOR LEMAN remarked according to the fiscal note there are 600
to 800 convictions per year. He asked the number of permit
holders.
MR. WRIGHT replied 12,000.
SENATOR LEMAN noted five per cent of permit holders are violators.
He noted he has been fishing for 40 years and has no accumulated
points. He emphasized a person has to be a nasty violator to
accumulate points.
CHAIRMAN HALFORD stated there did not appear to be committee
support to put back in the two points.
SENATOR LEMAN thought it was unnecessary.
MR. WRIGHT said once a violator gets 12 points, he/she is stuck
with the 12 points forever.
CHAIRMAN HALFORD clarified it is for three years.
Number 374
BRUCE TWOMLEY, Chairman of the Commercial Fisheries Entry
Commission, brought the committee's attention to page 4, lines 12-
16. The first part of Section D relates to not doing emergency
transfers when a permit is suspended or when enough points have
been accumulated. The last part relates to denying emergency
transfers when charges are pending charges, that might lead to a
suspension, would have the effect of prohibiting the transfer,
although he/she might chose to defend himself and became disabled
while fishing.
CHAIRMAN HALFORD said that interpretation is rare but possible.
SENATOR LEMAN suggested making an exclusion for medical transfers.
CHAIRMAN HALFORD noted that is what emergency transfers are usually
for. He stated that would take three violations. With the
amendment just adopted, no first violation will carry more than
three points, therefore it will take a third violation to
accumulate 12 points.
SENATOR TAYLOR said it depends on whether the charge is a violation
or a misdemeanor.
CHAIRMAN HALFORD remarked misdemeanor convictions require proof of
intent.
COMMISSIONER TWOMLEY suggested including an exception for a bona
fide medical emergency.
CHAIRMAN HALFORD asked what the other reasons are for an emergency
transfer.
COMMISSIONER TWOMLEY replied special sessions for legislators, but
the biggest category is medical.
SENATOR LEMAN suggested making an exception for life threatening
circumstances.
CHAIRMAN HALFORD suggested including a time limit.
COMMISSIONER TWOMLEY suggested including a physically disabling
medical emergency exception.
CHAIRMAN HALFORD questioned the result of allowing an emergency
transfer for a 30-day period only, which could be the entire
Bristol Bay season.
SENATOR TAYLOR did not think that would work well in Southeast
because the seining season lasts for 90 days. He stated in the
three brothers situation, the license would have to be sold.
SENATOR LEMAN thought it is quite unlikely that this circumstance
is going to happen.
The committee took a brief at-ease.
CHAIRMAN HALFORD suggested deleting lines 12-16 on page 4.
SENATOR TAYLOR so moved. There being no objection, the motion
carried.
MR. WRIGHT asked, on the point system where a permit holder
accumulates 12 or more points during a 36-month period, his/her
license is suspended for one year. If a permit holder gets 16 or
more points during a 48-month period, the suspension is for two
years, and if 18 or more points during a 60-month period, the
suspension is for three years, how that will work if the points are
dropped after 36 months.
CHAIRMAN HALFORD explained the points do drop off but not until the
end of the 60 month period.
SENATOR GREEN clarified three years are rolling.
Number 490
MR. HARD said, "If they don't just go away, what happens is from
the time a person is cited, you go back 12 months, 36 months, or 48
months, and if there are no other violations within that period,
that's how it's factored. Actually when I looked at it that way I
thought that dropping the points was probably redundant to this
system anyway."
MR. WRIGHT thanked Mr. Hard, and noted if a person is clean for
five years, they are starting over again.
Number 526
JERRY MCCUNE stated if people live way out in a village and have no
other way to make a living, they would put themselves out of
business by doing away with their permit, but the bill should not
prevent them from crewing for the season.
CHAIRMAN HALFORD remarked that person got him/herself into that
position by a serious string of violations.
SENATOR TAYLOR asked if the crew members get cited along with the
captain.
CHAIRMAN HALFORD said not necessarily. He asked Mr. Hard if crew
members who are not making the operational decisions are generally
cited.
MR. HARD said not generally.
CHAIRMAN HALFORD asked if crew members are cited if it looks like
they are running the operation.
MR. HARD said that is correct.
SENATOR TAYLOR noted everyone on a boat in Southeast Alaska is
charged with the same offense.
Number 526
MR. MCCUNE suggested prohibiting the permit holder from crewing on
his or her own boat. He stated his intent is not to defend repeat
violators, but to recognize the fact that in some villages there is
no other kind of work.
CHAIRMAN HALFORD suggested having the bill pertain to a permit
holder or person in charge of the boat.
MR. HARD said he thought Mr. McCune was trying to get at the
individual permit holder out in Western Alaska, who by virtue of
poor fishing, loses his permit. Then, his only course of income is
to become a crew member on another person's boat. He thought the
bill might be too harsh in that circumstance, but not in the
circumstance referred to by Chairman Halford.
CHAIRMAN HALFORD stated they pose two different questions, and the
committee might be trying to go beyond where it can reach.
MR. WRIGHT noted there might be circumstances where the skipper is
operating the boat but it does not appear that way, which could
cause a lot of confusion in the courts.
MR. TWOMLEY indicated the state has very tight records regarding
who is a permit holder. Crew members hold licenses, but there is
no way of knowing what boat they were on and following their
progress through a fishery.
CHAIRMAN HALFORD commented that he thought the way it is drafted
works because also the person you are worried about as a crew
member doesn't have a permit anyway.
Number 568
There being no further testimony on HB 285, CHAIRMAN HALFORD
requested a motion on the legislation.
SENATOR TAYLOR moved SCS CSHB 285(RES) and the accompanying fiscal
note be passed out of committee with individual recommendations.
Hearing no objection, it was so ordered.
There being no further business to come before the committee, the
meeting adjourned at 6:00 p.m.
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