Legislature(1999 - 2000)
03/17/1999 03:10 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
March 17, 1999
3:10 P.M.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Robin Taylor, Vice Chairman
Senator Jerry Mackie
Senator Lyda Green
MEMBERS ABSENT
Senator Sean Parnell
Senator Pete Kelly
Senator Georgianna Lincoln
COMMITTEE CALENDAR
SENATE BILL NO. 90
"An Act providing that the state has exclusive jurisdiction to
manage fish and game; providing that the state is the only entity
to which the federal government may delegate jurisdiction over
management of fish and game; and providing that a state agency or
employee may not engage in law enforcement activities to enforce a
federal law that preempts or supersedes state management of fish
and game."
-HEARD AND HELD
SENATE BILL NO. 68
"An Act relating to cooperation with federal programs relating to
management of fish and game."
-HEARD AND HELD
SENATE BILL NO. 91
"An Act relating to enforcement of subsistence hunting and fishing
laws; and repealing the authority of the commissioner of fish and
game to assist in the enforcement of federal laws and regulations
pertaining to fish and game."
-SCHEDULED BUT NOT HEARD
SENATE JOINT RESOLUTION NO. 13
Relating to the membership of the Pacific Salmon Commission.
-SCHEDULED BUT NOT HEARD
PREVIOUS SENATE COMMITTEE ACTION
SB 90 - No previous action to consider.
SB 68 - No previous action to consider.
WITNESS REGISTER
Ms. Mel Krogseng, Aide
Senator Taylor
State Capitol Bldg.
Juneau, AK 99811-1182
POSITION STATEMENT: Commented on SB 90 for Senator Taylor, sponsor.
Major Joe D' Amico, Enforcement Commander
Division of Fish and Wildlife Protection
Department of Public Safety
5700 E Tudor
Anchorage, AK 99507-1225
POSITION STATEMENT: Commented on SB 90.
Mr. Myles Conway, Assistant Attorney General
Department of Law
1031 W 4th Ave., Ste 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Commented on SB 90.
Mr. Brett Huber, Aide
Senator Halford
State Capitol Bldg.
Juneau, AK 99811-1182
POSITION STATEMENT: Commented on SB 68 for Senator Halford,
sponsor.
Mr. Geron Bruce, Legislative Liaison
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, AK 99802-5526
POSITION STATEMENT: Opposed SB 68.
Mr. Wayne Regelin, Director
Division of Wildlife Conservation
Department of Fish and Game
P.O. Box 25526
Juneau, AK 99801-5526
POSITION STATEMENT: Opposed SB 68.
Mr. Carl Rosier
8298 Garnet
Juneau, Ak 99801
POSITION STATEMENT: Supported SB 68.
ACTION NARRATIVE
TAPE 99-13, SIDE A
Number 001
SB 90-STATE JURISDICTION OVER FISH & GAME
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:10 p.m. and announced SB 90 to be up for consideration.
MS. MEL KROGSENG, Staff to Senator Taylor, sponsor, said SB 90 was
introduced to bolster Alaska's sovereign authority to manage its
fish and game resources as provided by the Alaska Statehood Act.
Alaska is currently fighting the federal government's encroachment
into Alaska's sovereign ability to manage these resources.
Recently, the Governor officially notified the federal government
of Alaska's opposition to federal regulations regarding the
management and harvest of Alaska's fisheries resources in Glacier
Bay. SB 90 is intended to preempt the federal government from
exercising management over Alaska's fish and wildlife resources.
MAJOR JOE D'AMICO, Enforcement Commander, Division of Fish and
Wildlife Protection, supported the intent of SB 90, but Section (d)
is problematic and inconsistent with some of their objectives.
Most notably is his concern about whether or not the Division would
still be able to use the Lacey Act as a tool to reach out and
apprehend nonresident hunters and fishers who violate state law and
flee or leave Alaska's jurisdiction. They are also concerned that,
since officers are cross-deputized, if state personnel are unable
to assist federal agencies, they would no longer be able to assist
us. Currently, the Department benefits a great deal by assistance
from federal agencies, most notably the Coast Guard, the Marine
Fishery Service, and the U.S. Fish and Wildlife Service. They
assist us usually, not the other way around, he said.
MAJOR D'AMICO explained that the Lacey Act allows the federal
government to step in and prosecute persons who violate state law,
but who leave our jurisdiction. A recent case was a well known
host of a hunting show who was convicted of a same-day airborne
violation and then left the state. We weren't able to extradite,
because the Department of Law has a policy not to extradite
anything less than a class B felony. The federal government was
able to use our underlying same-day airborne law to file a federal
Lacey Act charge against this person. In fact, he was convicted in
federal court for our violation. He was afraid they would lose the
ability to cross-deputize if this bill passes.
SENATOR TAYLOR responded in the example he cited that the reason we
didn't prosecute in the state is not because of a law, but because
of Department of Law policy not to extradite for that type of an
offense. Provision (d) talks about restricting a state employee
from participating with a federal agency to enforce a federal law,
not a state law, that preempts or supersedes state management of
fish and game. He didn't see how the example would fit within
that.
Number 115
MAJOR D'AMICO said that is a good point, but in this particular
case our troopers assisted in the federal investigation because we
wound up using the federal law to bring this person back to justice
in Alaska. He understood Section (d) to mean that the Department
of Public Safety would be precluded from assisting in enforcement
of a federal law.
SENATOR TAYLOR repeated that Section (d) speaks specifically to
enforcement of a federal law that preempts or supersedes our law.
He thought it would provide him with an additional tool to overcome
a policy set by the Department of Law that prevents him from
extraditing people. Although he thought the reason DOL didn't want
to extradite was because of the cost.
CHAIRMAN HALFORD asked if the Lacey Act violations are only
felonies while all the other underlying state violations are
misdemeanors.
MAJOR D'AMICO answered that the Lacey Act has felony and
misdemeanor provisions. What triggers them is the amount of
commerce the violation incurred.
CHAIRMAN HALFORD asked if virtually all big game violations were in
excess of $500.
MAJOR D'AMICO replied that a Ninth Circuit Court of Appeals
decision saying that guiding fees can no longer be used to
determine the value of a hunt was the most current interpretation
and he didn't know if it was on appeal.
CHAIRMAN HALFORD asked if sheep horns and capes were worth more
than $500.
MAJOR D'AMICO replied with that Ninth Circuit ruling they were no
longer able to assign values to the animals like we do in State
statutes. The federal government doesn't recognize that at this
time.
CHAIRMAN HALFORD said he would be interested in seeing where they
turned down a felony based on the value. He can't believe any of
the significant big game violations aren't of felony values in
terms of the trophy.
MAJOR D'AMICO replied that the Ron Hayes a few years ago was
charged with a felony, but part of the reason he met felony
criteria was because of his past violations. On animal parts sales
it's fairly easy to get to a felony Lacey Act, but on the regular
old hunt it's much more difficult. He thought that was right,
because the misdemeanor provisions of the Lacey Act are
significant. They can be fined upwards from $100,000.
Number 230
SENATOR MACKIE asked Senator Taylor for an example of what he is
trying to accomplish.
SENATOR TAYLOR responded that currently the Glacier Bay situation
is an example and this act would prevent our fish and game officers
from being placed in the very uncomfortable situation of enforcing
federal law in Glacier Bay against Alaskans.
SENATOR MACKIE said that was near and dear to him and asked for
another example. He asked how this would apply to federal
management of a subsistence resource.
SENATOR TAYLOR replied that subsistence would be part of it.
SENATOR MACKIE asked if that means that the federal government, if
they took over management, would not be able to contract with the
State of Alaska for enforcement.
SENATOR TAYLOR answered yes.
SENATOR MACKIE asked if it was an issue of a federal officer
enforcing a federal regulation and requesting the assistance or
backup of a state official.
SENATOR TAYLOR said he wanted it to apply to both instances. He
didn't want the state's employees to be utilized to enforce a
federal law that currently violates the State Constitution and is
not a law passed by the people of Alaska.
SENATOR MACKIE responded that his concern is, having been in law
enforcement in a rural area himself, a lot of times the local law
enforcement personnel need assistance from federal people. If
there is a threat to health or life of the officer, he has a real
problem. He asked if there was a federal officer attempting to
enforce a federal law because the federal government came in and
took over mange, would Mr. D'Amico feel he was restricted in
allowing his officers to be able to assist that individual.
MAJOR D'AMICO answered that, if he understands the bill correctly,
he would be precluded from assisting a federal officer who is
enforcing federal law.
SENATOR MACKIE asked even if he was being assaulted or having his
life threatened.
MAJOR D'AMICO said that's how he understood it.
SENATOR MACKIE said that was his problem.
SENATOR TAYLOR said if an officer's life is in danger, we are not
talking about a fish and game law. We are talking about a criminal
law. There is nothing in this bill that would preclude State
officers from responding to assist federal agents in that instance.
He thought the officer would have the right to deputize anyone on
the spot. This bill just precludes our officers from going out
with our airplanes and providing them with the transportation to
arrest a fellow Alaskan who happens to have the wrong zip code on
his driver's license.
SENATOR MACKIE responded that he wished law enforcement officials
had the ability to make that kind of judgement. Unfortunately,
sometimes there is potential danger and that takes preplanning.
They would be precluded from requesting backup assistance under
this legislation. The whole reason for backup is to avoid that
type of situation. Under Senator Taylor's scenario, a person would
have to be shot or assaulted before a crime had been committed and
then state law enforcement officials could come in. He guaranteed
him that it didn't work that way.
SENATOR MACKIE said he could not support this bill as long as that
issue is unclear.
MR. MYLES CONWAY, Assistant Attorney General, testified on
Subsection (a) saying while they support the intent, it essentially
provides that the State has exclusive management authority over
fish and game resources. He is concerned that this statute would
lead to the expectation that federal authority and federal
management had been defeated when, in fact, it has not. Although
the scope of federal authority can be debated, there is no doubt
that there is some level of it and he is concerned that a person
reading the statute would think that it did not exist.
Unfortunately, we are not able to defeat federal authority with a
state statute. Federal courts will look to the federal
constitution and federal statutes in defining the scope of that
authority.
Subsection (b) provides that management authority cannot be
delegated to a person, group, or government agency. It's currently
the Department's position that discretionary management authority
over fish and game cannot be delegated. There is a July 31, 1986
Attorney General's opinion that distinguished between management of
discretionary and ministerial functions. It defines that
discretionary functions such as management or rule making cannot be
delegated.
MAJOR D'AMICO agreed that discretionary rule making functions could
not be delegated. In the fish and game context that would mean
allocations and that level of decision couldn't be delegated. More
ministerial functions like studies and fish counting could be
delegated.
CHAIRMAN HALFORD asked for a written statement saying that opinion
was the official position of the Department of Law. He asked how
it applied to co-management agreements.
He noted that in Subsection (c) the statute provides that the
federal government cannot delegate management authority and he is
concerned that this language might lead to the expectation that the
federal government has no authority to delegate. Again, the scope
of federal authority to delegate is going to be defined by federal
statute and the federal constitution and, unfortunately, we are not
able to limit that with a state statute.
Number 347
SENATOR MAKCIE asked Senator Taylor if the federal government
assumes management of subsistence resources in the State, why would
we not at least have the option for the State of Alaska to contract
the enforcement of the management with our own state troopers.
SENATOR TAYLOR replied that we do and it's covered in paragraph
(c).
SENATOR MACKIE said his concern was federal agents harassing our
citizens. He would rather have our own people enforcing the laws
and protecting the resources.
SENATOR TAYLOR said paragraph (c) provides that opportunity, but it
would require an amendment on line 7 after the word "or" to insert
"contract with to" administer federal authority. He explained that
he is attempting to say if the federal government is found by a
court of competent jurisdiction to have the jurisdiction over a
fish or game species within the state, the only entity they could
contract with recognized by the State of Alaska would be the State
of Alaska. This would stop them from using the "Pinkertons."
CHAIRMAN HALFORD asked Mr. Conway if the State could, by contract,
do that which is unconstitutional under our constitution with State
officers.
MR. CONWAY answered no, we can't avoid our constitutional
obligations to our contract.
SENATOR TAYLOR added that's after a finding by a federal court.
SENATOR MACKIE asked if they had already found that. He repeated
that Section (c) is still not clear to him.
SENATOR TAYLOR offered his amendment on page 2, line 7 after "or"
insert "contract with to".
SENATOR MACKIE asked if that would include the enforcement.
SENATOR TAYLOR answered that would provide for it. There were no
objections and the amendment was adopted.
SENATOR MACKIE said he still had an objection to the other issue.
Number 400
SENATOR GREEN asked if the scope of this legislation was very
narrow, especially the last line, "May not engage in police
activities or other law enforcement activities to enforce a federal
law that preempts or supersedes state management of fish and game."
SENATOR MACKIE said he thought if it's done through contracting,
it's not an issue. He said he has been in this type of situation
as an enforcement officer and the federal officers assisting local
officers in the enforcement of a crime are Alaskans most of the
time even though they work for the federal government. He
emphasized that he has a problem with having a statutory
prohibition for assisting.
SENATOR TAYLOR responded that the only restriction in the bill is
the prevention of our people and equipment from being utilized to
harass people in Glacier Bay today.
SENATOR MACKIE said he didn't disagree with that. In fact, he was
totally insulted when he heard that had taken place. However, his
problem is if there is a situation where the feds required backup
and we were statutorily requiring our officers not to provide it
and he didn't know how they would work around it.
SENATOR TAYLOR responded if the federal officer knows that he's not
going to get free transportation or any backup, maybe he'll think
twice before he goes out there to hassle some Alaskans in Glacier
Bay.
SENATOR TAYLOR moved to pass CSSB 90(RES) from committee with
individual recommendations. SENATOR MACKIE objected.
CHAIRMAN HALFORD announced since there were only four members, they
would hold the bill.
SB 68-COOPERATION WITH FEDERAL AGENCIES
CHAIRMAN HALFORD announced SB 68 to be up for consideration.
MR. BRETT HUBER, Aide to Senator Halford, said the intent of SB 68
is clear. If the federal government takes action to preempt our
state's authority to manage our fish and game resources, they need
to pay the bill. Anything less is simply an unfunded federal
mandate. SB 68 does not prohibit cooperation with federal
agencies. It merely requires that when federal actions restrict
state management of fish and game resources, the State will be
reimbursed for any action taken that aides in the preemptive
effort.
The determination of what actions constitute a restriction of state
management and what costs should be appropriately allocated between
the state and federal agencies is left, in a great degree, to the
discretion of the commissioner of ADF&G. In reviewing fiscal notes
prepared for the original version of the bill, the Department
appeared to have misinterpreted the intent in regard to the impact
on current management programs funded with Wallop-Breaux,
Pitman/Robertson, and Dingle/Johnson monies. The bill was never
intended to preclude the continued utilization of those federal
dollars or their compliance with associated reporting requirements.
In those cases the federal government is paying their way. When
and if programs using federal aid dollars come into conflict,
programs can always be redirected to areas without preemption
conflicts and where Alaskans would benefit from a more aggressive
management program. In order to clarify the bill's intent and to
provide a additional direction to the Department, Mr. Huber
presented the committee with a proposed committee substitute,
LSO351\G.
MR. HUBER continued saying that language in AS 16.05.145(a) further
clarifies that the federal reimbursement required in instances
where state management is restricted is limited to the additional
costs incurred by the state to cooperate with the federal program.
In addition, corresponding references in the reporting requirements
in Subsections (b) and the delineation of the related costs, the
commissioner should consider and Subsection (c) have also been
changed to reflect the clarified intent.
The committee substitute also adds a new Subsection (d) which
provides the commissioner broad direction in determining the
federal expenditures of state funds. It directs the commissioner
to prorate the share in proportion to the extent the federal
program restricts state management of the resource for which the
funds have been expended.
MR. HUBER concluded that congress and the federal courts have made
it clear that states shouldn't be faced with bearing the brunt of
unfunded federal mandates. During this period of severe state
budget constraints, it's important the federal government pays its
fair share, especially when it's their intent to preempt
traditional management of state resources. Anything less is simply
an unfunded federal mandate.
SENATOR MACKIE moved to adopt the committee substitute dated
3/12/99G\Utermohle. There were no objections and it was so
ordered.
Number 490
MR. GERON BRUCE, Legislative Liaison, ADF&G, said they have looked
at the committee substitute and their comments apply to it. The
sweep of SB 68 is so broad they can't be certain which fish and
wildlife management programs will be implicated. It goes far
beyond the issue of dual management of subsistence. Obvious
examples of programs likely to be impacted include the Pacific
Salmon Treaty, State/Federal cooperation, and interaction in the
management of migratory waterfowl, pacific cod, Bering Sea crab,
scallops, and rock fish. In each of these instances federal rules
limit or restrict how the State manages certain of its resources.
In some cases the federal government has provided funding in
recognition of the impact federal rules have on the State and in
other instances they don't provide funding.
Even in instances where federal funding is provided, they never
cover the full cost to the State as required by SB 68. We commit
state dollars to these programs because of the benefits accrued to
Alaskans. In all of the above fish and wildlife management
programs, part of them would be prohibited from cooperating with
the federal government, because of they don't pay the full cost for
State cooperation.
MR. BRUCE said no one can foresee the complete picture as it might
play out and this is one of their concerns with SB 68. A few
examples will illustrate the kinds of consequences that can be
expected. If the State of Alaska refused to cooperate with the
federal government in the implementation with the terms and
conditions of the Pacific Salmon Treaty, it would probably result
in the preemption of management of several fisheries in Southeast
Alaska. This includes our recreational and commercial chinook
salmon fisheries, our boundary area sockeye, pink, chum, and coho
fisheries, and the Transboundary fisheries off the Stikine, Taku,
and Alsek Rivers.
Similar consequences could also befall the Alaskan fisheries
harvest in the Yukon River chinook and chum salmon. He said Mr.
Regelin would have examples relating to wildlife. Sharing
management responsibilities with the federal government can be
problematic for the federal government, but it can also bring
benefits to our State. For example, by cooperating with federal
managers and operating under the Magnuson/Stevens Act, the State
has been able to generate significant new economic opportunity in
groundfish and crab fisheries. The Community Development Quota
Program was a result of state/federal cooperation.
Number 540
CHAIRMAN HALFORD asked him how the unfunded mandate is determined.
Who decides which percentage should be federal and which should be
state.
MR. BRUCE said he thought the committee substitute leaves it to the
discretion of the commissioner.
CHAIRMAN HALFORD commented that the commissioner of ADF&G decides
if the State is getting its fair share of the co-management effort
and asked why the commissioner would decide against himself in
determining that the State is not getting its fair share of federal
dollars.
MR. BRUCE said he didn't really understand the question.
CHAIRMAN HALFORD explained that there is co-management and all the
comanagement agreements are fine as long as the State is getting
it's money's worth. The person who decides that is the
commissioner of ADF&G.
MR. BRUCE responded that it would be a judgement call and different
people would call it in different ways. Any call would be certain
to be second-guessed by a number of people. The federal government
might also have a different opinion. The consequence of this is
that the necessary relationship between these two governments
breaks down and there's rupture that could come back and harm
Alaskans who are involved in fisheries harvesting those resources
and we could have federal preemption.
He continued saying examples of federal laws that restrict our
management of fish and game currently on the books are the Pacific
Salmon Treaty, the Migratory Bird Treaty, the Marine Mammal
Protection Act, the Endangered Species Act, the Magnuson/Stevens
Fisheries Conservation Act, and ANILCA.
As the on-the-ground managers of fish and wildlife, the Department
must look for practical ways to manage these resources for the
maximum benefit of Alaskans, MR. BRUCE said. One of the ways to
minimize the detrimental impacts of dual management is to work with
federal managers in an attempt, given our divergent interests,
using the process where we can attempt to persuade and influence
the federal program managers to be responsive to the rights, the
desires and the values of Alaskans. They are concerned that SB 68
will preclude the Department in many instances from availing
themselves of that ability, because there won't be agreement on
what's the appropriate share.
CHAIRMAN HALFORD tried to clarify that you can't spend more than
you get value for and you get to decide if you get value for it.
MR. BRUCE asked if the bill also provides if the feds are not
paying for those programs, we can't cooperate with them.
CHAIRMAN HALFORD responded after the Department makes that
determination.
MR. BRUCE said that the feds could have a different estimate of
what they should pay and if that can't be resolved, we are in a
situation where this bill would prohibit us from cooperating with
them. That's their concern.
SENATOR MACKIE said that he was concerned that it won't effect just
hunting and sportfishing, but commercial fisheries, as well. He
asked what effect if would have on participants in the commercial
fisheries.
MR. BRUCE answered that their concern is that it could lead to
federal preemption of the management of those fisheries or the
elimination of the State to manage those fisheries under a federal
umbrella. In the case of the Pacific cod fishery, for example,
which exists in the Kodiak area, that is actually a fishery in
which the State through the Council process, has persuaded the
federal government to allocate a portion of the Pacific cod catch
that is typically taken in the offshore fishery to the inshore
fishery. The assessment for the biomass of the cod is done totally
by the federal government. He thought that reasonable people could
argue about who is paying what fair share of the cost of managing
that fishery. The Department does not want to get into that kind
of dispute. The program is working well and providing significant
benefits to Alaskan fishermen.
TAPE 99-13, SIDE B
Number 590
CHAIRMAN HALFORD responded that SB 68 doesn't change any of that.
The Commissioner can reduce his level of participation to the level
that he thinks he's getting his monies' worth and still be
cooperative. He hoped the provisions of this bill are things that
the State does every time it deals with a federal agency.
MR. BRUCE said the Department always tries to get the best deal
possible. Most deals are long-term and the Division sometimes goes
forward feeling they didn't get the best deal maybe in year number
one, but they work on improving that in the following years. He
explained that it's not possible to reach total agreement between
parties that have different views of the world about the relative
shares of the financial burden that each should carry.
MR. BRUCE informed the committee that we get a lot funding from the
federal government for our fish and wildlife management, almost as
much as our general fund appropriation. We don't account for it in
the way SB 68 has them account for it, however.
SENATOR MACKIE asked Senator Halford to explain Subsection (a)
where it mentions, "A state agency may not cooperate with a federal
agency in the implementation of a federal program that restricts
the state management of fish or game in the State unless the
commissioner of ADF&G finds in writing that the federal agency has
entered into an agreement to reimburse the state for the full cost
of cooperation." and how it relates to the inshore cod fishery in
Kodiak. He asked if they wouldn't be able to have the quota that
was given by the federal agency to our Board of Fisheries to manage
unless the North Pacific Council is willing to reimburse the State
for the management costs.
CHAIRMAN HALFORD answered that every one of those things are
totally in reverse, because the cod is not a state authority. It's
an authority granted back from the federal government to the State.
SB 68 doesn't apply at all to that situation.
SENATOR MACKIE responded that it is within three miles of the
State.
MR. BRUCE clarified that it is an inshore instate fishery. Four or
five years ago it was a completely offshore fishery. Through the
North Pacific Fisheries Management Council we sat down and reached
an agreement where a portion of that fishing was allocated to an
inshore fishery occurring within State waters.
CHAIRMAN HALFORD asked if we are getting our money's worth.
MR. BRUCE answered that he thought we were doing very well in that
program.
SENATOR MACKIE said his question was the reimbursement, because he
was sure there were costs involved dealing with the Board of
Fisheries for promulgating regulations to allow for that; there are
the ADF&G personnel who are managing that fishery and enforcement
personnel. He didn't know that the feds were giving us any money
for that; but we get the quota and manage the fishery. This is a
change from before. He thought we would have problems asking for
money in addition to the quota in this case.
Number 530
SENATOR TAYLOR asked how we lost jurisdiction of our cod within the
three mile zone in the first place.
MR. BRUCE explained that we didn't lose jurisdiction over them, but
the harvest that was being taken in the offshore waters was taking
the entire allowable harvest. So instituting a state fishery
unilaterally, we would have started to deplete the resource and we
would not have had a sustainable fishery. We had to reach an
agreement with the federal managers that they would reduce the
federal take, so that some portion of the total allowable catch
would be available to take in state waters. It's not a
jurisdictional question, but rather a question of to what catch
locations do you allocate the available harvest. We were
successful in getting some allocated to state waters.
SENATOR TAYLOR asked if it was like IFQ.
MR. BRUCE responded that it was not; it's an open access issue.
CHAIRMAN HALFORD said the answer to the allocation question is in
(d) and the way it's computed.
SENATOR MACKIE said he understood where the chairman wanted to go
with this and agreed with the intent, but he feared what could be
eliminated as a result of that. He said the Kodiak cod fishery is
a very good program.
MR. BRUCE said he wanted to highlight the fact that the bill is
very broad reaching and he thought the motivation was from
subsistence management, but it touches a number of issues and he
didn't want unintended consequences.
CHAIRMAN HALFORD asked if Mr. Bruce thought the National Park
Service and the U.S. Fish and Wildlife Service were paying their
own way under the Memorandums of Understandings and Joint
Operations Agreements.
Number 495
MR. REGELIN answered that the State operates under a master
memorandum of understanding with the federal agencies, but there is
no written cooperative agreement about who pays for what.
CHAIRMAN HALFORD asked if he was satisfied with what we get versus
what we give under that memorandum.
MR. REGELIN replied said he doesn't put their cooperative work in
the terms of the memorandum and he thought the feds paid their fair
share with cooperative work.
CHAIRMAN HALFORD asked if the feds followed what was written in the
Memorandum of Understanding.
MR. REGELIN said he would have to look at the detail of the
memorandum. He explained that it is a very general agreement. He
commented that he interprets SB 68 as saying the State may not
cooperate with federal agencies in the implementation of fish and
game programs that restrict our management authorities unless they
reimburse us for a "fair share."
CHAIRMAN HALFORD clarified that there are two separate issues. One
is we can't cooperate if it restricts us unless the feds pay for
it.
MR. REGELIN continued if they refuse to pay for it, he understands
that the State is not to continue cooperating.
CHAIRMAN HALFORD asked if he thought it was an absolute and if they
would cooperate to the level of our fair share and then stop or
just not cooperate at all if they don't pay all $10 of the $10 they
owe; they pay only $9.
MR. REGELIN replied that he wasn't sure as he just received the
committee substitute this morning.
CHAIRMAN HALFORD explained that it was intended for the Department
to make the determination of the degree to cooperate to the extent
the feds are willing to fund.
SENATOR MACKIE asked if it was that way now.
CHAIRMAN HALFORD answered that it wasn't that formal.
MR. REGELIN explained the costs the Commissioner would have to look
at would include the direct costs incurred by ADF&G, the Board of
Fisheries and Game, the local advisory committees, the Department
of Law, the Department of Public Safety, the Department of
Corrections, and any other agency it might affect.
MR. REGELIN informed the committee that the Division of Wildlife
Conservation is responsible for management on all lands within the
State including federal lands. They don't give any consideration
to land ownership when they are conducting wildlife surveys or
recommending seasons or bag limits to the Board. They conduct no
surveys or research programs or take any actions at the request of
any federal agency. Decisions about which populations to survey
are based on our needs and those of the Alaska Board of Game. In
many instances we and the federal agencies conduct joint censuses
or joint projects, especially on the large caribou herds and moose
populations that occupy both State and federal lands, because they
are so expensive. Oftentimes we share aircraft and personnel and
it's not an exchange of funds. When we work together, the data is
available to the federal agencies at the time they are completed.
The feds could use money to restrict State subsistence
prerogatives, but we don't know that as we are doing the survey or
census.
State data is made available to the public after they have been
summarized and analyzed. We provided summaries to federal agencies
and other organizations on a state time line that the Department
sets. We don't charge anyone for the data and don't do any special
analysis for the federal agencies.
CHAIRMAN HALFORD asked if all the Department's data was public.
MR. REGELIN explained that there are some statutory limitations on
locations of certain animals and nest sites.
CHAIRMAN HALFORD asked which statute restricts what is public.
MR. BRUCE responded that it is AS 16.05.815.
MR. REGELIN said all of our surveys are partially funded by federal
money and he didn't know if we had a choice to provide them the
data under the Federal Freedom of Information Act and the State
Public Records Act. We attend meetings of the federal regional
advisory councils and our headquarter's staff meetings and don't do
it to help the federal agencies. We do it to protect the State's
interests and to ensure the data we have collected are interpreted
properly.
MR. REGELIN said in his mind federal agencies have been pretty
willing to pay their portion of the direct costs for surveys and
inventory, especially if it's collected on their lands. They may
be willing to pay more, but he thought it was doubtful that they
would be willing to pay the indirect costs and more doubtful that
they would pay for research or for law enforcement or corrections
activities. He thought the most likely scenario would be that the
feds would cease to cooperate with us and close more federal lands
to everyone but those who qualify under the Federal Subsistence
Law. Residents would then have less opportunity. In some
instances the feds will collect their own data if we don't provide
it to them. Then we would end up in front of the Federal
Subsistence Board arguing about whose data is correct.
MR. REGELIN had a real question about how this might impact our
migratory bird program. We are restricted by federal regulations
in this program and it could place our waterfowl hunters in
jeopardy. Federal regulations limit the harvest of migratory birds
to certain levels. Within this framework the feds provide, the
State can only be more restrictive. He added that we pay for our
own waterfowl program and they match some of it, but they will not
pay more. Now that "additional costs" have been added he would
have to think that through.
MR. REGELIN said he thought the federal government already pays
it's fair share. The overall Department budget is over 30 percent
federal funds and in his Division gets over 40 percent. He wasn't
sure we could do our job without cooperating with the land owner,
whether private or federal. He said they are all frustrated with
the dual system which he thinks has resulted in poor wildlife
management in many instances, but he thought this approach would
just make it worse.
SENATOR TAYLOR asked if the 30 - 40 percent federal aid coming in
was from programs that are supported by hunters and fishers.
MR. REGELIN replied that for their base budget that's entirely so.
It comes from federal tax and Exise tax on firearms and ammunition.
SENATOR TAYLOR commented that it's basically the user group that's
paying for it and the federal government washes it through to the
state with significant restrictions.
MR. REGELIN agreed that there were restrictions.
SENATOR TAYLOR said according to June 6 - 7, 1996 Washington D.C.
briefing material put out by the U.S. Fish and Wildlife
Service/Department of Interior on Implications of Federal
Management of Subsistence Fisheries, page 19, the concluding
paragraph indicates that federal managers at that time believed it
would cost $18 million for the first year and up to $31 million
annually thereafter to implement federal subsistence management on
fisheries in navigable waters in Alaska. He was told the federal
government has currently funded their effort at $11 million. He
asked who was picking up the difference between the $11 million and
the $18 million for the first year. He asked if Mr. Regelin knew
of anyone talking about the funding up to $30 million. He said
that someone else would have to pick up the cost and that's why he
didn't want the State personnel cooperating with them unless they
were forced to.
MR. REGELIN responded that those were federal figures and he didn't
know what they meant when they put them together. He explained
when the State manages a fishery or wildlife resource, we do it for
all users on all lands, commercial, sport, and subsistence. We
have all the data. Federal agencies are taking some of that data
and making decisions on a small aspect of it.
He said the federal government is not requiring us to do anything;
we collect data anyway. If we use the data on their lands for
wildlife, they are paying most of those costs now.
SENATOR TAYLOR asked if they are paying now for subsistence work.
MR. REGELIN said the State has a contract for them to pay the
Subsistence Division for several different projects where they are
collecting data on subsistence use. They pay for five months of
the state liaison person who works with the Federal Subsistence
Board. They don't pay for our costs to attend the federal advisory
committees. They might pay, if pushed because the feds think it's
valuable for the State to be there. The State thinks it's in our
own best interests to be there. We haven't asked for that
reimbursement.
Number 315
MR. CARL ROSIER, former Commissioner of ADF&G, said he had about 40
years of experience in the management of our fish and game
resources in Alaska. He said these resources are really close to
his heart and their continued welfare under a good management
system is something every Alaskan should be fighting for and yet
today we find ourselves on the threshold of possibly using another
portion of the outstanding state management program that has served
these resources and all the people of the state so well for 40
years.
This potential loss is through an invasive ill conceived federal
law that doesn't even contain a sustained yield mandate. Some
provisions of ANILCA call for healthy populations and in some
cases, natural and healthy populations, but what these standards
mean is anyone's guess at the present time.
MR. ROSIER said it seems to him that concepts in SB 68 requiring
the federal agencies to pay for support services that impinge on
state management is a reasonable demand. Since 1959 the State has
built a capability for fish and wildlife management that has
involved hundreds of millions of dollars. The bulk of the State's
program has been carried by State general fund dollars. This is
especially true for the world class commercial fisheries of our
state which are now at risk.
It is not reasonable to expect free access to the state's system
without paying for that service and the federal system requires
information, data, or analysis that is not in the best interest of
all users of the resource. In this information age, nothing comes
for free and it must always be remembered that the federal mandate
under ANILCA is one that discriminates against 80 - 90 percent of
our state's population. There should be little incentive for the
state system to be cooperative when the federal agencies seek help
that negatively impacts state management and many of our residents.
On the other hand, programs such as Dingle/Johnson, Wallop/Breaux,
and the PR programs currently carried out by the State are examples
of state/federal relations that have been a good partnership and we
must be vigilant that they not become pawns in this federal move to
interject itself into the management program for a single user
group.
He believe the basic concept of SB 68 to be good in that the basic
conflicts between the state and federal system require some
sideboards from the legislature on how the state agencies should
interact with the federal agencies. ADF&G's mandate is for
sustained yield of the resources. The federal mandate, ANILCA,
lacks such a resource mandate and speaks only to providing an
allocation to a single user group.
During his stint as commissioner from 1991 - 1995, he consistently
advocated for what was right for the resources and Alaska's general
population knowing that the federal system would, in many
instances, use our information to allocate resources away from the
urban population centers of Anchorage, Fairbanks, Juneau, and
Ketchikan. As the federal agencies move into fisheries, the number
of these actions will, in his mind, undoubtedly increase and
legislative direction will be helpful.
ANILCA has imposed tremendous costs on many state programs and the
reimbursement to the state has been both minimal and intermittent.
A congressionally authorized annual $5 million slated for state
implementation of ANILCA mandates has never materialized. We all
know it is frequently a long stretch between what congress
authorizes in a bill and what is finally appropriated. Ongoing
litigation carried out by the Department of Law is tied directly to
the subsistence and ANILCA issue. One has to consider federal
dollars as soft money that frequently have a short life, especially
those appropriations that lack an organic act to support them.
Our experience in the early nineties saw the federal agencies
helping to fund the state board system for nearly a half million
dollars annually. By FY94, however, those dollars had shrunk to
under $100,000. The Federal Board and newly established regional
councils were in place. The state system was no longer required
and funds were withdrawn. But a strong interest initially in
supporting the Subsistence Division was operational and overhead
costs, the Division was receiving again nearly a half million
dollars in FY92, but by FY94 those dollars had been reduced to
zero.
Specific projects requiring data collection, studies, or analytical
work on subsistence use and users fared better with the federal
dollars leveling off at about $700,000 in FY93. He didn't think
federal dollars had increased significantly since then. Generally,
though, the federal agencies were obtaining information from the
management divisions during this period pretty much at no cost
while supporting the subsistence and state regulatory systems
financially until they could gear up for their own programs.
He thought a criticism of this bill could be that it is mean-
spirited. It is not. This is a business arrangement. The federal
agencies today do not hesitate to take administrative costs off the
top of virtually every federal program. It's now the cost of doing
business with the feds. SB 68 gives the commissioner significant
latitude in determining what the cost will be of a given piece of
information or a program will be to the federal government. It
should be remembered, also, that literally hundreds of hours of
staff time have gone into preparation of appeals to the Federal
Subsistence Board for what would be considered bad resource
decisions. Despite these efforts he didn't recall every getting a
positive reversal during his time as commissioner and he questioned
whether his predecessor had been much more successful.
Relationships between our state professionals and some of the
regional councils have been reported by ADF&G staff to be "down-
right antagonistic and in some cases personally insulting."
The state agency people need the legislature's support in this area
and he believes SB 68 is a step in the right direction.
SENATOR MACKIE asked how he thought situations like the Kodiak cod
fishery would be handled and to comment on Mr. Regelin's feeling
that the federal government already pays its way, as Mr. Regelin
was one of Mr. Rosier's directors when he was commissioner.
MR. ROSIER responded that he was part of the Kodiak cod fishery
process and it was a jurisdiction issue in which the State was
going to establish its right to manage at least some of those
species inshore. Most of the fishery was offshore and under the
Magnuson Act the management plan calls for the management agency to
be where the bulk of the fish is actually being caught. It was a
situation where the offshore fleet was not necessarily coming in
and there were large stocks of cod that were not being touched.
They were part of the biomass. The State saw the opportunity, but
there was a reluctance on the part of the federal government to
recognize the fish were there and weren't being harvested. There
was a small Alaskan fleet that wanted to harvest them. As the
federal government was moving towards an IFQ system, the small boat
owners found that they might not qualify for any of the groundfish
species offshore. Under those circumstances, the State was very
interested in getting some fisheries going in state waters. It was
the Board of Fisheries that forced the issue and set up the first
season. The Council then said they would make an allocation.
SENATOR MACKIE asked if he thought it had an adverse affect on that
kind of situation, did he think it should be clarified in the
legislation. He would hate to think that benefits to communities
would not be adequate rationale for having a fishery like that.
MR. ROSIER agreed with him. He thought there would always be
situations to negotiate, but the commissioner has the authority to
make that determination in SB 68. He also thought the State was
getting its money's worth on those inshore fisheries.
SENATOR MACKIE asked Mr. Rosier if he disagreed with Mr. Regelin's
comments about the wildlife understandings and agreements they have
right now.
MR. ROSIER answered that he thought the federal government had
administered the funds that had been collected from the sale of
sporting arms and ammunition and fishing gear pretty well. Those
funds have been extremely valuable to the State. He didn't,
however, see those funds being jeopardized by this legislation.
The commissioner has the authority under this legislation to do the
financial analysis which he didn't think had to be that detailed or
involved. Generally, the agencies have a good feel for what a
program is going to cost.
CHAIRMAN HALFORD commented that some people in ADF&G seem almost
intent on working for or cooperating with federal preemptive
management and he asked why that was.
MR. ROSIER said there were a lot of new people with a lot of
different ideas. Some people think the feds can do a better job,
but they haven't gone through the pain and anguish of seeing the
state program through its infancy and seeing how these resources
have rebounded through state management.
CHAIRMAN HALFORD asked what his experience was with the federal
government following the master Memorandum of Understanding with
regard to Park Service or Fish and Wildlife Service.
MR. ROSIER said the Memorandum is fairly specific in some areas and
one of the things that grates on him is from the Memorandum itself
says they agree to use the state's regulatory process to the
maximum extent possible allowed by federal law in developing new or
modifying existing federal regulations governing or effecting the
taking of fish or wildlife on service lands in Alaska. That went
out the window a long time ago.
SENATOR HALFORD noted that the committee was running over it's time
limit and said they would continue the discussion at another time.
He adjourned the meeting at 4:42 p.m.
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