Legislature(1997 - 1998)
04/20/1998 03:40 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.