SCR 25-FISH & WILDLIFE PUBLIC TRUST/ANILCA SUIT    CHAIRMAN TAYLOR, prime sponsor SCR 25, said it was a resolution relating to public trust doctrine as it concerns the allocation of fish and wildlife resources in the State of Alaska. He prepared a work draft which was before them entitled Utermohle 2/18/02 J. In comparing the work draft and the original document most of the changes are more stylistic to improve the wording of the document as opposed to major substance changes. SENATOR COWDERY moved to adopt the CSSCR 25 (JUD) J version as the working document. CHAIRMAN TAYLOR said there being no objection the document before the committee is now CSSCR 25. He believed it had been distributed to each of the committee members. MR. DALE BONDURANT, Alaska Constitutional Legal Defense Conservation Fund Incorporated, said we as individuals and united public interest litigants unanimously support SCR 25. The Alaska Constitutional Legal Defense Conservation Fund Incorporated's purpose is to protect the rights of equal access to Alaska's common property, fish, wildlife and water held in public trust for all citizens. These equal access rights are in jeopardy by those who seek discriminatory preference by a prescribed group based on where they live. Both the Alaska and U.S. Constitutions are explicit in their doctrines of equal protection under the law. He said they must be definite in their struggle to protect that right of equal access for all personal consumptive users as in hunting and fishing of Alaska's common property fish and wildlife resources as managed under the constitutional responsibility within the sustained yield management. MR. BONDURANT said the public trust doctrine recognizes that our sovereign nation has a judiciary responsibility for our elective legislative and administrative government acting as trustees of the public trust for fish, wildlife and waters within Alaska and acting in respect for beneficiaries for all people as a whole. This beneficiary must demand that these trusts be managed for the present and future generations. The king and a dictatorial monarch had absolute sovereign power over the people and could abrogate the common law intent of protecting the people's rights of life, liberty and property as within a free society. Our forefathers wrestled this absolute sovereignty and returned the sovereignty responsibility to the people themselves. Governor Tony Knowles wants the people to vote away the fundamental equal protection rights of equal access to our public fish, wildlife and water renewable resources. (Due to transmission difficulties, this portion of Mr. Bondurant's testimony indiscernible) He concluded that Congress is without power to omit the state's cooperation in joint federal/state programs by legislation, which authorizes a state to file under the equal protection clause. He said he could sight several cases that way. He appreciated the fact SCR 25 had been sponsored and they totally support the bill.   CHAIRMAN TAYLOR thanked Mr. Bondurant. He said Mr. Bondurant was involved with Mr. Olson and others in litigation currently pending before the Federal District Court in Anchorage and there was a recent decision on that. He asked if that decision in any talked to or discussed the public trust doctrine as described. MR. BONDURANT answered yes. He explained that Judge Helms' court mentioned that their claim had been as a public trust claim. Judge Helms further said they have the right to pursue the equal protection clause of the U.S. Constitution and file against as applied by the Alaska National Interest Lands Conservation Act (ANILCA) Title 8. But Judge Helms said that public trust is a state right and as such they cannot show that they have the ability or the right to take this up. He said they were contesting several of Judge Helms' dismissals along with the equal footing rights, the submerged lands act right and the public trust right. They intend to further pursue this in the other courts of the federal government. JESSE VANDERZANDEN, Executive Director, Alaska Outdoor Council (AOC), said AOC is comprised of about 50 member clubs, primarily outdoor oriented. They also have individual memberships and when added up they have about 10,000 collective members that are hunters, fishermen, trappers and outdoor enthusiasts. MR. VANDERZANDEN said the CS looked to have made just some minor changes none of which shifted the intent or the principal of the bill. They do support it and he thought Mr. Bondurant had said it very well. They have been in communication with Mr. Bondurant on this issue and also on his lawsuit. He said generally speaking CSSCR 25 is a good expression of the legislature's support for their states rights. Given what they have seen over the past few years with regard to the increasing intervention of the federal government into the management of fish and game the timing is good, the intent is good and the principal is good. In conclusion AOC wanted to thank Senator Taylor for sponsoring the bill, for moving it through and for keeping an eye on this issue. It is a good statement of the legislatures support for trying to retain management of fish and game by the State of Alaska. AUSTIN AHMASUK, Nome resident, said he received the latest working draft of SCR 25 about four minutes before his testimony. He was not pleased that they had just received it. He said he was an Inupiaq Eskimo born and raised in Nome, Alaska. He is married and has four children. Hunting and fishing around Nome is important to his culture and important in raising his children. He wanted to testify in opposition to SCR 25, which would destroy many aspects of subsistence livelihood. He lived there himself and would likely nurture his children into responsible and hard working adults. MR. AHMASUK said challenging the actions of the United States Congress in enacting Title 8 of ANILCA would do great harm to the Alaska Native and rural people of the state in terms of subsistence use. The Alaska Statehood Act and implementing laws were subject to Aboriginal Title but were outright ignored until the Alaska Native Claims Settlement Act (ANCSA). He said SCR 25 ignores and wishes to destroy subsistence use. Alaska Statute 16.05.258 clearly indicates that subsistence shall be afforded for in times of plenty and certainly in times of shortage. It appears that nothing in the Alaska Statehood Act impaired the ability of Alaska Natives to compensation for extinguishment of aboriginal claims, including subsistence use. ANCSA Section 12 (b) clearly indicates that native land selections where to take into account historic uses and subsistence needs of Alaska Natives and they are not subject to traditional review. He said he strongly challenged the sponsor of the bill to prove the action being sought will not harm a long standing legal mandate that has been through many trials and tribulations for the benefit of Alaska's first people and those that have learned subsistence and live it hand and hand in remote and rural parts of Alaska. Section 804 of ANILCA clearly indicates a mandate for a rural subsistence priority. That legal mandate and implementing laws should not be infringed upon in times of plenty and most definitely in times of shortage. As legal history clearly indicates Alaska Native people have been reliant on the resources of the land and water. It is clear competing uses can have devastating affects on animal and fish populations. Only by limiting uses among users can animal and fish populations exist for the benefit of future users and fulfill the immediate needs of customary and traditional users of the resource. He thanked Chairman Taylor for his time and consideration. MR. DON JOHNSON, Soldotna resident, wanted to congratulate Chairman Taylor for sponsoring SCR 25 and said it had been a long time coming. He said they tried a lot of avenues to correct this problem and he completely agreed with the intent behind SCR 25. He said the real shame was the Governor of the great State of Alaska dismissed the case they had before the federal government, which put them in a position where they have to do something else. He agreed the Alaska Constitution binds the Alaska Legislature in that it must perform its duty as Alaska's trustee to protect the citizens of this state who are the beneficiaries of the public trust for fish and wildlife. He believed that Title 8 of ANILCA attempts to usurp the authority of the legislature in an attempt to manage Alaska's fish and wildlife in a different way other than sustained yield. In his opinion that way would end up destroying the fish and wildlife in the State of Alaska within a matter of time. He said the earlier statement of aboriginal claims was an incorrect statement in that there was a two billion dollar payoff for aboriginal claims not many years ago to take care of those claims. Basically all the people who were sighting aboriginal claims find often it is just maybe one percent of the natives of the state. He did not believe that really applied at all to this situation. He said Title 8 was particularly offensive to him in that it reversed Alaska's majority use position and reformed it into a federal minority use position. The majority of residents resides outside the rural areas of Alaska and would be totally excluded from participating in this subsistence preference established by ANILCA. He said he did not believe anybody in Alaska wanted that to happen, maybe the federal government did but nobody around there did. He could not believe anybody who really understands the intent behind ANILCA would agree with that. He firmly believed the U.S. Government signed off on the management issue when statehood went through. They actually signed off giving Alaska the authority to manage its own fish and wildlife. Once that statehood contract had been established it was not a severable commodity to be rescindable on and off with time according to whether or not the federal government thinks they are behaving as far as a state goes. MR. WARREN E. OLSON, Alaska Constitutional Legal Defense Conservation Fund Incorporated, said he was a 45-year resident. For 25 of those years he had been involved in opposing and or trying to modify state law and federal law working within state courts and federal courts towards the subject of discrimination caused by Title 8 of ANILCA. He supports SCR 25 but did not have a copy of the CS. MR. OLSON said he has a very strong reason for supporting this action and that is called finality. When Governor Knowles failed to move forward on Katie John v. State of Alaska he abandoned three quarters of the residents of Alaska and he avoided finality on this question of Title 8 and ANILCA. The people who need finality are the legislators, the administration, the Board of Game, the Board of Fisheries, the advisory boards and most of all the resources. He said he was absolutely convinced, as the committee had received strong communications from him, the folks that normally would be participating in the process of the Fishery Board and Game Board and the advisory committees have abandoned the process. He had one suggestion for the bill on page 3. He suggested strengthening this resolution on page 3, line 6 and 7 where he would introduce or include and describe police powers of the State of Alaska. He said the licensing, the seasons and bag limits, responsibility, means and methods and protection are the sole responsibility of the State of Alaska. CHAIRMAN TAYLOR said the main thrust of this legislation is to address the issue from a perspective that has not yet been taken up. That is every citizen of Alaska wherever they live is a beneficiary of the inherent public trust that is given to the assets of the state that were conveyed to them at statehood and every citizen is the beneficiary of those assets. So if the asset is a caribou or a deer or a moose or a bear every citizen in the state is the beneficiary of those fish and wildlife assets. For example when they in the state decide to sell a piece of state land the public trust doctrine comes into play. You cannot give that away. You cannot just hand it to someone and say here is a big piece of Alaska. They are required to make certain the public's interest in that land is protected. You would not sell off all of your coastal waterways because no one would be able to land a ship. There would be no public dock or wharf. You do not give away or sell your entire resource base or the public would have no opportunity to dig clams or to go get a crab when they wanted one on the shore. They would have no opportunity to harvest a deer or a bear for food supply or for the hide. All these things would then be excluded. CHAIRMAN TAYLOR said this public trust doctrine goes clear back to before Magna Carta in England. The rights of the people to access their resources had to be protected. He said interestingly, throughout history every court has looked to the legislative body to protect the public trust. The legislative body in this instance, the House and Senate of the State of Alaska, are trustees. They are not just sitting there as representatives of the people to vote on various things they actually have a fiduciary responsibility. Each of these animals and fish has some value and the House and Senate are the guardians of that public trust. He gave the example of the Permanent Fund as a public trust. For all intents and purposes, it is a trust they may use for state purposes it is a trust to provide for the beneficiaries of the trust, every man, woman and child of the State of Alaska. He asked if they could imagine the outcry that would occur in the State of Alaska and how fast they would find each of themselves impeached if they attempted to say only people living in a rural area would receive a permanent fund check. He said the roof would come off that place and it should because they would not be distributing the public trust asset in an equal fashion. They would be discriminating in the way they distributed that public trust asset. The very same thing is happening through this federal law. CHAIRMAN TAYLOR said if that law is not tested and challenged by the legislature then they have abrogated their responsibilities as trustees. He said the issue is not one of whether or not you believe in subsistence or you believe in sustenance, which is the utilization of these things for food that is not the question. The question is are they as a legislature in violation of the public trust doctrine that requires them to treat every citizen in Alaska equally no matter what their race, color, creed, national origin, religion and probably most importantly no matter where they live and will they be treated as an Alaskan citizen and an equal beneficiary. That is the reason SCR 25 is there. He wanted to say that because Mr. Olson had worked so long on that and had submitted so many different treatises to the legislature on the public trust doctrine. It is a doctrine that has not been tested in the courts yet. CHAIRMAN TAYLOR asked Ted Popely how many years he had worked for the House and Senate Majority. MR. TED POPELY, Majority Legal Counsel, answered seven years. CHAIRMAN TAYLOR asked if during that time a major percentage of his time has been spent on issues revolving around state sovereignty and Title 8 ANILCA. MR. POPELY, answered yes. CHAIRMAN TAYLOR asked if he could give the committee his impression of the public trust doctrine and whether or not this litigation, should it be brought by the Alaska Legislative Council would lie and have jurisdiction. MR. POPELY answered the public trust doctrine itself is certainly a viable claim in a case like this revolving around the allocation of state resources. It is a substantial doctrine steeped in lots of history and case law around the country. Chairman Taylor was right; it has not been litigated within this context of subsistence and Title 8. So it is a viable claim. He said the second part of his question as to whether or not a claim would lie with the Legislative Council is a more difficult question. It is a lot harder to answer. They obviously faced a lot of difficulty in pursuing litigation as a legislative body as opposed to the Department of Law because of the separation of powers doctrine. He thought their chief concern in this case is procedural rather than substantive. Substantive arguments can be made, they are valid, they are strong arguments and the court would certainly rule on those. They would hope that it would be in their favor. He said "Procedurally, I think, the bigger hurtle is getting the legislature as the party in question before the court on this question." CHAIRMAN TAYLOR asked if he had the chance yet to do research on the issue of who represents the people under public trust litigation. MR. POPELY said he had done some work in that area. He said it is general legislative bodies like Chairman Taylor had said, who are referred to in the public trust analysis as protectors of the resource and that makes sense. Logically it is the legislative bodies who are the policy-making bodies of states. They are in charge of course of passing laws that govern the use of the resources. Public trust doctrine mandates that those decisions be made in a fair and equitable and reasonable manner and is of course what the public trust doctrine stands for. CHAIRMAN TAYLOR said the legislature was generally the appropriate body to bring the litigation. In fact there are several cases where legislatures have been found to have standing, which is the critical question. They had been frustrated in the attempts of the past brought by the legislature to join in suits or to maintain suits after the governor dismissed them. MR. POPELY said courts have analyzed the situation in Alaska with the separation of powers that we have in our constitution and have read that generally to mean the administration is the body that brings litigation on behalf of the state. That is where they have run into difficulty trying to litigate some of these issues as a legislature or a subunit of the legislature through legislative council. CHAIRMAN TAYLOR said that was why he referred to those other list of cases where state legislatures themselves have been found to have standing even if the executive chose not to sue because of the unique responsibility that the legislature has as trustee of those public trust assets. MR. POPELY said yes that has occurred. It certainly has. SENATOR ELLIS said let us say this went forward and the legislature were to pursue this. He asked Mr. Popely if he could give him a dollar figure, high dollar of low dollar figure, for this being pursued to finality. MR. POPELY said he did not know if he could. That is a tough question and he had not thought about it in terms of dollars bringing a case like this. He said he supposed that the realm of possibility is quite wide. It could be done in house in which case there would be very little expenditure all the way through hiring outside counsel which of course this legislature has done in the past, which could prove to be quite expensive. That is probably more of a policy question for their colleagues than for him. He said he really did not know. SENATOR ELLIS said he posed the same question to Chairman Taylor as an attorney and as someone familiar with this and probably envisions how he would like to see all this unfold with the best and the brightest. He asked how many years and how much money. CHAIRMAN TAYLOR said he did not think it would cost all that much if in fact they kept it in house and joined in the litigation already pending. The Alaska Constitutional Defense Fund case was referred to by Mr. Bondurant and Mr. Olson is already pending. It already survived several challenges through summary judgment and all the state would have to do would be to interplead in that as an additional plaintiff and advocate on the public trust doctrine on behave of the people of Alaska. That was the aspect of the case they were told they could not bring individually. They are advocating on their own behalf at this point and so the court has allowed them to move forward on the equal protection argument. A major portion of that case from the time it was filed was on the public trust doctrine itself and the court found that they did not have standing to represent the people of the State of Alaska. He thought tacitly what the court was saying was the legislature itself is the true trustees and responsible for the people on these issues. The case law they have seen would indicate that the legislature itself can intervene on that suit on behalf of all the people of Alaska and then have that portion of that case litigated. He said it would probably go to the Ninth Circuit Court and from the Ninth Circuit on to the Supreme Court. They were probably looking at period of time of at least five to six years but that would be a quicker finality than anything he knew of right then. With the dismissal of the Katie John case they lost their last chance at some absolute finality from the Supreme Court on this very contentious issue. CHAIRMAN TAYLOR said if it is kept in house they are probably not looking at anything more than the salaries of the people they are currently hiring and paying to do some of the very same stuff. At some juncture they may have to go beyond that. SENATOR DONLEY moved SCR 25 the CS (JUD) as adopted the J version from committee with individual recommendations. SENATOR ELLIS objected. CHAIRMAN TAYLOR called for a roll call vote. The motion to move CSSCR 25 from committee carried with Senator Donley, Senator Therriault, and Chairman Taylor voting "yea," and Senator Ellis voting "nay."