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.