SB 91-ENFORCEMENT OF SUBSISTENCE LAWS CHAIRMAN HALFORD announced SB 91 to be up for consideration. MS. MEL KROGSENG, Aide to Senator Taylor, sponsor, said SB 91 basically prohibits any member of our Department of Public Safety or other state employee or a member of a police department of a local municipality from enforcing any federal statute or regulation that is inconsistent with out State Constitution or the Constitution of the United States. It also prohibits federal agents from the same thing. Another section of the bill repeals the authority of the Commissioner of ADF&G from engaging in agreements with federal law enforcement officers who are enforcing laws pertaining to subsistence eligibility. Basically, she said, we are not going to help them enforce laws that are in violation of our constitution. MR. LYNN LEVENGOOD, said he is an attorney in Fairbanks and supported SB 91 for a number of reasons. He said, "There is a train wreck scheduled and it's between the sovereignty of the State of Alaska and the intrusions of the federal government into the sovereignty of the State of Alaska." He said it's happening rapidly. Last year, the federal Subsistence Board declared sheep hunting areas where ADF&G had issued permits were open to federal hunting only. This year, the Glacier Bay issue is coming to the forefront. The federal government has kicked out our long-standing fishermen and the sovereignty of the State of Alaska through the Submerged Lands Act. MR. LEVENGOOD said that AS 16.05.050 (a)1 requires the Commissioner of ADF&G to cooperate with the federal government, he didn't think there was federal reciprocity to cooperate with the State of Alaska. This bill is necessary to repeal that requirement and to prevent unfunded federal mandates. The Legislature should do everything they can to prevent Alaskan's sovereignty from being encroached upon and the federal government from violating the constitutional rights of Alaskan citizens. He thought the idea that federal and state law enforcement agencies being so dependent upon each other for each other's safety was a ruse. Clearly, this legislation doesn't prohibit cooperation; just cooperating on federal regulations or laws that are in dispute. MR. MYLES CONWAY, Assistant Attorney General, pointed out that Section (c) of SB 91 would be unenforceable. It makes it illegal for federal officials to enforce federal laws or regulations that are inconsistent with the State's constitution. To prosecute federal officials for enforcing their own laws would be dismissed from the court with the supremacy clause of the U.S. Constitution. In addition, we would be subjecting our state officers to potential federal criminal liability. There is a federal statute making it illegal to interfere with federal officials performing their duties. MS. KROGSENG responded that she had discussed this with Mr. Levengood and even if this is unenforceable, it would put the State's position on the table. We don't want the federal government enforcing laws that are inconsistent with our Constitution or the U.S. Constitution. Other lower 48 states have put laws on the books recently about the federal government purchasing land, because they don't want additional land being bought by the federal government, although they realize they may not be able to enforce it. The intent is to make a policy call. MR. LEVENGOOD responded that he didn't disagree, but there are certain requirements in some of the federal agencies that say some of their regulations can only be carried out and enforced if there is cooperation with the state and local governments. This would be one regulation we are objecting to. Number 569 MAJOR JOE D'AMICO, Department of Public Safety, testified his biggest concern regarding SB 91, also stated in a letter to the committee, is the unintended effect that Alaskan troopers will lose some degree of safety, mostly for rural troopers, if it is passed. He explained that most of our cross-deputization agreements are reciprocal in nature. There is no current law now that requires us to assist federal officers. In fact, in Glacier Bay we refused. It's a policy that they will not enforce federal fishing laws or assist the Park Service in that area. In rural areas, however, in many instances the closest help is a federal officer. SENATOR MACKIE asked if we had ever used any of our vessels to "ferry around" Park Service Rangers or anything in Glacier Bay or anywhere else. TAPE 99-14, SIDE B Number 590 His understanding was equipment was used in Glacier Bay only for our troopers who were enforcing our own fish and wildlife laws. MAJOR D'AMICO replied that he researched that issue using written records dating back to 1986 and they had never carted federal agents around in Glacier Bay. The Department has enforced state laws for commercial fisheries in Glacier Bay. They have ridden in Park Service vehicles for the Gustavus area state moose hunt which does not occur on Park land. That's because they don't have state vehicle available in Gustavus and it was convenient. They have also moored state boats free of charge at the Park Service dock in Glacier Bay in conjunction with state fisheries efforts. SENATOR PARNELL asked if he currently helped enforce federal statutes and regulations governing hunting and fishing. MAJOR D'AMICO said he has tried to figure out what that really means. He said the example in his letter with the brown bear and swans actually happened to one of his troopers and in that case they did directly assist a federal officer with a violation. A trooper in Haines recently investigated the shooting of a bald eagle. There are occasions where state troopers assist federal officers. SENATOR PARNELL asked if the swan example was unintended. MAJOR D'AMICO said that is correct. The trooper was working on the spring brown enforcement season, a state hunt, and they saw a hunter with bear and checked it. When they unrolled it to seal it, they found the swans. SENATOR PARNELL said he didn't see how he was tying a prohibition against direct enforcement of a federal subsistence hunting or fishing statute with trooper safety being put at risk. MAJOR D'AMICO said he could as in the case of the swans. In the case of the swans, he wondered if the trooper would be in violation of Section (a) in the direct assistance to the federal officer by providing the transportation. He said he didn't know exactly what "direct assistance" means. He explained that they have a good relationship with most of the federal agencies to provide reciprocal assistance and in many cases when the request is made, the officer doesn't know that there's going to be a problem, but they are concerned one will occur. The state receives the ratio of 8 or 9 to one assistances from the federal agencies in terms of personnel and equipment. The state is on the winning end when that occurs. Number 532 SENATOR TAYLOR asked if there was any assurance that Major D'Amico wouldn't provide backup to a federal agent in Glacier Bay. MAJOR D'AMICO replied if they were requested to backup a federal officer enforcing a federal law in Glacier Bay, they would probably do it to prevent some type of problem. SENATOR TAYLOR said he wasn't concerned about what happened in the past. He was concerned about the "pickle" they would find themselves in if there is something going on in Glacier Bay and they ask for assistance. He said they would be enforcing something that is very unconstitutional and we are going to file suit over. MAJOR D'AMICO said they would want a trooper to prevent violence. He was not just concerned about the federal officer, but the Alaskan citizen that they are going to contact. SENATOR TAYLOR asked if he thought the Alaskan would think he was there to protect him and his sovereign rights as a citizen when he walks up shoulder to shoulder with a federal officer to place him under arrest. MAJOR D'AMICO said he didn't know the answer to that. Whenever he has assisted federal officers, they have been glad to have him. SENATOR TAYLOR said whoever was with the swans inside the bear hide had to make a decision about what the limit was for swans taken by a qualified federal subsistence user and asked if there was a limit at the time if you were a subsistence user. MAJOR D'AMICO answered that he was not current on all federal law, although he knows they allow some take of swans in the spring. SENATOR TAYLOR said it wouldn't have been his problem, because they are both violations of federal law. He asked what the trooper did with the guys with the swans. MAJOR D'AMICO said that the trooper didn't do anything, that the federal officer handled it. SENATOR TAYLOR asked if the defendant lived in the right community. MAJOR D'AMICO replied that he did. SENATOR TAYLOR asked if we have a law against shooting swans in Alaska. MAJOR D'AMICO answered that there are some state sanctioned swan hunts in Alaska. They are in game management units and have seasons and bag limits and firearms restrictions. SENATOR TAYLOR asked if the state officer was aware of that. MAJOR D'AMICO answered yes. SENATOR TAYLOR asked why he didn't arrest the man for shooting six swans. MAJOR D'AMICO answered it was a federal problem and we generally don't do federal enforcement. SENATOR TAYLOR noted that we have Alaskan laws about killing swans and asked if that wasn't an Alaskan problem if our officer caught a man with six dead swans. MAJOR D'AMICO said the federal government manages and enforces most waterfowl cases. SENATOR TAYLOR asked if his officers would not arrest him if he were in violation of a bag limit on swans. MAJOR D'AMICO said they would if they were shot in the spring. SENATOR TAYLOR said shooting in the spring was even worse since there is no season that time of the year. MAJOR D'AMICO responded that he wasn't sure he understood the point, but if he were out there during a season and was over limit, he would be cited by a trooper. If he did it in the spring, they would most likely turn it over to the federal government. CHAIRMAN HALFORD thanked Major D'Amico for writing his long detailed letter and asked about an item on the second page saying a standing order is currently in place prohibiting our employees from using equipment for transporting Park Rangers or to assist federal officers in their attempts to enforce federal fishery laws in the Glacier Bay area. He said if Major D'Amico can make a policy like that work, it would seem that he could come up with a policy using the same methodology that would keep the state out of enforcing laws that are unconstitutional. He could see the reality with regards to personal safety and federal criminal law. He thought there was a way to work through that and produce a bill that avoids those problems and actually does something. MAJOR D'AMICO said if this bill passes he was not sure they could aid federal officers with a valid federal warrant to make an arrest. CHAIRMAN HALFORD asked if they had a policy right now of not helping or transporting federal officers to enforce fisheries law in the Glacier Bay area. MAJOR D'AMICO said that is right. SENATOR TAYLOR said he was only concerned that we don't have our officers violating our constitution as they go to aid a federal agent. He asked if their policy was in writing. MAJOR D'AMICO answered that Commissioner Otte put out a standing order that this would not occur. Any request for assistance by the Park Service has to come through his office and he or Colonel Glass have to approve it except for emergencies. SENATOR TAYLOR said he was trying to get that policy into writing. MAJOR D'AMICO responded that's why the Department supports the intent of the bill, but are concerned about the reciprocity on backup. SENATOR MACKIE said the reason he can't support this is because we receive nine to one assists from them. He has participated in enough law enforcement activities to know when you are out there by yourself and need a backup, it's nice to have someone to back you up. Many of the federal officers are Alaskans, too, and he didn't want to support something that would put their life in danger. Number 343 SENATOR PETE KELLY asked if there was a way to separate assaultive behavior in the bill. SENATOR TAYLOR said that not one of the examples citted are impacted by this legislation. SENATOR MACKIE disagreed. SENATOR TAYLOR said an officer takes an oath saying he'll support and defend the Constitution of the United States and the Constitution of the State of Alaska and will fully discharge his duties as an Alaskan state trooper to the best of his ability. He's in violation of his oath when he steps up to enforce a law that his Supreme Court has told him is an unconstitutional law. SENATOR MACKIE said he is a lot more comfortable with our Alaska state troopers handling a situation that has danger to the perpetrator or to the officers involved. He thought it was bad public policy to take away our ability to assist. SENATOR TAYLOR said that's a red herring and the only thing they are being precluded from doing is assisting federal officers in the enforcement of subsistence regulations. SENATOR KELLY said he also needed a level of comfort that is all this is doing. SENATOR MACKIE noted the section that says, "The Department of Public Safety may not enforce or directly assist..." includes a whole wide range of things. He didn't really didn't see how our men would be involved if the feds were citing someone for a subsistence offense. He explained in a lot of situations the arresting officer finds out a little bit about the person being arrested. If the officer feels there is a safety concern, although it is a subsistence offense, he calls for backup. It happens all the time. He said you can't craft all the circumstances into one paragraph and just say subsistence when other factors are involved. SENATOR TAYLOR reiterated that our officers cannot assist in enforcement of a regulation governing eligibility to engage in subsistence hunting or fishing. Period. Number 165 SENATOR GREEN asked what the language on page 1, line 14 "(b) an employee or law enforcement agent of a state department other than the Department of Public Safety or other state agency or a police officer employed by a municipality may not enforce...etc." meant. She noted they are saying "other than" which exempts all the people they are trying to include. SENATOR TAYLOR moved to delete Section (c). There were no objections and it was so ordered. SENATOR MACKIE asked why they were using a statute to direct a municipal law enforcement agency on whom they can and cannot assist. SENATOR KELLY told Major D'Amico that he didn't think his fears were justified. He didn't see how he would be prohibited from backing up a federal officer. MAJOR D'AMICO answered on page 1, line 8 and 9 it says, "the Department of Public Safety cannot enforce or directly assist the enforcement of a federal statute or regulation governing eligibility to engage in hunting or fishing in the state if the statute or regulation cannot be enacted by the state or regulations could not be adopted by the state department or agency because the statute or regulation violates either the constitution of the State of Alaska or the Constitution of the United States." As an example, if someone came to Hoonah who did not qualify under federal law to participate in a hunt and illegally took some deer, then they went back to their home and the federal officer found out who that person was and was prepared to issue a citation. If during the computer records check, he discovered this person had exhibited compulsive behavior in the past toward law enforcement officers, he thought the trooper would be precluded under this section from going along and providing that backup service, because at this point the only violation was a federal regulation pertaining to subsistence hunting. He thought the danger here was if we don't provide that service, when we need that service, it won't be available for us. TAPE 99-15, SIDE A Number 001 MAJOR D'AMICO said in Glacier Bay that under current law they can still provide backup to prevent violence, but they will not help enforce federal fishery laws. SENATOR TAYLOR said that many are confused that they won't help enforce federal fishery laws in Glacier Bay, but are upset if his legislation precludes him from doing exactly the same thing on federal subsistence laws. SENATOR PARNELL explained the difference under their current policy, if there was some danger of assault, they would be able to assist the officers. CHAIRMAN HALFORD noted that this wasn't even the entire subsistence law, because there are a lot of areas where the state and federal subsistence laws are consistent. It only refers to the qualification differential based on the location of residence, the only provision that has been found unconstitutional by our Supreme Court. SENATOR MACKIE asked Senator Taylor if he would consider adding language like "unless it involved the threat of life or safety to an officer." MAJOR D'AMICO responded that he thought if it would allow them to provide backup service, the Department could support it. CHAIRMAN HALFORD said he wanted the feds to pay the bill for stepping all over our constitution. SENATOR MACKIE said he didn't disagree with that, but he feels strongly about the backup provision. He said he has a lot more confidence in our state troopers for handling these kinds of situations than having federal officers or armed park rangers. SENATOR TAYLOR said he would try to find some language to that effect. CHAIRMAN HALFORD suggested adding, "Unless the assistance is only provided in an immediate case where no alternative backup is available at any cost." He thought it would cover the rural situation. SENATOR PARNELL said they could add language on page 1, line 8 that says "notwithstanding AS 18.65.090 and except in the case of threat of imminent physical injury, the Department of Public Safety..." CHAIRMAN HALFORD announced they would hold the bill for further work.