SB 68-COOPERATION WITH FEDERAL AGENCIES CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 3:05 p.m. and announced SB 68 to be up for consideration. MR. BRETT HUBER, Aide to Senator Halford, explained the new CS, LSO35/H, and amendment, H.1, to SB 68. The intent of SB 68 is, if the federal government takes action to preempt our state's authority to manage fish and game resources, they need to pay the bill. Anything else is a unfunded federal mandate. The proposed committee substitute addresses the committee's previous concerns. The first change on page 1, Section (a) adds a finding section that further clarifies the intent of the bill. It recognizes the constitutional mandate for sustained yield management and the State's commitment to providing for subsistence uses. It recognizes Alaskans' relationship to and dependence upon fish and game resources and that, managed for abundance, our fish and game resources have the capacity to satisfy multiple uses provided the State is able to maintain its sustained yield management. Findings in Subsection (b) recognize the State is the only entity with the mandate of sustained yield. With the additional inefficiency of a federal multi-agency authority jurisdiction and regulation and their preemptive fish and game management, they recognize the State is bearing the additional burden of providing for a comprehensive sustained yield management scheme that compensates for the diverse objectives of the federal agencies. They recognize the State's ability to manage for sustained yield and to the benefit of all users is more complicated and more costly due to federal preemption. They recognize the benefits to the federal agencies, through the use of State management, expertise, data, and research. And finally, the findings recognize the overall benefit to the management of the resources if the federal government pays their share of costs incurred to cooperate with their preemptive efforts. These findings, to a great degree, were based on the previous testimony of the Department, former Commissioner Rosier, and comments by committee members. The next change on page 4, line 22, subsection (e) was added to address the concern raised by the Department of Public Safety and specifically allows DPS to provide emergency backup without prior determinations and agreements of compensation. The next change is on page 4, line 26 and deals with concerns raised about the interaction of the bill with several existing state/federal management relationships like Migratory Waterfowl and Pacific Black Cod. Subsection (f) specifically exempts the Migratory Bird Treaty Act, the Marine Mammal Protection Act, the Endangered Species Act, and the Magnuson Stevens Fishery Act from the federal programs the bill affects. There was an oversight in preparing the committee substitute and the Pacific Salmon Treaty Act and the North Pacific Halibut Act were unintentionally omitted. Amendment H.1 adds them to the list. SENATOR TAYLOR moved to adopt the committee substitute, 3/23/99 Utermohle, to SB 68. There were no objections and it was so ordered. LIEUTENANT HOWARD STARBARD, Department of Public Safety, said the committee substitute with the amendment address the Department's concern with the inclusion of Subsection(e). Number 110 MR. MYLES CONWAY, Assistant Attorney General, said, although he hadn't seen the CS, it sounded like it would take care of their concerns. One point, though, is that it's difficult to determine the scope of the term "cooperate". There is question about if the cooperation is confined to joint studies, enforcement programs or whether it would implicate informal contact, etc. A remaining concern the Department has is the concern over the perception the statute might have in ongoing and future litigation with federal government over their scope of management authority. Legal challenges to federal management authority will always be decided in the Ninth Circuit and our State has a very unfortunate and inaccurate reputation with this court on subsistence issues. There is concern they will look at this statute and be convinced that we are not concerned with the health of the resource; that we are only concerned about money issues. With this backdrop, they may decide some difficult issues against us. CHAIRMAN HALFORD explained that the latest draft includes an extensive section on findings which is specifically aimed at avoiding the perception problems he is concerned with. The scope of "cooperation" is within the discretion of the commissioner of ADF&G, the operating agency. He thought that answered the majority of the perceived and potential problems. MR. CONWAY responded that as he heard the findings, they would be of some help in court, but there is the worry they will take things out of context. SENATOR TAYLOR said he shared those concerns and that is why there are additional findings provisions clearly setting forth the State's policies. Our biggest problem is that we can't get to the Ninth Circuit unless you have someone with enough guts to stand up and fight for this State and file a case. Number 200 SENATOR LINCOLN said she didn't see how "discretion" was left to the commissioner. It says, "the commissioner shall" which doesn't leave him much discretionary authority. CHAIRMAN HALFORD explained that on pages two and three it says "cooperate or not cooperate" and is followed by "unless the commissioner finds in writing that they have an agreement to reimburse for additional costs". It basically says the State has to receive its fair share for its cooperation. SENATOR LINCOLN reiterated that she didn't see where the discretion is left up to the commissioner. MR. GERON BRUCE, ADF&G, said he had a brief opportunity to look at the CS, but they still have major problems with the bill. The direction of the bill leads the Department into a situation where they will be further fragmenting our fish and game management. We need to be able to work with federal managers where they have authorities and we don't. He appreciated the committee's efforts to make sure there are adequate resources provided by the federal government to deal with some of the costs imposed on the State by federal law. SENATOR LINCOLN said her questions pertain to the findings in the CS. Page 2 says "the fish and game resources of Alaska have adequate biological and reproductive capacity to provide an abundance of fish and game for subsistence uses as well as other recreational, personal use, commercial...in perpetuity, provided that the state is able to maintain its sustained yield management of the fish and game resources." She did not think that was a fair statement to make. Also, on page 1, line 9 it says, "The State has made a commitment to provide a preference for subsistence uses of fish and game." She certainly didn't agree with that either. CHAIRMAN HALFORD asked if we didn't have a general state law that provides that subsistence is the highest and best use of wild food resources. SENATOR LINCOLN responded they are discussing whether the preference complies with federal law. She wanted to hear Mr. Bruce's response. MR. BRUCE said that it is difficult to talk about Alaska's fish and game resources as a total because there's so much variety. Some species, like salmon, are extremely abundant across the state as a whole. That doesn't mean that there aren't places where runs are low and need rebuilding. The environment and conditions vary and use patterns vary. Some wildlife populations are smaller like the ones close to the road systems. He thought those factors would have to be considered in evaluating a finding like that. SENATOR LINCOLN asked him to respond to page 2, line 20 where "federal agencies reap a significant cost savings through the use of State management, expertise, data, and research..." She asked if that was a true statement and if we also reap any benefits from the federal government on their data and research, etc. MR. BRUCE responded that estimates in an early document accompanying the proposed regulations for federal subsistence fishing said from around $11 million to around $30 million. There are examples of information being provided by both governments. In the history of fish and wildlife management in the State of Alaska, there has been a lot of cooperation between the State and the federal government. Programs have been developed to compliment one another in many instances. SENATOR TAYLOR moved to pass CSSB 68(RES) from committee with individual recommendations. SENATOR LINCOLN objected to say that there is no other committee of referral. They had just heard ADF&G say they had not had an opportunity to look at it to analyze the impact and determine a fiscal note. Since this is the Resources Committee, she thought it right to hear from the Department on those issues. SENATOR TAYLOR noted that there were several large fiscal notes attached to the bill now and he assumed that legally it would have to go through finance. CHAIRMAN HALFORD asked for those in favor to raise their hands. SENATORS TAYLOR, PARNELL, GREEN, and HALFORD voted yes. SENATOR LINCOLN voted no; and the bill moved from committee.