SENATE RESOURCES COMMITTEE May 5, 1999 3:15 p.m. MEMBERS PRESENT Senator Rick Halford, Chairman Senator Robin Taylor, Vice Chairman Senator Pete Kelly Senator Jerry Mackie Senator Lyda Green Senator Georgianna Lincoln MEMBERS ABSENT Senator Sean Parnell COMMITTEE CALENDAR CS FOR HOUSE BILL NO. 109(RES) am "An Act relating to management of fish and game in Glacier Bay National Park and Preserve and navigable waters." MOVED SCS HB 109(RES) OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION HB 109 - No previous Senate committee action. WITNESS REGISTER Representative Scott Ogan Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of HB 109 Brett Huber Legislative Aide to Senator Halford Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Answered questions on HB 109 and amendments Mr. Geron Bruce Legislative Liaison Alaska Department of Fish and Game PO Box 25526 Juneau, AK 99802-5526 POSITION STATEMENT: Discussed ADFG's concerns with HB 109 Joanne Grace Department of Law 1031 W 4th Ave., Suite 200 Anchorage, AK 99501-1994 POSITION STATEMENT: Supports HB 109 and amendments with changes. ACTION NARRATIVE TAPE 99-30, SIDE A Number 001 CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 3:15 p.m. and announced that Senators Mackie, Lincoln, Pete Kelly, and Green were present. The committee took up HB 109. HB 109-GLACIER BAY NATL.PARK/PUBLIC WATERS REPRESENTATIVE SCOTT OGAN, sponsor of HB 109, gave the following overview of the measure. The catalyst for the introduction of HB 109 was an incident in which federal agents boarded commercial fishing boats in Glacier Bay. The legislature needs to make a strong statement that it does not assent to federal control. AS 16.20.010 speaks to not assenting to federal control in a national bird and wildlife refuge; that same statement can be made for Glacier Bay. HB 109 dovetails with the Governor's promise to litigate against Department of Interior Secretary Bruce Babbitt over the navigable waters of Glacier Bay. The legislation contains additional language that prevents Alaska's fish and game officers from enforcing any federal law or regulation that conflicts with any state law or regulation. Some of the concerns raised by the Department of Public Safety were addressed by adding language to Section 3 stating that nothing prohibits an agency or employee of an agency from taking action necessary to protect life or property, from commenting on federal laws, or from collecting data relating to harm. CHAIRMAN HALFORD noted an amendment has been proposed that is a statement of policy on navigable and public waters from the Alaska Constitution. He asked Representative Ogan to comment on the proposed amendment. Number 81 REPRESENTATIVE OGAN indicated that he agrees in principal with the approach taken in the amendment and that its title is broad enough. SENATOR TAYLOR moved to adopt Amendment 1 (Utermohle, 5/4/99). Amendment 1 reads as follows. Page 3, following line 20: Insert new bill sections to read: "*Sec. 4. AS 38.05 is amended by adding a new section to read: Sec.38.05.126. Navigable and public water. (a) The people of the state have a constitutional right to free access to and use of the navigable or public water of the state. (b) The state has full power and control of all of the navigable or public water of the state, both meandered and unmeandered, and the state holds and controls all navigable or public water in trust for the use of the people of the state. (c) Ownership of land bordering navigable or public water does not grant an exclusive right to the use of the water and a right of title to the land below the ordinary high water mark is subject to the rights of the people of the state to use and have access to the water for recreational purposes or other public purposes for which the water is used or capable of being used consistent with the public trust. (d) This section may not be construed to affect or abridge valid existing rights or create a right or privilege of the public to cross or enter private land. *Sec.5. AS 38.05.128(a) is amended to read: (a) A person may not obstruct or interfere with the free passage or use by a person [MEMBER] of [THE PUBLIC ON] any navigable water [AS DEFINED IN AS 38.05.965] unless the obstruction or interference is (1) authorized by a federal agency and a [OR] state agency; (2) authorized under a federal or state law or permit; (3) exempt under 33 U.S.C. 1344(f) (Clean Water Act); (4) caused by the normal operation of freight barging that is otherwise consistent with law; or (5) authorized by the commissioner after reasonable public notice. *Sec 6. AS 38.05.128 is amended by adding new subsections to read: (e) Free passage or use of any navigable water includes the right to use land below the ordinary high water mark to the extent reasonably necessary to use the navigable water consistent with the public trust. (f) Free passage or use of any navigable water includes the right to enter adjacent land above the ordinary high water mark as necessary to portage around obstacles or obstructions to travel on the water, provided (1) entry is made without injury or damage to the land; (2) entry is made in the least obtrusive manner possible; (3) there is no reasonable alternative available to avoid the use of the adjacent land above the ordinary high water mark; and (4) the navigable water is reentered immediately below the obstacle or obstruction at the nearest point where it is safe to do so." SENATOR LINCOLN objected to the motion for the reason that committee members have not been given sufficient time to review it. She commented that the bill addresses Glacier Bay National Park, which she does not object to, however Amendment 1 pertains to all navigable waters of the state and therefore substantially broadens the scope of HB 109. CHAIRMAN HALFORD asked Brett Huber to explain the origin of Amendment 1. Number 113 BRETT HUBER, legislative staff to the Senate Resources Committee, stated that Senator Halford has been working on the navigability and public access issue for the past several years in the Senate Resources Committee. The committee has worked with the Administration's navigability team, comprised of the director of the Division of Lands and representatives from both the Departments of Law and Fish and Game. The group developed some amendments to clarify, statutorily, the constitutional provisions allowing access to, and use of, navigable and public waters. Section 4 of Amendment 1 is a preamble to Chapter 82 and reflects the provisions of Article 8, Section 14 of the Constitution, related to access on navigable waters. Section 5 of Amendment 1 mirrors language added to the same measure in 1985 that removed the ability to obstruct or interfere with free passage on navigable waters. Amendment 1 broadens the statute to prevent interference with the use, as well as free passage, of navigable waters. On page 1, line 21 of Amendment 1, language was added to clarify that any federal agency action requires state concurrence. Section 6 speaks to the free passage or use of navigable water and includes the right to use the land below the ordinary high water mark to the extent reasonably necessary, as long as it is consistent with the public trust. The constitutional and public trust provisions are read and being applied in that manner at this time. Subsection (f) of Section 6 describes how and when portaging may occur on navigable waters. Mr. Huber informed committee members that representatives from the Departments of Law and Fish and Game were available to speak to the purpose of and need for Amendment 1. SENATOR MACKIE asked if the state agencies are in support of Amendment 1. MR. HUBER replied that it is his understanding that the members of the Administration's navigational team support Amendment 1. SENATOR MACKIE asked what would happen if Amendment 1 is adopted into statute and then a constitutional amendment relating to subsistence is adopted. CHAIRMAN HALFORD responded that he does not think it would have any effect because subsistence is a matter of harvest of resources within the water column, not of access to and use of the water column. SENATOR TAYLOR remarked Amendment 1 only applies to public land and water, both state and federal. CHAIRMAN HALFORD clarified that Amendment 1 deals with all navigable waters that were given to Alaska at statehood and therefore should be managed by the state. SENATOR MACKIE noted that issue is under debate in the courts. MR. HUBER explained that in the Katie John case, the Court remanded to the federal agencies the determination of where federal reserve water rights exist. In that determination, the federal agencies are to review what waters they deem navigable to support the existence of the federal reserve water rights. If the federal agencies come forward and say these are the waters in which it has federal reserve water rights, they are essentially saying those waters are navigable, and those waters did pass to the state at the time of statehood. SENATOR LINCOLN asked to hear from the Administration's representatives. Number 203 JOANNE GRACE, assistant attorney general, made the following statements. Lands underlying navigable waters under the Public Trust Doctrine are to be held in trust for the public's use for navigation, fishing, commerce, and recreation. Lands underlying waters that do not meet the federal test for navigability are owned by riparian or upland owners to the midpoint of the stream. The Alaska Constitution and statute also give the public the right to use all waters that are navigable regardless of who owns the submerged land. Article 8, Section 14 states that free access to the navigable or public waters of the state, as defined by the legislature, shall not be denied any citizen of the United States or resident of the state, except that the legislature may, by law, regulate and limit such access other than official uses or public purposes. The legislature has defined navigable waters in AS 38.05.965 as any water that is navigable for any useful public purpose. Despite the public constitutional right to use navigable waters regardless of who owns the submerged land, the public and landowners are still uncertain about the precise nature of the right. The proposed amendments will clarify existing rights and do not create any new rights. MS. GRACE explained that Section 4 codifies language that constituted the preamble to a 1985 act that made the act of obstructing access to navigable water a misdemeanor. It expresses the general concept of the public's right to access navigable waters regardless of the underlying land title. Placing those provisions in statute will make them plain and available to everyone and help assure that the public can freely access its right. MS. GRACE pointed out the preamble language in the 1985 act began with the clause, "subject to the federal navigational service use" but that clause is not included in Section 4. The federal navigational service use is a commerce clause authority of the United States to regulate navigational uses of water ways. The United States and its agencies have this authority whether or not it is referred to in Section 4. The omission is insignificant except that its inclusion could be useful to the public. Section 5 adds language to clarify the obstruction statute which makes it a misdemeanor for a person to obstruct or interfere with public access. She suggested including the words "or use" in Section 5(a) after the phrase "free passage" to clarify that the prohibition is against interference with the public's right to navigation, fishing, commerce and recreation of navigable waters. MS. GRACE expressed concern about the proposed amendment to subsection (a)(1) because some federal agencies do have commerce clause authority over navigable waters and, in some instances, federal property clause authority as well. She noted that because this is a criminal statute, she is concerned that the state could prosecute a person for following a federal regulation that the state has acquiesced its authority to. Number 280 CHAIRMAN HALFORD asked Ms. Grace if that concern is addressed by subsection (a)(2). MS. GRACE replied subsection (a)(2) does cover federal laws, however she is unclear about the difference between subsections (a)(1) and (a)(2). SENATOR MACKIE thought that under subsection (a)(1), the obstruction or interference would have to be approved by both a federal and state agency, while subsection (a)(2) prevents criminal prosecution if the obstruction is allowed under federal or state law. CHAIRMAN HALFORD commented that both state and federal authority would be required in cases where the federal government has no commerce authority. MS. GRACE thought subsection (1) might provide uncodified authorization while subsection (2) would require a law, permit, or regulation. MS. GRACE continued with her testimony. Section 5 adds language to clarify the obstruction. Section 6 clarifies the limited circumstances under which the public can use privately owned land. One issue that arises is the extent to which members of the public using navigable waterways can step out of a boat and touch privately owned land. Subsection (e) does not provide a bright line guide as to when the public can step out of a boat onto the bed of a privately owned river or lake, but it provides a standard that offers some guidance. Subsection (f) codifies the right to portage on private land when necessary and includes limitations to make clear that the right exists only to the extent necessary to proceed on the waterway. Number 329 GERON BRUCE, representing the Alaska Department of Fish and Game, made the following comments on HB 109 and asked to defer comments on Amendment 1 to Tina Cunning who has worked directly on the issue of navigable waterways. ADFG believes that its management of commercial fishing in Glacier Bay is compatible with the park purposes and it is opposed to the park's closure to commercial fishermen. ADFG's goal over the last several years has been to maintain the maximum opportunity for commercial fishing in Glacier Bay. A number of initiatives were established to do that, the most extensive of which was the creation of a stakeholder group to protect the commercial fishing opportunities in the Bay. ADFG worked closely with the stakeholders in this effort with the goal of maintaining 100 percent access to what had been available in the past. MR. BRUCE said he testified before House committees where some of ADFG's concerns were addressed. The most important change to HB 109 clarified that ADFG can work with fishermen and federal agencies to help get compensation for the Glacier Bay fishermen. ADFG remains concerned about HB 109's broad application. The current law affecting commercial fishing in Glacier Bay contains a combination of closures that grandfather in certain individuals for a specific time, and a provision to allow the continuation of commercial fishing in the marine waters adjacent to the park itself. Under the terms of HB 109, ADFG is not clear if it will still be able to expend funds to manage those fisheries within Glacier Bay proper that are subject to the phase out but are open to the individuals who are grandfathered in. He asked that the legislature make its intentions clear about that issue on the record. ADFG's second concern is that the federal law that addressed this issue says the Secretary of the Interior and the State of Alaska shall cooperate in the development of a management plan regarding commercial fisheries in the marine waters adjacent to Glacier Bay. Those areas are important to commercial fishing. ADFG interprets HB 109 as saying it should not cooperate with the Secretary of the Interior in developing a management plan for those waters. ADFG questions whether it could inadvertently, by that action, be prodding the federal government into doing something that would be disadvantageous to Alaska's commercial fishermen, such as close those waters to commercial fishing. Number 407 SENATOR GREEN asked whether the stakeholders group that came before the Senate Resources Committee and expressed dissatisfaction with the way the procedure was handled is the one ADFG has been working with. MR. BRUCE said it is the same group. SENATOR TAYLOR asked if Mr. Bruce implied that by prodding the federal government, it might act without the state's cooperation, which would be more detrimental to Alaska's commercial fishermen. MR. BRUCE said that is correct. SENATOR TAYLOR asked if ADFG has maintained a consistent position of resisting federal intervention of commercial fishing within Glacier Bay National Park and its adjacent waters. He asked why ADFG has been so zealously protecting the commercial fishermen's rights within the park when it is doing everything in its power to forfeit the state's rights to the rest of the navigable waters to the federal government. He commented the forfeit will occur on October 1 and is therefore a more pressing and eminent concern than the Glacier Bay situation. He asked Mr. Bruce to explain ADFG's dual position. MR. BRUCE replied ADFG and the Administration have vigorously pushed for a solution to the subsistence impasse to prevent a federal takeover. He indicated the solution has evaded them but he does not believe the reason lies solely within the powers of ADFG or the Executive Branch. SENATOR TAYLOR remarked his question turns on the fact that ADFG has advocated that the legislature adopt, throughout, the federal law. He asked Mr. Bruce, if that is ADFG's position, why ADFG is not suggesting the same action on the Glacier Bay issue. He then asked whether the Governor has filed a lawsuit as of yet. MR. BRUCE said the Governor has not. SENATOR TAYLOR asserted that the Governor will be filing a lawsuit to protect the rights of the commercial fishermen living in Gustavus but will advocate a federal law that will destroy those very same rights on all navigable waters in this state. Number 454 MR. BRUCE commented that nothing in Title 8 of ANILCA requires the closure of commercial fishing therefore the subject matter is different and requires a different response. Second, the State of Alaska operated under the rural priority for some time and during that time the commercial fisheries remained active and profitable, therefore he does not believe that a rural priority for subsistence users is incompatible with a healthy commercial fishery. SENATOR TAYLOR asked whether ADFG believes that the marine waters outside of Glacier Bay National Park are subject to the jurisdiction and control of fisheries management by the federal government or by the state, and if he believes ADFG retains control, why ADFG and this Administration are not fighting to maintain unilateral control. He asked how ADFG differentiates between a federal takeover of the navigable waters inside and outside of Glacier Bay. MR. BRUCE repeated that Title 8 of ANILCA does not require that commercial fisheries be closed. It deals with a priority for certain users of subsistence resources and, in fact, it is not clear that the federal takeover will even extend to commercial fisheries. The federal government would have authority only to manage subsistence fisheries. There is uncertainty about what might happen under the theory of their extraterritorial reach and how it might affect commercial fisheries in order to assure that subsistence needs are met. ADFG believes that it has a history of doing a fairly good job of managing fisheries and supplying the subsistence users. ADFG will be doing everything it can to minimize and resist the extension of any federal fisheries management into Alaska's commercial or recreational fisheries or into its own subsistence fisheries on state lands. SENATOR TAYLOR asked what ADFG is resisting. MR. BRUCE answered the state has not entered into the era of federal subsistence fisheries management yet and although the deadline is October 1, it will probably not be seen until the fishing season in 2000. He said it is not his place to speculate what will happen at this time. SENATOR LINCOLN commented that maybe she needs to take a closer look at this bill if the committee is debating subsistence. Number 508 DICK BISHOP, representing the Alaska Outdoor Council, stated the issue of whether commercial fishing should occur in Glacier Bay has been around since ANILCA was before Congress. The Alaska Outdoor Council strongly supports HB 109 as the bill concisely and accurately reviews the dilemma in Glacier Bay and responds appropriately with the assertion of state sovereignty over fish and game management in navigable waters. To do otherwise would be inconsistent with the responsibilities of the state and its elected officials. The difficulties over the Glacier Bay issue are the "tip of the glacier" of the impasse between state and federal authority. A serious public policy error would be made if the state ignores this federal intrusion on state sovereignty. Regarding Amendment 1, he is gratified by it and appreciates that all of the provisions for access and use of navigable waters has been put in one place. It is almost a cookbook description of what a person can and cannot do legally on the navigable waters of the state. He thought the provision regarding portaging and the description of access to land below the high water mark will be particularly useful to the public. SENATOR LINCOLN asked Ms. Grace to elaborate on her concerns about Section 4. MS. GRACE explained that Section 4 is essentially a codification of a preamble to a 1985 act. As she was comparing the language of both she found one difference. The preamble read: "Subject to the navigational service use, the state has full power and control of all of the navigable or public water of the state ...." Subsection 1(b) of Amendment 1 does not contain the words, "subject to the navigational service use,". Her concern is that the United States has that authority whether that language is included in the amendment or not, but including that language will clarify the situation for the public. SENATOR LINCOLN asked if the omission is not significant because the state would still be subject to the federal navigable servitude. MS. GRACE said that is correct. SENATOR LINCOLN asked Chairman Halford if that phrase was omitted for a specific reason. MR. HUBER replied in the discussions with other staff working on the bill, it was decided that including the language in the bill would not grant any power that the federal government does not already have. REPRESENTATIVE OGAN asked if Section 6 (f) of Amendment 1 creates any kind of violation of private property rights. MR. HUBER said that after researching case law and the practice in other states with weaker constitutional provisions embodying the Public Trust Doctrine, the access provision in Section 6(f) has been found to be reasonable and upheld in other jurisdictions. Therefore, where it does not exist in statute, that right has been, through case law, proven to be a right that goes along with the Public Trust Doctrine. REPRESENTATIVE OGAN asked if any of that case law regarding this issue is from Alaska. MR. HUBER said he is not aware of any, however he deferred to Ms. Grace. MS. GRACE replied she is not aware of any case law in the State of Alaska but the underlying principal is that the public right to use the navigable waters that is in the Constitution includes the right to portage. By adopting Amendment 1, the Legislature would not be taking anything away from the private upland owners. CHAIRMAN HALFORD announced that the question before the committee is whether to adopt Amendment 1. A hand count was taken. The motion carried with five yeas and one abstention. MS. GRACE expressed the following concerns about HB 109. The state intends to file a lawsuit regarding state ownership of submerged lands in Glacier Bay and the state's management authority over fisheries. The Department of Law strongly prefers to enter this litigation with maximum flexibility to argue the state's best case. Sections 2 and 3 are vague in their description of the navigable waters because they do not define the boundaries of the adjoining waters. Presumably the sponsor is referring to the running waters that are within the federally claimed boundary of Glacier Bay National Park. If so, those sections need to be restated to clarify that boundary. Also, Section 3, as it reads, is not limited to regulatory conflicts between state and federal regulations. To avoid confusion, she asked the committee to clarify that the bill is only concerned with National Park Service regulations that conflict with state law, or include a provision to exempt regulations promulgated for situations in which the state recognizes federal preemption, such as the Marine Mammal Protection Act. SENATOR MACKIE asked Mr. Huber if that concern was brought up during discussions with the Department of Law. MR. HUBER said he did not discuss the body of the bill with staff from the Department of Law. CHAIRMAN HALFORD asked Ms. Grace if she would feel more comfortable if it included the same type of language included in SB 68 which exempted the regulations pertaining to a specific list of federal acts. MS. GRACE replied that is exactly what the Department of Law would like. REPRESENTATIVE OGAN said he would have no problem with the inclusion of that language. Number 512 SENATOR TAYLOR asked Ms. Grace if she was asking for maximum flexibility in the language in subsection (c) to provide the Department of Law with opportunities when it files its lawsuit. He asked Ms. Grace to clarify her concern. MS. GRACE said she was vague about DOL's two concerns and but she cannot be too specific about those concerns in a public hearing. She offered to provide more detail in an executive session. She said, however, her concern about the reference to navigable waters within or adjoining the park and preserve is that there is no limit to the waters that adjoin the park and preserve. She suggested, if the committee is referring to the marine waters that are within the boundaries of the park and preserve, that boundary be stated. REPRESENTATIVE OGAN informed committee members that he took a look at the maps associated with the management claim to the navigable waters around Glacier Bay National Park. In addition to the waters of Icy Straits and the waters within the traditional land boundaries of Glacier Bay and Dundas Bay, that claim now includes three miles offshore into the Gulf of Alaska, north of Lituya Bay, halfway to Yakutat. He noted the map is clearly marked, which sets a precedent that the state should be very concerned about. SENATOR TAYLOR indicated his only concern with the phrase "maximum flexibility" is that he does not want to see a lawsuit brought by this Administration to defend Alaska's sovereignty over navigable waters only to have someone cut a deal and dismiss it with prejudice. He said if that is the case, he might find all of his fishermen sold down the river again like they were in the Babbitt case. He asked Ms. Grace if the Department of Law is asking for flexibility to cut some kind of a deal with the federal government. MS. GRACE replied the Department of Law is pursuing this lawsuit very vigorously and it intends to raise every claim it can against the United States as to jurisdiction. SENATOR MACKIE noted the language Chairman Halford referred to from SB 68 had been distributed to committee members. He asked where that would be inserted in HB 109. CHAIRMAN HALFORD stated it should be inserted in Section 2 at the end of subsection (1) and would read "including the Migratory Bird Treaty Act, North Pacific Halibut Act, Marine Mammal Protection Act, Endangered Species Act, Magnuson Stevens Fisheries Conservation Act, and the Pacific Salmon Treaty Act." SENATOR MACKIE moved a conceptual amendment to include the language described by Chairman Halford in Section 2. There being no objection, the motion carried. SENATOR TAYLOR questioned whether federal regulation of the IFQ fisheries in Alaska's navigable waters is included in that list. MS. GRACE said she did not know the answer at this time. Number 444 MR. BRUCE said he believes IFQ regulation falls under the Magnuson Stevens Fisheries Conservation Act. SENATOR TAYLOR asked if Alaska has also ceded that portion of its sovereign authority to the federal government and, if so, how it happened. MR. BRUCE stated that halibut are not subject to management by the State of Alaska, they are managed under an international treaty. SENATOR TAYLOR noted there are IFQs on halibut and black cod. MR. BRUCE responded he does not believe Alaska has IFQs on the black cod fisheries that are in state waters; IFQs are restricted to the federal offshore waters. A limited entry system is used in state waters. SENATOR TAYLOR asked if the answer to his question is that the state has refused to challenge that invasion by the federal government of Alaska's navigable waters to regulate that species. MR. BRUCE asked if Senator Taylor was referring strictly to halibut. SENATOR TAYLOR said yes. MR. BRUCE said again, halibut are regulated under an international treaty and were never subject to state management authority. While a lot of halibut are taken within state waters, they are not a species subject to state management. There being no further testimony on HB 109, SENATOR MACKIE moved the bill as amended from committee with individual recommendations. REPRESENTATIVE OGAN interjected to ask whether the committee wants to include the Lacey Act. CHAIRMAN HALFORD said he does not think it is necessary. There being no objection to moving HB 109 as amended from committee with individual recommendations and its accompanying fiscal note, CHAIRMAN HALFORD noted the motion carried. CHAIRMAN HALFORD then adjourned the meeting at 4:10 p.m.