Legislature(2003 - 2004)

04/11/2003 01:15 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 24 - AGREEMENTS ON MANAGEMENT OF FISH AND GAME                                                                             
                                                                                                                                
Number 0034                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be  HOUSE BILL  NO.  24, "An  Act  relating to  intergovernmental                                                               
agreements regarding  management of fish  or game."   [Before the                                                               
committee was CSHB 24(RES).]                                                                                                    
                                                                                                                                
Number 0057                                                                                                                     
                                                                                                                                
REPRESENTATIVE BRUCE  WEYHRAUCH, Alaska State  Legislature, joint                                                               
sponsor of HB  24, referred to a  map of the state  of Alaska and                                                               
pointed out the area  to which HB 24 pertains -  Glacier Bay.  He                                                               
noted that  Glacier Bay  is a  huge body of  water, and  that the                                                               
[National]  Park Service  claims that  Glacier Bay  National Park                                                               
and  Preserve includes  the  entire Glacier  Bay  plus "the  line                                                               
coming  outside ...  here, into  what's called  Icy Strait,  down                                                               
into Excursion  Inlet, out this  ... body of water,  called Cross                                                               
Sound,  offshore three  miles,  up the  coast  and outside  three                                                               
miles to Lituya Bay, and then  into Lituya Bay."  That's the area                                                               
that  the National  Park Service  says  is part  of the  national                                                               
park, "into the state waters," he reiterated.                                                                                   
                                                                                                                                
REPRESENTATIVE WEYHRAUCH explained that  when Congress passed the                                                               
Alaska  National Interest  Lands  Conservation  Act (ANILCA),  it                                                               
called Glacier  Bay Monument a park.   He noted that  dispute has                                                               
arisen  regarding whether  commercial  fishing  is prohibited  in                                                               
wilderness areas, and that there  is a wilderness area in Glacier                                                               
Bay National Park and Preserve  called the Beardslee Islands.  He                                                               
relayed that there has also  been dispute over whether commercial                                                               
fishing could continue  in Glacier Bay.  He mentioned  that as he                                                               
defines  Glacier Bay,  "it's more  than 600,000  marine acres  of                                                               
state waters."   Therefore, the  area of concern  is significant,                                                               
he added.  Glacier Bay "proper"  and the marine waters outside of                                                               
Glacier Bay  proper are  home to  a huge,  flourishing, sustained                                                               
commercial fishery,  as well as subsistence  and sport fisheries.                                                               
He remarked that halibut, salmon,  Tanner/king crab, cod, shrimp,                                                               
and significant  troll fisheries  occur in  the waters  that he'd                                                               
defined as being outside of Glacier Bay proper.                                                                                 
                                                                                                                                
REPRESENTATIVE WEYHRAUCH  relayed that  in the 1990s,  the Alaska                                                               
Wildlife  Alliance sued  the  [National]  Park Service,  claiming                                                               
that  commercial fishing  could not  occur in  Glacier Bay.   The                                                               
district  court in  Alaska ruled  that  commercial fishing  could                                                               
occur.   This ruling  was appealed  to the  9th Circuit  Court of                                                               
Appeals, which affirmed  the district court ruling  but also said                                                               
that  the  [National]  Park  Service  could  prohibit  commercial                                                               
fishing  via  regulation.    Subsequently,  the  [National]  Park                                                               
Service  engaged  in  the  process  of  adopting  regulations  to                                                               
prohibit commercial fishing in various  areas inside Glacier Bay;                                                               
this  raised  concerns  that commercial  fishing  would  also  be                                                               
prohibited outside of Glacier Bay  proper - in the "disputed park                                                               
waters."                                                                                                                        
                                                                                                                                
Number 0312                                                                                                                     
                                                                                                                                
REPRESENTATIVE WEYHRAUCH explained that  U.S. Senator Ted Stevens                                                               
passed legislation  that closed Glacier Bay  proper to commercial                                                               
fishing,  except in  certain areas,  and required  "any fisherman                                                               
who wanted  to continue  to fish there,  in the  halibut, salmon,                                                               
and Tanner  crab fisheries, prove  they'd fished there and  get a                                                               
lifetime-access  permit   so  they   could  continue   to  fish."                                                               
Congress also  authorized more  than $23  million for  payment to                                                               
fishermen harmed  by the aforementioned  closure, and  "all kinds                                                               
of  businesses"  and  individuals  have endeavored  to  obtain  a                                                               
portion of that  money.  As it stands now,  he noted, some people                                                               
have received compensation and some  have not.  In addition, some                                                               
fishermen  who  have  lifetime-access permits  in  the  "halibut,                                                               
troll salmon  fishery, and Tanner  crab fishery" can  continue to                                                               
fish in certain areas of Glacier  Bay, but otherwise that area is                                                               
closed, and as soon as  those lifetime-access permit holders pass                                                               
away, there  will be  no more commercial  fishing in  Glacier Bay                                                               
proper.                                                                                                                         
                                                                                                                                
REPRESENTATIVE WEYHRAUCH mentioned that  there is also an ongoing                                                               
case in the  U.S. Supreme Court - "a quiet-title  action" - which                                                               
has been referred to a "special  master."  He also mentioned that                                                               
there is another  issue involving areas called  "donut holes," in                                                               
Southeast  [Alaska]  and  the  waters  of  the  Tongass  National                                                               
Forest,  that  are subject  to  the  aforementioned U.S.  Supreme                                                               
Court case.   The portion of that case which  is still ongoing is                                                               
"that  portion  of the  case  which  claims  that the  waters  of                                                               
Glacier Bay ...  belong to the state" as decided  by another U.S.                                                               
Supreme Court  case involving  Idaho, which  says that  the state                                                               
came into the  Union on equal footing with all  other states and,                                                               
thus, would have jurisdiction over its lands and waters.                                                                        
                                                                                                                                
REPRESENTATIVE WEYHRAUCH  pointed out that  HB 24 has  nothing to                                                               
do  with  "the buy-out  program,  the  compensation program,  the                                                               
closure of  Glacier Bay proper,  or the quiet-title action."   He                                                               
said that  he introduced  HB 24  because then-U.S.  Senator Frank                                                               
Murkowski had introduced  a bill - S. 501 -  that required, under                                                               
Section 3, subsection (b), for  the Secretary of the Interior and                                                               
the  State  of  Alaska  to  cooperate in  the  development  of  a                                                               
management  plan for  the regulation  of commercial  fisheries in                                                               
the outer waters of the  park in accordance with existing federal                                                               
and state laws and any  applicable international conservation and                                                               
management   treaties.     He   noted   that  the   international                                                               
conservation  and management  treaties  that are  not subject  to                                                               
this bill include "the  International Pacific Halibut Commission,                                                               
and the U.S./Canada salmon treaty."                                                                                             
                                                                                                                                
Number 0540                                                                                                                     
                                                                                                                                
REPRESENTATIVE WEYHRAUCH  said that HB  24 is intended  to ensure                                                               
that  any co-management  agreement with  "a sovereign"  - meaning                                                               
the U.S.  government or a tribal  entity - would be  reviewed and                                                               
approved by the  State of Alaska, through the  legislature.  This                                                               
review  would ensure  that before  Alaska cedes  any jurisdiction                                                               
over its right  to manage the fisheries and  natural resources of                                                               
the state,  the legislature approves  it.  He rephrased  the goal                                                               
of the legislation as being,  "We would not cede any jurisdiction                                                               
over our  resources, to  another sovereign  - or  entity claiming                                                               
sovereignty -  by contract, which  we did not do  by constitution                                                               
or state law."   In response to a question,  he remarked that the                                                               
state  has  the basic  right,  under  the U.S.  Constitution  and                                                               
Alaska State  Constitution, to manage its  own "natural resources                                                               
and  waters   and  lands"   without  interference   from  another                                                               
"sovereign."                                                                                                                    
                                                                                                                                
REPRESENTATIVE   WEYHRAUCH  noted   that  CSHB   24(RES)  focuses                                                               
specifically on  the dispute involving Glacier  Bay National Park                                                               
and Preserve;  it would  add a provision  that would  ensure that                                                               
the  State of  Alaska and  the  National Park  Service would  not                                                               
enter  into a  co-management agreement  of fish  and game  in the                                                               
navigable waters  within or adjoining  Glacier Bay  National Park                                                               
and Preserve  unless the legislature has  approved that agreement                                                               
by law before it takes place.   By injecting the legislature into                                                               
the  process in  this manner,  he opined,  it would  be making  a                                                               
policy  statement  that  the  legislature   wants  the  state  to                                                               
maintain  its  jurisdiction  over commercial  fisheries  in  that                                                               
area.  He  added that he wanted to ensure  that any co-management                                                               
agreement does not cede the  state's jurisdiction, because of the                                                               
potential  negative precedential  effect it  would have  on other                                                               
state  waters,  lands,  fisheries,  and natural  resources.    He                                                               
offered  that HB  24  is a  very narrow  bill  pertaining to  co-                                                               
management  agreements between  the state  and the  National Park                                                               
Service.                                                                                                                        
                                                                                                                                
CHAIR McGUIRE  asked whether HB  24 would violate  the separation                                                               
of powers [doctrine].                                                                                                           
                                                                                                                                
REPRESENTATIVE WEYHRAUCH relayed that  legislation passed in 1997                                                               
- SB 178 - which pertained  to the purchase of an office building                                                               
in  Anchorage  by the  Alaska  Housing  Finance Corporation,  had                                                               
within it a provision requiring  that the legislature approve the                                                               
agreement before  it went  into effect.   Specifically,  it said:                                                               
"This section constitutes the review  and approval required by AS                                                               
18.55.100(d)", which in turn read in part:                                                                                      
                                                                                                                                
          (d) Notwithstanding (a)(7) and (15) of this                                                                           
     section, a  proposed public  building project  shall be                                                                    
     submitted  by the  corporation to  the legislature  for                                                                    
     review.   The corporation  may proceed with  the public                                                                    
     building project only if it is approved by law.                                                                            
                                                                                                                                
REPRESENTATIVE   WEYHRAUCH   observed    that   via   that   past                                                               
legislation,  the  legislature  and  the  governor  have  allowed                                                               
statutory  language  that  entails  the  review  of  a  contract.                                                               
"That's a contract  lease, this is a  contract for co-management;                                                               
it's the same  thing, and there is precedent for  this kind of an                                                               
agreement," he opined.                                                                                                          
                                                                                                                                
CHAIR McGUIRE  said that  although she  sees the  analogy between                                                               
contracts,  she   disagrees  because   an  agreement   to  manage                                                               
resources is different from an agreement  to buy a building.  She                                                               
asked  for  comments from  the  drafter  regarding separation  of                                                               
powers.                                                                                                                         
                                                                                                                                
Number 0920                                                                                                                     
                                                                                                                                
GEORGE   UTERMOHLE,   Attorney,    Legislative   Legal   Counsel,                                                               
Legislative  Legal  and  Research Services,  Legislative  Affairs                                                               
Agency,  explained that  separation  of powers  becomes an  issue                                                               
because, under  the [Alaska State] Constitution,  the legislature                                                               
has been given  the power to make law, and  the governor has been                                                               
given  the responsibility  of exercising  those laws.   Once  the                                                               
legislature has  enacted a  law, the issue  then becomes  to what                                                               
extent  can   the  legislature  impair  the   executive  branch's                                                               
discretion to  implement a law  that has  been assigned to  it by                                                               
the  legislature.    There  are  numerous  incidents  in  statute                                                               
wherein  the  legislature has  given  authority  to an  executive                                                               
branch agency  to perform a  certain function, but  withholds the                                                               
agency's  ability to  implement  "that  agreement" without  prior                                                               
legislative approval.                                                                                                           
                                                                                                                                
MR.  UTERMOHLE said  that  there has  been  litigation over  such                                                               
situations.    In  some  cases,   the  courts  have  struck  down                                                               
legislative   involvement  in   areas   where  executive   branch                                                               
discretion is  at issue; in  other cases, the courts  have upheld                                                               
the legislature's involvement.   There are two  examples of where                                                               
the  legislature   has  attempted  to  hold   to  itself  certain                                                               
authority to control executive branch discretion.                                                                               
                                                                                                                                
MR. UTERMOHLE  said that the  first was the 1976  [Alaska Supreme                                                               
Court]  case,  Bradner  v.  Hammond,  in  which  the  legislature                                                             
attempted to  require the governor  to submit to  the legislature                                                               
for confirmation  certain names  for sub-cabinet positions.   The                                                               
court looked at  that case in terms of separation  of powers, and                                                               
described the case in separation  of powers terms, but ultimately                                                               
made  its  decision based  on  other  provisions of  the  [Alaska                                                               
State]  Constitution  which  specifically provided  that  certain                                                               
executive branch  officials are subject to  confirmation but only                                                               
those officials.   Thus the court found that  the legislature had                                                               
exceeded its  authority in attempting to  require that additional                                                               
executive branch officers be subject to confirmation.                                                                           
                                                                                                                                
MR. UTERMOHLE  said that  the 1980  [Alaska Supreme  Court] case,                                                               
State  v. A.L.I.V.E.  Voluntary,  arose  because the  legislature                                                             
attempted  to  control  the  adoption  of  regulations  by  state                                                               
agencies.   In that  case, although  the court  acknowledged that                                                               
the  legislature can  annul  regulations if  it  so chooses,  the                                                               
court  nonetheless struck  down the  actions of  the legislature,                                                               
not based  on separation of  powers, but because  the legislature                                                               
chose  the wrong  avenue in  which  to annul  the regulations  in                                                               
question.   Those regulations that  the legislature  attempted to                                                               
annul are,  in fact, law.   The  legislature has no  authority to                                                               
change law except  by the enactment of laws itself;  this did not                                                               
happen in the A.L.I.V.E. Voluntary case.                                                                                      
                                                                                                                                
Number 1115                                                                                                                     
                                                                                                                                
MR. UTERMOHLE reiterated that there  have been cases in which the                                                               
legislature's  attempt  to  require  its  approval  of  executive                                                               
branch actions  has been upheld.   The 1998 Alaska  Supreme Court                                                               
case  of  Baxley  v.  State  was one  in  which  the  legislature                                                             
approved amendments to  a contract for the  Northstar oil leases;                                                               
the  legislature's  action was  upheld  because  it approved  the                                                               
contract  amendments via  legislation.   "Another case,  which is                                                               
the other  area where  this occurs, is  in regard  to negotiating                                                               
and  the  approval of  contract  bargaining  agreements with  ...                                                               
state  labor unions,"  he added.   The  executive branch  has the                                                               
authority  to   enter  into  collective   bargaining  agreements;                                                               
however,  those   agreements  do   not  take  effect   until  the                                                               
legislature has  approved them by law,  through the appropriation                                                               
process.    This  provision  has  been  upheld  and  enforced  in                                                               
numerous Alaska Supreme Court cases.                                                                                            
                                                                                                                                
MR.  UTERMOHLE  said  that  there  are no  cases  on  point  that                                                               
actually say that "we can't do  what's attempting to be done" via                                                               
HB  24.   The  cases  in which  legislative  approval of  certain                                                               
agreements  has been  upheld  were [not]  brought  to the  Alaska                                                               
Supreme  Court  on  a  challenge  to  the  separation  of  powers                                                               
doctrine itself.  He added:                                                                                                     
                                                                                                                                
     So we  don't know ...  how much of  a risk that  is, if                                                                    
     ... the issues in those  cases were to be challenged on                                                                    
     a  separation  of  powers  doctrine  specifically,  but                                                                    
     given  the  available  case  law,  there's  nothing  to                                                                    
     suggest that this  ... would exceed the  ability of the                                                                    
     legislature  to require  approval of  these cooperative                                                                    
     agreements   [with]   the    National   Park   Service.                                                                    
     Particularly   in  the   legislature's  favor   is  the                                                                    
     requirement  in the  [Alaska  State] Constitution  that                                                                    
     the  legislature  has  the  duty  to  provide  for  the                                                                    
     conservation,  development,  and   utilization  of  the                                                                    
     resources of the state, by law.                                                                                            
                                                                                                                                
CHAIR  McGUIRE asked  why there  wasn't  a fiscal  note from  the                                                               
Department of Law.                                                                                                              
                                                                                                                                
REPRESENTATIVE WEYHRAUCH said he did not know.                                                                                  
                                                                                                                                
REPRESENTATIVE  GRUENBERG  pondered  whether the  governor  would                                                               
have any concerns from a policy  point of view about requiring an                                                               
executive  branch agreement  to be  approved be  the legislature.                                                               
He said he wants to know  whether the governor intends to veto HB
24 if it passes the legislature.                                                                                                
                                                                                                                                
Number 1353                                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLM asked:   Did not Alaska reserve  the right to                                                               
be responsible for it's own resources at the time of statehood?                                                                 
                                                                                                                                
REPRESENTATIVE WEYHRAUCH opined that it did.                                                                                    
                                                                                                                                
REPRESENTATIVE  HOLM  asked why  all  navigable  waters were  not                                                               
included in HB 24.                                                                                                              
                                                                                                                                
REPRESENTATIVE  WEYHRAUCH offered,  "Because  this bill's  easier                                                               
for me to chew."                                                                                                                
                                                                                                                                
REPRESENTATIVE GARA  posited that there  might be times  when the                                                               
state  will want  to enter  into  an agreement  with the  federal                                                               
government  because that  agreement would  be beneficial  for the                                                               
state.   Even in those instances,  he surmised, under HB  24, the                                                               
legislature  would still  have  to approve  the  agreement.   For                                                               
example, what  if there  is the possibility  of entering  into an                                                               
agreement  that gives  the  state more  authority  to manage  its                                                               
resources.  Why should there  be requirement that such a contract                                                               
be brought before the legislature for approval?                                                                                 
                                                                                                                                
REPRESENTATIVE  WEYHRAUCH  replied  that  HB 24  is  designed  to                                                               
prevent  the state  from  ceding, through  contract,  any of  its                                                               
authority  without   that  contract   first  coming   before  the                                                               
legislature  for  approval.    That   is  his  main  concern,  he                                                               
reiterated,  that the  state not  cede any  of it's  authority to                                                               
manage its resources.                                                                                                           
                                                                                                                                
REPRESENTATIVE GARA  said he understood that  point, but remarked                                                               
that the opposite  it true too:  HB 24  would prevent the federal                                                               
government from giving more authority  to the state unless such a                                                               
contract is approved by the legislature.  He elaborated:                                                                        
                                                                                                                                
     Wouldn't  we now  prevent  the  federal government  ...                                                                    
     from  saying  in,  let's  say, May,  to  the  Board  of                                                                    
     Fisheries, "Here,  we'll let the state  manage fish and                                                                    
     game; we'll  let them  do it  today," but  actually the                                                                    
     fishermen  then  miss  that   whole  summer  season  of                                                                    
     fishing because the legislature  doesn't meet 'til next                                                                    
     January. ... Are we not  preventing them from giving us                                                                    
     things that we want, as well as taking things away?                                                                        
                                                                                                                                
Number 1562                                                                                                                     
                                                                                                                                
REPRESENTATIVE WEYHRAUCH replied:                                                                                               
                                                                                                                                
     The only ...  place I know that exists right  now is in                                                                    
     Glacier Bay  proper, where  the federal  government has                                                                    
     passed  a law  allowing  the National  Park Service  to                                                                    
     close commercial  fisheries in  Glacier Bay  and manage                                                                    
     the methods,  means, ... areas, and  fisheries that can                                                                    
     be restricted.   This  does not have  to do  with those                                                                    
     waters in Glacier Bay.   This is simply on the outside,                                                                    
     where  no management  regime like  that exists  at all.                                                                    
     This  is only  in  the outside  waters  of Glacier  Bay                                                                    
     proper - adjoining Glacier Bay.                                                                                            
                                                                                                                                
REPRESENTATIVE GARA surmised,  then, that HB 24  doesn't apply to                                                               
the inside waters of Glacier Bay.                                                                                               
                                                                                                                                
REPRESENTATIVE  HOLM asked:   "When  did the  state ...  agree to                                                               
give  up its  sovereignty and  give up  its rights  over its  own                                                               
waters  and its  resources to  the  federal government?   Was  it                                                               
through that federal  law that was passed?  Did  we agree to that                                                               
law, or was it just passed and now we succumb under that law?"                                                                  
                                                                                                                                
REPRESENTATIVE WEYHRAUCH  replied:   "The law  was passed  at the                                                               
request  of  [U.S.]  Senator  Stevens,  the  ...  state  has  not                                                               
challenged the  law, and the state  did not intervene in  ... the                                                               
lawsuit that  was filed by  [the] Alaska Wildlife Alliance."   In                                                               
response to a further question, he  confirmed that HB 24 will not                                                               
have any  effect on the  ongoing litigation involving  the "donut                                                               
holes" waters.                                                                                                                  
                                                                                                                                
REPRESENTATIVE  GARA asked  whether  it is  correct  to say  that                                                               
currently, the  federal government has asserted  the authority to                                                               
prevent the state  from allowing fishing, under  the state's fish                                                               
and game rules, within the waters of Glacier Bay.                                                                               
                                                                                                                                
REPRESENTATIVE WEYHRAUCH said yes.                                                                                              
                                                                                                                                
REPRESENTATIVE GARA then said:                                                                                                  
                                                                                                                                
     So,  if  there  were  a  chance  for  us  to  get  that                                                                    
     authority back by contract, I  think we would certainly                                                                    
     want to do  that.  And then -- so  the last exchange we                                                                    
     had was that, well,  this only affects waters adjoining                                                                    
     Glacier Bay,  ... but the  language that I  have before                                                                    
     me  says   within  "the  navigable  waters   within  or                                                                    
     adjoining Glacier Bay".                                                                                                    
                                                                                                                                
Number 1738                                                                                                                     
                                                                                                                                
REPRESENTATIVE  WEYHRAUCH said  that [HB  24] is  intended to  be                                                               
coincident with  the S. 501 co-management  requirement that then-                                                               
U.S.  Senator  Frank  Murkowski  had  adopted.   If  there  is  a                                                               
contract  that  allows  the  state  to  again  manage  commercial                                                               
fisheries in Glacier Bay and  reopen those fisheries, it would be                                                               
a violation of federal law,  he remarked, because federal law has                                                               
closed  those waters  and restricts  the commercial  fishing that                                                               
can  occur.   Thus,  he added,  both the  state  and the  federal                                                               
government would be subject to an injunction.                                                                                   
                                                                                                                                
REPRESENTATIVE GARA asked whether  S. 501 strictly and completely                                                               
prohibits the  National Park Service  from allowing  any fishing,                                                               
or does it give the National Park Service the discretion.                                                                       
                                                                                                                                
REPRESENTATIVE WEYHRAUCH said,  "It prohibits it."   The law that                                                               
passed  Congress,  he  added,  restricts  commercial  fishing  in                                                               
Glacier Bay to  certain areas.  It only  allows trollers, halibut                                                               
fishermen,  and  Tanner  crab   fishermen  who  have  obtained  a                                                               
lifetime-access  permit to  continue to  fish inside  Glacier Bay                                                               
proper and only in those restricted waters.                                                                                     
                                                                                                                                
REPRESENTATIVE GARA said his concern is this:                                                                                   
                                                                                                                                
     To the extent  we can get the authority  back to manage                                                                    
     fish and game by contract  - maybe that would require a                                                                    
     statutory change  on the  federal government's  part to                                                                    
     allow us  to do that  and to allow the  [National] Park                                                                    
     Service to  do that with  us -  but to the  extent that                                                                    
     opportunity becomes  available, why  would we  not want                                                                    
     to take advantage of it.                                                                                                   
                                                                                                                                
REPRESENTATIVE WEYHRAUCH replied:                                                                                               
                                                                                                                                
     We  should;  I believe  we  have  it as  a  legislative                                                                    
     priority of  the executive  branch.   And we  could put                                                                    
     that  in  here,  that  it  is the  policy  of  the  ...                                                                    
     legislature to ask the administration  to attempt to do                                                                    
     everything possible to pass us  a bill through Congress                                                                    
     that reopens  Glacier Bay to commercial  fishing. ... I                                                                    
     think that would be a  great friendly amendment to this                                                                    
     bill;  that would  be "a  shot  heard 'round  Congress"                                                                    
     too.                                                                                                                       
                                                                                                                                
Number 1838                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG said  he'd never seen a  bill drafted as                                                               
this one is  in the first sentence [starting on  page 1, line 6];                                                               
it's drafted  in the negative.   Normally, he elaborated,  a bill                                                               
is drafted  in the  positive, for example,  "The state  must seek                                                               
legislative  approval before  entering into  such an  agreement".                                                               
He asked  whether Representative  Weyhrauch intended to  have the                                                               
bill drafted in the negative.                                                                                                   
                                                                                                                                
REPRESENTATIVE  WEYHRAUCH explained  that  when  he'd called  Mr.                                                               
Utermohle, he'd  started his sentence  with, "I don't  want ...,"                                                               
and offered  that perhaps  that is  why HB 24  was drafted  as it                                                               
was.   He again reiterated that  he did not want  a co-management                                                               
agreement with  the federal government  that allows the  state to                                                               
cede jurisdiction of its resources.                                                                                             
                                                                                                                                
REPRESENTATIVE GRUENBERG suggested putting  that sentiment in the                                                               
positive.  He  asked Mr. Utermohle whether there is  a reason why                                                               
HB 24 shouldn't be written in the positive.                                                                                     
                                                                                                                                
MR. UTERMOHLE  explained that HB 24  is drafted in the  manner it                                                               
is in order to ensure that there  is no question that there is no                                                               
other  authority under  other provisions  of statute  whereby the                                                               
state could enter into a  cooperative agreement with the National                                                               
Park Service.                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  opined that if  such is the  case, then                                                               
HB  24  must  be  drafted  in the  positive;  otherwise,  it's  a                                                               
negative of a negative.                                                                                                         
                                                                                                                                
REPRESENTATIVE HOLM offered the following analogy:                                                                              
                                                                                                                                
     If  I own  my own  house, and  I lock  it, and  ... you                                                                    
     present me with a contract for  the use of my house, in                                                                    
     order to unlock  my house, ... then don't  I admit that                                                                    
     you have the authority over my house if I accept your                                                                      
     contract?                                                                                                                  
                                                                                                                                
REPRESENTATIVE  WEYHRAUCH   said,  "I   guess  for   purposes  of                                                               
unlocking it, yes."                                                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG said,  "No, I  don't think  it follows,                                                               
because you can't do it without your permission."                                                                               
                                                                                                                                
REPRESENTATIVE  HOLM  said,  "Vis-a-vis,   it's  written  in  the                                                               
contract that way."                                                                                                             
                                                                                                                                
Number 1962                                                                                                                     
                                                                                                                                
STEPHEN  WHITE,  Assistant  Attorney General,  Natural  Resources                                                               
Section, Civil  Division (Juneau), Department of  Law (DOL), said                                                               
that  HB 24  presents  two constitutional  issues,  the first  of                                                               
which  has  already  been  explored by  the  committee,  that  of                                                               
separation of powers.  He said  that he agrees with Mr. Utermohle                                                               
that this  is an unsettled area,  that there is no  case law that                                                               
would either say yes or no.   But every time that the legislative                                                               
branch  gets involved  with an  executive branch  power, or  visa                                                               
versa, the issue of separation of  powers has to be raised.  Even                                                               
though  the  legislature has  adopted  statutes  which allow  the                                                               
legislature to  review contracts, those haven't  been challenged;                                                               
there's been no ruling on them.                                                                                                 
                                                                                                                                
MR.  WHITE said  that sometimes  contracts involve  the power  to                                                               
appropriate  money; for  example,  in  the collective  bargaining                                                               
agreements.  That's  a legislative power, so  in those instances,                                                               
he opined,  the legislature  is merely  asserting its  own power.                                                               
He said that negotiating contracts  regarding the management fish                                                               
and game is typically considered  an executive branch power; thus                                                               
for the legislature to go in  and review those contracts raises a                                                               
separation of  powers issue.   He suggested  that there may  be a                                                               
simple way to remove that  constitutional issue while maintaining                                                               
the sponsor's intent.                                                                                                           
                                                                                                                                
MR. WHITE  explained that the second  constitutional issue, which                                                               
has  not yet  been addressed,  is one  called the  "impairment of                                                               
contracts"  clause under  the  federal  and state  constitutions.                                                               
Basically, he explained, it says  that the legislature can't pass                                                               
a law that impairs, or repeals,  or in any way interferes with an                                                               
existing  contract.   On that  point, he  referred to  Section 2,                                                               
subsection  (b),  of   HB  24,  and  noted  that   it  gives  the                                                               
legislature the ability, after the  fact, to rescind a contract -                                                               
an agreement  - entered  into by the  federal government  and the                                                               
state.                                                                                                                          
                                                                                                                                
MR.  WHITE acknowledged,  however, that  according to  the Alaska                                                               
Department  of  Fish and  Game  (ADF&G),  there are  no  existing                                                               
contracts of that nature.   Therefore, he opined, that while that                                                               
portion of  HB 24 might  raise the  aforementioned constitutional                                                               
issue, it  may not actually even  have any value.   Removing that                                                               
language, he  predicted, would  remove the  constitutional issue.                                                               
On the other hand, if the  legislature is determined to keep that                                                               
provision, he  said, he thinks  there is  a way to  strengthen it                                                               
and make it more defensible from a constitutional challenge.                                                                    
                                                                                                                                
Number 2058                                                                                                                     
                                                                                                                                
MR. WHITE  added:  "Do  I think that  either of these  things are                                                               
defective in terms  of provoking a recommendation for  veto by my                                                               
department?  The answer is no.   The area of law is unclear.  I'm                                                               
here to suggest  ways to remove those  constitutional problems or                                                               
maybe strengthen them from any attack."                                                                                         
                                                                                                                                
REPRESENTATIVE   GRUENBERG  said   he   did  not   see  how   the                                                               
aforementioned  provision  would   impair  an  existing  contract                                                               
unless the  contract was entered  into before the  effective date                                                               
of the bill.                                                                                                                    
                                                                                                                                
MR. WHITE said that is correct.                                                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG   surmised,  then,  that   "we're  only                                                               
talking about a  month or two here."  He  asked Mr. White whether                                                               
he  is anticipating  any contract  being agreed  upon before  the                                                               
bill could go into effect.                                                                                                      
                                                                                                                                
MR. WHITE said no.                                                                                                              
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  Mr.  White to  elaborate on  his                                                               
suggestion  that   the  separation  of  powers   issue  could  be                                                               
resolved.                                                                                                                       
                                                                                                                                
MR. WHITE offered:                                                                                                              
                                                                                                                                
     One way  you could do  it is,  ... instead of  having a                                                                    
     legislature  review  for  whether  the  department  has                                                                    
     ceded disciplinary  power to manage ...  fish and game,                                                                    
     you could  basically say the  department may  not enter                                                                    
     (indisc.) a contract of this  type which does that.  So                                                                    
     you put the  standard up front; any  contract that does                                                                    
     that could  be voided by  any court.   So it  sets your                                                                    
     concern  up front,  it  sets a  standard  by which  the                                                                    
     executive  branch  can  act  or not  act,  and  it  ...                                                                    
     relieves  you of  the obligation  -  of the  duty -  to                                                                    
     review  and  make  that  determination  yourself  as  a                                                                    
     legislature.                                                                                                               
                                                                                                                                
REPRESENTATIVE GRUENBERG said that  they could certainly do that,                                                               
and  then the  governor  could  simply introduce  a  bill in  the                                                               
following   legislative  session   allowing  him   to  sign   the                                                               
agreement.                                                                                                                      
                                                                                                                                
Number 2180                                                                                                                     
                                                                                                                                
MR.  WHITE said  that under  his suggested  language, he  did not                                                               
anticipate the governor  having to undertake any  procedure.  His                                                               
proposal  would basically  say that  the department  doesn't have                                                               
the authority to enter into  a contract that cedes authority, but                                                               
if the department did so, that contract would be void.                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG  opined that  if the  language currently                                                               
in HB 24  is unconstitutional, then Mr. White's  suggestion is no                                                               
more  constitutional, because  the  governor would  then have  to                                                               
submit  a  bill  authorizing  the contract,  and  such  would  be                                                               
subject  to   the  legislative  process  required   to  pass  any                                                               
legislation.                                                                                                                    
                                                                                                                                
MR.  WHITE  argued  that  his  suggestion  does  not  entail  any                                                               
legislative action,  it merely establishes a  standard, up front,                                                               
by which a contract could not be entered into by the department.                                                                
                                                                                                                                
CHAIR McGUIRE  asked Mr.  White to provide  to the  committee, at                                                               
the  bill's   next  hearing,  his  suggested   language  and  any                                                               
documentation substantiating his assertions.                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked Mr. White whether  he is speaking                                                               
on behalf of the administration.                                                                                                
                                                                                                                                
MR.  WHITE  clarified  that  he  is speaking  on  behalf  of  the                                                               
Department of Law (DOL), and  perhaps on behalf of the Department                                                               
of Fish and Game (ADF&G).                                                                                                       
                                                                                                                                
CHAIR McGUIRE asked  Mr. White to provide a fiscal  note from the                                                               
DOL, even if it is a zero fiscal note.                                                                                          
                                                                                                                                
REPRESENTATIVE  GARA asked  whether  the issue  of separation  of                                                               
powers with regard to contracts  pertaining to management of fish                                                               
and game has been resolved in any other state's supreme court.                                                                  
                                                                                                                                
MR. WHITE indicated  that he has not yet done  that research, but                                                               
is intending to.                                                                                                                
                                                                                                                                
REPRESENTATIVE GARA opined that such  would be a prudent thing to                                                               
do.                                                                                                                             
                                                                                                                                
MR. UTERMOHLE  indicated that he  has not yet done  that research                                                               
either;  his  research has  been  confined  to the  Alaska  State                                                               
Constitution.                                                                                                                   
                                                                                                                                
TAPE 03-36, SIDE B                                                                                                            
Number 2360                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG,  referring  to   S.  501,  noted  that                                                               
Section 3, subsection  (c)(2), says:  "Nothing in  this Act shall                                                               
enlarge  or diminish  Federal or  State  title, jurisdiction,  or                                                               
authority with respect to the waters  of the State of Alaska, the                                                               
waters  within  Glacier  Bay  Park  and  Preserve,  or  tidal  or                                                               
submerged lands."   Does that  not answer the question  that that                                                               
bill was not intended to affect state sovereignty, he asked.                                                                    
                                                                                                                                
MR. WHITE replied, "Well, the bill  may not have intended to, but                                                               
the  parties could  separately agree  to  give it  away, ...  and                                                               
that's what Representative Weyhrauch's concern is."                                                                             
                                                                                                                                
CHAIR McGUIRE announced that HB 24 would be held over.                                                                          

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