Legislature(2003 - 2004)

04/28/2003 02:10 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 2013                                                                                                                     
CHAIR McGUIRE announced that the  next 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 2018                                                                                                                     
REPRESENTATIVE BRUCE  WEYHRAUCH, Alaska State  Legislature, joint                                                               
sponsor of HB 24, summarized  his understanding from the previous                                                               
hearing.   He  drew attention  to language  proposed by  [Stephen                                                               
White of the Department of Law]  to address some concerns he had;                                                               
it  read  [original  punctuation  provided  but  some  formatting                                                               
     SUGGESTED LANGUAGE FOR CS FOR HOUSE BILL NO. 24(RES)                                                                       
     (This will  remove the separation  of powers  issue and                                                                    
     will  strengthen  the  bill against  attack  under  the                                                                    
     impairment of contracts clauses.)                                                                                          
     Section 1.   AS  16.20.010 is amended  by adding  a new                                                                  
     subsection to read:                                                                                                        
          (c) The department or a board may not enter into                                                                      
     an agreement with the National  Park Service that cedes                                                                    
     to  the  federal  government  the  state's  traditional                                                                    
     authority  to  manage fish  or  game  in the  navigable                                                                    
     waters within  or adjoining  Glacier Bay  National Park                                                                    
     and  Preserve.    In  this  subsection,  "authority  to                                                                    
     manage"  means   authority  to  regulate   the  method,                                                                    
     manner,  means, time,  or place  of taking  of fish  or                                                                    
     game or  to regulate  the amount of  fish or  game that                                                                    
     may be taken.                                                                                                              
     Section 2.   The uncodified law of the  State of Alaska                                                                  
     is amended by adding a new section to read:                                                                                
     STATUS OF  EXISTING AGREEMENTS REGARDING  MANAGEMENT OF                                                                    
     FISH  AND  GAME  IN  THE  NAVIGABLE  WATERS  WITHIN  OR                                                                    
     ADJOINING GLACIER  BAY NATIONAL PARK AND  PRESERVE.  An                                                                    
     agreement,  or a  severable  portion  of an  agreement,                                                                    
     between the Department  of Fish and Game,  the Board of                                                                    
     Fisheries, or the  Board of Game and  the National Park                                                                    
     Service  that was  entered  into  before the  effective                                                                    
     date  of  this  Act  and  that  cedes  to  the  federal                                                                    
     government the state's  traditional authority to manage                                                                    
     fish  or  game  in   the  navigable  waters  within  or                                                                    
      adjoining Glacier Bay National Park and Preserve is                                                                       
     void on and after July 1, 2004.                                                                                            
REPRESENTATIVE WEYHRAUCH informed members  that he'd asked George                                                               
Utermohle, legislative  drafter, and  Ted Popely  to talk  to the                                                               
The committee took an at-ease from 4:44 p.m. to 4:45 p.m.                                                                       
Number 2090                                                                                                                     
REPRESENTATIVE WEYHRAUCH  told members that one  concern he's had                                                               
is  that   the  state's  authority,  referenced   in  Section  1,                                                               
subsection  (c),   of  Mr.  White's   proposed  language,   is  a                                                               
constitutionally recognized  one, not  [just] a  traditional one.                                                               
He said  that the central premise  of the bill is  to ensure that                                                               
the state  doesn't cede,  by contract,  the management  rights it                                                               
holds by authority under the  constitution.  He suggested that if                                                               
the word  "traditional" is stricken, the  language will basically                                                               
mirror the bill.                                                                                                                
CHAIR McGUIRE agreed.                                                                                                           
Number 2149                                                                                                                     
REPRESENTATIVE  OGG   noted  that  although  what's   before  the                                                               
committee focuses on Glacier Bay  National Park and Preserve, the                                                               
same  issues apply  in his  district, which  has a  national park                                                               
"across the  way from  us."  He  suggested perhaps  extending the                                                               
legislation  to apply  to national  monuments  and other  federal                                                               
lands as  well, so  that it could  correct potential  problems in                                                               
his district.                                                                                                                   
REPRESENTATIVE WEYHRAUCH explained that  S. 501 was introduced in                                                               
Congress  by then-U.S.  Senator Frank  Murkowski to  require that                                                               
agreements  be  entered into  by  the  State  of Alaska  and  the                                                               
Department of the Interior for  co-management of fisheries in the                                                               
outside waters of Glacier Bay.   While there may be concerns over                                                               
a  potential co-management  agreement between  the National  Park                                                               
Service and the  State of Alaska in the Kodiak  area, there is no                                                               
specific requirement as now exists  for Glacier Bay National Park                                                               
and Preserve.   He suggested, however, that it is  in the state's                                                               
best interest  to prevent, statewide,  the kind  of co-management                                                               
agreements wherein  the state cedes, by  contract, its authority.                                                               
He  said he  wouldn't object  to putting  [language that  applies                                                               
statewide] in the bill.                                                                                                         
CHAIR McGUIRE  offered her understanding  that the  intent behind                                                               
the  original version  of  HB  24 was  to  include all  navigable                                                               
Number 2229                                                                                                                     
REPRESENTATIVE WEYHRAUCH  specified that the original  intent was                                                               
to  include all  co-management agreements  over "all  waters and,                                                               
basically,  resources  in the  entire  state  of Alaska."    He'd                                                               
supported [CSHB  24(RES)], however,  because sometimes  the state                                                               
and a  sovereign entity  have an  agreement over  a fish  weir to                                                               
count fish,  for example, or have  an agreement to hire  a tribal                                                               
entity  or federal  [agency] with  regard to  some resource.   In                                                               
those instances,  the state and  the resource users  benefit, and                                                               
there  is no  ceding of  jurisdiction.   He  suggested that  that                                                               
isn't the kind of agreement the  legislature wants to review on a                                                               
case-by-case basis.   It's  only the  central, critical  kinds of                                                               
issues where there potentially is  a ceding of jurisdiction, with                                                               
respect to  the right and  ability to manage resources,  that the                                                               
legislature should be concerned about, he concluded.                                                                            
CHAIR McGUIRE  posited that the committee  supports the sponsor's                                                               
goal, and  that the only debate  she's heard from members  is the                                                               
question,  "Why not  make it  broader?"   She suggested  speaking                                                               
clearly and  concisely [in the statute].   She asked how  a court                                                               
will  interpret the  existence of  a House  bill that  originally                                                               
spoke on a  broader level about navigable waters  and the state's                                                               
rights,  followed  by  committee   discussion  and  a  subsequent                                                               
narrowing of that.                                                                                                              
REPRESENTATIVE   WEYHRAUCH   acknowledged   the   difficulty   of                                                               
predicting how  a court would interpret  something, but suggested                                                               
that a  reasonable interpretation  would be that  the legislature                                                               
considered  it   and  decided  to   make  it   more  restrictive.                                                               
Therefore,  he  opined,  a  court  wouldn't  read  [the  proposed                                                               
statute]  expansively  to  include  any other  area  outside  the                                                               
Glacier Bay  National Park and Preserve,  because the legislature                                                               
specifically knew about a broad  intent and then amended the bill                                                               
to make it narrower.                                                                                                            
Number 2332                                                                                                                     
REPRESENTATIVE SAMUELS  asked about replacing "Glacier  Bay" with                                                               
the  word "any"  so  that it  would read  "any  national park  or                                                               
preserve".  He also suggested the word "a".                                                                                     
REPRESENTATIVE WEYHRAUCH  said it had  begun broad and  that he'd                                                               
had no problem with it.   He emphasized his concern:  that Alaska                                                               
not  cede  to  the  federal   government  its  jurisdiction  over                                                               
management of fish and game.                                                                                                    
CHAIR  McGUIRE asked  Mr.  Popely whether  he  had any  suggested                                                               
language,  and whether  saying "any  national park  and preserve"                                                               
would accomplish the intent.                                                                                                    
Number 2371                                                                                                                     
TED  POPELY, Majority  Legal Counsel,  Alaska State  Legislature,                                                               
answered  that   either  that  or   similar  language   would  be                                                               
effective,  to  his  belief.    With  regard  to  broadening  the                                                               
language, he said  it may actually be required, since  there is a                                                               
constitutional  mandate that  [legislative Acts]  conform to  the                                                               
local  and special  Acts  provision; this  could  raise an  issue                                                               
about whether  this is a  special or local provision,  as opposed                                                               
to one that's generally applicable to all federal preserves.                                                                    
TAPE 03-45, SIDE B                                                                                                            
Number 2380                                                                                                                     
MR. POPELY added  that he believes broadening  it probably should                                                               
have been done originally, in fact.                                                                                             
REPRESENTATIVE  WEYHRAUCH  emphasized   that  it  is  fundamental                                                               
management issues  and disputes  that are  at issue  here, rather                                                               
than examples like the one he'd given of a fish weir.                                                                           
CHAIR McGUIRE suggested it could  be made clear through testimony                                                               
both in this  committee and on the House floor  that it isn't the                                                               
intent  to  be  unnecessarily  burdensome  for  small,  technical                                                               
agreements worked out over things like fish wheels.                                                                             
Number 2355                                                                                                                     
REPRESENTATIVE WEYHRAUCH  noted that  Mr. Popely  had suggestions                                                               
about the word "traditional" in the proposed language.                                                                          
MR.  POPELY  suggested  that removing  the  phrase  "the  state's                                                               
traditional"  [in  subsection  (c)]   would  cause  the  language                                                               
proposed by  Mr. White to  more accurately reflect  the sponsors'                                                               
intention.   He explained that the  state's traditional authority                                                               
to manage  fish or game  seems to be  a fluid concept  in Alaska,                                                               
one that is continually litigated  and that probably shouldn't be                                                               
in the  statute as written; it  would be open to  a wide spectrum                                                               
of interpretations  as to whether  the department  was conforming                                                               
to  the statute  with regard  to when  it is  ceding the  state's                                                               
traditional authority to manage fish and game.                                                                                  
MR.   POPELY  offered   his  understanding   that  Representative                                                               
Weyhrauch's  point  in proposing  this  bill  is specifically  to                                                               
preclude the state's ceding any  of its constitutional authority,                                                               
"as opposed to some interpreted  or manufactured authority that's                                                               
always subject  to some legal  interpretation"; he  said removing                                                               
those three  words -  "the state's  traditional" -  would reflect                                                               
that intention  well in  both Sections  1 and  2 [of  Mr. White's                                                               
proposed language].                                                                                                             
Number 2250                                                                                                                     
CHAIR McGUIRE moved to adopt as  a work draft the document titled                                                               
"Suggested  Language for  CS for  House Bill  No. 24(RES)"  [text                                                               
provided  previously],   with  the  following  amendments:     In                                                               
Section 1  after   "federal  government",  delete   "the  state's                                                               
traditional"; delete "Glacier Bay";  insert after the word "Park"                                                               
the letter "s";  and insert after the word  "Preserve" the letter                                                               
"s".  In  Section 2, delete "Glacier Bay"; insert  after the word                                                               
"Park" the letter  "s"; and insert after the  word "Preserve" the                                                               
letter "s".                                                                                                                     
CHAIR  McGUIRE continued  with the  motion,  specifying that  the                                                               
title,  though  not  part  of  the  written  document,  would  be                                                               
[included  in the  work draft  after being]  amended as  follows:                                                               
delete "Glacier  Bay"; insert  after the  word "Park"  the letter                                                               
"s"; and insert after the word "Preserve" the letter "s".                                                                       
REPRESENTATIVE HOLM  suggested inserting  "any" after  "within or                                                               
CHAIR McGUIRE  accepted that as a  friendly amendment, specifying                                                               
that it would read "any national parks or preserves".                                                                           
REPRESENTATIVE WEYHRAUCH stated his  preference for "and" instead                                                               
of "or" so that it is broader.                                                                                                  
CHAIR McGUIRE concurred, specifying  that the title portion would                                                               
read "or adjoining any national parks and preserves".                                                                           
Number 2198                                                                                                                     
REPRESENTATIVE  GRUENBERG  proposed   a  friendly  amendment,  to                                                               
retain the word "the" so that  [both Sections 1 and 2] would read                                                               
"cedes   to  the   federal  government   the   authority".     He                                                               
acknowledged  that   this  was   in  contrast  to   Mr.  Popely's                                                               
suggestion to delete "the state's traditional".                                                                                 
CHAIR McGUIRE,  calling it a good,  friendly amendment, specified                                                               
that deleted would be "state's traditional" [in both sections].                                                                 
CHAIR  McGUIRE asked  whether  there was  any  objection [to  the                                                               
proposed work draft, as amended, including the title change].                                                                   
Number 2165                                                                                                                     
REPRESENTATIVE   OGG   [objected    for   discussion   purposes],                                                               
suggesting  that there  were  additional  amendments to  discuss.                                                               
For   example,  national   wildlife  refuges   sometimes  receive                                                               
wilderness status  for some  sections on shores  or bays.   There                                                               
are also  national monuments and  national forests.   He inquired                                                               
about the [ability of the Alaska  Department of Fish and Game] to                                                               
make agreements with "those folks."                                                                                             
REPRESENTATIVE WEYHRAUCH  said that that  is the problem  - where                                                               
to cut it off - and  that it potentially is a significant problem                                                               
which the legislature should deal with.                                                                                         
REPRESENTATIVE   OGG  suggested   adding   those  entities   he'd                                                               
REPRESENTATIVE WEYHRAUCH  said he  wasn't sure  how to  amend the                                                               
bill to do that.  He said he'd  thought about it a long time, and                                                               
just  needed  "something  small  I could  chew."    He  suggested                                                               
perhaps Representative  Ogg could provide an  amendment to insert                                                               
later after discussion.  He added  that it is a huge problem that                                                               
he doesn't know how to deal with.                                                                                               
Number 2094                                                                                                                     
REPRESENTATIVE  HOLM  indicated  his  staff  had  just  suggested                                                               
defining  "preserve"  to  include   all  the  entities  that  the                                                               
committee wants to include.                                                                                                     
REPRESENTATIVE WEYHRAUCH  proposed just saying "with  the federal                                                               
government"; that  would include  parks, preserves,  forests, and                                                               
everything else.   He  also suggested it  could say  "any federal                                                               
lands or waters".                                                                                                               
Number 2065                                                                                                                     
CHAIR McGUIRE said  she liked it.  She announced  that a friendly                                                               
amendment to  the conceptual amendment was  before the committee,                                                               
and reworded it slightly to be "any federal lands and waters".                                                                  
Number 2049                                                                                                                     
REPRESENTATIVE GARA objected  for discussion purposes, expressing                                                               
concern about  broadening it to  where the legislature  will have                                                               
to  confirm a  large number  of agreements  about which  it knows                                                               
very little at this point.   When the bill was limited to Glacier                                                               
Bay National Park and Preserve, he  said, "I think we all sort of                                                               
had our  arms wrapped  around the problem."   Remarking  that the                                                               
sponsor had  solved one problem,  he recalled an  earlier hearing                                                               
and noted  that the  bill would have  prevented [the  state] from                                                               
contracting  with  and  accepting   authority  from  the  federal                                                               
government at times.  He explained:                                                                                             
     The sponsor has  now said no, we just want  to keep the                                                                    
     state  from  giving  away   authority.    We'll  accept                                                                    
     authority,  but   we  don't  want  to   give  away  any                                                                    
     authority;  so that's  the "ceding"  language in  here.                                                                    
     So  that  solves a  good  bit  of  the problem,  and  I                                                                    
     appreciate that.                                                                                                           
     But  now let's  focus  on some  areas  where the  state                                                                    
     accepts  authority  from  the federal  government.  ...                                                                    
     Let's think through how many  agreements there might be                                                                    
     out there  that we're  going to have  to confirm  if we                                                                    
     broaden  the language.   And  ... there  are places  on                                                                    
     federal land,  I suppose, [where]  we conduct  fish and                                                                    
     game  law  enforcement  activities, and  I'm  wondering                                                                    
     whether, if  we wrote the  bill as broadly as  this, we                                                                    
     might  now need  legislative approval  to do  that. ...                                                                    
     I'm just  worried that now  that we're going  to affect                                                                    
     ... all sorts of federal  lands within Alaska ..., with                                                                    
     this provision,  that there might  be a whole  bunch of                                                                    
     agreements out  there that  the legislature's  going to                                                                    
     have to confirm that we really didn't mean to confirm.                                                                     
Number 1966                                                                                                                     
REPRESENTATIVE WEYHRAUCH asked Ron  Somerville to talk about this                                                               
MR. POPELY first offered his  belief that the definition provided                                                               
by  Mr. White's  language specifically  defines the  authority to                                                               
manage  to include  regulating methods,  manner, means,  time, or                                                               
place  of  taking.     Those  are  the   traditional  aspects  of                                                               
management activities for  which he thinks the  sponsor is trying                                                               
to preclude  contracting with the federal  government, Mr. Popely                                                               
indicated, as  opposed to  law enforcement,  counting activities,                                                               
or other ministerial activities for  which the state continues to                                                               
want to contract with various federal or other organizations.                                                                   
Number 1935                                                                                                                     
REPRESENTATIVE  WEYHRAUCH   pointed  out   that  there   are  co-                                                               
management  agreements on  waterfowl and  bowhead whale  hunting,                                                               
for example,  between the state  and the federal government.   He                                                               
said he'd hate  to think management of fish and  game couldn't be                                                               
facilitated  for citizens'  interests through  legislative review                                                               
of all those smaller kinds of agreements.                                                                                       
Number 1904                                                                                                                     
RON SOMERVILLE,  Member, Board of  Game, noting that he  has been                                                               
assigned to work  with the House and Senate  majority on resource                                                               
issues,  said  most  of  the  agreements  with  federal  agencies                                                               
involve  cooperative  programs,   but  don't  involve  authority.                                                               
These  are   agreements  for  enforcement  work   or  cooperative                                                               
counting  programs, for  instance,  but  rarely include  anything                                                               
related  to   the  basic  authority   of  various   agencies,  he                                                               
indicated.   With regard to  authority being ceded to  one agency                                                               
or another, he  said he doesn't see that very  often - only where                                                               
there  may  be  disagreement  with the  Office  of  the  Attorney                                                               
General over  what traditional  authorities there  might be.   He                                                               
added his belief  that the legislature already  would be required                                                               
to deal  with any authority that  was going to be  given to other                                                               
MR.  SOMERVILLE suggested  the purpose  here,  when Congress  has                                                               
mandated that a cooperative program  be established, for example,                                                               
is  to make  it clear  to the  [administration], as  a matter  of                                                               
policy,  that   it  cannot  cede  any   management  authority  or                                                               
authority to regulate.   He said the key point  he'd seen [in the                                                               
proposed language]  is defining  "authority to manage",  which is                                                               
regulating "the following activities".   He said he doesn't think                                                               
it will be  often that the legislature will be  called upon to do                                                               
Number 1841                                                                                                                     
CHAIR  McGUIRE  interpreted  the   foregoing  to  mean  that  Mr.                                                               
Somerville  doesn't see  a problem  with using  the broader  term                                                               
"federal lands and waters".                                                                                                     
MR. SOMERVILLE  affirmed that he  doesn't see that as  a problem,                                                               
although he said  it might broaden the debate to  say any federal                                                               
withdrawals, because there are a  lot of federal withdrawals.  He                                                               
mentioned the BLM  [Bureau of Land Management] and  said the U.S.                                                               
Fish and Wildlife Service "is just  as difficult to deal with, in                                                               
many cases, as is the National Park Service."                                                                                   
Number 1801                                                                                                                     
CHAIR  McGUIRE asked  whether  there was  further  debate on  the                                                               
"second-degree   amendment"  to   broaden  the   language  beyond                                                               
national  parks  and  preserves to  include  "federal  lands  and                                                               
REPRESENTATIVE OGG  noted that the  second line [of  the proposed                                                               
work  draft]  references  an agreement  with  the  National  Park                                                               
Service;   he  suggested   it  should   say  "with   the  federal                                                               
government" for consistency.                                                                                                    
CHAIR  McGUIRE  indicated  agreement,  noting that  it  would  be                                                               
required in the title as well.                                                                                                  
Number 1779                                                                                                                     
REPRESENTATIVE  SAMUELS asked  about  saying  "federal lands  and                                                               
waters" in the title, as opposed to just "federal lands".                                                                       
AN UNIDENTIFIED SPEAKER said, "Just federal lands."                                                                             
CHAIR  McGUIRE concurred.   She  said within  the title  it would                                                               
read "navigable waters within or adjoining federal lands".                                                                      
REPRESENTATIVE  WEYHRAUCH disagreed  with saying  "lands" to  the                                                               
exclusion of waters,  because there are areas  of dispute between                                                               
the federal  government and the  State of Alaska  regarding which                                                               
has  management jurisdiction  over waters,  not just  lands.   He                                                               
referred  to a  U.S. Supreme  Court  case he'd  mentioned in  the                                                               
first bill  hearing that  relates to  Glacier Bay  waters, "donut                                                               
hole"  waters in  the Alexander  Archipelago,  and "the  national                                                               
forest  waters."   He  said  the state  recently  won that  point                                                               
because the  federal government, in its  brief, acknowledged that                                                               
the  state has  jurisdiction over  those waters  adjacent to  the                                                               
Tongass National Forest.                                                                                                        
Number 1706                                                                                                                     
CHAIR   McGUIRE  agreed.     She   announced  her   intention  of                                                               
withdrawing her  amendment and  reoffering it  incorporating "all                                                               
of the discussion that we've had here on the record."                                                                           
Number 1693                                                                                                                     
REPRESENTATIVE   GRUENBERG  said   it   sounds   as  though   the                                                               
committee's  intent  is  to  make  it broad.    He  said  he  was                                                               
wondering,  if the  intention is  to assert  sovereignty, whether                                                               
sovereignty perhaps should be asserted  "in things that would not                                                               
be within the,  quote, 'authority to manage'."   He offered deep-                                                               
sea mining  as a  possible example  and mentioned  authority over                                                               
other types  of natural  resources.  He  suggested keeping  it as                                                               
broad  as  possible  to comply  with  Representative  Weyhrauch's                                                               
desire not to cede  any state authority.  Then if  it needs to be                                                               
narrowed, that  can be done.   "If we  want to make  a statement,                                                               
let's make a statement," he concluded.                                                                                          
Number 1594                                                                                                                     
REPRESENTATIVE WEYHRAUCH said  he thinks that is a  great idea as                                                               
a [policy] statement.   He offered to have the  drafters create a                                                               
clean committee  substitute (CS),  which he'd  bring back  to the                                                               
CHAIR McGUIRE  agreed, noting that  the committee's intent  is to                                                               
broaden it, but no further than the sponsor is comfortable with.                                                                
REPRESENTATIVE  WEYHRAUCH  reiterated  that the  bill  had  begun                                                               
broad, and told members that both  he and the other prime sponsor                                                               
[Representative Whitaker] want it broad.                                                                                        
CHAIR McGUIRE announced that HB 24 would be held over.                                                                          

Document Name Date/Time Subjects