Legislature(2003 - 2004)

03/05/2003 02:20 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 24-AGREEMENTS ON MANAGEMENT OF FISH AND GAME                                                                               
[Contains discussion of HB 132]                                                                                                 
CO-CHAIR  FATE  announced the  next  order  of business  would  be                                                              
HOUSE  BILL  NO.   24,  "An  Act  relating   to  intergovernmental                                                              
agreements regarding management of fish or game."                                                                               
Number 1020                                                                                                                     
REPRESENTATIVE   BRUCE   WEYHRAUCH,  Alaska   State   Legislature,                                                              
speaking as  one of the  two sponsors of  HB 24, characterized  HB
24  as a  bill  that addresses  agreements  between  the State  of                                                              
Alaska  and the  National Park  Service (NPS)  over management  of                                                              
commercial  fishing  in Glacier  Bay  National Park  and  Preserve                                                              
("Glacier  Bay").   [Representative Weyhrauch  stepped forward  to                                                              
the committee room's  map of Alaska to orient the  committee.]  He                                                              
said  Glacier  Bay   is  located  northwest  of   Juneau,  and  he                                                              
described  where the  boundaries  of  the park  are  located.   He                                                              
explained  that [Glacier  Bay consists of]  almost 500,000  marine                                                              
acres of  water that NPS  claims is within  the national  park and                                                              
monument  boundary.   It's  one  of  the most  productive  fishing                                                              
grounds in  Alaska and is home  to a huge troll  [salmon] fishery,                                                              
halibut fishery,  king crab  fishery, Tanner  crab fishery,  and a                                                              
Dungeness  crab fishery,  he said.    He noted  that ground  fish,                                                              
like  crabs, and  some  shrimp are  all  caught  in these  waters.                                                              
Representative  Weyhrauch explained that  the Glacier  Bay [issue]                                                              
has been before the legislature in various permutations.                                                                        
REPRESENTATIVE  WEYHRAUCH said  the  reason it's  come before  the                                                              
legislature and  is of  interest on a  statewide basis  is because                                                              
NPS  claims   that  it  has   management  jurisdiction   over  the                                                              
submerged lands  in the park.   Currently,  he said, the  state of                                                              
Alaska  and the  United States  government  are in  a quiet  title                                                              
action before the  United States Supreme Court.  He  referred to a                                                              
[newspaper] headline  a few weeks ago,  and he said the  state was                                                              
involved  before a  special  master before  that  court, in  which                                                              
case it  is arguing the  issue over title  to submerged  lands and                                                              
some other  areas of the  state.  It's  a critical case,  he said,                                                              
involving  who has  ownership  of those  submerged  lands in  that                                                              
area,  the  State  of  Alaska  or  the  federal  government.    He                                                              
explained that  this bill does not  address that, but it  is "part                                                              
of a backdrop" in which this bill has been introduced.                                                                          
NUMBER 1245                                                                                                                     
CO-CHAIR   CHENAULT  moved   to  adopt   the  proposed   committee                                                              
substitute (CS),  labeled 23-LS0135\S,  Utermohle, 3/4/03,  as the                                                              
working  document.    There  being no  objection,  Version  S  was                                                              
before the committee.                                                                                                           
REPRESENTATIVE WEYHRAUCH  said what  has happened is  that through                                                              
an Act that  was ironically introduced by then-U.S.  Senator Frank                                                              
Murkowski,  S.  501 has  became  law.    The federal  law  [SEC.3.                                                              
COMMERCIAL FISHING, (b) MANAGEMENT PLAN] states as follows:                                                                     
     The  Secretary  and the  State  shall 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.                                                                                                       
REPRESENTATIVE  WEYHRAUCH  said federal  law  is  saying that  the                                                              
federal government  and the state  shall enter into  co-management                                                              
agreements.    When  this  bill was  introduced,  it  was  broadly                                                              
worded  to  disallow  any  co-management   agreement  between  any                                                              
sovereign  and the  state  regarding any  management  of fish  and                                                              
game.   He said discussions with  some members of  the legislature                                                              
and other interested  parties, particularly,  Native organizations                                                              
and  other  kinds  of organizations,  [had  determined]  that  the                                                              
language  in the  original bill  was too  broad in  that it  would                                                              
affect things  like management agreements  for operation  of weirs                                                              
on streams,  for example.   He said in  certain instances  it's in                                                              
the state's interest  to have groups work with the  state on a co-                                                              
management-type of  basis, where it's more ministerial  as opposed                                                              
to discretionary as to who has jurisdiction over a resource.                                                                    
Number 1420                                                                                                                     
REPRESENTATIVE WEYHRAUCH  said he is  sensitive to those  kinds of                                                              
agreements,  and  that this  proposed  CS  requires the  State  of                                                              
Alaska  to  have  the  legislature  review  and  approve  any  co-                                                              
management  agreement   with  the  federal  government   over  the                                                              
management or jurisdiction  of fisheries in those  disputed marine                                                              
waters of  Glacier Bay  before it  could become  law.   It doesn't                                                              
have anything  to do with any other  entity, he said.   It doesn't                                                              
affect the U.S.-Canada  salmon treaty, which the state  is a party                                                              
to;  it doesn't  affect halibut  under  the International  Pacific                                                              
Halibut Commission  (IPHC).   It only  affects agreements  between                                                              
NPS  and the  State of  Alaska on  Glacier  Bay.   That's how  the                                                              
proposed  CS really  focused attention  on Glacier  Bay, he  said.                                                              
The  policy   basis  for  doing   this,  he  said,  is   that  the                                                              
legislature  wants to  ensure that  any  management agreement  the                                                              
state enters  into does not  cede any argument  or any  ability of                                                              
the state  to claim  that it  is the predominant  manager,  and to                                                              
ensure  that the  State  of Alaska  has  the primary  jurisdiction                                                              
over its fisheries and state waters.                                                                                            
REPRESENTATIVE  WEYHRAUCH  said,   essentially,  if  this  is  not                                                              
stated  clearly in  Glacier  Bay, [the  State  of Alaska]  doesn't                                                              
want to  have the  argument in other  areas of  the state  that it                                                              
has  given up  jurisdiction over  management of  its fisheries  in                                                              
those waters,  and it may  affect other  waters in other  parts of                                                              
the state.   Representative Weyhrauch  told the committee  that he                                                              
thinks it's a critical  state's rights kind of an  issue, and it's                                                              
particularly  offensive right  now, when  NPS is paying  fishermen                                                              
not to  fish anymore  in Glacier  Bay, where  fishermen are  being                                                              
excluded from  Glacier Bay and  are prohibited from  fishing there                                                              
under federal  law.  He  indicated it is  important for  the state                                                              
to stake as much  claim as possible to its ability  to continue to                                                              
fish  in those waters.   He  said this  is the  [reason] for  this                                                              
Number 1536                                                                                                                     
REPRESENTATIVE  GATTO said  he appreciated  the conversation  that                                                              
dealt  with ceding  the possibility  that  the federal  government                                                              
might  be able  to acquire  some sort  of meaningful  jurisdiction                                                              
over these waters,  and he noted that this concerns  him.  He said                                                              
he was  hoping to  receive some  comment [on  this issue],  and he                                                              
recommended holding HB  24 in committee to allow for  more time to                                                              
hear  [testimony],  because the  issue  about giving  the  federal                                                              
government any  jurisdiction [over  fisheries in disputed  waters]                                                              
is so  important.  He suggested  that the federal  government will                                                              
accept any  amount of  jurisdiction it  is given  and use  that in                                                              
any kind of an issue.                                                                                                           
Number 1618                                                                                                                     
CO-CHAIR  FATE  said  he  had  also  questioned  [the  issue]  and                                                              
brought  his  concern  to  Representative  Weyhrauch,  who  did  a                                                              
pretty good job of explaining it.                                                                                               
REPRESENTATIVE  WEYHRAUCH, in response  to Representative  Gatto's                                                              
concerns,  said  HB 132  addresses  the  state's interest  in  any                                                              
lawsuit  that affects  the state's  management  jurisdiction in  a                                                              
much  broader  context.   He  told  Representative Gatto  that  he                                                              
would talk with him about it outside of the committee meeting.                                                                  
Number 1718                                                                                                                     
CO-CHAIR  FATE  referred to  the  printout  that had  been  placed                                                              
before him and  he suggested that "jurisdiction"  and "management"                                                              
mean two different things.                                                                                                      
REPRESENTATIVE  WEYHRAUCH,   in  response,  said   the  bill  only                                                              
addresses management,  but it's the  jurisdiction of the  state to                                                              
review the management  of any matter having to  do with commercial                                                              
fisheries  in  those waters,  and  it's  the jurisdiction  of  the                                                              
State of Alaska  to ensure that the management  agreement does not                                                              
cede any  management ability to  NPS on commercial fisheries.   If                                                              
it does, he explained,  it has to be revisited by  the drafters of                                                              
any  cooperative  agreement to  ensure  that jurisdiction  of  the                                                              
state  is not  diminished  through  the management  of  fisheries.                                                              
Jurisdiction  is   not  defined  in   this  bill,  he   said;  the                                                              
jurisdiction  has to do  with simply adopting  the bill  to ensure                                                              
that  management stays  with  the state.    He said  if there's  a                                                              
reason  that  management  is  not  going to  be  with  the  state,                                                              
there's  a sound policy  basis that  does not  interfere with  the                                                              
state's jurisdiction.                                                                                                           
CO-CHAIR  FATE referred  to  S.  501 [SEC.3.  COMMERCIAL  FISHING,                                                              
(2), which states]:                                                                                                             
     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  National Park and  Preserve,                                                                   
     or tidal or submerged lands.                                                                                               
CO-CHAIR  FATE asked  if this Act  affords some  protection  as to                                                              
the  potential of  future actions  regarding  navigable waters  in                                                              
the state.                                                                                                                      
Number 1842                                                                                                                     
GEORGE   UTERMOHLE,    Attorney,   Legislative    Legal   Counsel,                                                              
Legislative  Legal  and  Research  Services,  Legislative  Affairs                                                              
Agency,  testified.   Mr.  Utermohle said  this  provision of  the                                                              
bill is  an attempt  to maintain  a status  quo, so that  anything                                                              
achieved  in  doing  this  bill  does  not  adversely  affect  the                                                              
states'  position at  a later  time  in any  litigation the  state                                                              
might have with the federal government.                                                                                         
Number 1871                                                                                                                     
REPRESENTATIVE  HEINZE  talked  about her  experience  in  Glacier                                                              
Bay,  and she  said  she'd heard  that  many  whales calve  inside                                                              
Glacier Bay.   She said  in reading through  the bill she  found a                                                              
lot   of  fish   and   game  management,   but   very  little   on                                                              
conservation.  She asked if [conservation] had been addressed.                                                                  
REPRESENTATIVE WEYHRAUCH  said whales are a marine  mammal and are                                                              
not a commercial  fishery.  The commercial fisheries  are affected                                                              
if there are vessels  that interfere with the transit  of a marine                                                              
mammal or  interfere in their habitat  or existence.   The state's                                                              
jurisdiction over  that is through  the National  Marine Fisheries                                                              
Service  (NMFS)   and  NOAA  [National  Oceanic   and  Atmospheric                                                              
Administration].    Whales are  not  the subject  of  [HB 24],  he                                                              
said;  the fish  that whales  feed  on, for  example, the  smaller                                                              
herring,  needlefish,   and  other  kinds   of  fish  are   not  a                                                              
commercial  fishery in  those areas.   Most [whales]  feed  on the                                                              
opposite side  of the Glacier  Bay entrance outside  Point Carolus                                                              
at Point Gustavus,  he said.  Representative Weyhrauch  said there                                                              
is  no intent  here to  address  marine mammals  or marine  mammal                                                              
protection, or any  operation of federal law related  to whales or                                                              
humpback whales.   He said they may calve in there,  but he wasn't                                                              
familiar with  the calving  habits of  humpback whales,  only with                                                              
the analyses and studies on humpbacks by NPS and NMFS.                                                                          
Number 1976                                                                                                                     
REPRESENTATIVE  GATTO asked  if it  would be  regarded as  federal                                                              
jurisdiction  if  a whale  were  to  calve within  the  three-mile                                                              
REPRESENTATIVE  WEYHRAUCH  said   he  didn't  think  there  was  a                                                              
jurisdictional  issue on calving;  it's more plenary  jurisdiction                                                              
over the  whale itself.   He  indicated that  regardless of  where                                                              
they   calve,   whales   are  under   the   federal   government's                                                              
Number 2036                                                                                                                     
CO-CHAIR  FATE talked about  the possibility  of a  jurisdictional                                                              
hiatus  between  the  powers  of government,  in  this  case,  the                                                              
legislature  and  the  administration.   He  turned  attention  to                                                              
language  on  page 1,  lines  9-10,  "unless the  legislature  has                                                              
approved the  agreement by  law ...," and  he asked  if management                                                              
was   a  function   of   the   administration  rather   than   the                                                              
legislature.     He  also  asked  whether   management  agreements                                                              
between the  State of Alaska and  the federal government  had been                                                              
or would need to be approved [by the legislature].                                                                              
REPRESENTATIVE  WEYHRAUCH  told Co-Chair  Fate  that his  question                                                              
was  a  separation-of-powers  kind  of  argument.    He  said  Mr.                                                              
Utermohle could  address the legal  question and he  could address                                                              
the [intention of the sponsors].                                                                                                
MR.  UTERMOHLE told  the committee  that the  Constitution of  the                                                              
State of  Alaska provides that the  legislature is the  law making                                                              
body for the State  of Alaska, and the role of  the governor is to                                                              
execute or  implement the laws passed  by the legislature.   Where                                                              
the  role of  the  governor begins,  and  where the  legislature's                                                              
ends in the management  of the executive branch, is  in large part                                                              
undefined, he said.   The execution of laws is  the responsibility                                                              
of the  governor, he  said, given the  law relating  to management                                                              
of  game  and  the  power to  enter  into  agreements  with  other                                                              
agencies  regarding management  of that  game.   How much  can the                                                              
legislature  then go  back  into that  process  and inject  itself                                                              
into it  and successfully  do that  under Alaska constitution,  he                                                              
asked.  He said the issue has never been addressed.                                                                             
MR. UTERMOHLE said  there are a number of situations  in which the                                                              
legislature  does require  approval of  executive branch  actions,                                                              
but only  one of which,  that he was  aware of, had  actually been                                                              
before the  court.  That situation  dealt with approval  of labor-                                                              
management  agreements  between   the  executive  branch  and  the                                                              
unions, which  are subject  to legislative  approval, and  did not                                                              
take effect  unless approved  by the legislature  by law.   That's                                                              
an  example of  where  legislative  involvement in  the  executive                                                              
branch has  been upheld by  the courts, he  said.  In  a situation                                                              
such  as this,  he said,  he  wasn't aware  of  any litigation  or                                                              
cases  that have  involved  this  issue of  requiring  legislative                                                              
approval  of   an  administrative  or  executive   branch  action,                                                              
although there  are a number  of cases  where that is  required in                                                              
Number 2219                                                                                                                     
REPRESENTATIVE  KERTTULA  said  the situation  is  different  than                                                              
with  [State v.  A.L.I.V.E.  Voluntary],  and the  preapproval  of                                                            
MR. UTERMOHLE  said the  issue involved  in A.L.I.V.E.  Voluntary,                                                            
was that the legislature  was trying to take action  to amend law,                                                              
a regulation,  by virtue of a  resolution.  The  state legislature                                                              
did  not take  its action  by law,  he  said.   Mr. Utermohle,  in                                                              
response  to a  question from  Representative  Kerttula, said  the                                                              
agreements  are  with NPS,  except  there  may be  agreements  out                                                              
there  that would  fall  under  the provision  of  this  Act.   He                                                              
explained  that the  bill  does provide  for  those agreements  to                                                              
stay in place  until the legislature has an opportunity  to review                                                              
them  to see  whether  those  agreements  have somehow  ceded,  or                                                              
somehow affected  the state's jurisdiction to the  extent that the                                                              
legislature is  not willing to approve  those agreements.   If the                                                              
legislature failed  to approve any  existing agreements,  he said,                                                              
those  agreements would  be void  under  this bill  after July  1,                                                              
2004,  although  he  wasn't  sure   if  there  are  any  of  these                                                              
agreements.    Mr. Utermohle  couldn't  say  how the  provision  -                                                              
impairment  of contracts  - relates  to an  agreement or  contract                                                              
between the  United States  and the State  of Alaska.   Generally,                                                              
he said,  the remedy for  impairment of  contract is damages.   He                                                              
said  he was  unsure  what damages  the  federal government  might                                                              
have against the state for backing out of an agreement.                                                                         
Number 2376                                                                                                                     
TED  POPELY,  Majority  Legal  Counsel,   Majority  Legal  Office,                                                              
Alaska  State  Legislature,   testified.    He  said   he  was  in                                                              
agreement   with   Mr.   Utermohle's   testimony   regarding   the                                                              
impairment  question and  damages,  and it's  difficult to  assess                                                              
what  kind  of damages  would  be  available through  the  federal                                                              
government,  even  if there  were  an  impairment question.    Mr.                                                              
Popely  offered  his belief  that  most  co-management  agreements                                                              
[contain]  termination clauses  with  a specified  period of  days                                                              
contained within them, so they're not interminable by nature.                                                                   
REPRESENTATIVE  KERTTULA  asked  if  anything  coming  after  this                                                              
would void any terminable [clauses].                                                                                            
REPRESENTATIVE  WEYHRAUCH, in  response, said  there is no  intent                                                              
in this  bill to interfere  with contracts  to the extent  that it                                                              
causes  damages;   if  so,  they   need  to  be  brought   to  the                                                              
legislature's  attention  when it  is  reviewing  these things  to                                                              
ensure that they are dealt with before the state incurs damages.                                                                
REPRESENTATIVE  KERTTULA expressed  concern  that if  there is  an                                                              
impairment-of-contract  question,  it  could be  a  constitutional                                                              
question under  this law itself.   She said there seem  to be ways                                                              
to get around the issue.                                                                                                        
REPRESENTATIVE WEYHRAUCH  offered his understanding  that there is                                                              
no contract  or impairment-of-contract  issue  that exists  at all                                                              
in  this   matter.     He  said  what's   being  discussed   is  a                                                              
hypothetical contract  that may exist and may result  in some sort                                                              
of damage  claim.  That's  much further  afield, he said;  this is                                                              
intended  to ensure that  the legislature  reviews any  management                                                              
or  co-management agreement  between the  [NPS] and  the State  of                                                              
Alaska  on  the  management  of fish  and  game.    Representative                                                              
Weyhrauch  said it's  intended  not to  interfere  with a  private                                                              
party action  or the federal  government's ability to  obtain some                                                              
remuneration from  the State of  Alaska that results in  a damages                                                              
claim.   This  is a  management  issue, he  said,  not a  contract                                                              
REPRESENTATIVE   KERTTULA    offered   her    understanding   that                                                              
management agreements can be contracts themselves.                                                                              
Number 2541                                                                                                                     
REPRESENTATIVE  WEYHRAUCH,  in  response,  said  they  could,  but                                                              
federal law that  was enacted under S. 501 says  that [the federal                                                              
government]  shall cooperate  in the development  of a  management                                                              
plan  for the  regulation  of commercial  fisheries  in the  outer                                                              
waters of  the park.  He offered  his understanding that  to date,                                                              
with  the  exception  of  any co-management  of  the  Glacier  Bay                                                              
compensation program,  there has  been no co-management  agreement                                                              
between  the  federal government  and  the  State of  Alaska  over                                                              
commercial fisheries  in the  waters of the  park.  To  the extent                                                              
that some  sort of  contract had  been brought to  the NPS  or the                                                              
state's  attention  in  the  negotiation   of  this  kind  of  co-                                                              
management  agreement  and  then   brought  to  the  legislature's                                                              
attention,  he  said,  there  would  have  to  be  a  fiscal  note                                                              
attached to  compensate that party  for harm or damages  caused by                                                              
the violation  of the  contract; thus  the legislature  would know                                                              
in advance  the fiscal  impact of having  to finance  any contract                                                              
action that resulted in a damages claim.                                                                                        
Number 2578                                                                                                                     
CO-CHAIR  FATE noted that  he would  honor Representative  Gatto's                                                              
request  to hold  the bill  over to  allow for  an opportunity  to                                                              
hear further testimony.                                                                                                         
REPRESENTATIVE  WEYHRAUCH noted  that both  he and  Representative                                                              
Kerttula are  from an  area that  had been significantly  affected                                                              
by Glacier Bay.                                                                                                                 
CO-CHAIR  FATE mentioned  public concerns  about navigable  waters                                                              
in Alaska,  and he said it was  an ongoing issue that  is affected                                                              
by [the bill], and that the concerns need to be addressed.                                                                      
Number 2634                                                                                                                     
CO-CHAIR FATE indicated HB 24 would be held in committee for                                                                    
further review.                                                                                                                 

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