[Congressional Record Volume 145, Number 149 (Thursday, October 28, 1999)]
[Senate]
[Pages S13420-S13421]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. MURKOWSKI:
  S. 1826. A bill to provide grants to the State of Alaska for the 
purpose of assisting that State in fulfilling its responsibilities 
under sections 803, 804, and 805 of the Alaska National Interest Lands 
Conservation Act, and for other purposes; to the Committee on Energy 
and Natural Resources.
 Mr. MURKOWSKI. Mr. President, today I rise to introduce 
legislation regarding the State of Alaska's sovereign right to manage 
its fish and game resources. It is a sad day that I come to the floor 
of the United States Senate to inform my colleagues that for the first 
time since Alaska became a state it no longer has sole authority to 
manage its fisheries on federal lands.
  For everyone of my colleagues their respective states right to manage 
fish and game is absolute--every state but Alaska manages all its own 
fish and game. As of October 1, in Alaska, this is not the case, and 
therefore, action must be taken to try and provide the opportunity for 
the state to regain this authority back as swiftly as possible.
  Some background is in order here.
  When Congress passed the Alaska National Interest Lands Conservation 
Act (ANILCA) in 1980, Title VIII required the State of Alaska to 
provide a rural subsistence hunting and fishing preference on federal 
``public lands.'' If the State fails to provide the required preference 
by State statute, the law provided that the federal government would 
step in to manage the subsistence uses of fish and game resources on 
federal lands.
  The Alaska State Legislature passed such a subsistence preference law 
in 1978 which was upheld by referendum in 1982. The law was slightly 
revised in 1986, and remained on the books until it was struck down by 
the Alaska Supreme Court in 1989 as unconstitutional because of the 
Alaska Constitution's common use of fish and game clause. It is easy to 
see how there would be a conflict between a federal law that requires 
the state to provide a preference for rural Alaskans for fish and game 
resources and a state constitution that provides for equal access. When 
the state statutes were struck down, the Secretary of the Interior and 
the Secretary of Agriculture, for Forest Service lands, took over 
management of fish and game resources on federal public lands in 
Alaska.
  For the most part the early focus was on game management and little 
was done to impact Alaska's fisheries. That all changed in 1995 when a 
decision by the Ninth Circuit Court of Appeals in Katie John v. United 
States extended the law far beyond its original scope to apply not just 
to ``federal lands'' but to navigable waters owned by the State of 
Alaska. Hence State and private lands were impacted too. The theory 
espoused by the Court was that the ``public lands'' includes 
navigable waters in which the United States has reserved water rights. 
If implemented, the courts decision would mean all fisheries in Alaska 
could effectively be managed by the federal government. In April of 
1996, the Departments of the Interior and Agriculture published an 
``Advance Notice of Proposed Rulemaking'' which identified about half 
of the state as subject to federal authority to regulate fishing 
activities.

  These regulations were so broad they could have affected not only 
fishing activities, but virtually all activities on state and federal 
lands that may have an impact on subsistence uses. There is no 
precedent in any other State in the Union for this kind of overreaching 
into State management prerogatives. For that reason Congress acted in 
1996 to place a moratorium on the federal government from implementing 
those regulations and assuming control of Alaska's fisheries. This 
moratorium was provided mainly to allow the State time to make 
appropriate changes to the constitution and relevant statutes in order 
to comply with the federal law. The moratorium was extended three times 
by Congress and just recently expired October 1, 1999.
  The Governor, and the majority of the State legislators have worked 
to try and resolve this issue by adopting an amendment to the State 
constitution that would allow them to pass State statutes to come into 
compliance with the federal law and provide a subsistence priority. 
Unfortunately, the State of Alaska's Constitution is not easily amended 
and these efforts have fallen short of the necessary votes needed to 
place the issue before the Alaska voters. In fact, in the most recent 
special session a majority of the legislators voted to do just this. 
Unfortunately they were just two votes shy in the State Senate of the 
2/3 majority needed to place the necessary amendment before the voters.
  With the failure of the legislature to place a constitutional 
amendment on the ballot prior to October 1, 1999, we now find ourselves 
in a situation where the federal government has assumed control of 
subsistence fisheries in Alaska. Therefore, absent a lawsuit or major 
change to federal law, the only way the State can now regain management 
of the subsistence fisheries is if the Secretary were to certify that 
the citizens of Alaska voted on, and approved, a constitutional 
amendment and the State Legislature had approved appropriate State 
statutes to conform with ANILCA. Under the most optimistic 
circumstances, the absolute earliest this could occur would be after 
the general election in November of 2000--and more likely it would not 
occur until 2001 or 2002. This just cannot be allowed to continue 
without some effort to return management to Alaska as soon as possible.

[[Page S13421]]

  The proposal I am introducing today would minimize the duration of 
federal control if the State legislature passes a constitutional 
amendment that would allow them to adopt laws to come into compliance 
with the federal law. This would continue to make sure the focus of a 
resolve remains on State action and not in the ill-placed hopes of some 
action by Congress.
  Specifically, the proposal would do the following:
  Provide that the State can regain management authority as soon as the 
Secretary certifies the State legislature has approved a constitutional 
amendment that would allow the State to comply with ANILCA.

  As soon as the Secretary certifies the amendment, any unexpended 
funds that were provided to the Secretary as a result of the 
legislature's failure to act by October 1, 1999 are turned over to the 
State.
  In order to continue to retain management the State must place the 
amendment on the ballot at the earliest date possible under State law.
  The Secretary could manage subsistence again if the amendment is not 
adopted by the voters or if it is adopted but the State fails to adopt 
the needed state statutes at the end of the first legislative session 
after passage of the constitutional amendment.
  At any time that the Secretary is managing subsistence fisheries in 
Alaska, he must comply with section 1308 of ANILCA which requires local 
hire.
  Mr. President, I along with most Alaskans, believe that subsistence 
uses of fish and game should have a priority over other uses in the 
State. We have provided for such uses in the past, I have hunted and 
fished under those regulations and I respected and supported them and 
continue to do so now. I believe the State can again provide for such 
uses without significant interruption to the sport or commercial 
fisherman.
  I also believe that Alaska's rural residents should play a greater 
role in the management and enforcement of fish and game laws in Alaska. 
They understand and live with the resources in rural Alaska. They see 
and experience the fish and game resources day in and day out. And, 
they are most directly impacted by the decisions made about use of 
those resources. They should bear their share of the responsibility for 
formulating fish and game laws as well as enforcing them.
  It is my intention to ensure that at anytime the Secretary is 
managing any of Alaska's wildlife resources that he maximize the 
expertise of Alaska's Native people. I also hope the State would 
provide Alaska's rural residents a greater role as it seeks to resolve 
the subsistence dilemma once and for all. But until that happens, I 
cannot stand by and watch the federal government move into the State 
and assume control of the Alaska fish and game resources for an 
extended period of time. That is why I am providing for the earliest 
opportunity for the State to regain management.
  I've lived under federal management during Alaska's territorial days 
and it does not work. In 1959 Alaskan's caught just 25.1 million 
salmon. Under State management we caught 218 million salmon in 1995.
  Federal control would again be a disaster for the resource and those 
that depend on it.
                                 ______