[Senate Report 106-128]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 238
106th Congress                                                   Report
                                 SENATE
 1st Session                                                    106-128

======================================================================



 
                       GLACIER BAY FISHERIES ACT

                                _______
                                

                 July 29, 1999.--Ordered to be printed

                                _______


  Mr. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 501]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 501) to address resource management 
issues in Glacier Bay National Park, Alaska, having considered 
the same, reports favorably thereon with an amendment and 
recommends that the bill, as amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Glacier Bay Fisheries Act''.

SEC. 2. RESOURCE MANAGEMENT AND USE.

    (a) Section 202(1) of the Alaska National Interest Lands 
Conservation Act (16 U.S.C. 410hh-1) is amended by adding at the end 
thereof the following new sentence: ``Subsistence fishing and gathering 
by local residents shall be permitted in the park and preserve in 
accordance with the provisions of Title VIII.''
    (b) Within the boundaries of Glacier Bay National Park, the 
Secretary of the Interior shall not take any action that would 
adversely affect--
          (1) subsistence fishing and gathering under Title VIII of the 
        Alaska National Interest Lands Conservation Act (16 U.S.C. 3111 
        et seq.);
          (2) management by the State of Alaska of marine fisheries 
        including subsistence and commercial fisheries, in accordance 
        with the principles of sustained yield, except that commercial 
        fishing for Dungeness crab shall be prohibited; and,
          (3) subsistence gathering activities permitted under the 
        Migratory Bird Treaty.
    (c) Nothing in this section shall enlarge or diminish federal or 
state title, jurisdiction or authority with respect to the waters of 
the State of Alaska, the waters within the boundaries of Glacier Bay 
National Park and Preserve, or the tidal or submerged lands.

SEC. 3. CLAIMS FOR LOST EARNINGS.

    Section 3(g) of Public Law 91-383 (16 U.S.C. 1a-2(g)) is amended--
          (1) in paragraph (1), by striking ``and'' at the end;
          (2) in paragraph (2), by striking the period at the end and 
        inserting ``; and''; and
          (3) by inserting after paragraph (2) the following:
          ``(3) to pay an aggregate of not more than $2,000,000 per 
        fiscal year in actual and punitive damages to persons who, at 
        any time after January 1, 1999, suffered or suffer a loss in 
        earnings from commercial fisheries legally conducted in the 
        marine waters of Glacier Bay National Park, due to any action 
        by an officer, employee, or agent of any Federal department or 
        agency.''

                         Purpose of the Measure

    The purpose of S. 501, as ordered reported, is to amend 
section 202 of the Alaska National Interest Lands Conservation 
Act (ANILCA) to allow subsistence fishing and gathering within 
Glacier Bay National Park in accordance with the provisions of 
title VIII of ANILCA.
    The measure also bars the Secretary of the Interior from 
taking actions that would adversely affect subsistence uses or 
the State of Alaska's management of marine fisheries.
    S. 501 also authorizes the use of up to $2 million per 
fiscal year of the funds collected under Public Law 91-383 to 
pay fishermen actual and punitive damages due to actions by 
Federal officials that interfere with legal commercial fishing 
and result in a loss of earnings.

                          Background and Need

    Glacier Bay National Monument was established by 
presidential proclamation on February 26, 1925 to protect the 
dynamically changing glacial environment of mountains, 
tidewater glaciers, and associated movements and development of 
flora and fauna, and to promote the scientific study of the 
entire ecosystem.
    The monument was expanded by a second presidential 
proclamation on April 18, 1939. Glacier Bay National Monument 
was re-designated as Glacier Bay National Park and Preserve 
(GBPP) in 1980 by Alaska National Interest Lands Conservation 
Act (ANILCA). The new park included all lands and waters of the 
existing monument, plus additional land areas.
    The statutory language and legislative history of ANILCA 
provide that certain National Park System units in Alaska, 
including GBPP, are intended to be large sanctuaries where fish 
and wildlife may roam freely, develop their social structures 
and evolve over long periods of time as nearly as possible, 
without the changes that extensive human activity would cause.
    Today, the park itself encompasses approximately 3,225,284 
acres. ANILCA also designated a 57,884 acre area as a National 
Preserve, which is administered as a National Park except that 
sport hunting, commercial fishing and subsistence activities 
are permitted in the preserve. (The gathering of seagull eggs 
is prohibited by the Migratory Bird Act which implements an 
international treaty.) Recent amendments to the Migratory Bird 
Treaty addresses the Spring collection of eggs. It is believed 
that once the amendments are implemented, the collection of 
seagull eggs will no longer be prohibited by law, but the 
collection of eggs still could be prohibited by the National 
Park Service (NPS) under other rules and regulations. It is 
unclear, at this time on how the NPS will proceed.
    Finally, some 2,770,000 acres of the park were designated 
as Wilderness by ANILCA.
    Since the passage of ANILCA, there has been growing 
controversy as to whether two distinct activities should be 
permitted in the Park and if so at what level. These two 
activities, each of which is addressed in S. 501, are (1) 
subsistence activities and (2), commercial fishing.

Subsistence activities

    With respect to subsistence fishing and gathering, the 
descendants of the original inhabitants of Glacier Bay, the 
people of Hoonah, and other communities in the vicinity of 
Glacier Bay have historically engaged in subsistence fishing 
and gathering within the boundaries of what is now the GBPP. In 
addition, there is written and other evidence confirming 
Tlingit Indian presence and subsistence activities in Glacier 
Bay dating at least as far back as the early 1800's. Recent 
archaeological discoveries indicate that the Tlingit people may 
have been present around Glacier Bay for more than 700 years, 
and some date the early inhabitants' presence in the area as 
far back as 9,000 years.
    In 1989 and 1990, the Alaska Department of Fish and Game 
specified areas within GBPP as opened under ``subsistence'' 
salmon fishing permits. Subsistence fishing activities in the 
park had been conducted without specific authorization prior to 
the 1989 State action. In response to concerns about the 
potential impact of subsistence fishing on park resources, the 
NPS issued draft regulations concerning subsistence fishing in 
1991, at the same time it considered commercial fishing. In 
those draft regulations, the NPS proposed to ``effectuate the 
statutory preclusion of subsistence uses of GBPP by 
specifically prohibiting such uses.''
    Prior testimony before the Committee on Energy and National 
Resources describes in great detail that Glacier Bay's 
importance to the Tlingit people transcends the area's 
importance as a source of food and other necessities. It is an 
integral part of the spiritual existence of the Tlingit people, 
particularly to the Chookaneidi Clan of the Eagle Tribe. It 
defines them as a people. It appears in their songs and dances, 
and in their crests and traditional stories.
    During the 102nd Congress and, after much discussion, the 
Committeeon Energy and Natural Resources reported a bill (S. 
1624) authorizing commercial and subsistence fishing in certain areas 
of Glacier Bay National Park. The Committee report (S. Rept. 102-404) 
stated in part, ``* * * S. 1624 as ordered reported by the Committee, 
reflects the Committee's view that subsistence fishing and gathering in 
Glacier Bay and Glacier Bay National Park have not posed a threat to 
the park's resources and can in the future be conducted and managed 
pursuant to ANILCA in a way so as not to threaten the viability of the 
marine and other natural resources of Glacier Bay and the park.''
    The Committee noted that it ``also recognizes that it is 
also possible that individual natives may need, from time to 
time, to engage in cultural and ceremonial activities (aside 
from subsistence fishing and gathering) within their 
traditional and historical homeland, and to pass down to 
succeeding generations their customs and traditions. This 
need--and responsibility--should be recognized and facilitated 
by the Park Service.''
    No further action was taken by the Senate on S. 1624 during 
the remainder of the 102nd Congress.
    In 1995, a memorandum of understanding was adopted by the 
NPS and the Hoonah Indian Association, representing some local 
subsistence users, for the purpose of identifying areas of 
mutual concern, establishing a framework for cooperative 
relationships and promoting communication.
    More recently, the NPS has suggested, in informal 
consultations, that it would accept a formula that would, under 
NPS management, allow some subsistence fishing to occur under 
the rubric of ``educational'' fishing to Alaska Natives 
residing in Hoonah. Many argue that this would not be 
consistent with the management of subsistence uses on other 
public lands in Alaska, including National Parks, which are 
governed by the provisions of Title VIII of ANILCA, and could 
be used as a precedent for management of subsistence activities 
in other national parks and monuments within the State of 
Alaska.
    S. 501 would permit subsistence fishing and gathering by 
local rural residents in accordance with Title VIII of ANILCA, 
which describes ``subsistence uses'' as an activity engaged in 
by ``rural Alaska residents.'' Title VIII of ANILCA establishes 
a preference for subsistence uses, together with a non-racial 
mechanism to limit such uses in times of scarcity. For national 
parks and national monuments specifically, it further 
establishes a 6-member subsistence resource commission for each 
park or monument, which is charged with providing 
recommendations on subsistence uses with each park or monument. 
The Secretary of the Interior is also directed to implement the 
recommendations of the subsistence resource commissions unless 
he finds that the recommendations are inconsistent with 
conservation, contrary to the purposes of the park or monument, 
or detrimental to the satisfaction of subsistence needs.

Commercial fishing

    Commercial halibut and salmon fishing has occurred in the 
park since at least the turn of the century, and prior to the 
monument's establishment in 1925, when fish processing plants 
operated in Bartlett Cove, Excursion Inlet and Dundas Bay. 
Commercial fishing continued under federal regulation after the 
national monument's establishment in 1925 and its subsequent 
enlargement in 1939. Since 1966, the National Park Service 
contends that its regulations have prohibited commercial 
fishing in Glacier Bay National Monument and Glacier Bay 
National Park. The State of Alaska, however, argues that the 
1966 regulations apply only to fresh waters and not the marine 
environment.
    Currently several species of fish and crabs are harvested 
in Glacier Bay proper. Tanner crab pots are spread across the 
mid bay during openings for those species, which generally 
occur in the late winter months. Dungeness crab have been 
fished mostly in the lower to mid bay during separate openings. 
Some of the most productive Dungeness crab fishing grounds are 
located in the Beardslee Islands. Halibut are fished year-
around under the Alaska individual fishing quota system from 
the mouth of the bay to as far north as Reid Inlet. A small 
amount of commercial salmon trolling, mostly for chinook 
salmon, occurs during winter and spring within a few specific 
locations throughout the bay proper. Some groundfish species 
(i.e., Pacific cod, rockfish and sablefish) are fished 
primarily in the mid to lower bay.
    Outside Glacier Bay, there are seine openings in Excursion 
Inlet during the fall chum salmon run which targets these 
spawners en route to the Excursion River. Other fisheries in 
park waters include Dungeness crabbing off the Gustavus 
forelands in Dundas Bay and along the outer coast. Salmon 
trolling and halibut long-lining occurs throughout Icy Strait, 
Cross Sound and along the outer coast. Also some shrimp are 
also taken from Icy Strait and along the outer coast and in 
Lituya Bay.
    The Alaska Department of Fish and Game sets seasons and bag 
limits, while National Park Service law enforcement rangers 
have joint jurisdiction to enforce State commercial fishing 
laws as well as park regulations. Fishing boats actively 
pursuing sanctioned fishing in park waters are exempt from GBPP 
vessel quotas.
    In 1966, the NPS revised its fishing regulations so as to 
prohibit commercial fishing activities in Glacier Bay National 
Monument. Although the 1966 NPS regulations, unlike previous 
versions, only prohibited fishing ``for merchandise and 
profit'' in fresh waters, these same regulations generally 
prohibited unauthorized commercial activities, including 
commercial fishing, in all NPS areas. In contrast to earlier 
NPS regulations, the 1966 regulations did not contain specific 
authorization for commercial fishing in Glacier Bay National 
Monument. However, there are also other park planning documents 
and management plans which have been formulated since the 1966 
regulations which would argue that the NPS considers commercial 
fishing to be authorized.
    The 1978 NPS ``Management Policies'' reiterated that 
``commercial fishing is permitted only where authorized by 
law.'' Furthermore, in 1978, the Department of the Interior 
directed the Fish and Wildlife Service to convene an Ad Hoc 
Fisheries Task Force to review NPS fisheries management. The 
task force concluded that the extraction of fish for commercial 
purposes was a nonconforming use of park resources which should 
be phased out.
    As already noted, in 1980, ANILCA re-designed Glacier Bay 
National Monument to GBPP, enlarged the area, and designated 
wilderness that included marine waters within the park. ANILCA 
specifically authorized certain GBPP areas where commercial 
fishing and related activities could continue, including the 
Dry Bay area of Glacier Bay National Preserve but not any area 
of Glacier Bay National Park.
    ANILCA also specifically recognized (and authorized) 
commercial fishing in Glacier Bay National Preserve, and 
included similar language for portions of two other national 
park units: Cape Krusenstern National Monument and Wrangell-St. 
Elias National Park and Preserve. No such language was included 
for Glacier Bay National Park. There are some who believe that 
Congress intentionally left out similar provisions for Glacier 
Bay National Park. Others believe that the lack of legislative 
language for the continuation of activities at Glacier Bay 
National Park was an oversight. The legislative record is 
silent on the subject.
    The 1983 revision of the NPS general regulations, which 
still applies, included a prohibition on commercial fishing 
throughout marine and fresh waters within park areas system-
wide, unless specifically authorized by law. The 1988 revision 
of NPS ``Management Policies,'' which is still current, 
reiterates this approach.
    However, certain NPS documents during the 1980's suggested 
that some commercial fishing would continue in Glacier Bay. For 
example, the 1980 and 1985 Glacier Bay whale protection 
regulations implicitly acknowledged commercial fishing 
operations in Glacier Bay proper. also, the park's 1984 General 
Management Plan stated the following:
          (1) Traditional commercial fishing practices will 
        continue to be allowed throughout most park and 
        preserve waters. However, no new (nontraditional) 
        fishery will be allowed by the National Park Service. 
        Halibut and salmon fishing and crabbing will not be 
        prohibited by the Park Service; and
          (2) Commercial fishing will be prohibited in wasters 
        that are within wilderness boundaries in accordance 
        with ANILCA and the Wilderness Act.
    The 1984 General Management Plan defined ``traditional 
commercial fishing practices'' to include ``trolling, long 
lining and pot fishing for crab, and seining (Excursion Inlet 
only) in park waters. * * *'' Finally, the 1998 Final 
Environmental Impact Statement concerning wilderness 
recommendations for Glacier Bay National Park referred to the 
continuation of commercial fishing in non-wilderness park 
waters.
    In 1990, the Alaska Wilderness Alliance and American 
Wildlands filed a lawsuit challenging the NPS's failure to bar 
commercial fishing activities from GBPP. Alaska Wildlife 
Alliance v. Jensen, No. A90-0345-CV (D. Ak.). In 1994, the 
district court concluded that ``there is no statutory ban on 
commercial fishing in Glacier Bay National Park provided, 
however, that commercial fishing is prohibited in that portion 
of Glacier Bay National Park designed as wilderness area.'' The 
U.S. Court of Appeals for the Ninth Circuit upheld the option 
of the District Court on March 6, 1997. Alaska Wilderness 
Alliance v. Jensen, 108 F.3d 1065 (9th Cir. 1997).
    Simultaneously with the above litigation the State of 
Alaska's Citizens Advisory Commission on Federal Areas hosted a 
series of public meetings in local communities to discuss 
commercial fishing issues. After participating in these 
meetings, the NPS decided to draft a regulatory approach to 
resolving the controversy.
    The NPS published its proposed rule on August 5, 1991 (56 
FR 37262).In essence, the proposed rule would have (a) 
clarified the prohibition on commercial fishing in designated 
wilderness waters, and (b) exempted commercial fishing in other park 
waters from the nationwide regulatory prohibition for a ``phase out'' 
period of seven years. At the State's request, the Department of the 
Interior refrained from issuing a final rule in 1993, and instead 
agreed to discuss with State and Congressional delegation the 
possibility of resolving the issues through a legislative approach.
    In 1992, Congress considered but did not enact proposed 
legislation on subsistence activities and commercial fishing in 
Glacier Bay NP. (The Committee on Energy and Natural Resources 
reported the bill (S. 1624) with an amendment in the nature of 
a substitute, adopted by a vote of 19 to 1. No further action 
was taken by the Senate.).
    In 1993, at the beginning of the 103rd Congress legislation 
was again introduced by Senator Murkowski (S. 291). The 
legislative effort was temporarily set aside to allow a series 
of discussions exploring the legislative and regulatory options 
between the State of Alaska, the Department of the Interior, 
and Congressional offices.
    In 1995, local NPS officials invited a wide array of 
interest groups to meet with the goal of reaching some 
consensus on the issues of subsistence activities and 
commercial fishing at GBPP, only to disbanded in May 1996 due 
to concerns of violations of the Federal Advisory Committee Act 
(FACA).
    In April, 1997, the NPS published a new proposed rule, 
inviting discussion on alternatives under consideration pending 
the completion of an environmental assessment. The proposed 
rule would have prohibited all commercial fishing in Glacier 
Bay proper after a 15-year phase-out period, with virtually no 
fishing being allowed during the summer visitor season except 
for a five to seven year extension of Dungeness crab fishing in 
and around the Beardslee Islands. October 15, 1997 was the 
public comment deadline date for this proposal. However, in 
October the deadline was extended to June 1, 1998 to provide 
additional opportunity to comment on the rule and the 
subsequent environmental assessment due to be published in the 
early Spring of 1998.
    In the Fall of 1997, the NPS began sponsoring a series of 
``workshops'' in order to avoid the FACA concerns raised the 
previous year. These sessions led to a proposed consensus 
position advanced by the fishermen, the State of Alaska, and 
the Southeast Alaska Conservation Council. The proposal would 
have allowed time and area closures of commercial fishing in 
the upper reaches of Glacier Bay and the complete closure of 
Dungeness crab fishing in the Beardslee Islands and upper 
Dundas Bay in order to minimize interactions between the 
visitor, industry and non-motorized users. In return, the 
proposal required agreement that the remaining fishing 
activities be allowed to continue. The proposal was eventually 
rejected by the NPS.
    An environmental assessment was published and available for 
comment in April 1998. This document describes environmental 
and socio-economic effects of the proposed rule along with five 
alternatives for the management of the fisheries. The public 
comment period on the environmental assessment was to have 
ended on June 1, 1998, but was later extended to November 15, 
1998.
    Because local fishermen, the State of Alaska and others 
felt that the discussion sessions held in late 1997 and early 
1998 had been close to resulting in a full consensus, a 
proposed one-year moratorium for the issuance of final 
regulations, to allow continuing discussions was accepted by 
the Senate as an amendment to the Interior Appropriations Act 
for FY1999, but was strongly opposed by the Administration and 
was dropped from legislation during the conference between the 
Senate and the House of Representatives.
    The Appropriations Conference Managers did adopt a new 
proposal supported by the Administration (Sec. 123 of P.L. 105-
277). The new proposal further extended the comment period on 
the proposed rule; directed the NPS and the State of Alaska to 
develop a cooperative management plan for commercial fishing 
within the park; allowed continued fishing in the marine waters 
outside Glacier Bay proper; limited fishing within Glacier Bay 
proper to certain qualifying fishermen, and only for their 
lifetime, and established a compensation plan for Dungeness 
crab fishermen affected by the closure of their customary 
fishing grounds, in particular, the Beardslee Islands and upper 
Dundas Bay.
    In a related manner, on March 4, 1999, with the stated 
intention of protecting the rights of commercial and 
subsistence fishermen, the State of Alaska filed notice of its 
intent to file a real property quiet title action for all of 
the underlying marine waters within the boundaries of Glacier 
Bay National Park, including tidelands, pursuant to the Equal 
Footing Doctrine, the Submerged Land Act, and the Alaska 
Statehood Act.

                          Legislative History

    S. 501 was introduced by Senators Murkowski and Stevens on 
March 2, 1999. The Committee on Energy and Natural Resources 
held a hearing on S. 501 on April 15, 1999.
    At its business meeting on June 30, 1999, the Committee on 
Energy and Natural Resources ordered H.R. 501, favorably 
reported, as amended.

            Committee Recommendation and Tabulation of Votes

    The Committee on Energy and Natural Resources, in open 
business session on June 30, 1999, by majority vote of a quorum 
present recommends that the Senate pass S. 501, if amended as 
described herein.
    The rollcall vote on reporting the measure was 13 years, 7 
nays as follows:
        YEAS                          NAYS
Mr. Murkowski                       Mr. Bingaman
Mr. Domenici                        Mr. Dorgan \1\
Mr. Nickles \1\                     Mr. Graham \1\
Mr. Craig                           Mr. Wyden \1\
Mr. Campbell \1\                    Mr. Johnson \1\
Mr. Thomas                          Mr. Bayh \1\
Mr. Smith \1\                       Mrs. Lincoln
Mr. Bunning
Mr. Fitzgerald
Mr. Gorton
Mr. Burns \1\
Mr. Akaka
Ms. Landrieu

    \1\ Indicates vote by proxy.

                          Committee Amendment

    During the consideration of S. 501, the Committee adopted 
an amendment in the nature of a substitute which amends section 
202 of ANILCA to clarify that subsistence fishing and gathering 
is allowed within Glacier Bay National Park in accordance with 
the provisions of title VIII of ANILCA.
    The measure also bars the Secretary of the Interior from 
taking actions that would adversely affect subsistence uses or 
the States' management of fisheries.
    The amendment also authorizes the use of up to $2 million 
per fiscal year of the funds collected under Public Law 91-383 
(which covers cruiseship franchise fees) to pay fishermen for 
actual and punitive damages based on actions by federal 
officials that interfere with legal commercial fishing and 
result in a loss of earnings.

                      Section-by-Section Analysis

    Section 1 designates the bill's short title as the 
``Glacier Bay Fisheries Act''.
    Section 2(a) amends section 202(1) of the Alaska National 
Interest Lands Conservation Act (ANILCA) (16 U.S.C. 410hh-1) to 
allow subsistence fishing and gathering by local residents in 
the Glacier Bay National Park and Glacier Bay National Preserve 
in accordance with provisions of title VIII.
    Subsection 2(b) prevents the Secretary of the Interior from 
taking any action in Glacier Bay National Park that would 
adversely affect subsistence fishing and gathering under title 
VIII of ANILCA and the management by the State of Alaska of 
marine fisheries with specific reference to subsistence and 
commercial fisheries, in accordance with principles of 
sustained yield. However, commercial fishing for Dungeness crab 
is prohibited.
    Subsection 2(c) provides that nothing shall enlarge or 
diminish Federal or State title, jurisdiction or authority in 
the waters of the State of Alaska or within the boundaries of 
Glacier Bay National Park and Preserve including tidal and 
submerged lands.
    Section 3 amends Section 3(g) of Public Law 91-383 (U.S.C. 
1a-2(g)) to authorize payment of an aggregate of not more than 
$2 million per fiscal year in actual and punitive damages to 
persons who suffered a loss in earning fromlegally conducted 
commercial fisheries in Glacier Bay National Park, due to actions by 
any Federal officer, employee or agent.

                   Cost and Budgetary Considerations

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 13, 1999.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 501, the Glacier Bay 
Fisheries Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippin, Director).
    Enclosure.

               congressional budget office cost estimate

S. 501--Glacier Bay Fisheries Act

    CBO estimates that enacting S. 501 would have no 
significant impact on the federal budget. Because the bill 
would affect direct spending, pay-as-you-go procedures would 
apply. We estimate, however, that there would be no significant 
change in direct spending. S. 501 contains no intergovernmental 
or private-sector mandates as defined in the Unfunded Mandates 
Reform Act and would impose no costs on state, local, or tribal 
governments.
    S. 501 would permit local residents to engage in 
subsistence fishing and egg gathering at Glacier Bay National 
Park in Alaska. The bill would prohibit the Secretary of the 
Interior from taking any action that could adversely affect the 
state's management of marine fishing in the park or any legal 
subsistence fishing and gathering. Section 3 of the bill would 
make available an existing special fund of the National Park 
Service (NPS) for paying damages to persons who after January 
1, 1999, suffer any loss of earnings when legal commercial 
fishing conducted in Glacier Bay is affected by any federal 
action. The fund, which consists of 60 percent of fees paid by 
tour concessioners, could be used to pay damages of up to $2 
million annually. At present, the fees deposited in this fund 
are available without further appropriation to acquire certain 
emergency equipment and to conduct investigations on the 
effects of allowing tour vessels to enter the bay.
    The interpretation of section 3 is uncertain, but CBO 
believes that this provision would have no significant net 
impact on the federal budget. The section would not establish 
any new cause of action for lost fishing revenues but would 
instead designate a new source of payment for such claims 
brought under existing statutes, most likely the Federal Tort 
Claims Act. Under that law, for successful claims of over 
$2,500, payment is currently made from the U.S. Treasury's 
claims and judgments fund, which has permanent indefinite 
authority to make such payments. Judgments of less than $2,500 
are made from an agency's appropriated funds. Under S. 501, in 
contrast, it appears that a successful claim would be paid from 
the permanent NPS fund if sufficient balances are available. If 
not, or if aggregate claims for the year already exceed $2 
million, CBO assumes that the legislation would allow the claim 
to be paid from one of the two payment sources specified by the 
Federal Tort Claims Act--as it would be in the absence of this 
legislation. Thus, the total amount of claims payments would 
not be affected. Some small judgments that are currently paid 
from appropriated funds would instead be paid from the NPS 
special fund--but any such increase in direct spending would 
not be significant.
    The other provisions of S. 501 would have no effect on the 
federal budget.
    The CBO staff contact is Deborah Reis. This estimate was 
approved by Robert A. Sunshine, Deputy Assistant Director for 
Budget Analysis.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of Standing 
Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 501. The bill is not a regulatory measure in 
the sense of imposing Government-established standards of 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from 
enactment of S. 501, as ordered reported.

                        Executive Communications

    On May 25, 1999, the Committee on Energy and Natural 
Resources requested legislative reports from the Department of 
the Interior and the Office of Management and Budget setting 
forth executive views on S. 501. These reports had not been 
received at the time the report on S. 501 was filed. When the 
reports become available, the Chairman will request that they 
be printed in the Congressional Record for the advice of the 
Senate. The testimony provided by the National Park Service at 
the Subcommittee hearing follows:

  Statement by Don Barry, Assistant Secretary, Fish and Wildlife and 
                   Parks, Department of the Interior

    Thank you for the opportunity to present the position of 
the Department of the Interior on S. 501, a bill to address 
resource management issues in Glacier Bay National Park.
    The Department of the Interior strongly opposes S. 501 and 
would recommend to the President that he veto this bill if it 
is enacted. The bill seeks to nullify the provisions of Section 
123 of Public Law 105-77, which closed certain areas of Glacier 
Bay National Park (18 percent of Glacier Bay) to commercial 
fishing. The enactment of this bill would impair park resources 
and destroy the bipartisan consensus that led to the language 
of Section 123 of Public Law 105-77. The bill would also open 
up Glacier Bay National Park to ANILCA subsistence fishing and 
gathering, something which is opposed by local native groups 
and the National Park Service. Further, the bill could require 
a payment of damages every time the National Park Service made 
contact with someone engaged in legal commercial fishing in the 
waters of Glacier Bay National Park. The enactment of this bill 
could deter legitimate law enforcement activity and place the 
public and park resources in jeopardy.
    Section 2(a)(1) of S. 501 seeks to provide for subsistence 
fishing and gathering consistent with Title VIII of the Alaska 
National Interest Lands Conservation Act of 1980 (ANILCA). We 
do not believe the time is appropriate to expand ANILCA's 
provisions for subsistence to Glacier Bay. Glacier Bay National 
Park has been closed to most subsistence activities since 1925. 
Since 1990, the Department of the Interior has managed 
subsistence hunting on federal public lands in Alaska. We have 
worked with the State of Alaska with the hope that the state 
would resume its management of subsistence hunting. Because of 
the federal court's decision in the recent Katie John case and 
subsequent disagreement among the citizens and political 
leadership in Alaska, we are at the brink of taking over 
subsistence fish management on these same lands. We want the 
State of Alaska to manage subsistence fishing, gathering and 
hunting--that has been our position throughout the long debate. 
Adding Glacier Bay National Park to the current federal 
subsistence responsibilities at a time when this complex, 
volatile issue is still being negotiated by the state and 
federal governments and the citizens of Alaska only adds to the 
burden of reaching a satisfactory solution to the entire Title 
VIII situation.
    In addition, it is important to note that the native people 
most closely affected by this proposed change--the Tlingit 
village of Hoonah, Alaska--have opposed ANILCA Title VIII 
subsistence for Glacier Bay, as explained in the July 29, 1996 
letter from Kenneth Grant, President of the Hoonah Indian 
Association, to Senator Murkowski. The reason for this 
opposition is that under Title VIII, subsistence fishing and 
gathering would be open to all local, rural Alaskans.
    We believe a solution can be worked out between the 
National Park Service and the local Tlingit people that would 
allow the Tlingit people to engage in certain activities, while 
ensuring that park resources are protected. For instance, at a 
two-day meeting held in the fall of 1997 between Hoonah tribal 
representatives and the NPS, a list of issues of concern to the 
tribe was generated.
    At the top of that list was access to seagull eggs. 
Forthcoming treaty amendments and new Fish and Wildlife Service 
regulations implementing the Migratory Bird Treaty Act may 
assist those interested in legalizing egg collecting in Glacier 
Bay. Additionally, other changes in law and regulation would be 
required if a gull egg collecting provision is to occur.
    To help further the process, the NPS has initiated a two-
phase study--an ethnographic study to define the cultural 
practices associated with the tradition of bird egg collection 
and a biological inventory to assess the health and viability 
of the seagull population. These studies are essential first 
steps in assessing the possibility of allowing egg collecting 
in a national park. The NPS and the Hoonah tribal government 
will continue working closely to find a solution. There are 
also opportunities for fishing under current authorities. The 
state of Alaska provides ample opportunities for fishing under 
non-conflicting state fishing regulations. For example, a 
personal use sockeye salmon net fishery in Glacier Bay is 
already available to local rural resident and other Alaskans. 
This fishery, available only to Alaskans, has liberal bag 
limits and is designed for families to help sustain their rural 
lifestyle and cultural dependence on fish. Further, existing 
sport fishing rules allow additional catches of salmon, 
halibut, crab and other fish. The National Park Service has 
also indicated a willingness to consider a cultural fishing 
opportunity specific to the Hoonah Tlingit as a means of 
sustaining cultural knowledge and tradition.
    We believe that these ongoing efforts between the National 
Park Service and local groups are the best way to address the 
issue of allowing these groups better access to fishing and 
gathering activities. Legislation that would bring these 
activities under Title VIII of ANILCA would not be in the 
interest of resource preservation or maintaining the cultural 
traditions of local native Alaskans.
    Section 2(a)(2) of S. 501 attempts to reopen areas in 
Glacier Bay National Park that are presently closed to 
commercial fishing. This issue has been with us for many years 
in the form of proposed regulations, proposed legislation, 
public workshops and extensive public debates. We believe P.L. 
105-277 brought a successful compromise and conclusion to these 
thorny issues. This law did the following:
     Dungeness crab fishing was stopped immediately. 
This primarily took place in the wilderness waters of the park, 
particularly in the Beardslee Islands. Fewer than a dozen 
fishermen took part in this fishery, and they are being 
compensated under the provisions of the current law.
     Salmon, halibut and Tanner crab fishermen in 
Glacier Bay proper will receive permits to continue their 
businesses for the rest of their lives. Fishing under this 
permit system will begin next summer, and we expect these 
fishermen to continue working for several decades.
     All other existing fisheries on the outer coastal 
waters--about 80 percent of the catch--will continue 
indefinitely under a cooperative state-federal fisheries 
management plan.
     Fishing was immediately closed in all wilderness 
waters of the park, bringing the NPS into compliance with a 
Ninth Circuit Court of Appeals ruling.
    The current law is a fair compromise for fishermen, other 
park users, and for the resources of the national park. Most 
importantly, the agreements represented by the current law are 
important for the resource protection and scientific study 
mission of Glacier Bay National Park. Waters closed to 
commercial fishing will allow us to study for the first time 
unfished populations of crab and halibut. These unfished areas, 
fundamental to comparative scientific studies, did not exist 
anywhere in the park prior to the 1998 compromise. Glacier Bay 
is now America's largest marine protected area. What we learn 
may provide valuable insights for the sustained yield 
management of commercial fisheries both elsewhere in the park 
and in Southeast Alaska. Additionally, as commercial fishing is 
phased out of the bay proper, the park can better fulfill its 
original mission as a place to study the plant and animal 
succession process associated with a post-glacial period. The 
Park Service is already studying the colonization of streams in 
the bay by salmon, the behavior of other marine life, and the 
plant succession in the non-glacial areas.
    The Organic Act of the National Park Service tells us to 
manage these resources unimpaired for future generations. 
Commercial fishermen take 800,000 pounds of fish from Glacier 
Bay proper every year, including top-level predators like 
halibut. The effect of the harvest on park resources is 
unknown. The current law brings us closer to that mandate in a 
way that is fair to the current generation of fishermen.
    Also, the current law allows us to comply with two recent 
federal court rulings which found that commercial fishing was 
illegal in the wilderness waters of the park. This not only 
provides the underpinnings for the scientific benefits 
described above, but allows areas for visitors to enjoy the key 
wilderness values of this national park. S. 501 seeks to do 
away with these public benefits.
    Section 3 of S. 501 would require the federal government to 
pay damages any time a contact made by the National Park 
Service with someone fishing lawfully in Glacier Bay resulted 
in a loss of income to the fisherman. This would endanger 
public safety and park resources.
    As part of a well-organized fishery, commercial fishermen 
and their crews are required to carry valid fishing licenses, 
to adhere to certain gear and catch restrictions, and to follow 
state and federal laws while fishing. S. 501 would have the 
government paying fishermen for the first time spent checking 
on the compliance with those laws.
    Similarly, to protect endangered species such as humpback 
whales and Stellar sea lions, harbor seal pupping and molting 
areas, nesting sea birds and other park resources, the National 
Park Service regulates vessels operating in the park, including 
some seasonal closures of sensitive areas. To enforce these 
rules under the proposed language--actions which could 
``interfere'' with a fishing vessel in park waters--the 
government might have to pay compensation for lost fishing time 
as well as punitive damages.
    The proposed law would put the National Park Service in the 
unreasonable position of potentially paying for disturbing a 
fishing period while investigating other, potentially serious 
crimes, or while responding to other park emergencies.
    These are not just hypothetical examples. If this law had 
been in effect over the past few years, the government might 
have had to pay for National Park Service actions that 
interfered with commercial fishing boats during our 1993 
response to the ship Yorktown Clipper, which was grounded on a 
rock. Similarly, during a lengthy 1996 standoff and eventual 
arrest on felony charges of heavily armed man who had assaulted 
a local charter boat operator with a revolver, the government 
might have had to defend itself against lawsuits from fishermen 
whose work was ``interfered'' with by rangers trying to ensure 
public safety. S. 501 could have the effect of deterring this 
type of law enforcement, which could jeopardize the well-being 
of the public and park resources.
    The National Park Service works closely with the Alaska 
Department of Public Safety's Division of Fish and Wildlife 
Protection so we do not duplicate patrols or double-check 
licenses, gear and catch for commercial fishermen. But a well-
regulated national park, which last year hosted 400,000 
visitors in all sizes of vessels, requires monitoring by park 
rangers. This has to be done while the vessels are on the 
water, just like catching speeders requires being on the road. 
We cannot agree to a proposal which fines the National Park 
Service for enforcing the laws of this country as passed by 
Congress.
    This concludes my testimony. I would be happy to answer any 
of your questions.

                MINORITY VIEWS OF SENATOR JEFF BINGAMAN

    S. 501 would allow commercial and subsistence fishing to 
occur within Glacier Bay National Park. I oppose the bill for 
three principal reasons. First, it is contrary to the 
legislative intent of the Alaska National Interest Lands 
Conservation Act (ANILCA), which established the management 
guidelines for the park in 1980. Second, it is inconsistent 
with two recent legislative compromises that provide a very 
generous settlement to commercial fishermen and other affected 
parties in and around Glacier Bay. Finally, the third section 
of the bill, which purports to authorize payment of actual and 
punitive damages for lost earnings from commercial fishing, is 
highly ambiguous and sets bad policy.
Legislative intend of ANILCA
    When ANILCA was enacted in 1980, no provision was made for 
the continuation of commercial fishing in Glacier Bay National 
Park, despite the inclusion of language permitting such 
activities to occur in other areas, including the Dry Bay area 
of the adjacent Glacier Bay National Preserve. If Congress had 
intended for commercial fishing to continue in Glacier Bay, it 
surely would have referenced those activities, as it did in 
other areas.
    In addition, the legislative history is equally clear that 
subsistence activities were not to be allowed within Glacier 
Bay National Park. This intent was clearly expressed in this 
Committee's report which accompanied H.R. 39, the ANILCA 
legislation: ``Subsistence uses will be allowed within the 
[Glacier Bay] preserve, but not in the park.'' S. Rept. 96-413 
at 164.
    The Committee's report describes the purpose for 
establishing Glacier Bay National Park in terms that are 
inconsistent with ongoing commercial fishing activities. The 
report stated that four of the national parks established in 
ANILCA, including Glacier Bay, ``are intended to be large 
sanctuaries where fish and wildlife may roam freely, developing 
their social structures and evolving over long periods of time 
as nearly as possible without the changes that extensive human 
activities would cause.'' Id. at 137.
    Since 1983, National Park Service regulations have 
prohibited commercial fishing in units of the National Park 
System ``unless specifically authorized by Federal statutory 
law'' (36 C.F.R. Sec. 2.3(d)(4)).
    In addition, in 1997 the Ninth Circuit Court of Appeals 
upheld an Alaska Federal District Court decision that the 
Wilderness Act prohibits commercial fishing in the park's 
waters which are designated as wilderness. Alaska Wilderness 
Alliance v. Jensen, 108 F.3d 1065 (1997).
Recent legislative compromises
    Despite the clear legislative history regarding commercial 
fishing in Glacier Bay, commercial fishing has had a long 
history in Glacier Bay waters, and the immediate closure of 
those waters could have a significant effect not only on local 
fishermen, but on other area residents as well.
    For that reason, I thought it was appropriate that a 
compromise was included as part of the Omnibus Appropriations 
Act of 1998 (Public Law 105-577, section 123). That provision 
allowed for commercial fishing to continue indefinitely within 
the park's outer waters, where a significant portion of the 
commercial catch occurs, and granted fishermen currently 
fishing in Glacier Bay with lifetime fishing permits. Only 
certain areas in the bay--primarily the wilderness waters--were 
slated for immediate closure. In addition, section 123 provided 
an appropriation of $2.4 million to compensate Dungeness Crab 
fishermen who were most affected by the closures.
    That compromise was expanded earlier this Congress in 
section 501 of the FY 1999 Emergency Supplemental 
Appropriations Act (Public Law 106-31). That provision delayed 
the date certain areas in Glacier Bay were to be closed to 
commercial fishing and significantly expanded the class of 
persons qualifying for compensation to include not only 
affected fishermen, but also fish processors, crew members, 
local communities and ``others negatively affected'' by the 
fishing restrictions. Section 501 also appropriated an 
additional $26 million in compensatory funds.
    For better or worse, Congress has now tried to resolve this 
issue on two occasions, by compensating those affected while 
allowing the National Park Service to continue to implement its 
regulations. At the same time, it has provided the Park Service 
and commercial fishing operators with certainty as to future 
fishing operations within the park. S. 501 will undo both the 
compromise and the certainty of future operations.
Payment of damages
    Section 3 of the bill would authorize the Secretary of the 
Interior to use revenues from cruise ship permits in Glacier 
Bay to compensate persons who lose earnings from commercial 
fishing in Glacier Bay as a result of the actions of a federal 
employee. This provision is extremely ambiguous and sets bad 
policy. At a minimum, enactment of the provision will encourage 
lawsuits against federal law enforcement officers--not against 
the agencies or the United States itself, but against 
individual officer personally. It will circumvent Congress's 
long-standing policy against the payment of punitive damages by 
the Federal Government. And it will divert revenues now 
available to fund wildlife and other natural resources studies 
to the payment of damages.
    To begin with, it is unclear what the intended purpose and 
effect of the provision are. By its terms, the provision merely 
authorizes the Secretary of the Interior to use cruise ship 
revenues ``to pay * * * actual and punitive damages to persons 
who * * * suffer a loss in earnings from commercial fisheries * 
* * due to any action by an officer, employee, or agent of any 
Federal department or agency.'' It does not expressly create a 
new private right of action that would enable commercial 
fishermen or anyone else to bring suit against federal 
officials.
    Nonetheless, there is concern that the courts may read the 
provision as creating a new and exceedingly broad right of 
action against officers and employees of the National Park 
Service, the Coast Guard, the National Marine Fisheries 
Service, and other Federal agencies who may ``adversely 
affect'' commercial fishing in Glacier Bay. The Assistant 
Secretary of the Interior for Fish and Wildlife and Parks 
testified that the provision could ``put the National Park 
Service in the unreasonable position of potentially paying 
compensation for disturbing a fishing period while 
investigating other, potentially serious crimes, or while 
responding to other park emergencies.'' S. Hrg. 106-58 at 60.
    This concerns stems from the common law doctrine of implied 
rights of action. Under this doctrine, the courts were, at one 
time, willing to imply a private right of action ``where a 
statute enacts, or prohibits a thing for the benefit of a 
person,'' even though the statute does not expressly provide a 
right of action. Texas & Pacific Railway Co. v. Rigsby, 241 
U.S. 33 (1916). As late as 1964, the Supreme Court said it was 
``the duty of the courts to * * * provide such remedies as are 
necessary to make effective the congressional purpose'' and `` 
`to utilize any of the procedures or actions normally available 
to the litigant,' '' to protect rights created by federal 
statutes. J.I. Case Co. v. Borak, 377 U.S. 426, 433-434 (1964) 
(quoting Deckert v. Independence Shares Corp., 311 U.S. 282,288 
(1940)).
    The Supreme Court has ``long since abandoned its hospitable 
attitude toward implied rights of action.'' Thompson v. 
Thompson, 484 U.S. 174, 190 (1988) (Scalia, J., concurring). 
For a time, the Court applied a four-part test to determine 
whether to imply a new right of action. Cort v. Ash, 422 U.S. 
66, 78 (1975). Later, it narrowed the test to the ``central 
inquiry [of] whether Congress intended to create, either 
expressly or by implication, a private cause of action.'' 
Touche Ross & Co. v. Ridington, 442 U.S. 560, 575 (1979). But 
the most recent history of the Court's ``holdings is one of 
repeated rejection of claims of an implied right.'' Thompson v. 
Thompson, 484 U.S. 174, 190 (1988) (Scalia, J., concurring).
    By any test, no private right of action should be read into 
S. 501. Even under the most lenient of the Supreme Court's 
tests for implied rights of action, ``the statute [must] create 
a federal right in favor of the plaintiff.'' Cort. v. Ash, 422 
U.S. 66, 78 (1975). The only federal rights created by S. 501 
are for:
          (1) ``subsistence fishing and gathering by local 
        residents'' within the park and preserve;
          (2) ``subsistence fishing and gathering'' under title 
        VIII of ANILCA:
          (3) ``management by the State of Alaska of marine 
        fisheries''; and
          (4) ``subsistence gathering activities permitted 
        under the Migratory Bird Treaty.''
    S. 501 creates no such federal right for commercial 
fishing. Yet the only potential plaintiffs eligible to obtain 
compensation under section 3 are ``persons who * * * suffer a 
loss in earnings from commercial fisheries legally conducted in 
the marine waters of Glacier Bay National Park.'' Plainly, S. 
501 fails the first prong of the Cort v. Ash test.
    Moreover, S. 501 fails to meet both the second prong of the 
Cort v. Ash and the Touche Ross test because there is no 
evidence in the text of S. 501 or its legislative history that 
the sponsors or the Committee on Energy and natural Resources 
intend to create a new private right of action. The issue did 
not come up either when the Committee heard testimony on the 
bill or when it marked up the bill. The Committee report states 
no such intent. In my view, if the Committee intends to create 
a new right of action, the bill should say so plainly. It does 
not.
    If the third section of S. 501 does not create a new 
private right of action, what does it do? By its terms, section 
3 merely authorizes the Secretary of the Interior to use cruise 
ship fees to pay damages awarded under existing rights of 
action. One must look elsewhere to find a federal law that 
creates the right of action itself.
    Under current law, the only generally applicable statute 
providing a right of action against the United States for tort 
liability is the Federal Tort Claims Act, which provides a 
right of action ``for money damages * * * for injury or loss * 
* * caused by the negligent or wrongful act or omission of an 
employee of the Government while acting within the scope of his 
office or employment. * * * '' 28 U.S.C. 1346(b). In addition, 
the Supreme Court has established a nonstatutory right of 
action against federal agents for intentional wrongdoing that 
violates a person's constitutional rights. Bivens v. Six 
Unknown Named Agents of the Federal Bureau of Narcotics. 403 
U.S. 388 (1971). Section 3, then, in my view, merely identifies 
a source of funds to pay claims for lost commercial fishing 
earnings that arise under either the Federal Tort Claims Act or 
a Bivens-type action.
    But the enactment of section 3 is likely to have practical 
consequences far beyond simply identifying a source of funds. 
These consequences will flow principally from the fact that 
section 3 authorizes the payment of punitive damages. The 
Federal Tort Claims Act expressly bars punitive damage claims 
against the government, 28 U.S.C. 2674, and section 3 does not 
lift that bar. But punitive damages may be awarded against 
individual federal employees personally in a Bivens suit. 
Carlson v. Green, 446 U.S. 14, 12-22 (1980).
    Why does section 3 authorize the Secretary of the Interior 
to pay punitive damages if punitive damage claims against the 
government are barred? In my view, including punitive damages 
in section 3 only makes sense if it is read as authorizing the 
Secretary of the Interior to indemnify federal employees who 
violate the constitutional rights of commercial fishermen in 
Glacier Bay and, in so doing, become liable for punitive 
damages in a Bivens action.
    I have no objection to the Secretary of the Interior 
indemnifying his employees who become liable for damages while 
acting within the scope of their employment. If that were the 
sole purpose and effect of section 3, I would not object to it. 
But I fear that the practical consequences of section 3 will 
not be so benign. Instead of protecting federal employees in 
Glacier Bay from personal liability section 3 will instead 
encourage litigation against them.
    Understanding this point requires some knowledge of current 
federal tort law. The Federal Employee Liability Reform and 
Tort Compensation Act of 1988, often called the Westfall Act, 
makes the United States the exclusive defendant in any tort 
action arising from the conduct of a government employee. 28 
U.S.C. 2679(b)(1). There are, however, two important exceptions 
to this rule. The first exception is for claims against a 
federal employee for the violation of a constitutional right in 
a Bivens suit. 28 U.S.C. 2679(b)(2)(A). The other is for claims 
against a federal employee for violation of a federal statute 
authorizing action against the employee. 28 U.S.C. 
2679(b)(2)(B).
    Thus, anyone wishing to collect the $2 million offered by 
section 3 must bring his or her claim against an individual 
federal employee rather that the government itself and allege a 
constitutional violation under the first exception to the 
Westfall Act (or convince a court to imply a right of action 
under the Westfall Act's second exception). This should not be 
hard to do. Section 3 will invite anyone whose commercial 
fishing vessel is stopped in Glacier Bay in the course of 
routine law enforcement activities to claim that the vessel was 
unreasonably searched and seized in violation of the Fourth 
Amendment.
    The increased threat of litigation caused by enactment of 
S. 501 is likely to have a profoundly chilling effect on law 
enforcement efforts in Glacier Bay and on the ability of 
honest, hard working federal law enforcement officers to do 
their jobs. Although section 3 may offer them some hope and 
comfort that the Secretary of the Interior may indemnify them 
for any damages awarded against them, the Secretary's 
indemnification authority is only implicit in the bill and is, 
as best, only discretionary with the Secretary. (See 
``Indemnification of Department of the Interior Employees,'' 43 
C.F.R. Sec. 22.6.)
    In sum, I think the Committee on Energy and Natural 
Resources should not reopen this issue, which was fairly 
settled only two months ago, by reporting a measure that not 
only sets bad policy but is so vague and ill considered that it 
raises more legal questions than it settles. For these reasons, 
I strongly oppose reporting this bill.

                                                     Jeff Bingaman.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 501, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):

          THE ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT

                          PUBLIC LAW 96-104

           *       *       *       *       *       *       *


    Sec. 202. The following units of the National Park System 
are hereby expanded:
          (1) Glacier Bay National Monument, by the addition of 
        an area containing approximately five hundred and 
        twenty-three thousand acres of Federal land. 
        Approximately fifty-seven thousand acres of additional 
        public land is hereby established as Glacier Bay 
        National Preserve, both as generally depicted on map 
        numbered GLBA-90,004, and dated October 1978; 
        furthermore, the monument is hereby redesignated as 
        ``Glacier Bay National Park''. The monument addition 
        and preserve shall be managed for the following 
        purposes, among others: To protect a segment of the 
        Alsek River, fish and wildlife habitats and migration 
        routes, and a portion of the Fairweather Range 
        including the northwest slope of Mount Fairweather. 
        Lands, waters, and interests therein within the 
        boundary of the park and preserve which were within the 
        boundary of any national forest are hereby excluded 
        from such national forest and the boundary of such 
        national forest is hereby revised accordingly. 
        Subsistence fishing and gathering by local residents 
        shall be permitted in the park and preserve in 
        accordance with provisions of title VIII.

           *       *       *       *       *       *       *

                              ----------                              

                           PUBLIC LAW 91-383

           *       *       *       *       *       *       *


    Sec. 3. In order to facilitate the administration of the 
national park system, the Secretary of the Interior is 
authorized, under such terms and conditions as he may deem 
advisable, to carry out the following activities:
    (a) * * *

           *       *       *       *       *       *       *

    (g) Exhibits and demonstrations; sale of products and 
services; contracts and cooperative arrangements; credits to 
appropriations

           *       *       *       *       *       *       *

          (1) to the extent determined necessary, to acquire 
        and preposition necessary and adequate emergency 
        response equipment to prevent harm or the threat of 
        harm to aquatic park resources from permittees; [and]
          (2) to conduct investigations to quantify any effect 
        of permittee activity on wildlife and other natural 
        resource values of Glacier Bay National Park. The 
        investigations provided for in this subsection shall be 
        designed to provide information of value to the 
        Secretary in determining any appropriate limitations on 
        permittees' activity in Glacier Bay. the Secretary may 
        not impose any additional permittee operating 
        conditions in the areas of air, water, and oil 
        pollution beyond those determined and enforced by other 
        appropriate agencies. When competitively awarding 
        permits to enter Glacier Bay, the Secretary may take 
        into account the relative impact particular permittees 
        will have on park values and resources, provided that 
        no operating conditions or limitations relating to 
        noise abatement shall be imposed unless the Secretary 
        determines, based on the weight of the evidence from 
        all available studies including verifiable scientific 
        information from the investigations provided for in 
        this subsection, that such limitations or conditions 
        are necessary to protect park values and resources. 
        Fees paid by certain permittees for the privilege of 
        entering Glacier Bay shall not exceed $5 per passenger. 
        For the purposes of this subsection, ``certain 
        permittee'' shall mean a permittee which provides 
        overnight accommodations for at least 500 passengers 
        for an itinerary of at least 3 nights, and 
        ``permittee'' shall mean a concessionaire providing 
        visitor services within Glacier Bay. Nothing in this 
        subsection authorizes the Secretary to require 
        additional categories of permits in, or otherwise 
        increase the number of permits to enter Glacier Bay 
        National Park[.]; and
          (3) to pay an aggregate of not more than $2,000,000 
        per fiscal year in actual and punitive damages to 
        persons who, at the time after January 1, 1999, 
        suffered or suffer a loss in earnings from commercial 
        fisheries legally conducted in the marine waters of 
        Glacier Bay National Park, due to any action by an 
        officer, employee, or agent of any Federal department 
        or agency.

                                  
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