Committee seeks to be referee on reg disputes

Legislature 2001

Posted: Monday, March 05, 2001

Rep. Lesil McGuire says she's making "a conservative attempt" to resolve a balance of powers issue that has been controversial in Alaska for more than a quarter of a century.

McGuire, an Anchorage Republican who chairs the Administrative Regulation Review Committee in the Legislature, has a bill and a mission aimed at reducing arguments about whether regulations issued by the administration reflect the intent of lawmakers.

The bill, she said, would force regulation writers in state agencies to ponder legislative intent more closely than they sometimes have. It would call upon them to adhere to the "clear statement doctrine," a standard she said is recognized by the U.S. Supreme Court and used by the state in the Katie John lawsuit, supporting its opposition to federal subsistence management on state waters.

"The administrative branch of Alaska's government has broad powers to interpret legislative language and intent in writing regulations, but this has too often resulted in regulations that subvert the original purpose of the legislation," McGuire said. "There is a public comment process that the public is sometimes involved in, sometimes isn't."

The bill says regulations must be authorized explicitly and "not just implied by the statute."

McGuire, a freshman, hasn't offered specific examples of regulations she believes go beyond the Legislature's intent.

But she said the potential breakdown of the process was apparent in a recent controversy involving the Department of Fish and Game.

The department has been in conflict with some shellfish

farmers over interpretations of the law and the state constitution. A Jan. 8 public hearing in Anchorage on proposed mariculture regulations went forward even though outside doors were locked, reportedly due to a mix-up with a security guard. Also, some people complained that they were not allowed to testify by teleconference.

McGuire said her intent isn't necessarily to be adversarial with the administration. But the committee can "serve as a referee, as a liaison between stakeholders, other agencies and the legislators," she said. "Our committee serves a very important function in allowing the steam out of the valve there. It gives the public an opportunity to vent their frustrations, to feel like somebody's listening to them. It's also an opportunity for the agencies to understand that we care, and that we're watching."

Although the Legislature could repeal a regulation by passing a bill, subject to a veto of the governor, "We do not want to give the impression that we are being heavy-handed, that we're trying to get more power," McGuire said.

So there's no intent to revisit failed ballot initiatives that would have allowed the Legislature to repeal regulations by resolution and thus circumvent the governor's veto, she said. "It is my intent to accept that as a clear message from the voters. ... They don't want to change the constitution."

Jim Ayers, chief of staff to Democratic Gov. Tony Knowles, said legislators periodically face the temptation to involve themselves in regulation-writing, even though the constitution explicitly states it's not their job.

"I think she means well," Ayers said of McGuire. "I think it's a great mental exercise. I think it's a great civic discussion. ... (But) I don't think that people in Alaska want to change the powers of the branches of government."

That was apparent in the November election when voters rejected constitutional amendments proposed by the Legislature that would have shifted power from the courts and the executive branch to the Legislature, he said.

If the Fish and Game hearing was the catalyst, then the concern should be whether the open meetings law was followed, not whether regulatory reform is needed, Ayers said. And the mariculture issue might be more complicated than McGuire thinks, he said.

"I don't think she can specifically identify what a problem is" with current regulations, Ayers said.

McGuire said her committee was established in 1975 and was active in identifying regulations for repeal. A Supreme Court ruling in the early 1980s restricted legislative power in that area, she said. The committee, then dormant for several years, was revived in the early 1990s by Rep. Jeannette James, a North Pole Republican who is now the House majority leader.

Bill McAllister can be reached at

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