CSHB 406(FIN): "An Act authorizing the Board of Fisheries and the Board of Game to identify fish and game that are taken or used for subsistence, to identify subsistence and nonsubsistence areas, and to establish preferences for subsistence fishing and hunting based on the availability of fish and game resources; providing for the identification of qualified subsistence users; providing for the regulation of the subsistence taking and use of fish and game; prohibiting and providing a penalty for false reports of information relating to the subsistence taking or use of fish or game or to eligibility to engage in subsistence; establishing regional advisory committees; amending the definitions of 'customary and traditional,' 'subsistence fishing,' 'subsistence hunting,' and 'subsistence uses'; repealing the definition of 'rural area'; repealing subsistence hunting and fishing statutes that are to take effect upon the sunset of the current subsistence hunting and fishing statute; and providing for an effective date."
00CS FOR HOUSE BILL NO. 406(FIN) 01 "An Act authorizing the Board of Fisheries and the Board of Game to identify 02 fish and game that are taken or used for subsistence, to identify subsistence 03 and nonsubsistence areas, and to establish preferences for subsistence fishing and 04 hunting based on the availability of fish and game resources; providing for the 05 identification of qualified subsistence users; providing for the regulation of the 06 subsistence taking and use of fish and game; prohibiting and providing a 07 penalty for false reports of information relating to the subsistence taking or use 08 of fish or game or to eligibility to engage in subsistence; establishing regional 09 advisory committees; amending the definitions of 'customary and traditional,' 10 'subsistence fishing,' 'subsistence hunting,' and 'subsistence uses'; repealing the 11 definition of 'rural area'; repealing subsistence hunting and fishing statutes that 12 are to take effect upon the sunset of the current subsistence hunting and 13 fishing statute; and providing for an effective date." 14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:
01 * Section 1. POLICY AND FINDINGS. (a) It is the policy of the legislature that 02 (1) consistent with sound management principles and the conservation of 03 healthy stocks of fish and healthy populations of game, the use of fish and game resources in 04 Alaska is to the extent practicable to have no substantial adverse effects on subsistence users 05 who depend on subsistence uses of the fish and game resources; 06 (2) consistent with management of fish and game in accordance with 07 recognized scientific principles, subsistence users engaged in a subsistence way of life have 08 the opportunity to do so; 09 (3) nonwasteful subsistence uses of fish and game and other renewable 10 resources shall be the preferred consumptive uses of those resources on lands in Alaska; when 11 there is a shortage of fish and game and it is necessary to restrict taking of fish and game in 12 order to assure the continued viability of a fish stock or game population or the continuation 13 of subsistence uses of the stock or population, the taking of the stock or population for 14 nonwasteful subsistence uses shall be given preference over other consumptive uses; 15 (4) a subsistence user is a person who has demonstrated a customary and 16 traditional dependence on a particular fish stock or game population in an area outside of 17 nonsubsistence areas in Alaska. 18 (b) The legislature finds that 19 (1) a classification scheme employing individual characteristics is less invasive 20 of the open access values of art. VIII of the Constitution of the State of Alaska and more apt 21 to accomplish the purpose of this Act than a geographically based urban-rural residency 22 criterion; 23 (2) Webster's New World Dictionary, Second College Edition, defines "rural" 24 to mean "of or characteristic of the country, country life, or country people; rustic"; 25 (3) the policy set out in (a) of this section is consistent with the policy of the 26 Congress of the United States as expressed in Title VIII of the Alaska National Interest Lands 27 Conservation Act (P.L. 96-487). 28 * Sec. 2. AS 16.05.258 is repealed and reenacted to read: 29 Sec. 16.05.258. Subsistence use and allocation of fish and game. (a) 30 Except in nonsubsistence areas, the Board of Fisheries and the Board of Game shall 31 identify the fish stocks and game populations, or portions of stocks or populations, that
01 are customarily and traditionally taken or used for subsistence. The commissioner shall 02 provide recommendations to the boards concerning the stock and population 03 identifications. The boards shall make identifications required under this subsection 04 after receipt of the commissioner's recommendations. 05 (b) The appropriate board shall determine whether a portion of a fish stock or 06 game population identified under (a) of this section can be harvested consistent with 07 sustained yield. If a portion of a stock or population can be harvested consistent with 08 sustained yield, the board shall determine an amount of the harvestable portion that is 09 reasonably necessary for subsistence uses by residents, and, if the harvestable portion 10 of the stock or population 11 (1) is sufficient to provide for all consumptive uses, the appropriate 12 board 13 (A) shall adopt regulations that provide a reasonable opportunity 14 for all uses of the stock or population; and 15 (B) may adopt regulations consistent with art. VIII, sec. 4, 16 Constitution of the State of Alaska, that recognizes preference among beneficial 17 uses; 18 (2) is sufficient to provide a reasonable opportunity for subsistence uses 19 by qualified subsistence users and for some, but not all, other consumptive uses, the 20 appropriate board 21 (A) shall adopt regulations that provide a reasonable opportunity 22 for subsistence uses of the stock or population by qualified subsistence users; 23 (B) may adopt regulations that provide for other consumptive 24 uses of the stock or population; 25 (C) shall adopt regulations to differentiate among consumptive 26 uses that provide for a preference for the subsistence uses by qualified 27 subsistence users if regulations are adopted under (B) of this paragraph; and 28 (D) shall seek to reestablish stock or population levels, 29 consistent with sound biological and environmental principles, which will 30 attempt to restore a reasonable opportunity for all consumptive uses; 31 (3) is sufficient to provide a reasonable opportunity for subsistence uses
01 by qualified subsistence users, but no other consumptive uses, the appropriate board 02 shall 03 (A) adopt regulations that provide a reasonable opportunity for 04 subsistence uses of the stock or population by qualified subsistence users; 05 (B) restrict or eliminate other consumptive uses of the stock or 06 population; and 07 (C) seek to reestablish stock or population levels, consistent 08 with sound biological and environmental principles, which will attempt to 09 restore a reasonable opportunity for all consumptive uses; 10 (4) is not sufficient to provide a reasonable opportunity for human 11 consumptive subsistence uses by all qualified subsistence users, the appropriate board 12 shall 13 (A) adopt regulations eliminating consumptive uses, other than 14 human consumptive subsistence uses of the stock or population by qualified 15 subsistence users; 16 (B) distinguish among qualified subsistence users, through 17 limitations based on 18 (i) the customary and direct dependence on the stock or 19 population by the subsistence user for human consumption as a 20 mainstay of livelihood; and 21 (ii) the ability of the subsistence user to obtain food if 22 subsistence use of the stock or population is restricted or eliminated; 23 and 24 (C) seek to reestablish stock or population levels, consistent 25 with sound biological and environmental principles, which will attempt to 26 restore a reasonable opportunity for all consumptive uses. 27 (c) For purposes of (b) of this section, a qualified subsistence user is a 28 resident, without regard to the location of the resident's domicile in the state, who has 29 demonstrated a customary and traditional dependence on a particular fish stock or 30 game population identified under (a) of this section. To determine whether a resident 31 is a qualified subsistence user, the Board of Fisheries or the Board of Game, as
01 appropriate, shall establish criteria for determining if a resident has demonstrated a 02 customary and traditional dependence on the stock or population based on 03 (1) past use of the stock or population; 04 (2) lack of alternative resources; 05 (3) the proportion of diet made up of subsistence resources; 06 (4) the variety of fish and game species consumed; 07 (5) the importance of sharing and exchange of fish and game resources; 08 (6) the number of days engaged in harvesting fish and game resources. 09 (d) Notwithstanding (c) of this section, a resident who is domiciled 10 (1) in an area that is determined by the appropriate board to be 11 customarily and traditionally dependent on the stock or population that is described in 12 (b)(2) - (4) of this section is presumed to be a qualified subsistence user; 13 (2) outside of an area that is determined by the appropriate board to be 14 customarily and traditionally dependent on the stock or population that is described in 15 (b)(2) - (4) of this section is presumed not to be a qualified subsistence user. 16 (e) A presumption established under (d) of this section is rebuttable by a 17 preponderance of the evidence presented at a hearing before the Board of Fisheries or 18 Board of Game, as appropriate. Each board shall adopt procedures by which the board 19 shall determine the qualifications of a person who challenges a presumption established 20 under (d) of this section or whose eligibility to engage in subsistence fishing or 21 hunting for a specific stock or population is challenged. The procedure established by 22 a board must include AS 44.62.330 - 44.62.630. 23 (f) The Board of Fisheries shall identify by regulation the boundaries of 24 nonsubsistence fishing areas. The Board of Game shall identify by regulations the 25 boundaries of nonsubsistence hunting areas. The boards may act jointly in identifying 26 the boundaries of nonsubsistence fishing and hunting areas. A nonsubsistence fishing 27 area or a nonsubsistence hunting area is an area or community where a cash-based 28 economy is a principal characteristic of the economy, culture, and way of life of the 29 area or community. In determining whether a cash-based economy is a principal 30 characteristic of the economy, culture, and way of life of an area or community under 31 this subsection, each board shall consider the relative importance of a cash-based
01 economy to the area or community in the context of the totality of the following 02 socioeconomic characteristics of the area or community: 03 (1) the social and economic structure; 04 (2) the stability of the economy; 05 (3) the extent and kinds of employment for wages, including full-time, 06 part-time, temporary, and seasonal employment; 07 (4) the amount and distribution of cash income among those domiciled 08 in the area or community; 09 (5) the cost and availability of goods and services to those domiciled 10 in the area or community; 11 (6) the variety of fish and game species used by those domiciled in the 12 area or community; 13 (7) the seasonal cycle of economic activity; 14 (8) the percentage of those domiciled in the area or community 15 participating in hunting and fishing activities or using wild fish and game; 16 (9) the harvest levels of fish and game by those domiciled in the area 17 or community; 18 (10) the cultural, social, and economic values associated with the taking 19 and use of fish and game; 20 (11) the geographic locations where those domiciled in the area or 21 community hunt and fish; 22 (12) the extent of sharing and exchange of fish and game by those 23 domiciled in the area or community; 24 (13) the other sources of direct and indirect economic support available 25 to those domiciled in the area or community; 26 (14) additional similar factors a board establishes by regulation to be 27 relevant to its determinations under this subsection. 28 (g) Fishing under subsistence regulations may not occur in a nonsubsistence 29 fishing area identified under this section. Hunting under subsistence regulations may 30 not occur in a nonsubsistence hunting area identified under this section. Fish stocks 31 and game populations, or portions of fish stocks and game populations, not identified
01 under (a) of this section may be taken only under nonsubsistence regulations. 02 (h) The taking and use of fish and game authorized under this section are 03 subject to 04 (1) AS 16.05.831 and AS 16.30; and 05 (2) regulations adopted by the appropriate board regarding open and 06 closed areas, seasons, methods and means, marking and identification requirements, 07 quotas, bag limits, harvest levels, and sex, age, and size limitations. 08 (i) A person may not knowingly provide false information to the department 09 or a board regarding the taking or use of fish or game for subsistence uses or regarding 10 the person's or another person's eligibility to engage in subsistence uses of fish or 11 game. Notwithstanding other provisions of this chapter, a person who violates this 12 subsection is guilty of a class A misdemeanor. In addition to the imposition of other 13 penalties provided by law under AS 12.55, if a person is convicted of violating this 14 subsection, the court shall suspend the person's hunting and fishing privileges for not 15 less than one year. In this subsection, "knowingly" has the meaning given in 16 AS 11.81.900. 17 (j) For purposes of this section, 18 (1) "preference" means an advantage, but not necessarily an exclusive 19 privilege, conferred on a use of fish and game over other uses through the adoption 20 of seasons, areas, bag limits, methods and means, and other regulations that take into 21 consideration the consumptive uses and harvest methods of the user groups; 22 (2) "reasonable opportunity" means an opportunity, as determined by 23 the appropriate board, that allows a normally diligent hunter or fisherman to participate 24 in a hunt or fishery with a reasonable expectation of success in taking fish or game; 25 "reasonable opportunity" does not mean a guarantee of taking fish or game; 26 (3) "sustained yield" means a level of utilization of a fish or game 27 population for consumptive uses by humans that is capable of being maintained in 28 perpetuity. 29 * Sec. 3. AS 16.05.260 is amended to read: 30 Sec. 16.05.260. Local and regional advisory [ADVISORY] committees. (a) 31 The Board of Fisheries and the Board of Game may adopt regulations they consider
01 advisable in accordance with AS 44.62 (Administrative Procedure Act) establishing, 02 at places in the state designated by the individual boards, local advisory committees 03 to be composed of persons well informed on the fish or game resources of the locality. 04 The boards shall set the number and terms of each of the members of the local 05 advisory committees, shall designate [DELEGATE] one member of each committee 06 as chair [CHAIRMAN], and shall give the chair [CHAIRMAN] authority to hold 07 public hearings on fish or game matters. Recommendations from the local advisory 08 committees shall be forwarded to regional advisory committees and to the 09 appropriate board for their consideration . If [BUT IF] the Board of Fisheries or the 10 Board of Game chooses not to follow the recommendations of the local advisory 11 committee , the appropriate board shall inform the appropriate local advisory committee 12 of this action and state the reasons for not following the recommendations. 13 (b) The Board of Fisheries and the Board of Game, acting jointly, shall 14 establish six fish and game regulatory regions that together comprise the whole 15 of the state and shall establish a regional advisory committee for each region. 16 Each regional advisory committee shall be composed of nine members who are 17 appointed by the governor and who are well informed on the fish or game 18 resources of the region in which the committee is located. At least five of the 19 members of each regional advisory committee shall reside in the fish and game 20 regulatory region in which the committee is located. The boards shall set the 21 terms of each of the members of the regional advisory committees, shall designate 22 one member of each committee as chair, and shall give the chair authority to hold 23 public hearings on fish or game matters. Recommendations from the regional 24 advisory committees shall be forwarded to the appropriate board for the board's 25 consideration. A board may choose not to follow the recommendations of a 26 regional advisory committee that the board determines are not supported by 27 substantial evidence presented to the board, violate recognized principles of fish 28 or game conservation, are detrimental to the satisfaction of subsistence needs, or 29 are inconsistent with sound public policy. If a board chooses not to follow a 30 recommendation of a regional advisory committee, the appropriate board shall 31 inform the regional advisory committee of this action and state the reasons for not
01 following the recommendation. 02 (c) The commissioner shall delegate authority to local advisory committees for 03 emergency closures during established seasons. The commissioner is empowered to 04 set aside and make null and void only opening of seasons set by the local advisory 05 committees under this section. The appropriate board shall adopt the necessary 06 regulations governing these closures. 07 * Sec. 4. AS 16.05.940(7) is amended to read: 08 (7) "customary and traditional" means the noncommercial, long-term, 09 and consistent taking of, use of, and reliance upon fish or game in a specific area and 10 the [USE] patterns of taking or use of that fish or game that have been established 11 over a reasonable period of time taking into consideration the availability of the fish 12 or game; 13 * Sec. 5. AS 16.05.940(30) is amended to read: 14 (30) "subsistence fishing" means the taking of, fishing for, or 15 possession of fish, shellfish, or other fisheries resources [BY A RESIDENT 16 DOMICILED IN A RURAL AREA OF THE STATE] for subsistence uses with gill 17 net, seine, fish wheel, long line, or other means defined by the Board of Fisheries; 18 * Sec. 6. AS 16.05.940(31) is amended to read: 19 (31) "subsistence hunting" means the taking of, hunting for, or 20 possession of game [BY A RESIDENT DOMICILED IN A RURAL AREA OF THE 21 STATE] for subsistence uses by means defined by the Board of Game; 22 * Sec. 7. AS 16.05.940(32) is amended to read: 23 (32) "subsistence uses" means the noncommercial, customary and 24 traditional uses of wild, renewable resources [BY A RESIDENT DOMICILED IN A 25 RURAL AREA OF THE STATE] for direct personal or family consumption as food, 26 shelter, fuel, clothing, tools, or transportation, for the making and selling of handicraft 27 articles out of nonedible by-products of fish and wildlife resources taken for personal 28 or family consumption, and for the customary trade, barter, or sharing for personal or 29 family consumption; in this paragraph, "family" means persons related by blood, 30 marriage, or adoption, and a person living in the household on a permanent basis; 31 * Sec. 8. AS 38.05.945(d) is amended to read:
01 (d) Notice at least 30 days before action under (a)(5) of this section shall be 02 given to appropriate 03 (1) regional advisory committees [FISH AND GAME COUNCILS] 04 established under AS 16.05.260; and 05 (2) coastal resource service areas organized under AS 46.40.110 - 06 46.40.210. 07 * Sec. 9. AS 16.05.940(27) is repealed. 08 * Sec. 10. Sections 3 and 5, ch. 1, SSSLA 1992, are repealed. 09 * Sec. 11. TRANSITION: SUBSISTENCE AREAS. (a) Notwithstanding AS 16.05.258, 10 as repealed and reenacted by sec. 2 of this Act, an area located outside of a nonsubsistence 11 area established by the Board of Fisheries and the Board of Game as of May 15, 1993, is a 12 subsistence fishing and hunting area for the purposes of AS 16.05.258, as repealed and 13 reenacted by sec. 2 of this Act. Subsistence fishing and hunting areas established by this 14 subsection are superseded by the taking effect of regulations identifying and delineating 15 nonsubsistence fishing areas and nonsubsistence hunting areas under AS 16.05.258, as repealed 16 and reenacted by sec. 2 of this Act, and (b) and (c) of this section. 17 (b) Within two years after the effective date of this section, the Board of Fisheries and 18 the Board of Game shall identify and delineate nonsubsistence fishing areas and 19 nonsubsistence hunting areas, respectively, in accordance with AS 16.05.258, as repealed and 20 reenacted by sec. 2 of this Act, and (c) of this section. 21 (c) The Board of Fisheries and the Board of Game shall review the nonsubsistence 22 areas established by the boards as of May 15, 1993, and substantially increase the portion of 23 the state that is identified as nonsubsistence fishing areas and nonsubsistence hunting areas 24 in order to implement the purpose of this Act. 25 * Sec. 12. Section 10 of this Act takes effect immediately under AS 01.10.070(c).