Legislature(1997 - 1998)
1998-04-18 House Journal
Full Journal pdf1998-04-18 House Journal Page 3075 HB 406 The following was read the second time: HOUSE BILL NO. 406 "An Act relating to subsistence uses of fish and game." with the: Journal Page RES RPT CS(RES)NT 3DP 1DNP 1NR 3AM 2538 2 ZERO FISCAL NOTES (F&G, LAW) 2539 JUD RPT CS(JUD) NT 1DP 1DNP 2NR 2AM 2901 INDETERMINATE FISCAL NOTE (H.JUD) 2902 FIN RPT CS(FIN) NT 1DP 5DNP 4NR 1AM 3037 8 FNS (COURT, LAW, 6-F&G) 3038 Representative Porter moved and asked unanimous consent that the following committee substitute be adopted in lieu of the original bill: CS FOR HOUSE BILL NO. 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 1998-04-18 House Journal Page 3076 HB 406 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." There being no objection, it was so ordered. Amendment No. 1 was offered by Representative Therriault: Page 10, line 19: Delete "and (c)" Page 10, line 23: Delete ", and (c) of this section" Page 10, lines 24 - 27: Delete all material. Representative Therriault moved and asked unanimous consent that Amendment No. 1 be adopted. Representative Kubina objected. **The presence of Representative Martin was noted. Representative Kubina placed a call of the House on the bill. **The presence of Representatives Hanley, Moses and Vezey was noted. The House stood at ease for a half hour. **The presence of Representative Mulder was noted. The Speaker stated the call was satisfied. The question being: "Shall Amendment No. 1 be adopted?" The roll was taken with the following result: 1998-04-18 House Journal Page 3077 HB 406 CSHB 406(FIN) Second Reading Amendment No. 1 YEAS: 30 NAYS: 10 EXCUSED: 0 ABSENT: 0 Yeas: Austerman, Barnes, Bunde, Cowdery, Croft, Davis, Dyson, Elton, Green, Hanley, Hodgins, Hudson, James, Kelly, Kohring, Kookesh, Kott, Martin, Masek, Mulder, Nicholia, Ogan, Phillips, Porter, Rokeberg, Ryan, Sanders, Therriault, Vezey, Williams Nays: Berkowitz, Brice, Davies, Foster, Grussendorf, Ivan, Joule, Kemplen, Kubina, Moses Davies changed from "Yea" to "Nay". Grussendorf changed from "Yea" to "Nay". Kemplen changed from "Yea" to "Nay". Brice changed from "Yea" to "Nay". Joule changed from "Yea" to "Nay". Berkowitz changed from "Yea" to "Nay". Moses changed from "Yea" to "Nay". And so, Amendment No. 1 was adopted. Amendment No. 2 was offered by Representatives Kubina, Berkowitz, Brice, Croft, Davies, Elton, Grussendorf, Joule, Kemplen, Kookesh, Moses and Nicholia: Page 1, line 1, through page 2, line 1 (title amendment): Delete all material and insert: ""An Act relating to the management and taking of fish and game for subsistence uses; establishing a priority for subsistence uses of fish and game that is based on place of residence; relating to certain definitions for the Fish and Game Code; delaying the repeal of the current law regarding subsistence use of fish and game; amending the effective date of secs. 3 and 5, ch. 1, SSSLA 1992; and providing for an effective date."" Page 2, line 3 through page 10, line 28: Delete all material and insert: 1998-04-18 House Journal Page 3078 HB 406 "* Section 1. AS 16.05.258(a) is amended to read: (a) In areas or communities classified as rural ¦EXCEPT IN NONSUBSISTENCE AREASá, the Board of Fisheries and the Board of Game shall identify the fish stocks and game populations, or portions of stocks or populations, that are customarily and traditionally taken or used for subsistence. The commissioner may ¦SHALLá provide recommendations to the boards concerning the stock and population identifications. ¦THE BOARDS SHALL MAKE IDENTIFICATIONS REQUIRED UNDER THIS SUBSECTION AFTER RECEIPT OF THE COMMISSIONERS RECOMMENDATIONS.á * Sec. 2. AS 16.05.258(b) is amended to read: (b) The appropriate board shall determine whether a portion of a fish stock or game population identified under (a) of this section can be harvested consistent with sustained yield. If a portion of a stock or population can be harvested consistent with sustained yield, the board shall determine the amount of the harvestable portion that is reasonably necessary for subsistence uses and (1) if the harvestable portion of the stock or population is sufficient to provide for all consumptive uses, the appropriate board (A) shall adopt regulations that provide a reasonable opportunity for subsistence uses of those stocks or populations; (B) shall adopt regulations that provide for other uses of those stocks or populations, subject to preferences among beneficial uses; and (C) may adopt regulations to differentiate among uses; (2) if the harvestable portion of the stock or population is sufficient to provide for subsistence uses and some, but not all, other consumptive uses, the appropriate board (A) shall adopt regulations that provide a reasonable opportunity for subsistence uses of those stocks or populations; (B) may adopt regulations that provide for other consumptive uses of those stocks or populations; and (C) shall adopt regulations to differentiate among consumptive uses that provide for a priority ¦PREFERENCEá for ¦THEá subsistence uses ¦,á if regulations are adopted under 1998-04-18 House Journal Page 3079 HB 406 (B) of this paragraph; (3) if the harvestable portion of the stock or population is sufficient to provide for subsistence uses, but no other consumptive uses, the appropriate board shall (A) determine the portion of the stocks or populations that can be harvested consistent with sustained yield; and (B) adopt regulations that eliminate other consumptive uses in order to provide a reasonable opportunity for subsistence uses; and (4) if the harvestable portion of the stock or population is not sufficient to provide a reasonable opportunity for human consumptive subsistence uses, the appropriate board shall (A) adopt regulations eliminating consumptive uses [,á other than subsistence uses; (B) distinguish among subsistence users ¦,á through limitations based on (i) the customary and direct dependence on the fish stock or game population by the subsistence user for human consumption as a mainstay of livelihood; (ii) the proximity of the domicile of the subsistence user to the stock or population; and (iii) the ability of the subsistence user to obtain food if subsistence use is restricted or eliminated. * Sec. 3. AS 16.05.258(c) is repealed and reenacted to read: (c) The Board of Fisheries and the Board of Game, acting jointly, shall determine by regulation whether each community or area in the state should be classified as rural and whether each community or area that is currently classified as rural should no longer be classified as rural. * Sec. 4. AS 16.05.258(d) is amended to read: (d) The boards may permit subsistence hunting or fishing under the priority established in this section only in areas or communities classified as rural. Fish stocks and game populations, or portions of fish stocks and game populations not identified under (a) of this section may be taken only under nonsubsistence regulations. * Sec. 5. AS 16.05.258(f) is amended to read: (f) For purposes of this section, "reasonable opportunity" (1) means an opportunity, consistent with customary and traditional uses, ¦AS DETERMINED BY THE 1998-04-18 House Journal Page 3080 HB 406 APPROPRIATE BOARD, THAT ALLOWS A SUBSISTENCE USERá to participate in a subsistence hunt or fishery ¦THAT PROVIDES A NORMALLY DILIGENT PARTICIPANTá with a reasonable expectation of success; (2) does not mean a guarantee of taking of fish or game. * Sec. 6. AS 16.05.258 is amended by adding a new subsection to read: (g) This section does not require the Board of Fisheries to close nonretention fishing if the board has made a finding that the mortality caused by nonretention fishing does not jeopardize subsistence uses or the conservation of healthy stocks. * Sec. 7. AS 16.05.260 is repealed and reenacted to read: Sec. 16.05.260. Advisory committees. (a) The Board of Fisheries and the Board of Game may adopt regulations they consider advisable in accordance with AS 44.62 (Administrative Procedure Act) establishing, at places in the state designated by the individual boards, advisory committees composed of persons who collectively represent user groups in the area and who are well informed on the fish or game resources of the locality. The boards shall set the number and terms of the members of the advisory committees, shall delegate one member of each committee as chair, and shall give the chair authority to hold public hearings on fish or game matters. (b) Recommendations from the advisory committees on uses other than subsistence shall be forwarded to the appropriate board for its consideration. If the Board of Fisheries or the Board of Game chooses not to follow the recommendations of the local advisory committee, the appropriate board shall inform the appropriate advisory committee of this action and state the reasons for not following the recommendations. (c) An advisory committee shall send its recommendations on subsistence uses to the appropriate regional subsistence council. If the regional subsistence council does not adopt the recommendation of the advisory committee, the council shall (1) inform the advisory committee in writing the reasons for not adopting the recommendation; and (2) shall forward to the appropriate board the advisory committee recommendation with the council's reasons for not adopting the recommendations. 1998-04-18 House Journal Page 3081 HB 406 (d) The commissioner shall delegate authority to advisory committees for emergency closures during established seasons. The commissioner is empowered to set aside and make null and void only openings of seasons set by advisory committees under this section. The appropriate board shall adopt the necessary regulations governing these closures. * Sec. 8. AS 16.05 is amended by adding a new section to read: Sec. 16.05.262. Regional subsistence councils. (a) The Board of Fisheries and the Board of Game shall jointly adopt regulations necessary to implement this section, including regulations establishing at least six subsistence resource regions that, taken together, cover the entire state. The number and boundaries of the regions must be sufficient to ensure that regional differences in subsistence uses are adequately accommodated. (b) Each subsistence resource region must be represented by a regional subsistence council with members appointed by the governor. Each regional subsistence council must have 10 members, four of whom shall be selected from nominees who reside in that region of the state submitted by tribal councils in the region, and six of whom shall be selected from nominees submitted by local governments and local advisory committees. Three of these six must be subsistence users who reside in the region of the state and three must be sport or commercial users. Sport and commercial representatives may be residents of any subsistence resource region in the state. The regulations must provide for staggered terms of council members. The maximum term is three years, with no limit on the number of terms served. A quorum is a majority of the members of a council. (c) Regional subsistence councils shall strive for consensus, but recommendations must be decided by majority vote. (d) Each regional subsistence council has the authority to (1) elect officers and adopt rules of procedure to govern meetings; (2) hold public meetings on fish and game matters and solicit proposals from the public on subsistence uses; (3) review, evaluate, and make a recommendation, in consultation with the local fish and game advisory committees in its region and with the department, to a board on existing or proposed regulations, policy, or management plan, or any other matter directly relating to the subsistence use of fish and game in the region; 1998-04-18 House Journal Page 3082 HB 406 (4) comment on proposed regulations on hunting and sport, personal use, and commercial fishing; (5) make recommendations concerning permits provided in AS 16.05.330(e); (6) submit to the boards, the department, and the secretaries of the United States Department of the Interior and the United States Department of Agriculture, by November 15 of each year, an annual report, containing the following: (A) an identification of current and anticipated subsistence uses of fish and game populations in the region, and other fish and game uses that the council identifies; (B) an evaluation of current and anticipated subsistence needs for use of fish and game populations in the region, and of other fish and game needs that the council identifies; (C) suggest a strategy for the management of fish and game populations in the region to accommodate the identified fish and game uses and needs; and (D) recommendations concerning policies, standards, guidelines, and regulations to implement the suggested strategy; and (7) perform other duties specified by a board. (e) Each council shall provide a forum for and assist its region's local fish and game advisory committees in obtaining the opinions and proposals of persons interested in fish and game matters so as to achieve the greatest possible local participation in the decision-making process. (f) Regulatory proposals submitted to a board relating primarily to subsistence issues, initiated by the public or by a local fish and game advisory committee, must be reviewed by the appropriate regional subsistence council before the board takes action on the proposal. (g) Regional subsistence councils may meet to develop recommendations on interregional proposals and issues. (h) The appropriate board shall consider the reports and recommendations of the regional subsistence councils and shall give deference to the councils subsistence recommendations. If the council recommendation is unanimous, there is a presumption in favor of adoption by the board. However, the board may decide not to adopt any recommendation that it determines (1) violates the sustained yield principle; (2) is not supported by substantial 1998-04-18 House Journal Page 3083 HB 406 evidence; (3) is detrimental to subsistence uses; (4) involves an unresolved statewide or interregional subsistence management issue; or (5) is contrary to an overriding statewide fish or game management interest. If a recommendation is not adopted by the board, the board shall provide a written statement of the factual basis and reasons for its decision and shall remand the recommendation to the regional subsistence council for further consideration. (i) A regional subsistence council shall give deference to proposals from local governments, tribal councils, and local advisory committees that identify local subsistence needs and uses, methods, means, seasons, and other issues related to local subsistence management. (j) Regional subsistence councils may use a mediation process. (k) When implementing the provisions of this section, the boards, the regional subsistence councils, and the department shall seek data from, consult with, and make use of the special knowledge of subsistence users. If appropriate to implement the provisions of this section, the department may contract for services with subsistence users and local groups in order to use special knowledge of resources in the region. (l) The regional subsistence councils shall be adequately financed. * Sec. 9. AS 16.05.330(c) is amended to read: (c) The Board of Fisheries and the Board of Game may adopt regulations providing for the issuance and expiration of subsistence permits for areas, villages, communities, groups, or individuals as needed for authorizing, regulating, and monitoring the subsistence harvest of fish and game. To be eligible to take fish or game in a rural community or area using the subsistence priority in AS16.05.258, a person must be a resident domiciled in that community or area ¦THE BOARDS SHALL ADOPT THESE REGULATIONS WHEN THE SUBSISTENCE PREFERENCE REQUIRES A REDUCTION IN THE HARVEST OF A FISH STOCK OR GAME POPULATION BY NONSUBSISTENCE USERSá. * Sec. 10. AS 16.05.330 is amended by adding a new subsection to read: (e) The Board of Fisheries and the Board of Game shall adopt regulations allowing the commissioner to issue permits for the 1998-04-18 House Journal Page 3084 HB 406 taking of fish and game in order to teach and preserve historic or traditional uses and harvest practices. The permits issued under the regulations adopted under this subsection do not entitle successful applicants to the subsistence priority under AS16.05.258. * Sec. 11. AS 16.05.940(7) is amended to read: (7) "customary and traditional" means the noncommercial, long-term, and consistent taking of, use of, and reliance upon fish or game in a specific area and the ¦USEá patterns of taking or use of that fish or game that have been established over a reasonable period of time taking into consideration the availability of the fish or game; * Sec. 12. AS 16.05.940(8) is amended to read: (8) "customary trade" means the limited noncommercial exchange, for cash, of fish or game or their parts in minimal quantities ¦AMOUNTS OF CASHá, as restricted by the appropriate board ¦, OF FISH OR GAME RESOURCESá; the terms of this paragraph do not restrict money sales of furs and furbearers; * Sec. 13. AS 16.05.940(11) is amended to read: (11) "domicile" means the true and permanent home of a person from which the person has no present intention of moving and to which the person intends to return whenever the person is away; ¦DOMICILE MAY BE PROVED BY PRESENTING EVIDENCE ACCEPTABLE TO THE BOARDS OF FISHERIES AND GAME;á * Sec. 14. AS 16.05.940(27) is repealed and reenacted to read: (27) "rural community or area" is a community or area classified by the Board of Fisheries and the Board of Game to be substantially dependent on fish and game for nutritional and other subsistence uses; * Sec. 15. AS 16.05.940(30) is amended to read: (30) "subsistence fishing" means the taking of, fishing for, or possession of fish, shellfish, or other fisheries resources [BY A RESIDENT DOMICILED IN A RURAL AREA OF THE STATEá for subsistence uses with gill net, seine, fish wheel, long line, or other means defined by the Board of Fisheries; * Sec. 16. AS 16.05.940(31) is amended to read: (31) "subsistence hunting" means the taking of, hunting for, or possession of game ¦BY A RESIDENT DOMICILED IN 1998-04-18 House Journal Page 3085 HB 406 A RURAL AREA OF THE STATEá for subsistence uses by means defined by the Board of Game; * Sec. 17. AS 16.05.940(32) is amended to read: (32) "subsistence uses" means the noncommercial, customary and traditional uses of wild, renewable resources ¦BY A RESIDENT DOMICILED IN A RURAL AREA OF THE STATEá for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation, for the making and selling of handicraft articles out of nonedible by-products of fish and game ¦WILDLIFEá resources taken for personal or family consumption, and for the customary trade, barter, or sharing for personal or family consumption; in this paragraph, "family" means persons related by blood, marriage, or adoption, and a person living in the household on a permanent basis; * Sec. 18. AS 38.05.945(d) is amended to read: (d) Notice at least 30 days before action under (a)(5) of this section shall be given to appropriate (1) regional subsistence ¦FISH AND GAMEá councils established under AS 16.05.262 ¦AS 16.05.260á; and (2) coastal resource service areas organized under AS46.40.110 - 46.40.210. * Sec. 19. Section 12, ch. 1, SSSLA 1992, as amended by sec. 3, ch. 68, SLA 1995, sec. 3, ch. 130, SLA 1996, and sec. 1, ch. 109, SLA 1997, is amended to read: Sec. 12. Sections 3 and 5 of this Act take effect October 1, 1999 ¦1998á. * Sec. 20. Sections 3 and 5, ch. 1, SSSLA 1992, are repealed. * Sec. 21. Section 12, ch. 1, SSSLA 1992, as amended by sec. 3, ch. 68, SLA 1995, sec. 3, ch. 130, SLA 1996, sec. 1, ch. 109, SLA 1997, and sec. 19 of this Act, is repealed. * Sec. 22. TRANSITION: AREAS AND COMMUNITIES CLASSIFIED AS RURAL. All communities and areas outside the nonsubsistence areas established by regulations adopted by the Board of Fisheries and the Board of Game and effective on May 15, 1993, are classified as rural for the purpose of this Act. The classifications made under this section are subject to the provisions of AS16.05.258(c) as amended by sec. 3 of this Act. * Sec. 23. TRANSITION: REGULATIONS. Notwithstanding sec. 25 of this Act, the Board of Fisheries, the Board of Game, and the Department of Fish and Game may immediately proceed to adopt regulations to implement this Act. The regulations take effect under 1998-04-18 House Journal Page 3086 HB 406 AS 44.62 (Administrative Procedure Act), but not before the effective date provided in sec. 25 of this Act. * Sec. 24. Sections 19 and 23 of this Act take effect immediately under AS 01.10.070(c). * Sec. 25. Except as provided in sec. 24 of this Act, this Act takes effect on the effective date of an amendment to the Constitution of the State of Alaska, approved by the voters in 1998, authorizing a priority for subsistence uses of renewable natural resources that is based on place of residence." Representative Kubina moved and asked unanimous consent that Amendment No. 2 be adopted. Representative Ogan objected. The question being: "Shall Amendment No. 2 be adopted?" The roll was taken with the following result: CSHB 406(FIN) am Second Reading Amendment No. 2 YEAS: 17 NAYS: 23 EXCUSED: 0 ABSENT: 0 Yeas: Austerman, Berkowitz, Brice, Croft, Davies, Davis, Elton, Foster, Grussendorf, Ivan, Joule, Kemplen, Kookesh, Kubina, Moses, Nicholia, Williams Nays: Barnes, Bunde, Cowdery, Dyson, Green, Hanley, Hodgins, Hudson, James, Kelly, Kohring, Kott, Martin, Masek, Mulder, Ogan, Phillips, Porter, Rokeberg, Ryan, Sanders, Therriault, Vezey And so, Amendment No. 2 was not adopted. Amendment No. 3 was not offered. Amendment No. 4 was offered by Representative Croft: Page 1, lines 10 - 11 (title amendment): Delete "repealing the definition of 'rural area'; repealing" Insert "relating to the repeal of" 1998-04-18 House Journal Page 3087 HB 406 Page 7, lines 25 - 28: Delete all material and insert: "(2) "reasonable opportunity" (A) means an opportunity, consistent with customary and traditional uses, to participate in a subsistence hunt or fishery with a reasonable expectation of success; and (B) does not mean a guarantee that fish or game will be taken;" Page 9, lines 11 - 15: Delete all material and insert: "(7) "customary and traditional" means the noncommercial, long-term, and consistent taking of, use of, and reliance upon fish or game in a specific area and the ¦USEá patterns and practices of taking or use of that fish or game that have been established over a reasonable period of time taking into consideration the availability of the fish or game; * Sec. 5. AS 16.05.940(8) is repealed and reenacted to read: (8) "customary trade" means, except for money sales of furs and furbearers, the limited noncommercial exchange for money of fish and game or their parts in minimal quantities; * Sec. 6. AS 16.05.940(27) is amended to read: (27) "rural community or area" means a community or area of the state substantially dependent on fish and game for nutritional and other subsistence uses ¦IN WHICH THE NONCOMMERCIAL, CUSTOMARY, AND TRADITIONAL USE OF FISH OR GAME FOR PERSONAL OR FAMILY CONSUMPTION IS A PRINCIPAL CHARACTERISTIC OF THE ECONOMY OF THE COMMUNITY OR AREAá;" Renumber the following bill sections accordingly. Page 10, following line 2: Insert a new bill section to read: "* Sec. 10. AS16.05.940 is amended by adding a new paragraph to read: (37) "resident domiciled in a rural area of the state" means a resident of a rural community or area." Renumber the following bill sections accordingly. 1998-04-18 House Journal Page 3088 HB 406 Page 10, line 10: Delete all material. Renumber the following bill sections accordingly. Page 10, line 28: Delete all material and insert: "* Sec. 14. (a) Before October 1, 1998, the lieutenant governor shall determine if the Alaska National Interest Lands Conservation Act (P.L. 96 - 487, as amended) has been amended so as to eliminate any material inconsistency between state law governing subsistence uses of fish and game as contained in this Act and applicable provisions of Title VIII of the Alaska National Interest Lands Conservation Act. (b) If the lieutenant governor certifies under (a) of this section that all material inconsistencies between the state law governing subsistence uses of fish and game as contained in this Act and applicable provisions of Title VIII of the Alaska National Interest Lands Conservation Act have been eliminated, the lieutenant governor shall remove from the general election ballot all proposed amendments to the Constitution of the State of Alaska regarding subsistence uses of fish and game. * Sec. 15. Except for sec.14 of this Act, this Act takes effect on October 1, 1998, if the lieutenant governor makes the certification described in sec.14(b) of this Act." Representative Croft moved and asked unanimous consent that Amendment No. 4 be adopted. Representative Porter objected. The question being: "Shall Amendment No. 4 be adopted?" The roll was taken with the following result: CSHB 406(FIN) am Second Reading Amendment No. 4 YEAS: 16 NAYS: 24 EXCUSED: 0 ABSENT: 0 Yeas: Berkowitz, Brice, Croft, Davies, Elton, Foster, Grussendorf, Hudson, Ivan, Joule, Kemplen, Kookesh, Kubina, Moses, Nicholia, Williams 1998-04-18 House Journal Page 3089 HB 406 Nays: Austerman, Barnes, Bunde, Cowdery, Davis, Dyson, Green, Hanley, Hodgins, James, Kelly, Kohring, Kott, Martin, Masek, Mulder, Ogan, Phillips, Porter, Rokeberg, Ryan, Sanders, Therriault, Vezey And so, Amendment No. 4 was not adopted. Representative Porter moved and asked unanimous consent that CSHB 406(FIN) am be considered engrossed, advanced to third reading and placed on final passage. Representative Kubina objected. The Speaker stated that CSHB 406(FIN) am would be in third reading on the April 20, 1998 calendar.