Legislature(1997 - 1998)
1998-05-10 Senate Journal
Full Journal pdf1998-05-10 Senate Journal Page 3997 HB 406 CS FOR HOUSE BILL NO. 406(FIN) am(efd fld) An Act authorizing the Board of Fisheries and the Board of Game to identify fish and game that are taken for subsistence and to identify subsistence and nonsubsistence areas; relating to the establishment of preferences for and to regulation of subsistence fishing and hunting; relating to advisory committees was read the second time. Senators Lincoln, Adams, Hoffman, Ellis, Duncan offered Amendment No. 1 : Page 1, line 6, through page 10, line 11: Delete all material and insert: "* Section 1. AS16.05.258(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. AS16.05.258(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 1998-05-10 Senate Journal Page 3998 HB 406 (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 (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 1998-05-10 Senate Journal Page 3999 HB 406 (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. AS16.05.258(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. AS16.05.258(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. AS16.05.258(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 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. AS16.05.258 is amended by adding a new subsection to read: 1998-05-10 Senate Journal Page 4000 HB 406 (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. AS16.05.260 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 AS44.62 (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. 1998-05-10 Senate Journal Page 4001 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. AS16.05 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; 1998-05-10 Senate Journal Page 4002 HB 406 (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; (4) comment on proposed regulations on hunting and sport, personal use, and commercial fishing; (5) make recommendations concerning permits provided in AS16.05.330(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. 1998-05-10 Senate Journal Page 4003 HB 406 (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 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. AS16.05.330(c) is amended to read: 1998-05-10 Senate Journal Page 4004 HB 406 (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. AS16.05.940(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. 11. AS16.05.940(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. 12. AS16.05.940(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. 13. AS16.05.940(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; 1998-05-10 Senate Journal Page 4005 HB 406 * Sec. 14. AS16.05.940(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. 15. AS16.05.940(31) is amended to read: (31) "subsistence hunting" means the taking of, hunting for, or possession of game ¦BY A RESIDENT DOMICILED IN A RURAL AREA OF THE STATEá for subsistence uses by means defined by the Board of Game; * Sec. 16. AS16.05.940(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. 17. AS38.05.945(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 AS16.05.262 ¦AS 16.05.260á; and (2) coastal resource service areas organized under AS46.40.110 - 46.40.210. * Sec. 18. 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. 19. Sections 3 and 5, ch. 1, SSSLA 1992, are repealed. * Sec. 20. 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. 18 of this Act, is repealed. 1998-05-10 Senate Journal Page 4006 HB 406 * Sec. 21. TRANSITION: AREAS AND COMMUNITIES CLASSIFIED ASRURAL. 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. 22. TRANSITION: REGULATIONS. Notwithstanding sec. 24 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 AS44.62 (Administrative Procedure Act), but not before the effective date provided in sec. 24 of this Act. * Sec. 23. Sections 18 and 22 of this Act take effect immediately under AS01.10.070(c). * Sec. 24. Except as provided in sec. 23 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." Senator Lincoln moved for the adoption of Amendment No. 1. Objections were heard. Senator Halford rose to a point of order regarding references to the opposite body. President Miller cautioned the members to proceed in order. Senator Duncan called the Senate. The call was satisfied. The question being: Shall Amendment No. 1 be adopted? The roll was taken with the following result: 1998-05-10 Senate Journal Page 4007 HB 406 CSHB 406(FIN) am (efd fld) Second Reading Amendment No. 1 YEAS: 6 NAYS: 14 EXCUSED: 0 ABSENT: 0 Yeas: Adams, Duncan, Ellis, Hoffman, Lincoln, Mackie Nays: Donley, Green, Halford, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp, Taylor, Torgerson, Ward, Wilken and so, Amendment No. 1 failed. Senator Taylor moved and asked unanimous consent that the bill be advanced to third reading and placed on final passage. Senator Duncan objected, then withdrew his objection. There being no further objections, it was so ordered. CS FOR HOUSE BILL NO. 406(FIN) am(efd fld) was read the third time. Senator Hoffman moved that the bill be returned to the Rules Committee. Objections were heard. The question being: Shall CS FOR HOUSE BILL NO. 406(FIN) am(efd fld) be returned to the Rules Committee? The roll was taken with the following result: CSHB 406(FIN) am (efd fld) Return to Rules Committee? YEAS: 6 NAYS: 14 EXCUSED: 0 ABSENT: 0 Yeas: Adams, Duncan, Ellis, Hoffman, Lincoln, Mackie Nays: Donley, Green, Halford, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp, Taylor, Torgerson, Ward, Wilken and so, the motion failed. 1998-05-10 Senate Journal Page 4008 HB 406 The question being: Shall CS FOR HOUSE BILL NO. 406(FIN) am(efd fld) An Act authorizing the Board of Fisheries and the Board of Game to identify fish and game that are taken for subsistence and to identify subsistence and nonsubsistence areas; relating to the establishment of preferences for and to regulation of subsistence fishing and hunting; relating to advisory committees pass the Senate? The roll was taken with the following result: CSHB 406(FIN) am (efd fld) Third Reading - Final Passage YEAS: 14 NAYS: 6 EXCUSED: 0 ABSENT: 0 Yeas: Donley, Green, Halford, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp, Taylor, Torgerson, Ward, Wilken Nays: Adams, Duncan, Ellis, Hoffman, Lincoln, Mackie and so, CS FOR HOUSE BILL NO. 406(FIN) am(efd fld) passed the Senate. Senator Duncan gave notice of reconsideration.