Legislature(1995 - 1996)
05/01/1995 01:25 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
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SJR 19 - ASK FEDS TO AMEND ANILCA TERESA SAGER, Legislative Assistant to Senator Mike Miller, introduced SJR 19. SJR 19 is a resolution that requests a couple of things from Congress that Senator Miller feels are of critical importance, especially at this time. It asks Congress to clarify that the original intent of the Congress was not to violate the statehood compact, or to preempt state management of fish and wildlife. That provision in this resolution is, in Senator Miller's opinion, of critical importance. It also asks Congress to clarify that the definition of "public land" in the Alaska National Interest Lands Conservation Act (ANILCA) is in reference to federal land and does not refer to state or private land in Alaska. So this resolution asks Congress to clarify that in ANILCA, and reaffirm state management authority on state and private lands. Ms. Sager said there are a couple of things that Senator Miller wanted her to point out to the committee and to clarify for their information. There is a further resolved section, the last one, which is on page 3 starting on line 11. This change was added in the Senate Resources Committee. It asks Congress to oppose any other amendments to ANILCA until Congress takes action to confirm state management and to limit the definition of public lands. That is an important resolved section, and that is part of the reason why it is important that this resolution go to Congress this year, because Congress is intending to take up other ANILCA amendments this fall. If this resolution does not pass this year, that resolved section essentially will have no impact. MS. SAGER stated that the other important point is that Senator Miller wants to make it clear that this resolution is in no way an attack on the federal subsistence priority in ANILCA which provides for a rural preference on public lands. I do not think it is any secret that Senator Miller does not support that provision of ANILCA, but this resolution does not address that and Senator Miller wanted to make that clear on the record. REPRESENTATIVE DAVID FINKELSTEIN said the resolution states that we respectfully urge Congress to amend ANILCA to clarify that Congress did not intend to preempt state management of fish and wildlife in Alaska, and of course the essence of the rural preference is preempting state management of fish and wildlife in Alaska. So if I was to support this you could not possibly have a rural preference, because that is what a rural preference is. It is the preemption of state management in that area. MS. SAGER answered that it is her understanding that Congress' intent, when they adopted ANILCA was to provide for rural preference on federal public lands. But their intention was also to maintain state management. In other words, the state was expected to recognize that rural preference and manage accordingly. REPRESENTATIVE FINKELSTEIN said of course the essence of this issue is what happens if the state does not adopt that rural preference, in which case federal law requires the federal government to do exactly what we are saying not to do on line 30, page 2, which is to preempt state management of fish and wildlife in Alaska, which is what the issue boils down to. MS. SAGER stated that is essentially the crux of the Babbitt lawsuit. There was a question as to whether even if the state was out of compliance with Title VIII of ANILCA, in the State's opinion when they filed the lawsuit, that did not necessarily give the federal government the power to take over management even though the state was out of compliance. REPRESENTATIVE BETTYE DAVIS asked if there was a letter of intent that was supposed to come over with the legislation. MS. SAGER understood that there was a letter of intent offered on the original vote on SJR 19 that was not re-offered under reconsideration. AL MCKINLEY, SR., President, Grand Camp, Alaska Native Brotherhood (ANB) submitted a written statement with his testimony: "When the Alaska Native Claims Settlement Act of 1971 became law, the conference committee of U.S. Senate and U.S. House members expected the Secretary of Interior and the state of Alaska to use their existing authority to take action necessary to protect the subsistence needs of the Alaska Natives. The failure of the federal and state governments to heed congressional admonitions caused the Natives to seek a solution through federal legislation. As a result, there is a Title VIII of ANILCA. Congress recognized the need to preserve the subsistence lifestyle as practiced by Alaska Natives from `time immemorial' and the fact that the final version contained provisions for rural Alaskans did not dilute the primary purpose of protection and preservation of the Native subsistence lifestyle. "With this background to my remarks, I now state Alaska Native Brotherhood's opposition to the passage of Senate Joint Resolution No. 19. The Resolution, on its face, would seek to nullify recent Native subsistence victories in the U.S. District Court, including the decision in the Katie John case (on appeal to the ninth circuit) which held that federal jurisdiction (for Title VIII) should extend to all navigable waters in the State of Alaska. At least 60 percent of Native subsistence takes place in navigable waters in Alaska. Unless the state comes into compliance with Title VIII of ANILCA Natives will not fully benefit from the subsistence priority provided by Title VIII of ANILCA. Federal jurisdiction must be able to regulate non federal hunting and fishing activities that impact on subsistence harvest efforts. "Additionally, I support the petition submitted to the secretaries of Interior and Agriculture on behalf of a number of Native organizations that seek to expand federal subsistence management jurisdiction beyond federal public lands. "I cannot, now, support a resolution calculated to restrict the Native subsistence rights beyond what is set out in Title VIII and interpreted by the courts. I emphatically oppose any effort to amend Title VIII that does not first, through a series of consultations, gain the support of the Alaska Natives." Number 370 DEAN PADDOCK, Executive Director, Bristol Bay Driftnetter's Association, spoke in support of SJR 19. He believes Alaska desperately needs to have these issues clarified. Our sense of the issue is that no one will benefit from a continuation of the present uncertainty. We do not see this resolution as an attack on subsistence. We feel that Congress owes us more than we are being given. All Alaskans deserve better than this present uncertainty. The alternative, which to him is unacceptable, is to do nothing and to have these issues decided piecemeal by a series of inconclusive decisions handed down by federal courts which are going to be disappointing to everyone. Number 400 BYRON HALE, Chitin Dipnetters Association, testified via teleconference in support of SJR 19. When Alaska became a state in 1959, it was given the right to manage its fish and game by a statehood compact. This compact cannot be legally changed without the consent of both parties, and the Alaska party are the residents of Alaska. We have never voted to agree to give up our rights to manage Alaska's fish and wildlife. The federal government has broken this compact by taking over the management of fish and wildlife on federal lands in Alaska to manage subsistence because they say the state of Alaska is not in compliance because we do not have the rural preference in our constitution. Congress accepted the Alaska Constitution as written in 1959. When Alaska entered into this union it was on equal footing with all other states, and statehood compacts brought in the authority over fish and wildlife in the State of Alaska. The Secretary of the Interior and the Secretary of Agriculture have threatened to preempt Alaska's management on state and private waters. This is a breach of the compact. ANILCA needs to be amended to make sure that public lands mean only federal public lands and waters. MR. HALE continued, saying that rural preference should also be taken out of ANILCA. There is one thing to remember that seems to fall by the wayside in discussions on Title VIII of ANILCA, that by ending the rural preference the Constitution of Alaska does not stop subsistence use, as the State of Alaska still has subsistence law. With the Federal government out of the general management of fish and wildlife, the State of Alaska could take care of its residents who have a true subsistence need of fish and wildlife. When Governor Tony Knowles dropped the state's lawsuit, Alaska was saddened. He went against Alaska's Constitution, which he has sworn to uphold and the State's right to manage fish and wildlife resources and this resolution is one step on the road to get the state's right back that has been illegally taken from the state of Alaska by the Secretary of the Interior. KELLY JOHNSON testified via teleconference from Soldotna. He stated that when this issue had been brought up in the past, it received overwhelming support by Alaska residents, but has been consistently defeated by our representatives. It is becoming rather interesting. This also happened in Anchorage with HJR 33. That bill received 1,800 signatures but fell through. There is a lot of support for SJR 19 to pass. He wondered if people's voices were going to be heard. LORETTA BULLARD, President, Kawerak, Incorporated, provided a written statement with her testimony: "Kawerak is the regional Native non-profit corporation which provides services to the 20 villages of the Bering Straits Region. "I am speaking in opposition to the CS for SJR 19. While the resolution is presented as a state's rights issue, it is clearly an attempt to weaken the federal government's authority to regulate subsistence during this time of the State's continued non compliance with ANILCA. "The resolution, which calls for Congress to narrowly define public lands in Alaska, does nothing to resolve the dual management system in Alaska. Basically it calls for Congress to turn over fish and game back to the State of Alaska even though the State of Alaska has not upheld federal law. I wonder how Congress will respond to this resolution in light of the Senate's actions to zero out the State Subsistence Division's budget. "Upon passage of this resolution, we will be no closer towards resolving the subsistence issue. Indeed language in the resolution which says `While the federal courts are resolving the federal/state conflicts created by ANILCA,' says to me that the State of Alaska Legislature, through it's continuing refusal to place a constitutional amendment on the ballot, has abrogated it's leadership authority to the federal courts. This in a forum which the sponsor's statement graphically highlights is not ruling in the State's interest. "In the resolution, there is language requesting Congress to amend ANILCA to expressly prohibit preemption of state jurisdiction on state and private lands and water unless specifically authorized by the Congress and the State of Alaska. I cannot see the Congress of the United States agreeing to ask the permission of the State of Alaska to manage federal lands and waters in Alaska. "I disagree with the language in the sponsor's statement that Congress did not intend the term 'public lands' to include state or other `non-public' lands. As a citizen of the State of Alaska, I consider state lands to be part of the public domain. There is no doubt in my mind that Congress intended for the rural preference provision on ANILCA to include State lands. There is no doubt in my mind that when the Alaska Legislature passed the subsistence law to comply with ANILCA and when Alaskans voted to uphold the subsistence preference law, that Alaskans understood the subsistence preference law applied to rural state lands. "Subsistence is the backbone of the rural economy. Village sites were selected because of their proximity to the resources on which we continue to depend to this day. This resolution seeks to undermine many communities' very reason for being. "This issue has divided Alaskans long enough. I place the responsibility for this dual management nightmare squarely on the shoulders of the Alaska Legislature. I encourage the members of the House Judiciary Committee to vote this Resolution down. I further encourage the Legislature to place a constitutional amendment on the ballot which would provide for a rural preference for subsistence in times of shortages." Number 540 JOEL BLATCHFORD testified via teleconference. His family moved to Anchorage from Eagle. He harvests belugas, sea otters and seals through subsistence. The only thing he lacks is fish. They say he cannot have subsistence right on fish. There are many tribes in Anchorage who get some subsistence rights, but not for everything. He hoped the legislature would fix this problem so he will be allowed to subsist on fish. A lot of Natives do not have jobs, and to them it is like living in a rural community because they are just as broke as a lot of other people that live in rural communities. There are some that do make a lot of money, but most of them do not. In the Cook Inlet Region, Incorporated (CIRI) Corporation, about 90 percent of us are low income, which kind of makes us rural, and we would like to be able to get our fish. CARL L. ROSIER, Tongass Sportfish and Territorial Sports, testified in support of SJR 19. He has been associated with fish and wildlife issues since 1955, and he remembers well the euphoria of statehood and Alaskans finally coming together and gaining management control of the state's resource base of 1959. It seems ironic that after 36 years of statehood and successful state management of those resources, we are here today embarking upon a strategy to avoid preemption of state management by the federal government, and a return to the abysmal record of the feds in management of those resources. Certainly at statehood, the people of Alaska, our congressional delegation and our legislators came together to develop the fish and wildlife program that has proven to be exceptional. There were truly some wise legislators that developed the basic management practices and policies provided for in Title 16. The boards and advisory committee system, coupled with the time and energy of many residents in the international fisheries and wildlife arenas, the state has developed a management program about which we all should be extremely proud. We have never in the history of the state produced more salmon than we have in recent years. In the early 1970s, we were producing 30 million or so salmon, and in 1994, the harvest was 194 million salmon. As a state we have had a very strong voice in many arenas that affected the fish and game resources and the resident users: IMPFC, the bilaterals that preceded extended jurisdiction, The International Pacific Halibut Commission, The Interstate Compacts, Waterfowl and Marine Mammals, other federal legislation and re- authorization of federal acts; that really will, in my view, be seriously jeopardized if we permit the feds to take over the management of the resources in which we have invested so much over the last 36 years. This resolution is aimed at a state's rights issue, important to all residents of our proud state. Passage is not an action against subsistence, as some would characterize it. The resolution speaks to the fact that our major problem is with the federal law that should never have become law in its present form. Resolution of that issue is down the road, but the Territorial Sportsman and the Tongass Sport Fishing Association strongly support the Legislature taking this initial step to urge Congress, with all speed, to clarify Congressional intent on the lands provisions of ANILCA. This appears to be providing an avenue for the feds, through the federal courts, to assume fish and wildlife management on state and private lands and waters, as well as federal lands. I find it very difficult to understand why any resident of Alaska could fail to support the state's rights provisions of SJR 19. Number 640 HUGH DOOGAN testified via teleconference in support of SJR 19. He was concerned about rural preference. Our state Constitution was written in 1955, passed by the people in the state of Alaska in 1956. There were three ordinances: The state constitution; the Tennessee plan; and to get rid of fish traps in coastal waters. Fish wheels were left out for a reason because fish wheels were to be used for subsistence only. The Natives are having a problem in that they can use fish wheels for subsistence only, and they will have to use that first before they can go to commercial fishing. That way they can get in the food (indisc.), used by man since time (indisc.) fish and game since time, all over the world, man has used it for time and eternity. LES PALMER testified in support of SJR 19. One of the main reasons we wanted statehood was so we could have some control over our lands and waters. Alaskans, and he included our congressional delegation in that word, would have never agreed to ANILCA had we known we were returning the control to the federal government, not by any stretch of the imagination. It is high time our congressmen were told that we would like them to do something with ANILCA, rather than tell us they will not touch it without our consensus. We will never achieve such a consensus as long as one side in this very divisive game holds all the cards. It would be a travesty to amend our constitution to comply with ANILCA when it is so riddled with ambiguities. SJR 19 is not an attempt to undermine subsistence. It is simply an attempt to clear up one of ANILCA's many vague terms, "public lands." If nothing else, SJR 19 puts every legislator's feet to the fire. If they are against it, they are against the very reason why Alaska became a state - to control its own destiny. If they are against SJR 19, they are against all Alaskans. VERN OLSON, Vice President, Bering Strait Native Corporation (BSNC) an Alaska Native Claims Settlement Act (ANCSA) Corporation, testified via teleconference, and provided written testimony as well: "We have approximately 6,400 shareholders all around the world with about 4,500 living in the Bering Straits Region. I am testifying in opposition to SJR 19. "Much of the land selected by the ANCSA Corporations was selected in light of their importance to the subsistence lifestyle of Alaska's Native peoples. If dual management continues much longer, I would expect the Native corporations to petition Congress to transfer their lands to federal management to protect our ability to subsistence hunt and fish on our own lands. Under the current state management system, every Alaskan has the right to subsistence fish and hunt on the 44 million acres of Native lands. The only way the corporations can protect their wildlife resources is to: 1) Close Native lands to hunting by non-shareholders; or 2) Petition for the lands to be transferred to federal management. No one wants to take this step, but I think the corporations will, if necessary, to protect their shareholders' ability to subsistence hunt. This would result in the state having even less management authority over lands in Alaska. "If the state legislature continues on its present course of action, I foresee a day when the 500,000 plus subsistence users in Alaska (according to state law) will seek to exercise their priority for taking fish and game on state lands, 100,000,000 acres, and rural Alaskans will exercise the subsistence rural priority on all federal and Native lands. Through its continuing refusal to place a constitutional amendment on the ballot, and the dependence on the federal courts to decide these issues, the Alaska Legislature is painting state fish and game management into a smaller and smaller corner." JERRY MCCUNE, President, United Fishermen of Alaska, said they support SJR 19 as a statement of the state's rights and ability to manage fish and game for all of the users in the state. We do not believe SJR 19 challenges the concept of state or the federal subsistence preference, and we support a subsistence preference in this state. SJR 19 states that ANILCA should not preempt state management of fish and game in Alaska. The second one is a statement of the state's right to manage all resources on state lands and navigable waters. The third resolved stresses that ANILCA does not preempt state jurisdiction on state private lands and waters. The federal government should not be able to claim title to resources and land through federal reserve water rights or navigable water rights, which is also done by the Katy John decision now, so we support this. We think this is only a public lands issue, and does not deny anybody of their subsistence preference rights. REPRESENTATIVE FINKELSTEIN said one issue is whether the federal government should preempt state management on federal lands. He asked Mr. McCune if he or his organization disagrees that the federal government in the case where rural preference is involved, has to preempt management on federal lands. MR. MCCUNE answered that is depends on who is in control of navigable waters, first of all. Although the subsistence preference is still there, too, it provides subsistence whether it is on the federal lands or the state lands. You also have a problem with the weak stock management. Are you aware of that? REPRESENTATIVE FINKELSTEIN answered that, yes, he understood that. He just wanted the difference between federal and state lands. He asked who is on the committee that runs UFA. Who decided to support this bill? Is it a statewide committee, or is it more from certain areas of the state? MR. MCCUNE explained they have different committees for different issues. We have a subsistence committee that makes recommendations to the full board, then the full board has to vote on whether they are in support or not. It does not just come from one committee, it goes to the full 23 member board. The committees do their work and then make their recommendations and then it is taken up by the full board. Number 850 ELAINA SPRAKER testified via teleconference in support of SJR 19. SJR 19 is even more important now that HJR 33 failed in the House. She explained what the federal subsistence law has done to their community on the Kenai Peninsula. Before rural preference came to the Kenai, we were a prime example of how different cultures, diversity of the resource use, fish and wildlife populations, and (indisc.) without a doubt in our community. Now, because of the unconstitutional discriminatory federal laws, we are seeing community pitted against community, culture against culture. It is hard for me to believe that some of our legislators do not support resolutions such as SJR 19. By not supporting these resolutions, you are also not supporting Alaska's state constitution. More importantly, you are dividing Alaskans into causes and chipping away at the foundation of what our country was founded on - protection of equal rights. Our resource is a lifeline to our community. By not restoring state management to our fish and wildlife resources, this federal law will have significant impacts on the Kenai Peninsula, both socially and economically. State management is the key. It provides priority and health to the fish and wildlife population. TAPE 95-55, SIDE B Number 000 DICK BISHOP, Tanana Valley Sportsman's Association, testified via teleconference from Fairbanks. SJR 19 sends a vital message to Congress. Inclusion of the navigable waters or reserved waters in the definition of "federal public lands" is fundamentally wrong, and it must be changed. Reliability of sport and commercial, and even subsistence fisheries depends upon it. Equal footing granted to Alaska at statehood depends upon it. Fisheries management depends upon it. The federal rural priority demands that all of the uses must be delineated before customary and traditional subsistence uses can be regulated. That is bad enough on federal lands and waters, but it is potentially disastrous on fisheries in state waters. Courts have interpreted that priority as meaning no closed seasonal bag limit on the customary and traditional uses, and providing for allowance for commercial sale and substantial value of the resources taken out of the subsistence priority. MR. BISHOP said there are substantive reasons that this exclusion of navigable waters from ANILCA needs to be made. The timing of this vital message is critical. Alaska's Congressional delegation has indicated they plan to hold ANILCA oversight hearings sometime before the fall of 1995. There are numerous problems caused by the vague language of ANILCA regarding fish and game management. He strongly urged passage of SJR 19. HAROLD GILLAM testified via teleconference in support of SJR 19. He does not see this as an attack on federal subsistence. It would solve many of the problems we are now facing with ANILCA. He does not believe that fishery management in state waters by the federal government would be an improvement. If past history is any indication, we will be back at the disaster level. THEO MATHEWS, Executive Director, United Cook Inlet Driftnetters Association (UCIDA), testified via teleconference in support of SJR 19 and submitted written testimony as well: "UCIDA has a long time involvement in state and federal subsistence issues, especially active since the Kenaitze case. We support SJR 19 as a statement of the state's right and ability to best manage fish and game for all users. SJR does NOT challenge the concept of state or federal subsistence preference. It does NOT resolve broader issues of the current state subsistence statute or federal subsistence (ANILCA) on federal lands and non-navigable waters. "In order to resolve these broader issues, urban legislators must recognize that a subsistence preference for all Alaskans is not viable for their constituents. Rural legislators must also recognize that ANILCA is a poorly written federal law which systematically challenges other uses, and therefore, needs technical amendments to arrive at an honorable solution to protect villages. Number 350 EDDIE GRASSER, Alaska Outdoor Council (AOC), testified in support of SJR 19. We represent many different interest groups. We have about 12,000 members overall. Most of our points were already raised by other people testifying in this hearing. We view SJR 19 as an essential piece of state's rights legislation, supporting Alaska's ability to manage its wild resources. We feel it is imperative that the legislature act on this in light of the recent Katy John decision at the Ninth Circuit Court level, because of the ambiguity of that decision. We are not sure what the federal government is going to be allowed to do under the federal reserve law rights. A portion of that decision is relevant in regard to managing fisheries on navigable waters. We do not believe this legislation is an attempt to diminish the subsistence priority either in the state law or the federal law. That is a misconception being perpetrated by people that do not want the status quo changed in the federal law. It is our view that the federal law is divisive and will continue to be so unless it is amended. We do not feel that Congress did intend for the federal government to manage on state and private lands, and navigable waters in the state. This resolution will clarify that intention. REPRESENTATIVE DAVIS offered a letter of intent that she proposed to go along with this Resolution: "It is not the intent of the legislature for this resolution to be construed as a subsistence resolution." REPRESENTATIVE BUNDE had a letter of intent himself, so he objected. A roll call vote was taken. Representatives Finkelstein and Davis voted yes. Representatives Bunde, Toohey, Vezey, Green and Porter voted no. The Letter of Intent failed with a five to two. REPRESENTATIVE FINKELSTEIN offered an amendment to delete the resolve on page 2, lines 27 through 30. The reason for this amendment is that if you read through them all, the second resolve deals with public land, the third resolve deals with prohibiting preemption of state jurisdiction on state and private lands, and the other two are sort of unrelated. So the first resolve is preempting state management of fish and wildlife, if you take it out, you are basically just taking out the reference to federal land. As it was stated by the sponsor, this is not intended to apply to subsistence. The one point that is clear is that the preference does apply to federal lands. REPRESENTATIVE GREEN objected and a roll call vote was taken. Representatives Finkelstein and Davis voted yes. Representatives Bunde, Toohey, Vezey, Green and Porter voted no. Amendment 1 failed with a five to two vote. REPRESENTATIVE BUNDE offered his letter of intent: "It is not the intent of the legislature for this resolution to be an attack on the federal subsistence priority on federal public lands." Hearing no objection, the letter of intent was adopted. REPRESENTATIVE GREEN made a motion to move the bill as amended with the attached letter of intent. REPRESENTATIVE FINKELSTEIN objected. A roll call vote was taken. Representatives Finkelstein and Davis voted no. Representatives Bunde, Toohey, Vezey, Green and Porter voted yes. CSSJR 19(RES) passed out of committee with a five to two vote.
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