Legislature(1997 - 1998)
03/09/1998 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 406 - SUBSISTENCE USES OF FISH AND GAME Number 0321 CHAIRMAN GREEN announced that next the committee would take up HB 406, "An Act relating to subsistence uses of fish and game." He called upon Representative Ogan to lead the committee through CSHB 406(RES). He noted that five sites were on teleconference, and he expressed hope that the committee would have time to hear from those testifiers. Number 0353 REPRESENTATIVE SCOTT OGAN, co-chair of House Resources Standing Committee, sponsor of HB 406, came before the committee to present the bill. He told members he had listened closely to more than 100 hours of public testimony since the Governor introduced the task force plan in mid-summer; he had also listened to more than 20 hours of testimony from Administration officials who support the Governor's position. He has concluded there are significant differences between what the public has been led to believe about subsistence and what the Administration is really trying to achieve. REPRESENTATIVE OGAN stated, "House Bill 406, I believe, is based on what the public indicated they support about subsistence. The public indicates only people who need it should get a preference. The public thinks such a preference should kick in only when there's a true shortage of the resources, and that such shortage should be substantiated with biological evidence. The public does not support any commercial use of subsistence resources. I believe the public wants true management of fish and game back, not management through federal court oversight or Secretary of Interior oversight, at his whim, which is, by the way, what we would get if we adopted the other plan." Number 0407 REPRESENTATIVE OGAN said the public does not support changing Alaska's constitution if the federal law is in conflict and not constitutional according to the Alaska constitution. Nor does the public know what rights or uses they might have to give up to satisfy the Alaska National Interest Lands Conservation Act (ANILCA). Representative Ogan referred to equal protection rights. He indicated that while on the surface a rural priority may appear acceptable to some, he is against amending the constitution to create different classes of people. He suggested a rural priority would be an irrational preference, and it would not provide the healing as a state that he believes is necessary. REPRESENTATIVE OGAN told members the public also does not know that sustained yield, without a definition, does not necessarily mean there will be resources available for human harvest. The bill was drafted to address all these points in the most forthright, public manner possible. He stated, "By placing the measure before the voters, they, and not the politicians, will have the final word on whether an Alaskan in-state solution is acceptable." REPRESENTATIVE OGAN said as a further safeguard, HB 406 does not go into effect until ANILCA is amended, and rural residents can be secure in knowing that both a majority of voters and Congress must agree before any changes are made to the present system of subsistence administration. He stated, "Finally, I think we should all recognize that no changes to equal protection rights should be permitted to go on the ballot." He then referred to a court case that he believes is in Colorado, relating to the inability of persons to vote away equal protection rights. Number 0616 REPRESENTATIVE OGAN concluded his opening remarks: "Before we try to satisfy ANILCA, we must be aware that if it requires a dilution of the equal protection, it very well could be tossed out by our courts. We must make every effort to educate ... both ourselves and the public in what our legal obligations are, and what we ... can and cannot do within those parameters." He offered to go through the bill. REPRESENTATIVE OGAN described Section 1, findings and intent, as fairly self-explanatory. He read from subsection (a)(1): "the ability to take fish and game for personal and family use for sustenance is a fundamental right under the Constitution of the State of Alaska." He explained that he had been looking for some common ground with the Alaska Federation of Natives (AFN), which has as a guiding principle that subsistence is a basic human right. He told members he believes basic human rights or fundamental rights apply equally to all people, and they are not severable or subject to a vote. Number 0695 REPRESENTATIVE OGAN continued with Section 1, subsection (a)(2), which read, "the common use clause of the Constitution of the State of Alaska imposes on the state a trust duty to manage the fish, game, and water resources of the state for the benefit of all the people". He said there had been a most informative hearing on the public trust doctrine in the previous committee; there is a lot of case law on the public trust doctrine, which he believes shows it is traditionally a state's right to manage fish and game. He provided oil as an example, saying that like fish and game, oil is an asset in the public trust; the permanent fund dividend represents the people's common ownership, and earnings from that are paid to each citizen of the state. He said just as the U.S. Supreme Court has ruled that the state cannot discriminate with that public trust asset based on how long someone has lived in Alaska, he believes the state should not and cannot discriminate with another public trust asset, fish and game, based on where a person lives in the state. Number 0801 REPRESENTATIVE OGAN briefly mentioned subsection (a)(3), which read, "the harvest of fish and game for personal and family use for sustenance is the highest and best use of fish and game". He then referred to (a)(4) and said they had taken some language from the Hickel task force, trying to recognize the importance of traditional, social and cultural relationships that both Native and non-Native people have to hunting and fishing. In (a)(5), it says although these customs, traditions and beliefs vary, Alaskans have a lot of these issues in common. REPRESENTATIVE OGAN referred to Section 2, subsection (a), which says the harvest of fish and game for personal and family use for sustenance is the highest and best use of fish and game. He said he had recently had occasion to travel around the state with the House Special Committee on Fisheries, for hearings on another bill relating to whether the legislature would allocate a resource. He had heard repeatedly from commercial fisheries interests that they had no problem with Alaska residents getting what they need to feed their families, and that it should be the priority use. Representative Ogan stated that the resource does belong to Alaska residents. Number 0898 REPRESENTATIVE OGAN advised members that Section 2, subsection (b), is probably the most important portion of the bill. It read, "If the Board of Fisheries or the Board of Game determines that the projected level of harvest of a fish stock or game population in an area would exceed the sustainable level of harvest under the sustained yield principle, the appropriate board shall allocate, notwithstanding AS 16.05.251(e), the harvestable portion of the stock or population in that area among user groups in accordance with a ranking of beneficial uses of the stock or population that assigns the highest preference to consumptive use for personal and family use for sustenance." REPRESENTATIVE OGAN Ogan explained that in times of shortage, the boards will allocate a percentage to Alaskans first for feeding their families, under the authority of the state constitution, Article VIII, Section 4, sustained yield, which says the use of fish and game is subject to preference among beneficial uses. He said he believes case law backs that up, that a preference can be subsistence, personal use, or commercial fishing, for example; those are use categories. He indicated that if the legislature directs the board that in times of shortage that is the highest and best use, he believes it satisfies the intent, at least, of ANILCA. Number 0995 REPRESENTATIVE OGAN next referred to page 3, line 10 [stated as page 10, line 3], "Sec. 16.16.020. Dependence on fish and game for sustenance." He noted that in subsection (a) it identifies dependence on fish and game for sustenance, and it instructs the boards to jointly define fish and game dependent use areas and set up criteria based on 14 points specified in the bill. He said basically they are trying to determine which areas are truly dependent on fish and game. On page 4, in subsection (b), if the appropriate board, with concurrence of the department, determines there is a shortage, the bill allows the board to establish a preference consistent with sustained yield, to reserve a sufficient portion of stock or population to provide a reasonable opportunity to satisfy the need for fish and game dependent uses of stock or population. Representative Ogan said, "So, in the areas that have been identified as having this dependency, and in times of shortage, ... they can do the preference." Number 1116 REPRESENTATIVE OGAN said the criteria have been narrowed down to be fairly simple. One must possesses a $5 resident hunting, trapping and sport fishing license under AS 16.05.340(a)(6); for that, he believes a person must be on public assistance or make less than less than $8,200. In addition, one must submit to the regional fish and game board a statement claiming to be dependent or claiming to have no alternative means as a result of the absence of a cash-based economy or because of a person's decision to adopt a fish and game dependent lifestyle. Representative Ogan suggested the latter recognizes social and cultural values, and he noted that the bill outlines a way to appeal that, primarily at the regional level; he indicated he would address the regional boards later, expressing the desire that the main boards of fish and game do not turn into hearing forums for these disputes, which he believes should be settled locally, then forwarded to the boards for approval. Number 1224 REPRESENTATIVE OGAN discussed the definitions section on page 6, which includes definitions of "preference," "principle," "reasonable opportunity," "shortage" and "sustained yield." He advised members that he had meant to offer, in the previous committee, an amendment suggested by someone who had called in from Kodiak regarding "shortage" and the availability of other species. However, he didn't have that proposed amendment with him this day. He referred to Section 3 on page 6 and indicated there is a technical change which substitutes "fish and game dependent use" for "subsistence hunting and fishing." Those are mostly technical changes, continuing on page 7. Number 1295 REPRESENTATIVE OGAN told members Section 5 addresses the regional boards and advisory committees; the latter exist now, and to his knowledge there are approximately 80 advisory committees throughout the state. This creates five regions in the state and sets up regional boards, to separate the wheat from the chaff and cut down on the work of the main boards. In state law, the main boards are required to consider every proposal brought before them, an arduous and time-consuming task. These regional boards would make recommendations to the main boards; all proposals shall be transmitted to the main boards, but they will give deference to the ones by the regional boards. Representative Ogan pointed out that currently the main boards basically react to emergencies rather than managing fish and game. This would also give more say to local residents; he said there is a feeling now of disenfranchisement by rural people in the process. Representative Ogan said he envisions the regions being Southeast, Southwest, Southcentral, Northwest and Arctic. He expressed hope that this will result in better fish and game management. Number 1468 REPRESENTATIVE OGAN indicated the next few pages contain mostly technical name changes. He then discussed page 14, Section 13, which says, "For the purpose of administering AS 16.05.251 and 16.05.255, each board may delegate authority to the commissioner or to a regional fish and game board to act in its behalf." He said if there is a shortage in a region, for example, the main board could tell the regional board to monitor it and institute a closure if necessitated under the sustained yield principle. The following changes are mostly technical, substituting "personal and family use for sustenance" for "subsistence," up to page 22, which contains mostly technical repealers. On the bottom of page 22, it gets into appointments of members to regional fish and game boards. Number 1564 REPRESENTATIVE OGAN told members page 23 probably contains one of the more interesting portions, a required advisory vote on preference for use of fish and game, to be put on the primary ballot. Section 38 specifies what happens if there is a "no" vote on that, and Section 40 relates to provisions effective if the attorney general determines that Title VIII of ANILCA has been amended in such a manner that it covers the five points set out on page 24. He read from (A) through (E), noting that one condition is that the definition of "public lands" in ANILCA is amended to exclude state and private land and water, including navigable water. Representative Ogan said when Alaska became a state, no one dreamed navigable waters would be considered anything but state lands. He added, "And of course we've been in court on the Katie John suit on that, so this fixes Katie John." REPRESENTATIVE OGAN told members that in (E), "sec. 316(b)(3)(B) of P.L. 105-83" is the portion of ANILCA that gives specific authority to Secretary of the Interior to manage fish and wildlife on public lands in Alaska. He said if Alaska amends its constitution and statutes to give a rural priority, that would actually expand the authority of the Secretary of the Interior. He referred to one of U.S. Senator Ted Stevens' amendments to ANILCA and said, "It's been implied, and there's been federal court oversight before, but it's never been in writing that the Secretary shall manage if we're out of compliance. Now, theoretically, if we pass this, that goes away, but I wanted to make sure that it goes away by addressing it specifically, because I personally think that reduces our state to territorial status." He said that concluded his testimony. Number 1752 REPRESENTATIVE CROFT referred to page 1, lines 6 through 8, and to the public trust doctrine. He said he had listened to some of the testimony in the House Resources Standing Committee; he noted that the current committee must address legal issues, including what is necessary to amend the constitution, if needed, what it takes to comply with ANILCA, or what are appropriate amendments to ANILCA or state statutes to make this work. He said, "And I've been searching in vain for a public doctrine case that says we can't amend our constitution. In fact, I heard your expert on that issue, Mr. Cook, say, 'If you amend ... the Alaska constitution, the public trust doctrine is simply superseded.' Did I miss anything in that discussion?" Number 1804 REPRESENTATIVE OGAN replied that the public trust doctrine is simply the case law, taken as a whole. He offered to show members that, indicating a staff member was retrieving a book containing that. He indicated his belief that amending the constitution as discussed would violate established case law established in the U.S. Supreme Court and could certainly be challenged. REPRESENTATIVE CROFT said he had the law review article, if Representative Ogan wanted to see it. REPRESENTATIVE OGAN said the state has a fiduciary duty to manage the assets of the public trust in the best interests of the public, and it would be a violation of that duty to give a special class of people a right to a public trust resource. He read briefly from a U.S. Supreme Court case settled in 1892, Illinois Central Railroad Company v. Illinois, saying the state can no more abdicate its trust over property in which the whole people are interested than it can abdicate its police powers, administration of government and the preservation of peace. Number 1898 REPRESENTATIVE CROFT asked whether Representative Ogan knew of any U.S. Supreme Court case, or any other case, that holds that giving a rural preference violates the federal equal protection clause. REPRESENTATIVE OGAN replied, "No, simply because it has not been litigated. ... The Alaska Supreme Court has clearly said that it's an equal protection case, and I believe the verbiage was 'an easy one, at that.'" Number 1939 REPRESENTATIVE CROFT responded, "The Alaska Supreme Court said that it violated our specific provisions ... on management of fish and game. It violated our constitutional provisions, and that's what puts us in this ball game. But I have not heard of any federal case that says it violates equal protection. And that's what I was trying to get to. Your own expert said, 'If you amend the constitution, the public trust doctrine does not stand in your way.'" REPRESENTATIVE OGAN replied, "And you're correct that he did say that, and that's because the public trust doctrine is simply case law, taken as a whole ...." He indicated case law changes as the cases change, and he restated that it has not been taken to the U.S. Supreme Court. REPRESENTATIVE CROFT referred to pages 3 and 4. He asked about the areas identified as having a dependence on fish and game, as well as the people who must have a personal dependence on fish and game. He said, "When you declare that area as unable to meet sustained yield any longer, does the preference kick in for residents of that area or residents of every part of the state?" REPRESENTATIVE OGAN answered that he believes it kicks in for every part of the state, and that someone who qualifies can go to another area of the state and partake there. Number 2027 REPRESENTATIVE CROFT said he didn't see any place where it links the person to the area. He stated, "It's my understanding that under ANILCA now, you have a rural preference, but you have a customary and traditional use of that resource. So under the proposed federal regulations, under ANILCA, you couldn't fly from Angoon to Barrow to be a subsistence user. You are still a rural resident, but you didn't have a customary and traditional use of that resource; you couldn't establish it. Under your program, as long as I have the $5 permit, I can fly up to Barrow and be a subsistence user." REPRESENTATIVE OGAN affirmed that, stating his understanding that under the federal law, a rural resident qualifies in any other rural area, unless there are special restrictions. He suggested there are practical limitations, however. For example, a person who qualifies for a $5 license probably could not afford to fly to Barrow to participate in a caribou hunt, unless a friend had an airplane. Number 2086 REPRESENTATIVE CROFT referred to page 3, starting on line 3. He stated his understanding that the consumptive preference applies to every fish stock or game population. Therefore, a person who qualified would be first in line for every particular fish stock. REPRESENTATIVE OGAN concurred. Number 2124 CHAIRMAN GREEN asked whether it may create a special use if they limit people to those who qualify for this $5 license, which would require being essentially indigent and therefore being unable to go to other areas of the state. Noting that it may be a restriction, he asked if there had been discussion of whether that would run afoul of the present constitution. REPRESENTATIVE OGAN stated his belief that the testimony from lawyers in the previous committee indicated the only constitutional concerns had been amended out of the bill. Number 2198 REPRESENTATIVE BRIAN PORTER commended Representative Ogan and the House Resources Standing Committee for bringing forth an approach that needs to be considered. He referred to page 2 and discussion in the findings of the capacity for an abundance, as well as the intention of managing for a greater abundance of fish and game. He asked, "From your point of view, is this a change in management policy or a reiteration of it?" REPRESENTATIVE OGAN replied that there has been a certain amount of frustration, perhaps exemplified by a recent resolution passed by the legislature, that the department wasn't necessarily managing for abundance. He suggested some of it is founded in a lack of intensive management regarding predators. He stated, "Certainly if you manage for abundance, it reduces the conflicts of who is a 'have' and a 'have not.'" Noting that subsistence fishing is the largest portion of subsistence hunting and fishing, he said he had been told it is only 1 percent of the amount harvested statewide by humans. He said he finds it rather ludicrous if the federal government is considering taking over the fisheries management for 1 percent. Representative Ogan said Alaska residents own the resource, adding, "It belongs to the people first, and then we allow other people to exploit it commercially. And I just think it's a good public policy to have that the highest and best use." Number 2311 CHAIRMAN GREEN noted that "abundance" is not defined here. He asked, "And would we run afoul if we managed for abundance, of determining that if there's any restriction in any area, that we haven't reached abundance? And would that kick this in, then?" REPRESENTATIVE OGAN agreed it might be good to put "abundance" in the definitions. He said the less ambiguous the law is, the less chance there is of litigation. Number 2335 REPRESENTATIVE CROFT asked whether abundance necessarily means some form of predator control. REPRESENTATIVE OGAN replied that it means intensive management as defined under Title 16, which could be predator control or, as he recalls the statute, silvacultural practices that increase populations of ungulates. He said he was talking about forestry, cutting down trees and letting little trees grow so that moose can eat better, for example. REPRESENTATIVE CROFT asked how one manages for abundance for a fishery, such as doing predator control. REPRESENTATIVE OGAN said they wouldn't necessarily have to do that for a fishery, but the description must include both boards. Number 2393 REPRESENTATIVE ROKEBERG requested clarification of the distinction between managing for abundance and managing for sustained yield. REPRESENTATIVE OGAN read the definition of sustained yield, page 6, lines 21 through 23, which says it is a level of utilization of a fish or game population for consumptive uses by humans that is capable of being maintained in perpetuity. He added, "And abundance certainly means enough to go around for everybody, is how I would simplistically interpret it." Number 2432 REPRESENTATIVE CON BUNDE pointed out that Alaska has a growing population. He questioned how there can continue to be abundance to serve everyone, without some rationing. He suggested that definition defies reality. TAPE 98-33, SIDE B Number 0006 REPRESENTATIVE OGAN said he would carefully consider these points, and he is open to getting it as clearly defined as possible. Number 0023 REPRESENTATIVE PORTER referred to page 3, subsection (b). He asked whether the area mentioned on line 4 refers to any area of the state or to a dependent use area. REPRESENTATIVE OGAN expressed his understanding that it would be any area of the state, as it would certainly have statewide application. He noted that under the sustained yield principle, if there is not enough to go around with the harvestable portion, then the board is given authority to allocate. He added, "We're requiring them to allocate with the ranking of the beneficial uses, with the highest preference to consumptive use for personal and family use for sustenance. So, this is kind of like the first tier." He said when there is not enough to go around, and to maintain the sustained yield, the board would first allocate a certain percentage to personal and family use. Number 0080 REPRESENTATIVE PORTER asked whether, for a shortage in a nonsubsistence area, this would still give a preference to subsistence users, or whether the preference would be to sport fishing and personal use. REPRESENTATIVE OGAN answered that he interprets this portion to be applied statewide. Number 0099 REPRESENTATIVE PORTER said if he understands the bill in the aggregate, it sets up the standard licenses for taking fish and game that now exist, commercial through personal use, and then adds subsistence, with this definition of a $5 license and the other requirements. In a time of no shortage, a subsistence permit holder can hunt or fish within limitations that may be placed on how much a subsistence person can take, anywhere. He asked whether, if there was a shortage in a nonsubsistence area, that license would have a preference there. REPRESENTATIVE OGAN deferred to Mr. Utermohle. Number 0165 REPRESENTATIVE CROFT referred to page 4, line 13, and read, "If the Board of Fisheries or the Board of Game, as appropriate, with the concurrence of the department, determines that a shortage of a fish stock or game population available for harvest in a fish and game dependent use area exists, the board may establish a preference ...." He said that same question perturbs him, and if it is in there, then all subsistence users in the state can fly in and take it, first in line. He inquired, "But if I am a subsistence user qualified under your definition, who lives in a nonsubsistence zone, that is, one that hasn't been certified as fish and game dependent, I don't move to the head of the line?" REPRESENTATIVE OGAN again deferred to Mr. Utermohle, who came forward and joined him at the witness table. Number 0241 REPRESENTATIVE PORTER referred to subsection (b) on page 3, line 3. He asked whether it is Mr. Utermohle's interpretation that a subsistence permit holder, as defined within this bill, in times of a shortage would have a preference in a "non-fish and game dependent use area." Number 0256 GEORGE UTERMOHLE, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, told members subsection (b) provides that in the event of a shortage, the department would rank uses of that particular resource, giving highest priority to those uses involving taking of that fish and game for sustenance. He said that ranking of priorities is distinct from the procedure in the next section of the bill. Number 0278 REPRESENTATIVE PORTER noted that it says "notwithstanding AS 16.05.251(e)," which seems to set up all the categories of licenses except for subsistence. He surmised that it therefore refers to a subsistence program. MR. UTERMOHLE replied, "It's my understanding that is not what this language does. [AS] 16.05.251(e) establishes a procedure by which the Board of Fisheries allocates fisheries resources among personal use, commercial and sport uses. That's consistent with the current 'all those uses being subservient to the preference for subsistence.' And this provision of the bill sets up ... a procedure for ranking the various uses of fish and game resources, notwithstanding those criteria set out in .251. So, this establishes an alternative procedure whereby the board, in times of shortage, goes out and looks at each of the uses of the resource and determines which should have first crack at the available resource, inside or outside of a subsistence use area." Number 0336 REPRESENTATIVE PORTER asked whether a personal use permit would qualify for personal and family sustenance, and consequently that could be considered in the mix of priorities. MR. UTERMOHLE said yes. Number 0358 REPRESENTATIVE ETHAN BERKOWITZ said he understands the point Mr. Utermohle was just making, but on page 4, line 16, even after there has been a hierarchy established it doesn't appear to be mandatory that the preference be followed; it appears to be permissive. He asked Mr. Utermohle to comment. MR. UTERMOHLE replied, "That is true. ... Once the board of fisheries or game identifies a shortage, it is still discretionary with them whether or not to go through this preference process." REPRESENTATIVE PORTER said that is in a dependent area. Number 0393 REPRESENTATIVE BERKOWITZ stated, "Once you have a shortage, it's not necessary that someone with a sustenance priority get preference." MR. UTERMOHLE agreed. Number 0398 REPRESENTATIVE CROFT noted that on page 4, beginning at line 13, it talks about fish and game dependent use areas. He asked where the similar provision is for areas that are not fish and game dependent. MR. UTERMOHLE said that provision is largely contained in subsection (b) at the top of page 3. He specified that it establishes a procedure to force the boards to decide which uses of a resource shall be allowed, establishing a hierarchy of uses. Number 0424 REPRESENTATIVE CROFT inquired what subsection (b) on page 3 and subsection (b) on page 4 do differently. REPRESENTATIVE OGAN said as he sees it, (b) on page 3 happens first, because it is not necessarily a shortage but there is just not enough to go around and still maintain the sustained yield principle as mandated in the constitution. On the other hand, he envisions that (b) on page 4 is when there is a shortage, and the boards would have already done what is in subsection (b) on page 3; it would then fall under the criteria spelled out at the top of page 5. MR. UTERMOHLE concurred. Number 0489 REPRESENTATIVE CROFT stated, "Page 3 says if the boards find that the projected level of harvest of a fish stock or game population would exceed the sustained level of harvest." He asked how the shortage on page 3 differs from that on page 4, line 14. REPRESENTATIVE OGAN answered that he would perhaps call this the extreme shortage, where there isn't enough to go around for the people who live in a fish and game dependent use area. It gets into language of "reasonable opportunity," which is defined in a later section. It allows the board to provide a preference to those people who have a true dependence, who are true subsistence users, rather than to those in the area that have good jobs, for example. He said he doesn't like the term "needs-based," and he would call it more of a resource-dependent criteria. Number 0562 REPRESENTATIVE CROFT asked, "In this general shortage on page 3, it applies to each of the areas, whether a dependent use or not?" REPRESENTATIVE OGAN affirmed that. REPRESENTATIVE CROFT continued, "In the extreme shortage, as you put there, it applies only to the dependent use areas. So, if we're in an extreme shortage in the Anchorage bowl, ... why am I not first in line?" REPRESENTATIVE OGAN replied, "Because you wouldn't be in a dependent use area, ... because it wouldn't fit the criteria. Number 0579 REPRESENTATIVE CROFT said, "So rural residents - subsistence, dependent use, whatever term we use - but rural residents go to the front of the line in an extreme shortage, but urban residents don't, for some reason." REPRESENTATIVE OGAN affirmed that, then added that there is dependence for sustenance, which has this whole criteria, and the board shall determine where dependence on fish and game is a principle characteristic of the economy and way of life of the area. He cited factors, indicating his belief that the courts have said if there are rational criteria, this is appropriate. Number 0624 REPRESENTATIVE CROFT referred to the top of page 3. He noted that the general "small shortage" provision applies equally to both Anchorage and Holy Cross. However, in an extreme shortage, a poor resident of Holy Cross gets a hard preference and goes to the first of the line, whereas a poor resident of Anchorage does not. REPRESENTATIVE OGAN stated his understanding that the Anchorage resident could go to Holy Cross and participate in subsistence taking, or could go into an area where there is this preference and participate. REPRESENTATIVE CROFT said he believes that is the way it reads, and that is what he was trying to explore. If both Holy Cross and Anchorage have an extreme crisis, the poor resident of Anchorage doesn't get the preference in Anchorage but can fly to Holy Cross and get the preference. Number 0685 MR. UTERMOHLE responded that there is no residency-based criterion; rather the criteria are the fish and game license plus the history of use. If a shortage is found to exist, every person in the state who satisfies the criteria has equal access to the available resource. Number 0724 REPRESENTATIVE PORTER called members' attention to page 5, line 26, subsection (f), which says, "A person who is determined by the Board of Fisheries and the Board of Game to be dependent on fish and game for personal and family use for sustenance may take fish and game in any location in the state where a preference for the harvest of fish or game for personal and family use for sustenance has been established under (b) of this section." He asked whether Mr. Utermohle believes that applies to both dependent use areas and nondependent use areas, although it doesn't specifically say that. Number 0803 MR. UTERMOHLE said no, that subsection (f) is specific to the taking of fish and game for personal and family use for sustenance, in an area where the preference for the harvest is established under (b) of this section. That preference for a harvest is only established in fish and game dependent use areas. REPRESENTATIVE PORTER replied, "But by definition, consumption use for personal and family use for sustenance, they would share, I guess, consideration for preference in a nonsubsistence use area with personal use permits." MR. UTERMOHLE concurred. Number 0841 REPRESENTATIVE PORTER asked whether this person that qualifies must have the $5 license and submit a written, signed statement of dependence or have no alternate means of sustenance as a result of the person's decision to adopt a fish and game dependent lifestyle. He further asked whether, if he himself qualified for the $5 license and decided to adopt this lifestyle, he would qualify. MR. UTERMOHLE said that is essentially the case, but there is a review process that the person asserting eligibility has to go through. The person must submit documents to the regional board for review and a determination of qualification; that is passed on to the statewide board of fisheries or game to make the ultimate decision. REPRESENTATIVE PORTER suggested there is no discretion to deviate from this statute in that determination by the board, however. MR. UTERMOHLE replied, "No. These are the criteria." Number 0905 REPRESENTATIVE PORTER suggested that if he was qualified to possess and did possess the $5 license, and said he wanted to adopt the lifestyle, he would qualify. MR. UTERMOHLE replied, "You enjoy the preference." Number 0926 REPRESENTATIVE OGAN commented on that, noting that they had discussed the technical portions of how that works. He explained that they had put that in there to recognize the cultural and traditional needs of some people who might live in Bethel, for example, which might have a cash-based economy. If a person has the $5 license and wants to live a subsistence lifestyle, this still allows the person to do that. REPRESENTATIVE PORTER said he could understand how they could back into something that way to try to cover the right people. He expressed concern about unintended consequences, however. He asked whether Representative Ogan had run an estimate of how many people could possibly qualify for a subsistence license under this bill. REPRESENTATIVE OGAN said no, indicating he would ask his staff to have that done. CHAIRMAN GREEN mentioned that the Alaska Department of Fish and Game (ADF&G) could furnish the number of $5 licenses. REPRESENTATIVE BERKOWITZ said from his understanding, there are 15,000. REPRESENTATIVE OGAN suggested that under this provision, they would probably see a lot more $5 licenses in rural Alaska. He expressed hope that people who buy the inexpensive licenses would then buy the tags and do the reporting, which would provide a better handle on what is being taken. Number 1006 REPRESENTATIVE PORTER referred to page 4, line 30, which reads, "(1) possesses a $5 resident hunting, trapping....", and said he would add the wording, "qualifies for and possesses...." Representative Porter said you would have regional boards and local advisory committees. He asked if the intent is that the five regional areas comprise the entire state. REPRESENTATIVE OGAN responded in the affirmative. REPRESENTATIVE PORTER pointed out the bill doesn't say that. REPRESENTATIVE OGAN said we're asking the boards to identify the areas. He stated, "If I'm not mistaken, we were talking and I don't recall if it got drafted in the bill, but I believe we were talking about having that confirmed by the legislature." REPRESENTATIVE PORTER explained that it appears that the establishment of the regional boards begins at the top of page 13. REPRESENTATIVE OGAN interjected that it begins at about the middle of page 12. REPRESENTATIVE PORTER said, "The Board of Fisheries and the Board of Game, acting jointly, shall establish a maximum of five fish and game management regions in the state. It doesn't say, 'to be comprised of the entire state', but that's the intent." Number 1111 REPRESENTATIVE OGAN stated that is want we intended them to do. REPRESENTATIVE PORTER said within each one of those regions, you want up to nine areas comprised of the entire region that are represented by an advisory committee, which is specific in the bill. REPRESENTATIVE OGAN stated that is correct. He explained the reason that was done was to cut down on the number of advisory committees. He said some people may have "heartburn" with that, but it is his attempt to offset some of the costs. There will be 45 advisory committees versus 82. REPRESENTATIVE PORTER pointed out that the committees and the boards make recommendations, as is mentioned on the applications for subsistence licenses. He said, "But you've got the recommendations of the advisory committees going to both the ... regional board and the appropriate board of fish or game, and then the board of fish and game giving deference to those recommendations. But I guess - wouldn't it be better if the advisory committees made recommendations to their board, and then their board gave deference to that if they could, or if they were conflicting, made a decision and sent on to the Board of Game or Board of Fish. In other words, it's possible that a region board could have one opinion and an advisory committee within that region have another opinion, but both of them would go to the Board of Fish and then they'd have to sort it out I guess but...." Number 1228 REPRESENTATIVE OGAN explained he has had a lot of discussions with people who have been involved in fish and game management policy. They felt that there was a lot of contention on what kind of authority was given to each committee and board. Representative Ogan said there is certainly the potential for regional boards that they have too much authority to step on another region, especially in areas where there is fish that migrate from the lower river to the upper river and would be in two different regions. He said it was felt that it is best to just to keep the advisory committees advisory because we don't want to delegate too much of the legislative authority. He noted the authority is already being delegated down to a regional board. If authority is delegated down to the committees, it would be contentious. REPRESENTATIVE PORTER said he didn't have concern with that. He said, "It was just that the advisory committee stuff going directly to the Board of Fish, that's a fish issue, and going to the regional board. The chain of command is violated, I guess, if you want to put it that way." REPRESENTATIVE OGAN explained the reason he did that is because he wanted the main boards to have the ability to give deference to what the regional boards recommended to them. He said he also wanted them to be able to pick up any proposal in case one region is stepping on another region. They can look at the rest of the proposals to see what's there. They aren't required to have a hearing on them like they currently are. Hopefully, it will eliminate a whole bunch of work, but if they see something that raises a red flag they can say, "Wait a minute, no, we need to look at that." Number 1335 REPRESENTATIVE PORTER asked if a person can be a member of an advisory committee and a member of a regional board. REPRESENTATIVE OGAN said he would think the answer is yes. He noted he doesn't believe there is anything that prohibits it. REPRESENTATIVE PORTER said, "If two or three advisory committees that perhaps had areas on the same river, and could have conflicts, had different takes on how much should be taken in their region as compared to the other two, that would want to be settled by the regional board and then that recommendation forwarded. Would that be satisfactory, or would you want that issue also the three advisory committees disagreeing recommendations to be also in front of the Board of Fish?" REPRESENTATIVE OGAN said he believes that the way the bill is written, the main boards can delegate whatever they wish to the regional boards. He said he thinks that discretion should be given to them. Number 1441 REPRESENTATIVE BERKOWITZ referred to the section of the bill that addresses the advisory votes and said as he understand, advisory votes don't have the force of law. The way it's set up on page 23, it seems to act like an enabler. REPRESENTATIVE OGAN responded that there is no doubt that it does act as an enabler. It takes effect when the people vote on it. He said he would be happy to provide two attorney general opinions that say that it is entirely legal. REPRESENTATIVE BERKOWITZ said there are 14,263 people who have $5 permits to qualify. There would be significantly a fewer number of people who qualify under the ANILCA definition. He asked Representative Ogan how his bill would square with ANILCA. He also asked if it wouldn't invite federal management. Number 1513 REPRESENTATIVE OGAN referred to AS 16.16.010 (b) of the bill and said we're allocating with the highest priority towards consumptive use for personal family sustenance. Only when there is too much of a shortage to provide for that allocation shall the other criteria kick in. He explained that hopefully under the first scenario those needs will be met. Only in very extreme shortages would the second one would kick in and possibly it be just be in a game management unit or a subunit of a game management unit. It gives the board the latitude to manage appropriately. REPRESENTATIVE BERKOWITZ said the $5 resident hunting, trapping and sport fishing license is only available roughly to 15,000 people. He stated that he understands the language in ANILCA is pretty clear that if there is a diminishment of the number of people who qualify under ANILCA, that would be the sort of discrepancy that would lead to a federal takeover of Alaska's fish and game management. Representative Berkowitz asked Representative Ogan how he reconciles the dictates of federal law with the significantly diminished numbers that would qualify under his bill. REPRESENTATIVE OGAN responded, "Very easily, if we pass this bill we're out of compliance because it doesn't give a rural priority. So we're already out of compliance and we're asking the Alaskan voters to vote on this and also give the nod for appropriate changes to ANILCA to conform with state law. REPRESENTATIVE BERKOWITZ said we're out of compliance with ANILCA under the bill. REPRESENTATIVE OGAN responded in the affirmative and said it does not give a rural preference. He said he believes the bill is more in compliance with the intent of ANILCA to meet the subsistence needs of people who have the need than what is currently in state law. He said this is not a rural priority constitutional amendment nor does the statutes in it require a rural priority constitutional amendment. Number 1708 REPRESENTATIVE BUNDE noted he has information that states the number of people who have the $5 hunting license is 14,263. He said, "And just to give you an idea that whether this would diminish opportunity if this bill were to pass ... just because that's the number of licenses doesn't mean that's number of people that ought to be buying. You know 3,500, in round numbers, were sold and Anchorage 300 in Juneau, and 300 in Fairbanks - about around 500 Soldotna and Wasilla, 3 were sold in Barrow and 0 in Venetie. So the fact that there license are being purchased that are not purchased doesn't diminish opportunity." Representative Bunde pointed out a concern of his is that there is always a shortage. He read from page 2, subsection (6), line 5, "these resources are not unlimited and cannot provide for every desired use, now or in the future;". Representative Bunde referred to page 3, (b), and said, "And it talks about this will only apply if there is a shortage. I mean are we mincing words? Should we just say there isn't enough?" REPRESENTATIVE OGAN said that on page 3, (b), just says that there is not enough projected level of harvest. He said, "In other words, 'projected level of harvest' I think you could probably envision as this is what the historical harvest of this has been and suddenly this drops below the projected level of harvest. We're giving the board the authority to allocate with the ranking to the highest preference to consumptive use for subsistence or sustenance or whatever you want to call it." REPRESENTATIVE BUNDE referred to page 2, (6), and asked if he is wrong to say that a shortage will always occur. Number 1884 REPRESENTATIVE OGAN said he believes it recognizes that. He stated these resources are not unlimited and cannot provide for every desired use now or in the future. REPRESENTATIVE BUNDE observed that Alaska has a lower number of wild game, per square mile, than many other states in the nation. He referred to page 5, line 5, (B)(ii), "the person's decision to adopt a fish and game dependent life style." Representative Bunde said he thought he heard Representative Ogan say it allows people to pick and choose. He gave a scenario of a person who is a fisherman in Kodiak. When the person lives in Kodiak, he lives what Representative Bunde would call a fish and game dependent life style. This person also has a second home in Seattle and lives about half the year there. Representative Bunde said when this person comes back to Alaska, would he get to choose to have a dependent live style even though they're wealthy enough to live half of the year out of the state. REPRESENTATIVE OGAN said he doesn't believe so. He said the residency statute became law the first of the year which tightened down a lot of the old language. He said the old language maintains that a permanent place of abode could be interpreted as a cabin in Alaska. A lot of people maintain Title 16 residencies that didn't qualify for permanent fund dividend checks. It was changed to domicile. "Domicile" defined in Black's Law Dictionary is principle place of residence. He said the description has been tightened quite a bit. Number 2033 REPRESENTATIVE BUNDE said what if the person chooses not to live in Seattle, but does choose to live in Anchorage. He is wealthy enough to have two legitimate homes and lives part time (indisc.) dependent in Kodiak and part time in downtown Anchorage. CHAIRMAN GREEN said he wouldn't qualify for the $5 license. REPRESENTATIVE BUNDE said it says, "or". CHAIRMAN GREEN said he has a $5 license and some of those other "ors." Number 2067 REPRESENTATIVE JAMES asked what the purpose of establishing a dependent use area. REPRESENTATIVE OGAN pointed out that it is currently in state statute. He said, "We wanted to make sure that we can provide for people that have a true subsistence need or life style that are dependent on the area. I think ... if we establish a reasonable criteria and with the criteria that we've got here on these 14 or whatever points, are that we can give a preference of the use of fish and game to people in those dependent areas." REPRESENTATIVE JAMES asked Representative Ogan what kind of a different use would he expect for the people that live in the dependent use area as opposed to those who don't. She said if there is someone in Palmer who is currently living a subsistence life style, meets all the other criteria, but doesn't live near a dependent use area or an area that's not assigned as a dependent use area. She referred to a person who has the same qualifications in some place that is a dependent use area and asked if they would have more of a priority. REPRESENTATIVE OGAN stated that in times of shortage, if you live in a dependent use area and qualify under the $5 criteria, you would have preferential use of fish and game. Number 2194 REPRESENTATIVE JAMES pointed out that the committee heard Mr. Utermohle say that during a shortage, that would apply to anyone across the state. She asked if that means if there is a shortage in one of the dependent use areas that the person from Palmer can go there or must he stay and hunt and fish in the area that is not considered to be a shortage. REPRESENTATIVE OGAN stated he can hunt in any area in the state, including the areas that have a restriction. REPRESENTATIVE JAMES asked what there is a need for a dependent use area. It looks like it doesn't have a purpose. REPRESENTATIVE OGAN pointed out that it has a purpose of identifying areas of the state where the economy and the historical and social economic values, and a whole bunch of other things that are in the criteria, are the way of life. REPRESENTATIVE JAMES said it doesn't give him any more of a benefit for being there in this case. REPRESENTATIVE OGAN stated he believes it does because in times of shortage people in those areas that possess the $5 criteria have a preference. Number 2303 REPRESENTATIVE BERKOWITZ said based on the benefit, depending on where you live, we can draw distinctions based on $5 users. REPRESENTATIVE OGAN said he would defer to Mr. Utermohle as he is more familiar with the constitutional authorities. REPRESENTATIVE BERKOWITZ said, "As I understand what Representative Ogan said, he said that people who live in dependent use areas gain a benefit from being in those areas as opposed to people who aren't residents of those areas. Therefore, it appears to me as of what he's saying is that we can distinguish between people based on their place of residence." CHAIRMAN GREEN informed Representative Berkowitz that was a question that was asked earlier and he was going to think about a definition. Number 2388 MR. UTERMOHLE explained that in the process of allocating access to fish and game we cannot make determinations or restrictions on access based on where you live in the state. CHAIRMAN GREEN said that because of the de facto, you are because of the low income level necessary to qualify for a $5 license. MR. UTERMOHLE stated that by virtue of providing for access to a user group, we are implicating the equal access provisions of the Alaska Constitution. He said as long as you're not making access to a user group based on geographic criteria, the criteria you use is subject to an equal protection analysis. He said, "The importance of the state interest -- the state is trying to pursue by creating this criteria versus the important individual interest ...." TAPE 98-34, SIDE A Number 0001 MR. UTERMOHLE continued, "...means chosen to achieve its end has the least infringement, or least restrictive method on access to fish and game. And that's the steps the courses go through and that's how you would determine whether or not a $5 license requirement would survive scrutiny under the Alaska constitution. The nonsubsistence areas have been upheld in the Alaska Supreme Court just because they don't prevent someone from going into a subsistence area and engaging in use of fish and game for food. Just because someone lives in a subsistence use area or doesn't is not unconstitutional classification of residence of the state. People outside living outside the area are free to go into those areas and engage in uses of those resources for fish and game." Number 0099 REPRESENTATIVE JAMES referred to the current law and people who qualify for the subsistence life style in rural Alaska according to ANILCA and asked if these people have to purchase a hunting and fishing license. REPRESENTATIVE OGAN said he believes they have to get some sort of a permit. He said that Mr. Utermohle may know something about it. MR. UTERMOHLE said, "I cannot answer what the license requirements are under the state law or under federal requirements." REPRESENTATIVE JAMES asked if the subsistence qualified people are allowed to hunt without seasons and bag limits. REPRESENTATIVE OGAN said to the best of his knowledge, no. Number 0249 REPRESENTATIVE ROKEBERG asked if the House Resources Committee considered reviewing the $5 license criteria and raising the level of income in consideration of adopting it for the current version of the bill. REPRESENTATIVE OGAN said the committee tried to keep it as simple as possible and just cited the Title 16 authority for the $5 license. He noted that to do that he believes you would have to change the criteria under AS 16.05.340 (A)(6). REPRESENTATIVE ROKEBERG referred to the current version of the bill and said there is a need for review by the regional boards of the applications. One of the criticisms of this type of program has been the overwhelming amount of administrative work, detail, et cetera, that would be forced upon these people that (indisc.) qualify. He asked Mr. Utermohle if it would feasible to draft language that would put the burden of proof on the individual applicant after a very simple applicant. If he was, in terms of enforcement, going to make a violation or didn't qualify, could it be enforced from that aspect. In other words, set up a very simplified application and enforcement system where the burden of proof would be on the individual when he was caught as an infraction or some kind of a rebuttable presumption. MR. UTERMOHLE said he suspects that is quite possible. Number 0398 REPRESENTATIVE OGAN said there was a great deal of criticism about that and that is one of the reasons the committee dropped a lot of the criteria for qualifying. In the previous version of the bill there was almost a full page of qualifications. It was simplified greatly to try to mitigate that concern. CHAIRMAN GREEN stated HB 406 would be addressed again the following Wednesday.
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