Legislature(1997 - 1998)
03/18/1998 01:15 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 124 CHAIRMAN GREEN announced the committee would hear HB 406, "An Act relating to subsistence uses of fish and game." [NOTE: THIS PORTION OF THE MEETING WAS TRANSCRIBED VERBATIM] CHAIRMAN JOE GREEN: This is sometimes referred to as the subsistence bill. We have had some hearings on it already. We have a couple of others that I think are going to be very germane to the subject, and obviously as the audience would indicate, you're all here and eager in anticipation. The first person we have to give us a presentation is Former Attorney General Charlie Cole. General Cole, would you please come forward and give us your input on this issue? For the record, we have a full house. Number 0223 FORMER ATTORNEY GENERAL CHARLES E. COLE, MEMBER, GOVERNOR'S TASK FORCE ON SUBSISTENCE: With the permission of the chairman, I'd like Byron Mallott to join me. CHAIRMAN GREEN: Certainly, certainly ATTORNEY GENERAL COLE: He's promised to hold my hand so... CHAIRMAN GREEN: I would ask if you are going to talk back and forth that, for the record, if each of you would identify yourself so that when the minutes are taken they'll know who is saying what. Representative Cole, excuse me, Attorney General Cole. ATTORNEY GENERAL COLE: Thank you, good afternoon Mr. Chairman, ladies and gentlemen of the committee. It's a pleasure to be back testifying again. Thank you for affording me the opportunity to appear here together with Byron Mallott. Together we served on the subsistence task force and collectively drafted a proposed constitutional amendment and proposed legislation. And with your permission, today I would like to take a moment and express some background to the problem as we saw it when the task force began its deliberations. I have ... prepared and brought here today and placed on the wall a map. It's (indisc.) to depict the lay of the land. The lands marked in yellow with black cross-hatching are lands owned by the state of Alaska. The other lands in various colors are lands owned by the United States of America. In general, the United States and Alaska owns approximately 245 million acres. The state of Alaska owns approximately 103 million acres. Native corporations own approximately 44 million acres. Now I think the starting point, with respect to this map and the discussion today, lies with the powers of the United States to deal with the lands which it owns in Alaska. The United States Supreme Court has said in several cases, but most recently in Kleppe versus the United States, which I'm sure most of you have read, if not all of you, is that the powers of the United States under the property clause to deal with these lands are virtually unlimited. The court, speaking through Justice Marshall, said almost those precise words in the Kleppe case. Somewhat left open in that case was the extraterritoriality powers of the United States over lands not owned by it. But it is clear, through a long series of decisions of the United States Supreme Court that the United States has, as I say, virtually unlimited powers over those lands - number 1, and it owns those lands and can legislate with respect to those lands in two capacities. One, as a landowner of those lands. It owns those lands and it has what ... we would customarily assume to be the powers of any land owner over those lands. As the court has said, it may restrict the people who enter upon those lands and it may qualify their rights to enter upon those lands and to occupy them. And it also has the power over those lands as a sovereign, you know exercising police powers over those lands, so it has very broad powers over those lands. Secondly, the state of Alaska, of course, by the same general token, has powers over the lands it owns. And the state, acting through the legislature, and agencies of the state, has exercised those powers to regulate the taking of fish and game on those lands owned by the state. In addition, there is two things which I think should be mentioned with respect to the various powers of the sovereigns dealing with the land shown on that board. And one of them is, as the supreme court of the state of Alaska has said, the state of Alaska has the power to manage fish and game on federal lands except where the exercise of the state's power over those lands conflicts with federal action. And the Alaska Supreme Court said that in the Totemoff case decided in 1995. And so although the state does have powers over fish and game and over the federal lands, it may not exercise those powers in conflict with the exercise of federal power over its land. That's number one. Number two, to keep in mind with respect to these powers is the fact that although one court of appeals is said -- left open in the Kleppe case was the extraterritoriality powers of the United States. It's clear that the United States has the power to exercise it's powers, under the property clause, over lands not owned by it - lands and waters not owned by it to the extent that the exercise of those powers are necessary to effectuate policies underlying federal actions. The case is Minnesota versus Block in the Eighth Circuit. So where does that get us today? Well, where are we? Well, we know that the United States, acting under the powers - the property clause and purportedly acting under the powers of the commerce clause, and maybe the powers that regulate Indian Affairs, I think those powers are a little thin to the extent they purport to support ANILCA [Alaska National Interest Lands Conservation Act], but Congress has said, "Look on these lands rural residents shall have the power in the taking of fish and game for subsistence purposes, a priority for that purpose." And the federal government has also said, "Well, I'll make you a deal, if you want to grant a general power to, by general legislation, to grant ... a priority to rural residents for the taking of fish and game for subsistence purposes, we'll let you do it. You could do it. The only thing you have to do to manage fish and game on federal lands is to grant this priority to rural residents." And that's we are today. Well it worked, as you know, pretty well for awhile and then the Alaska Supreme Court said, "Oh, by the way, you can't grant that special right, if you will, to rural residents under the Alaska Constitution." And so it struck down Alaska's management of fish and game on federal land. The whole problem and somewhat is complicated by the decision of the Court of Appeals for the Ninth Circuit in the Katie John case. And it held in that case that whereby previously the state had had the power and the acknowledged power to manage fisheries. The Court of Appeals said in that case, "Well, in order to really effectuate the rural priority or the management of fish we have to figure out, I know if you will, a power of the United States to manage fish in navigable waters." And so the court came up with the bright idea - the learned court I might say, I want to give the court its do, that the federal government has reserved water rights in its lands where those navigable waters are, you might say, contiguous or run through federal lands. And that was sort of a shock, if you will. It was a shock to me and I'm sure to many others, is that suddenly with that case we have the power being granted to the United States to essentially manage fishing in all navigable waters in the state. Now you say, "Wait a minute, Mr. Cole, don't get ahead of yourself." The Court of Appeals said, "Well we only have that power in the United States to the extent that these waters are adjacent or contiguous to federal lands." Well, if you look at that map, you will see the vast reaches of that power to regulate fisheries in navigable waters within the boundaries of the state of Alaska. The United States, by virtue of that decision, can regulate fishing in vast areas of the state as shown there. But you see the exercise of that power does not simply stop in those colored areas - areas colored other than yellow, because clearly you know the federal government will say, "Well for us to effectively regulate subsistence fishing in these areas colored other than yellow, we must regulate fishing along the entire stream of the Yukon River and the various other main water arteries throughout the state." I mean obviously you know they will say that at the first profibrial (ph) rattle out of the can. You know too that exercising the powers granted the United States under the Block case, I mean they're going to say why these caribou herds cross from the pink lands over there to the yellow, back and forth. And we can't allow the state of Alaska to be managing the caribou herds over there in those yellow lands, because when we come back the herds will be decimated when they come back over those colored areas - areas colored other than yellow, and there won't be anything left and that will impact adversely upon the subsistence rights management. And they will say the same thing with fishing. They say, "Well we can't allow all this fishing to be taken down at the mouth of the Yukon. How can we guarantee a priority to fishing up in the Porcupine area while you've intercepted all of the salmon down at the mouth of the Yukon?" So that's where we are today. And the issue is, as I say, for this legislature, for the people of this state is to say, "Do we want to accept the federal government's offer to regain management of fish and game in Alaska, or don't we?" Because in essence we have to accept, in my view, the offer of the United States under ANILCA and essentially ... if we want that, but there is no pressure on this legislature - legal pressure for the state to accept that offer. It may do it and it may not. That's a decision left to the people of the state of Alaska. Now what did we do in the task force when we faced these issues? Well, at least I - I'm not speaking for the legislature - one, I thought it was vital, vital that the state regain management of fish and game. I mean I thought that was the central proposition that we had to get it back. I mean that was the statehood battle to get it back. And now we're in danger of not only losing it on the federal lands, but if my view is correct and I think it is, we're in danger of losing it throughout all lands in the state of Alaska. Number two is on the task force I was concerned that if we ever lost it, we may never get it back. You'll recall, within the Stevens' amendments, there is statutory right to regain management. That's in the Stevens' amendments. It's not clear otherwise that ... if we let this opportunity pass by today that we can say, "Well, we will change our mind next year and get it back," because I'm not certain that we can get it back next year if we should change our mind. This may be a fleeting opportunity and perhaps in our lifetimes, certain maybe mine - maybe not Mr. Berkowitz's, we may never have another opportunity to get it back. This may be it. So the decision which you people face ... has consequences. Another view I had when I was on the task force is you know I had the sense that may ... historically have had the sense that really Blackstone was probably right. You know possession is nine points of the law in a broad sense. And what does that mean in this context? Well I'll tell you what it means in this context. If we get management back ... then we can have the opportunity to make changes in the future to ANILCA that we think we would like to see. We can expand the scope of our management powers maybe slowly, maybe in perceptively, but we can work to that end. But we are in control with respect to the management at that time. And what's the converse of that? Well the converse of that is if we don't get it back now, then the federal government is in control. And the federal government will then seek to expand it's powers. You know, creeping powers, we know that. It's all been subject to creeping and federal powers. And they will continue to expand those powers. They will solidify their hold on those powers and, as I say, we may lose essentially these rights forever. So what did we do in the task force ... what we did we said our fundamental approach was that it will be very hard, if not impossible, to make major, major changes in the rural priority under ANILCA. We didn't think, I didn't think that it would be possible for us to repeal or amend the basic rural priority. So I said - others on the task force said, "Well look, there is some really fundamental flaws in ANILCA that we think that we can change, legislatively - like deference to state court actions." We lost that issue in the Court of Appeals. We thought we wanted to get that back because we thought it was important. And we wanted clarify the definitions of rural, and we wanted to clarify the non-definitions, if you will, of customary and traditional. So ... we came up with proposed amendments for those purposes. And we recognized that it would be necessary to amend the constitution in order to effect legislation complying with ANILCA, so we proposed a constitutional amendment. We left out of that constitutional amendment the word rural. We gave the power to the legislature to say you can grant a priority for the taking of fish and game for subsistence purposes and uses based on place of residence. But we didn't enshrine rural into the constitution, we left it out. And that is what we propose to the legislature. We recognize that our work product was not perfect, that there would be other views, but we thought it was a workable proposition. And Senator Stevens, you might say, was successful in putting those amendments into ANILCA. And it's very important, in my view, that if we do not regain management pursuant to the Stevens' amendments that we will lose those highly beneficial amendments to ANILCA. I mean they're conditioned ... on acceptance by the state of Alaska to regain management. But I don't think people generally recognize I mean how important that deference is to state administrative actions is. It's a highly important and beneficial provision, and so are others. Now what's the downside that you people face? Well look, I mean we know that there is - not easy to amend the Alaska Constitution, to strip away these principles of equality which are contained there. I felt, myself, that restraint and there is something sort of inside that says ... this sort of rubs me the wrong way. But on the other hand, myself, I said, "I think that the prize is worth the candle." I think we have to get management back and I think the price is not too great. The amendment to the constitution is not taking away the rights of free speech, or the right to free assembly, or the right to freedom of religion, free speech, or against unreasonable searches and seizures. As I've said before, if we sought to take away those rights I would be among the first to the barricade, but this is not, at least in my view, but I know it is in some, a major change to the constitution. After all, the legislature has vast powers, it has powers over the exchequer, it has powers over state lands and this is not a major leap giving the legislature more power. So with ... those thoughts in mind, I decided to support the task force proposal and I urge you ladies to do the same. I think that overall, it's in the long range best interest of the state and I think it's vital that we regain management. Thank you. Number 0519 CHAIRMAN GREEN: I have a couple of questions and there may be some others. I don't want to short anybody who is going to be testifying, but one of the things you have referred to repeatedly is the vastness of this and the vast management of capability of the federal government. There are some people in the state that think that's only half right. Anyway, I do have... ATTORNEY GENERAL COLE: Well, what's the other half? CHAIRMAN GREEN: They think it might be half-assed. ATTORNEY GENERAL COLE: I see. CHAIRMAN GREEN: Anyway, what I... ATTORNEY GENERAL COLE: You mean the federal management? CHAIRMAN GREEN: Yes. The question I do have is that some people have indicated that we made a contract at statehood with the federal government and that now, unilaterally with ANILCA and subsequently with other demands that may be coming from people within the current Administration that they are unilaterally changing that contract. And the question that has come up is that if we were to do this, if we were to modify our constitution and quid pro quo something, how much assurance do we have as a state that they wouldn't renege again or continue to demand other things until we finally get it their way? Number 1585 ATTORNEY GENERAL COLE: Look, we know the word of the United States is no good. We've had a judicial declaration of that not so long ago. That, again, was worth the price we now have that's sort of indelibly in the federal books that the statehood compact was not really a compact at all. All of us who were here and voted for statehood thought a compact made a contract. We're wrong, disillusioned. I've always thought that if the United States, the day after statehood was proclaimed, it said, "By the way we're setting aside all these lands, we're taking them all back." I mean this ... state would have been in an uproar. But ... the federal government in its customary actions has managed to do over a period of time, which it could not have done ... immediately. So we know it's no good. But here is the thing, I know that's a risk but I have the sense that that risk is not great. I have the sense that it's ... not great. And furthermore, ... the constitutional amendment simply gives the legislature the power and if it comes when a point when the United States wants to change the rules again, simply say, "Well, I mean we will repeal our legislation, you manage your lands, we'll manage ours," and life will go on. I mean we're not bound to act pursuant to ANILCA's dictates, if you will, and perpetuity. We can back out of that deal any time we want, and if the existing legislation is successful then this legislature can simply repeal the ANILCA legislation and we will be back to square one. REPRESENTATIVE SCOTT OGAN: Mr. Chairman. CHAIRMAN GREEN: Yes, Representative Ogan. REPRESENTATIVE OGAN: I think maybe Representative Bunde had a question first, but if I could get on the list I'd appreciate it. Number 1685 REPRESENTATIVE CON BUNDE: It was on your point I guess. CHAIRMAN GREEN: Oh, alright. I don't have any of those -- Representative Bunde. REPRESENTATIVE BUNDE: Thank you, Mr. Cole. I think you used the term "capitulate" which causes a lot of us subtle heartburn, and the creeping powers. And just related to Representative Green's concerns that, you know, trust me I'm here from the federal government, I'm here to help -- that there is a concern that our only card in this game is the constitutional amendment. And I think the practical realities are once we play that card, it's going to be very difficult. You've said we could repeal it with (indisc.), but the chances of repealing a constitutional amendment are probably just as challenging as getting on to even more so. And if I understood you correctly - you say that's all a possibility. We just sort of have to trust and go along. Is that... ATTORNEY GENERAL COLE: Well, here's the thing. What's the downside of not regaining federal management now? I mean if we don't regain federal management now, all the parade of horribles will come to pass. Now do we want to accept that parade of horribles and say, "Look, you take it over. You know you wind up managing exclusively fish and game in Alaska. We no longer have maybe the chance ever win in our lifetimes to get it back. It's gone." I mean that's the option. I mean that's a very possibility. And so recognizing that, do we want to ... accept - in my view, you might say in some respects the lesser of evils and regain management and keep our fingers crossed, because if they change the rules in the future we're no at worse off than if we did nothing. CHAIRMAN GREEN: Follow up Representative Bunde. Number 1776 REPRESENTATIVE BUNDE: Continue ... and regaining management to me says that we also deal with allocation. And it's been my concern that allocation issues would indeed be fought in federal court. So even though we thought we were managing, the ultimate management would still be in federal court, and you mentioned the fish up river and the commercial fishermen in the ocean. In you're opinion, would that not be fought out in federal court? ATTORNEY GENERAL COLE: No. That's - would be within the powers of the Board of Fish. And the actions ... of the state boards would be given deference under the Stevens' amendments and the task force proposal as administrative agencies of the state, when the issue was presented to the federal court. But here's one thing I think is important and should not be overlooked. It's one thing ... for the state to be totally out of compliance with the fundamental rural priority, which came under the McDowell decision. It's another thing to say, "Well, we don't have the various -- we haven't given the various rights to individual rural residents and they don't have their priority." Those are things that would be corrected by administrative action. But as I have said before, and I want to make the point clear here, never will we be able to avoid the so called federal court oversight. I mean these are lands owned by the United States. Management - ANILCA is a statute of the United States and the federal courts are always going to have the power to interpret and apply federal statutes. But I mean after all, the United States owns these lands, I mean it has the right to regulate rights in those lands and we aren't ever going to succeed in depriving the Congress of the United States of those rights and we just have to face it. But I don't think that the risk, because there is going to be decisions in the federal courts - statute is such that it ought to restrain us from regaining management. We have to regain management. We have no choice but to regain management. REPRESENTATIVE BUNDE: Just so that I understand very clearly, you feel that allocation issues, that are decided by the board, while they would be fought out in federal court, the board would have greater standing than whoever was brining the complaint? ATTORNEY GENERAL COLE: Yes, because that is very thing, and I say, it's highly important, it's contained in the Stevens' amendment. The state of Alaska, in litigation, sought to have the federal courts give deference to actions of the state boards of fish and game. The Ninth Circuit said, "No, we will only give that deference to federal agencies, we will not give that deference to state agencies." But the Stevens' amendments provide, task force and Stevens' amendments, provide that the federal courts must give deference to actions of the state agencies. And that means ... in a sense of vernacular that the state agencies will have the leg up. Now does that mean they can do anything they want? Of course not. They have to do ... "the right thing." They have to make reason decision. But if they make those reason decision, and have a substantial basis for their decision, the federal courts are going to approve them. There is no doubt in my mind about that. CHAIRMAN GREEN: Representative James. Number 1937 REPRESENTATIVE JAMES: Thank you. Well Charlie, it's good to see you here today. We've talked a lot, haven't' we? ATTORNEY GENERAL COLE: Thank you for your letter, I haven't responded to it but.... REPRESENTATIVE JAMES: Well, I didn't expect you to. I just have a few questions here. First of all, who owns the animals and the fish in the state of Alaska? ATTORNEY GENERAL COLE: Well let me tell you. I'm not sure that anybody knows that, but I know, regardless of who owns them, when they're roaming free - I'm not sure anybody owns them when they're running free or if the fish is in the stream, or the animals are ... galloping across the tundra because nobody is ... have dominion over them. I've never really gone to the law review articles and ... tried to put my finger on that. But the fact of the matter is, in response to your question, when those animals are on federal lands, the federal government has that great concept of who owns them because they can say, "You can't shoot that animal, you can't take possession of that animal, you can't even come on lands if we don't want you to." They run the show and they have total and complete power to do that. REPRESENTATIVE JAMES: The next issue is totally different. CHAIRMAN GREEN: Representative James. REPRESENTATIVE JAMES: Yes, if I might. I've got ... two more. CHAIRMAN GREEN: Well there is several people. Take your best shot first and we'll move around and come back to you. REPRESENTATIVE JAMES: Go ahead. ATTORNEY GENERAL COLE: Don't strike, in my heart, the first shot. CHAIRMAN GREEN: Representative Berkowitz. REPRESENTATIVE BERKOWITZ: I thought Representative Ogan was.... CHAIRMAN GREEN: Representative Ogan, I had him after you but.... Number 2016 REPRESENTATIVE OGAN: Thank you Representative Berkowitz. I'd like to make a couple of real brief statements about some of the things you said on the record and ask you a question. We'd regain state management but, in fact, we have to adopt the federal law, ANILCA, into our statutes and our constitution -- and adopt a federal form of management and if we're out of compliance, the highly beneficial I believe you used the ANILCA amendments that Senator Stevens made (indisc.). One of them is in accordance with Title VIII of this Act, the Secretary of Interior is required to manage fish and game for subsistence uses on all public lands in Alaska because of the failure of the state (indisc.) provide a rural preference. So it actually expanded the authority -- does not take effect until we adopt the constitution or rural priority in our constitution, contrary to what Senator Stevens said on the floor. But I'll try to keep this brief. You're right, the word was no good on the statehood compact. I guess the main question I have is two things. The Alaska Supreme Court said that the rural priority, and the one basic fundamental right that you left out was equal protection. They said it was an equal protection case and easy one at that. Is that a correct quote of the Alaska Supreme Court? And ... we also have the authority, under Article VIII, Section 4, of the constitution, the ... sustained yield we give preferences amongst beneficial uses, and the beneficial use of fish and game can be subsistence. And so we can give a preference, in times of shortage, sustained yield, for subsistence. And given that, we already have the authority to provide that discrimination and provide for that need. Is that not correct? ATTORNEY GENERAL COLE: Well that may be so, but we do not have the authority to grant a priority to rural residents... REPRESENTATIVE OGAN: Because of equal protection. ATTORNEY GENERAL COLE: No, because ... of the not equal protection clause, but because the common use provisions of the constitution. That's where the Alaska Supreme Court hung its decision. REPRESENTATIVE OGAN: One follow-up. CHAIRMAN GREEN: Representative Ogan, I've given you some deference now. If it's discussion and you want some clarification - testimony, that's one thing. I don't want to get into a debate. REPRESENTATIVE OGAN: I'd like some clarification. CHAIRMAN GREEN: Alright. Number 2116 REPRESENTATIVE OGAN: If I'm not mistaken, the supreme court did say that it was an ... a rural priority case - the McDowell case was an equal protection case, and an easy one at that. Is that correct? Is the supreme court... ATTORNEY GENERAL COLE: They mentioned that but the proposed amendment would, you might say, trump the equal protection clause in this area. CHAIRMAN GREEN: Representative Berkowitz. Number 2140 REPRESENTATIVE BERKOWTIZ: General Cole. ATTORNEY GENERAL COLE: Yes sir. REPRESENTATIVE BERKOWITZ: You've read HB 406? ATTORNEY GENERAL COLE: Yes. REPRESENTATIVE BERKOWITZ: Do you think it would prevent federal takeover? ATTORNEY GENERAL COLE: It would not prevent federal takeover. CHAIRMAN GREEN: Representative Porter. Number 2146 REPRESENTATIVE BRIAN PORTER: Thank you, Mr. Chairman. Attorney General Cole. ATTORNEY GENERAL COLE: Yes sir. REPRESENTATIVE PORTER: One of the perhaps only consistent thing that I have been able to find in talking to people around the state is an agreement that in a time of shortage, most everyone would say a person who has customarily lived by that fish or game and depends on it for sustenance should have a priority in the time of a shortage. That may sound like a needs-based criteria, but maybe it's half a needs-based criteria, if you will, but did the task force dismiss that out of hand or was there discussion about it? Or what was... ATTORNEY GENERAL COLE: We looked at that, discussed it at length. The problem is ... we're faced with ANILCA. We're faced with rural residents priority. I at least, and I don't speak for -- maybe Mr. Mallott wants to comment, but I didn't think we could make a major change in that area. Now ... if you read the media now, I mean I hear what Senator Stevens said yesterday, I've heard what Senator Murkowski has said, and if they're sending a signal to the legislature that they can change ANILCA and the fundamental precept of preference to rural residents, well then ... you should perhaps take what I've said here today and ... give it the deep six ... and say, "Well we're going enact our own legislation. We're going to take the implication of what Senator Stevens, Senator Murkowski has said that they can change ANILCA and the rural residents, and Secretary Babbit will seek not to have it vetoed and it be fact accompli." That's a horse of a different color and he ... people were here - in Washington, D.C., I should say, over the weekend and you have the sense of ... what you were told. I don't have that. So all I am saying is that were in the task force - we thought that ... we couldn't change that. And it's true, as the Alaska Supreme Court said, rural residents is over inclusive. By that is there are people who live in rural areas who really don't live a subsistence life style, and it's under inclusive because there are people who live in other than rural areas who essentially do lead a subsistence life style. So the Alaska Supreme Court says, "It's a bad fit," in the sense that we ... have constitutional restraints on us to require a better fit. Now the United States does not have those constitutional restraints. So we looked at that carefully on the task force. Would you agree with that Mr. Mallott? Number 2286 BYRON MALLOTT, EXECUTIVE DIRECTOR, ALASKA PERMANENT FUND CORPORATION; MEMBER, GOVERNOR'S TASK FORCE ON SUBSISTENCE: Mr. Chairman, my name is Byron Mallott, and I'd like to make two quick comments with respect to the discussion that's taken place thus far. First, in direct response to the question. During the task force deliberations, we were very circumspect and circumscribed in what we did. We determined that our role was to get ... state management back as has been emphasized by Mr. Cole. And so that was a critical priority and so we did not move far (indisc.). We did look because Senator Murkowski, during the course of our deliberations, and I think in conjunction with Congressman Young, put at least the framework of a needs-based proposal on the table during that period. And we spent some time with it, but again, in keeping with that fundamental notion that we wanted to limit our task to doing two things, and they were clearly articulated at the outset -- is to get state management back - to bring the state into compliance with ANILCA, and to recognize the importance of the subsistence priority to Alaskans and to get that back. My other comment, Mr. Chair, and it's in response to the questions that have been asked. And I want to say this very carefully, but I think it's important and I'm speaking not for myself. I will say this for myself, I'm proud to be a citizen of the United States. I'm proud that Alaska is among the 50 states of this union. I do not shrink from that in any way, shape or form. I recognize the obligation we have in order to ... maintain our rights as a state within that federal framework, but I welcome the challenge when I consider what the alternatives might be. Secondly, I want to say that the same view that some share about the state/federal relationship exists with respect to the rural/state relationship - that there are folks out there right know, and I just came from the first meeting of the Rural Governments Commission, and I've spent considerable time on this subject of subsistence with rural folks. Particularly Native folks see a bill before the legislature to reduce rural educational funding and move it to urban areas, when there is bill before the legislature to impose a tax only in rural areas, when rural people see legislation to impose mandatory governments in those areas even though most involved probably recognize that some of that legislation ... will not get passed. The very fact that they are there is very chilling to the ... relationship. And so you see rural people saying, "We kind of like the idea of the federal government being out there to protect our interest if it comes to that." Having said that, there is also a very strong desire, it is almost universal. The theme of the next AFN [Alaska Federation of Natives] Convention to be held in October in Anchorage is celebrating the involvement and the pride of the Alaskan Native people in defending their country - celebrating the Alaska National Guard, the history of the Alaska Territorial Guard, the involvement of the Alaskan Natives in the military of this country. So there is a strong desire, at the same time, to be part of making Alaska work and, of course, being part of a country. And I say that because what we're doing here is not being done in a vacuum, that if ... AFN has not been at the table, AITC [Alaska Inter-Tribal Council] has not been here, RurAL CAP [Rural Alaska Community Action Program] at least institutionally. And at some point, I assume they will make their views known. If they do not feel that those views have been made appropriately known here, they will take them to Washington and ... they will make common cause of the Secretary of the Interior, or with others. And that does not advance the... TAPE 98-39, SIDE B Number 0001 MR. MALLOTT: ...the process as you're committee moves it forward and as the legislature continues to move it forward (indisc.) inclusive of all of the interests and the institutions, and ultimately the individuals that will be impacted by your decisions. And I know that that is you're desire, Mr. Chair, I just wanted to emphasize it. Thank you. CHAIRMAN GREEN: Thank you, Representative James. REPRESENTATIVE JAMES: Just one more question. This is for Charlie, and I have been reading ANILCA a lot these days and I've listened to Senator Stevens in his ... talk on this. And ... he pounds the table and said, "The federal government has a right to do this for the Native people." I agree with that 100 percent. Then he turns around and like giving an excuse as to why this isn't a racial issue, which I don't consider Native and non-Native as a racial issue - it's aboriginal and non-aboriginal, which is totally different than other races. And then says that 50 percent of the people included in this are non-Native. So why wouldn't ANILCA, if they want to do what it is that they're wanting to do, why don't they just go through ANILCA and take out non-Native every time and just have it be a rural/Native preference? That would achieve the goal that was intended in the first place and we wouldn't be having a problem today because Article XII of our constitution would allow us to implement that. Number 0062 ATTORNEY GENERAL COLE: Is that a question? REPRESENTATIVE JAMES: Yes please. ATTORNEY GENERAL COLE: I don't know. I mean Senator Stevens is there in Washington, D.C., Senator Murkowski is there in Washington, D.C., Representative Young is in there, but I've never heard them give that sense that they would. But my sense is, and I want to say this again because I think it's vital to the deliberations of this group and the entire legislature, I don't think that certainly between now and December 1, or January 1, it is going to be possible to significantly amend the rural priority in ANILCA, and I think we have to face it. And I think ... this [HB] 406 and 375, or whatever these bills are, I mean I think they're not going to get there. I mean we have to say if we're going to regain federal management, we have to comply with the requirements of ANILCA to get it back. And I think the decision of this group, and the entire legislature is are we prepared to do it, or we aren't. And if we are prepared to do it, we ought to bite the bullet and get it back and go from there. And if we're not prepared to do it, I'd think all these efforts to ... screwing around the shirts, if you will, of ANILCA is just being divisive for the reasons that Mr. Mallott said. I think it takes an incredible amount of time of this legislature and the people of this state. Nothing will ... get the job done unless the recognize and accept the rural priority requirements of ANILCA and face it. Now that's what I said in my letter. I mean either ought to just say let's make the leap and do it, or we should wash our hands and say let the federal government take over -- except Senator Stevens and Senator Murkowski say that they can change ANILCA as the fundamental rural priority, maybe you want to take them up on that. CHAIRMAN GREEN: Thank you, Representative Rokeberg. Number 0145 REPRESENTATIVE ROKEBERG: Thank you, Mr. Chairman, I would like to kind of shift the focus a little bit and be a little more specific. And basically, I sort of direct it to both - to the witnesses, but most particularly Mr. Cole, as it relates to the deliberations of the task force and looking at the history of ANILCA. And it's my understanding, Mr. Chairman, that the current state statutory language on subsistence - the task force language, obviously, and then the existing House Bill 206, as well as ANILCA with the Stevens' changes, I'll assume that all species are of equal value when they're defining customary and traditional use and implementing the statute to the way it works. Now that's -- there is a - the theory that it does that, I'd like you're opinion on that, number one. Then there is a theory also that ... Congress especially declined to define customary and traditional, historically, because it would force a movement away from a case- by-case approach in looking at the scientific game management of a particular species. And I think, Mr. Chairman, that's one of my major concerns because the task force recommended to ANILCA that they amend and provide the definition of customary and traditional, which has been ... a thorny issue for years. But I guess one of my major concerns is it does not provide for any discrete or any management of a discrete specie vis- -vis other specie in terms of specificity. And I really am concerned about that right now because I will be talking to this committee about what I would characterize as the -- and it means all things to all people. It means what I call the ... sport fish trout clauser amendment, because I don't think we have a differentiation in our definition running through all of these particular pieces of legislation that allows for that clearly enough to be able to do that. So if you could answer on some of those. REPRESENTATIVE BERKOWITZ: Could he repeat that question? Number 0242 ATTORNEY GENERAL COLE: Let me see if I could give you a non-answer if you don't mind. I think that's something that we left to the Boards of Fish and the Board of Game. My sense is, although I don't recall this discussion vividly, but I mean that's the sort of thing that we just thought we could not well legislate on. Did you have that same recollection Mr. Mallott? REPRESENTATIVE ROKEBERG: Mr. Chairman, if I could interject, that's what Congress said before and that's why they deferred - did not want to define customary and traditional. So, but then the task force went (indisc.) further by doing that. ATTORNEY GENERAL COLE: We went a little ways because we thought that there was not a solid definition in there and there were other areas where there were not good definitions of rural itself. So we tried to, you might say, beef up ANILCA just a little bit. And Senator Stevens went and passed those ... amendments for that reason. REPRESENTATIVE ROKEBERG: Mr. Chairman, to avoid the Attorney General from asking or answering with non-question or non-answer, let me ask you this, did the task force consider the problems revolving around the definitions as it related to the scientific management of discrete species? ATTORNEY GENERAL COLE: I didn't. REPRESENTATIVE ROKEBERG: Thank you Mr. Chair. ATTORNEY GENERAL COLE: Mr. Mallott would you... MR. MALLOTT: Mr. Chairman, if I might just comment. This is Byron Mallott. I think being non-biologist, or at least non- professionals in this area, we hung our hats on the notion of sustained yield more than any other as we look at the policy implications of ... the management and recognition of ... this discrete species. And as I indicated before, we were very reluctant to move very far beyond the existing management system, and the desire was to get management back. I just want to quick comment, and I think it's important to the question that we also believed I think intuitively, and I believe it very strongly, and have testified to this in an earlier hearing, is that if we can get the management system back working on the ground as creaky and as difficult and as tough as that may be, we will at least then be dealing with discrete questions like this as opposed to folks being in their corners throwing rocks at one another and not having any forum at the management level with which to deal with these issues. Number 0353 CHAIRMAN GREEN: Have either of you, to your knowledge, seen where there is any significant disagreement with the fact that that determination of sustainable yield would be determined by the Fish and Game Department, at least on the areas that the state has the authority? And the follow up question that that's my assumption and that we're really, when we're talking about a preference for subsistence - talking about that, that sliver of the yield that is just above that as far as the priority that would be granted for subsistence use or lifestyle. ATTORNEY GENERAL COLE: I'm not sure I understand the sliver just above it, but the fundamental proposition was that sustained yield remains inviolate, and that's a provision that's in the proposed constitutional amendment. So that remains inviolate. CHAIRMAN GREEN: And ... the question was do you know of any other movement, or thought, or plan that would not have that determined, whatever that may be for the specific location and the specific species? That would be determined by fish and game. What is the sustained yield? And that we're really talking about that that's above that as far as what would be utilized then for the subsistence preference. ATTORNEY GENERAL COLE: Yes. CHAIRMAN GREEN: Okay. And on that issue, we have several other people again. Number 0416 REPRESENTATIVE ROKEBERG: Mr. Chairman, Mr. Cole, on (indisc.) as attorney general in looking at the constitution, we have a mandate to look at sustained yield. But is there no allowance, under our sustained yield definition, to look at what I would call highest and best use of a specie. For example, you can pause a lot of cases whereas the picture type of use of a specie would be different from sustained yield, maximum numerousity (ph) of harvestable fish and game. Example of this would be the catch and release upper Cook Inlet sport trap use, vis- -vis has the highest and best use, vis- -vis as subsistence take for that particular specie. I mean do you think that we would be - are we constitutionally allowed to manage for highest and best use versus vis- -vis sustained yield? ATTORNEY GENERAL COLE: Like I say, we have a constitutional mandate to protect sustained yield. I think what is done beyond sustained yield is up to the boards of fish and game, but the fundamental principle is sustained yield must be preserved and then ... on top ... once you comply with sustained yield constitutional requirements then, under this proposal, we would essentially the first crack at the resource would be to the rural resident and then on from there. Number 0483 CHAIRMAN GREEN: And I think ... where we maybe coming in trouble if you're talking about rainbow trout, not all those species in all the state would be considered a subsistence area, so that there would be places where the highest and best use may not be a subsistence area because it's not going to be a subsistence area. So I think that might help you in some of the concerns that you've expressed -- not every (indisc.) for every species. REPRESENTATIVE ROKEBERG: Thank you for making me feel better Mr. Chairman. On that point, Representative Porter. REPRESENTATIVE PORTER: Yes, please, maybe if I could ask it another way. Prior McDonald, Kenaitze, all that - it's my understanding that we managed subsistence by identifying stocks and types of animals that were traditionally used for subsistence. And rainbows probably weren't in there except maybe some area that I'm not familiar with. Would you not think that the Kenai kings and the rainbows at Alexander Creek could continue to be managed the way they are now, under the task force proposal or any similar proposal that would provide a subsistence preference? CHAIRMAN GREEN: Isolated areas. Number 0540 MR. MALLOTT: I would like to comment to this extent. I think that there was a recognition that there would be uses ... that in discrete times of circumstances, and for discrete species, could have a higher and better use even than subsistence. And we, for example, recognized catch and release, we recognize the importance of ... other uses in the task force bill by mandating that on the regional boards there be ... folks from other areas, particularly recognizing sport uses, and there were even discussions or observations, I would say and I think that I may have made one of them, was that if we ever got to the point, for example, where a stock were managed for trophy purposes on a catch and release or on some other highest and best use basis in addition to sustained yield, and that that were challenged from a subsistence perspective - subsistence interests would essentially be slicing their own throats because there are some places you just can't go in terms of committing an ultimate public policy out there. And I think that there was at least a general recognition of trying to put into place the ability for those kinds of things to be discussed and dealt with at ... the regional board level. There was faint recognition with respect to catch and release. And, again, I would say that ... those, from our perspective were the kinds of issues that needed to be dealt with at the management and the discrete stock level as opposed to in a piece of legislation. REPRESENTATIVE BUNDE: Yes, Mr. Chairman, as the chair of HESS [Health, Education and Social Services], maybe I'm a little hypersensitive, but I would respectively disagree with earlier conversation or earlier testimony from Mr. Mallott. And I sincerely hope that our discussions here will be predicated only on the subsistence issue and concerns about federal takeover of fish and game, and not on whether the state of Alaska has a right to expect rural residents to provide financial support for rural schools. CHAIRMAN GREEN: We appreciate your comment Representative Bunde. Representative Croft. Number 0670 REPRESENTATIVE CROFT: Thank you Mr. Chairman. I raised my hand to speak after Representative Ogan asked - made his statement and it's vagaries of the way this goes around that it isn't very timely. But if I could just respond to that and then ask a question because I looked up, as he was asking it, the wording he was talking about that the equal protection language, and it was from Justice Moore's concurring opinion -- he was the sole member of the court to have that opinion. Three thought it was an equal access case, as the testifiers here said. Moore apparently, not on the court anymore, thought it was an equal protection case. And Justice Rabenowitz ... who is also not on the court anymore, thought it didn't violate either equal protection or equal access. I think it's important to clarify that. Representative Ogan, before he left and is back now, stated that it was an equal protection -- that was not the majority decision. And in particular, when Representative Ogan was here before us testifying, he claimed that the Governor dropped an equal protection case, and he and I have had a number of discussions about the fact that the Governor did not. I copied the page of what was dropped in the Babbit suit, and have asked him a number of times to apologize for misrepresenting the Governor. I hope he'll take the opportunity to do that here today. I wanted to ask, following up on Representative James' point, could Congress, if it got frustrated enough with us, simply enact the Native preference that she was talking about on federal land? Is there any legal bar to them doing that? Number 0745 ATTORNEY GENERAL COLE: Mr. Croft, thank you. I can't say, but I suspect not. I have the sense that given the broad powers of the United States, under the property clause, and under the clause dealing with the right to deal with the Indian tribes, they probably have that power. I've never researched that point, but that's sort of my visceral feeling that I think they probably could. CHAIRMAN GREEN: Representative Berkowitz. Number 0767 REPRESENTATIVE BERKOWITZ: Follow-up on that point, and also consistent with federal powers, they could declare large tracks of their country Indian country couldn't they? ATTORNEY GENERAL COLE: Well I had the thought, given Mr. Croft's - Representative Croft's question, they could just take vast areas of Alaska I would imagine and legislatively provide that they are reservation lands. And then we could deal with that Indian country issue again. CHAIRMAN GREEN: With that shuddering thought, unless there are some very specific brief questions we have several other people who have signed up to testify and we're going to lose part of our quorum or we'll lose part of our committee, I think we'll maintain a quorum but.... REPRESENTATIVE OGAN: Mr. Chairman, very briefly. CHAIRMAN GREEN: Representative Ogan very briefly. Number 0806 REPRESENTATIVE OGAN: Thank you Mr. Chairman. Mr. Cole, in Powereds (ph) Lessie (ph) versus Haugen (ph), which is a U.S. Supreme Court -- it said that the shore navigable waters and (indisc.) under them were not granted by the Constitution of the United States, but reserved tot he states respectively. Secondly, the new states have the same rights, sovereignty, jurisdiction (indisc.) as original states under the equal footing doctrine. And that's -- the public trust lands are outside the scope of the property clause power. And we -- so the states do have the right to manage ... and you did state that the animals don't belong to anybody because it's a public trust asset. And they don't belong to anybody until they're I think, if I recall some of the court language, skillfully captured then it becomes property. And so, you're right the federal government does have a right under the property clause to tell us ... whether or not we can make access to that land, but they don't own the animals and they can't say that we can't hunt them because of a certain specific, in my opinion at least, because of where you live or any other.... There is a difference there isn't there? CHAIRMAN GREEN: Doesn't Kleppe address that? ATTORNEY GENERAL COLE: Well yes, a Kleppe addresses that, number one. But the court of appeals has said in the Katie John case, "Look, under the reserved water rights doctrine, the United States has the right to regulate fishing in navigable waters within the state of Alaska." Until that case came along, everybody assumed that the federal government did not have any rights to regulate the taking, if you will, of fish and navigable waters. But suddenly out of deep left center field, the court of appeals said, "Look, the reserved water rights gives the United States that power." Once they get that power up there in that pink area, then they can I think clearly and easily extend the exercise of that power all the way down to the mouth of the Yukon, and that's what's terribly troubling - that's what's terribly troubling to me. And I think it should be terribly troubling to everybody who has touch with the fishing industry in this state because I tell you under that doctrine, it will not be long until the federal government will be regulating all fishing in the state of Alaska in all these waters - navigable waters noncontiguous to federal land. That's a horrible thought. REPRESENTATIVE JAMES: Just quickly. CHAIRMAN GREEN: Very quickly because we have... REPRESENTATIVE OGAN: I agree by the way and that's why we need to litigate. Number 0933 REPRESENTATIVE JAMES: Thank you Mr. Chairman. Just briefly because -- and I understand that fear. I have that same fear that you do. My biggest fear is that we do a constitutional amendment that gets us in compliance and they do it anyway. You know that's my problem. ATTORNEY GENERAL COLE: How could they do it anyway? I mean we are then have rights and powers under the federal statute ourselves. We have rights under ANILCA, we have right to manage fish and game, we have the right to manage fishing in navigable waters. We sweep away that lousy Katie John decision if we regain management, then we're in control, then we're making the rules, and Congress is not making the rules. I mean that's my point. I mean we've got to get it back. We have to swallow. I mean it's not always easy to swallow, but we've got to regain that power and then we can go from there. CHAIRMAN GREEN: I want to thank both of you for taking time out of your day to come in and talk to us about this because it is a very contentious issue and I really appreciate your taking the questions as well. ATTORNEY GENERAL COLE: Thank you, I wish you well. CHAIRMAN GREEN: Thank you, we're going to need it. Is Bob Penney on-line? Number 0988 BOB PENNEY, CO-CHAIRMAN, ALASKANS TOGETHER: Yes sir, I am, Mr. Chairman. CHAIRMAN GREEN: Bob, would you identify yourself for the record and give us your input? MR. PENNEY: Well sir, I'm here -- I'm not there because I'm here on a bread and butter item. My name is Bob Penney and I'm co- chairman of Alaskans Together, and we have a formal group of our people there to testify, Mr. Chairman. Have they all testified yet? CHAIRMAN GREEN: They have not yet, we're just getting into the Alaskans first. MR. PENNEY: Mr. Chairman, I very much respect like to be able to come back after them, but I'd very much like to touch base on the question that somebody asked Charlie (indisc.) about ... changing the statehood. That did not take place and I'll explain that, if I may, when I come back on. Thank you very much. CHAIRMAN GREEN: Sure, do I understand you want to go after the last person that's here with the group. MR. PENNEY: Yes sir, and there is a lot of people there taking a lot of time out of their day - have come a long ways to try and give testimony on something that's dear to their heart, and I think you should take the time hear them. And if I may, I would like to come back to address that because I think I have a direct answer to that point - statehood pack was not reached. CHAIRMAN GREEN: Okay, thank you Mr. Penney, and there will be some people here that will be able to sit and listen to it all. Some will have to leave because of other commitments. But that then leads us to Jim Jansen. And I understand that you are going to introduce your group as they testify. Number 1050 JIM JANSEN, PRESIDENT, LYNDEN COMPANIES; MEMBER, ALASKANS TOGETHER: I can do that. CHAIRMAN GREEN: Alright, thank you Jim. Would you identify yourself for the record, and have a seat. Excuse me, one other thing before you get started. Would you prefer questions, if there are any, asked of each speaker or summarized at the end? MR. JANSEN: I think we're indifferent, your call. CHAIRMAN GREEN: Okay, alright, good. Thank you, go ahead please. MR. JANSEN: Thank you Mr. Chairman and members of the committee. My name is Jim Jansen, I'm the president of the Lynden Companies and I'm pinch-hitting today for Bob Penney, who sent his regrets that he couldn't be here today. And I didn't know you were on, Bob, and so what I'm going suggest is rather than me providing both the opening introduction to Alaskans Together, and the closing, maybe I'll ask Bob to do the closing if we could do that. MR. PENNEY: Whatever you say, sir. MR. JANSEN: First, I want to say we're here as friends with a common goal and that goal is quite simple. We want to keep the feds from taking control of fish and game in Alaska. How we get there, we don't necessarily care but we want to get there, and we think there is some high-risk ways to approach that and there is some low-risk ways. Frankly, speaking for me individual, I'm not a real brave guy for the low-risk approach. Alaskans Together is a quite a concoction of people from all over the state, probably every profession. We have sports hunters and fishermen, most of us are. A lot of businessmen, some Native leaders, professionals, commercial fishermen, parents, concerned Alaskans, and mostly we're conservative voters - we're conservative supporters, so we're your friends. REPRESENTATIVE BERKOWITZ: I take no offence. CHAIRMAN GREEN: You meant the collective "we," yes, I understand. REPRESENTATIVE JAMES: He agrees with me a lot. REPRESENTATIVE BERKOWITZ: Thank you Jeannette. CHAIRMAN GREEN: Go ahead, we get a little rowdy at times. MR. JANSEN: Personally, I'm a avid hunter and fisherman. I'm a businessman that depends on Alaska's resources for our business, the oil industry, mining business, commercial fish, and we haul a lot of fish. And we think this issue is a extremely important issue to our business. If the feds get control of our resources, we're in real trouble. We've got enough problems now with the environmental movement. And if we lose this particular battle, I think it's going to be devastating to most of businesses. I'm a father, I got kids. I want them to live the same wonderful outdoor life I've had with out hunting and fishing. I think it would be totally different under federal control. Our role, as Alaskans Together, is to raise money and provide distraught funding to educate and inform the public. I'm distraughted how few people really understand the risks and the problems with the subsistence issue, and the risks of federal takeover, so we're going to put a lot energy into informing the public. We're going to organize and distribute information, we're going to run polls. We'll provide that information to you. We're going to advertise aggressively, we're going to do speaking engagements, we're going to work with those in the legislature who really make this difficult decision, and we're going to work with you toward a common solution. We agree with Alaska's current governor and past four governors, the task force compromise plan. And I don't use Governor's task force plan. I you pull up our adds on the Internet, you're going to see that there is no picture of the Governor or Lieutenant Governor. And it's not a Governor's task force plan anymore. This is a plan for Alaskans, state's right plan as far as I'm concerned. We agree with the congressional delegation, and we believe we agree with 85 percent of Alaskans who want to keep the feds out. I'm going to make my talk real short here because we have seven ... of our group and kind of broke our talks down into seven specific areas. And Carl Brady will lead off with needs versus area plan. CHAIRMAN GREEN: Before you go, I have one question. I think I've been able to glean from what you said that you are definitely in favor of keeping the feds out as I think if 85 percent, I would think it may even be higher than that. You have indicated that what you have seen so far would lead you to believe that the task force approach is probably the only thing that might be available to prevent federal takeover as we've heard from General Cole and Byron Mallott that they feel that. I don't want to put words in your mouth, but what I'm coming to is if there were another way to accomplish that, to keep the feds out, in fact maybe even go beyond that, regain control of the lands and waters within the state, would your group support that as well? MR. JANSEN: Think we would if we believed... CHAIRMAN GREEN: If you believed it sure. MR. JANSEN: If it had a high probability of success. I think it's our general belief that some of the alternatives that we've heard have such a low possibility of success, and the stakes are so high, and the risks are so great that I think we're going to urge you to take the easy way. And being a businessman ... I face decisions every day. I don't get the easy ones, I don't get the good solution versus the back solution. I get the lesser of the bad options and I'm afraid that's maybe what we have here. We're not terribly excited, as a group, about the task force plan but it does keep the feds out. And me for one, I'm not very brave. I'm not a risk taker. CHAIRMAN GREEN: Well I just want to add, and I hope I speak for the committee, that ... your willingness, as a group, to go out to the public and help educate them and keep this thing so that we do come up with an Alaskan solution I think is admirable and I really want to thank you and your group for that. Representative Rokeberg. Number 1379 REPRESENTATIVE ROKEBERG: Thank you Mr. Chairman. I was pleased to hear Mr. Jansen's statement about working with us, and I just want to make sure that's (indisc.) because frankly, before we came down here and during the first part of the session I didn't think that that was the case. I felt that your group was lobbying in support of the task force proposal only. (Indisc.) has rejected any further activity as far as trying to create another solution to this very important difficult problem. And I think that's something that everybody, and everybody that testifies from your group, should be aware of. And I was just wondering if you thought that if the legislature ... were to be able to come up with a separate solution and allow that particular solution go on the ballot of the primary election and say perhaps along with the task force solution, what do you think your group would do? Would you lobby for a particular proposal? Or would you be willing to be open enough to look at all solutions? MR. JANSEN: Well I'm one member of our board. That certainly would take a lot of discussion of our group, but everything I hear amongst our group is that we want to keep an open mind. We want a solution, but we probably will be arguing with you if you put us into a situation that takes a high level of risk because the stakes are too high. Some risks in life we don't take like the lives of our kids. I think we're going to be very cautious, we're going to want to be very cautious about taking the risk that has a high probability of failure. CHAIRMAN GREEN: Follow-up? REPRESENTATIVE ROKEBERG: You put us in a real high position of risk. CHAIRMAN GREEN: Well let's keep an open mind now and work as a group. Thank you Jim. Do you want to introduce - I have a list here of people who have signed up. MR. JANSEN: If you'd handle that for me, I'd... CHAIRMAN GREEN: The first one then on needs, as you indicated, is Carl Brady. CARL BRADY, MEMBER, ALASKANS TOGETHER: Mr. Chairman, members of this committee, my name is Carl Brady, I'm a businessman in Anchorage and also a member of the committee that we're talking to. And I became involved in this, as so many others did, as a ... concerned citizen because I saw a great big warning sign. And I misunderstood so much about what we're talking about today and the enormous job that you people have in front of you and (indisc.) to accomplish. And through a great deal of work and education and expense, I think I've come to understand the issues, at least understand them much better than the majority of the people in Alaska do. It is a very misunderstood issue, but I think it's becoming a least misunderstood issue in getting towards a better understood issue, and through some of the work that all of us going to work together, I hope, cooperatively to find these solutions that the public will understand and agree with ... solutions that you folks are able to come up with. I do believe Secretary Babbit, I do believe Senator Stevens. I do believe that there is a warning sign out there that says that December 1st that the federal government is going to act. I believe that because I believe they want to. I was here when they were here before. And I think that there is no perfect solution here, there is no perfect answer for anyone in this room on this issue. But in our efforts to understand what is before you and before the rest of us in the state and the opportunities we have and ... the problems that we may be faced, we've tried to together look at the situation on a basis of how it's been presented to us. And please don't take offence because it's not been intended for you to from us that we're trying to get out in front of a working body that has good intentions like we have. And I know it's a ... concern for everybody that we understand and communicate up-front and fairly with each other. In getting to understand, because there is a bill - there a proposed bill - proposed legislation, and to understand it we've taken different parts of this and several of us are going to address those parts. And ask Jim Jansen said, that I was talk about the needs-based. The bottom line on this, short of a third pillar here of some other alternative because if we don't do something and have a constitutional amendment, the way I understand it the federal government is going to take over. I hope your suit prevails, but that, in my mind, has got some problems with it. I think it's a ways away and after all the appeals, it's ever further away. In the meantime, if the federal government comes in they get better intrenched and further intrenched, I think it creates a further problem for us. I believe what Senator Stevens is saying. After 17 years on this issue, he's worked it very, very hard and I believe he understands it. But we looked at the bill and proposed legislation, and other things that we've heard and we said, "Well, let's take it piece by piece and let's talk about those issues piece by piece." And I don't want to belabor this because most of you are very familiar. It all goes back to is it in compliance with ANILCA? And simply if it is not, I don't believe it's going to prevail. I think we have to do something together that will comply with ANILCA. And how we manage and tweak around after that may be the luxury that give us - affords to get really where we would like to be some day. But rural versus income, I mean in the Bush -- and let's admit, how do define rural? Okay, maybe this worked pretty good in the past, maybe it hasn't been perfect. But you take a community like Dillingham that built a big school project out there. Well there is a lot of work and a lot of jobs. A year later, the poor fishing season, no construction and we've got a different qualification for -- so how do you establish a number, a level of income that says it's equitable if we're talking about a subsistence cutoff at some level wherever - whoever you are, how ever much you make in rural Alaska, you're going to have economies. You've got a government community in Barrow and you've got a different community somewhere else. And so it's going to be very difficult and as people make money fall off the qualification list, then the next year if they're back on, they got to re-qualify somehow or another and who's going to -- and how are we going to pay for and administer the whole rolling cycle of this thing going up and down and coming and going as you may or may not qualify. I'm not ... finding fault on trying to point out some of the concerns and problems that I think that we face. I do have a problem with ... the indication or implication that I've read that it looks like - becomes a welfare state of fears. I don't think that, but I don't believe -- I believe it's going to be an administrative nightmare. I think it's a management nightmare and I don't think it's realistic to say that in rural communities, where subsistence style of life is the same for everyone and all because there are families in communities that do have more income than others, who share their subsistence with other within the community, and share their boats or share their wealth to help buy boats and traps and nets and fishing ... equipment. So having said that, I want to point out that these are my views. These are without council. It's my personal opinion this group -- to answer Representative Rokeberg's initial question, I think a ... fair concern is it's going to take this body to act - it's going to take this body to act the way we would like to see it act and so we don't want to be an adversary in any way, in any fashion. We are doing polling, we have done some polling and we're going to share that information with each and everyone of your own districts first before it's made public. And I think that's the proper thing to do. So with that I'd like to, unless there is any questions, introduce Carl Marrs. CHAIRMAN GREEN: We do have a couple Carl. Representative Berkowitz. REPRESENTATIVE BERKOWITZ: Thanks very much, and kind of nice to finally meet you. MR. BRADY: We met once after the election. CHAIRMAN GREEN: Is that when you visited him prison? Number 1959 REPRESENTATIVE BERKOWITZ: I have a question and I -- seems that you're focusing on the needs-based. It seems to me that one of the concerns that I have with the needs-base is that it would be unconstitutional in that with the McDowell decision there was a determination that rural created a closed class. Now it's easier for me to become a rural resident than it would be for me to qualify on a needs-based. And I wondering if perhaps you had given that any thought. MR. BRADY: I can't comment on the legal aspect of it, but from a social and practical viewpoint, absolutely. Rural ... by definition by many people in the Lower 48 is somewhere outside of Kansas City where there is a lot of cows roaming around. Well, somewhere (indisc.) far out of Anchorage is the Kenai Peninsula with some cows roaming around too. That's a very difficult question to define. ... But there are more rural outside of the population that we're talking about that live and depend upon a subsistence style of life, as well as a cultural one. We are - have a interest in a previous operated fishing lodge outside of Dillingham up in the Wood River Tikchik State Park. And we have caretakers there and we pay them a reasonably good salary, I think. But they have a subsistence style life and it's -- for my experience with that, Representative Berkowitz, is there is some real difficult work ahead on definitions and clarifications and, yes, qualifications aren't going to be perfect each and every time, but the alternative is much worse. In the event that we don't find a third solution, which I would love to find out what that is, I'd like to find five other solutions then we could all agree on one of them, hopefully, but I believe that we're going to have a -- if we don't act the way we've discussed this, that we're going to have the federal government in there and I don't think any of us are going to like that. REPRESENTATIVE BERKOWITZ: You know it's ironic that you mentioned cow country outside of Kansas City. That's where my grandmother's family is from - also named Brady, and they have no idea what rural really means up here. MR. BRADY: Well ... they're not alone. CHAIRMAN GREEN: Representative Bunde. Number 2179 REPRESENTATIVE BUNDE: Thank you Mr. Brady and my thanks for you getting here as well. You said something that resinated with me very well because I have this fear of doing something ... that's wrong - the mentality that sometimes (indisc.) Juneau. And you said come December 1, the federal government will takeover because they want to. And I know we have problems here in Glacier Bay because they want to control it and use it as a scientific center and remove human impact. My question for you is one that keeps bothering me a great deal is even after constitutional amendment, what assurance do we have that the federal government wouldn't want to have even more until we have basically federal control? MR. BRADY: I'll agree with you that we have very little assurance that they wouldn't want to continue. I believe they will and, unfortunately, I see the courts leaning in those directions. I think though that we, as Charlie Cole said, we have ... enough meat in ANILCA that I think that we've got enough protection. I can't interpret the law from a -- only from a layman's point of view. We agree that the pacts, the compacts, the treaties, the agreements previously have not been honored. I believe there has been enough debate in Congress on ANILCA that they really want to see this thing go away after all of these years. And I think that I have to put my faith in the fact that if we had a constitutional amendment, and we complied to the letter of the law with ANILCA, and we acted and managed -- and we're proactive, I think we've got a sense of assurance that we'll be able to maintain our... CHAIRMAN GREEN: Representative Rokeberg. Number 2339 REPRESENTATIVE ROKEBERG: Mr. Chairman, I really welcome Carl down here. It's good to see you, Carl. I've known Mr. Brady for 40 years I think (indisc.--mumbling). MR. BRADY: And I ain't that old Norm. REPRESENTATIVE ROKEBERG: I know that. CHAIRMAN GREEN: He doesn't, doesn't he. REPRESENTATIVE ROKEBERG: I was really pleased to hear your statements, Carl, about willing to work with us because I want you to know that's what a lot of us are trying to do right now. And I do have a technical question. You indicated your relationship with the Wood River area. Do you think that a trophy Wood River rainbow should be subject to first priority subsistence use? MR. BRADY: No sir. REPRESENTATIVE ROKEBERG: Thank you. CHAIRMAN GREEN: Representative James. REPRESENTATIVE JAMES: Thank you ... Mr. Chairman, kind of playing on Representative Bunde's question about the federal government - what they want to do. And I've been observing the Interior Department for a long time and I seen an encroachment on our rights, not necessarily for the hunting and fishing, but to stop hunting and fishing. I mean there is an environmental bent there that wants to leave animals alone. What kind of guarantee that once we get past this management of hunting and fishing that they won't come in an do that sort of thing and even interfere with the subsistence that we're protecting. MR. BRADY: The simple answer is none, but from a layman's point of view, again, I'm putting some faith in our legal system that is stronger than my personal agreement with your statement. TAPE 98-40, SIDE A Number 0001 MR. BRADY CONTINUED: ... what we've done there and fight to preserve. Alternatively, if the federal government does step in here and take over, ... from where do we come then? CHAIRMAN GREEN: Fortunately this is not going to be a campaign time, but there are some suggestions but we won't get into that. Representative Croft. Number 0051 REPRESENTATIVE CROFT: Mr. Chairman, Mr. Brady, on your subject of needs versus area, on a very theoretical level, does it make more sense to tie this to welfare as the bill currently before us does? Or tie it to a type of area that is generally rural, dependent on fish and game however it's defined? I guess in its most basic form, does it make more sense to say, "You're a welfare recipient, therefore, I know you're dependent on fish and game resources, or you live in an area that generally is and so I'm going to say you're probably..." I mean what makes more sense? We do a lot of talking about what the federal government is going to require us to do or what we're trying to avoid. But just on what is more logical and right, which scheme makes more sense to you? MR. BRADY: Well certainly not the welfare scheme, by definition or otherwise, Representative Croft. Needs basis is very difficult to determine. It's impossible to find a single income level or cutoff point that's the same for all residents in rural Alaska, however you wanted to define rural Alaska. There just isn't a consistency there. As I mentioned, many of the most successful financial households share their subsistence because the have the wherewithal and the facilities in which to participate in a subsistence style of life. I have a comment I wrote here. I said an income based subsistence program is insulting to rural families and communities because it views a subsistence way of life as welfare subsidy system granted by the state. A subsidy way of life is a proud and cultural tradition or subsistence (indisc.) and cultural tradition. I believe that it still is and I hope it continues to be so here in this great state of Alaska where we're all so fortunate to live and share these cultures that are still alive. I'm sorry that that isn't -- but as good as a couple that Charlie Cole made. REPRESENTATIVE CROFT: No, it was fine answer and it's just presently when we stop talking about subsistence as something to preserve and started talking about it as a situation you wanted to avoid. I don't know the answer. MR. BRADY: I don't want to take up any more time. It's a difficult one to answer, but I think we can have some good thoughts and some good input after we take care of the fight with the federal government's desire and then start working on these issues with some real tests. CHAIRMAN GREEN: Thank you. Representative Ogan. Number 0290 REPRESENTATIVE OGAN: Thank you, Mr. Chairman. I'll try to be very brief. Are you aware that the bill is two-tiered? That there is the first tier that we give the boards the authority to grant a preference to - in the first level of shortage, if the board perceives that there is a shortage based on sound science... MR. BRADY: Yes sir. REPRESENTATIVE OGAN: Gives them a preference to - for personal sustenance - personal and family use for sustenance regardless of income. And then only -- we also give them a further ability to give discretion if like there is not enough to go around in these regions we've identified, which are probably true subsistence areas based on a rational criteria that there is not enough to go around in those areas, so we allow them to give a further preference to those based on income. So the guy that works for the state of Alaska, for example, if you have decide who in an area -- there is not enough to go around in the area, it would simply authorizes them or gives them the authority, they may give this preference in times of extreme shortage. It would seem logical to me, the people who are living a true subsistence lifestyle are probably are not going to have much income. It's not just welfare, it's -- there is also language in that if they choose to live a subsistence life style, less an X amount of dollars. REPRESENTATIVE CROFT: Did you understand the question? MR. BRADY: Yeah, sure I understand your question and your comments, and I understand where you're coming from with that. My concern is that - will it pass the test that we have to decide that it complies with ANILCA? REPRESENTATIVE OGAN: Well it certainly doesn't. It's going to take ANILCA changes, and those are addressed in the bill as well. We acknowledge that. Thank you sir. CHAIRMAN GREEN: Representative Bunde. Number 0447 REPRESENTATIVE BUNDE: Mr. Chairman, I'm going to need to excuse myself. We have a joint Senate and House HESS meeting and I will explain to them that you and Representative Porter are very legitimately detained. But I did want to say something because I'm frustrated I'm going to miss Mr. Huntington's testimony, and we often talk about subsistence in more of theoretical, because while I've traveled rural Alaska a little bit I've never really truly lived it. But I think it's incumbent on all of us that before we make this decision, get a copy of Sidney's book, Shadow on the Koyukuk, and he talks about what it's really like to be a 13-year- old kid and live in the middle Yukon under subsistence in the 30s and the 40s. It's a really important reality check and it helps us have a better grasp how to define subsistence. CHAIRMAN GREEN: That does not qualify him as an agent for your book. REPRESENTATIVE BUNDE: I want 10 percent. CHAIRMAN PORTER: Would you take copious notes? CHAIRMAN GREEN: Alright, that then brings us to Carl Marrs to give us a talk about creates two classes of people. Carl, would you identify yourself, sir? Number 0532 CARL MARRS, PRESIDENT/CHIEF EXECUTIVE OFFICER, COOK INLET REGION, INCORPORATED (CIRI); MEMBER, ALASKANS TOGETHER: Thank you Mr. Chairman. Carl Marrs with Cook Inlet Region, President/CEO. I'm here on behalf of the Alaskans Together as a member of them. I have some prepared remarks but I think I'll just hand them out in the interest of saving time. I do want to say that I don't think HB 406 meets the criteria needed to meet Title VIII. You know we talk about your worry about the federal government not living up to its word. Well ... I can tell you is Cook Inlet Region, as most of the Native people of this state have been living with for years, and I think most of the American Indians of this country have been living with for ... 250 years. We've seen many, many treaties among the federal government and the American Indians broken. I think that we have situation going on today where we have some Alaska Native groups that are happy to see the federal government here. And, in my opinion, that's a state of euphoria that may last for a period of time, but when the federal government decides it's time to quit killing seals, they'll stop killing seals. It was asked earlier - the question about what would happen ... if the feds did take over ... or how could the state stop it if the state passed a constitutional amendment. I believe that we have a much greater chance working in unity of managing fish and game in this state, and we have no control when the Department of Interior is managing it on our behalf. All you got to ... remember is you have animal rights groups in the Lower 48 that have grassroots efforts that can gear up very quickly. And Congress doesn't care about Alaska. They really don't care. They don't live here. They don't have to deal with these issues. And if their constituencies in the Lower 48 are showing pictures on T.V. of a bunch of dead seals being gutted out because it's a way of a life style for rural Alaskans, Native and non-Native, ... they'll shut it down. They don't care about that. The other issue I think Representative James brought up was, "Well why doesn't ... Congress just change - take the non-Native out of ANILCA?" Well you've got to remember those families out there in the traditional and customary uses of fish and game -- non-Native families have lived out there for hundreds of years. They're a part of that way of life. And I think Congress intended to deal with it, it wasn't just a Native issue you have to deal with at the time. I really think ... Representative Rokeberg brings up the issue if the legislature comes up with another solution, we'd like to see it. I think that the Alaskans Together, if there is something short of a constitutional amendment, we would love to see that. I've been at this ten years. I remember sitting on the other side of the House nine years ago, one vote short in the Senate on a constitutional amendment on this issue. We've been on it a long time, we've been over the same ground time, and time, and time again, and here we are right up at the eleventh hour, and I think we need ... a decision that's right for the state. Our belief is the ... issues that have been addressed by the task force, and like the rest of the group we do call it the subsistence task force, we didn't see it as a Governor's task force just because of the make-up of it, more than half of it was people that actually oppose the Governor. So it is, in our opinion, the best alternative that we have in front of us today. We haven't seen anything else come up that meets the standards that we meet. And [HB] 406, in our opinion and mine and opinion of CIRI, doesn't meet those criteria. So we would hope, and as you have the commitment from the rest of Alaskans Together, we will work with anything that has a good possibility of standing up to both the federal law and the state constitution. We, again, we believe that's a constitutional amendment. With that, Mr. Chairman, I'll take any questions. I'll pass out the testimony, which is different than what I was talking about. CHAIRMAN GREEN: Alright. Thank you Carl. Are there any questions? Yes, Representative Ogan. Number 0866 REPRESENTATIVE OGAN: Mr. Chairman, thank you Mr. Chairman. Mr. Marrs, it's good to have you here today, thank you for coming. I just wanted to state, for the record, that the seals issue is completely separate from what we're dealing ... with here because seals are managed, already, by the feds under the Marine Mammals Act. They.... MR. MARRS: Representative Ogan, I used that as an example of what could happen in the Lower 48, I mean could I apply it caribou or moose or geese or whatever that might be. REPRESENTATIVE PORTER: Wolves. CHAIRMAN GREEN: Wolves. Representative Croft. Number 0915 REPRESENTATIVE CROFT: Mr. Marrs, why isn't it appropriate to tie subsistence to being a welfare recipient? Why doesn't that make sense? MR. MARRS: Well I don't think ... the state has budget problems today. I don't know how you would manage all the rural areas. I don't think you have enough money in the permanent fund to figure out who is going to qualify under a welfare system. The state is pushing, today, very hard to change that whole area - is to get people off of welfare to work. I mean that's one of the big pushes that you've done as a legislature and as an Administration is to try to get people off of welfare. Subsistence, in the sense of that, helps in the sense because it does -- it's an economic resource for those people in the rural areas. ... I think it's an unmanageable thing. How do you put that many people out in the Bush to try to get -- I don't think the Internal Revenue Service could do it. That's my opinion of that. CHAIRMAN GREEN: Representative Rokeberg. Number 0962 REPRESENTATIVE ROKEBERG: Mr. Chairman, Mr. Marrs, couple of questions. Number one, I'm very concerned about having really started to look into this about the definition of customary and traditional as recommended by the task force and as enacted in the ANILCA changes of Senator Stevens. Do you have an opinion on those and particularly about my concern for ... management of discrete stockage? MR. MARRS: You're worried about rainbow trout. REPRESENTATIVE ROKEBERG: You're right. MR. MARRS: Representative Rokeberg, let me answer it in this way. I think that it's probably the best that we can do for right now. There is refinements that will take place over time. You've got to remember we operated under the subsistence law for a number of years and it worked fine. There was not problems with it and in the state Board of Fish and Game dealt with a lot of those issues. And I think that, again, can happen. All of this will take some refinement. It's not perfect, but it's better than having the federal government run our lives. REPRESENTATIVE ROKEBERG: Mr. Chairman, ... I think that the ANILCA is defective the way it has been (indisc.). Do you think to fix some of these things, no matter what they were, do you think that ANILCA could be amended in 1998? MR. MARRS: No, I don't think it can be. REPRESENTATIVE ROKEBERG: Mr. Chairman, Mr. Marrs, you and I have had personal conversations about one of the problems with a needs- based type of a bill. Do you think if the rural communities of this state were to sign a very simple form that indicated that they - to the best of their knowledge and belief believed that they met the criterion for subsistence in the state and federal law that that would be an adequate method to administer that? MR. MARRS: Who is going to enforce? I mean what do you do with somebody that you think has filled out a form and falsely? I mean how do you administer that? MR. MARRS: Well I mean, Mr. Chairman, I suggest that the enforcement is self enforcing and when people are caught in noncompliance then they can be prosecuted for that breach of their honesty, et cetera. REPRESENTATIVE GREEN: I think we're kind of digesting and we're asking Mr. Marrs something that would have to be done by [the Department of] Fish and Game. Representative Porter. Number 1109 REPRESENTATIVE PORTER: Thank you Mr. Chairman. I don't want to belabor this point, but I didn't know there was going to be two other questions about it. Carl, if the criterion were that there - that to qualify in the time of a shortage for a subsistence permit or to be able to hunt and fish for subsistence that there had been a dependence, regardless of the person's income, but a past dependence on that resource, customarily and traditionally. Would that -- that's not needs-based but it's -- narrows the field. MR. MARRS: I'd suggest that we're fairly close to that now. You know in customary and traditional and I think that, again, ... all of these issues will still have to be dealt with in statute and with (indisc.) fish and game. I think the focus that we can't lose sight of here is that we need this constitutional amendment or the federal government will come take over fish and game on federal lands in Alaska, and I don't think that we want that to happen. It's not going to be a simple process for the Boards of Fish and Game. It's not going to be a simple process for the Departments ... of Fish and Game to put out the regulations. There is going to be a lot of argument over the regulations and how they're implemented, but at least it's done here. It's not done at the Department of Interior in Washington, D.C. And, again, in an imperfect world, I think we've come to a point in that juncture where it's necessary, unless somebody comes up with some magic between now and December 1st if this issue is not dealt with by both bodies of this legislature, that it's the only thing on the table. But there are ... little sticky issues out there, but I think with all of us working together on the issues, we could work through those. We can't do it if it's (indisc.). Number 1233 REPRESENTATIVE GREEN: We have several more people and I would ask the committee to remember under what sort of oversight that each one of testifying and hold our questions to that so that we can get through them. Representative Rokeberg, you had to make an announcement. REPRESENTATIVE ROKEBERG: Mr. Chairman, I unfortunately I do have leave to chair the Labor and Commerce Committee, so I will be unable to be here for the next couple of hours. I just wanted the people to know that. Thank you very much. REPRESENTATIVE JAMES: And if I might, I have a bill up in Labor and Commerce, so I've got to go too. MR. MARRS: Well I thank you all for listening. CHAIRMAN GREEN: We did have -- Representative Croft had a question. REPRESENTATIVE CROFT: That's alright. Thank you. CHAIRMAN GREEN: Okay the next -- Representative Ogan. REPRESENTATIVE OGAN: Mr. Marrs. CHAIRMAN GREEN: Carl, we have one other question and then we get to move on. REPRESENTATIVE OGAN: Very briefly, Mr. Marrs. Are you aware that the Secretary of the Interior, if I'm not mistaken, told AFN that not to expect the takeover to be a permanent one? MR. MARRS: Yes, I'm aware of it, but I got to tell you something that -- it's my belief when the Department of Interior takes this over, the secretary can say all he wants. He's only there temporary. As these Administrations have changed over the years, those people within the departments, with the parks of the U.S. Fish and Wildlife, they want control. They don't -- there is no doubt in my mind, they want control. They want to take it away from us. They have the upper hand right now and they will take it if they have the first opportunity and you'll never get it back. CHAIRMAN GREEN: I want to reemphasize that the questions should be directed to the people who are - have a certain thing they're talking about. Theo Matthews will be talking about the federal plan and its impact on commercial fishing. I would appreciate questions dealing only with that subject. Theo. Number 1316 THEO MATTHEWS, PRESIDENT, UNITED FISHERMEN OF ALASKA; MEMBER, ALASKANS TOGETHER: Mr. Chairman, members of the committee, my name is Theo Matthews. I reside in Kasilof, Alaska. I'm the current president of United Fishermen of Alaska (UFA). I had the opportunity to speak to you last week on House Bill 406. And UFA's conclusion was and still is that that bill creates many, many new problems. It does attempt to address the issue of whether we should have a needs versus rural preference in one section, but overall, it creates far more problems and it solves none in our opinion. I have the honor of being on the Executive Committee of Alaskans Together. As the others have assured you, I want to assure you that our goal is to work together not just with the legislature, but at fullest cooperation that we can develop with the public to better educate them to the true problems and perhaps in true solutions that aren't as painful as people feel. I've been asked to address the issue of definitions, and as I mentioned you last week, there is a historic moment before you. The federal government has never been prepared to change a single word in ANILCA. Never and we have tried since 1969 in the Kenaitze decision, when they told us something on the Kenai had to be rural. And as you said, Mr. Berkowitz, they don't understand what rural is. So definitions inserted into ANILCA will limit the discretion of the courts to tell us what they think a rural preference would be. And we have identified some obvious and key ones. I mean you have a federal law that demands a rural preference but doesn't tell you what rural is. So the let the Ninth Circuit tell you what a farm land is supposed to look like. You have a federal law that demands customary trade, but it doesn't define customary trade. And I have submitted current customary trade definitions as testimony, they should be before you I hope. Just to give you an example of how important it is to get these things defined in ANILCA. A limit to discretion of the courts. The current state definition is from the 1992 statutes, and I won't read it. It's clear that it means the limited noncommercial exchange for minimal amounts of cash. The state has a clear policy that this is a minimal commercial activity. The current federal regulation takes the exact opposite tax - basically says customary trade does not include trade, it constitutes a significant commercial enterprise. That means to me, and I don't need to be a lawyer, anything less than a big time commercial enterprise is acceptable to the federal government. This, over time, and we've already had decisions on some roe on kelp cases, and there pending appeals in many other cases. People can say, "Well it's only $10,000," and if the federal court feels that is not a significant commercial enterprise, it's going to take place under subsistence. ... I was also a member of the Hickel ... Subsistence Advisory Council. This was a very easy decision for us. No one thought subsistence should be abused as commercial use. We crafted the current state definition that made it clear that not only was it minimal, but the respected boards could set whatever limit they thought appropriate to the point where they could say, "No," even if it had been customary and traditional. So as part of the package, what Alaskans Together and what UFA have all said is we need a package. We're not realistically going to eliminate a rural preference. We need to define rural and we need definitions to limit the court's discretion. And so Senator Stevens attempted to do that in his public law 105-83 definition. It's not identical to the task force proposed definition, it's not identical to the state's current definition, but is a genuine attempt and it will vastly benefit this state. Customary trade, if abused under either state or federal law, will eliminate sport fishing, it will eliminate tourism and it will eliminate commercial fishing at some point on some stocks. So I just wanted to stress, and our group would like to stress the historic opportunity we have to address the federal government and try and insert our definitions of terms into the federal law. Thank you Mr. Chairman. I had the opportunity to speak last week, so I won't go anymore. CHAIRMAN GREEN: We have a question from Representative Croft. Number 1576 REPRESENTATIVE CROFT: Theo, ... it looks to me like the definition, the new ANILCA definition is pretty close to the task force one that uses limited noncommercial, it uses minimal quantities, it has a similar exception for fur and fur bearers. I mean they seem to modeling. And I guess I'm unclear, if we don't act on this, if we don't do what contemplated in the ANILCA changes, what do we go back to? Number two, the current federal regulations? MR. MATTHEWS: Mr. Chairman, Representative Croft, exactly. There will be no definition and the federal agencies are free to make their own definition and that's what you will have in front of you. And it is a scary proposition for any other user of the resource. REPRESENTATIVE PORTER: In existing case law. REPRESENTATIVE CROFT: One other. CHAIRMAN GREEN: Follow-up, Representative Croft. REPRESENTATIVE CROFT: Not quite a follow-up, if I can do a separate question. CHAIRMAN GREEN: Okay, I'm sorry. Number 1616 REPRESENTATIVE CROFT: But on the same subject, which your subject is the impact of the federal plan on commercial fishing. Am I in the right area? You were limiting to areas... CHAIRMAN GREEN: Yes, absolutely. REPRESENTATIVE CROFT: What would - what's the impact on commercial fishing, and I guess in particular on the Kenai king run of this ... plan, [HB] 406? MR. MATTHEWS: House Bill 406, we're going to switch from definitions to that. Mr. Chairman, Mr. Croft, there is ... no commercial fishery on the early Kenai River king run, just like there is virtually no fishery on the early Susitna northern district run. [House Bill] 406 will eliminate commercial and recreational uses of those stocks because they are very small, there are not enough stocks to provide sustenance for all Alaskan residents. As I mentioned last week, when you get into the late king run, there is a incidental harvest as we are targeting our primary sockeye to the extent that there is a preference on that run, which constitutes probably no more than 15,000 harvest. Clearly you can't meet all sustenance requirements for that to the extent that then you start eliminating other uses like sport. There is going to be demands that even though we harvest incidental amount of kings, our total harvest has to be shut down. Those games are already played under current state law. If you give a preference, it will be played by every lawyer in this state on every stock in this state. CHAIRMAN GREEN: Representative Ogan. Number 1693 REPRESENTATIVE OGAN: Mr. Chairman, on that point. There was a amendment that was proposed in the Resources Committee that didn't get put in, if you recall Mr. Chairman. A gentleman from Kodiak, I don't recall his name, and I meant to put it in and I think it probably would have taken care of that problem where the preference -- I think kind of - can't say the amendment verbatim, but it did say something along the lines, subject ... to the availability of other species. And that would probably cure that problem of ... having a preference on an individual stock of king salmon that would shut down all the rest of the fisheries. I mean is that not correct if we didn't make it species specific, it would be a simple language change in House Bill 406. I don't have the bill in front of me, but I think it will address the problem that you're concerned about - be a very simple amendment. And I would just like to state, for the record, that I meant to get it in there and in the final minutes of the last hearing in Resources, it didn't get in there. I think that'll alleviate your concern on that. CHAIRMAN GREEN: What you might do, Representative Ogan, is copy that and send it to.... REPRESENTATIVE CROFT: Because I don't know how he can respond to something that we don't have, that he doesn't remember. MR. MATTHEWS: I can respond. CHAIRMAN GREEN: Okay. MR. MATTHEWS: Mr. Chairman, Mr. Ogan, as I noted last week, there are two parts to House Bill 406. The part that tries to insert a sustenance preference on all stocks in the state, even if modified with the language you have there has nothing to do with the issue of our dilemma with the federal government. It's a reallocation issue. It's a major issue if perhaps this legislature wants to go through that, in and of itself, so be it. But it distracts from this issue of what are we going to do with the federal government. Now even under the federal rural preference you have, Mr. Ogan, the same concern that Representative Rokeberg brought up. It is a stock specific thing. It doesn't really say, "Because you're freezer is full of caribou, and red salmon, and king salmon, you don't really need all these silvers." And all the law says, "Yup, you get it on silvers too." But that's an issue I think, as Mr. Cole said, that we could address with the feds over time. If we allow them to take over, the certainty for Representative James is we will not be managing our resources. Every environmental group, or group that doesn't like hunting or fishing, will have access to the federal managers. We're in trouble. CHAIRMAN GREEN: I have just one brief one. Theo, if ... we were to go to the specific critter - specific stock, and say that that, for some reason, was a priority fish and you are also fishing for others -- the way you fish, is that how you reduce the bycatch? So that if two species are coming up, one of them is not under subsistence ruling and the other one is, and they may be coming in the same direction. Can you adjust your bycatch by the way you fish those two species? MR. MATTHEWS: You could, to some extent, in both the sport and commercial fisheries. However, if you have stocks, like Kenai River Russian and (Indisc.), and Russian River red sockeyes that are coming up the same Kenai River at the same time, the Kenai River sport angler could not differentiate. CHAIRMAN GREEN: Between the reds, but could he -- the way he fishes in a sport fishery, he would be differentiating aiding by time of season, say from the kings? MR. MATTHEWS: Exactly, that's why commercial fisheries in Cook Inlet, for example, used to start in May and into December. We now start July 1st and we're over August 5th. That's the discrimination that the board has chosen. CHAIRMAN GREEN: Representative Berkowitz. Number 1886 REPRESENTATIVE BERKOWITZ: Just a comment and maybe Mr. Matthews could explain if my perception is right. From what Mr. Green said, it would seem to me we're inviting all the conflict that occurs over intercept versus terminal fisheries with that, on top of the federal question. MR. MATTHEWS: Mr. Chairman, Mr. Berkowitz, I concur with that analysis and that's why I tend to caution the attempt to get into allocation issues. You will never resolve the main problem here. CHAIRMAN GREEN: No, no, my question wasn't to propose, my question was how do you do this? You have a bycatch limit now, and if you're fishing for one type of species and you are catching something else, how do you reduce the bycatch. I mean you have to stop after a certain - you're only allowed a certain amount of bycatch as I understand it. MR. MATTHEWS: Mr. Chairman, that depends on the fishery. In the federally managed cod fisheries, and others, yes, there is a fixed bycatch quota established for certain fisheries. That varies in the salmon fisheries from area to area. Some areas have a quota on non-targeted stocks, some don't - so... CHAIRMAN GREEN: The question then was will you vary your fishing habit in order to try and reduce the bycatch? MR. MATTHEWS: Certainly, that's the goal of all fishermen. We're not here to get into unnecessary allocation battle. CHAIRMAN GREEN: Okay, Representative Ogan. REPRESENTATIVE OGAN: Mr. Chairman, with your permission, he did talk about some allocation issues. Is it alright if I step in a little further? CHAIRMAN GREEN: Alright. Number 1951 REPRESENTATIVE OGAN: It was brought up in an answer -- thank you Mr. Chairman. Alright I'll be real brief. I've heard over and over stated by commercial fishermen, especially on another bill that was heard around the state this year, leave the allocation authority with the Board of Fish. Don't do it legislatively. Do you see anything in this bill that keeps the Board of Fish from allocating? MR. MATTHEWS: House Bill 406? REPRESENTATIVE OGAN: Right. MR. MATTHEW: Mr. Chairman, Mr. Ogan, absolutely. The consumptive priority takes any and all flexibility away from this board, and if you had given a commercial priority, it would do the same thing to all other uses. So it does totally hamstring the boards. CHAIRMAN GREEN: Okay, we've got to move on then that -- now we have Sidney Huntington who will talk about federal oversight. REPRESENTATIVE BERKOWITZ: We'll speak up. CHAIRMAN GREEN: For you, sir, we will definitely speak up. SIDNEY HUNTINGTON, ALASKANS TOGETHER: Now gentlemen, I'm kind of glad that you let me up here to make a presentation. I went all the way to Washington, D.C., to make a presentation and wasn't able to do that. I came home without. And I've been in Alaska around 83 years and Mr. Rural. CHAIRMAN GREEN: Where you before that? MR. HUNTINGTON: I was (indisc.) somebody else. CHAIRMAN GREEN: I'm sorry. MR. HUNTINGTON: I just have to say that the controversy we're now facing was designed by the federal bureaucrats and environmental organizations to ultimately gain complete control of the land, fish and wildlife in Alaska. These outside interests which to control our resources without any consideration at all for the benefits of Alaskans, let alone the Indians of Alaska, the federal government uses excuses of no rural preference for subsistence, to take control of game management on federal land in Alaska in 1990. And December 1, 1998, is the deadline for taking control of fisheries if there is no rural preference. If we didn't get a rural preference then we say, "Okay, the feds will manage now the subsistence on federal land." I say I live on state land. It won't be long before they say, hey, just like they say in other places, that species was born on federal land, so I have no right on state land to harvest that resource. Tell me that my limited entry permit won't be worth the paper it's written on for the salmon going up and down the Yukon River. Well how can we live with something like that when that's practically the only economy in that area -- during the summer when they're fire fighting (indisc.) or something like that which I don't do. And so I can't live with something like that. Of course there is a resource that I've been using has been 85 percent of my livelihood. I have raised 15 kids on these wildlife resources of Alaska. And I did not draw not one food stamp, my house was built with my hands and my own nails and hammers and stuff - wasn't given to me. And all my kids have the same thing because we set the example from the (indisc.). But we use the wildlife resources and the stuff that we're born and raised with from time way back. I have spent 20 years - almost 20 years on the Alaska Board of Game - dealing with the federal government even longer. The feds never kept a promise that they made to any Indian organization, to the best of my knowledge, in all the stuff that I've ever read, but they damn well, they made good on their threats all the way through. And they are threatening now to take over subsistence management of the wildlife resources of this state unless we have a rural preference for subsistence. This rural preference that everybody is so up in the air about, and so scared of, -- you know at one time I thought they would call me an Indian and they did. I'm half-breed and so they call me an Indian. Now they changed my name "Rural," (indisc.). You live in (indisc.), your a "Urban." CHAIRMAN GREEN: I'm an urban, okay. MR. HUNTINGTON: You're not a white man no more, you're an urban. We live with this rural concept. When I first got on the board, I'd say 14 or 15 members on that board at that time, we made regulations and promulgated reservations for everybody in Alaska, Fish Board and Game Board together. We always recognized that little fellow out there in the Bush. When the regulations pertaining to him, increased his bag limit, longer seasons for the people living in those area. We took care of those rural people that -- then the federal law came in of course, and they demand a rural. Before the McDowell thing, the Board of Game developed a rural preference. Then the legislature apparently accepted it. And then along comes old McDowell and pulls the rug out from us and then we've been in a turmoil ever since. There is nothing that I could see wrong with a rural preference. It all depends on how you want to look at it. Is it discriminating? Or what is the fact? I, myself, have been harvesting wildlife resources all my life to raise my family. I have not harvested a moose in 14 years and I live right where they're all around me, because other people have. And we made promulgated laws and regulations on the Board of Game that said there would be no want and waste of the wildlife resources. We're doing that so big old millionaires have pack that moose meat out and give it to us rural people. That's how I got my moose meat. So we can take care of ourselves, we can make ... (indisc.). You know there is nothing wrong with people in Alaska. On the Boards of Game, and stuff like that, promulgating and making regulations for Alaskans. If we don't accept some kind of a deal where we can manage our own wildlife resources, we're (indisc.) make us stick our hands out to the people in the Lower 48 to manage our resources, who don't live right here in Alaska, who care less about the resources, only the multi factor that it's their land. We'll have nothing to say. I think that the price we pay for not accepting a rural preference is too much. I never liked the rural preference, but what I have we got? ... What part of evil is the best (indisc.) right now. One is worse than the other, but what's what? I say to let the values of our wildlife (indisc.), go the hell is what I call it. Let it go if we don't manage that resource. From time on out, this wildlife resource that I'm talking about - the people of Alaska and all over really don't know the value of that resource. They really don't, they never stop and think how valuable is that resource. I wouldn't be here on this table talking to you right now if it wasn't for the wildlife resources of this country. They kept us from starving to death, historically. And I've been feeding me for years and my family and (indisc.). Right now, not only for food is this wildlife so good. Okay, the economic and social values that it has for the future is unbelievable when you're looking at the dollars and cents that these things bring in. The Native organizations and some Natives themselves get into the guiding business and the (Indisc.) Corporation the last few years have been bringing in thousands of dollars from the values of this economy. Where will that go when the feds take over? They promised you all kinds of things, but they could say, "Oh no, you can't hunt there no more, that's on federal land and you stepped over the line." And that thing has been born on federal land and all this stuff. Believe me, you can't beat those guys. What did they do to the (indisc.) in Texas not too long ago. They stole a bunch of land from them and say guns or not - didn't do no good. Right now, the [Alaska] Native Land Claims Settlement Act - I think we still owe them a bunch of ground. To accept their idea of managing our wildlife resources, we're leaving ourselves open for them to steel more land from us here in Alaska. What did they do when the Native land claims were settled? "You sign here or else we'll take more land from you Mr. (Indisc.)." They did the kind of things that we're going to have over our heads. With the management of our wildlife resources by Alaska, for Alaskans, by the state of Alaska, that's what we need to have. But any price we pay or let go this management of the resources is too high a price to let it go. And we can live together, we've shown we could live together. The common sense factor in a human being shows that we can live together (indisc.). We've got to respect the values of what people do. I don't care what you do or what anybody does, but we have to respect those values. And to say that we're going to accept the rural concept because of (indisc.) and species and something (indisc.). We cannot promulgate regulations that says fix everybody. The people here in Southeast live so differently than I do on the Yukon compared to what they live on the North Slope. You have to do it area by area, whatever it is. The Board of Game promulgates those regulations. They're experts at it. They're scientific engineers. I worked (indisc.), I got a lot of faith in them people. But when you put a issue like this or give it to the Board of Game to solve the subsistence issue, it couldn't be done. We said it couldn't be done at that time. I said 20 years ago... CHAIRMAN GREEN: I'm going to have to ask you sum up. We've got some other people, so if you could kind of summarize your comments. MR. HUNTINGTON: Well I'm done. I said 20 years ago that we'd be swimming in a bucket of (indisc.) with the subsistence issue, when the feds were taking over, unsolved and that's where we're at today. CHAIRMAN GREEN: Are there any questions of Mr. Huntington? REPRESENTATIVE PORTER: Very clear. CHAIRMAN GREEN: Now if you have a strong feeling, I wish you'd let us know. MR. HUNTINGTON: I can talk all day on this. CHAIRMAN GREEN: We enjoyed it, thank you very much sir. We have Richard Wien now to talk about the constitutional amendment with the lawsuit clause. We don't have Mr. Wien. GARY BOOTH, MEMBER, ALASKANS TOGETHER: Mr. Chairman, (indisc.). This is Gary Booth. CHAIRMAN GREEN: He doesn't look a whole lot like Mr. Wien, but I do recognize him. Number 0244 MR. BOOTH: Mr. Chairman, you recognize me, I'm sure. (Indisc.) a little for Richard today and I'm sorry that he's not here today. But Mr. Chairman, and members of the committee, I thanks for the opportunity to say a few words today. I just got involved with Alaskans Together a few days ago - about a week ago. And I can see why I have, if I look at that map over there, and I see this we thought out in the early 70s, and some of you young puppies here at the table didn't see that or you didn't see it in the late 70s when the antiquities took over a whole lot of those purple lands on there. That's kind of scary to see another hundred and four million acres that may come under the leadership of the federal government. I support this group in you efforts to try and get the resolution to this. We take it to the people for a vote... TAPE 98-40, SIDE B Number 0001 MR. BOOTH CONTINUED: ...and minerals and oil and gas. What you've seen happen over the last 15 years is most of that effort has been geared towards state lands and it's been geared toward Native lands - that's the private lands of Alaska. And I think if you want to see the continued development of that, if you want to try and find a way to keep control of your own resources. This is not a Native or a non-Native issue. It's, in my estimation, it's an access issue and it's a control issue. And I believe that very strongly now that the Alaskans Together want to work with you and the legislature to try and get a resolve to this -- try and get it as "a political" as we can to get it done. There is a time frame and we all know that and I think if we can kind of put aside the little fine details that can get resolved at a later time, but let's address the issue that's in front of us. We've heard a lot of really good small issues today, and there are big issues which are small in the light of the time frame we've got to get to. What Richard wanted to say was that -- what I was told to kind of pass along was that the constitutional amendment - if included the lawsuit clause, if that proceeded and the lawsuit was successful, everything we're talking about is complete moot and we all know that. And I think that's the primary issue the he wanted to kind of make sure that on the record that kind of got put forth. Thanks for the opportunity to say a few words and I hope that I have an opportunity to come down and talk to you some more because I think that it's an issue that really needs to get done. Number 0071 CHAIRMAN GREEN: Did he go so far as to any prognostications that -- essentially there is kind of a three legged stool in that lawsuit of whether one or more of those or all three might have a reasonable chance, because as you have told if we're successful in all three of those issues then all of this effort is not, but that - there is always a chance you might not get that. MR. BOOTH: Mr. Chairman, I'm not the one to answer that so I can't... CHAIRMAN GREEN: Okay. MR. BOOTH: But I can get the answer for you and I will. CHAIRMAN GREEN: Well, it's not that important. I mean we'll have other ... legal minds look at that issue but... MR. BOOTH: Yes, you have one coming up behind me so. CHAIRMAN GREEN: Alright. Okay, Representative Croft, did you have a question? Number 0097 REPRESENTATIVE CROFT: Just very briefly, we're in the same situation, Mr. Booth, because it's a ... not a mandatory constitutional amendment. It's an optional, so things change in the legal framework. We can do whatever we want after that. Is that... MR. BOOTH: Well I think in the leg -- Representative Croft, I think the legal framework and how the interpretation of that is, I'll leave that to the lawyers to do it. I'm not the one that can give an answer to that specifically. CHAIRMAN GREEN: Gary, thank you very much. That gets us to Martin Pihl who will talk about the resource development impacted with the federal plan. MR. JANSEN: Mr. Chairman. CHAIRMAN GREEN: We got another change. Alright. MR. JANSEN: Mr. Pihl had to catch an airplane, asked me to present his written testimony in the interest of time. CHAIRMAN GREEN: Great Jim, just... MR. JANSEN: I wish that he.... CHAIRMAN GREEN: Do you have one to speak from? You want us to make another copy? Number 0135 MR. JANSEN: No, I'd just like to just say a couple of quick words. I know you're behind schedule. Mr. Pihl spent his lifetime with Ketchikan Pulp. Probably as an abused an industry as anywhere in the state, and he would have been nearly as colorful as Mr. Huntington about his views of the federal government taking over. But the point he wanted to make for our group was that so often we look at the subsistence issue and the risks of federal takeover as being talking about our game - the importance of hunting, fishing, but equally as important is what that would do businesses that rely on resource development in this state. And I think you all understand that so I'm not going to elaborate in the interest of time. But that would have been his message. CHAIRMAN GREEN: Did he by chance talk to you - this "A" here just scares the thunder out of us - could shut areas off for oil of the -- was his thought then that if the federal government took over operations because of the sensitive nature of the environment, they then would interpret something that would preclude any exploration and development? MR. JANSEN: Absolutely. CHAIRMAN GREEN: Okay. MR. JANSEN: Oil, mining, timber, absolutely. UNIDENTIFIED SPEAKER: Access. CHAIRMAN GREEN: Access, yes. Are there any questions? Thank you very much. Mary Nordale, it's always a pleasure to have you testify or just to chat with you so you're going to talk about some legislative options. Number 0190 MARY NORDALE: Thank you Mr. Chairman. I -- We're getting to the point where we're saying the same things over and over again. I would like to emphasize a couple of points that Charlie Cole made and that Sidney Huntington made. And one is that the time has come to comply with ANILCA. The Alaska Supreme Court said, "We cannot grant any kind of a preference under the existing language of the constitution." So in order to grant a rural preference for subsistence, we must amend the constitution. ANILCA says there must be a rural preference or the federal government will take over management of fish and game on its lands. And I think that it's quite clear from what both Charlie and Sidney Huntington have said is that it doesn't mean just on federal lands, it means on state land, and it also means land management. Beyond just fish and game it means land management. So in effect, if we don't get that constitutional amendment, we will have lost our own state sovereignty. We will be a government in exile because sovereignty is intimately bound up with the ability to manage our land resources - land and water resources. Now in terms of what we can do legislatively, I think it's quite clear that while the earlier legislation that granted the rural subsistence priority, which the Alaska Supreme Court threw out, wasn't perfect. It was capable of being engineered, from time to time, to meet the perceived inequities - the perceived difficulties and it left the discrete management decisions with the Boards of Fish and Game. That is the preferred system, it works and there should be no reason to change that. But on the other hand, as we look down stream and we see, as Sidney Huntington said, there are opportunities for creating and economy out in the Bush areas, in the rural areas that is not shall we say old style. We need to deal with that as well and we need to open up the entire management of our fish and game to participation by all participants in Alaska, urban, rural, whatever. We need to bring everybody into it and we can do it, but we can do it under the kind of system we had adopted 40 years ago and we have not yet seen a better system. I would urge you most strenuously to start with a constitutional amendment and then tweak our existing statutes so that they meet what is required to retain our sovereignty and our management of our resources. CHAIRMAN GREEN: I would presume that ... all of the prior testimony, as well as yours, in thinking that we're going to have to have a constitutional change would also embody the thought that if we do that on some sort of quid pro quo that we could then extract something, as much as we could possibly get, from the horrors of ANILCA, so that we could modify that to comply with us, certainly well as we could modify our constitution to comply with them. Number 0404 MS. NORDALE: Hopes brings eternal in the human heart, Mr. Chairman. CHAIRMAN GREEN: Yes, bless your heart. MS. NORDALE: And I ... think it's quite possible for our delegation to be effective in making some necessary amendments to ANILCA after we have indicated that we are willing to grant the rural priority. Prior to that, I don't think we have any chance, what so ever, of Congress addressing that issue. We assuredly will not have that opportunity, or our delegation will not have that opportunity before December 1, 1998, and that is the day of reckoning. And that is the day that if we give up our right to manage fish and game throughout the state, we will have given up merely every fundamental right that is important and necessary to the continuance of this state. CHAIRMAN GREEN: I have just one other one and then apparently Representative Berkowitz does too, but... REPRESENTATIVE BERKOWITZ: Once today, Mr. Chair. CHAIRMAN GREEN: That's right, just not too bad and not completely, just part of it. That's kind of an in-house thing. If -- you brought up a point that I hadn't thought about, I'm not sure that the other members had, that, if I heard you correctly, that there are perhaps in the Bush area some potential for not just sustenance as consumption, but perhaps other things that could be -- my mind flashed to pinks in a pouch or something like that. Is that what you also had? MS. NORDALE: Well I think Sidney mentioned guiding as being an occupation that is an appropriate occupation in that area. I think that that, obviously if you're going to grant a rural subsistence priority that under the definitions, both existing and proposed, constrain certain activities. But beyond that, there are opportunities to develop guiding ... whether it's with camera, gun, whatever, there are opportunities for lodges, there are opportunities for all kinds of recreational tourist type activities that naturally fall. But if we can't control that, those opportunities are going to be as ephemeral as the clouds in the sky, although they're pretty persistent right now. CHAIRMAN GREEN: Representative Porter. Number 0445 REPRESENTATIVE PORTER: Thank you. Mary, is it your view that we would have to make a constitutional amendment that specifically says, "rural preference?" MS. NORDALE: No, and ... frankly, I think that rural, the word "rural" in the constitutional amendment would be a mistake. I've read the proposal of the task force, which takes about place of residence, yes, and that gives a flexibility that is consistent with the other language of the constitution, which basically set out fundamental principles on which legislation could be based to expand and define what "place of residence" means. And I think that that is the way to go. If you get it rural, then what you've got is a future of unending litigation over each tiny area, which says, "Well we're rural," and somebody else says, "No you're not," and so it goes to the courts, and we do this thousands of times. CHAIRMAN GREEN: Follow-up? Representative Porter. REPRESENTATIVE PORTER: The -- prior to our problem with our constitution and our supreme court's decisions, the statutory framework basically had what it is that I think we're coming around to... TAPE 98-41, SIDE A Number 0001 REPRESENTATIVE PORTER CONTINUED: ... basically fit with ANILCA's intent. MS. NORDALE: I think that the proposal by the task force, that says, "place of residence," complies with ANILCA. Okay. It's obviously is going to have to be defined in statute, and I think that if we talk about place of residence as being adjacent to the resource or ... near the resource - whatever, that too will comply with ANILCA. But we have to be able to make a distinction, in terms of priority, as to place of residence. CHAIRMAN GREEN: Thank you, yes, Representative Croft. REPRESENTATIVE CROFT: Question on that point. If we say "rural" in the amendment, "may distinguish between rural and urban users," or something, then rural becomes something for the supreme court to interpret. It becomes -- and then it could be conflicts between what they think we mean by rural in our constitution and what ANILCA means. But if we say "place of residence," and then we define it in statute, we preserve the flexibility on a statutory rather than on a judicial decision based... MS. NORDALE: Right, right. And I -- well to my mind, my recollections of the statehood battle, there is absolutely nothing more essential than retaining that flexibility and that - to respond to conditions as they change, as the state grows and develops. CHAIRMAN GREEN: Representative Berkowitz. Number 163 REPRESENTATIVE BERKOWITZ: There is one of the great ironies of people who are opposed to a constitutional amendment is they seem to be saying on the one hand, "We're not going to cave in to the federal requirements, but we want them to take over management of all of our fish and game." And it strikes me as being contradictory. MS. NORDALE: Yeah, and I think that ... that sort of -- I don't mean to demean what they're saying, but really ... you have a tendency to say, "Well if you're not going to play way, I'm going to take my ball and go home." And the -- and the way I say that is really not correct and doesn't give the coloration to their concerns, but I think that primarily, they have no understanding of the fact that federal management of Alaska's fish and game resources is disaster. It's disaster politically, it's disaster to the state, and it's disaster to the resource. There is no question, in my mind, that if we went into a federal management scheme that was required to give a rural subsistence priority, that that would be the only criterion on which the federal government would base it's management. And what would happen to the kind of management that the state has been working on for the last 50 years, and that is try to build the resource to try to get sustained yield, to get all these other principles built in and to protect the various species as they rise and fall, in terms of their own populations. The feds aren't going to respond to that. CHAIRMAN GREEN: Well I think you make an excellent point because it appears that the current Administration looks almost with destain at Alaska and, as they have in other areas in western states. And we need to maintain as much control as we absolutely can. MS. NORDALE: I suggest to you, Mr. Chairman, that this is no different from what it was 10, 20, 30, 40, 50, 60, 70, 80, a 100 years ago. It's the same thing. It's a - it's the Alaska chip and if you're going to play that chip, why not. CHAIRMAN GREEN: Sure, and it's very effective. Are there any other questions? Yes, Representative... Number 0345 REPRESENTATIVE CROFT: Thank you Mr. Chairman. Just on the last point on the taking my ball and going home, it seems to be more like saying, "If you won't play by my rules, I'm going to give you all my toys and then go home." MS. NORDALE: Well, you have a good point. I think you're illustration is perhaps more to the point than mine. REPRESENTATIVE PORTER: The problem is we're home. CHAIRMAN GREEN: That's right. MS. NORDALE: We are us. CHAIRMAN GREEN: We are us, (indisc.). Alright, thank you very much. And apparently, according to everybody's plan, Mr. Bob Penney, who has graciously stood on -- I guess you're still there. Are you Bob? Number 0379 MR. PENNEY: You bet, I've heard every word Mr. Chairman. CHAIRMAN GREEN: Alright. The ball is in your court now. MR. PENNEY: Let me go as quickly as I possibly can sir. CHAIRMAN GREEN: Alright. MR. PENNEY: We said in our letter to you that we set the legislative by ... July 1st, we hope you would make a decision on this issue and the reason I personally picked that date is this, that after that and into the primary, unless this issue is settled and the feds are kept out, and that's our bottom line, I think you're going to have the most divisive, political upheaval in the primary this year over this issue that I've ever seen in almost 50 years of living in the state the territory. I think that's going to happen. So we encourage all of you to please bring this issue to a closure and what is the legal way to keep to feds out. If you look at ... the calendar, Mr. Chairman, you see that about 100 days from today. Now I ask each one of you, when you put your makeup on in the morning, or you shave, whatever, would you please count how many days left you've got to make a decision and keep the feds out. I'm going to ask Jim Jensen - Jansen, if he will, to give you a copy of the list of the board members that are on Alaskans Together. I'd like to have you look at it and see the people that are a part of our group and where they're from. They're from all over the state. In all my years, Joe, I think it's the strongest move that I've ever seen together on any issue I've ever seen. And a lot of you know how many issues I've been involved in. Now the average tenure of people in Alaska on that board is 41 years. Over half of us were here and voted for statehood, and that's why we're together today. We're scared of seeing those days come back and that's driving every one of them. I'm going to go very quickly, if I can Mr. Chairman, to the person that asked a question ... of Charlie Cole as the statehood pact was broken, and that was not the point, that's not the case. Those of you that were in the forum on December 15th, will recall Senator Stevens had an aid bring him the statehood pact. From that statehood pact, he read the fact that all the critters and the fish, et cetera, that were on federal lands were wards of the federal land. Now the statehood pact did not give us control of fish and game, as Ted said that day. That was given to us by the secretary after we proved that we could take control them. So the feds said, "Tell you what state of Alaska, while you're managing your critters and fish, why don't you take over the management of all the fish and critters on our federal lands too so you can do it together." And they did that. It worked well until 1980, until somebody in Congress said, "Well you know what, the people that live on those federal lands we're going to give priority to harvest for subsistence to them." And they made it a federal law. Now the state of Alaska legislature came along and said, "Well you know what, we got to comply with that." So they did. So from 1980 to 1989, we could play by giving priority to those people that lived in rural for harvest during times of shortage. The McDowell decision turned that over. It's a very narrow point that the McDowell decision turned over, and that's what we're talking about putting back into the law today. It worked all those times, it works now and it's a very minor thing. If you have time, I'll touch base on the fact that we've always managed, before statehood, during statehood, today, by state statute, since 1978 by state law, priority has always been given to harvest in rural for subsistence. The ... Board of Fish does. You and I don't have subsistence rights in urban. You only have it in rural. It's always been there. All this is going to do is take that state statute and covert it basically to a constitutional amendment. And I think that, number one, is the most important one. Next point, Chief Porter, did you see a letter I sent you on March 13th in which we touched on needs and area? And I think I covered it very clearly. I didn't tell you in that letter, but the two page part that came on fish and wildlife came from a retired person. I believe that person answered most all the questions you had there. And I'd love it, Chief, if you'd take a chance at that, I won't take up your time now, to come back and answer me and tell me where I was not right on some of those points. Ladies and gentlemen, ANILCA is a compromise. What you have before you in the task force plan is a compromise. I don't like all of it, Theo Matthews doesn't. I don't know anybody that does. It must be a good law because nobody likes it. But what it is, is it's a heck of lot better than what we have. Has anybody stopped to think where we would be today if Ted hadn't taken the rope, tied it around this lifesaver called ANILCA, hung it onto an appropriation bill and threw it out in the Congress and got it passed. You wouldn't have an issue today. You wouldn't have these hearings. There wouldn't be nothing to talk about. You wouldn't have this biggest divisive issue before you. Point out one thing, the feds would have already taken over. All the horror stories we're talking about would be going on today. Now what do think you'd do to get rid of them. Those amendment proposal in ANILCA would be torn up and thrown away. So we have an unusual situation today that we have a law, which I submit to you Mr. Chairman, there is always a compromise. We have a compromise the other side has already agreed to. Now we don't have to like what they've done. We don't have to totally concur with them, but at the same time, they've said what they'll do. Now, in my opinion, you got a 100 days to tweak it. Tweak it whatever you can because Senator Murkowski is (indisc.). Senator Stevens tells us he doesn't think there is much in the way of change. But given change -- but please give as much as you possibly can for this place. On the statehood question, on the lawsuit, I sent a letter to the Speaker on December 30, proposing a amendment that would take place (indisc.) in the event that this whole thing was found unconstitutional, it could be thrown out. I have that research by Senator Stevens' office during the month of November. And the lady in his office can answer your questions. She has researched it. It's legal federal law, it's legal to every state law. You can add that amendment to the constitutional amendment, proposed one, saying that in the event the court revealed - this thing is thrown out of court. And I support that 100 percent myself. I think that's a heck of a way to go. I won't go thorough anymore because I know it's been long. I thank you all for all the people that you allowed us to come down and wished they could have started sooner, because they could have been there because you've got a lot of people who took time out of their lives for one reason. Not for money, because they're interest in seeing (indisc.) solution. And for myself and all the rest that's on the board, thank you for your time. CHAIRMAN GREEN: Thank you Bob, Representative Porter has a question or a comment. Number 0864 REPRESENTATIVE PORTER: Just a comment. Bob, I got an airplane just before this fax came in, and I just got off an airplane this morning, so I'll be reading it. MR. PENNEY: Chief, I've known you for 35 years. I just asked you look at it and read it and tell me if it doesn't answer all the things you and I talked about. REPRESENTATIVE PORTER: Will do. MR. PENNEY: Thank you. CHAIRMAN GREEN: Well Bob, I want to thank you for the committee and I certainly want to thank you people that have stayed around here now well beyond the time that we should have been through. I know that you had to sacrifice to come down here in person to testify, but I truly do appreciate it. I know how much that means then to what you've been saying. If you're willing to take that much time, you really do stand by what you're saying. And I personally find this as really refreshing because I'm looking at people who I know, individually, have differences of opinion on a lot of issues, and yet you're willing to come down here, in mass, as a group, together, and that's personally what I would like to see us do from this committee as a group. And if we can get with the administration for the Native community, solve this thing as Alaskans and ... completely bipartisan that I think we can do it. I really do, I think we can do it and I think we can get cooperation too, but then maybe I'm a Pollyanna. But I do appreciate your efforts. Thank you. Any other comments? [HB 406 was held over for further consideration].
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