Legislature(1997 - 1998)
03/20/1998 01:05 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 CHAIRMAN GREEN said the committee would hear HB 406, "An Act relating to subsistence uses of fish and game." Number 0072 ROD ARNO, President, Alaska Outdoor Council (AOC), came before the committee to testify. He said he appreciates the committee's efforts in trying to stop a federal takeover of game management. He stated, "It's a hoax for the public to pretend that Alaska will secure any kind of permanent authority to manage fish and wildlife on federal public lands in Alaska by amending the Alaska constitution to permit discrimination among Alaska residents. An amendment providing a rural preference to public assets to fish and game resources will give Alaska limited authority to manage fish and wildlife within federally-specified guidelines. But that authority will at all times ... remain revocable by Congress and subject to decisions of federal courts. Only a decision by the U.S. Supreme Court will regain state subsistence management of fish and game. MR. ARNO stated: "Title VIII of Alaska National Interest Lands Conservation Act (ANILCA) is a flawed law. First, it's not in the best interest of conservation. The idea to move on to wildlife habitat and get a priority to live off the land is contrary to wildlife conservation. Biological risk data tabulated by the Alaska Department of Fish and Game are these two volumes right here. Let me just read you one example, and this example has to do with Dall sheep in a number of game management [units]. This is game management 24 and it says, 'confusion, biological risk, and decreased subsistence opportunity.' It says the great difference between state and federal bag limits begs explanation. The nine- month season for a bag limit of three sheep in Gates of the Arctic National Park is the most liberal of the North American continent. This regulation infers that sheep are either hyper-abundant or in need of population reduction. Neither is the case. Sheep population throughout the Brooks Range have declined notably since the '90s and are at modern historic lows. This federal subsistence hunts carries a high probability of further reducing sheep populations in the area.' This is just one of many examples of conservation concerns." Number 0340 MR. ARNO continued, "There's an increase in the request for reconsideration on federal subsistence regulations put in by the Department of Fish and Game. And each year that the federal subsistence board has operated these reconsiderations have increased. Under ANILCA as it is now, under ANILCA as it's been amended by [Senator] Stevens, there's nothing that will substantially change the way that the federal government is managing the game side of fish and game. "Second, Title VIII of ANILCA causes divisiveness and discrimination among people who share similar interests. Title VIII of ANILCA, in the findings, says that Native cultural existence, non-Native social existence, needs to be preserved in their relationship to harvest of wild game. Right now, in rural areas of Alaska, over 54 percent are non-Native. In the urban area just in Anchorage, 20 percent of the Native population in the entire state lives in Anchorage. And if Congress has decided that if you're a Native in a rural area, you have cultural existence, and if you're non-Native the best you can have is social existence, then what do the Natives that live in the urban area have as an existence in regard to wildlife harvest? And, again, requests for reconsideration of federal subsistence regulations shows clearly the discrimination. Here's an example of one, this is up in ANWAR, the refuge, Red Sheep/Cairn Creek drainages where they've excluded non-local rural residents and the state has said, 'The state's legitimate interest in continued opportunities for a diversity of uses of resident wildlife is unnecessarily restricted by this regulation. Finally, this regulation impairs ... the state's ability to fulfill its obligations under the Public Trust Doctrine.' And, again, these are all submitted by the Department of Fish and Game." Number 0497 MR. ARNO concluded, "Of all the House committees, the Judiciary should understand best that substantial changes to Title VIII of ANILCA must be negotiated to assure sound conservation of natural resources and to put an end to the divisiveness among Alaska's people." MR. ARNO thanked the committee for allowing the concerns of the AOC's members to be heard. The AOC hopes to have the opportunity to help the legislature craft a workable solution to Alaska's subsistence management issue. Number 0528 CHAIRMAN GREEN referred to Mr. Arno's testimony regarding ANILCA, and Senator Stevens' amendments. He asked if we get certain changes to ANILCA, would it have a direct bearing on the AOC's attitude. MR. ARNO asked if he is referring to state lands. CHAIRMAN GREEN replied state and/or federal lands. MR. ARNO responded, "Absolutely." He said the AOC, from the beginning, has been concerned with the flawed public law in Title VIII of ANILCA. And no matter what changes the AOC makes to conform to that law, if they can't make the substantial changes that are necessary for the concerns they have, then that's the impasse. Number 0591 REPRESENTATIVE CON BUNDE referred to the appeals by the Alaska Department of Fish and Game to the federal subsistence board, and asked if he knows the number that have been granted or overturned. MR. ARNO stated he does not have that number. The appeals he referred to are the areas he hunts in and follows personally, and none of those have been overturned. REPRESENTATIVE BUNDE asked if the nine-month sheep season still exists. MR. ARNO replied, "Correct." REPRESENTATIVE BUNDE stated he is concerned with divisiveness. He said they can please one side or they can please the other, but he has a difficult time seeing how they can please both. He asked how fighting for the urban majority would reduce the divisiveness and anxiety in rural Alaska. MR. ARNO indicated he has been a guide-outfitter on public lands in rural areas for 33, years and the only time he seen a conflict is when he comes to town. The conflict doesn't seem to exist on the land where the hunting activities are occurring. Mr. Arno stated, "As far as what we could do to reach a consensus and assure rural people, Natives particularly, that their interests and concerns would be legitimized to where they wouldn't have to feel that, I think by looking at a broader spectrum of time that we are concerned with today - and not looking to population increases that we're seeing in rural areas, and as those things became clearer to people now in rural areas, the realization that all you have to do is move onto that land base and you qualify - that they would feel and see in time such increase in use that their opportunities would diminish respectively to that." MR. ARNO continued, "The way you do that, to not have that happen, is to have bag limit seasons. You manage wildlife as the state did prior to ANILCA, and you manage for abundance. And the only way that I think we will get past the divisiveness is realizing that a unified management under the state that is allowed to manage for abundance, unlike the federal mandate is today, that we can then go ahead and have that resource available on a regulated basis." Number 0821 REPRESENTATIVE ETHAN BERKOWITZ referred to a question he had asked Mr. Arno in a previous committee meeting regarding limited entry permits and said in that context Mr. Arno indicated he thought that kind of discrimination was acceptable because people have the opportunity to buy a limited entry permit. Representative Berkowitz stated he has raised the question of whether people have the opportunity to move rural, and that Mr. Arno was going to explore what the difference was and if the AOC had a position on that distinction. MR. ARNO stated conservation is the difference. It's not in the best interest of conservation, which is the number one concern to the AOC. And for people to be able to continually move onto wilderness and wildlife habitat and then gain an opportunistic, live-off-the-land privilege to that is not in the best interest of conservation, unlike the limited entry that was in the best interest of conservation. REPRESENTATIVE BERKOWITZ said they were discussing that in the context of equal protection and Mr. Arno found that limited entry was acceptable within the context of equal protection because someone had an opportunity to purchase a limited entry permit. He stated he had suggested it and what he heard was that people had an opportunity to move rural; therefore, it would somewhat be analogous as far as equal protection is concerned. MR. ARNO replied the difference is a priority based on your zip code. Number 0972 REPRESENTATIVE BERKOWITZ asked for clarification that Mr. Arno is not basing an objection to a rural preference on an equal protection argument merely on a conservation argument. MR. ARNO answered in the negative, stating it's discriminatory based solely on where you live. That is discrimination. REPRESENTATIVE BERKOWITZ said he's not sure he understands the distinction. He stated, "There's discrimination as far as me being able to fish. I don't possess a limited entry permit. That's a discrimination. Is that fair to say?" MR. ARNO replied no. REPRESENTATIVE BERKOWITZ stated if he can buy a permit it would not be discriminatory. He then asked, "Can I not move rural?" MR. ARNO responded that he could. REPRESENTATIVE BERKOWITZ asked whether that same question of being able to get around discrimination would not apply in this context. MR. ARNO replied no. REPRESENTATIVE BERKOWITZ asked if he would explain the distinction again. Number 1006 MR. ARNO replied, "Your ability to purchase something is not discrimination. If you so choose to work hard enough to get the money, borrow the money, you can buy it. You'll agree with that. That is not discriminatory. You have the opportunity to purchase. But to have a rural preference to the harvest of fish and game resources that are a public asset on public lands, you need to physically move and get a zip code in an area designated rural." CHAIRMAN GREEN stated as he understands it, if you live anywhere in the state you can buy a limited entry permit, but you can't live anywhere in the state and get a priority under subsistence. REPRESENTATIVE BERKOWITZ indicated a person can buy a house in rural Alaska from anywhere in the state. CHAIRMAN GREEN replied, "That's true." But he thinks what Mr. Arno is saying is that by doing that, that person is set apart from those who live within the city, as opposed to a person can live anywhere and still buy a limited entry permit. Number 1070 REPRESENTATIVE BRIAN PORTER asked what would be the best relationship the legislature and federal government could end up with in relation to state management versus some degree of federal oversight. MR. ARNO said with constructive changes to Title VIII of ANILCA and working from that base, he feels they could easily, in statute, come up with a program that would do exactly what the intent of ANILCA was, which was to provide that resource to people who depended on it and people who had traditionally used it. The thing that prevents them from doing that is federal management, as they have actively stepped in. The AOC feels that the judicial enforcement has been overstepped with the administrative enforcement, and by stopping this process they can go ahead and manage the resource to accommodate rural subsistence users. Number 1183 REPRESENTATIVE PORTER stated, "I would guess that if we are able to put out anything, it will certainly have a caveat that whatever we do is null and void, if this lawsuit should be one that would answer all of those questions. Setting the lawsuit aside, from a political solution would it be acceptable if that were the only remaining alternative, from your point of view, to have basically within ANILCA and our own statutes the agreement that the state would manage fish and game within the state on federal land, and that there would be a deference to our management? Not anything further than that, recognizing that, and there isn't total agreement on this, but I think more folks than not believe that the property clause does leave some residual federal oversight that we're never going to get rid of. Would what I've generally described there be generally acceptable?" MR. ARNO replied, "The history of trying to get changes to ANILCA, you're well aware of what hoops that we've jumped through and where we have been stopped repeatedly trying to go through the judicial system on that. That the breach of faith is such a wide gap, and particularly with the public law that Senator Stevens got in this last November, that for us to go back and say, okay, we're going to, in good faith, make an agreement that capitulate with the hopes that you'll change in the future. I don't have that faith personally and as I see here in the findings that Stevens got in, the whole argument of ... the State v. Babbitt, that in the findings, 801(b)(4) as Stevens has got, in accordance with Title VIII of this Act, the Secretary of Interior is required to manage fish and wildlife for subsistence uses on all public lands in Alaska because of the state's failure to provide a law for rural preference. This is the whole argument, and I believe that once the state of Alaska had made a compromise that the voters agreed on and accepted this that we would have less of a standing on the judicial side because they go, look, you've already passed this through. That's one piece. The second piece is, as we have seen and was written by Judge Holland, there were a number of reasons why the Alaska District Court did not pursue moving the "McDowell 3," the Olson, through the courts. And Judge Holland specifically says the reason for that is because of the hope that this would be taken care of through legislation. Once we ... capitulate and say, okay, we'll do it your way, I think ... to get standing would be much harder and that our argument would be weakened by the amendments here." REPRESENTATIVE PORTER commented he didn't think anything that would come out of here would not have a proviso that the provision Mr. Arno just read came out of ANILCA. Number 1395 REPRESENTATIVE JEANETTE JAMES noted Mr. Arno has spent a lot of time in the rural areas, so he understands what happens there. She said the court and Senator Murkowski have indicated that we could define that need without a constitutional amendment. She asked Mr. Arno if there is a possibility of doing that without creating it as a welfare system or a huge administrative chore, and if there is a simple way the legislature could define that need in rural Alaska and put it into the statutes without a constitutional amendment. MR. ARNO replied, "Yes, absolutely." He stated he has worked with a number of people in his capacity with the AOC that have spent years working with management for the state, that have the knowledge and expertise to go ahead. REPRESENTATIVE JAMES asked Mr. Arno if he would agree that whatever the legislature passes statutorily should provide a framework and that the implementation should be determined by the Board of Fisheries and Board of Game. MR. ARNO replied in the affirmative, explaining that is something the state is set up to handle quite well and could do a more than adequate job, given that opportunity, without the constraints that he has seen the Department of Fish and Game try to deal with regarding what happened under the federal subsistence board regime. REPRESENTATIVE JAMES asked Mr. Arno if he believes, with his experience working with and observing the Alaska Department of Fish and Game, that if the Department of Fish and Game were in charge of this issue totally, that both non-Native and Native subsistence users and nonsubsistence users would all be winners. MR. ARNO responded, "Absolutely; yes, I would." Number 1527 REPRESENTATIVE ERIC CROFT asked if HB 406 is not the solution to subsistence, what the AOC would propose. MR. ARNO responded the AOC has not drafted a complete solution of their own to date; however, the solution would have to contain numerous changes to the flawed law of ANILCA before they could proceed. He said as they look back on the AOC's position on Governor Hickel's subsistence group, they believe that may have been the closest to a really workable solution that the AOC would be able to come up with because of continued public pressure. "That is a piece to look at that allowed for the intent, as I see ANILCA, to be implemented," he added. REPRESENTATIVE CROFT asked what the major components of AOC's solution would be. MR. ARNO informed the committee that everyone who lived in a town with a population of less than 2,500 automatically qualified for subsistence. He stated that there was a varying degree that as the population of the town increased, more stringent requirements would have to be met in order to qualify for that priority use. Number 1630 REPRESENTATIVE CROFT asked if a person living in a town under 2,500 automatically qualified, whether that would be discrimination by zip code. MR. ARNO said the problem is a flaw in Title VIII of ANILCA. He stated, "You're continually asking me what kind of a hoop could we jump through to make small changes that would make a flawed law work." He said the AOC does not have a scheme that would make a flawed law work. REPRESENTATIVE CROFT said he doesn't want the AOC to make a flawed law work. He suggested setting aside the political realities and instead discuss what the perfect management system would be for Alaska. He is interested in what the AOC thinks is the appropriate preference for subsistence uses. MR. ARNO stated the best example, for conversation's sake and to eliminate discrimination, is a system that has been put together under democracy, that everyone is considered equal, that we manage for conservation on a system that encompasses both federal and state lands. He said the best system we will need for the next millennium, to provide for conservation, is a unified system and access determined on bag limits and seasons. REPRESENTATIVE CROFT asked if local people would have a preference over people outside the location. MR. ARNO referred to the Hickel version, stating there was the same standard of lifestyle that would allow people who resided in rural/ urban areas who lived a subsistence lifestyle to have a priority. Number 1779 REPRESENTATIVE CROFT referred to Mr. Arno's earlier testimony, stating as he understood it, Mr. Arno wanted to avoid federal court oversight over subsistence on federal land. He said he has not been able to find anything that indicates the federal government has said they are going to give up federal court oversight over federal lands. MR. ARNO explained the AOC is opposed to administrative oversight, which is what Judge Holland gave the Department of Interior with a fill-the-gap authority. He stated, "When you look at the two cases that went through the courts prior to his takeover, the judicial oversight, if judicial oversight followed an ANILCA that was liveable, there wouldn't be any problem. To have to ask the federal government not to give judicial oversight isn't the direction--we're forced into that position, but that isn't the direction we need to go at all. What we need is a public law that is reasonable to administer by the state, and if those concerns then fell out, there wouldn't be the problem with the judicial oversight." Number 1852 REPRESENTATIVE BERKOWITZ referred to the Hickel plan Mr. Arno discussed earlier with Representative Croft. He indicated he lives in Anchorage and under the Hickel plan he wouldn't qualify for subsistence, based on his lifestyle. He asked if he would qualify if he moved to a community with less than 2,500 people. MR. ARNO informed the committee Dick Bishop will be testifying and since he was on that panel, it would be more appropriate to ask him those types of questions. REPRESENTATIVE BERKOWITZ asked Mr. Arno if it was fair to say he does not like the consequences of federal management. MR. ARNO answered in the affirmative. REPRESENTATIVE BERKOWITZ then asked if he believes it's necessary to enact a constitutional amendment to protect state management of fish and game. MR. ARNO replied a constitutional amendment will not assure state management of fish and game. REPRESENTATIVE BERKOWITZ said that was not what he asked. He said the state has a number of options: they can do nothing; they can attempt a statutory fix; or they can do a constitutional amendment. But whatever they do has to in some way comply with the wishes of the federal government as far as ANILCA is concerned. He asked if the state had an appropriately worded constitutional amendment, could we get through ANILCA and maintain state management? MR. ARNO replied no. REPRESENTATIVE BERKOWITZ asked Mr. Arno if he feels the state has made some sort of deal with the federal government so that the state is in charge of fish and game management. MR. ARNO answered, "Sure." Number 2015 REPRESENTATIVE BERKOWITZ said the reason he asked that is because he's looking at the Alaska Native Claims Settlement Act (ANCSA) conference report where it seems clear to him the federal government indicated that they were going to protect Native subsistence. He said if it's a deal that benefits us or if it's a deal that we're required to carry out, it's still something we have to do. MR. ARNO stated, "If it means the concerns to conservation that we're seeing by carrying that out, if it means discrimination and you want to stick with that deal, that's fine." He said the AOC is testifying that they would like to change the parameters that they are having to make that deal under. REPRESENTATIVE BERKOWITZ remarked, "I understand that you don't like ANILCA, but ANILCA is the law of the land, but there's been nothing to prevent you from coming forward with an alternative solution, and I'd be happy to entertain it if you could produce it." Number 2034 REPRESENTATIVE BUNDE referred to the AOC's position on the sale of subsistence-caught fish and game. He stated it's a difficult concept for him to deal with. As he understands it, some court decisions would allow the sale of $15,000-17,000 worth of seafood, and he is concerned that it would, through other court settlements, broaden out to game. He is very concerned about regressing to the 18th Century in market hunting again. He asked if his view is incorrect and also asked what the AOC's view is on this. MR. ARNO said the AOC is concerned that there is then the definition; the state definition improved on that. That is not the lifestyle that ANILCA is really asking us to ensure. Mr. Arno said it was their concern in the Knowles task force on the proxy hunting that that would essentially do that same thing if someone had the advantage of hunting more, and they were so inclined, that it would be closer to market hunting than what has been available under the past laws. REPRESENTATIVE BUNDE pointed out that people in the Anchorage area shoot beluga whales on shares and they accept a contribution for gas to run the boat and then share the meat. To him, that sounds like selling. He asked if shooting a beluga whale and selling $15,000 worth of meat would be specifically prohibited by the Marine Mammals Protection Act. MR. ARNO said he did not know. REPRESENTATIVE BUNDE stated that he interprets subsistence as meaning it's required or you die. With that in mind, he feels subsistence does not exist in Alaska because the state would not allow a person to starve to death if they were in need of food. He stated he prefers to describe the activity of subsistence as supplemental or personal use. He asked what the AOC's position is on this. MR. ARNO said, to date, the AOC is not opposed to subsistence. They agree with RurAL CAP [Rural Alaska Community Action Program] that it's a basic human right. The definition of subsistence is one of where your population or your family's well-being or death depended on the fluctuations in wildlife populations. He stated that's not the case, that we have an artificial base, that nobody is going to starve off of it, and it's only going to increase population. "With that point to say that, yes, it's a basic human right to harvest wild food stocks for consumption, the AOC would agree. But there again on the definition of subsistence, if your population isn't tied into a cycle of decline as the cycle of the resource declines, then we have a false system, and I'm sure that that's a lot of why we're in the quagmire on subsistence that we are." Number 2234 REPRESENTATIVE JAMES referred to Representative Berkowitz's testimony regarding the conference report. She asked if he would agree that the intent of ANILCA was to protect a Native subsistence lifestyle. MR. ARNO replied absolutely. He asked, "What do you think the chances were that if 95 percent were non-Native, that the federal land managers would have encouraged Congress to allow that group of people to have the opportunity to hunt opportunistically on federal public lands? It wouldn't have happened." REPRESENTATIVE JAMES asked: If the ANILCA conference report would have been worded 'rural Native' instead of 'rural Native and non- Native' would we be having this problem today? MR. ARNO said he cannot answer that one. Number 2279 REPRESENTATIVE JAMES indicated the federal government can make Indian law and they can give Indians other things than what others receive. She noted that Indian is not a good term because much of the Native population in our state are Eskimo or Aleut. MR. ARNO replied to his knowledge, he would agree. REPRESENTATIVE JAMES concluded by stating we probably wouldn't have the lawsuit in the first place, so we wouldn't be having this problem. Number 2301 REPRESENTATIVE CROFT referred to Representative Bunde's earlier testimony interpreting subsistence as meaning "it's required or you die." He stated, in that context, no one in this state is in that condition now; therefore, there's no subsistence in this state now. MR. ARNO said in his personal opinion he would agree. REPRESENTATIVE CROFT stated under that definition of subsistence, no one qualifies. He then asked, "If there's no subsistence defined as 'required or you die;' is there any aspect of the broader idea of subsistence that's worth protecting?" MR. ARNO replied in the affirmative. He indicated subsistence is something we need to protect for all humans, on a limited basis for those who aren't living in that habitat, so they have the opportunity to make that connection. It's extremely important for Native people to continue to have that opportunity and that connection for environmental reasons, if nothing else. CHAIRMAN GREEN thanked Mr. Arno for his testimony and called on the next witness to testify. Number 2419 DICK BISHOP, Member, Board of Directors, Alaska Outdoor Council, came before the committee to testify. He commended the committee's efforts to address this issue. He briefed the committee with his background, explaining that 25 years ago he became very concerned with the prospect of ANILCA being formulated and passed, and that subsistence was in dire straits, with a distinct possibility of being eliminated from substantial portions of Alaska. TAPE 98-42, SIDE B Number 0001 MR. BISHOP continued, "[Begins mid-speech]...extensive national conservation system units in the state. And it was also very clear, and I was involved, as a matter of fact, with that group that they had absolutely no sympathy for the continuation of the public's opportunity to hunt, fish, trap, and make other uses of natural resources on the public lands, and that if there was any way, they would ensure that those kinds of uses would be prohibited in these substantial areas." He said the principal coalition of organizations advocating that viewpoint, whose first demand on Congress in the passage of ANILCA was that all the conservation system unit lands be classified instantly as wilderness, was called the Alaska Coalition and, to his embarrassment, he chaired the first session of that coalition. He noted the coalition consisted of approximately eight people in Fairbanks, with representatives from the Wilderness Society, Sierra Club, Audubon Society, Alaska Conservation Society, et cetera. Mr. Bishop said it was clear to him that those organizations were determined, in the sense of public uses of renewal natural resources, to constrain that to the maximum extent possible. Number 0073 MR. BISHOP said as a result, he became very in sense with the need to protect these kinds of opportunities. It became apparent to him that subsistence, the lifestyle of depending on natural resources for one's livelihood, was in jeopardy. He noted it became very apparent to him in an area he was very familiar with, which is the north side of Denali National Park. He told the committee he was a biologist in McGrath from 1969-71 and was well-acquainted with what was going on in that area. He was concerned that those kinds of uses would be eliminated by a proposal for the expansion of Denali National Park. Therefore, he documented and produced a review of the level and kinds of human uses of natural resources in that area. Fortunately, a similar effort was made in other areas and one of the results indicated there was some provision made for subsistence. As it turned out, there was a great effort by the Alaska Federation of Natives (AFN) to include some measure of protection in ANILCA because they saw the very same risk at hand and they felt it would affect their constituents. MR. BISHOP informed the committee the reason there's a rural priority, instead of what preceded it in state law of just an Alaskan priority, was that the council and a representative for the AFN, Don Mitchell, met with representatives from the state and federal governments and said, "Look, we're either going to have rural in this law or we're going to do our best to kill it." He indicated that was a flat statement in a small meeting he attended in Washington, D.C. Mr. Bishop noted the previous state law in 1978 did have a subsistence priority, but no rural provision. Number 0194 MR. BISHOP stated that he continues to be a strong advocate of subsistence lifestyles and cannot support the idea of a rural subsistence priority because the federal law is not adequate in regard to sound conservation and discrimination. MR. BISHOP then addressed rural priority. He referred to the McDowell case, noting the Alaska Supreme Court found that the rural priority was unconstitutional under our existing constitution, and that to require people to move to rural areas exceeded the standards of territorial discrimination. MR. BISHOP commented he was pleased to hear that people who advocate the rural priority felt it was an important opportunity to be able to harvest fish and game for food. He said the AOC agrees strongly with that, and they have supported subsistence lifestyles consistently. It's the matter and the manner of the priority that has caused them grief. He said he has often heard that ANCSA required a conference report and expressed the expectation that both the state and federal governments had an obligation to accommodate subsistence needs of Alaska Natives, in particular in that context of ANCSA. He continued, "But it didn't say that it had to be on the basis of a rural priority. It didn't say that it had to be for Natives only. It didn't say it had to be discriminatory. And it didn't say that it did not imply that it need be a 'no-closed-season, no bag limit,' as it turned out to be under ANILCA." Mr. Bishop stated there is a vast difference between adequately accommodating a legitimate need and doing it at the extreme expense of the rest of the population of the state. Number 0320 MR. BISHOP stated that he wanted to comment on a couple of myths. One is that the priority under the federal law only comes into play during times of shortage. He said that simply is not true, and it is one of the few points that the AFN and the AOC agree on with regard to subsistence. To fortify that myth and to try to provide a glimpse of how things might work in federal court, he referred to the Bobby case, which was a case in federal court against the state for not adequately providing for subsistence in the case of a man who shot a moose near Lime Village in 1989. It was very shortly before the Alaska Supreme Court threw out the rural priority in state law. Mr. Bishop said the upshot of it was that the man had taken the moose outside of the established state season. It was taken to court by Alaska Legal Services, and they argued that it was not consistent with the customary and traditional requirements in the federal law to which the state was bound at that time, because at that time the state still had the rural priority in law and was in conformity with federal law. He stated that if one looks at that case, one will get some idea of how it might work if we get back in conformity with federal court law and have federal oversight. Number 0407 MR. BISHOP pointed out that Judge Holland looked at the case and determined it was not wrong for the man to have done that according to the law, that it was consistent with customary and traditional use, and that customary and traditional use amounted to whatever had been done in the collective past by the people in the area using that resource. He said "in the collective past" includes a long time. What that meant was that the federal law provides for a no-closed-season, no-bag-limit scenario unless there are two provisions, unless it's counterproductive to the continuation of subsistence or to sound conservation. Mr. Bishop commented that sounds pretty good but the difficulty is that it's very easy to prove customary and traditional use because it's based principally on oral history. To prove there is a conservation risk to a population, the standard of proof is very different. A court demands that a scientific study be done to establish the risk to the population. He concluded that was how the federal law worked then. Number 0459 MR. BISHOP continued his testimony, noting that under Senator Stevens' amendments, that would be modified somewhat because it has some language about giving deference to the state agencies' decisions and a deference similar to that given to federal agencies. He told the committee he has a review of that language and read the following: "The proposed amendment to ANILCA in Section 807 provides no more than a thin sheet of protection from the cold reality of federal court oversight of state fish and game management and penetrating federal judicial scrutiny." He indicated if there is federal court oversight, there's a potential for decision like the Bobby case, and that means that the best-laid plans of the state fish and game management for the conservation, use, and allocation of fish or wildlife could very easily be overturned. Number 0528 MR. BISHOP expressed that there is a wide-spread assumption that the federal government can do anything it wants on federal lands, including manage fish and game. He stated that it is very clear to him that unless Congress has specifically provided federal agencies the authority to regulate those assets that are federal property under the property clause, they do not automatically have the authority to manage assets on federal lands. He stated that reference is made regularly to the Kleppe case in New Mexico, regarding whether the federal government did overrule management actions of the state involved on the basis of the property clause. The difference there was Congress had provided that specific authority. He noted the circumstances are not the same here. Congress in ANILCA did not give that authority, in this case, for the management of fish and game to the federal government. In looking at the committee reports, the history of ANILCA, progressively the authority of the Secretary of the Interior to manage fish and game was reduced and ultimately eliminated. What was left was the authority to assure there was a subsistence priority on federal lands. There was no authority provided to the Secretary to manage fish and game. Mr. Bishop explained that issue was a question in State v. Babbitt which needed to be addressed. He stated it was an injustice to Alaskans collectively when the Governor dismissed that case with prejudice. He said that is his view, which he feels is consistent with the AOC's view of the question of the authority of the federal government to manage (indisc.) because it's federal land. That's just simply not the case, regardless of the Babbitt case. Number 0654 MR. BISHOP advised the committee that one of the contentions AOC has made is the myth that by conforming to federal law, we will get state management back. He said it's really an oxymoron. If we conform to federal law, we get federal law. Mr. Bishop gave an example of a federal requirement: The federal government requires that, in making funds available for the building of highways, the state must build to certain specifications. If the state does not comply, they withhold the money. Hence, there is not the threat of the federal government taking over the responsibility for building highways if the state does not conform to that. In this case, there is the threat of the federal government coming in to take over fish and game management, whether or not they have the legal right, if the state doesn't conform to federal law. MR. BISHOP stated that in trying to put together a state law that does the job, one of the critical issues is how does it relate to the management of fisheries and how do we deal with the federal court decision on Katie John. He has heard that Senator Stevens' amendments addressed that, which will eliminate the concerns with Katie John. He indicated there's nothing in Senator Stevens' amendments that he can see that does that. He concluded, "As a matter of fact, there's seeming acquiescence to the decisions by the courts in Katie John, in Alaska v. Babbitt, in the findings that are added in the amendments of Senator Stevens' to ANILCA. So I don't think that problem has been solved at all, and that's of great concern." Number 0769 MR. BISHOP pointed out Attorney General Bruce Botelho said that we need a rural priority because it's the right thing to do. He informed the committee he sent them an opinion piece which was published in the Anchorage newspaper, indicating he could not believe Mr. Botelho, the principal law authority of the state government, could be saying that it's the right thing to do, when in 1989 the Alaska Supreme Court said it's the wrong thing to do. Mr. Bishop said it's the wrong thing to do because it discriminates incorrectly among people's interests and it is a very crude attempt to meet the benefit provided under the constitution to all Alaskans being able to take fish and game for food. He noted the court cited that as one of the important elements of the law, which was attempting to provide for the opportunity to take food. Number 0852 MR. BISHOP said the other comment that Mr. Botelho made that he found objectionable and unsubstantiated was there was a fundamental difference in how rural and urban people gather food. He said that simply is not the case. He noted he sent the committee information which reflected that merchandisers recognize perfectly well that what drives the rural economy is money. He indicated there are literally dozens of catalogues that go to every rural box holder in Alaska. He pointed out that he checked with one distributor based in Anchorage and was told they mail over 44,000 "Bush shoppers" every month to rural Alaska. He said people in rural Alaska are on the cash economy. There's absolutely no question that the use of fish and game for them is very important to their livelihood. He said the AOC's view is there is not a fundamental difference in how rural and urban people gather food. Number 0950 MR. BISHOP referred to Representative Croft's earlier question asking what the AOC would do. What the AOC did at that time was agree to the idea that it would be acceptable to have a subsistence priority in state law if it were based on how one lives, not where one lives. In that proposed law was a set of criteria which would apply to everyone in Alaska regardless of where they lived. He indicated the same standards would apply, which consisted of a level and variety of use and a degree of effort that would be required to qualify. The difference in treatment of people had to do with what was presumed about whether they qualified. People who lived in areas considered rural were presumed to qualify, but it was a rebuttable presumption. He said according to the proposed state law, not everyone could continue to qualify just because of where they live, so they began to look at how people live. For example, if a person did not have a hunting license, it would not be a very good indication that that person is really dependent on those resources; therefore, they would no longer qualify. Mr. Bishop reiterated that it's a rebuttable presumption. Number 1061 MR. BISHOP pointed out that middle-size communities with a population of 2,500 to 7,000 people would fill out an affidavit indicating they qualify. Again, he said that is rebuttable. He said people who live in Fairbanks or downtown Anchorage would have to provide an affidavit certifying they did meet those requirements. He noted the key to that kind of approach was that the same standard applied to all Alaskans if they wished to qualify for subsistence, which was based on how they live and not where they live. Mr. Bishop stated it was the opinion of the former Attorney General Charlie Cole and others that it did not require a constitutional amendment. He indicated it was an acceptable distinction under the constitution. Number 1112 MR. BISHOP concluded his testimony, stating subsistence lifestyles are extremely valuable. He noted the Alaska Supreme Court said that it is a tremendous value, and given that fact and the interest people have who wish to pursue those kinds of lifestyles, the AOC maintains that it is not proper to restrict subsistence on the basis of an arbitrary and discriminatory standard such as zip code or any other closed-class-type criterion. In conclusion, he said there has to be a sound management scheme to conserve the fish and game resources of Alaska. Number 1167 CHAIRMAN GREEN thanked Mr. Bishop for his testimony. He asked, "If there were caveats to ANILCA that were tied to whatever was required to the state to get the caveat, which probably would be something like a constitutional amendment, that the issue in Katie John would be removed from an ANILCA requirement, could you see that there would be some merit, then, because it may be that the state could end up actually overseeing all of Alaska, both land and navigable waters, and we bypass a lot of stigma that's associated with ANILCA now? Do you think a) that that would get us where we want to go and b) do you think it's even possible?" MR. BISHOP replied the agreement would be if the authority for management of reserved waters which is a result of the Katie John, were removed, that it would be reasonable to amend the constitution or make a concession to the requirement of the federal law in order to ... CHAIRMAN GREEN interjected, "There would be two or three issues. Those are the first that come to mind because of what you have said in testimony that we would require, as part of the quid pro quo ... that we would amend the constitution and agree, not necessarily to operate the way the federal government says, but the way ... we have seen fit to operate and enhance the stocks that that would be worth a constitutional amendment then because we could operate the state of Alaska like it should be operated." Number 1308 MR. BISHOP replied that he thinks that would be part of the answer, but he would be reluctant to say it would wash away all their troubles. Even if that were done, they would still have a provision for federal court oversight of the quality of the state provision for a subsistence priority. He thinks they would still have a big problem. He said, "We might even have a problem in fisheries, and we certainly would have a problem in terrestrial management. So I think we might have to go a little further than that." CHAIRMAN GREEN stated that if we look at harvests since the state took over, the harvest numbers have dramatically increased. He asked Mr. Bishop if he feels it's because we have better ways to harvest or better management providing more "critters" to harvest. MR. BISHOP asked if he was referring to anything in particular. CHAIRMAN GREEN noted that generally harvest levels are up, especially in fishing. MR. BISHOP stated that is true of fisheries in particular. He told the committee he read a historic review of harvests in Cook Inlet which indicated there were instances where there was a tremendous increase in the take, which he feels was due to better management and better equipment. He stated that it is also clear with regard to salmon runs in general that, under state management, the salmon populations have recovered almost from the brink of depletion, noting it was incredible how small the harvests of salmon were at the time of statehood. Mr. Bishop said that has not been the case with moose and caribou harvests in many parts of the state, which have gone up dramatically. He noted there are many areas that have had depressed populations, and there are others such as the Western Arctic where they are very high. He indicated he does not think anyone has a good idea of what the harvest levels are currently. Number 1531 REPRESENTATIVE PORTER asked Mr. Bishop if he feels the state could prevail in the lawsuit filed by legislative counsel that would, to some degree, remove the requirement to have a subsistence preference. He stated, as he understands Mr. Bishop's position, that the ultimate goal that could be supported by the AOC would be no subsistence preference. MR. BISHOP stated that the AOC does not believe a subsistence priority is necessary in law to properly accommodate people who rely on the use of fish and game for their livelihood. REPRESENTATIVE PORTER asked if he would agree the only way to achieve that would be through the courts. MR. BISHOP stated that is probably true, but he does not know what the outcome would be. REPRESENTATIVE PORTER stated, "There is no doubt in my mind if we were able to reach consensus, meaning the legislature, on anything that it would certainly have as a caveat that if the lawsuit prevailed, that whatever was allowed by the lawsuit that was qualified under the statues would drop off, become null and void." He continued, "Short of the Hammond plan, the system that was in effect prior to McDowell and all that that provided a -- basically the kind of thing I think everybody is talking about that had the additional caveat of proximity to the resources, one of the qualifications which was struck by the Kenaitze case, would that that would be a reasonable middle ground?" MR. BISHOP asked, "That being a proximity clause?" Number 1726 REPRESENTATIVE PORTER replied, "Be it the whole 'shebang' that we had in existence previously. I mean, with our definition of customary and traditional that seems to be a little bit better by the Stevens' amendment in here. And our definition of trade and barter, those kinds of things corrected. But I guess the only concession to what we'd all like to see is that proximity to resource is something that should be considered when establishing subsistence preferences during shortages." MR. BISHOP indicated after considerable argument, the council concluded it was much more important, if there were to be a priority extended to some Alaskans, that it be extended on the basis of how they live, not where they live. Mr. Bishop clarified that the criteria should reflect a commitment, either voluntary or involuntary, to a subsistence lifestyle that demands the reliance and extensive use of fish and game resources to persist in that lifestyle. He said it was "based partly on the McDowell case, partly on what our reading of the constitution was, partly on a collective judgement of what it was that people seemed to be wanting to get at." He indicated a priority based on how one lives reflected better the need, if there's going to be a priority, than anything else. He added that the Alaska Supreme Court also said a priority that was based on individual criteria that related to a person's lifestyle would be less invasive of the common use provision of the Alaska constitution, as opposed to a geographic distinction. Number 1903 REPRESENTATIVE PORTER commented he does not disagree with anything Mr. Bishop has said, but it is his opinion that if the legislature does not come forth with something that meets the intent of a local preference, they have failed. He asked Mr. Bishop what he feels would be the least offensive provision that would meet that rural preference. MR. BISHOP stated from his perspective, the priority would have to be related to a place that had few alternatives and where clearly the majority of people relied on fish and game for food. Number 2143 REPRESENTATIVE CROFT asked Mr. Bishop if, in his opinion, there would be very few of those bona fide places left. MR. BISHOP replied that's correct. REPRESENTATIVE CROFT said even under what Representative Porter was talking about, they wouldn't have many places to define. He referred to Representative Porter's question about local preference, stating that he wants to understand why local proximity preference doesn't make some sense. Representative Croft gave an example, "If we take your criteria and analyze everybody across the state and find out who is truly dependent not for 100 percent, but for a substantial amount of fish and game resources, and we find somebody in Wrangell who relies on the fisheries there for their subsistence, and there's somebody in Kotzebue who relies on the game resources there for their resources, why does it make any sense to have that Wrangell person have a subsistence right for the Kotzebue herd and vice versa? Why wouldn't it make more sense to say, on those criteria, you have only a right to the things that you have customarily and traditionally used? And we're going to do it by area rather than somebody having some - what strikes me as an odd right - to fly 3,000 miles to subsist." He asked, in that context, why doesn't locale make a lot of sense as a criteria? MR. BISHOP replied that he believes in that sense, it does. If, however, in that same context, the law operated as the federal law presently does, which is that all other uses must be eliminated before customary and traditional uses can be restricted beyond what has been customary and traditional, then it doesn't make very much sense. He explained what that means is until they've assured those subsistence users in Wrangell that their customary and traditional uses have been met, other people may not be allowed to either hunt or fish. He said, on the one side, it has merit; however, there's no sense in someone flying across the state to hunt for subsistence, although there are people in the Bush who have airplanes who will argue that they routinely use them as a tool in their subsistence gathering. Number 2378 REPRESENTATIVE PORTER stated that he was interested in Mr. Bishop's testimony that the current subsistence preference by ANILCA is a subsistence preference regardless of shortage. He indicated he does not disagree with that but asked, "Would we not - do you think from your experience - be on safe ground in trying to meet their conditions by saying that it will only be in our law at a time of shortage, given that there is an adequate abundance for people's needs sans a shortage?" MR. BISHOP said he did not understand the question. REPRESENTATIVE PORTER stated that he thought Mr. Bishop was concerned that ANILCA would provide a subsistence preference on public lands regardless of shortage. MR. BISHOP said, "I'd like to turn it around and put it this way, that ANILCA demands a priority [ends mid-speech because of tape change]." TAPE 98-43, SIDE A Number 0001 MR. BISHOP continued, "... not the level of need and not whether there's a shortage or enough for somebody else besides subsistence users to use." He said the standard is providing for customary and traditional subsistence use. Under the federal law as presently constituted, that has to be done regardless of a shortage or not. REPRESENTATIVE PORTER said if we narrowed down what customary and traditional meant in terms of volume, that it was just for personal use for sustenance, we would be pretty close to personal use, and subsistence use would be taking the same volume of fish and wildlife so that a subsistence preference would be unnecessary unless there was a shortage. Number 0103 CHAIRMAN GREEN stated that unfortunately we've plowed up some snakes when we've dealt with the Department of Fish and Game because their definition of subsistence is not the same definition or concept that he has. What they consider the cut-off for subsistence is more what he would consider personal use. This is a lower, closer-to-the-sustainable-yield area that gets into their Tier II. He said we've got a nomenclature problem that we're going to have to work out, which may be causing some of our problems. REPRESENTATIVE BERKOWITZ said he wants to clear up a misconception he feels Mr. Bishop and others have. He said McDowell was not a equal protection case. It was ruled on an equal access basis, which is a big distinction in the law. He referred to his earlier question regarding limited entry, stating that he asked it in an equal protection mode, not in an equal access mode, which he feels should have been answered on an equal protection basis. Representative Berkowitz said, "This is, in a way, a directive to where I want to go here, which is your assumptions about the 2,500 - Hickel task force - where there's essentially, as I understood it, your rough description, three tiers: presumed in if you're under 2,500; arguably in if you're 2,500-7,000; and presumed out if above 7,000." He asked if that was roughly correct. Number 0253 MR. BISHOP replied that that's roughly correct, explaining that a person is presumed in for both of the lower categories, regrettably. REPRESENTATIVE BERKOWITZ said in those cases distinctions are being made, albeit about presumptions based on where a person lives. MR. BISHOP replied that is correct. REPRESENTATIVE BERKOWITZ stated, "It seems to me that you - having accepted distinctions based on place of residence - would be accepting of some sort of overarching, say, a constitutional amendment that referenced place of residence and then have a statutory scheme that incorporated the concerns that you just articulated?" MR. BISHOP indicated he understands the distinction between the common use and equal protection in McDowell. However, in terms of the approach Representative Berkowitz just mentioned, the critical point was what the standard would be for some preference in the use of fish and game in order for it to be fair to all Alaskans in terms of their opportunity to qualify under the law. The same standard for qualifying would apply regardless of where a person lives. The presumption about people in outlying areas qualifying was to make it easier to administer that in recognition that a higher proportion of people, for example, in a rural area would be likely to qualify than people in an urban area. And the people in the in-between-population-level centers would be in between also in terms of the relative proportions that are likely to qualify. Mr. Bishop pointed out there is wording in the proposed law about it being administratively efficient. He said that was the idea about it, but the basic question of conforming to the opportunity to use fish and game under the common use provision of the constitution was addressed by stating the same standard based on how one lives regardless of where one lives. Number 0441 REPRESENTATIVE BERKOWITZ asked, given that there is some necessity for a constitutional amendment recognizing place of residence, whether Mr. Bishop would accept a constitutional amendment articulating the possibility of place of residence followed by a statutory scheme with the three tiers. MR. BISHOP responded that he certainly would not. He said he's been around this "game" for at least 20 years and he would have to admit to a certain level of skepticism about follow-through on some things. He said looking at what was supposed to follow through under ANILCA and what actually did, there's not much ground for optimism unless things are carefully spelled out. He stated, in his opinion, that it is agreeing to a closed-class priority based on residency with no assurance of how it would be administered. Number 0614 REPRESENTATIVE BUNDE asked Mr. Bishop what his view and the AOC's view are on the Public Trust Doctrine and how it applies to the challenges the state is facing. MR. BISHOP stated that there is a distinction between the public trust and the Public Trust Doctrine. As he understands it, the Public Trust Doctrine refers to things applied, and the public trust refers to commonly-held resources that don't get damp. He told the committee he feels the Public Trust Doctrine holds a great deal of promise in terms of reinforcing the obligation of the state to manage in the best interest of all Alaskans, for example, to provide for things such as the common use and proper management of those resources. He stated that there are numerous references in decisions from the Alaska Supreme Court that strongly indicate that the state of Alaska is the trustee holding in trust for the people of the state renewable resources. It has some level of responsibility to manage those responsibly and to provide the opportunity to use them that are in the best interest of the collective public. Mr. Bishop said he is not sure how that would be done, but the principle is there in his reading of the Alaska Supreme Court determinations. Number 0782 REPRESENTATIVE BUNDE asked, "If we were to amend the constitution established in trying subsistence as to an important right, do you see a spinoff or impact on other resource development?" MR. BISHOP replied that he thinks it is a distinct possibility. He stated that if you consider for a moment some of the debates over developmental projects without any particular provision in state law, there is often a great public debate over the appropriateness of those developments in relation to their potential impact on subsistence. Regardless of any change in law, the potential is already there. He also noted that in the federal law there is a provision in ANILCA that no use of federal lands can be undertaken unless due consideration is given to its potential impact on subsistence. Mr. Bishop gave an example: If someone wanted to put in a road on federal property, they would be required to look at that proposal with respect to its potential impact on subsistence, and if it poses a significant detriment to subsistence, it probably won't get approved. He said the question he has not been able to get answered is if the state conforms to the federal law, to what extent is the state obligated to support the same kind of consideration as far as least-adverse impact on subsistence of other land or resource uses. REPRESENTATIVE BUNDE asked Mr. Bishop if places such as Sitka, Kodiak and Bethel, which have paved airports and jet service, would meet his description of rural. MR. BISHOP said he would not consider those places rural. Number 0955 REPRESENTATIVE CROFT commented that in his reading of the Public Trust Doctrine, it means we should trust the public to vote on this matter. He said he disagrees with the legal conclusions regarding what it restricts or does not restrict. He stated he has heard that the AOC's position that this is federal management through the guides of the state and that they are not getting state management back through the task force. It seems to him there's a fundamental distinction between management, the day-to-day operation, and what guiding principles they are managing by. In his opinion, they would get management back under an agreed-upon set of principles. He referred to Mr. Bishop's example of highway specifications, stating, "We have state management of the highways, but they are done according to the basic minimum federal standards, and that seems to me to be substantially different from having to call [Washington] D.C. to get my pothole fixed." He said it isn't federal management of the highways because there are some minimum federal specifications that must be met. He asked if he is missing something on that distinction or whether it is that unimportant. Number 1039 MR. BISHOP indicated that's exactly the point he is making, that it is not federal management in that case, that the federal highway department cannot say that a highway must be built to their specifications or else they will build it. What they say is either build the highway to the federal specifications or else they won't get the money or they might be fined, for example. They don't usurp the role of the state; that is the difference. The other difference is that they're not talking about a common property resource which is clearly spelled out to be the property of all of the people of the state. He added, "If you are forced to operate by a set of rules implemented by another entity, that for which the objectives are decided by that other entity and the state doesn't set the management objectives and so on how to get there, then I don't think you have state management." Number 1110 REPRESENTATIVE CROFT asked, "Don't you have management? You just may object to some of the guiding principles, the highway specifications, but you still have management, so the task force plan would give us state management even if you disagree with some of the guiding principles they put on." MR. BISHOP gave an example, "I worked in a factory once setting up boxes to put cans in and I managed the production of those boxes because I had to set them up in a particular way and put them on the conveyor belt and make sure the cans got in them. But the rate, the kind of box, what goes in it, and so on was set by management policy, and that was set by the guy upstairs, not by the grunt working on the assembly line." And his perception of the situation is if the state conforms to the federal law to manage fish and game, then the state is the grunt working on the assembly line, and the policy and purpose of the management, and the direction and the rate of recovery of the salmon population, or the conservation of the Western Arctic caribou herd, or the recovery of the Forty Mile caribou herd will be set by someone else. He concluded by stating, "The state will have little to say about that and the federal government will say provide a subsistence priority to rural people, if that's the way it goes, and that's it." CHAIRMAN GREEN thanked Mr. Bishop for his testimony and said as the committee deliberates this issue, they would like to call upon his expertise. MR. BISHOP said he would be pleased to do whatever he can. CHAIRMAN GREEN called on Carl Rosier to testify next. Number 1218 CARL ROSIER, President, Territorial Sportsmen Incorporated (TSI), indicated they are a Juneau-based outdoor recreational organization which has been active in fish and wildlife conservation issues since 1947. They have approximately 2,000 members who reside mostly in the Juneau-Douglas area. He pointed out he has personally been involved with the management of Alaska's fish and game resources since 1955, and he was last employed as commissioner of the Department of Fish and Game under Governor Hickel from 1991- 1995. He said he is pleased that the committee is continuing to wrestle with the subsistence issue under HB 406. He expressed that the bill was a good start, but they had some problems with some of the implementations of the bill. There were some good concepts, which he feels continue to contribute to the knowledge which he believes can be built upon to put together a fair bill for all of the residents of Alaska. MR. ROSIER said the TSI was quite concerned for a number of reasons over the Governor's proposal developed by the subsistence task force. He indicated that proposal, while requiring an amendment to the state constitution provide a rural preference, did not and does not return management of fish and game to the state. It merely provides the state the authority to implement a federal system under the scrutiny of the federal agencies, and ultimately the federal courts, in the case of disputes. He said there is as much art as there is science in the decision process in many cases of the day-to-day management of these resources. He pointed out he can speak with some experience because he worked for the National Marine Fisheries Service from 1980-1991. He said he was employed under a grant program for fisheries development. There was no question in his mind that the grant funds were to go to recipients within the state of Alaska, and they had to be spent on fishery development. The fishery development policy that decided how that money was to be spent did not come from within the state, but the policy direction came from the Washington, D.C., level. Mr. Rosier said, "We did not have the authority to do this at the region level on this. There was a national interest thing that was involved in 'developing the fisheries conservation zone' out there. And while we can take into consideration state views and this type of thing, ultimately that policy decision was in fact developed at the Washington, D.C., level, and it was handed down to the state. If you want the money, this is what you're going to operate under." Number 1411 MR. ROSIER continued, "I see basically this situation here in spades with the situation that we're in at the present time, kind of damned if we do, and damned if we don't on the question of federal management on this." He expressed that what he sees occurring is the federal government has a federal bureaucracy that's already in place. He believes the current cost for federal management on subsistence is approximately $10-15 million. He said the state is faced with the possibility of federal management in fisheries as of December 1, and feels federal agency involvement will continue to grow. He said there aren't too many federal entities willing to keep their fingers out of the decision process. He said, "They have the authority; you've got to remember that you're operating under a federal law, and it's a situation, at least in my mind, where you can't have that situation in management of fish and wildlife. It just simply does not work. You stand up, you make your decisions based on the best information at hand on this, and you better be right 51 percent of the time in terms of making your management decisions out there." He said that is responsibility and that's what accepted by the people put into the field. If they don't put that responsibility on them, ultimately the resource will suffer because of the compromises that occur. The legislature can deal with compromise, but when making those resource decisions out there, one can't do that. He stated it's got to be one way or the other. They won't get that under a dual system where the federal government is involved. Number 1521 MR. ROSIER referred to documents he provided the committee which outline the TSI's position on the work of the subsistence task force. He indicated a legal document was prepared to answer the question of federal court deference if the Governor's task force proposal was adopted and the state came into compliance with provisions of ANILCA. He said, "Although highly touted as the protector of the state in the event of controversy arising under the federal law, our legal analysis of the deference provisions indicates very shortly that the state's right to manage receives very limited protection with a great discretion afforded the federal judges." He told the committee members he will provide copies of the legal documents to them. MR. ROSIER advised the committee the TSI has been actively involved in subsistence and they have adopted a number of issues that would guide them in their efforts to find a solution for subsistence, which he reviewed briefly with the committee. He said the first issue we need to look at is the conservation of the resources. That has to be assured in any system that is brought forth on this issue. He said the basic human rights of all Alaskans to take fish and game for food must be protected. He noted that previous legislatures have done a pretty good job of doing this. Under the current state law there is an emergency-taking provision, which allows people to take food under this provision. There is also a proxy-taking provision, which gives people access to resources if they are incapacitated or over a certain age. He commented that the legislature has been sensitive to the idea that fish and wildlife resources are there to be taken by people on a needs basis. Beyond that, there are regulatory programs that are provided for in Title 16 that sets up the provisions under which these can be taken. He stated provisions are also available for ceremonial-taking purposes. Number 1677 MR. ROSIER said the TSI feels that the constitutional guarantees of equal legal standing and common use of the resources must be protected. He stated, "Ultimately, we recognize that we may reluctantly be faced with some form of limited constitutional amendment to narrow our preference to true subsistence users in times of shortage. If this should occur, we would ask that there must be a clear linkage with ANILCA changes along the lines of those Representative Masek has provided for in HJR 21." He said he felt she did a good job on that bill and those are the types of ANILCA amendments the TSI feels would be necessarily tied to any constitutional amendment. MR. ROSIER indicated full state fish and game management on all lands and waters must be restored free of federal oversight. He said, "I think the key thing here is the provisions that we've had before us to date lumps the state and private lands into federal lands." He said the bottom line is that state and private lands should be excluded from federal court oversight. Without this provision, the state has no leverage in any future negotiations with the federal government. In his view, we're out of business if we capitulate and put state and private lands in the "hopper" with the federal public lands. Number 1775 MR. ROSIER said the TSI supports the full retention of current fish and game management authorities and responsibilities exclusively by the state of Alaska. Currently, the state averages 150-200 million salmon catch per year which is the highest in the history of the salmon industry. He pointed out that game populations are scientifically managed and are in pretty good shape with the normal ups and downs that go along with terrestrial animals. He stated that the record is pretty clear that state management has come a long ways from the miserable inheritance that we got in 1959 from the federal government. Mr. Rosier stated it is not a program that can be taken lightly and it has been very successful in his estimation. Number 1841 MR. ROSIER gave his final analysis, stating that the TSI believes strongly that the people and the resources of Alaska will be far better off under an unencumbered state management program, and this should be everyone's goal. TSI also believes that whatever the final solution arrived at by the legislature, if a constitutional amendment is involved, state residents must be afforded the information to determine if they are in or out prior to being asked to vote on this issue. Mr. Rosier thanked the committee for the opportunity to testify and indicated TSI stands ready to work with the committee on any legislation regarding subsistence. Number 1869 REPRESENTATIVE PORTER asked if the current provision in HB 406 that provides the highest and best use for consumption would be problematical for sport fishing and hunting and guided sport fishing, et cetera. MR. ROSIER said he is not sure that is really the situation or why that concept is out there. He stated, "You can't manage resources on the smallest stock at the end of the bay here on this." He said there is a mixture out there and that's where the art comes in because in management that's where one finds out that he or she does not have all of the information and relies on the person in the field to make those critical decisions. He said he would have some problems with that concept. CHAIRMAN GREEN asked, "Would it be possible if, for example, in an area that might be called a subsistence area because of low yield (indisc.) specific species, but because you can't manage on discrete stock, that you could still manage on the abundance of the others, but still maintain a subsistence harvest only on one stock?" MR. ROSIER replied there are techniques for doing that, depending on the fisheries at that time. He indicated it has been done in the past under the Board of Fisheries regulations. REPRESENTATIVE BERKOWITZ asked what the term "equal legal standing" means. MR. ROSIER explained, in his view, that equal legal standing means if a person goes before a judge, they have just as much right as the person standing next to them, no matter what the color of their skin or their ethnic background is. He said he does not feel he has equal standing under the federal law in this case. [HB 406 was held over.]
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