Legislature(1997 - 1998)
03/25/1998 01:07 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 0035 CHAIRMAN GREEN indicated the only order of business would be HB 406, "An Act relating to subsistence uses of fish and game." He noted the version that came to the committee was CSHB 406(RES), Version Q. He stated people have been working on a proposed CS that is more focused. Some issues needing to be addressed are the Alaska National Interest Lands Conservation Act (ANILCA) and federal (indisc.) that could possibly impact the state's ability to operate its own fish and game activities. Chairman Green pointed out that CSHB 406(RES) does avoid the necessity to change the state constitution, but there is a strong question and some legal back-up that says it does not fix the concerns that have been expressed about ANILCA and federal take-over. He indicated there is a new proposed CS. Number 0175 REPRESENTATIVE ERIC CROFT made a motion that the committee adopt the proposed CS, CSHB 406(JUD), 0-LS1573/R, Version R, as the working document. There being no objection, CSHB 406(JUD), Version R, was before the committee. CHAIRMAN GREEN said, "The R version now would take this from establishing a large user group for the possibility of subsistence that would require a rather large implementation of state employees to screen the individuals who would be qualified under it to a much more streamlined version. However, in enacting this bill that would allow the fish and game department to designate, among users, that would require that we modify the state constitution. There is no vehicle attached with this at this time because we first had to adopt this version, and we have so that by tomorrow we will have a draft copy of a resolution to modify the state constitution. In the meantime, the essence of 406 Judiciary, or the R Version, is that under normal circumstances we would establish a nonsubsistence area or areas that would essentially encompass the Railbelt of the villages and cities that depend primarily on a cash economy as opposed to primarily on a dependency for fish and wildlife as their main means of subsistence, or sustenance, or their activities. We, in this bill, would empower the Department of Fish and Game with the right to establish, in times of shortage, and that's a long way from the fact that we have -- in most cases in the state now we may not have a plethora an abundance, but we certainly have a very viable fisheries. We have a very large numbers of herds of land critters, and so in that period we would continue to operate fish and game as it does now. And ratcheting down, depending on the availability of the game or fish that would be above the sustainable yield, and that's the bottom line, that's the floor -- as we approach that, there are certain restrictions that [the Department of] Fish and Game would apply. They would reduce bag limits, they would probably go to, just as they do now, seasonal shortenings, lengthenings. Commercial fishing would have more or fewer fishing dates. Until we get to the point where in a particular area, and I say that and we've got this map, that if, for example, we got to an area that out here there was a shortage to the point that the sustainable yield, the amount of critters or fish that was available for take was so close to the sustainable yield that the local residents, who have been depending on that for a lifestyle, would utilize that harvestable amount. If that were to happen, [the Department of] Fish and Game then would be empowered, through this Act, to come in and consider this as a dependent subsistence use area. That does not affect any of the rest of the state and it would be every day as usual depending on bag limits, changes just like they do now." Chairman Green continued to show the committee members areas of the map and explained only people whose domicile is within an area would be entitled to take a particular species that was the trigger mechanism for classifying an area as dependence subsistence area. If one species of fish triggers it, that is the only species that would be considered a subsistence use. Fishing of other species would continue to be available. Number 0613 REPRESENTATIVE BRIAN PORTER said in his reading of the proposal, the individuals who would ultimately get what used to be called a Tier II preference, wouldn't have a requirement that they earn or not earn a certain amount of money. CHAIRMAN GREEN said, "That's right. At one time that was involved and in fact it was part of the Resources Committee inclusion that there be an economic barrier there or bar, if you will. We have ... or thought about raising that. Finally decided to exclude it because the people that we envision actually ever being included in a dependent subsistence, a Tier II type thing if you will, would be people who live in a certain area. And to say now, 'Let me see your income tax return or show me that economically you depend on that,' to me is kind of an envision of their privacy and I don't think that's really necessary." Number 0731 REPRESENTATIVE CON BUNDE commented that believes that the state average income is $27,000, the average teacher earns about $39,000. Representative Bunde said he can understand how the concept could apply to game because when you go to hunt moose, you don't shoot caribou by accident. He referred to fishing and said there are mixed stocks. He said, "As I was hearing your description, I was thinking about - okay, we'll cal it chums are reduced in number, they're an important fish for somebody on a subsistence level. But the commercial fishermen want to be in the river catching silvers." Nets aren't selective as you can't catch and release with a net. Representative Bunde said when there is a targeted species, particularly with salmon, you would probably have to shut down all take in order to protect the targeted species. CHAIRMAN GREEN said he doesn't know that that would be a necessity, but that certainly is a possibility. He stated there is the ability to project, under normal circumstances, how much escapement there would be for a certain species. REPRESENTATIVE BUNDE said, "I would use the Kenai Kings as an example, people that are fishing up river think all the commercial fisheries should be cut down because ... there is an incidental catch. I've fished there, I know some people throw away Kings or eat them and don't sell them so they don't have to count them. But if there were a subsistence priority for Kings in the river, you'd have to really shut down the red fisheries or do some limitation of it." Number 0956 CHAIRMAN GREEN said it could have an impact. He said, "And again, that's a an example that I'm very, very little, but somewhat familiar that there are ways commercial fisherman can do in the inlet that would target a certain species even though they are migrating at the same time. The way and where you're fishing -- if you're in the corridor, if you're next to a set net or -- you're probability of catching Kings would change with where you're fishing. And so they could leave the fishery open and say, 'No, the bycatch is still too high. We are going to have to shut down for a week to allow enough Kings in the river.'" Number 0993 REPRESENTATIVE ETHAN BERKOWITZ said in reviewing the CS, he didn't notice that there was an explicit provision for a subsistence preference or a subsistence priority. CHAIRMAN GREEN asked if he is talking about the dependent subsistence area. REPRESENTATIVE BERKOWITZ clarified in the subsistence use and allocation of fish and game. CHAIRMAN GREEN referred the committee to the bottom of page 3 of the CS, Version R. He said, "If you get to a point that within that little circle, there still isn't enough escapement, there's enough that we don't want to shut it completely, but there's not enough for the projected need for that area, it is a dependence subsistence fishery declared with priorities for the locals. And then among those, there is currently then, in this thing, a prioritization among the people who live there." He said there is a priority for just the local residents. Within that, there is a further prioritization. Number 1069 REPRESENTATIVE BERKOWITZ said he has some questions about definitions. He stated the word "domiciled" hasn't been defined. CHAIRMAN GREEN informed the committee that there are probably two or three issues that haven't been defined. He indicated the committee would work on those definitions. REPRESENTATIVE BERKOWITZ referred the committee to page 4, (d)(1)(A), "use of fish and game for the principal component of the diet throughout the preceding 12 months;." CHAIRMAN GREEN interjected that he had just been informed that domiciled is in a different portion of AS 16.05.940 of the fish and game statute. He again noted that there are some words that haven't been defined. REPRESENTATIVE BERKOWITZ said, "Discussing the use of fish and game or sharing for the previous 12 months, ... someone who has gone away to school or someone has been serving in the military, someone has been sick. What sort of provision do we make to allow them, when they return to their community?" He said the way he reads the requirements, he could not classify himself under subsistence if he went to school for a year and came back. CHAIRMAN GREEN stated he couldn't for the first year. Number 1255 REPRESENTATIVE PORTER referred to Representative Bunde's scenario about Kings and said the bill appears to allow the Board of Fish and the Board of Game to identify the stocks or the populations that are traditionally taken as subsistence stocks or populations. Representative Porter said, "I guess the only other two things that I looked at was that it looked like we've did an amiable job providing that what we were offering here was a reasonable opportunity and not a guarantee all the way through except in this last tier. I may be misreading it, but I don't see any provision that we're still saying, even in the last tier, that we're only offering a reasonable opportunity." CHAIRMAN GREEN responded, "If not, that is an oversight." REPRESENTATIVE PORTER said the committee may want to expand on the definition of "trade" or "barter" that appears in the regulation. He said, "And kind of include it with 'trade' and 'barter' as one definition, taking into account noncommercial and something to avoid some of the federal court decisions we've had." CHAIRMAN GREEN stated that is a good point. Number 1300 REPRESENTATIVE CROFT referred to wording on page 3, line 12, "subsistence under nonsubsistence hunting". He said, "We've done a good job of identifying what fish stocks or game populations are customarily and traditionally used locally, identifying ... and quantifying them to make sure that they can be harvested under sustained yield and keep that going. And I guess I don't see how that local subsistence customary and traditional use is then protected. And I wanted to explore how it would be protected - implemented under a sport or personal use or other regulation. When we say, 'nonsubsistence,' or if we change it to 'generally applicable,' if Representative Rokeberg lives in a village ... that has a customary and traditional use of the fisheries stock, customarily and traditionally takes 500 fish in a non-wasteful way out of that river, and ... there is ten families there and each takes about 50 and uses them, and takes them with a fish wheel. How does Representative Rokeberg apply for a sports permit that allows him to take 50 fish from a fish wheel? I don't know of any such sports permit now and if it's ... not a sports permit, if it's a subsistence permit, is that open to just those people who have that bonafide and shown customary and traditional use, or everybody in the ... state? Which was contemplated here?" CHAIRMAN GREEN stated what was contemplated is that under existing rights, the Department of Fish and Game, through regulations, will allow, during plentiful times, for the building of a fish wheel. As we begin to lose that abundance, regulations from the Department of Fish and Game will begin to restrict certain users. It will be different in different parts of the state. He said in that section, he would like to indicate that the Department of Fish and Game, through regulations, would have the right to actually establish a restriction among users. He noted this would require a constitutional amendment. Number 1524 REPRESENTATIVE CROFT said, "If it's a stream overflowing with fish, the excess population that we rarely get into but just purely.... Then villager Rokeberg can take his ordinary, customary and traditional use and Representative Bunde can fly out there and take 50 if it can (indisc.). As that shrinks down, the board has the power to protect his use while ratcheting down non-local, nonsubsistence, non-customary and traditional uses until you're finally down to a level where even those can't be satisfied anymore, in which case you're forced to distinguish between villager Porter and villager Rokeberg." CHAIRMAN GREEN responded, "It could get that severe, but this would kick in even before that so that the two villagers should have the ability to get theirs, not guaranteed, but reasonable opportunity. And it's only then that there is only half enough, then you would distinguish among the villagers or the area. But the working its way down would -- rather than to extinguish one user group completely, the way [the Department of] Fish and Game has managed it in the past is that they restrict all user groups as well as they can to still allow this use. It's not a priority, but to be sure that they're covered and they just restrict, restrict until they can't restrict anymore. They're going to have to now drop some people out." Number 1621 REPRESENTATIVE JEANNETTE JAMES said she sees fishing as an entirely different issue than hunting because of the location. She said there may be some places where people have been or will want to or should be able to fish subsistence and they live aways away. She said she thinks they do some traveling. Representative James said another concern is commercial fishing takes place first before the fish go up the river. She questioned how that will be managed. She then referred to a problem the Yukon River had a few years ago where there weren't any fishing going up. The subsistence fishermen couldn't fish. She asked how that issue would be protected. CHAIRMAN GREEN said fishing and hunting are different. If an area is determined to be a subsistence area for a discrete stock of fish, it may have no bearing on the hunting. It may have no bearing on the other species of fish, so those would be independent. They may overlap but only because it's a happen (indisc.), not because one requires the other. Chairman Green referred to the Yukon River and said for some reason the harvestable fish went way down. He said, "This is not an exact science, it's a projection type thing that the Department Fish and Game uses. And if they anticipate that there is going to be a low yield, they probably would start impacting commercial fishing early on. If, on the other hand, it's a very big surprise to them there is no reason to think that all the fishing groups that use the fish that go up the Yukon, there is no reason to change what they've been doing. Oh my gosh, we've seen suddenly that we're half way through the run and there aren't any fish getting into the Yukon. It would be as they do. And, again, we use this nonsubsistence river, called the Kenai, as an example. Shut off commercial for a day, reduce the numbers of days, whatever is necessary to allow fish to get into the river and they do that now. So that's not an uncommon situation." REPRESENTATIVE JAMES questioned if identification of the areas are done once. She asked if it's done every year. She asked how would the people, who are depending on subsistence uses, know when the rivers are going to be available for subsistence use or not. CHAIRMAN GREEN responded, "It is not done in perpetuity, it's not done every year. It's only done when it's necessary and that would be determined by [the Department of] Fish and Game. We have these six regional boards that we have not in placed here and probably should if we're going to make some changes, who also will have advisory groups and the advisory groups say that, 'Hey, we've got a problem on the Lower Yukon,' or wherever it might be. They review it and they react just as they do now. If there is a very low yield - Representative Bunde talked about the Kings, and please be assured that the Kenai River would not be a subsistence river. But on that basis, we better do something about shutting down because the King yield is way, way down. There's not enough there for the -- let's assume that Soldotna was a subsistence village within this subsistence area. There are not enough there to get them so we're going to have to shut down the other fisheries because personal consumption would be - or subsistence, the highest and best use and working back up the ladder." REPRESENTATIVE JAMES said if it is not presumed to be a shortage, then there is no identification of a subsistence priority. She asked if they have to fish with their fishing license just like anybody else. CHAIRMAN GREEN stated they have to do it in a normal customary tradition, whether it's a fish wheel on a certain river or a net, they would do what they normally do. REPRESENTATIVE JAMES said it would be all the time unless there is a shortage and then they're curbed. CHAIRMAN GREEN said that is not what he is saying. He said, "I am saying they are the last ones curbed. As there is plenty of fish all people do their customary thing. As you begin to rachet down, there are not as many as there were expected or normally, then there is a going to be a restriction of seasons. Bag limits will go down, commercial fishing days will drop. It will go down and down and down and down until finally there is only enough to supply the subsistence area for those who customarily use it. They're the last guys out of the box." Number 1909 REPRESENTATIVE JAMES said there are nonsubsistence areas and everything else is subsistence areas. If an area is a subsistence area, you can't do nonsubsistence fishing or hunting there. CHAIRMAN GREEN said that is not correct. If you come from a nonsubsistence area, you can fish in the subsistence are as long as there is plenty of fish, but you can't establish a priority among users in the nonsubsistence areas. He stated that nonsubsistence means you don't get a subsistence priority and it doesn't have anything to do with the other fish and game regulations. Number 1970 REPRESENTATIVE JAMES said if the entire length of the Yukon River was determined to be a subsistence area, the people who live in the nonsubsistence area could go there and fish providing that there wasn't any kind of a limit that was put on by the Department of Fish and Game. CHAIRMAN GREEN said that is correct. Number 2007 REPRESENTATIVE PORTER referred to (A) and said, "If I live in Anchorage and I go to a subsistence area that does not have a shortage of any kind I can hunt and fish, but I'm going to assume that what we mean here is that I can only hunt and fish as I could in my own area, that is with the normal restrictions of a sport license. CHAIRMAN GREEN stated, "That's as it is now, that's not the truth. If we get the constitutional amendment where they can distinguish among classes that could be done and it would be done through regulation." REPRESENTATIVE PORTER asked what the intent is. CHAIRMAN GREEN stated the intent is that the Department of Fish and Game could restrict you more than the local people even though there wasn't a shortage. He noted that is currently not the case. REPRESENTATIVE PORTER said, "Then it presumes ... that the standard kinds of method and means used for subsistence and quantities in a subsistence area, whether there was a shortage or not, would be allowed for subsistence users but not allowed for me." CHAIRMAN GREEN responded, "Not necessarily, no. You might have the same right if there is a plenty and all the locals certainly have all they can handle and there is still a river full of fish out there, you could take in their same manner so long as you didn't adversely impact them ... and as long as the stock is not adversely impacted." Number 2121 REPRESENTATIVE BUNDE referred to Chairman Green saying that the Department of Fish and Game doesn't currently limit access. He said that isn't really true. He said the people in Sleetmute don't like the people from Bethel to come up and hunt their moose. They have lobbied the Department of Fish and Game to put certain motor restrictions on the river boats that would make it a lot more difficult to get there. CHAIRMAN GREEN stated his point is that you're not restricted, you're just impaired. REPRESENTATIVE BUNDE indicated that Chairman Green has said he anticipates a constitutional amendment. CHAIRMAN GREEN said, "If this is enacted either as it is, or unless there is a significant amount of amendments. Yes, this would require a constitutional amendment." REPRESENTATIVE BUNDE questioned whether the amendment would mandate how the priority is established or would the legislature. CHAIRMAN GREEN stated the constitutional amendment would allow the Department of Fish and Game that prerogative rather than the legislature. Number 2205 REPRESENTATIVE BUNDE referred to page 2, item 10, "the cultural, social, and economic values associated with the taking and use of fish and game;", and asked if the culture refers to the Alaskan culture, to the hunting and fishing culture, or a Native culture. CHAIRMAN GREEN responded that it is an area culture. It does not necessarily imply racial or anything else. REPRESENTATIVE BERKOWITZ stated culture is more of a kin to heritage than race. REPRESENTATIVE BUNDE said in his definition, it would include all Alaskans. He said the department is going to define when a shortage exists. He asked if the boards would determine, annually, each stock and population in a subsistence area. He also asked if a fiscal note had been thought about. CHAIRMAN GREEN stated they currently do that and would do the same sort of thing for a subsistence area. They already determine when fish days are on and how much the bag limits are going to be. REPRESENTATIVE BUNDE responded that the commercial fishermen feel that the research is not adequate at this point. He said this would add to the job of the department. CHAIRMAN GREEN said, "Maybe, I disagree because we're talking about a very isolated area that would be different from the way they do it now. And if it's not done to the satisfaction of all users now - that's part of this bill, that's another issue." Number 2300 REPRESENTATIVE BUNDE referred to page 3, line 30, "(2) domiciled in the local subsistence use area", and asked if that means eat it where you shoot it. CHAIRMAN GREEN responded, "In effect because what you're saying you got to live there." REPRESENTATIVE BUNDE referred to page 4, line 22, "(F) other characteristics as determined jointly by the boards, that are relevant", and said that looks like a loophole that you could drive a mac truck through. CHAIRMAN GREEN responded that is true. He said, "You wouldn't find that kind of a loophole in the regs, but because there is such a variance among the state - along the state, I mean for locals, it's very difficult to just limit certain things and say, 'Okay, that's all you can use, [Department of] Fish and Game, in your determination.' One area may have a nuance that's nowhere else in the state." REPRESENTATIVE BUNDE said they would have to meet (A) through (E) before they could consider (F). CHAIRMAN GREEN indicated that is correct. REPRESENTATIVE BUNDE stated he shares Representative Porter's concern about traditional barter. He asked, "Do you anticipate a dollar amount? And we've had the discussion of the $15,000 (indisc.), and I know it says 'non-commercial,' but that would be like being a nonprofit. You might exchange $15,000 and didn't plan to make a profit." CHAIRMAN GREEN said he thinks that would be an issue that would be a discussion of the committee as a whole. Number 2376 REPRESENTATIVE BUNDE said if the legislation were to become law and was endorsed by the public in a constitutional amendment, would the public know if they were subsistence or nonsubsistence in a short fashion? CHAIRMAN GREEN said he would think that could be established very quickly, within a reasonable amount time. He said, "One of the things that was kicked around that we may want to address here as a body is do we establish the nonsubsistence areas. That would make a major step forward to determining who is and who isn't." REPRESENTATIVE BUNDE asked if this would be done annually. CHAIRMAN GREEN responded in the negative. Once you establish the nonsubsistence areas, that's fixed. REPRESENTATIVE BUNDE questioned a person moving from one area to another. CHAIRMAN GREEN said you either gain or lose. REPRESENTATIVE BUNDE asked if the road system will include the ferry system. CHAIRMAN GREEN said probably because that essentially, not all, but essentially that runs to federal land and there is the attempt that navigable waters would be the purview of the state. That issue would have to be established. REPRESENTATIVE BUNDE asked if Sitka, Kodiak, Bethel and Barrow would be subsistence or nonsubsistence areas. CHAIRMAN GREEN responded, "That would be a determination that whether we allow [the Department of] Fish and Game to determine that or whether this board or the legislature should determine it. I get the feeling that..." TAPE 98-44, SIDE B Number 0015 REPRESENTATIVE JAMES referred to page 6, line 6, "(37) 'subsistence' means the noncommercial, customary and traditional use of fish and game by a resident for personal and family sustenance and for customary trade or barter; in this paragraph, 'family' means persons related by blood, marriage, or adoption, and a person living in the household on a permanent basis." She said the committee has heard testimony about community sharing. Many of the people who do the hunting are not necessarily the people who are the neediest. She asked how that concern would be addressed. CHAIRMAN GREEN said that could be a problem. He said, "It's workable, it is not addressed here." Number 0068 REPRESENTATIVE JAMES referred to the issue of licensing and said there are subsistence permits. She said it seems there ought to be some consistency, no matter how you take fish and game, and that they should have a license. There also should be a method for reporting the take. She said the requirement of a license is in current law. She noted she doesn't know about the issue of subsistence permits. Representative James stated she believes there should be something in the bill that relates to that. She said, "If they're subsistence users, we haven't given them any kind of a (indisc.) you know anything - a mark on them that says they're subsistence users. So if you have this river full of fish and it's a subsistence area, which means that subsistence fishing can be done there, and it's not identified as a shortage, that means that nonsubsistence fishing can be done there. How do you tell them apart?" CHAIRMAN GREEN responded, "You don't." REPRESENTATIVE JAMES questioned, "How do we know how much they took?" She stated part of the licensing fee goes to help manage fish and game. She said the committee has heard evidence that there is an ability by license. If there isn't, maybe something should be done about that. She said she doesn't think existing law is sufficient. CHAIRMAN GREEN said, "That's right. This is establishing that very narrow priority, not the general fish and game rules of how they go about counting and how they go about issuing licenses." Number 0151 REPRESENTATIVE BERKOWITZ referred to page 4, line 16, subsection (1)(D), and said it talks about dependent on subsistence hunting means a reliance characterized, at some point, by limited ability to obtain food. He asked how "limited ability" would be envisioned. CHAIRMAN GREEN said, "If you have no other means than this particular river, you have a limited ability to get other kinds of sustenance. You're really truly dependent on what goes by your front door - not the ability to catch but the ability to get anything else. REPRESENTATIVE BERKOWITZ said there is a store in the village. CHAIRMAN GREEN said, "Your limited ability is reduced. You may still need this, but you may be able to get salt and flour or something at the store. You may be able to get tootsie rolls, but you're still dependent. A majority of your sustenance is going to come from the river rather from the store. You don't have enough money, for example, to go to the store or you, for whatever reason, ... have a lifestyle that doesn't utilize the store to the extent that somebody like I do." REPRESENTATIVE BERKOWITZ asked if the existence of a store in a village would have an impact on the determination. CHAIRMAN GREEN responded that it could. He said it would be reviewed and a determination would be made. Number 0219 REPRESENTATIVE BERKOWITZ referred to page 4, subsection (F), "other characteristics as determined jointly by the boards," and said it is in reference to the Board of Fish and the Board of Game. He asked if there is a policy reason why the bill goes to the higher level rather than using the local advisory boards. CHAIRMAN GREEN responded, "The local advisory boards can be anywhere through this. They have no authority, but they do have an advisory capacity, and very likely -- certainly establishing that there is a low yield." REPRESENTATIVE BERKOWITZ stated, "I guess what I'm driving at is it seems to me that we're devolving into a system of local control as much as possible, and we need to rely on people on the ground." CHAIRMAN GREEN interjected, "Local control, not necessarily local advisories." REPRESENTATIVE BERKOWITZ stated the local advisory groups would have a more prominent role to play in determining -- you used the example of conditions differ across the state. He said a local advisory board would better know what the peculiar conditions are for that local condition rather than the Board of Game or the Board of Fish. He informed the committee members that it seems to him that the local advisory board has an important role to play. REPRESENTATIVE PORTER said when he read that, he envisioned that most certainly the local advisory boards would be providing the information to the board to make the final decision. The problem with having a decision made by a local advisory board is there is often conflicts. Representative Porter said, "ANILCA kind of calls for the regional boards and the advisory boards, and we're not talking about that here. Is it the intent to get into that or..." CHAIRMAN GREEN responded, "It will and actually that was something we were thinking about not having, but in order to not cause the 'ANILCA Gods' to rise up in anger we may want to reinstall or reinstate the six - I guess we have - regional boards that would be in fact -- I think [the Department of] Fish and Game probably is in favor of that. And I think the advice we're getting from some folks in Washington would be that ANILCA would look to that. It seems to me unnecessary, but if that's the price we have to pay I certainly don't object to it." Number 0368 REPRESENTATIVE IRENE NICHOLIA asked how would the Board of Fish and the Board of Game would implement this, and how would they determine who would be the recipients of having a priority. She asked if it would be through application or permitting. She referred to the wording, "12 months of taking within a subsistence area," and asked if the teachers who live in a subsistence area for nine months be affected. She also questioned how the Board of Fish and the Board of Game would determine that. CHAIRMAN GREEN responded, "If the teachers who were there, and we're talking about a specific type of fish that is the subsistence fishery, happens to swim between the middle of June and middle of August say, and the ... teachers are gone all the time. They wouldn't qualify as having been utilizing this for prior 12 months. They aren't even around. So they wouldn't qualify. Now if it were something that swam earlier or later than that, they would because it's during that 12-month period that the fish migrated and that's when they hammered them, and so they would qualify." REPRESENTATIVE NICHOLIA indicated that the fall chum salmon usually arrive during the last part of August. CHAIRMAN GREEN said all they would have to establish that they have characteristically have fished chums, and chums are now the subsistence fishery. He stated anybody could still fish the other species. REPRESENTATIVE NICHOLIA referred to local priorities and said we use local residents in their state contracts for construction. She said under that definition, "local residents" means residents from all over the state. They're all considered local inter-state contracts. Representative Nicholia said in her view, local priority could be legally challenged in courts because that language is used in state contracts. CHAIRMAN GREEN pointed out the bill says domiciled in the area. In other words, you have to live there. If the Lower Kuskokwim area is determined to be a subsistence fishery, the people from Nome or Barrow are not domiciled there so they would not have the subsistence priority. REPRESENTATIVE NICHOLIA said, "So you don't they could be legally challenged." CHAIRMAN GREEN responded that he is sure there will be some legal challenges, but he doesn't think they'll be supported if the constitution is changed to allow that. Number 0524 REPRESENTATIVE BILL WILLIAMS referred to not being domiciled to an area and asked, "How would -- you know like we went through like the intercept fishy and the pass, and it was closed down and the people up there in the upper Yukon River weren't getting the fish. How would that be affected by your comments you just made?" CHAIRMAN GREEN said they did talk about what would happen if there was a subsistence area that was being fed outside by the ocean and how it would affect commercial fishermen. Chairman Green said, "That gets stickier the further away you go, just like last year with the problem. But that would still be a [Department of] Fish and Game prerogative saying that we know, or at least we think we do as fish and game people, that this is the migration route for the ... fish that go to a certain area that is now considered a subsistence area. And in order to allow that type of an escapement, there may have to be a restriction based on how many are coming in. The river that eventually feeds that particular area by the first three days of a normal fishery, is going to have 10,000 fish in it. This year it's got 2,000. This backs up then and [the Department of] Fish and Game says, 'Wait a minute, whoops, we're intercepting too much.' That's a [Department of] Fish and Game prerogative and it shouldn't, I don't think, be discussed in detail by the legislature, but that would be their prerogative." Number 0625 REPRESENTATIVE ROKEBERG asked, "Could you tell me will this bill, in your opinion Mr. Chairman, would a family of four from my district in Anchorage with an income of $25,000 a year or less, and 20 years of history of use of fish and game stocks, including personal use and Tier II type hunting, qualify under this bill?" CHAIRMAN GREEN responded, "Yes, the only place that they would be restricted would be in the red area. The rest of the state, they would have an opportunity to fish ... because there is no restriction there. There is no subsistence imposed in the rest of the state." REPRESENTATIVE ROKEBERG asked if they would have to fish based on existing regulatory... CHAIRMAN GREEN interjected, "Yeah, they would just continue to operate as normal." He continued to point out areas on a map. REPRESENTATIVE ROKEBERG said anybody can sport fish when there is an open season and they would be under sport fishing regulations. He said is talking about subsistence use. CHAIRMAN GREEN indicated they would have to move to the area to qualify under subsistence. Number 0732 REPRESENTATIVE BERKOWITZ said if you live in Anchorage and you're resource dependent, why would you go to an area of resource shortage. REPRESENTATIVE JAMES said if your mother lived there, you might want to go there. CHAIRMAN GREEN responded that you would go there and get you're mother's subsistence food. REPRESENTATIVE ROKEBERG stated that is very common. Representative Rokeberg said if the current version of the bill were to become law, would there be any necessary changes that would need to be made to ANILCA. CHAIRMAN GREEN responded in the affirmative. He said he envisions that they would ask for changes to ANILCA in order to get to the point of changing the constitution to comply with either what they have said or what the legislature thinks is necessary. REPRESENTATIVE ROKEBERG said, "Correct me if I'm wrong. In a nonsubsistence area, or I guess either one for that matter, in either area ... would be redrawn by the boards of fish and game for each stock and for every historical user group. Would that be a proper statement? That's what you said before." CHAIRMAN GREEN responded, "That's not what I said, what I said was that the nonsubsistence areas would be established, not in perpetuity, but they would be established ... year after year, not each year. What I said was that the specific area that was impacted by discrete stock could be changed each year. It could exist, it could exist for half a season, it could exist not at all." REPRESENTATIVE ROKEBERG said a subsistence area, when it is defined by the boards of fish and game, is going to have to be drawn for each discrete stock. Representative Rokeberg said the way the bill is written, it is conceivable, although probably not practical or probable, it would be legal to draw a subsistence area for each discrete stock and each user group that might have a historic attachment to that use. Representative Rokeberg continued to ask questions regarding certain areas he was pointing at on a map. REPRESENTATIVE ROKEBERG stated he is very concerned about a sports fisherman using a fish wheel. He asked, "If you're a sport fisherman - nonsubsistence user that goes into a subsistence area, and a fish wheel may be a subsistence use historically there, you can use it too?" CHAIRMAN GREEN responded, "If the stock will allow you to do that without adversely affecting those others, yes." REPRESENTATIVE ROKEBERG responded that is a real problem because you could have a run on fish wheels and wipe out the stock before the board could even ... prohibit it. CHAIRMAN GREEN said it is currently permissible. Number 1022 REPRESENTATIVE PORTER stated he doesn't think that it is permissible, but he could be wrong. CHAIRMAN GREEN said that is what the committee had just been advised of by the Department of Fish and Game in certain areas. REPRESENTATIVE PORTER asked if he would be correct to say that what the bill would require, in terms of the areas, would be for the Board of Fish and the Board of Game to, in a reasonable period of time, establish nonsubsistence areas of the state. All those areas outside of that generally would be considered subsistence areas, but would not be further defined for specific use until a shortage occurred in a specific stock or population. That boundary would then be drawn based on traditional customary use of that... CHAIRMAN GREEN said, "We use subsistence, unfortunately, and that does create a problem nomenclature. Which subsistence are you talking about because [the Department of] Fish and Game says essentially what Representative Porter just said. You walk outside the nonsubsistence area and because there are limits, you're in a subsistence area nearly every place of the state." He said maybe general subsistence area is what they're talking about for the big area, and then they go to dependent subsistence for the small group. He noted there currently is Tier I and Tier II in subsistence areas. Number 1142 REPRESENTATIVE CROFT referred to page 6, line 6, and said the definition of 'subsistence' differs from ANILCA's definition in that it essentially says food and limited barter without shelter, fuel, clothing, tools or transportation. He said it seems there are legitimate areas and some bad examples of abuses in some areas. Simply excluding it may not be the solution, but thinking about some way to give the Board of Fish or the Board of Game the ability to use it in the right situations. It might be appropriate on a policy level and maybe comply with that section of ANILCA. He stated, "Fuel and clothing in particular would seem to me if they're doing it in a traditional manner and using it to make clothing or to heat lamps, I don't know why we would have much interest in stopping that." CHAIRMAN GREEN responded, "My concept, certainly subject to the wish of the committee, would be that we're talking about a subsistence preference for sustaining one's life. And if I get a preference over someone else because I need that to live, that would be different than I getting some preference over somebody else because I want to make shoes or something - I want to burn a candle or something." REPRESENTATIVE CROFT said if they're going to make those shoes to sell, that would be - unless it fit the very narrow definition of what they traditionally done is barter, -- objectionable shoes to wear to candles to use. CHAIRMAN GREEN said he that's worthy of debate as to whether or not that does constitute the package of survival, and it may. Even if they sell those shoes and receive money, and money is still not the prime thing that drives them, if it helps in their overall 'put together,' maybe that is something the committee should consider. Number 1372 REPRESENTATIVE JAMES said if there is a subsistence area and there is not a shortage, then anybody can hunt or fish there even though it's a subsistence area. That would mean that everyone that was hunting and fishing there would have the same rules and regulations. She asked if people who currently have a subsistence lifestyle would be doing their hunting and fishing under the same seasons and bag limits as everyone else. CHAIRMAN GREEN stated even a subsistence area would be subject to bag limits, et cetera, that the Department of Fish and Game establishes, even to the point of shutting a season down if the subsistence area was such that there was only enough for the maintenance of the species. REPRESENTATIVE JAMES asked if it would be the same seasons and bag limits as everyone else that comes into the subsistence area that doesn't live in a subsistence area. CHAIRMAN GREEN asked if she was talking about a plentiful stock. REPRESENTATIVE JAMES said, "I'm talking there is no shortage ... because when there is a shortage they keep everyone out. It's the time period where there is not a shortage so everybody can go in. And if that's the case, even the subsistence users are still taking their fish or game under the same seasons and bag limits as the other people that can come in. Is that what this does?" CHAIRMAN GREEN answered, "No, not necessarily because what we're saying is that there is a development that we would allow the Department of Fish and Game, by regulation, to vary. As it is now, they ratchet down, but they would be able vary, through regulation, so that we don't...." He noted that is not in the current version of the bill, it would have to be inserted under (A) on page 3. REPRESENTATIVE JAMES said she is struggling with the issue of the constitutional amendment. She said it seems to her that if they were providing a local preference, they wouldn't have to have a constitutional amendment. Her reason for that is there are other cases in law where we provide a preference, particularly in land opportunities. He said, "When we follow all the rules and regulations to be fair and equitable to anyone who wants to buy a piece of land, a person who lives next door can ask for a preference because they're living adjacent to it. That seems to me like that's a local issue and that seems to be allowed under our current constitution." REPRESENTATIVE PORTER referred to the Kenaitze supreme court case and said they selected one out of several criteria to be considered as the unconstitutional provisions in statute, thus, negating the whole thing. He noted that was just proximity to the resource. He said he would guess that if somebody took the provision of land acquisition to the supreme court that they would throw it out. CHAIRMAN GREEN said just because it hasn't been challenged doesn't mean that it would necessarily pass muster. He referred to the Kenaitze case and the McDowell case and said they were alright for several years until there was a court decision made that went against it. Number 1611 REPRESENTATIVE BERKOWITZ said he would give an example where there is discrimination based on place of residence. He said, "That is in the offices we hold. Each one of us is restricted to where we can run based on where we live. And the courts, I'm sure, would find that to be reasonable." REPRESENTATIVE JAMES pointed out that it is in the constitution. REPRESENTATIVE CROFT suggested that at the meeting scheduled for the following Friday, a representative from the Department of Fish and Game should be present to answer questions. CHAIRMAN GREEN responded there would be expert testimony at the meeting on Friday. REPRESENTATIVE CROFT said, "The one final issue then that I had is there had been some talk about when we get to the super shortage that we're having to distinguish between subsistence users, the possibility of a presumption to take away some of the administrative burden. To say, 'It's this criteria, but if you live in a small village or you live in these areas or something, then we're going to presume you've met those individualized criteria.' Is there anything in the works on... CHAIRMAN GREEN interjected, "There is ... we have wrestled with where that number should be for a few days, and even talking with our congressional delegation to see if that sort of thing would be acceptable. Use the number of 1,000. If you live in an area that has less than 1,000 residents, there would be this presumption that you qualify." REPRESENTATIVE CROFT asked if there is any chance of seeing a constitutional amendment or the proposed ANILCA changes. CHAIRMAN GREEN responded, "Yes, I would hope that we could have one. Since we have now adopted this, which requires it, we'll go ahead put the finishing touches on a skeleton and have it for Friday. And I would hope to maybe get it to you before hand so you'll have a chance to think about it like we did this - before we come into the meeting." Number 1895 REPRESENTATIVE ROKEBERG said the criticisms of the rural preference (indisc.) has been the problem of the high income, high assetted individuals living within a defined area. He said, "By following your subsistence area definition of those boundaries, it's conceivable that somebody with a significantly high income, within that particular area and domicile there, qualifies. Is that correct?" CHAIRMAN GREEN said that is true. REPRESENTATIVE ROKEBERG asked Chairman Green if he has considered trying to top in and cap it out. He said that is a huge problem, particularly in the urban areas. Why should I give up my rights when these guy that are out there make $50,000, $60,000 a year, and they have the right to subsistence hunt and fish. CHAIRMAN GREEN said when they were talking about that originally, they were talking about a huge area that would have lots of those "richies." He said, "Now we're talking about a very narrow area so that we wouldn't have a concentration of those wealthy people in a small area that we're talking about subsistence-wise. Secondly, within that area if we make a presumption that they do qualify, but that's rebuttable. And if you were to talk about people who make that kind of money, they probably don't fit the qualifications of having to have more than half of their sustenance from wild critters. They may or they may not. The question then becomes if we have a subsistence area that encompasses 2,500 people, wherever that may be, would it be worth our time to find that guy that makes $50,000 or $150,000 and has the leer jet? Or ... is his impact on that subsistence are of 2,500 people going to worth that effort? That's the call you have to make." REPRESENTATIVE ROKEBERG responded, "Mr. Chairman, I would suggest that the size of whatever area you're talking is the eye of the beholder, notwithstanding wherever the boundary lines are drafted because if you believe that you have been inequitably and unfairly treated and you were disallowed when somebody else that has more income, more assets and more capabilities is out there, and has a right to do it, you're going feel cheated and that's the problem." CHAIRMAN GREEN said, "I submit to you that if an Anchorage person felt cheated because somebody in the red area made more money, he lives out there, he makes more money and he has a preference, I really don't think you're going to get a lot of human cry from Anchorage about that. Anchorage doesn't go there, it's perception. It was a major perception and I was one of those that was perceiving that when it was the entire state. We're talking about such little isolated areas, I really doubt that you're going to have a human cry." Number 2144 REPRESENTATIVE BUNDE said that is easy to understand when they are talking about an area, but his understanding of the amount of fish that is available in the state he believes every drainage will be an area. He said if the bill were to become law, you would be hard pressed to put your foot down anywhere outside of the Railbelt, highway, ferry system, where there wouldn't be some subsistence preference for some species. He stated the appearance of justice is just as important as justice. CHAIRMAN GREEN pointed out that we are not that close to endangering the sustainable yield. He said, "We may be in a subsistence area that says that users will not be allowed to take all they want. We may only be able to take two-thirds of what they want. That does not invoke this subsistence that we're talking about here. They continue to operate as they did before just -- and you used the Kenai River. The Russian River, I can remember going down and getting six reds, then it went to three, then it went to two. I mean that will continue to happen as (indisc.) of the availability does, but it doesn't trigger the subsistence use for the specific stock." REPRESENTATIVE BUNDE referred to the phrase "opportunistic hunting," and said there will never be enough moose for all the hunters of the state to shoot a moose whenever they want to. He said we would then always be in shortage. He asked if the moose preference wouldn't cover most of the moose habitat in the state. CHAIRMAN GREEN stated that we have to go back to the fact that they are now talking about the sustainable yield and the harvest just above that. He said that won't be a statewide issue, but it may be an issue in certain areas. It isn't going to be statewide. That doesn't mean that there is enough for everybody go out and hunt them, there aren't now. He it just says that when we get to the point where we are down to the sustainable yield, and a tiny bit above that, that is when there would be the subsistence priority. TAPE 98-45, SIDE A Number 0001 REPRESENTATIVE PORTER said, "I think we ought to try to aim this at the way we were doing because as much consternation as it caused was the best thing for the stocks and populations that could happen to the state, best rue for the puddings and the eating. And it allows us to make these fine tooth distinctions rather than somebody in Washington, D.C." REPRESENTATIVE BUNDE stated he agrees with Representative Porter based on fish, but he disagrees on game because there is far less game now and far more people taking it than there was 30 years ago. REPRESENTATIVE ROKEBERG said the committee members have a colleague trying to get a chit signed for an appropriation of general funds to a major area of the state which was disastrously affected this last season. He said the committee should keep in mind that there is not plentitude in some areas of the state. Number 0200 REPRESENTATIVE JAMES said, "To put my perspective on the record is that it seems to me like that - we could define the need, and we're getting close to [a] hit, I'm not completely happy with it. But I don't think we want to accelerate the subsistence use in future because I don't think that is where the state is going. And it bothers me that a person can move into one of these areas and be there for 12 months and then qualify. And so it seems to me like that we should protect those people who live a subsistence lifestyle and are depending on it today, but that we shouldn't -- that over time it should decrease and stop increase necessarily unless it's family members of those subsistence lifestyle. I don't want to create something where people, especially in this modern technology age, can move into a rural area and take advantage of the subsistence lifestyle while they do all of their work around the world on a computer. I want to be absolutely sure that we have -- this is a subsistence lifestyle, we define it and we protect it, but we don't allow it to be misused. And that's my biggest concern." CHAIRMAN GREEN said that is a good concern, but he would remind her that those of us that beat the Zobels would have preferred that we would have the pioneers home relegated to only those people who have been here 25 years or more, and that we should be able to designate those who should have the permanent fund dividend against those others. Number 0375 REPRESENTATIVE BERKOWITZ said, "I think it's very important to reiterate that we ought to keep our eyes on the prize here, which is preventing federal takeover. And I think that's something that we all can agree on. And rather than get tied up over nuances in this bill or whatever permutation it goes through before it moves, if it does move, that's got to be our focus. And in order to do that, we need to have that constitutional amendment." CHAIRMAN GREEN responded, "As much as I argued against it, I really did, I railed eloquently - well not eloquently, but loudly against a constitutional amendment - I really did, but as I get closer to trying to get what we want done, and you make a very good point, that's one of the major things and to supply for selected groups of people who really need it, we can't do it with our current constitution." [HB 406 was held over]
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