Legislature(1997 - 1998)
03/27/1998 01:08 PM House JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HB 406 - SUBSISTENCE USES OF FISH AND GAME Number 0176 CHAIRMAN GREEN announced the committee would hear HB 406, "An Act relating to subsistence uses of fish and game." Present to testify and provide an overview of how the Alaska Department of Fish and Game might handle regulations in times of abundance, as well as in times of varying degrees of shortage, were department personnel. Number 0237 ROBERT BOSWORTH, Deputy Commissioner, Office of the Commissioner, Alaska Department of Fish and Game (ADF&G), came forward and requested that he be joined at the table by Wayne Regelin, Director, Division of Wildlife Conservation; Kevin Delaney, Director, Division of Sport Fish; and Robert J. Wolfe, Research Director, Division of Subsistence. CHAIRMAN GREEN explained that the committee wants to understand how the ADF&G would move this into regulation from statute. Number 0341 MR. BOSWORTH described how the present subsistence law works in terms of providing the priority. He handed out a single page titled, "Steps When Considering Subsistence Proposals", and a copy of AS 16.05.258. He told members the first document is provided by the department every time the Board of Fisheries or the Board of Game meets, to remind members of the steps they must go through in implementing the state's subsistence law. MR. BOSWORTH informed members that the first state subsistence law was in 1978; it was amended in 1986 and again in 1992. There have been iterations that clarified some of these steps and some of these findings of the board, and there certainly have been changes in eligibility over the years. In addition, terminology has changed from time to time; for example, what used to be considered a "nonrural area" is now a "nonsubsistence area." However, the fundamental concept of implementing the priority, has basically remained the same. Number 0543 MR. BOSWORTH referred again to the one-page handout. The first step the boards follow in considering a subsistence proposal is to determine whether the issue affects a nonsubsistence area. The board has authority to establish nonsubsistence areas; there is a list of criteria in law that allows for that. The existence of those areas, relative to the proposal before the board, is the first item of business. If the fish stock or game population under consideration is in a nonsubsistence area, that ends the discussion of subsistence regulations. Number 0607 REPRESENTATIVE JEANNETTE JAMES asked Mr. Bosworth to list the criteria that determine whether an area is a nonsubsistence area. MR. BOSWORTH read from AS 16.05.258(c), items (1) through (13). Number 0791 REPRESENTATIVE BRIAN PORTER suggested it is basically the same as Version R of HB 406. CHAIRMAN GREEN noted that item (13) is a little different, but the rest are similar. MR. BOSWORTH told members that as he recalls, there isn't a great difference between those criteria and the ones used to identify a rural area pre-McDowell, under the 1986 law. Number 0827 REPRESENTATIVE PORTER asked what kind of circumstances generate subsistence proposals. MR. BOSWORTH explained that on a regular cycle, the Board of Fisheries or the Board of Game issues a call for proposals. A document goes out to an enormous mailing list including all of the advisory committees and others around the state, who are notified that by a certain time, if they would like to change subsistence regulations for the area and species under consideration, they are invited to do so. MR. BOSWORTH returned to step 1, the question of whether the stock or population is in a nonsubsistence area. The focus is on fish stocks or game populations, or portions thereof; there will be continuing references to those as being the focus of a proposal, and, therefore, the focus of the regulation the board might adopt. Number 0917 MR. BOSWORTH advised members that if any portion of the fish stock or game population is outside a nonsubsistence area, then the board goes to step 2, customary and traditional use determination. All through the years when there was a rural preference applied, and even into the post-McDowell years, there was a two-step process in identifying eligibility. One question was location of residence; Mr. Bosworth suggested members are aware of how McDowell affected that one. The second question had to do with whether there was a customary and traditional use. MR. BOSWORTH explained, "So, for example, pre-1990 we did have areas of the state which were rural but which the board did not find had a customary and traditional use of a particular fish stock or game population." He cited examples of rural communities on the Parks Highway where the board did not find there was customary and traditional use of a particular species; therefore, there were no subsistence regulations for hunting and fishing in the vicinity of those communities. Number 0989 MR. BOSWORTH advised members that post-McDowell, the boards went through the same exercise, the difference being under the 1992 law that once a customary and traditional use determination was made in the positive, then all Alaskans would be eligible to participate in that hunt or fishery. So they still went through the customary and traditional step, but eligibility changed. MR. BOSWORTH said at this point, the board determines if there is a customary and traditional use of the fish stock or game population, applying eight criteria that he believes have been used since 1978 or thereabouts. The question again is, in the pre-McDowell context, community have a customary and traditional use of a particular stock or population. He noted that in the post-McDowell context, it had more to do with whether anybody had a customary and traditional use of a particular fish stock or game population. Number 1079 MR. BOSWORTH explained that the board would address that question using information pertinent to the criteria. He read from the preamble to the criteria, which says each board will identify fish stocks or game populations, or portions of stocks or populations, that are customarily and traditionally taken or used by Alaska residents for subsistence uses by considering the following criteria. MR. BOSWORTH explained that the first criterion is a long-term, consistence pattern of noncommercial taking, use and reliance on the fish stock or game population that has been established over a reasonable period of time of not less than one generation, excluding interruption by circumstances beyond the user's control, such as unavailability of the fish or game caused by migratory patterns. He indicated the primary question is whether there has been a long-term, consistent pattern of use. MR. BOSWORTH told members the second criterion is whether there has been a pattern of taking or use recurring in specific seasons each year. Subsistence hunting and fishing patterns are cyclical; certain things happen at certain times of the year. Therefore, the question is whether that is the case with the stock or population in question. MR. BOSWORTH referred to the third criterion, whether there has been a pattern of taking or use consisting of methods and means of harvest that are characterized by efficiency and economy of effort and cost. He advised members that the operative words are "efficiency" and "economy of effort." MR. BOSWORTH said the fourth criterion is the area in which the noncommercial, long-term and consistent pattern of taking, use and reliance upon the fish stock or game population has been established. In other words, where does this use take place? He explained that pre-McDowell, the board used a slightly different criterion having to do with the proximity of the hunt or fishery to the community in question. Mr. Bosworth explained, "Because of the McDowell finding, we couldn't use it in that way, and it simply is a way to describe the geography of the hunt or the geography of the fishery." Number 1175 MR. BOSWORTH told members the fifth criterion is a means of handling, preparing, preserving and storing fish or game that has been traditionally used by past generations but not excluding recent technological advances where appropriate. He commented, "So, ... do you can the food? Do you eat it fresh? Do you freeze it? Do you dry it? Do you pickle it? ... These are all factors that the board considers in terms of the use of the fish or game." MR. BOSWORTH discussed the sixth criterion, a pattern of taking or use that includes the handing down of knowledge of fishing or hunting skills, values and lore from generation to generation. This concept hasn't been particularly useful to the board. Mr. Bosworth believes the board has recognized that we all talk about what we do; we hand down information about where we've been. "So, it turns out to be a less-useful criterion than some of the others, in my opinion," he added. MR. BOSWORTH said the eighth criterion is whether there is pattern that includes taking, use and reliance for subsistence purposes upon a wide diversity of fish and game resources, and that provides substantial economic, cultural, social and nutritional elements of the subsistence way of life. This is a way of getting at the bigger picture of whether the stock or population in question is the only thing that contributes to the community, family or household, or whether it is one of a dozen animals used in various ways by the community. The breadth of the harvest pattern is something the board thought was very important, Mr. Bosworth noted. MR. BOSWORTH said he believes the intent, from the beginning, has been that the board would use these criteria to gather information and then get an overall impression as to whether the proposed use sounds like a subsistence use. The criteria include transmission of knowledge, sharing, and a long-term, consistent pattern of use that happens yearly. Mr. Bosworth concluded, "A lot of people got together early on and have worked through these since those early days, and more or less agreed that these are the kinds of qualities that seem to characterize subsistence. So, that's how they're used." Number 1303 MR. BOSWORTH reported that oftentimes as a board addresses a proposal, there will have already been a finding; they don't do these customary and traditional findings repeatedly. A finding essentially stays on the books unless there is new information, for example, or a compelling reason to change it. Mr. Bosworth offered a report listing customary and traditional use findings made throughout the state by the boards over 20 years or so of implementing the law; the report also addresses the amount necessary, which he would discuss shortly. MR. BOSWORTH explained that if there previously has been a negative finding - that there is not a customary and traditional use - generally there is no need to address the subsistence use further, unless the proposal specifically calls for a reconsideration of that finding. The law also provides that the board may periodically reconsider previous customary and traditional use findings on their own initiative. Number 1380 MR. BOSWORTH discussed step 3, the question of whether a portion of the fish stock or game population can be harvested consistent with sustained yield. If there is no harvestable surplus, that is the end of the story. It is the absolute priority, and Mr. Bosworth suggested the constitution would probably prohibit the board from allocating if there was not a harvestable surplus. MR. BOSWORTH told members if the answer is positive - that there is a harvestable surplus - the board takes the fourth step of determining the amount reasonably necessary for subsistence. Pre-McDowell, thi customary and traditional use, and determining the amount of fish or game those communities needed to satisfy subsistence needs. The board has approached this as a data-based determination; however, there are gaps in the data, such as for a species for which the ADF&G doesn't do regular surveys. In all cases, they take public testimony on these issues, and no matter what they have to go on, the law compels the boards to determine the amount reasonably necessary for subsistence. MR. BOSWORTH noted that again, if there has been a previous determination, the board may not revisit that; however, they need to at least look at that question. The board may periodically reconsider and update these determinations. Mr. Bosworth indicated the list mentioned earlier describes the amounts necessary, from findings made by the board over the years. He cited an example. Number 1522 CHAIRMAN GREEN asked if the updating of determinations would primarily relate to population increases in a community, or if it could also relate to a shift in reliance or dependence. MR. BOSWORTH answered that typically it has had to do with new information. He believes that the criterion that speaks to a long-term, consis where the board probably wouldn't respond to a short-term change in participation. "I guess what I'm saying is that it is not inconceivable that what you said could be a reason for them to reconsider, but they do have to look at the longer-term pattern," he concluded. CHAIRMAN GREEN stated his understanding that when the board goes back, they look at everything. MR. BOSWORTH concurred, specifying that when the board goes back to look at customary and traditional findings, they go through the entire eight criteria again. Number 1603 REPRESENTATIVE JAMES described a situation where there is either a sudden or gradual change in a community, with the addition of industry, for example, resulting in a behavioral change because of added employment. She asked, "If it was gradual, when would you notice that? And of course, if it was sudden, I think you would certainly pay attention to that." MR. BOSWORTH first pointed out that it is easy for the board, or anyone, to lose the distinction between the rural determination and the customary and traditional determination. If factors changed relating to the economy of the area, that would be more appropriate to reconsideration of the question of whether a place was still rural, as those are basically economic criteria that derive from the "rural" definition. REPRESENTATIVE JAMES said she was doing it without the rural designation, adding, "And you said since McDowell you haven't used that; you've only been using customary and traditional." MR. BOSWORTH acknowledged that in the context of what they've been doing recently, it would be more a question raised regarding whether a community were within or outside a nonsubsistence area. The question of customary and traditional, then, really doesn't deal so much with questions of population change or economics. REPRESENTATIVE JAMES asked, "So, it would be in the first set of criteria that that would be noticed, and ... it would be, then, a nonsubsistence area if there's a different characterization of the area, then, no matter where it was?" MR. BOSWORTH replied that the board could certainly come to that conclusion. REPRESENTATIVE JAMES asked for confirmation that that is under current law. MR. BOSWORTH affirmed that. Number 1719 REPRESENTATIVE PORTER asked whether reliance on the resource is just a customary and traditional use of it or is a need of it. MR. BOSWORTH answered that it is much more a way of recognizing the harvest pattern, then developing regulations that reasonably accommodate that pattern. He concluded, "I don't believe the word 'need' exists, and the boards haven't interpreted it that way." REPRESENTATIVE PORTER suggested it would make no difference if someone has a sustained reliance or dependence on the resource but also has a large bank account. MR. BOSWORTH replied, "That's correct. In fact, we could get into that issue because it's very interesting, the relationship between incomes and subsistence production. It's maybe a little off to the side of what we're doing right now, but it's an interesting point." Number 1775 CHAIRMAN GREEN asked: If there is a harvest of 100 fish or game animals, would the vast majority be for consumptive use, or does the criteria include other uses? He mentioned the Marine Mammal Protection Act and said he wanted to stay away from that. MR. BOSWORTH said the amount necessary for subsistence use would be an attempt to address the amount for all aspects, including use of by-products. He stated, "We could get into the definition of subsistence here, but it includes food, clothing, shelter and a number of other uses that would go beyond strict nutrition." CHAIRMAN GREEN indicated his concern related to harvest for bones and hides, for example, even if there was no need for the meat. MR. BOSWORTH suggested that would get into wanton waste, which is not allowed. Number 1857 REPRESENTATIVE CROFT asked Mr. Bosworth whether he was reading from 5 AAC 99.010. MR. BOSWORTH said for the eight criteria, yes. REPRESENTATIVE CROFT asked whether anything prevents new customary and traditional uses from coming up, and how that would work. He also asked whether a consistent sport use, after a sufficient period of time and meeting the other criteria, could establish itself as a customary and traditional taking. MR. BOSWORTH said that is an interesting question, to which he believes the answer is yes; however, he would defer to colleagues momentarily. He said it would be a tough call for any board, noting that one tough call that some boards have made relates to introduced or transplanted species. For example, the board found there was a customary and traditional use of deer on Kodiak Island. He asked Mr. Regelin when those had been introduced. WAYNE REGELIN, Director, Division of Wildlife Conservation, Alaska Department of Fish and Game, said it was 1934. AN UNIDENTIFIED SPEAKER mentioned musk oxen. MR. BOSWORTH said that is an interesting one. Musk oxen have been known to have been in an area since prehistoric times, and have been reintroduced after a lengthy gap in the history. "And this has been a very difficult one for the boards to determine," he stated. "I think ultimately the state boards have found that where there was evidence of prior use ... of musk ox, the introduction would qualify as a customary and traditional use." MR. REGELIN concurred. Number 2003 MR. BOSWORTH indicated that once the amount necessary for subsistence has been passed, they get into the area this has been building up to: providing a reasonable opportunity for subsistence, with adequate consideration of the abundance of the resource. He told members he would explain what he means by that, then handed out a two-page analysis of the steps, titled, "Subsistence Law Flow Chart - Implementation Pre- and Post-McDowell." Number 2053 MR. BOSWORTH drew members' attention to step 3 in the left-hand column of the flow chart. He said the next thing the board would look at is whether the harvestable surplus is sufficient to accommodate all uses. If that is the case, the board walks through the steps outlined in AS 16.05.258 for allocating when the surplus is sufficient for all consumptive uses. Mr. Bosworth specified that he was addressing (b) and (b)(1) of that statute. MR. BOSWORTH read from AS 16.05.258(b)(1): "if the harvestable portion of the stock or population is sufficient to provide for all consumptive uses, the appropriate board (A) shall adopt regulations that provide a reasonable opportunity for subsistence uses of those stocks or populations". Mr. Bosworth commented, "Now, that's the subsistence allocation right there." He then continued reading: "(B) shall adopt regulations that provide for other uses of those stocks or populations, subject to preferences among beneficial uses; and (C) may adopt regulations to differentiate among uses." MR. BOSWORTH suggested this is the area the committee has spent a lot of time talking about, because it is included in a different form in the draft of HB 406 that he had seen. This is where there is no need to restrict eligibility because the abundance of the resource is adequate. It raises a very interesting question that has been asked of him a number of times, whether the subsistence priority applies always or only when there is a shortage. Number 2156 MR. BOSWORTH told members the simplest answer he has come up with is yes, the subsistence law does apply even when there is no shortage, but at this point it doesn't restrict other uses. The law applies in the sense that it requires that reasonable opportunity for subsistence be accommodated. The law says that even though there is enough to go around, the board still needs to understand what the customary and traditional use is, and reasonably provide for that use. For example, the board could be looking at the season of use and the method and means; the board needs to provide regulations that reasonably accommodate that. Mr. Bosworth restated that yes, the subsistence priority is in place, but no, we haven't got to the step where it affects other uses detrimentally. There is no restriction on other uses. Number 2207 CHAIRMAN GREEN referred to discussion from a previous meeting about whether a certain river would allow fish wheels and all people would, then, be able to go there. He stated, "I think you've just answered that: They may qualify, except they may not have done this in the traditional manner. They wouldn't be able to just go out there one time, build a fish wheel and then back off." MR. BOSWORTH responded, "It was a lot simpler, frankly, in the pre-McDowell day customary and traditional use had a pattern of using fish wheels. People from that community can go there and put in a fish wheel.' It's a little more complicated now, ... post-McDowell, where we say, 'Yes, people used to use fish wheels there; now anybody can go and build a fish wheel and go to that place.' I think what sort of defuses the issue is that it's real hard to build a fish wheel, it's real hard to operate a fish wheel, and it's real hard to find a site for a fish wheel. So, there's sort of practical limitations to that, and I think that's why - even though I've heard about portable fish wheels sort of being built and advertised - I think still, at this point in history, we don't see a lot of people rushing out to build fish wheels." MR. BOSWORTH said the board has recognized that and provided a different type of opportunity, because there is plenty to go around. He mentioned the Copper River dipnet fishery, saying in some places there is customary and traditional use of dipnets and that in the past, they have had subsistence dipnet fisheries. He asked whether it was on the Kenai River. AN UNIDENTIFIED SPEAKER said yes, around the mouth. MR. BOSWORTH said that is a nonsubsistence area right now, so we don't have that. Number 2285 REPRESENTATIVE JAMES said along that line of thinking, they provide the reasonable opportunity by seasons and bag limits, and by methods and means. She stated her understanding that nonsubsistence hunters can come into a subsistence area. She asked whether those hunters would behave, then, under the same seasons and bag limits, and under the same methods and means, as do the subsistence hunters. MR. BOSWORTH said yes, citing the Nelchina caribou hunt as an example and deferring to Mr. Regelin. Number 2315 MR. REGELIN said it is the same for all resident hunters, but oftentimes there are different bag limits or other restrictions on nonresident hunters for antler size, for example, or a reduced bag limit for caribou. He specified that these are nonresident, out-of-state hunte Number 2333 REPRESENTATIVE JAMES asked whether it every subsistence hunter or fisher must have a license or permit, and whether that is the only way they are identified. MR. BOSWORTH said first he would talk about fish, then game, which is different. A subsistence fisher doesn't need a license. The fishing license the ADF&G sells is a sport license, and they haven't developed anything like a subsistence license. However, the board has gone around the state and in many areas has established a subsistence permit system. For example, to be a legal subsistence fisher in Southeast Alaska, one needs a permit that includes the person's name and the number of fish taken per day, for which there is a restriction. In other areas, there is a restriction on the number of fish per season. MR. BOSWORTH added that there are different ways that the subsistence fishing permit process has been used and designed around the state. In some cases, a catch calendar is simply returned to the ADF&G at the end of the season; in other cases, that must be returned within 10 days of fishing. "It depends, I think, on how intensely we manage those fisheries," Mr. Bosworth said. "My understanding is if you live in Bethel there is no subsistence fishing permit necessary; there's never been a real need ... to monitor the harvest at that level of intensity." He noted that Southeast Alaska, Prince William Sound, Southcentral Alaska, Kodiak Island, the Aleutians and the Alaska Peninsula all have subsistence fishing permits, to his knowledge. However, that is not a requirement in Western Alaska. He asked Mr. Wolfe about the Arctic. ROBERT J. WOLFE, Research Director, Division of Subsistence, Alaska Department of Fish and Game, shook his head. MR. BOSWORTH said, "Not in Arctic Alaska." CHAIRMAN GREEN asked whether those are renewable annually. MR. BOSWORTH said yes. Number 2433 REPRESENTATIVE JAMES noted that a portion of the sport fishing license goes into management, directly or indirectly. She asked whether it is a correct assumption that if all these people aren't buying a license, they are not participating in that management expense. MR. BOSWORTH concurred with they are not participating in the fish and game fund through a fishing license purchase. He pointed out, however, that people do need a hunting license. The hunting license is not called a sport hunting license. It is called a general hunting license, and a subsistence hunter in this state does need to purchase one. In addition, depending on the hunt and the species, there are permits. Mr. Bosworth deferred to Mr. Regelin. TAPE 98-46, SIDE B Number 0006 MR. REGELIN explained that for an unrestricted hunt, in which either sport hunters or subsistence can participate, there is no permit required. However, if they have to restrict among subsistence users, they go into the Tier II system, with a Tier II permit; they would have already closed the season to nonresident hunters. Mr. Regelin characterized the form that must be filled out for that permit as very complex; it is then scored, and the highest scorers are issued a permit in order to participate in a restricted Tier II hunt. CHAIRMAN GREEN asked whether it was that way before McDowell. MR. BOSWORTH said yes, there were Tier II hunts before McDowell, although not as many of them. MR. REGELIN commented, "We don't have that many now." Number 0053 REPRESENTATIVE PORTER said most of his questions had been answered by Representative James' questions; he noted that it is a troublesome area. He stated his understanding that a subsistence use in an area, whether or not it requires a permit or requires reporting by the individual, is based on the area, not in general. MR. BOSWORTH concurred. REPRESENTATIVE PORTER said pre-McDowell, a subsistence use in an area that had a shortage was limited to the resident's-proximity-to-the-resourc the permit may exist, and there may be a determination of customary and traditional use, but the individuals can come from anywhere in the state. MR. BOSWORTH said that is correct. CHAIRMAN GREEN added, "That are qualified under your criteria." MR. BOSWORTH agreed. CHAIRMAN GREEN said area is certainly not a criterion. REPRESENTATIVE PORTER suggested there isn't any criterion for the individual. Number 0096 MR. BOSWORTH said that is correct unless they get to the level of Tier II, which Mr. Regelin had described. An example is the Nelchina caribou hunt, where there are 40,000 animals. He asked Mr. Regelin how many applications were received for that. MR. REGELIN said the highest year was 28,000; the harvestable surplus is 6,000 to 8,000. MR. BOSWORTH explained that any resident can apply for a permit for a subsistence hunt on the Nelchina caribou, because there is a customary and traditional use of those animals. Eligibility becomes a question because they can take only 6,000 animals but more than 20,000 want a chance at it. There needs to be a way to identify, among all the potential subsistence users, who are the most dependent upon those animals; those are the criteria that Mr. Regelin referred to as Tier II. Number 0143 REPRESENTATIVE PORTER said that kind of determination was post-McDowell or pre- MR. BOSWORTH agreed, saying it was in ANILCA [Alaska National Interest Lands Conservation Act]. CHAIRMAN GREEN stated his understanding that before McDowell, there were drawings. MR. BOSWORTH replied, "In pre-McDowell, we did both." He noted that Nelchina was not a Tier II hunt pre-McDowell. He said what happened then is they identified communities in the Copper Basin with a customary and traditional use; he believes 400 to 500 permits were allocated to that, and all the other permits were handled through drawings. Number 0172 REPRESENTATIVE CROFT referred to Representative James' question on means, bag limits and seasons in subsistence hunts, and said he'd been struggling with it as well. He stated his understanding that pre-McDowell, urban residents simply weren't eligible for subsistence, so there couldn't be any differential bag limits between them. Post-McDowell, everyone was included, and all residents had the same bag limits and seasons. CHAIRMAN GREEN asked whether Representative Croft was discussing a Tier II area. REPRESENTATIVE CROFT said no, he was referring to the "ratcheting-down" area. that everyone could subsistence hunt when allowed, but that there can be some ratcheting-down of the "nonlocal" to preserve customary and traditional local use. In that situation, it seems that everyone would be open for subsistence licenses, but there would have to be different bag limits, seasons or other restrictions as they went downward from excess to shortage. MR. BOSWORTH asked for clarification. He noted that all Alaskans are eligible for subsistence because of McDowell, not because of something the boards necessarily chose to do, and he commented that it is working after a fashion. Number 271 REPRESENTATIVE CROFT explained that he was trying to figure out how it would work under the setup discussed by Chairman Green at the previous committee meeting: Everyone would be allowed to hunt during times of excess, probably under the same bag limits and seasons, but as there were fewer and fewer animals, they would preserve local customary and traditional use; and if there were not enough animals to support that local customary and traditional use, they would go to individual criteria. He suggested in that "great area going from excess down to shortage, we can all be open for subsistence, local and nonlocal, but if you protect the local, we've got to give the boards approval to give a nonlocal subsistence user a lower bag limit." He added, "You've got to have something between 100 percent and zero." Number 0317 MR. BOSWORTH said that is absolutely right, adding that he hadn't quite got to that in the sequence of ratcheting back on other uses. The law now provides for customary and traditional uses of subsistence, and he thinks it is important that it do so. He added, "Right now, with all Alaskans eligible, we all participate in that." Mr. Bosworth emphasized that because there is an abundance, the board also creates personal use fisheries, sport fisheries, and general hunts in which nonresidents participate. As other uses might have to be restricted because of a shortage, there must still be a reasonable opportunity for customary and traditional use; then the boards develop appropriate regulations to accommodate other uses. MR. BOSWORTH explained that those appropriate regulations certainly should, and do, look a little different in many cases from the customary and traditional use. Seasons might be shorter, bag limits might be different, and other aspects having to do with the nature of the hunt could be different. Mr. Bosworth suggested that has become part of the way the board avoids closing a hunt or a fishery. However, there are other ways to restrict use without a closure, and only when there is further depletion of the resource would actual closures would be necessary. He asked whether his colleagues had anything to add, noting that this is an important area. Number 0398 CHAIRMAN GREEN discussed a hypothetical situation where 20 animals are needed for customary and traditional use, but the available animals decrease from 100 to 40 and lower, until they approach the Tier II or the true subsistence limit. MR. BOSWORTH replied that they need to protect the amount necessary, and to provide a reasonable opportunity to take the amount necessary. "And that's the essence of the subsistence priority," he stated. "Subsistence is the last to be restricted." Number 0436 REPRESENTATIVE CROFT stated his understanding that what precludes putting that kind of system into effect, that ratcheting down and then finally a true Tier II, is that we don't have the ability under the constitution now to protect that local use any differently from nonlocal use. MR. BOSWORTH agreed, saying "local" implies residence or proximity to a hunt, and we can't do that. Number 0464 MR. BOSWORTH returned to the flow chart, noting that they had already talked about step 4. When the harvestable surplus is sufficient for subsistence uses, but not all other uses, the board would adopt regulations for subsistence protecting the reasonable opportunity for customary and traditional use, and the board may adopt regulations for other uses, subject to preferences among beneficial uses. He pointed out that this is in AS 16.05.258(b)(2), and he read from subsections (A),(B) and (C). He said the point is here, too, that the law does not provide that, in the time of a shortage, all uses would be ratcheted back together; it is specific that the reasonable opportunity must remain intact. MR. BOSWORTH discussed step 5 from the flow chart. When the surplus is not sufficient for subsistence by all subsistence users, they first eliminate all other uses and then go into Tier II. He stated his understanding that there are three criteria in ANILCA; the state adopted them, more or less, then lost one through the McDowell verdict. "So now, I think we have two Tier II criteria that are used to determine dependency," he stated. "The criteria are level of dependence and ... a question of whether you have alternatives to that hunt." MR. BOSWORTH told members it is a bit of a problem without the criteria of proximity, which is measurable. In contrast, the level of dependence and other alternatives are hard to measure. He noted the ease of measuring on a map the distance between a person's house and the boundary of the hunt area, in order to verify some of the applications. CHAIRMAN GREEN commented, "We're trying to get that back to you." Number 0587 REPRESENTATIVE JAMES said that is the crux of the problem. She expressed concern, however, that if that is the first "sort" in determining a subsistence area and who gets it, "the ultimate of that decision, then, is that when you get to those lower 'sorts,' they just don't sort" if there is suddenly more activity, for example, in a community. She asked whether that is correct. MR. BOSWORTH suggested this may go back to her question of what happens when there is a change in a community. REPRESENTATIVE JAMES agreed that is the issue. She said she herself lives in a rural community but certainly doesn't have all those other criteria. MR. BOSWORTH responded that all he could say is that the board is empowered to address that question and consider whether there is a need for a change. Number 0648 REPRESENTATIVE NORMAN ROKEBERG referred to AS 16.05.258. He asked what occurs when the health of the particular stock or population is so bad that there can't even be subsistence taking. MR. BOSWORTH, noting that Representative Rokeberg had arrived following some testimony, again explained the harvestable surplus filter, the question the board must ask relating to sustained yield before getting to any of these steps. Number 0702 REPRESENTATIVE ROKEBERG asked whether it has occurred and how it has been enforced. MR. BOSWORTH replied that there have certainly been instances when the board, or the ADF&G by emergency order, has been forced to close subsistence fisheries and hunts; they can do that in a heartbeat, just as with a sport or commercial fishery, if the resource appears endangered. Number 0727 REPRESENTATIVE ROKEBERG asked how difficult it is to enforce. MR. BOSWORTH said it creates a stressful situation, as these are typically situations where people depend on that resource. However, it has never come to his attention as an unusual enforcement problem, more than closures to other fisheries or hunts. MR. REGELIN added, "The area we have done that in wildlife management is sheep in the DeLong and Baird Mountains. We have closed those seasons to all take by emergency order, because we had a large die-off." He said the local people were as adamant as everyone else, once they saw the numbers and knew what the survey said. "I don't think we've had any violation of that, because the communities don't want it to happen" Mr. Regelin said. "And we're on the verge of now being able to reopen those." Number 0789 CHAIRMAN GREEN said, "Apparently you do this now, as a matter of course. It's been suggested in some of the dialogue that we hear in the halls or in various offices that perhaps the legislation that would go with this should include that when you get to a subsistence level, that you should do whatever is necessary to attempt to rebuild the species that's down in the subsistence range now, or the Tier II. It sounds like ... you automatically do that; that really wouldn't be a requirement, because in an order to try and maintain something, you want to make sure it's there to maintain." MR. REGELIN responded that for sheep, for example, they would do that and let the population rebuild. But in an area like Unit 13, there are 40,000 caribou, and the habitat can't support more than that. In fact, last year they had a longer season, trying to reduce the herd, which they would like to be at about 35,000 caribou. They can easily have more hunters out there. CHAIRMAN GREEN suggested it may be a reduced-take area, rather than a subsistence area. MR. REGELIN replied that Nelchina Unit 13 is a Tier II hunt. This last year, they had both a Tier I hunt and a Tier II hunt, the first time they had tried that as an experiment. That is the contentious area for subsistence hunting, and they issue 8,000 Tier II permits for that area. "The other largest Tier II hunt, we issue 150 permits," he noted. CHAIRMAN GREEN said, "And that Tier II does go through this litany of work-down." MR. REGELIN said yes. CHAIRMAN GREEN commented, "That is a job." MR. REGELIN replied, "It's a mess." Number 0885 REPRESENTATIVE JAMES said people in these areas depend upon this resource for survival, as well as liking to live that way; there are two facets to it. She acknowledged that the way the ADF&G operates now makes reasonable sense, because of not wanting to destroy the resource. REPRESENTATIVE JAMES expressed concern about two occurrences, however. The first was a few years ago when there was a reduced number of fish in the Yukon River and the subsistence fishermen couldn't fish. Representative James commented, "And of course, they said, 'Well, we're going to fish anyway; we have to eat, we can't live without the fish.'" She said she never did hear the end of the story, then asked, "If these people are really depending on it, how do we manage to see that they have the resources?" REPRESENTATIVE JAMES next mentioned Togiak, where the Bering Sea fisheries were so bad this year, and people asked to take moose in an area that hasn't had enough moose for hunting for 20 years. She asked, "Do we, as a state, have any kind of responsibility, and is there any other kind of alternative method or means for these people to get the food that they need, when the normal customary and traditional resource is just not there?" Number 0984 MR. BOSWORTH responded that the ADF&G had watched the Yukon River situation closely, including looking at the abundance of other food sources such as moose, small game, waterfowl and other fish species. Local people looked at exactly the same things. Through time, systems in place tend to substitute one food that is customarily taken for another, and there are stories and documentary evidence of shortages in times past. Nowadays, people don't starve, but there still is balancing. If there aren't enough chum salmon, perhaps extra effort goes into fishing for coho salmon, which has happened. One way the state got involved was setting up networks, including transportation to move fresh fish from one part of the state to another; he believes a number of shipments were made from Valdez to the Yukon River communities. That was moderately successful, although some fish arrived no longer fit for human consumption. Mr. Bosworth said by and large, the state was concerned with the same questions just asked. MR. BOSWORTH told members that in some cases hunting regulations can be adjusted to make up for a shortage. For example, if the harvestable surplus in a specific hunt, for a specific year, wasn't all taken, they could perhaps extend the season, which Mr. Regelin has done in a few cases through his emergency order ability. "So, I guess the answer is probably yes, that we do have a responsibility, and these are some of the ways that we've addressed it in the past," Mr. Bosworth concluded. REPRESENTATIVE JAMES asked if they can, then, extend the season or bag limit for another resource for those people, even though it wasn't necessarily what they customarily or traditionally used. Number 1112 MR. BOSWORTH explained, "When we're talking about shipping food around the state, we're certainly not bound by the terms of the subsistence laws, so we're not talking customary and traditional. In the context of a subsistence system, of how it has always worked, that kind of use of alternate food supplies is part of the system. Now, that doesn't necessarily mean that pink salmon are an adequate replacement for king salmon, but certainly if starvation is the alternative, that's what's been done, I'm sure, on many occasions." Number 1149 REPRESENTATIVE PORTER asked about an affirmative defense to a violation of fish and game regulations if the taking is to avoid starvation. MR. REGELIN answered that a statute allows a person who is starving to take game. CHAIRMAN GREEN suggested that would apply to all residents, regardless of where they were from, that someone in the outback could take game to keep from starving. MR. REGELIN concurred. REPRESENTATIVE ROKEBERG noted that this bill defines a subsistence area based on a discrete stock. He asked whether under this bill there could be a subsistence area for moose, for example, covered by the same geographic boundary that would be for a nonsubsistence area for salmon, if that were abundant. CHAIRMAN GREEN answered that the way this bill is crafted, yes. Number 1224 REPRESENTATIVE ROKEBERG suggested there must be a definition of a subsistence area, then, based on each discrete stock in the area. He asked if this might create a management nightmare, and he said it seems complicated. He also asked how it would differ from what the ADF&G does now. MR. BOSWORTH replied that he isn't sure he completely understands how the bill proposes to handle these subsistence areas that come and go. However, there can be, and have been, situations where there was customary and traditional use of a game species, but no customary and traditional use of fish. He asked Mr. Delaney if that is still the case for the Skwentna area. KEVIN DELANEY, Director, Division of Sport Fish, Alaska Department of Fish and Game, said no, that has changed. They now have a "C and T" [customary and traditional] for fisheries as well. MR. BOSWORTH noted that it is certainly confusing for local people who are trying to figure out what regulations apply to their circumstances. "And now you add the federal rule book in there, and it is even more complicated," he said. "So, believe me, we're all in favor of keeping this thing as clean and as simple as possible." Number 1370 MR. DELANEY stated, "That is essentially what we have now, and maybe we've been favored by Mother Nature and circumstance, but it hasn't become an overwhelming burden, partly because your fish stocks are moving at one time of the year, and there's an assessment program in place, and your wildlife populations are being assessed and harvested at other times. And you can conceive of situations where if everything is in short supply that same year, you'd have some boundary differences." MR. DELANEY explained that when there is a shortfall of chum salmon in a portion of the Kuskokwim River, for instance, they have looked at whether that population is bound for the Kuskokwim at large or perhaps up the Aniak. Depending on that finding in their assessment program, they take action in the appropriate portion of the drainage, to try to conserve that stock and meet escapement objectives; that is all done through the ADF&G's emergency order authority, in season. In that manner, they make adjustments to standing management plans that are reviewed every three years or so by the Board of Fisheries. Come the fall of that year, when the hunting season begins, they roll out the wildlife assessment program and management strategies, and if there are shortfalls, they make accommodations as appropriate there. As Mr. Bosworth had pointed out, in each iteration of the law since 1978, they have been performing a function similar to that. Number 1467 CHAIRMAN GREEN referred to the example of having a shortage of game but not fish. He said from the bill's standpoint, the subsistence preference wouldn't be an issue in the fish portion. There would be a right to establish the subsistence area for the moose, and it would be applicable only to the residents of that area. That is the difference from what they can do now, because they cannot just designate by area without being in conflict with the constitutional equal protection. Number 1562 REPRESENTATIVE ROKEBERG said the entire state, with the exception of three or four areas, now is composed of subsistence areas by definition; they are not worried about artificial boundaries as far as management is concerned, but are going out and looking at the stocks. He suggested this is good; they have built up knowledge about the discrete stocks and populations of fish and game, and there should be baseline information. However, it seems that every year, or periodically, they will have to make an assessment of whether there are various shortages at certain levels that would qualify as subsistence or nonsubsistence. CHAIRMAN GREEN pointed out that step 1 is done yearly now. Number 1646 REPRESENTATIVE ROKEBERG asked whether anything exists in statute about the concept of highest and best use, as opposed to a subsistence use. He cited as an example trophy rainbow trout. He asked whether it is conceivable under existing law that there could be a highest and best use for a particular population of fish or game that would exclude it from any kind of subsistence use. He gave the example of elk, which were never a "C and T" until someone decided they were. MR. BOSWORTH replied that the current law does not provide any species-specific exception to the subsistence priority. REPRESENTATIVE ROKEBERG suggested they could not, then, designate a discrete population as having a highest and best use of sport trophy fishing or catch-and-release, for example. MR. BOSWORTH answered, "We don't have the authority to do that now." REPRESENTATIVE ROKEBERG asked, "But if there is not a customary and traditional use of that stock, then, could you exclude that from subsistence taking?" Number 1720 MR. BOSWORTH replied, "Absolutely. If there was not a customary and traditional use, then there could be no subsistence regulations for that." REPRESENTATIVE ROKEBERG again mentioned the transplanted elk of Southeastern Alaska and asked how game animals that are not indigenous to an area become a customary and traditional species. MR. BOSWORTH replied that in that case, the board considered it and said no. The area of introduced species is a difficult one, but in that case, he thinks it was not so difficult. REPRESENTATIVE ROKEBERG asked about elk on Afognak island. Number 1812 MR. REGELIN explained that when the board wrestled with that subject a few years ago, they decided there needed to be a history of use of one generation, which is about 20 or 25 years and is legally defined. That is now their rule of thumb. Mr. Regelin indicated there was a similar ruling on introduced musk oxen. He noted that as board membership has changed, there have been different rulings on that, because there is no guidance in the statutes. CHAIRMAN GREEN asked whether that would also apply in the case of bison, for example. MR. REGELIN said there are other things involved in that. For deer on Kodiak Island, they had been used for a long time. On the other hand, for bison in Delta, there has always been a very restricted drawing hunt; therefore, it probably never would qualify. He pointed out that the next board may say it is two generations; it is the board's call. Number 1931 REPRESENTATIVE ROKEBERG referred to state statute; he asked how it works when they separate out a discrete stock or population, to take it into consideration when applying the definition and principles of customary and traditional use. MR. BOSWORTH said he had mentioned that as one principle upon which this whole exercise depends. There is a focus on the stock or a portion of the stock, the population or a portion of the population; that is what the determinations are made on, or about. REPRESENTATIVE ROKEBERG explained that he had brought it up because of criticism of the changes made by U.S. Senator Stevens in ANILCA regarding the definition of "customary and traditional." He suggested those created problems by losing a certain flexibility in implementation, because under the federal definition they may not be able to consider the discrete stock. He asked whether he was missing something. MR. BOSWORTH replied, "Well, I'm not tracking with you." MR. REGELIN said the way the state does it now, it depends on the species. For caribou, customary and traditional determinations have been made on a herd basis, if the herd moves around. It is more difficult to do for caribou than for moose. For moose, the determination is usually done on a sub-unit of a game management unit; those boundaries are usually geographical boundaries, so that there is a fairly discrete population of moose there. As far as the way the regulations have been developed for many, many years, there are separate regulations for each subunit. Mr. Regelin said he doesn't believe there is a problem the way this is done. REPRESENTATIVE ROKEBERG indicated he probably hadn't asked the question right. Number 2118 REPRESENTATIVE PORTER acknowledged it was an overgeneralization, then asked: To the extent that this legislation is trying to bring us back, basically, where we were pre-McDowell, what is good about it and what is bad about it? Number 2163 MR. BOSWORTH said there is an easy answer. He worked for four governors on this issue, under three different subsistence laws, which took work to implement. He was on the staff to both Hickel's task force and the most recent bipartisan task force. He recognized the constraints to crafting a subsistence law that works, including but not limited to ANILCA, practicality and cost. MR. BOSWORTH told members, "I can really only point to that progression and the fact that once again, with a concerted effort throughout the summer, with all the best minds that we could assemble, the task force package that was put together takes us back to pre-McDowell. It requires a constitutional amendment, as you know. ... And it builds on the efforts of previous ... legislatures and boards of fisheries and game in crafting the right wording for definitions, and for the steps that I've outlined here for the board to follow in doing its work. And it's absolutely the best effort I've ever yet seen to do what needs to be done." Number 2346 REPRESENTATIVE PORTER asked what in the bill is inconsistent with that, then. MR. BOSWORTH said as he understands it, the main difference in the draft he has seen of HB 406 is that all Alaskans are eligible for subsistence until there is a need to restrict eligibility. As Chairman Green had indicated, this can be characterized as a hybrid of the pre-McDowell and post-McDowell approaches. Mr. Bosworth said there are good reasons for maintaining a distinction between what is subsistence and what is not, even when there is an abundance. MR. BOSWORTH explained, "Frankly, it's counter-intuitive to me that I would be eligible to go down to fish for subsistence along with my friends in Angoon. I don't need to. I don't need to compete with them, in a sense, for what could be a limited resource. I'd be quite comfortable with the way we would like to do it, get it back to pre-McDowell, where I could participate in a personal use fishery, I could get some number of fish that I like to take home and smoke or can or whatever, and know that there is something different about the people in Angoon [ends mid-speech because of tape change]." TAPE 98-47, SIDE A Number 0006 MR. BOSWORTH said to him, providing a different kind of opportunity for those folks is far more intuitively correct than a law that would allow him that same opportunity. He acknowledged this is a policy call, and that it is appropriate to be deliberating on it. Number 0095 REPRESENTATIVE PORTER asked whether there are other major differences between the task force report and this bill. MR. BOSWORTH said the bill version he saw had an eligibility approach, applying individual criteria for a large number of potential participants within subsistence areas, even though it was not yet at the level of Tier II. He added, "Or perhaps it is Tier II, depending on how you read the bill, but the point is, the individual eligibility approach is something different and something new, and ... we've, I think, testified in other forums about the complexity of that approach, the cost, the intrusive bureaucracy, and this sort of thing." Mr. Bosworth concluded by saying he has a personal problem with that approach and believes there are better ways to accomplish that objective. Number 0170 CHAIRMAN GREEN pointed out that a proposed committee substitute takes that part out. He then suggested that as the bill is now crafted, when there is plenty for everyone there is no difference from the way they operate now; it is only when they get to the point of Tier II that there is a difference. Suggesting that Mr. Bosworth had responded to Representative Porter that he prefers the current method or the task force method, Chairman Green said, "But if we're leaving that to your discretion now through regulations, it seems to me that gives you what you're after." Number 0237 MR. DELANEY said he thought Representative Porter had asked the difference between this bill and what it takes to get back to pre-McDowell. He Alaskans at times where there is not a shortage being eligible for a subsistence preference or priority,' a first set-aside, a base level of regulational opportunity that exists outside of nonsubsistence zones." He said that is different from pre-McDowell. Number 0270 REPRESENTATIVE PORTER said from that he understands there are methods and means for those who qualify in an area for subsistence, and methods and means for those who qualify in the same area for sport. And if there are no restrictions, with his fishing license he can sport fish; he may have a different bag limit, for example, than the same area provides for someone with a subsistence permit, who can take more, basically. Representative Porter suggested Mr. Delaney is saying this bill eliminates that distinction when there is no restriction, so that everyone can take under the same bag limits and criteria. Number 0353 MR. DELANEY provided an example, under the 1992 law, post-McDowell. If he and Representative Porter, as state residents, want to fish in a river in a rural part of the state, it would require buying sport fishing licenses and abiding by sport fishing regulations, seasons, limits, methods and means. However, while there - in addition to fishing with a hook and line under the sport fishing regulations - they may participate in the subsistence fishery, because all Alaskans are eligible for subsistence. Then they would fish with the methods and means, and be subject to the limits that exist in that area for subsistence. And they could do both on the same day, or on the same trip. MR. DELANEY continued, "Now, if all Alaskans were not eligible for subsistence out in these areas, then you and I would buy our sport fishing licenses and participate only in the sport fishery, and not be eligible to do both at this time when nothing needs to be restricted. In each case, I think, at least in concept, if there was a shortage - not enough to meet the needs - and we fell into a Tier II situation, we would start to get sorted out, but not at that first level, now or post-McDowell, post-'92 law, or ... under the concepts embodied in [HB] 406, as we've got it in front of us now." Number 0478 REPRESENTATIVE JAMES said having these people out there, able to do this without a license, bothers her for many reasons. She stated her understanding that under current law, and even pre-McDowell, "there was no discernment as to whether or not they ever would not be qualified again, once they lived in this area and they had the customary and traditional, forever." She indicated it makes sense for Natives but not for others. REPRESENTATIVE JAMES referred to the eight criteria and the determination of what use is available. She said someplace along the line, they must determine the user who qualifies; she suggested a little extension of those eight points would do that. Once the user is defined, it would make no difference where that person lives, because the "sort" has already been done by establishing the nonsubsistence area and the customary and traditional uses. Representative James concluded, "So, then, why do we have to say 'rural'? That's my point. Why do we have to say where they live when we've already defined them specifically enough? We know who they are." Number 0638 MR. BOSWORTH acknowledged there is a certain appeal to being able to pick and choose who is or is not dependent on subsistence, culturally, nutritionally and so forth. However, they have never found a way that was verifiable, fair to all of the considerations that individuals might have about their dependency, and that wasn't exorbitantly expensive and didn't involve an intrusive government bureaucracy coming between people and their food. He pointed out the importance of food to humans in general, and that government involvement in that is offensive to many, many people; it is also offensive to others who don't want to pay for the bureaucracy to accomplish it. There are practical, philosophical, economic and perhaps other reasons why the state has never been able to successfully put together and get approval for that kind of system. MR. BOSWORTH told members that was the essence of the effort at Governor Hickel's task force level, to try to find an individual criteria approach that worked, but it had all the problems he'd just mentioned. There was really no way of validating someone's claim. They had envisioned appeals of a negative finding on an individual basis, and a process for adjudicating those appeals. They had looked at the approach that the Commercial Fisheries Entry Commission takes to identifying individuals who qualify for fisheries; Mr. Bosworth noted the substantial bureaucracy associated with that, for only 15,000 permittees. MR. BOSWORTH said for all of those reasons, "rural" from the start has seemed to be a shorthand or a proxy for solving the eligibility problem, acknowledging up front that it is overinclusive and that some people would be eligible who have less dependence than others. By the same token, in nonrural areas, there are people who probably should qualify, and it is under-inclusive. Those are built into the "rural" eligibility approach. Mr. Bosworth noted that it worked throughout the '80s with minimal problems and complaints, so he believes there is some reason to think it could continue to work. MR. BOSWORTH pointed out that the boards have been careful to provide alternatives for people in the cities; he mentioned personal use fisheries as an example of a means to accommodate the under-inclusive part of the equation. Likewise, in rural areas, where some don't need to participate in subsistence fisheries and hunts, many don't, or if they do, it is not at a noticeable level in the tabulation of harvests. Mr. Bosworth said they manage the animals based on harvest, but there is a point at which a little extra harvest would really be unnoticed, even to the department's biologists in the field. "So, it worked," he said. "And that's, I think, why we're still talking about it." Number 0936 REPRESENTATIVE JAMES agreed drawing a line around where they live is easiest, but it also excludes people who are not city-dwellers by drawing them out of the picture. She said it seems there is a way to define who these people are. "They know who they are," she added. "Let them mark a box and say, 'I'm one of those people,' and let somebody challenge them that they're not." REPRESENTATIVE ROKEBERG asked whether they have ever discussed using somebody's word, relying on an honor system for Alaskans. He further asked whether they couldn't solve this by using the criteria in place, and by using something like the permanent fund dividend check-off system to say, "Yes, I have a rebuttable presumption that I am qualified." Number 1031 MR. BOSWORTH replied that the closest parallel is the Tier II application form, wherein people describe their individual situations, which become the basis for eligibility. It has proven to be stressful, divisive among neighbors and expensive, and more than one person has called it a liar's game. "So, I wish it was as easy as you described," Mr. Bosworth concluded. Number 1065 REPRESENTATIVE PORTER observed that it begs the question of the requirement of ANILCA. If they cannot craft something close to the requirement for a rural preference, it is moot. Number 1076 REPRESENTATIVE BILL WILLIAMS noted that Bethel, Sitka and Kotzebue may be considered urban under this bill. He asked how they can settle this for the long term for such areas. Number 1136 MR. BOSWORTH answered that he and the chairman had talked about whether it makes more sense to identify up front, in legislation, which communities are in or out, as opposed to identifying in legislation a process by which the boards would make that determination. He suggested that is a legitimate public policy question. If people feel like having certainty about eligibility when this debate is through, then having something in statute probably makes sense. If, on the other hand, people believe that board deliberation is the appropriate level for these issues to be debated, then probably that is the appropriate route. CHAIRMAN GREEN thanked the testifiers. He noted that Representative Bunde, who was absent this day, had suggested previously that if something like HB 406 were to become law, subsistence would apply to all moose hunts because of their rarity. Number 1262 MR. BOSWORTH noted that right now, all Alaskans are eligible for subsistence. As he reads the bill, in times of relative abundance all Alaskans would be eligible for subsistence, so there is no real change in that specific case. There are many moose hunts in which there is a sufficient abundance so that there is a subsistence hunt on the books and also nonresident hunts on the books; that becomes sort of the definition of an abundance. There are a small number of Tier II moose hunts. He asked Mr. Regelin how many. MR. REGELIN said 10. CHAIRMAN GREEN suggested those are in isolated areas around the state. MR. BOSWORTH said if the Alaska population grows, and if Alaskans continue to all be eligible for subsistence, presumably there could be additional Tier II hunts. But now there are relatively few. Number 1320 CHAIRMAN GREEN responded, "And so, by reference, if we were to adopt the regulations in statute, you would still be able to operate essentially as you are now, so you wouldn't be automatically thrown into a Tier II wherever the moose occur." MR. REGELIN said he believes that is correct. Number 1329 REPRESENTATIVE ROKEBERG excused himself to chair the House Labor and Commerce Standing Committee. Number 1432 DICK BISHOP, Member, Board of Directors, Alaska Outdoor Council (AOC) came forward to testify as the subsistence spokesperson for that organization. He first responded to Mr. Bosworth's comment about the efficacy with which the law worked in the '80s, when it was under the federal guidelines by virtue of the state's being in compliance. Mr. Bishop told members there are two reasons it had appeared to work reasonably well. First, the subsistence priority was seldom applied to either fisheries or game, relative to the potential for application; there were very few instances where an issue was presented as a high-profile issue that demanded that a subsistence priority be applied in that particular situation. MR. BISHOP said second, much of the difficulty with the application of that law was not apparent to the general public. It was easily ignored or not mentioned by people who would rather not mention it. Dozens of lawsuits were filed while the state was in compliance with the federal law, ANILCA. At any given time from 1986 to 1989, and for some time thereafter, there were perhaps 30 or 40 lawsuits that had been filed. MR. BISHOP said those were principally the result of the provisions of ANILCA that demand that a subsistence user who is sufficiently displeased with how the priority is being made available to him or her has the right, under federal rules, to take a complaint to federal district court and have it heard there. "And when the state was in compliance and running the federal law, there were many complaints made about how the state allocated the subsistence opportunities," Mr. Bishop stated. "The classic one, which illustrates very well how the state will have to, to a large extent, operate if the state ... does comply with federal law, was the 1989 Bobby case." Number 1518 MR. BISHOP commented on an earlier observation that day, saying, "In the Bobby case, there are several important principles enunciated in interpretation of the federal law that are really important to still keep in mind. ... Unlike your bill, which I compliment you on having it in there, under the federal law - and it's still the same, regardless of Senator Stevens' amendments - the standard is now a reasonable opportunity for a customary and traditional use. And in the Bobby case, it was customary and traditional use, and Judge Holland ruled that consistent with the federal law, you could not substitute an abundance of caribou for a scarcity of moose, because the standard was not need, was not nutritional, it was not hunger. It was customary and traditional use, and if, by golly, the custom and tradition was to shoot moose in that particular area, then that was a tradition that had to be upheld, under the terms of the federal law. And that's still the case." MR. BISHOP continued, "So, if you anticipate attempting to comply to federal law, that may be something that really needs attention. Otherwise, we're going to have that kind of problem. Can you take chum salmon ... for a lack of red salmon? No. Can you take red salmon for a lack of king salmon? No. Can you take whitefish for a lack of chum salmon? No, not under the federal law, you can't. So, that's a consideration." Number 1599 REPRESENTATIVE PORTER said that is based on an interpretation of ANILCA. He asked, "But if we got some fixes to ANILCA, that situation would be changed, I presume?" MR. BISHOP agreed that if an amendment to ANILCA were accomplished that addressed that, it could be fixed. "But I have heard from a reliable source that ANILCA can't be amended," he added. CHAIRMAN GREEN said they are going to take a shot at it. REPRESENTATIVE PORTER commented, "We're here for naught if that's the truth." Number 1624 REPRESENTATIVE CROFT asked: If there is a customary and traditional use of moose, and possibly of caribou in the same area or a similar area, and there is a shortage of either one, why should it be the local residents with a customary and traditional use who must shift from one to the other, rather than the sport hunter who is flying out to hunt? MR. BISHOP asked whether that question was for him, saying he was hoping it was for someone else. He suggested that by the time it gets to that stage of the game, the nonsubsistence hunters have been shut down. Number 1681 MR. BISHOP again discussed the interpretation of ANILCA, which dramatically affects state administration of the federal law if the state is in compliance. A second aspect of customary and traditional use is that under the interpretation of the federal law in the Bobby case, the subsistence priority demands that all other uses must be eliminated before customary and traditional use is restricted. Mr. Bishop said as far as he knows, except for the modification of reasonable opportunity added by Senator Stevens' amendment - which changes it a little bit - that mandate is still there, under federal law. Therefore, that is another, very important, consideration with regard to the balance of benefits and costs of complying with the federal law. Mr. Bishop concluded by saying that Judge Holland in that case had said they cannot restrict customary and traditional uses of a fish or game population until all other uses have been eliminated. Number 1741 CHAIRMAN GREEN responded, "Actually, I think that's what we're saying in here, that we aren't going to restrict it in the subsistence area. We're saying that the customary and traditional use would be maintained. All the other uses would be excluded first." MR. BISHOP added, "In that local area." CHAIRMAN GREEN affirmed that. REPRESENTATIVE PORTER suggested it is on a discrete basis. CHAIRMAN GREEN agreed, adding that there is no need otherwise. Number 1760 MR. BISHOP provided reasons that the AOC doesn't favor a constitutional amendment. The Alaska constitution upholds a concept of common use of fish and game resources by all Alaskans, and equal opportunity for access to those. That doesn't mean a cookie-cutter allocation but equal opportunity to try to qualify, for example, as a subsistence user. The AOC believes that is a very important principle. Mr. Bishop pointed out that the Alaska Supreme Court has said that the use of fish and game to obtain basic necessities is a very important value that runs to all Alaskans. MR. BISHOP advised members that the AOC feels strongly that to compromise that by establishing an arbitrary rule based on residency or some other arbitrary closed-class distinction is a bad idea, both in terms of fairness in allocation - because he believes there are alternative ways to accomplish that - and to accommodate subsistence uses. It is an abridgement or an erosion of people's civil rights, and it is a very important issue. He said there are other problems with ANILCA that he would not address that day. Number 1840 MR. BISHOP said with regard to the bill itself, one important question discussed a lot within the AOC is that if legislation is passed establishing a subsistence priority, then people should be able to know upon reading the bill - or having a good reading of it for them, if necessary - whether they qualify. "And I think that it's fair to say that, under the terms of the current version of House Bill 406, that people will be in a fairly continuing state of uncertainty about whether they qualify or whether they don't, other than the nonsubsistence areas," he added. Number 1879 MR. BISHOP told members some nagging problems persist both in terms of ANILCA and state law. "Culture" is undefined and, in his view, undefinable; unless it is defined specifically as including all cultures, it is left open to an unending series of interpretations that will demand additional privileges under the context of culture. Mr. Bishop noted that they are talking about a common property resource. He doesn't believe it is appropriate to have an open-ended opportunity to, by various subjective interpretations, say that more and more use of that should be made. MR. BISHOP said similarly, the definition of "customary and traditional use" should be tightened up. One way specific to Senator Stevens' amendments is to remove the words "and practices" from "patterns and practices," because that implies recognition of some practices that are, and have been historically, patently illegal, such as the well-known example of spotlighting deer cited in the Totemoff case. Mr. Bishop offered to provide a draft definition, which specifies that historically illegal past or ongoing practices should be precluded from being considered customary and traditional uses. CHAIRMAN GREEN said they would appreciate that very much. Number 1963 MR. BISHOP suggested it would be helpful, in being definitive with regard to the difference between subsistence and nonsubsistence areas, if the wording was, "where subsistence is not the principal element of the economy." The converse would be that subsistence is the principle element of the economy in a subsistence area. If the intent is to ensure an ironclad priority for subsistence use to the people who are substantially dependent on the use of fish and game for their livelihoods, lifestyles and basic necessities, then they should say it: The principle element of the economy. Not many people are in that circumstance, he added. Number 2010 CHAIRMAN GREEN asked whether Mr. Bishop would consider it acceptable if that were the criteria for determining the area that would be permissible, rather than the individual. MR. BISHOP answered that he believes, and the AOC has always held, that there ought to be an individual criteria, too. They had considered some way to allow that kind of consideration to be broadened, and that could be a way to do it. In addition, he believes there is need for providing the opportunity to pursue a subsistence lifestyle based on how one lives, not where; he suggested some provision for people who may need to be identified as subsistence users, but who don't live in an area like that. CHAIRMAN GREEN asked whether Mr. Bishop believes all other potential subsistence users should have the right to impact a designated area in Southwest Alaska, for example, above the rights of those who live in the area, in times of a low surplus above the sustained yield level. He pointed out that it could create problems in that area. He said their concept is to say it is just for the local area, for that particular species; even then, if there isn't enough, there would be some sort of allocation among those people. There would be other areas where that same species would be more harvestable; logically, people wouldn't want to go into that low-surplus area anyway, so that they really wouldn't be depriving anybody. MR. BISHOP agreed. He said the principle he is trying to express is that there be an opportunity for people who may be just over the line to exercise their interests and satisfy their values by being able to qualify in some fashion. CHAIRMAN GREEN indicated he thinks that could be accomplished through the rebuttable presumption. Number 2120 REPRESENTATIVE PORTER noted that there are two levels of shortage. One would allow anyone in the area an adequate opportunity. In addition, someone who met the criteria that would kick in for the second tier would be qualified to come in. CHAIRMAN GREEN explained that they have in mind that someone could rebut the presumption. If a person could show that he or she is just as qualified as those inside the line, but the line excluded that person by accident or whatever other reason, that person could qualify. However, a person three drainages away who had no history of going to that particular area wouldn't qualify. MR. BISHOP said it sounds like they are headed the right direction. Number 2214 REPRESENTATIVE JAMES suggested they are getting somewhere. If there are criteria that individuals need to meet, those people will know who they. It excludes the necessity of having a line drawn, which is the issue. Representative James then said she understands the business of meeting the requirements of ANILCA, the underlying purpose of which is to provide an ongoing opportunity for Alaskans who have depended on a subsistence lifestyle for years. She said if that can be done without labeling them as rural, she cannot believe it wouldn't be acceptable. Number 2227 REPRESENTATIVE PORTER suggested that someone who lived a subsistence for four generations in a subsistence area, then moved to Mountainview, would no longer qualify according to ANILCA. REPRESENTATIVE JAMES said that is because that person wouldn't want to live a subsistence lifestyle anymore. REPRESENTATIVE PORTER replied, "No, they may want to, but they lose their ability under ANILCA, and that's one that I don't think that we'll ever be able to change." CHAIRMAN GREEN said that is why they have it listed to an area, rather than statewide. Number 2251 REPRESENTATIVE WILLIAMS referred to Mr. Bishop's opening statements regarding common use for all Alaskans, erosion of civil rights, and customary and traditional use. He suggested that Mr. Bishop had expressed, in other hearings, that he had sat in on public hearings held when the Alaska Native Claims Settlement Act (ANCSA) was passed. MR. BISHOP clarified that as a staff person for the ADF&G, he had sat in on many hearings on ANILCA, but not ANCSA. However, he had commented on ANCSA from time to time. REPRESENTATIVE WILLIAMS mentioned the push to get ANCSA signed in 1971, and promises to take care of the customary and traditional subsistence lifestyle of Alaska Natives, which he said was also stated in ANILCA. He asked Mr. Bishop, "Would you say that the state of Alaska and the federal government helped erode the civil rights under ... the Alaska Native Claims Settlement Act?" Number 2376 MR. BISHOP said no, he doesn't believe ANCSA eroded civil rights at all. While he wouldn't vouch for its perfection or imperfection, it was a sincere attempt made by a lot of people, including Alaska Native leaders and the best legal counsel in the country, to create a fair and just settlement. REPRESENTATIVE WILLIAMS asked whether the promise made to take care of the subsistence lifestyle of Alaska Natives wasn't part of that erosion. He commented, "That's why we're here today, trying to take care of that subsistence lifestyle of the rural communities today. It just didn't happen. ... It wasn't because the state of Alaska asked us to bring subsistence into being. It just didn't happen then, in 1980, when ANILCA was passed." MR. BISHOP acknowledged Representative Williams' reference to the content of the committee reports and correspondence relating to ANCSA. He said there was a recognition that the federal and state governments had a responsibility to see to the subsistence needs of Alaska Natives, and that was very clear. As he recalled, it was general; it did not specify any particular plan or provision. But it certainly was there. There was a legitimate concern about that being badly eroded by the creation of vast conservation system units under ANILCA, and a legitimate concern that at that point there be some provision given, or attention paid, to subsistence uses. Mr. Bishop said he shares that concern. TAPE 98-47, SIDE B Number 0006 MR. BISHOP said it was conscientiously but clumsily addressed in ANILCA. He believes the Alaska Supreme Court has confirmed that, by saying the rural priority as an attempt to accommodate the basic necessities of Alaskans to obtain food is extremely crude. "And I agree," Mr. Bishop said. "It is. There's a better way to do it, and it doesn't require a constitutional amendment. It depends on the individual criteria." CHAIRMAN GREEN asked whether that would prevent federal takeover and comply with ANILCA. MR. BISHOP said it would not, and he thinks that is a different matter. He believes there is no way the state can reach a fair and therefore lasting settlement based on sound conservation without amendment of ANILCA and the elimination or serious modification of the rural priority. The bottom line is that the rural priority is an arbitrary, closed-class rule that violates Alaskans' civil rights, and it is a basis for a host of mischief counter to sound conservation. It needs to be changed, and there is nothing sacrosanct, in his view, about ANILCA. Number 0064 CHAIRMAN GREEN pointed out that the congressional delegation has told the legislature repeatedly that without modification toward that end, the state will lose control of fish and game. He added, "They haven't discounted the fact that we can make some modifications to ANILCA, but we can't change the thrust of it." He asked whether Mr. Bishop was saying he would prefer to take that risk than to try to move toward the center somewhere. MR. BISHOP answered with a qualified yes, in that if the state changes its constitution and complies with federal law, it will be required to operate under the mandates of the federal law, Title VIII of ANILCA, which may possibly be amended further to an unknown degree. On the other hand, if the state decides not to conform to federal law, then the federal government takes over management of fisheries and expands management of game. The basic framework under which the state functions would be the same, in essence. There would be a rural priority and federal court oversight of anything that goes on there, and all of the terms of ANILCA would be virtually the same and in place. MR. BISHOP stated, "And what you lose, however, is any opportunity for the state to have legal standing to challenge some of the unsettled and uncertain questions relating to navigability, the extent of federal authority over fish and game management in Alaska, which we might had found out, had not the Governor dropped that lawsuit, Alaska v. Babbitt; but the state is not at liberty to pursue that now, unless the legislature can." Number 0155 CHAIRMAN GREEN said Mr. Bishop had named two of perhaps five or six conditions that would have to be changed in ANILCA to be palatable to most Alaskans. He asked whether it would be acceptable if the constitution were narrowly changed, with a package that demands that these changes in ANILCA occur. MR. BISHOP agreed there is quite a list of changes. He indicated that idea would be well worth consideration, although he could not make that commitment for the AOC. From his own standpoint, it would a last-gasp, when-all-else-failed consideration, not the best alternative. CHAIRMAN GREEN asked if Mr. Bishop was saying he would prefer that the state draw a line in the sand and say, "You've got to change ANILCA; we're not going to change our constitution, and we'll take the consequences." MR. BISHOP said the state doesn't have a lot to lose by challenging the usurpation of management authority and responsibilities by federal agencies. CHAIRMAN GREEN noted that if the pending lawsuit prevails, this would all be moot. Number 0231 REPRESENTATIVE WILLIAMS asked whether the federal government can't do just about anything they want anyway, by passing a law, as they are the supreme law of the land. CHAIRMAN GREEN replied, "Of their land, at least, not ours." REPRESENTATIVE WILLIAMS asked what happened to the 90/10 split. CHAIRMAN GREEN said, "That's their land, though." REPRESENTATIVE WILLIAMS said we have 60 percent of their land here in Alaska. He asked how we deal with that. CHAIRMAN GREEN said with great difficulty. Number 0256 MR. BISHOP said that is one of the unsettled legal questions. The issue remains of whether Congress gave the federal administration the authority to manage fish and game in Alaska, either on federal public lands or on state and private lands and waters. He said in looking at the complaint the state filed in 1992 or thereabouts, where it carefully documents the history of ANILCA, that authority was not given to the federal government. He suggested that is still a valid question for the legislative lawsuit, for example, to pursue. CHAIRMAN GREEN agreed, noting that it is in the 1998 lawsuit by the legislature. MR. BISHOP added, "And similarly, on the navigable waters. So, I think the short answer is no, the federal government is not necessarily at liberty to do whatever it wants, because under the property clause, unless Congress - as I understand it - has explicitly authorized the federal government to do something, it cannot exercise spontaneously its property right." CHAIRMAN GREEN replied, "And that, I think, is the essence of this, saying, 'All right, on one hand we are suing the federal government for three reasons, one of which you just expounded on; and now, on the other hand, we're trying to negotiate should we lose in the lawsuit.' ... And that requires that we erode a little of our stance, our own state constitution very narrowly. That's what we're, in effect, trying to do, and get a concession from the federal government." CHAIRMAN GREEN continued, "Now, can we trust them in the future? I don't know. But I think that certainly would stand a strong case if, on one hand - and I think that would come to pass long before the resolution of the lawsuit - it would certainly go a long way to say, 'Hey, federal government, you made a deal again, and now you broke it again.' I think the Supreme Court, as we saw in the recent case ..., I think they would look at the fairness of that issue, and that's what we're really trying to do." CHAIRMAN GREEN thanked Mr. Bishop and asked him, as he had asked others, whether the committee may call upon him again in its deliberations. He noted that it is an Alaskan issue that must be solved by all Alaskans working together. Number 0359 REPRESENTATIVE WILLIAMS told members he feels strongly about not having the federal government come in and start managing our lands. He pointed out that in Southeast Alaska, there is no longer a timber industry because the federal government manages it. CHAIRMAN GREEN said that is an excellent point. MR. BISHOP concluded by saying he likes a sure thing, too. "And if you really want a sure thing as far as federal management, go right ahead and amend the constitution, we'll have it," he added. Number 0397 CHAIRMAN GREEN announced at 3:38 p.m. that the House Judiciary Standing Committee meeting was recessed until Saturday, March 28, at 1:00 p.m.
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