Legislature(1997 - 1998)
05/01/1997 01:15 PM House RES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 255 - SUBSISTENCE HUNTING AND FISHING Number 0943 CO-CHAIRMAN OGAN announced the next item of business was House Bill No. 255, "An Act relating to subsistence hunting and fishing; and providing for an effective date." He advised that he had no intention of moving the bill that day, as the sponsor was absent due to illness, but would take brief public testimony after the bill was presented. Number 0980 MARK RIEHLE, Legislative Administrative Assistant to Representative Ramona Barnes, read the sponsor statement into the record: "House Bill 255 was crafted using Alaska's constitution as its basis. "As you know, the legislature is mandated by the constitution to provide for the utilization, development and conservation of all natural resources belonging to the state, including the land and waters, for the maximum benefit of the people. "Further, wherever occurring in their natural state, the fish, wildlife and waters of the state are reserved to the people for common use. "Under the Alaska constitution, no exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the state. "The laws and regulations which govern the use or disposal of natural resources under the constitution, the state constitution, shall apply equally to all persons similarly situated with reference to the subject matter and purpose to be served by the law or regulation. "Replenishable resources belonging to the state shall be utilized, developed and maintained on a sustained yield basis, subject to preferences among beneficial users. "HB 255 would establish an allocation mechanism and ensure the allocation for the various uses of the fish and game resources, including subsistence use, to be consistent with the principles of sustained yield and will be the result of decisions by the respective boards of fish and game. "The boards are empowered to adopt criteria upon which to base the allocation decisions, including the allocation for subsistence. The boards will provide regulations to determine who may participate in subsistence hunting and fishing during times of abundance as well as of shortage. "The subsistence allocation will be determined as a percentage of the stock or population that is available, based upon sustained yield. The percentage must provide a preference to satisfy subsistence use. "The boards of fish and game shall distinguish among those provided a subsistence use on the basis of need, customary use and one's ability to obtain food by other means, should restrictions become necessary. "Under the provisions of HB 255, commercial sale of subsistence- taken fish or game is prohibited; however, customary trade, barter or sharing for personal use or family use is authorized." Number 1106 CO-CHAIRMAN OGAN stated that "customary trade and barter" is defined in state law. He asked how this bill changes that. MR. RIEHLE deferred to Ted Popely. Number 1157 THEODORE POPELY, Legislative Assistant to House and Senate Majority, came forward to testify. He stated, "I don't believe that HB 255 does change the existing definition of customary and traditional, the '92 law." Number 1176 REPRESENTATIVE WILLIAMS asked, "How does it stand up to ANILCA?" MR. POPELY replied that the problem with the state law complying with ANILCA is the rural preference provision. He said, "What HB 255 attempts to do, in a nutshell, is to redefine the priority from one that is based on rural residency, as dictated through ANILCA, to one that is based on actual dependence on the resource for family food consumption. Specifically, there are two factors used generally: the customary and direct dependence on the resource for human consumption and the ability to obtain food if subsistence use is restricted or eliminated." MR. POPELY continued, "I certainly can't speak for the court as to how this would be viewed in light of ANILCA's requirement for rural preference. I suspect that there is an argument to be made that the result of the application of [HB] 255 would be to restrict subsistence preference to a rural resident priority. I suspect that's probably part of the intent. I can't speak for the sponsor on that. And as to whether or not that resulting rural preference, sort of a de facto rural preference, would satisfy the requirements of ANILCA, I cannot say." Number 1254 REPRESENTATIVE WILLIAMS asked whether, other than "rural," all other areas in the bill are pretty close to ANILCA's interpretation. Number 1283 MR. POPELY said he understood the question to be a comparison between the bill and ANILCA. He said, "Of course, as a state statutory provision, it doesn't affect ANILCA per se, as federal legislation. It can't change ANILCA, as a state statute. There are a number of provisions that are not addressed that ANILCA includes. The definitions section, of course, provides a number of different problems. You've discussed `customary and traditional,' `customary trade.' There is a provision in ANILCA that may be of some interest to those sponsoring the bill, dealing with the federal court oversight that has been raised over and over as a problem, with some proponents. That's not addressed in this bill." Number 1349 REPRESENTATIVE WILLIAMS asked whether Mr. Popely was saying the bill does not come too close to ANILCA's definitions. MR. POPELY said that is a difficult question. "There are so many definitions provided in ANILCA," he commented. REPRESENTATIVE WILLIAMS handed Mr. Popely a copy of the ANILCA provisions and noted that Mr. Popely is an attorney. He asked the differences between ANILCA today "as it is written in front of you there" and HB 255. CO-CHAIRMAN OGAN advised that Mr. Popely was testifying on short notice. Number 1407 MR. POPELY said he would be glad to try to address that. REPRESENTATIVE WILLIAMS said he would be happy to wait. Number 1431 REPRESENTATIVE NICHOLIA asked whether HB 255 eliminates the sunset provisions adopted earlier that day in CSSSHB 243(RES). MR. POPELY replied, "Yes, I believe it does, in Section 12 of the bill." Number 1463 CO-CHAIRMAN OGAN asked whether this allows out-of-state hunters to practice subsistence hunting. MR. POPELY referred to page 4, lines 15 and 16, 20 and 21, and 25 and 26, under Sections 8 through 10, items (30), (31) and (32). He said looking at the definitions section, technically it allows nonresidents to partake in subsistence activities by eliminating language referring to residents. Number 1545 CO-CHAIRMAN OGAN asked whether Mr. Riehle knew the motivation behind that. MR. RIEHLE said he would have to defer to the sponsor. Number 1595 CARL JACK, Rural Alaska Community Action Program, testified via teleconference from Anchorage in opposition to HB 255. He said the only legal protection for subsistence users is ANILCA. The trade- offs proposed in HB 255 will be far too great because it would completely dismantle the current status and replace it with an economic-based and individual-based, welfare-type program that would require individuals to demonstrate significant dependence for direct and family consumption. The eligibility criteria would be set by the boards, which would have total discretion and would "impose this very questionable allocation on some kind of percentage to take care of those needs." He said this allocation would not necessarily require all subsistence uses to be fully satisfied before other consumptive uses are allowed. MR. JACK said the bill completely ignores the cultural aspect of subsistence, effectively repealing the requirement that "customary and traditional" subsistence use be given priority. He said looking at implementation of the individual permitting system and given how the majority has substantially reduced the budget for the Division of Subsistence, it will be next to impossible to enforce the permitting system. MR. JACK said finally, the bill does nothing to bring state subsistence into compliance with ANILCA or forestall the federal takeover of subsistence fishing effective October 1, 1997. He stated, "If anything, this bill will only increase the deep difference that already exists between the federal and state law." Number 1827 REPRESENTATIVE MASEK asked whether Mr. Jack could provide an example or further define why he feels his legal protection is greater under ANILCA than if the state had authority over its fish and game. MR. JACK replied, "I think while we would like to see the return of fish and game management to the state of Alaska, the court decisions in certain cases have proven that, for the most part, the subsistence users have to rely on the ANILCA provisions as the only means to find it legal to continue the way of life that they have lived for thousands of years." Number 1950 REPRESENTATIVE MASEK said she grew up in the bush, in Anvik on the Yukon River, although now she lives in Willow and is unable to hunt or fish because of problems with the subsistence issue. She said, "And it seems to me that trying to create the hunting and fishing rights for where you live and what race you are, there are so many Native people that live out of the rural areas, how are they going to be able to hunt and fish and continue their customary and traditional way of life?" Number 2003 MR. JACK said he is also an Alaska Native, born and raised in Kipnuk but residing in Anchorage. He said he would be more than willing to give that up so those with no other means of supporting themselves could harvest fish and game to meet their subsistence needs. He suggested in rural Alaska, people live 70 percent off the land and sea and 30 percent through cash. He discussed the high cost of living. Number 2111 REPRESENTATIVE MASEK said she knew of no case in Alaska where a Native had been denied the right to hunt or fish. She said she was trying to find out more about protection for subsistence hunting and fishing. "Because the state could offer the same as what the federal law is doing," she commented. Number 2169 CO-CHAIRMAN OGAN referred to page 4, line 23, under Section 10, which states that "`subsistence uses' means the noncommercial, customary and traditional uses of wild, renewable resources by an individual who significantly depends on the resource". He said that seems to fit people in rural Alaska and elsewhere. He noted that barter and trade are also discussed in that section. He did not see this as a threat of lesser protection. MR. JACK replied, "I think further review should be given, at least on the part of those that promote or feel that the provisions of ANILCA gives us that protection. Since you have just adopted [HB] 243 and this bill would sunset what you have acted on, I would ... recommend that you not move this bill out of the committee." He noted there had been talk about a special session and suggested that might be a time to look at this. Number 2361 DICK BISHOP, Executive Director, Alaska Outdoor Council, came forward to testify, saying the council has no position on HB 255. However, based on initial review, there were several factors to be considered by the legislature. The principle, critical difference between this bill, or the 1992/1986 bill, and the federal ANILCA law is that state law does not have "rural" in it. MR. BISHOP said worthy aspects of this bill include that it does not eliminate most of the critical definitions in existing law, such as "customary and traditional," "customary trade" and "reasonable opportunity." It does redefine subsistence, with which the council agrees, putting the subsistence priority on an individual basis. TAPE 97-49, SIDE A Number 0006 MR. BISHOP referred to the Alaska residency requirement; he suggested that was inadvertently omitted and should be put back in. This bill does not arbitrarily discriminate on the basis of zip code or "some other closed-class criteria," which he believes is important. He stated, "We think it probably has the potential of significantly reducing the difficulties with the Tier 2 provisions under existing law, and that may be something to consider in the whole mix of options that the legislature may be looking at." MR. BISHOP said another major difference between existing state law and HB 255 is that many responsibilities and definitions currently outlined in statute would be transferred to the Board of Fisheries and the Board of Game, including setting of standards. That has both positive and negative aspects. For example, it may spawn a whole new cycle of debate over terms, issues or definitions. MR. BISHOP concluded by saying the Alaska Outdoor Council recommends consideration of HB 255 along with other alternatives in looking at the whole subsistence picture. They believe it has certain strong elements from the standpoint of maintaining the potential of conforming to the Alaska constitution and the supreme court observation that "a definition of subsistence uses that went to individuals was much more likely to be consistent with the constitution than something like `rural'." Number 0187 REPRESENTATIVE NICHOLIA asked Mr. Bishop whether he believes this bill regains state management of federal lands. MR. BISHOP replied, "No, I don't see where it would." CO-CHAIRMAN OGAN asked Mr. Popely whether he could confirm that opinion. Number 0280 MR. POPELY said, "My professional opinion is that it probably would not. I agree with Dick Bishop that the user preference that is provided in the bill would not satisfy the rural preference that's dictated by ANILCA. But I wouldn't foreclose that there's a reasonable argument and that reasonable minds could disagree about that." Number 0351 ART IVANOFF, Subsistence Coordinator, Maniilaq Association, testified via teleconference from Kotzebue, saying he opposes HB 255 for reasons cited by Carl Jack. He said the bill is based on economics and focuses on a welfare-type program, not taking into consideration cultural aspects of the Native people in rural Alaska. Furthermore, there is no opportunity for people to participate in policy decisions, as it gives the Board of Game and the Board of Fisheries discretionary authority. MR. IVANOFF responded to Representative Masek's question to Carl Jack about whether the state had denied anyone the opportunity to subsistence hunt or fish. He cited Moses Point and the Nome River as examples where, "based on politics," the Board of Fisheries has not allowed people to fish, based on "an interception problem we have" in Area M. He said scientific data indicates 60 percent of the chum salmon caught are destined for Northwest Alaska, identified as stretching from the Arctic to Bristol Bay. He said 60 percent of 700,000 chum is nearly 420,000, a significant number when talking about small rivers. Number 0544 DICK COOSE, Executive Director, Concerned Alaskans for Resources and Environment (CARE), testified via teleconference from Ketchikan. He said CARE is a grass-roots organization that addresses loss of access to public resources. With others, they are forming a statewide coalition that wants the legislature, the Governor and the congressional delegation to act immediately to prevent federal takeover of state fisheries management and return management of game to the state. MR. COOSE acknowledged solutions will not be easy. While CARE has no position for or against HB 255, they would like to see the bill achieve their goal of full and effective state management of fish and game. He said the federal government is slowly but surely destroying "the livelihood and economy of Alaska." They have divided the state into classes of user groups and then implemented restrictions to the point that a user group or business is no longer viable; he cited destruction of the Southeast Alaska timber economy as an example. He said the question is whether Alaskans will unite and prevent federal takeover of fisheries management, or whether they will allow the federal government to take over and destroy commercial and sport fisheries, as well as the related local economies, followed by possible loss of tourism and mining. Number 0839 REPRESENTATIVE OGAN commented that it appears the whole idea behind federal intervention is to turn Alaska into a "big eco-tourist park." He suggested if some of the problems with ANILCA are not resolved, especially the commercial sale of fish, the very existence of commercial fishing will be threatened, which he believes is in no one's best interest. He called commercial fishing "the biggest employer in the bush." Number 0893 CALEB PUNGOWIYI, Subsistence Director, Kawerak, Incorporated, testified via teleconference from Nome in opposition to HB 255. He suggested it would require an enormous amount of administrative work to implement. Referring to requirements for qualifying for subsistence, he stated, "I think it's also very demeaning and perhaps, in a way, sickening." He suggested it would be a law enforcement nightmare. He said he is getting to where he no longer cares whether the state gets management of fish and game back. He concluded by questioning whether there is intelligent life in the legislature. Number 1056 GLORIA STICKWAN testified via teleconference from Glennallen, saying she wanted to reiterate Carl Jack's comments; she did so. In response to Representative Masek's conversation with Mr. Jack, she briefly discussed a lawsuit filed against the state, which resulted from fishing being closed except for weekends in 1976, and the time for moose hunting being reduced to five days one year. She said the state was not providing protection. CO-CHAIRMAN OGAN suggested when seasons and bag limits are reduced, it protects the resource for future use. He asked whether Ms. Stickwan was saying subsistence use of those resources had been cut back or whether it was general hunting and fishing seasons. MS. STICKWAN said yes to the latter. The people of Copper River had filed a lawsuit against the state because of it. CO-CHAIRMAN OGAN asked what the outcome was. MS. STICKWAN said she believes they got the fishing back. She said the state does not really protect them. She does not see it as protection when they cannot fish, which they depend on for a living. CO-CHAIRMAN OGAN commented that he does not know the exact particulars of that case; however, many of those are resource management decisions rather than allocative decisions towards groups. Number 1311 ANGIE MORGAN testified via teleconference from Aniak in opposition to HB 255. She said much of what she wanted to say was already stated by Carl Jack, Art Ivanoff and "all the others that were opposing it." She said the river is a highway for people living in the villages. For example, right now, everyone is anxious for the ice to move so they can get fresh fish. They also use the river as a highway in the winter to enable them to hunt moose. In addition, people feel that House bills are "always against subsistence users here." In her area, people look at subsistence as their lifestyle. She had lived in Anchorage before; now living in Aniak, she is beginning to see the importance of keeping the customary and traditional lifestyle. Number 1494 CO-CHAIRMAN OGAN asked if anyone else wished to testify, then concluded the hearing. (House Bill 255 was held over.)
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