Legislature(1997 - 1998)

05/01/1997 01:15 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 SSHB 243 - EXTEND CURRENT SUBSISTENCE LAW                                   
 CO-CHAIRMAN OGAN announced the next order of business was Sponsor             
 Substitute for House Bill No. 243, "An Act delaying the repeal of             
 the current law regarding subsistence use of fish and game;                   
 amending the effective date of secs. 3 and 5, ch. 1, SSSLA 1992;              
 and providing for an effective date."  He said this bill simply               
 extends the existing subsistence law.                                         
 Number 2301                                                                   
 REPRESENTATIVE ALAN AUSTERMAN, Chairman of the House Special                  
 Committee on Fisheries, which sponsored the bill, came forward to             
 testify.  He said Co-Chairman Ogan had stated the extent of this              
 bill, in that it extends the effective date of the subsistence laws           
 to 1999.                                                                      
 Number 2317                                                                   
 CO-CHAIRMAN OGAN said he has concerns about "piece-mealing" the               
 subsistence issue and somewhat side-stepping it.  However, until              
 there is a cohesive plan, it may behoove them to move this.                   
 Number 2357                                                                   
 REPRESENTATIVE BILL WILLIAMS noted that extending the 1992 law is             
 something the legislature has done for the past two sessions.  This           
 just gets them through for the next two years.                                
 Number 2376                                                                   
 REPRESENTATIVE REGGIE JOULE indicated he has heard that the                   
 majority is working on the larger subsistence issue.  He suggested            
 extending the current law is probably necessary until something               
 else is done.  Otherwise, it reverts to the 1986 law.  He asked:              
 Would we be able to repeal this if we came to a resolution?                   
 CO-CHAIRMAN OGAN affirmed they could do so, provided they had the             
 votes.  He asked whether Representative Joule is comfortable with             
 the 1992 subsistence law as it was written.                                   
 REPRESENTATIVE JOULE asked whether that question specifically                 
 related to SSHB 243.                                                          
 CO-CHAIRMAN OGAN said yes.                                                    
 REPRESENTATIVE JOULE stated, "I would be in favor of extending                
 this.  In terms of the larger issue of subsistence, of course, I              
 think that's a whole different discussion.  But in context of this            
 particular extension, yeah, ... I think we can go ahead and extend            
 this bill."                                                                   
 Number 2461                                                                   
 CO-CHAIRMAN OGAN noted that the bill sunsets October 1.                       
 TAPE 97-48, SIDE B                                                            
 Number 0006                                                                   
 REPRESENTATIVE IRENE NICHOLIA suggested taking this up after the              
 proposed special session.                                                     
 CO-CHAIRMAN OGAN responded that although he agrees in principle, he           
 is worried that if there is no special session and the law sunsets,           
 they will go back to the old law.  He asked whether they should               
 consider repealing the old law and staying with the more current              
 Number 0034                                                                   
 REPRESENTATIVE FRED DYSON suggested there are too many variables to           
 count on this being unnecessary.  Unless they want to go to the               
 "significantly monumental task of rewriting or repealing," the only           
 question is:  Do we want the 1986 subsistence rules to go into                
 effect in October, or do we want to do this?                                  
 Number 0110                                                                   
 DICK BISHOP, Executive Director, Alaska Outdoor Council, came                 
 forward to testify.  He said the council supports SSHB 243.  He               
 said, "The whole matter of how to address the subsistence issue is            
 certainly in a state of flux, as you know better than most.  While            
 a new strategy is being sought, we think it is essential that state           
 law retain the statutory provisions regulating subsistence and                
 nonsubsistence uses that were enacted in 1992.  Principal among               
 these includes the nonsubsistence areas, the definition of                    
 `reasonable opportunity' as it relates to subsistence uses, a                 
 systematic process by which the Boards of Fisheries and Game decide           
 upon subsistence use and other use regulations, and the definitions           
 of `customary and traditional' and `customary trade.'  Those were             
 important provisions that were put in the '92 law, and we feel they           
 should remain."                                                               
 MR. BISHOP stated, "We support HB 243 even though, as the                     
 discussion has already indicated, we recognize that the existing              
 state law relating to subsistence uses of fish and game is                    
 imperfect, and you are looking at possible changes.  We see the               
 extension of provisions of the '92 law as necessary for                       
 conservation and reasonable allocation while the whole issue is               
 undergoing yet another review."                                               
 MR. BISHOP continued, "The Alaska Outdoor Council strongly supports           
 personal consumptive uses of fish and game and subsistence                    
 lifestyles.  However, we have stated that we do not believe that a            
 constitutional or statutory priority is necessary to adequately               
 provide for subsistence uses, and we have consistently opposed an             
 arbitrary and discriminatory closed-class priority based on zip               
 code, culture or ethnicity.  Nevertheless, the council has been               
 willing to compromise in order to support ... Governor Hickel's               
 bill in 1992 and again, recently, in support of HJR 21.  As you               
 know, Governor Hickel's bill did not pass the legislature due to              
 opposition from the Alaska Federation of Natives."                            
 MR. BISHOP concluded, "In summary, the council is willing to                  
 support SSHB 243 as an interim measure while needed changes to                
 federal law and, if necessary, to state law or our constitution,              
 are considered.  However, a one-year extension is probably                    
 preferable to the two-year that is listed in the bill, just to keep           
 it kind of warm.  Frankly, the council continues to be perplexed              
 and frustrated by the widespread apparent indifference to the                 
 constitutional provisions providing for equal rights and equal                
 protection with respect to fish and game uses.  That indifference             
 to the protection of individual rights, upon which the United                 
 States and the state of Alaska were founded, tests our patience and           
 our willingness to consider compromises which diminish or revoke              
 those provisions in Alaska's constitution.  Although this issue               
 addresses uses of fish and game, it is in fact an issue of civil              
 rights, and we don't know how long we're willing to continue to be            
 willing to compromise on these issues that are so basic to people's           
 individual rights and protections."                                           
 Number 0262                                                                   
 CO-CHAIRMAN OGAN asked whether the committee had questions for Mary           
 Pete from the Division of Subsistence or Ron Somerville, technical            
 consultant to the leadership of the House and Senate.  Both Ms.               
 Pete and Mr. Somerville came forward to the witness table.                    
 REPRESENTATIVE DYSON requested their opinions on whether this bill            
 should pass.                                                                  
 Number 0287                                                                   
 MARY C. PETE, Director, Division of Subsistence, Department of Fish           
 and Game (ADF&G), stated support for SSHB 243.  She said as                   
 committee discussion shows, unless there is another way to address            
 subsistence, this bill would keep consistency in how the                      
 subsistence law is implemented.  It retains important provisions              
 relating to nonsubsistence use areas, as well as definitions that             
 the public has become accustomed to and that have eased the board's           
 work in managing subsistence hunting and fishing.                             
 Number 0324                                                                   
 REPRESENTATIVE BEVERLY MASEK asked Ms. Pete to expound on the issue           
 of what the public has become accustomed to.  She asked whether               
 that is dealing with customary, traditional or cultural aspects,              
 for example.                                                                  
 Number 0331                                                                   
 MS. PETE said definitions put in place by the 1992 law are key in             
 implementing subsistence hunting and fishing; one is "customary and           
 traditional" and the other is "customary trade and barter."  She              
 believes the stricter definitions of the latter in the 1992 bill              
 provide a wider sense of comfort regarding subsistence statewide,             
 primarily in the commercial fishing industry.                                 
 Number 0364                                                                   
 REPRESENTATIVE MASEK asked for clarification about what the public            
 has become accustomed to.                                                     
 MS. PETE said if this bill did not pass, on October 1, 1997, the              
 state would revert to the 1986 law, parts of which are                        
 unconstitutional under the state constitution.  She said, "The                
 flip-flop that the state has taken in terms of subsistence                    
 management, especially since 1986, I think has frustrated users in            
 the state, because some years, it's rural residency; some years it            
 isn't.  Some years, we have nonrural areas; some years we don't.              
 And the 1992 law established nonsubsistence areas, which                      
 essentially mirror the nonrural areas prior to ... 1992.  And                 
 another flip-flop, I think, will just lead the public to assume               
 that the state really can't manage subsistence, that there's been             
 so much flux and unrest regarding subsistence, that, you know, this           
 is just another example of where we haven't been able to maintain             
 consistency until the issue is resolved."                                     
 MS. PETE advised that the Governor has a resolution, HJR 10, to               
 provide a constitutional amendment ballot to put the constitution             
 in line with ANILCA, which is one option for the legislature.  She            
 said the other option is the Lieutenant Governor's three-tiered               
 Number 0455                                                                   
 REPRESENTATIVE MASEK responded that Governor Hickel had worked on             
 a plan, to which the Alaska Federation of Natives (AFN) said no.              
 In addition, the AFN stand on Lieutenant Governor Ulmer's plan was            
 a "no-net loss policy."  Representative Masek mentioned HJR 21,               
 which she sponsored and which would divert the problem back to                
 ANILCA, where the problem began.  She said right now, the state               
 does not have control over defining customary, traditional or rural           
 preference.  She asked what Ms. Pete envisions as a way of                    
 resolving this.                                                               
 Number 0521                                                                   
 REPRESENTATIVE NICHOLIA stated what was in front of the committee             
 was to extend the 1992 law, not to discuss visions for resolving              
 the subsistence question.                                                     
 Number 0539                                                                   
 CO-CHAIRMAN OGAN called a brief at-ease at 2:17 p.m.  He called the           
 meeting back to order at 2:18 p.m., saying he would allow                     
 Representative Masek some latitude.                                           
 REPRESENTATIVE DYSON suggested witnesses should feel free to opt              
 out when questions are expanded beyond the exact bill on the table.           
 Number 0610                                                                   
 REPRESENTATIVE MASEK asked Ms. Pete's opinion on how to resolve               
 this problem if the bill did not pass.                                        
 MS. PETE said state law defines "customary and traditional" and               
 "customary trade and barter."  She explained, "And as you well                
 know, we can't enact rural preferences, so we did have a definition           
 of `rural' as well, prior to the McDowell decision.  So the state           
 has defined those terms, and we've used those definitions to                  
 implement the law.  You know, certainly, the federal government,              
 they manage subsistence on federal lands; they have their own                 
 definitions.  But we have defined those terms."                               
 Number 0681                                                                   
 CO-CHAIRMAN OGAN read from state statute, saying, "Customary and              
 traditional means noncommercial, long-term and consistent taking              
 of, use of and reliance on fish and game".  He noted it goes on               
 from there.  He said, "Customary trade, a limited noncommercial               
 exchange for minimal amounts of cash, as restricted by the                    
 appropriate board of fish and game resources."  He said it does not           
 go into birds or fur-bearers.  Co-Chairman Ogan noted that HJR 21             
 calls for Alaskans to decide what those definitions are.  He asked            
 Ms. Pete whether, under current law, she finds that residents using           
 subsistence are comfortable with these definitions and whether                
 these definitions of "rural" and "customary and traditional" work.            
 Number 0731                                                                   
 MS. PETE said they work in that the ADF&G has not heard of problems           
 with them.  There has been no public outcry as the boards have used           
 those definitions in managing fish and game, although probably not            
 everyone is happy with them.                                                  
 Number 0754                                                                   
 CO-CHAIRMAN HUDSON made a motion to adopt SSHB 243 for discussion             
 and asked unanimous consent.  There being no objection, it was so             
 Number 0795                                                                   
 CO-CHAIRMAN HUDSON made a motion to amend SSHB 243 on page 1, line            
 7, by changing "1999" to "1998".  He said that would place                    
 responsibility on the current legislature to conclude the work on             
 this issue to the extent practical and possible.  He asked                    
 unanimous consent.                                                            
 REPRESENTATIVE AUSTERMAN advised that he had no problem with it.              
 Number 0856                                                                   
 REPRESENTATIVE WILLIAMS asked whether it would need to be brought             
 up again in 1998, then.                                                       
 CO-CHAIRMAN HUDSON said absolutely; that is his intention.  He                
 stated, "If we don't amend this, if we leave it to 1999, it                   
 essentially gives this legislature an opportunity to walk away from           
 the subject.  If we put it in 1998, it forces this legislature to             
 deal with it in the next session, and I believe that that is our              
 Number 0894                                                                   
 CO-CHAIRMAN OGAN concurred.  He asked if there was any objection to           
 the motion.  There being none, the amendment was adopted.                     
 Number 0919                                                                   
 CO-CHAIRMAN HUDSON made a motion to move SSHB 243, as amended, from           
 the committee with individual recommendations and zero fiscal note.           
 He asked unanimous consent.                                                   
 CO-CHAIRMAN OGAN asked if there was an objection.  There being                
 none, CSSSHB 243(RES) moved from the House Resources Standing                 

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