Legislature(1997 - 1998)
03/18/1998 04:22 PM House RLS
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 168 - TRADITIONAL ACCESS FOR TRADITIONAL ACTIVITIES Number 0065 CHAIRMAN KOTT said the first order of business would be HB 168, "An Act relating to use of traditional means of access to assist in taking game or fish and to traditional means of access for traditional outdoor activities on land and water set aside for fish and game purposes; and providing for an effective date," sponsored by Representative Masek. He noted there is a proposed committee substitute dated 3/12/98, Utermohle, Version H. Number 0097 REPRESENTATIVE BRIAN PORTER moved that the committee adopt the proposed CSHB 168, Version H, dated 3/12/98. There being no objection, CSHB 168, Version H, was before the committee. Number 0122 REPRESENTATIVE BEVERLY MASEK came before the committee to explain HB 168. She read the following statement into the record: "House Bill 168 follows up on the efforts of this legislature to ensure the general public continues to have reasonable access to the land and the resources they own. This legislation protects public access from arbitrary closures by the Department of Fish and Game and the Boards of Fish and Game. "Last year, the House and Senate passed HB 23 and SB 35 by overwhelming majorities. These two bills dealt with public lands and state parks. Over the past few years, board actions have restricted motorized access in areas where it has been traditional. The rationale revolved around settling user conflicts. However, it should be noted that little recognition is given to the amount of land and water already restricted in Alaska. "Approximately 60 percent of Alaska is in federal land ownership with much of that being restricted through federal regulations. There is an additional 44 million acres of land or roughly 12 percent tied up in private ownership where access restrictions are in place. Add to that the many acres of state land that is already restricted, one can see that further restrictions must be based upon considerations other than conflicts between motorized and non- motorized users. "Last year, in November, the Board of Game took up proposals involving access in game management unit 13. Although much of this unit lies within the Nelchina public use area, which already has statutory positions allowing motorized access, the board chose to ignore that and pursue the question of whether that type of access should come under some restrictions. "Based on the continued actions of both the state and federal agencies to continue to push for more and more restrictions on the public's ability to access land and waters they own, the public's fears are mounting though that the remaining lands open to access will also be closed. House Bill 168. like House Bill 23 and Senate Bill 35, will require legislative approval of any long term closures that are made without sound evidence pertaining to public safety or biological concerns. "Mr. Chairman, I introduced House Bill 168 because I feel strongly that we must balance the use of our public resources. Since public agencies seem reluctant to recognize the large amounts of lands and water in Alaska that are already closed to motorized access, I felt that the legislature needed to set better guidelines for those agencies when dealing with access issues. House Bill 23 was a step in that direction last year and House Bill 168 will complete our efforts in that area. I hope you and members of this committee will help and join me in supporting public access." Number 0432 CHAIRMAN KOTT referred to the term "biologically essential," and asked if that is a term that is drawn from other sources. EDDIE GRASSER, Legislative Assistant to Representative Beverly Masek, Alaska State Legislature, said that "biologically essential" is a new definition in statute, but it was presented to the Department of Fish and Game. They have seen it and have approved it. CHAIRMAN KOTT referred to the new committee substitute, page 3, and said there is some language that cleans up some concerns that the Department of Fish and Game had about the over establishment of refuges. He asked Mr. Grasser to comment on what the language does or what the department's concern was before the language took care of whatever their concern was. Number 0520 MR. GRASSER said, "The (indisc.) draft that we told the drafter and it was our concern that we did not impact standing refuges, critical habitat areas or sanctuaries, or for that matter standing controlled use areas. The bill in draft that we told the drafter, and it was our concern that we did not impact standing refuges, critical habitat areas or sanctuaries, or for that matter standing controlled use areas. And the drafter, when they drafted the language for the bill, put in number (4) on page 3 on line 15, 'expressly authorized under this chapter;'. The Department of Fish and Game raised a concern that they didn't know if that would really cover existing refuges, sanctuaries, et cetera. So after that section, we added a new section like we did after the board section in Section 1 that made it clear that any regulation promulgated by the Board of Game, that took effect before January 1, 1998, would remain in effect. And the department has seen this language also." Number 0586 CHAIRMAN KOTT asked if the department is now comfortable with the language. MR. GRASSER responded in the affirmative. Number 0599 REPRESENTATIVE GAIL PHILLIPS said she did receive a telephone call from a board member who had a concern that the language in the original proposal have affected the board's ability set regulations dealing with the length and type of boats in different areas. She asked if the new language takes care the department's concern. Number 0737 MR. GRASSER stated that he had discussed that point with Lance Nelson of the Attorney General's Office. It was never the intent of Representative Masek to attach commercial fishing with this bill. He said Mr. Nelson pointed out that there was a definition of "traditional access" and that it includes commercial fishing. Mr. Nelson agreed that probably excluded the board of the problem of having to deal with commercial fishing and the problem Representative Phillips raised about the board not being able to deal with vessel length sizes, et cetera. REPRESENTATIVE PHILLIPS asked if the committee substitute removes the concern that the Board of Fish had. MR. GRASSER said that is correct. Number 0704 REPRESENTATIVE KIM ELTON referred to commercial fishing and the definitions and asked if the ability of the Board of Fish would be constrained to limit the length or size of outboards in some of the sport fisheries like along the Kenai River. MR. GRASSER responded that the Kenai River falls under the Division of Parks regulations. He said the bill would not affect them as far as the size of outboard motors. REPRESENTATIVE ELTON said, "If the Board of Fish decides that they're going to limit uses in the Mat-Su area or in different systems based on size of motor or size of boat, would this constrain their ability to manage those river fisheries by using that tool?" MR. GRASSER explained that the constraint would be that they could only do it for a certain length of time if they wanted to do a control use area. If they wanted to impact the number of people using 240 horsepower motors for king salmon fishing, they would set up a control use area or a restriction on those motors. They could still do that under the legislation. Number 0811 REPRESENTATIVE ELTON explained one of the things that bothers him is the controlled use areas seem to be one of the tools in the tool belt that either the Board of Game or the Board of Fish has. It is not necessarily the only one that they could use, but it is one of the tools that they have to separate different kinds of users. He asked Mr. Grasser to address the constraints on the Board of Fish or the Board of Game when you take that tool out the belt. He asked if they would still have that tool. He asked if they would have to use it on a yearly basis because of the time constraints. MR. GRASSER stated, "Perhaps the best way to answer that question would be to read a couple of the controlled use areas that are currently in effect. Even though they would be protected under the language of this bill as a standing control use area, I think that would be good example of what could happen in a closed or in the creation of a new controlled use area addressing your question." He explained in the Tok area there is a controlled use that was created while he was on the Board of Game called the Ladue control use area. It closes motorized access in that particular area for the moose season every fall, late August through late September. He stated if that was not a control use area today, if the bill became law and the board was to meet after it became effective, they would still be able to meet and create some Ladue control use area. It would be a standing control use area that (indisc.) restriction on motorized access. Number 0944 REPRESENTATIVE WILLIAM "BILL" WILLIAMS asked what traditional outdoor activities mean. MR. GRASSER said they tried to be specific about that in the bill. He said each section relates what they can do. He said, "Section 1, the Board of Game may not control access or restrict access or restriction access in assisting in taking game. The Board of Fish (indisc.). In the third section it deals with refuges and sanctuaries. On page 3, it says for the purpose of hunting, fishing or trapping. So it's only -- and that's all the Board of Fish or the Board of Game has control over in creating regulations for access." MR. GRASSER referred to the Nelchina public use area, which was under consideration by the Board of Game this fall in Anchorage, and said the board was considering putting restrictions on the use of ORVs for the purpose of hunting and taking game. It was pointed out by the Department of Law and the Department of Fish and Game to the board that they could do that. However, they could not keep other people that were not hunters from going in and out of there on their ORVs which, according to the information the department gathered, a fairly sizable portion of the ORV access in some areas of the state, like unit 13, is strictly nonhunting and access that shuts people out - recreating, berry picking or riding. The board has no authority to restrict that under the current statute. Number 1037 REPRESENTATIVE WILLIAMS said if there is a shortage and everybody wants to hunt or fish, and if there was a way that could be controlled a little bit by saying, "There won't be any motorized vehicles in this area, but you can go in and hunt anyway." He asked if that scenario would be covered under the bill. MR. GRASSER responded that it would be covered by the bill. He pointed out that while he was on the Board of Game, they created the Noatak control use area at the request of local people in (indisc.), Noatak and the villages along the Noatak River because they felt that their opportunity of being confined to the Noatak River corridor - boats were being impacted by people flying into the area from other parts of the state. The Noatak control use area closes the Noatak River to the use of airplanes during the fall moose season. He pointed out that the bill would still allow the board to create a new control use area in another part of the (indisc.). Mr. Grasser explained that he has met with some leaders of the Native community to explain the bill. He pointed out that in a lot of portions of rural Alaska, like Noatak, the Koyoukuk, and several others in unit 19, there are restrictions in place that are basically targeted at the peak hunting season. He referred to the villagers and said because of the extended caribou season that lasts most of the year in those areas, they still have the option of using their snow machines or their ORVs at other times of the year, other than the peak traffic time, to access wildlife resources. Mr. Grasser stated that the bill does allow the board to take care of the problem area of a peak use period which is usually August and September as a standing control use area that does not have to be revisited every year and does not have to come before the legislature. It also allows some access further along in the year. For example, in January when people from Sleetmute want to get on their snow machine and access that (indisc.). Number 1184 REPRESENTATIVE PHILLIPS referred to a recent problem on the Kenai Peninsula which has to do with restriction of access by the Division of Parks. It is specifically for float planes and ski planes in specific areas in of the state parks. She said the bill doesn't address that, but she believes that is the next step. Number 1232 REPRESENTATIVE ELTON said Mr. Grasser mentioned that the department didn't have any strong reaction to the phrase "biologically essential." He said he is assuming that the department is still not in favor the bill. MR. GRASSER responded in the affirmative. Number 1292 ED DERSHAM, Member, Board of Fisheries, testified via teleconference from Homer. He referred to a resolution passed by the Board of Fisheries which was passed on March 5, 1998, and noted copies have been sent to members of the legislature. Mr. Dersham said they have a couple of concerns regarding the bill. The first concern has been mentioned about the ability to restrict vessel size in commercial fisheries. He said he has tried to get in touch with Lance Nelson, but he wasn't available. Mr. Dersham said the last time he spoke to him on March 5, he still wasn't comfortable that the bill was clear enough to alleviate that concern. He said he has noticed in the most recent version of the bill compared to the last version, the definition of "traditional outdoor activities" has been removed. That definition specifically did not mention commercial fishing. He said his observation is that it seems less clear in the most recent version that the intent is not to include commercial fisheries. Mr. Dersham said the board's position is that it is still not stated clearly enough. Number 1384 ROY BURKHART testified via teleconference form the Mat-Su Legislative Information Office (LIO). He informed the committee that he is a 38-year resident of Alaska and is a member of the Disabled American Veterans, but isn't speaking for that organization. He thanked Representative Masek for introducing the bill. Mr. Burkhart stated that he believes it is essential that we have access to our land and to our waterways. He said, "Whether this bill passes or not, the existing legislation governing the Board of Game in item 3, it states that the Board of Game can establish the means and methods employed in the pursuit, capture, taking and transport of game. It goes on to say 'establish the means and methods that may be employed by persons with physical disabilities.'" Mr. Burkhart said a number of concerns have been raised, but nobody talked about what adverse effects these restrictions have on people with disabilities. He said, "For an example, between Homer and Talkeetna there is 70 percent of our state's population that live in these areas. There is one exception for handicapped people in a whole area and this is what it says, 'a person with physical disabilities may shoot game from a motorized vehicle in portions of units 7 and 15 within the Kenai National Wildlife Refuge. This person must require a wheel chair for mobility, obtain a permit from the department and be in compliance with the Kenai National Wildlife regulations.' Now this same state will take the Northway Mall, which is a private enterprise, require them to have so many handicapped parking places by the door and also will issue the people a handicapped sticker and it is a level paved parking lot. And this applies to people that are not wheelchair bound. And so I would assume that if it's a problem to walk on a paved parking lot, it would be a problem to walk outdoors and try to hunt in things other than a wheelchair. Even though the legislature specifically gave the Game Board that authority, it's never been done except for one time." He said the law exists and it tells them that that's what they're supposed to do. He urged the committee to pass the legislation. Number 1557 CLIFF JUDKINS, President, Alaska Boating Association, was next to testify via teleconference from the Mat-Su LIO. He said the reason he is testifying in favor of the bill is that the actions by regulatory authorities to restrict access to traditional means of taking game and fish when there is no biological reason to do so. He referred to a 1996 spring closure of more than 2,000 acres in the Tanana River for the use of air boats for the taking of moose, including transportation of hunters' equipment and meat. There was no reason for this other than someone did not like air boats or the competition of the other hunters. Air boats are still allowed, during the same period, in the area to hunt ducks, bear, small game and for sightseeing. He pointed out that at the same time the board took that action, they approved a cow season a (indisc.) season and lengthened the general season for moose which indicated the moose population in the area was healthy. When questioned, the board member said noise was their reason, yet they allowed air boats in the same area at the same time for other hunting and fishing purposes. MR. JUDKINS explained that HB 168 does not restrict the regulatory authority of the departments to manage fish and game resources. There are many methods of maintaining sustained yield populations and you can find it extensively in the fish and game regulations. He said his organization feels that all Alaskans should have access to all of their game and fish resources by all traditional means as long as maximum sustained yield goals are maintained. He thanked the committee for allowing him to testify. Number 1644 LEE STONER testified via teleconference from the Mat-Su LIO. He explained there was a lot of deliberation during the Board of Game hearings about ORVs, et cetera. There has been a tremendous variety of vehicles used to access these areas as far back as he can remember - back in the early 1950s. Even though there is a considerably larger number of those vehicles in the field now, the ones that are in the field considerable reduces (indisc.). He spoke of military vehicles that were also used. Mr. Stoner informed the committee that he is a handicapped hunter. He stated he is strictly opposed to any further reduction in the use of motorized vehicles for hunting and fishing. Mr. Stoner stated he thinks it is important to introduce young people to the field and when he introduced his children to the field, they were too young to walk very far. He took them out in the field on a four-wheeler. He urged the committee to pass the legislation. Number 1777 ROD ARNO, President, Alaska Outdoor Council, came before the committee to testify in support of HB 168. He said should the bill become law, it would be advantageous to both the Board of Game and the Board of Fisheries. He thanked Representative Masek for introducing the bill. Mr. Arno said, "What it does and what we've seen is we are seeing at the board process level people who are not participating in hunting and fishing, but want only to stop it. And by means of controlling hunting access, OR-vehicles, for example. They can come to a public hearing and give testimony that they are opposed to traditional access use where their intent is just to stop all motorized vehicles on public lands." He stated that he thinks that board members would be relieved to have a piece of legislation like this that would allow them to create the same control use areas that they could in the past and still open them when it's not peak time for the season. He thanked the committee for listening. Number 1872 REPRESENTATIVE PHILLIPS said she would like to propose an amendment for the purpose of clarifying that the bill does not apply to commercial fisheries. On page 2, line 5, after the word "fish" insert "for sport or personal use". On page 3, line 4, after "fishing" insert "for sport or personal use". She stated that would clarify the concern. She then moved that the amendment be adopted. Number 1908 CHAIRMAN KOTT stated it would then read, "After January 1, 1998, the Board of Fisheries may not adopt a regulation prohibiting the use of a traditional means of access to assist in taking fish for sport or personal use unless the prohibition is..." Number 1922 REPRESENTATIVE AL VEZEY stated he is confused as to why we would want to limit this to sport and personal use fish. There is still a tremendous amount of authority by the department. REPRESENTATIVE PHILLIPS stated that the concern did come from the Board of Fisheries as far as the commercial fishing regulations in that the language was very clear that this didn't apply to the commercial fishing regulations dealing with size of boat and type of gear. By adding the wording in, it is clarified and it makes the law very clear that it doesn't apply to commercial fishing (indisc.). Number 1969 REPRESENTATIVE WILLIAMS asked how the amendment would affect subsistence. MR. GRASSER stated that subsistence also needs to be added. Number 2003 REPRESENTATIVE WILLIAMS moved an amendment to the amendment to include subsistence. REPRESENTATIVE PHILLIPS stated the amendment would then read, "for sport, subsistence or personal use." Number 2028 REPRESENTATIVE VEZEY said he is really confused. He asked how it would apply if commercial fishing was under the subsistence definition of the federal courts. He stated that his personal analysis would be that personal use fits most subsistence that the committee is talking about. Personal use wouldn't fit the definition of commercial fishing under subsistence (indisc.). MR. GRASSER stated that he doesn't believe that rules or regulations promulgated under the federal system or the Federal Subsistence Board would be impacted by a state regulation. They supersede state regulations on the use of their land. Number 2118 REPRESENTATIVE VEZEY said that there has been litigation in the Interior over the commercial sale of subsistence-caught roe. He stated, "That is a state administered program, but they have to comply with federal requirements like the rest of the state laws do." MR. GRASSER stated that is correct, however, he believes most of those (indisc.) caught. He said he doesn't think there is an access question involved because most of those fisheries are either bank fisheries or fish wheel fisheries that are located on land adjacent to the river system that belongs to the village in most cases. It is not a situation where someone is trying to go across state land to access the river which is what the bill addresses. REPRESENTATIVE VEZEY stated that the bill addresses the methods and means of taking (and what we're talking about right now) fish. He said he is curious why for sport and personal use it wouldn't satisfy all of our definitions of what we're thinking of subsistence. By including subsistence as a separate word, we could be opening up the area of commercial subsistence fishing. MR. GRASSER stated he thinks that is a separate issue as the bill only addresses access and not whether people can catch fish under subsistence regulations and sell them commercially. It strictly deals with what the guidelines are before the board on access. It doesn't provide any direction to the board about how they're supposed to manage their fishery or whether they're supposed to provide regulations or rules on the sale of fish. Number 2211 REPRESENTATIVE VEZEY said he thought that the size of the boats is why they want subsistence in the bill. He said he assumes that access meant that you were going to approach the fishery in a 100- foot boat or a 53-foot boat. Number 2238 CHAIRMAN KOTT indicated that there is an amendment as amended. He asked if there was an objection to the amended amendment. There were no objections. Chairman Kott said the amendment is before the committee. He asked if there was an objection to Amendment 1. There being none, Amendment 1 was adopted. Number 2264 REPRESENTATIVE WILLIAMS stated it is his understanding that they are not trying to set up definitions in the bill to go onto the subsistence issue of traditional, cultural, or whatever. This relates to traditional outdoor activities and doesn't pertain to any traditional uses in the subsistence issue that the legislature is trying to deal with. CHAIRMAN KOTT stated that is his understanding as well. The sponsor also has indicated that is her intent. Number 2292 REPRESENTATIVE ELTON explained the thing that bothers him the most about the approach is he thinks it is being sold on a notion that we have a conflict between nonconsumptive users and consumptive users. He said earlier hearing records reflect that most of the conflicts of the Board of Fisheries and the Board of Game deals with are conflicts between different kinds of consumptive users, whether those conflicts are defined between different regions or different means of access that consumptive users (indisc.). He stated that he is concerned that the management regimes of both the fisheries and game resources have become much more complex in Alaska over 20 years. Representative Elton said he expects that they're going to continue to become even more complex in the future. That's what happens when there are new types of access and more types of users. Number 2363 REPRESENTATIVE WILLIAMS made a motion to move CSHB 168, as amended, out of committee with individual recommendations and with the attached fiscal notes. REPRESENTATIVE ELTON objected. A roll call vote was taken. Representatives Vezey, Phillips, Porter, Williams and Kott voted in favor of the motion. Representative Elton voted against the motion. So CSHB 168(RLS) moved out of the House Rules Standing Committee.
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