Legislature(1997 - 1998)
05/05/1998 03:20 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 406(FIN) am(efd fld) - SUBSISTENCE USES OF FISH AND GAME CHAIRMAN TAYLOR brought HB 406 before the committee and stated testimony would be taken from individuals who were not able to testify at the previous hearing on the legislation. HARRIET MIYASATO BELEAL, a 28-year resident of Anchorage, said she is originally from Wrangell and is a Raven of her clan tribe, Dog Salmon Frog. Her grandfather, Chester Worthington, worked on the Native land claims, as well as organizing the Alaska Native Brotherhood in the early 1920s. Ms. Beleal is also a member of the Anchorage Tlingit/Haida Tribes of Alaska, and she noted that group recently passed a resolution in opposition to HB 406 because they believe the bill should comply with ANILCA. Ms. Beleal is opposed to HB 406 because she does not believe it is in the best interest of the Alaska Native people. She suggested that in identifying rural in a constitutional amendment, it should include the language "the Alaska Native people and their descendants" as well as including the other rural residents who have subsisted or have had a dependency use on the subsistence food. She stressed the need to protect the Native peoples' rights to their traditional foods. Ms. Beleal pointed out that at a Board of Fisheries hearing statistics gathered showed that Alaska Natives were using only two to five percent of the subsistence foods. She said it isn't the Alaska Natives using up the resources, it is the commercial use that has damaged and depleted the stocks. She said the constitution should reflect that the Alaska Native people have the priority and the preference to the Native foods. Ms. Beleal also suggested there needs to be more Native people sitting on the fish and game boards. SENATOR TAYLOR pointed out that under the federal law he qualifies for subsistence in Wrangell; however, Ms. Beleal was born and raised in Wrangell, but because she currently lives in Anchorage, she does not qualify. MS. BELEAL said that part of ANILCA should be changed also because no matter where she goes she is still from Wrangell and an Alaska Native. The laws need to be changed so that they are not taking away their inherent rights that they have as Alaska Native people. Number 255 CHAIRMAN TAYLOR thanked Ms. Beleal for her testimony, and then stated the committee would take testimony on HB 406 over the teleconference network. THEO MATTHEWS, president of the United Fishermen of Alaska (UFA) and chairman of its subsistence committee, testified from the Kenai LIO. He is also a past member of Governor Hickel's Subsistence Advisory Council, which essentially became the current state statute on subsistence and which HB 406 proposes to replace. Mr. Matthews stressed the importance the UFA has always placed on the need for amendments in ANILCA; technical amendments that clarify the extent of the priority, amendments that essentially bring it into line wit the state law. He said the state has developed its own parallel subsistence priority that is the same in all major respects except for the issue of who qualifies, and it is an important goal, independent of the issue of who receives priority, to make sure that the state's law with its better state definitions is inserted as much as possible in the federal law. Mr. Matthews pointed out that the amendment that is proposed for the constitution is permissive. It would allow the Legislature, as trustee, to adopt a priority based on location; it does not demand it. He also pointed out that UFA has considered the Legislative Council's lawsuit and has voted not to oppose it. They think closure on the issue in terms of a Supreme Court decision would be very good for everyone, but on the other hand, they don't feel that the state can afford to let the existence of the lawsuit prevent action prior to December 1. Mr. Matthews outlined the following suggested changes to HB 406: (1) Page 2, line 31: Change "subsistence uses by residents" to "subsistence uses by qualified subsistence users" to make it consistent with the rest of the bill; (2) Page 7, line 13: The term "reasonable opportunity" is defined in state law, but there is no case law on its definition; (3) Page 7, line 17: UFA believes it is bad policy to attempt to define the term "sustained yield" because it could be used in court to overturn board decisions and department decision. UFA believes the definition is not needed; (4) Page 8, subsection (b): UFA has no problem with the issue of creating regional advisory councils as required in ANILCA, but they think their recommendations should be limited to subsistence issues; (5) Page 8, line 30: In the past, the definition of "customary and traditional" hasn't worked well, and it is an issue that is technical and legal but needs to be addressed at some point; and (6) Page 9: In the definitions it is proposed to delete the language "by a resident domiciled in a rural area of the state" and UFA suggests replacing it with "by a qualified subsistence user" to make it consistent with the rest of the bill. In his closing comments, Mr. Matthews said one of the things UFA has asked the federal government to do with ANILCA amendments is to put the meaning of definitions of important terms in ANILCA, terms such as "rural", "customary and traditional", "customary trade" and "reasonable opportunity". UFA has always supported the fact that the federal government should adopt the definitions of this state that have been developed by the Legislature. Number 406 CHAIRMAN TAYLOR asked Mr. Matthews if UFA would support ANILCA without the UFA's suggested amendments being made in ANILCA. MR. MATTHEWS responded that their past position is that they would not support a constitutional amendment unless the ANILCA definitions could be secured, and for the first time, there is the opportunity to combine the two. Number 440 CHAIRMAN TAYLOR noted that Senator Murkowski has given assurances that if the Legislature would send back a bill to him with recommended changes in it, he would hold hearings in the Senate Resources Committee as soon as possible on those recommended changes as additional amendments to ANILCA. MR. MATTHEWS clarified that the issues UFA has raised have been dealt with in Senator Stevens' amendments, but UFA thinks they can be improved upon by better wording. However, he pointed out that he didn't think there would be a lot of empathy for a package that's not agreed to by the Interior Department, the Governor and the Legislature. Number 475 LYNN LEVENGOOD, a Fairbanks attorney and former member of the Fairbanks advisory committee of the fish and game boards, as well as an executive member of the Alaska Wildlife Conservation Association, said HB 406 is a start, but he thinks it needs some significant changes because the methodology being utilized will create a "zoning" where people exercise subsistence and a "zoning" where they cannot. It is an artificial political distinction that has no basis in fact and it is creating a legal fiction that he believes is unsustainable. Mr. Levengood suggested that if the Legislature were to define subsistence broadly as a basic right of all Alaskans, it could pass a piece of legislation which is consistent with ANILCA. He said if the word "subsistence" could be defined in a way that satisfies state needs and protects the group of people that the federal government wishes to protect, then he believes the Alaska law would be found by the courts to comply with ANILCA. Mr. Levengood suggested amending the legislation to include a provision requiring that any regulatory proposal be passed by a local advisory committee before being entertained by the state Board of Game or state Board of Fish. He said there are too many proposals put in for political reasons that bog down both of those boards, whereas requiring each proposal to be passed by a local advisory committee, which would have jurisdiction over the subject matter, would streamline the process and make it much more efficient and less time consuming. In conclusion, Mr. Levengood urged that the Legislature pass a joint resolution telling the local delegation and Congress that Alaska is united in resolve that the current promulgated draft regulations by the Department of Interior should be enjoined or stopped from being implemented until this issue is resolved either through the courts or through the legislative process. TAPE 98-51, SIDE B Number 577 STEVE WHITE, Assistant Attorney General, Department of Law, said at the conclusion of the committee's Friday, May 1 meeting, there was discussion about whether there were fundamental differences between the state if it assumes management of subsistence under federal court oversight implementing a federal law, or whether the federal government comes in December 1 and assumes management of subsistence. He then directed attention to a handout which gives a fairly factual description of the two committee system written by the Division of Subsistence in 1993. As a former commercial fisherman in the Copper River fishery, Mr. White pointed out that fishermen in that area are nervous in the sense that the unpredictability of the federal management scheme is frightening to them. The reason for this is that the commercial fishery is operated at the mouth of the river, with a personal use fishery upstream, as well as a subsistence fishery further upstream. In order for all of these fisheries to work, the state board has developed a fairly sophisticated management plan, and the question is whether the federal government has the inclination and the resources to do that kind of fine tuned management. Mr. White said another question is that if the state does come into compliance with ANILCA under various proposals, does it then lose any state management prerogatives over non-federal land. He noted that JoAnne Grace, an assistant attorney general in the Department of Law who has been litigating all the federal subsistence cases, said that if the state were compliance and there was an issue that arose about the priority on what was left of state lands and private lands, the state would have a good argument that the federal courts would have no jurisdiction. He said he didn't think the state coming into compliance thereby diminishes any ability for the state to continue to manage it resources as the state boards would see fit on non-public lands. Number 528 CHAIRMAN TAYLOR asked what happens, assuming that we were to pass the amendment and the state comes into compliance, when the Board of Fish or the Board of Game decides to come up with a regulation that is significantly different than the regulation that the federal subsistence boards have already promulgated. MR. WHITE replied that assuming it is a state Board of Fish or state Board of Game decision under the amendments, the federal courts will have to give some deference to their decisions. He said the amendment that talks about giving deference to a state board requires the federal court to give our state board the same deference that they would give the federal board. He added that in the past, the federal court has not given our board the same deference as it has to one of its own agencies. He pointed out that what is gained through these amendments is that there will be state boards comprised of Alaskans who have been reviewed by the Legislature, and they do have a greater degree of deference than they've had in the past. There being no further testimony on HB 406, CHAIRMAN TAYLOR stated the bill would be set aside.
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