Legislature(1997 - 1998)
05/26/1998 02:15 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 2:15 p.m. in the Senate Finance Committee Room. He
announced all committee members were present, as well as a number
of other members of the Senate joining the committee.
CHAIRMAN HALFORD announced the committee would be taking up the
proposed subsistence package which includes a constitutional
amendment, an extension of the sunset, as well as a governor's bill
on subsistence; however, he said the committee would be
concentrating on the constitutional amendment proposal and the
sunset legislation. He then invited Attorney General Bruce Botelho
and former Attorney General Charlie Cole to make their presentation
to the committee.
ATTORNEY GENERAL BOTELHO said he was appearing before the committee
to represent the Knowles' Administration about subsistence, and Mr.
Cole, a former attorney general, was appearing before the committee
as a member of the bipartisan subsistence task force that was
convened last year to try and find a solution to the subsistence
dilemma. He said he and Mr. Cole would be providing an
abbreviated historic and legal perspective about the subsistence
issue, and would be focusing specifically on the constitutional
amendment and the reasons why they think that the task force
product is one that should be ultimately put before the people of
Alaska.
ATTORNEY GENERAL BOTELHO said probably an important start is to
talk about what subsistence is. Obviously, both state and federal
law provide definitions of subsistence, but in a more general
sense, we're talking customary and traditional hunting, fishing, or
other gathering activities that are intended for personal or family
consumption. It is also quite clear in looking at what the
patterns are in Alaska, that subsistence is a mainstay of life,
particularly in rural Alaska. That dependency was particularly
dramatically illustrated as a result of study that was completed in
1987 by the Department of Fish and Game.
ATTORNEY GENERAL BOTELHO directed attention to Table 1 contained in
a packet provided to the committee (See Attachment #1) which shows
the annual harvest of subsistence foods by geographical area. He
pointed out that of 98 communities that were surveyed around the
state, going from the very largest communities to the smallest
villages in Alaska, the results show that the per capita
consumption ranges from a low in the Anchorage, Fairbanks and
Juneau areas of 30 pounds per person to a high in the Northwest
Arctic of well over 1,000 pounds. The per capita consumption of
these wild game fish and other resources vary directly from the
distance to the major urban centers of the State. The closer to
road, rail or ferry service the less the dependence on that
resource. The numbers reflect three factors: (1) job
opportunities in the urban areas limit the amount of time that
people can engage in hunting and fishing activities: (2) there are
also alternative food sources available combined with those cash
incomes in the urban centers; and (3) in urban areas there are
large numbers of people who don't hunt or fish at all.
ATTORNEY GENERAL BOTELHO said he thinks there are two major
viewpoints that have been expressed about what the controversy of
subsistence is. In one sense, the subsistence debate deals with a
larger issue that was triggered by dramatic population growth
within Alaska in the last decades and the consequential pressures
on fish and wildlife resources. This has forced policy makers to
have to constantly readdress the issue of how to go about
allocating those resources when there aren't enough to satisfy
every person. The other viewpoint has to do with the issue and
direct result of efforts to resolve aboriginal hunting and fishing
rights which actually began before statehood. Congress said that
Alaska, as a state, could not regulate aboriginal hunting, fishing
or other gathering inconsistent with federal law.
There are two very pertinent provisions in the Statehood Act. One
is the transfer in 6(e) of the Statehood Act of fish and game
management from the federal government to the state. The state
would be able to exercise the same degree of power that the federal
government was able to. The other provision in Section 4 of the
Act deals with the issue of the state being required by admission
to disclaim all right and title to any lands or other property,
including fishing rights, the right or title to which may be held
by Alaska Natives. The U.S. Supreme Court visited that issue very
early in statehood, one arising out of Metlakatla and the other out
of Kake. In Kake versus Egan, the U.S. Supreme Court said the
purpose of that language was to preserve the status quo with
respect to any aboriginal claims so that statehood would neither
interfere with extinguishing those rights or require them to be
recognized as compensable.
ATTORNEY GENERAL BOTELHO said in 1971, Congress addressed the issue
by enacting the Alaska Native Claims Settlement Act (ANCSA), and a
large part of the debate about ANCSA is specifically about the
question of subsistence rights. Amendments proposed to that Act
would have specifically recognized Native rights, the hunting and
fishing subsistence rights, and would have also specifically
directed the Secretary of Interior to withdraw lands around
villages for subsistence purposes with the ability to exclude any
other takers. Congress ultimately decided not to do that because
the secretary had enough power to make those withdrawals without
additional exercise of powers conferred by the Act. The conference
committee report on ANCSA said that the committee expected both the
Secretary and the State to take any action necessary to protect the
subsistence needs of the Natives; however, the secretary didn't
undertake any particular actions.
The state of Alaska made some preliminary efforts by enacting the
first subsistence statute in 1975. It allowed the Board of Game to
set aside subsistence hunting areas, but the board never did it.
Another Act was passed in 1976 which provided for greater public
participation in that determination. The power to designate these
subsistence areas was discretionary and the board decided to use
its discretion.
In 1978, the Legislature answered the question about subsistence
priority use in legislation but didn't address the question of who
the users should be. The Legislature determined that it was in the
public interest to clearly establish subsistence use as a priority
of Alaska's fish and game resources, and to recognize the needs,
customs and traditions of Alaskan residents.
While the Alaska Legislature was working on the subsistence issue,
there were efforts in Congress to try and deal specifically with
subsistence. At the same time, efforts were being made to pass
another act which became known as the Alaska National Interest
Lands Conservation Act (ANILCA). While the primary focus of that
debate had to do with lands and land designations, there was no
doubt that Congress, at this point, was also going to deal with
subsistence. The large push at that time by the Native community
and supported by federal case law, particularly from the U.S.
Supreme Court, was that the subsistence priority on federal lands
should be a Native priority, not a rural one, while the state of
Alaska successfully pushed for a priority based on geography rather
than ethnic background.
ATTORNEY GENERAL BOTELHO highlighted three sections of ANILCA. In
the policy section, it provides that the purpose of this title is
to provide the opportunity for rural residents engaged in a
subsistence way of life to continue to do so. The definitions
section provides that "subsistence uses" means the customary and
traditional uses by rural residents of wild renewable resources for
direct personal or family consumption. The preference for
subsistence users section provides that, unless otherwise provided,
the taking on public lands of fish and wildlife for subsistence
uses shall be accorded priority over the taking for other purposes.
With ANILCA, the federal government authorized a particular regime,
but it also said that the state of Alaska could take over
management if it enacted laws of general applicability which
provide for the definition of "rural," the preference, and the
participation specified in the Act, and Congress gave the state one
year within which to do so.
Between 1981 and 1989, the state undertook several efforts to come
into compliance. Initially, the Legislature was unable itself to
enact a law, and consequently the Boards of Fish and Game adopted
regulations to do so; those were rejected as being without legal
basis in 1985. This led to action in the 1986 legislative session
that provided for a rural preference in the taking of fish and
game.
In 1989, the Supreme Court struck down the rural preference. The
final conclusion of the court was that the statute, which provided
or required that one live in a rural area in order to participate
in subsistence hunting, was violative of what is called the common
use clauses of the constitution. That led to a determination that
the state had no valid law that was consistent with ANILCA, the
state was out of compliance, and, for the first time in several
years, management was again reverted to the federal government.
Since then, virtually every Legislature has had constitutional
amendments introduced to try to resolve the dispute.
ATTORNEY GENERAL BOTELHO reviewed four cases which he thought would
help the committee in its deliberations.
MCDOWELL V. STATE OF ALASKA (2) (1990) It was a challenge in 1990
to the constitutionality of ANILCA, also alleging violations or
conflicts with the Statehood Act. Two years later, the Federal
District Court in Anchorage concluded that the plaintiffs both
lacked standing, but also looked at the merits of the case, and on
each and every issue challenging the validity of ANILCA the court
concluded that ANILCA stood. The plaintiffs and the federal
government appealed the decision on the standing issue to the Ninth
Circuit. In 1994, the Ninth Circuit vacated the District Court
decision and told it to go back because they had not established
standing, and it started over again. The District Court ultimately
dismissed the case without prejudice to refile. The plaintiffs
appealed that decision to the Ninth Circuit, and that case in front
of the Ninth Circuit was voluntarily dismissed on February 9, 1998.
A new case known as Olson v. United States was filed in January
1997, and it raised most of the same issues that had been in the
McDowell (2) case. That was also dismissed voluntarily on March
18, 1998 in order to make way for the Legislative Council's lawsuit
in Washington, D.C. That lawsuit is currently pending with motions
to intervene and a pending motion to dismiss.
STATE V. KENATIZE INDIAN TRIBE (1995) The case was decided in
1995, and under the 1992 subsistence law, which was enacted to
respond to the McDowell case, Alaska, as a state, continued to
recognize the subsistence priority and created two tiers of
subsistence users. The first one was intended to reach all
subsistence users and the second was intended to be able to resolve
who gets to take the resource in the event that there aren't
sufficient resources to cover all subsistence needs. The people
who were to be eligible for this second tier of subsistence were
determined based on three criteria: (1) customary and direct
dependence; (2) the proximity to the resources; and (3) the
availability of alternative resources if subsistence was
restricted. The 1992 law also authorized the Boards of Fish and
Game to set up subsistence and nonsubsistence areas in the state.
That law was challenged by the Kenatizes, and the Supreme Court
struck down that part of the tier two criteria which was based on
proximity to the resource. Now all Alaskans qualify for
subsistence, but the areas where subsistence may be taken are those
to be designated by the Boards of Fish and Game.
KATIE JOHN V. U.S. (1995) The case was decided by the Ninth
Circuit in 1995. Katie John and others of the Mentasta Village
challenged the failure of the federal government, and specifically
the Federal Subsistence Board, to adopt regulations that would
cover navigable waters near Mentasta. The federal government had
refused to do so and the state intervened in the case. The
District Court found that, in fact, the federal government did have
the authority to establish regulations dealing with subsistence on
navigable waters. This was appealed by the state of Alaska and in
the federal court, and in 1995 the Ninth Circuit rejected the
navigational servitude theory but found that the federal government
did have authority to enact regulations on navigable waters of the
state. The Court didn't say what waters they are, but it did say
it is up to the federal managers to identify those waters.
Attorney General Botelho directed attention to a map highlighting
many of the water bodies the federal government intends to regulate
in the event that the state of Alaska does not take management in
December of this year.
TOTEMOFF V. STATE (1995) The case was decided by the State Supreme
Court. It arose out of the taking of a deer in the Prince William
Sound area when Totemoff used spotlighting in shooting from a skiff
to an island owned by the federal government. The state of Alaska
prosecuted for violating the state regulation which prohibited
spotlighting. Totemoff argued that this was a customary and
traditional use, clearly a protected subsistence hunt. The Alaska
Supreme Court concluded that ANILCA itself did not protect the use
of spotlighting as a customary and traditional method of
subsistence hunting, and as a consequence, there was no conflict
between state and federal law, consequently the federal law did
not preempt the state's ability to prosecute this particular
violation on federal lands.
ATTORNEY GENERAL BOTELHO, speaking to the Governor's Task Force on
Subsistence, said at their first meeting the task force agreed to
four principles in trying to reach resolution of the subsistence
dilemma:
(1) To establish effective state authority over the entire state
for management of fish and game.
(2) To recognize the paramount importance of the subsistence way
of life in Alaska.
(3) To maintain neutrality on the issue of tribal sovereignty over
lands in the state.
(4) To make only those changes that were necessary to accomplish
the objectives of (1) and (3).
The product was three-fold: changes to ANILCA, which for the most
part were achieved by Senator Stevens; a constitutional amendment;
and a statutory framework.
Number 472
CHAIRMAN HALFORD noted that when Attorney General Botelho talked
about the federal law, he said if the state were managing it then
the state could comply with the federal regulations. He then asked
if the "it" he was referring to is the management of fish and game
or the management of subsistence.
ATTORNEY GENERAL BOTELHO responded that, in the very specific, it
was management of subsistence uses of fish and game on federal
land.
CHAIRMAN HALFORD said the reason he asked that question is because
one of the most often played misconceptions is that this discussion
is about the management of fish and game versus the management of
subsistence harvest. He asked if the state isn't in compliance,
what does the federal government manage under the management
authority that is provided in Title VIII of ANILCA.
ATTORNEY GENERAL BOTELHO answered the federal government is
directed to manage for the subsistence use on federal lands under
the terms of Title VIII of ANILCA.
CHAIRMAN HALFORD said then it is definitely not opening and closing
commercial seasons, nonsubsistence season, personal use seasons,
etc.
ATTORNEY GENERAL BOTELHO agreed that it was not directly. He said
obviously what was anticipated and reflected in several parts of
the Act is coordination with the state of Alaska so that the
subsistence use and subsistence management or priority was reached
but understood that it would work with state fish and game
managers.
CHAIRMAN HALFORD asked if it was correct that it was in 1986 that
the state first put the rural preference in statute.
ATTORNEY GENERAL BOTELHO acknowledged that was correct. Before
that time it was done by regulation.
CHAIRMAN HALFORD concluded that the statutory rural preference was
held unconstitutional in 1989 so the state really only had that
preference for a three-year period since statehood.
ATTORNEY GENERAL BOTELHO agreed that was an accurate statement.
SENATOR TAYLOR said Attorney General Botelho had cited the Alaska
Supreme Court's definition and reference to the 1953 Submerged
Lands Act, and asked if he disagrees with the Supreme Court's
interpretation: that it precludes the federal government from the
exercise of both its reserved water rights and other navigable
reservations or claims of power by the federal government.
ATTORNEY GENERAL BOTELHO responded that he thinks the real issue is
that there is a conflict between the Ninth Circuit's view of
authority of federal managers and the State's Supreme Court's view
of it. It's a classic management conflict that is in place in
terms of federal mangers being compelled to follow the directives
of their management and of the Ninth Circuit decision. Under
Alaska law and constitutional law generally, the Alaska Supreme
Court's decision is on a par with the Ninth Circuit's decision.
He added that this is not first time there has actually been that
kind of direct conflict.
SENATOR TAYLOR asked what side of that question he is advocating
for.
ATTORNEY GENERAL BOTELHO answered that his purpose in appearing
before the committee is to advocate a constitutional amendment
which would make it possible for the state never to face that
conflict and be able to manage in all waters and lands of the
state.
SENATOR TAYLOR said if the State Supreme Court is correct, and he
was advocating on behalf of the people of Alaska in light of our
Supreme Court's decision, he would assume that he would be
litigating against the federal government to take that to a higher
court to defend Alaska's Constitution and the Supreme Court's
interpretation of the 1953 Act.
ATTORNEY GENERAL BOTELHO replied that is exactly what the state of
Alaska did, but the Ninth Circuit decision stands as the law of the
circuit which includes Alaska, and conversely, the Alaska Supreme
Court decision stands. He said we have a direct conflict between
the state and federal courts, and, consequently, direct conflicts
between the authority of federal managers and the authority of
state managers in managing fish and game for subsistence purposes
on the navigable waters of the state.
SENATOR TAYLOR asked Attorney General Botelho to explain why the
state dismissed the Babbitt case.
ATTORNEY GENERAL BOTELHO said the Babbitt case wasn't a challenge
to the constitutionality of ANILCA. The issue raised in the
Babbitt case was did the Secretary of Interior have powers to adopt
regulations managing subsistence on federal lands in Alaska. That
argument was advanced, even though there were general regulatory
powers found in Title 8, with the expectation that if the state
prevailed the default would be to state management and adoption of
regulations. The District Court held that the Secretary had the
power to adopt regulations and to protect subsistence, and that
power was found not only in the Act but in other powers of the
secretary granted in other acts of Congress. The District Court
decision, which the state appealed initially before it was dropped,
also made clear that the default position wasn't that the state
would be able to manage, but that the federal courts would manage.
That was an untenable position for the state to be fighting in the
Ninth Circuit. He said what we got was, instead of the Secretary
adopting regulations, the federal District Court in Anchorage
managing subsistence on federal lands.
SENATOR TAYLOR commented that Attorney General Botelho still hadn't
answered his question as to why the case was dismissed.
Number 555
SENATOR LEMAN referenced the task force's fourth principle, which
is to make only those changes necessary to the law to regain full
state management, and in light of that he thinks the
constitutional amendment before the committee is drafted fairly
broadly and could be narrowed and still be consistent with the
other guiding principles of the task force. He suggested one of
the ways the focus might be narrowed and still be consistent is to
restrict the application to federal lands.
SENATOR SHARP referenced the constitutional amendment legislation
and asked if there was a detailed definition of what is meant by
"other renewable natural resources."
ATTORNEY GENERAL BOTELHO answered that there is not, and it is not
defined in the Act itself. He also acknowledged that it could be
timber, water, any natural resources which are renewable.
TAPE 98-42, SIDE B
FORMER ATTORNEY GENERAL CHARLIE COLE stated he was appearing before
the committee as a member of the Republican-led task force
appointed by Governor Knowles, and that he was not a member of
Alaskans Together, he has no clients who have a basic vested
interest in this issue, he has no personal friends who have a basic
interest in the issue, and he has not been paid for his service on
the task force, except a lunch occasionally furnished by the
Governor, and air transportation to the various meetings. He also
pointed out that he is not a big hunter, not a big fisherman, and
the views he would be expressing are those which he has come to by
virtue of his participation on the task force, by virtue of
independent legal research, and by virtue of a lot of personal
reflection upon what he thinks is in the best interest of the state
of Alaska.
MR. COLE said he has thought about the issue a lot, and he supports
what is proposed in the constitutional amendment and, in general,
the statutory provisions which have been introduced by the
Governor. Although he doesn't agree with all of the statutory
provisions, he recognizes that in order to reach some consensus,
it is a give and take process. He believes everyone is searching
for the same end result and that is for the state to regain and
continue to manage wildlife and fish on state and federal lands.
MR. COLE related that he would be directing his comments to federal
power to give the committee a slightly different slant on the
power structure which is involved between the United States and the
state of Alaska. He thinks it is clear that the state of Alaska
has legislative powers and police power over all federal lands in
Alaska. The state of Alaska had those powers and has exercised
those powers on both federal and state lands in Alaska.
Before ANILCA was enacted, the famous Kleppe case arose and came
before the U.S. Supreme Court. Kleppe was a Secretary of the
Interior, and, in the circumstances of that case, the United States
had enacted legislation called the "Wild and Free Roaming Horses
and Burro Act." It provided, in essence, that on federal public
lands it was against the law to interfere with the free roaming
horses and burros running wild on federal lands in New Mexico. At
the same time, New Mexico had a statute called the "New Mexico
Astray Act," which gave the state of New Mexico the right to go
upon state and federal lands and take possession and sell these
running wild horses and burros. A cattle farmer, who had a permit
for grazing his cattle on federal land, said these horses and
burros were interfering with his cattle and he wanted the state of
New Mexico authorities to take possession of these animals and get
rid of them. The New Mexico authorities did so, however, the U.S.
government told them to put the animals back. The state of New
Mexico then filed a suit saying the federal government was
interfering with state powers. The case went to the U.S. Supreme
Court, and the Court said the property clause in the U.S.
Constitution provides that Congress shall have the power to dispose
of and make all needful rules and regulations respecting the
territory or other property belonging to the United States, and
Congress has acted under the power. The Court also said that while
the furthest reaches of this power have yet to be defined, it has
been repeatedly observed that the power over the public land thus
entrusted to Congress is without limitations. However, the Supreme
Court in Kleppe did not decide whether the United States had the
power to go back on private lands and retrieve the burros, which
had been on federal lands and been taken onto private lands, to
take them back onto federal lands.
In another case known as Brown versus Minnesota, a duck hunter
hunting in Voyagers National Park in Minnesota was cited by a
federal park ranger for carrying a loaded firearm and hunting in a
national park in violation of regulations promulgated by the
Secretary of the Interior. Brown pled not guilty on the grounds
that the federal government had no authority over him because he
was on navigable state waters. He was fined then appealed his
conviction all the way up to the Eighth Circuit Court where his
conviction was upheld. Approximately four years later, the issue
came up again in the Eighth Circuit regarding another federal
statute called the Boundary Waters Canoe Area Wilderness Act. The
federal government had about 160,000 acres of submerged lands
within wilderness area owned by the state of Minnesota, as well as
another 120,000 acres within a state park. Congress said the state
can regulate on its own lands within the areas of the park, but
the regulations must be as stringent as federal regulations.
Congress had said no motor boats and no snow machines within the
wilderness area. It was determined that the Congress has extra
territorial powers whenever action on these non federal lands and
waters interfere with the fundamental purposes of the federal
withdrawal.
MR. COLE said he fears the application of Babbitt - the Reserved
Water Rights Doctrine under the extra territorial powers of
Congress - to manage for subsistence purposes. The federal
government can do that under regulations promulgated by the
Secretary of the Interior. He cautioned that there will be federal
management of essentially all state waters by the Secretary of the
Interior for subsistence purposes. He said the power to manage for
subsistence purposes is vast in order to fulfill the rural
priority for the taking of fish and game for subsistence purposes.
The Secretary has the power to do everything that needs to be done
to fulfill that right. The Secretary has said that implementation
of the court's decision will result in the unprecedented expansion
of federal management of Alaska's fisheries in many areas of the
state and federal managers may be called on to intervene in the
management of commercial harvests to assure upstream delivery of
salmon to subsistence users. He emphasized that the federal
government is going to be managing in numerous waters throughout
the state.
MR. COLE said there has been talk about dual management of
wildlife, but that is not going happen. The Secretary will say the
traveling herds that go back and forth between state and federal
lands must be protected for subsistence users on federal lands and
there will be no taking of caribou on state lands.
MR. COLE questioned when anyone has ever seen the federal
government not exercise the full range of its powers. He said
within a few short years, the things that many people fought for in
statehood are going to revert right back to the federal government.
The Secretary will have the power to close hunting on state lands
and in state waters until the subsistence priority is fulfilled.
MR. COLE said that the fact of the matter is that the federal
government has dictated a rural priority and that's what we're
faced with. If the Legislature does nothing, there will be federal
management on state lands and federal lands for wildlife and
fishing. He questioned why the Legislature, if it really believes
in the Public Trust Doctrine and as trustees has the responsibility
to preserve and protect the state's natural resources, would
abdicate to the federal government.
In his closing comments, MR. COLE said they were not asking that
the state's fundamental constitutional rights be amended and
dispensed with. He said that once we regain management authority,
we're sort of in the driver's seat and we can go back and tell
Congress this is unfair, and make those administrative decisions
and the decisions of allocation among sport and commercial users.
He reiterated that if the state doesn't do that, the federal
government will manage solely to protect subsistence rights, and
it is his view that if the state doesn't do anything, it may never
get management back again.
CHAIRMAN HALFORD said the federal government has had subsistence
management of game for the last eight years, and he asked if Mr.
Cole knows of any case in the state where they have exercised extra
territorial jurisdiction, where they have exercised any action
against any other harvest other than simply provide a second set of
duplicative, wasteful and sometimes unnecessary regulations.
MR. COLE responded that the answer is no, but the reason he thinks
they haven't is because they want these issues settled and
resolved, and when they see their way clear, they will then proceed
expeditiously to flex their muscles.
SENATOR TAYLOR noted the Babbitt case was brought under Mr. Cole's
jurisdiction as attorney general, and Attorney General Botelho has
indicated the case was dismissed for political purposes. He asked
if the Babbitt case and the dismissal of the case is, at this
point, incorporated within the amendments Mr. Cole was advocating
the Legislature adopt which precludes the state to ever again raise
the issue of the power of the Secretary to enact the regulations.
MR. COLE declined responding to the question because one of the
policies he has followed is not to criticize his predecessors as
attorney general and not to criticize his successors.
SENATOR TAYLOR said he thought the last Supreme Court case that
this state had a decision on was Dinkum Sands, and Sandra Day
O'Connor wrote in her opinion that not only did the state of Alaska
and Legislature have jurisdiction and authority over all of the
submerged lands pursuant to the Submerged Lands Act, but over all
of the navigable waters and the fish that swim therein.
MR. COLE said Sandra Day O'Connor was correct, but she didn't put
a comma there that said "except where the Congress of the United
States acting under its power under the property clause has
determined otherwise." He added that except for ANILCA's
provision, she is absolutely correct; the state has the power to
regulate fish in navigable waters.
SENATOR TAYLOR asked Mr. Cole if he would agree then that you don't
have a case of allocation under the property clause, that Sandra
Day O'Connor just kind of forgot to consider that they had the
property clause. He asked if he feels very confident that when the
Supreme Court of the United States gets a case, they are just going
to roll over and say that Congress has the right to allocate among
the beneficiaries of this public trust. They will decide that
people who live in one size of a town can hunt ducks, and the
person who lives in a smaller town cannot hunt ducks, or vice
versa.
MR. COLE responded that his answer to that question is an
unequivocal yes.
SENATOR LEMAN said Mr. Cole had questioned why the Legislature
would want to restrict its authority; however, he believes that it
may be appropriate to do that because, from time to time, there are
excesses of the Legislature's reaches of power, and when that
happens, the Legislature appropriately responds. He believes the
constitutional amendment can be more narrowly crafted to get what
the task force's fourth principle says. He asked why it is of
particular interest to the federal government about what the state
does on its lands or on private lands as long as it is not
affecting the resource that might get on federal lands.
MR. COLE said he has thought about the possibility that the
Legislature could say that it grants the priority on federal lands
but not on state lands, but the problem is that this concept would
not work on navigable waters because there is no way to segregate
them under the Babbitt case or the Katie John case.
TAPE 98-43, SIDE A
Number 001
CHAIRMAN HALFORD questioned if there was no way to separate water
rights, because he thought the whole next phase of the issue was
going to be defining federal reserve water rights.
MR. COLE replied that once the state regains management, then the
reserve water rights doctrine drops out because we have management
in all waters of the state so we don't need to deal with that
anymore.
SENATOR LINCOLN said the constitutional amendment before the
committee provides that the Legislature "may" provide for a
priority, etc., and she asked if the amendment were adopted but no
statute follows it, how would it resolve the subsistence dilemma.
MR. COLE responded that it would be necessary for the Legislature
to enact a statute which grants the rural priority in order to
regain management of wildlife and to preclude the federal
management of fishing. So the Legislature would be, in essence,
required to enact a properly implementing statute.
CHAIRMAN HALFORD interjected that if the constitutional amendment
passed, would not the old language that was stricken by
constitutional action go back in.
ATTORNEY GENERAL BOTELHO replied that if the 1992 statutes are not
extended, there is a default back to 1986, but changes in ANILCA
itself would still have the state out of compliance. Absent some
intervening act right now, the constitutional amendment, by itself,
will not bring the state into consistency with ANILCA and a default
to the 1986 statute, in itself, most likely would not either,
although it does provide for the rural preference.
CHAIRMAN HALFORD asked if the state was out of compliance on the
local participation provisions or only on the rural provisions when
the McDowell case came down.
ATTORNEY GENERAL BOTELHO answered the state was out of compliance
with the rural provision. In the meantime, ANILCA has been
amended.
SENATOR ADAMS asked if language could be added to the
constitutional amendment that basically ratifies the 1986 law.
That language would add the definition and the subsistence
preference for rural residents without having to pass a new statute
to satisfy this requirement.
ATTORNEY GENERAL BOTELHO replied that with the amendments, the
issue that the Secretary would be faced with is determining whether
there are laws of general applicability that are consistent, and he
thinks there are problems with the definition, participation and
the composition of regional councils.
SENATOR ADAMS said the language "the Legislature may" is
permissive, and he asked why not change that to "the Legislature
shall."
MR. COLE responded that the reason the word "may" was in there was
to give the Legislature some flexibility because it was thought
that perhaps at some time ANILCA may be amended and then the state
would not have a mandatory rural priority. Also, if the current
litigation is successful, then the Legislature would simply repeal
any implementing statute.
CHAIRMAN HALFORD said a portion of Senator Stevens' amendment dealt
with regionalization, and those provisions represent an additional
federal mandate. He asked what the task force's position is on
that mandate and if there was a way to separate that mandate from
the rest of the package.
MR. COLE said this was one of the provisions of the proposed
legislation which he has hesitation about. The reason is that
these provisions came before the task force just as it was winding
up its actions and they really didn't have the opportunity to take
a close look at those provisions. He also said this is a federal
statute and there is no way under the sun that Congress is going to
say that United States District Courts do not have the right to
hear and decide cases and controversies arising under a federal
statute. He thinks that it is vital that there be a recognition of
the strength of the Stevens' amendments, which require federal
courts to give deference to state administrative agencies'
decisions to the same extent it would actions of a federal
administrative agency. The effect of that means that when the
state administrative agencies, the Boards of Fish and Game, act
that the federal district courts have to give the state the benefit
of the doubt. He said if we do nothing, the federal courts are
going to give the benefit of the doubt to the administrative
actions of the federal agencies, so that's why it is vital to get
that power for a deference to state administrative agencies.
SENATOR LINCOLN asked Mr. Cole if he was suggesting that after
adopting a constitutional amendment and the statutory change, the
Legislature could then go back to Congress later and say this fix
is unfair.
MR. COLE replied that there are many Alaskans who feel that the
rural priority is fundamentally unfair, and if the state regains
compliance in the fashion that he has mentioned, those people who
feel that way will have the right to go to Congress and seek
changes in ANILCA, while at the same time, the state continues
management of the fish and game.
Number 248
SENATOR WILKEN made reference to the new Section 19 in SJR 101, and
asked Mr. Cole why the subsistence priority has to be based on
residence.
MR. COLE answered that ANILCA requires subsistence priority based
on place of residence. The Alaska Supreme Court has said
legislation giving subsistence rights on place of residence is
unconstitutional so the language "based on place of residence" was
put in to get around McDowell, but it was left broad by not putting
in the word "rural."
SENATOR HOFFMAN asked Mr. Cole his view of the prospects for
changes being made in the future to Title VIII of ANILCA, and why
people of rural Alaska would want a constitutional amendment,
because from his presentation it seems like their subsistence
rights are going to be better protected by the federal mandates.
MR. COLE said his fundamental premise was that it is virtually
impossible to change Title VIII of ANILCA, and it is a waste of
time to concoct statutes that don't comply with ANILCA. He said
that we ought to just face that we either comply with ANILCA or
we're going to pack our bags and go home because, in his view,
those are the only effective choices. He said there are some
people who feel very strongly about that and they should be able to
exercise their rights to complain to Congress if they wish.
CHAIRMAN HALFORD pointed out that it has been said that changes
can't be made to ANILCA, but last fall in a 10-day period, there
was a change made in the definition of "rural," there was a change
in "reasonable opportunity," there was a change in limitations on
"customary trade." There was a major package of changes to ANILCA
that were done by the Appropriations Committee, outside of the
Resources Committee, before most people really knew what was in the
package.
MR. COLE replied that he has been very careful to say that he
doesn't think the fundamental provision of ANILCA giving priority
for subsistence uses to rural Alaska residents can be changed. He
personally thinks that Secretary Babbitt was stretched to the limit
in going along with the so-called "Stevens' amendment."
SENATOR TAYLOR asked if he was saying that we should surrender to
the federal law so that at some time in the future we can go back
with probably a less powerful congressional delegation than we have
now and then we can change ANILCA.
MR. COLE responded that he doesn't think we're surrendering; he
thinks it is sort of an uneasy truce. He said the important
distinction is that we've regained management. The issue is do we
want to regain it at some price or not. His view is to regain as
much as we can get. Then the Legislature will be in the position
of power and will be managing fish and game in Alaska and not the
Secretary of the Interior.
SENATOR TAYLOR said the task force came up with a proposal that put
in the words "arbitrary, capricious or abuse of discretion," and
Mr. Cole had testified that if we had such a standard in the law,
the federal courts would not only have to give due deference to
state agencies, but they could not overturn those agencies unless
they found arbitrary, capricious or abuse of discretions. However,
that language got changed in the Stevens' amendments by adding the
words "or otherwise not in accordance with law." He asked what
impact that language has on this deference that we're to receive
from the federal Judiciary.
MR. COLE said that provision was discussed at length in the task
force, and the staff recommended arbitrary, capricious, etc. He
had suggested that "not in accordance with law" should be added in
because it should be one of the fundamental reasons for not
supporting action of a state administrative agency. There was a
long debate by the task force over that issue but it was not put
in; however, it was added into the Stevens' amendment. He said of
all the reasons to strike state administrative agency policy, the
most fundamental is if it is not in accordance with state law or
federal law.
SENATOR TAYLOR commented that, from his viewpoint, those words have
a significant weakening effect upon the report and recommendation
of the task force, and once put into law, allow the federal
judiciary to disregard the words "arbitrary, capricious or abuse of
discretion" and merely focus upon their personal interpretation of
what ANILCA says.
MR. COLE disagreed and said he thinks it was simply inserting the
obvious in that provision.
SENATOR TAYLOR said a witness testifying on HB 406 in the Senate
Judiciary Committee wanted to know why they didn't have Native
subsistence only in the bill. He asked Mr. Cole to explain, from
a task force perspective, why there isn't Native subsistence only
in this legislation.
MR. COLE responded it is not in there because he thinks it is
racist, and one thing the state does not need is more racial
divisiveness in the state. He thinks it is wrong to give special
preferences to one ethnic group and he is glad that it is not in
there.
SENATOR SHARP expressed his uneasiness with the wording of the
constitutional amendment. He suggested that since Title VIII is so
chiseled in concrete and it is not going to be changed, why not
put rural priority in the constitutional amendment so that people
know up front what they are voting for and don't have the feeling
that it is based on place of residence.
MR. COLE acknowledged that would be perfectly acceptable to him if
that was the wisdom of the Legislature and if it thinks it might
make a difference.
Number 431
SENATOR WARD said Mr. Cole had said earlier none of this had a
religious overtone. However, he was brought up Athabascan, and as
early as he can remember, when the first subsistence was caught,
they did a ceremony, and according to members of his family, this
is religious to the Creator. He then asked if the Secretary of the
Interior is going to abandon all the Alaska Natives that live in
the wrong zip code.
MR. COLE responded that he thought he said racial not religious,
but he apologized if he misspoke. He said the Secretary of the
Interior is required to execute the laws that Congress has enacted,
and he has no freedom to be able to unilaterally change the rural
preference provided for in ANILCA.
SENATOR WARD commented that he is an Alaskan born Native, but
according to this amendment, because a town (Anchorage) grew up
around him, he would have to become a second tier as far a priority
would go.
MR. COLE reiterated that the decision and the problem the state is
faced with is a congressional enactment, and until it is changed,
that's going to be the way it is.
SENATOR LEMAN said it was mentioned earlier that this was put
together as a package and the constitutional amendment was linked
to some changes in ANILCA, however, the proposal before the
committee doesn't have that.
ATTORNEY GENERAL BOTELHO responded that the linkage was satisfied
in part by the congressional action. Initially, the view was to
try and provide a fail safe for all sides where you got everything
or nobody lost anything. With the actions by Senator Stevens, most
of the congressional changes that the task force looked to were
already accomplished. What remained were the constitutional
amendment and statutory changes, so, to a certain extent, the
linkage is still there relevant in terms of the statute and the
constitutional amendment themselves.
SENATOR LEMAN asked Attorney General Botelho if the Administration
would oppose some linkage if it was determined that there may be
some appropriate linkage, even with this constitutional amendment
and some changes in ANILCA.
ATTORNEY GENERAL BOTELHO replied that he doesn't know that the
Administration is at a stage to say that they would oppose
virtually any change. They think they have accomplished the
changes that are beneficial in terms of Title VIII and to make a
subsistence program that will actually work. The Administration
will not, at this point, endorse any further changes to ANILCA
because, in their view, the focus needs to be on the constitutional
amendment and on the statutory framework.
SENATOR TAYLOR said several people in the audience had been in his
office during the legislative session talking about how additional
changes needed to be made to ANILCA. They felt that if we would
only go along with this constitutional amendment that this form of
appeasement might be enough so that they would then listen to our
request for some small amendments to ANILCA. He asked Attorney
General Botelho if he was saying that there are going to be no more
amendments, that the Legislature can forget about any linkage with
Congress, and that it has to come up with a constitutional
amendment and a state statute to be in compliance with the law as
it is now.
ATTORNEY GENERAL BOTELHO answered he was simply stating the view of
the Administration. In terms of the package which the
Administration has endorsed, it consisted of changes to ANILCA, a
constitutional amendment and statutory changes which they propose.
They believe this package satisfies the needs of a vast majority of
Alaskans. He added that whatever constitutional amendment appears
on the ballot is entirely beyond the control of the Administration.
MR. COLE added that when the task force addressed this problem,
they looked at what are some of the weaknesses in ANILCA that they
would like to see remediated and that they thought they could
change. So they crafted some amendments to ANILCA that they
thought strengthened ANILCA from the state's standpoint, made it
more palatable from the state's standpoint, and that they thought
they could get enacted.
Number 570
CHAIRMAN HALFORD thanked Attorney General Botelho and former
Attorney General Cole for appearing before the committee. He then
announced the committee would stand in recess for approximately 15
minutes.
[THE COMMITTEE RECESSED AT 4:28 P.M. AND CAME BACK TO ORDER AT 4:49
P.M.]
CHAIRMAN HALFORD called the Senate Resources Committee meeting back
to order and stated the committee would next hear from the
Department of Fish and Game. Representing the department were
Commissioner Frank Rue; Deputy Commissioner Robert Bosworth; and
Mary Pete, Director of the Division of Subsistence.
FRANK RUE, Commissioner, Department of Fish and Game, informed the
committee that Bob Clasby, Director of the Division of Commercial
Fisheries; Wayne Regelin, Director of the Division of Wildlife
Conservation; and Kevin Delaney, Director of the Division of Sport
Fish, were also in attendance to respond to questions the committee
might have.
COMMISSIONER RUE said he would be focusing on problems the
department is starting to see with federal management under game
and what they may expect under fish. He said having the federal
government managing subsistence on federal lands has basically
created a dysfunctional system which will continue to get worse as
they move into fisheries management. The first federal regulations
were basically a Xerox of the state regulations. They have since
then begun to divert from the state system and begun implementing
federal regulations on federal lands which have started to cause
three types of problems: an unnecessary loss of opportunity for
sport and subsistence users on state land; conservation risk to the
resource due to over allocation; and a far more expensive, wasteful
and confusing system for people of the government, as well as the
public.
TAPE 98-43, SIDE B
Number 600
As an example of an unnecessary loss of opportunity, COMMISSIONER
RUE noted that there is a small population of musk oxen on the
Seward Peninsula that goes on both state and federal lands. These
resources move across all land ownership and people in different
communities depend on them. There is a certain number available
for harvest, and, basically, the federal board allocated all of the
resource to the federal subsistence hunt which meant that the
state, in order to maintain sustained yield, had to shut its hunt
down on state land. The choice would have been to over harvest the
populations. He said the department's concern about this is not
only the conservation risk and the loss of opportunity, but what
has been seen in other places like the Lower 48 where there is a
different method of dealing with aboriginal hunting and fishing
rights. Basically, the non-aboriginal fisheries in the state of
Washington take all the conservation burden. He said that is
another way rather than just extra territorial reach. A federal
subsistence priority can affect other users downstream by putting
the conservation burden on the other users, both subsistence and
sport and commercial and personal use.
COMMISSIONER RUE said there is also concern with fish. It is a far
more complex system because it is a resource that moves across many
more jurisdictions. He believes the problems they are seeing with
both conservation, loss of opportunity, as well as expense, will
only increase as fisheries move into the mix.
COMMISSIONER RUE stated that the proposed federal regulations,
which the department has reviewed and made a number of comments on,
are very intrusive; they reach into state waters, and will have a
significant effect on other sport, subsistence, and commercial
users in the state of Alaska.
COMMISSIONER RUE pointed out that besides being dual management,
being expensive, and confusing, in his opinion, management under a
rural priority by the state or the fish and game in the Department
of Fish and Game will not be the same as federal management. The
federal board is only concerned about subsistence, not commercial,
personal use, and sport fisheries, and he believes it has a very
different perspective and will not try and accommodate those other
users. For instance, in a place like the Yukon, many of the
subsistence users are dependent on a commercial fishery to earn the
income needed to also subsistence fish. For a lot of users, it is
critical that the commercial, subsistence, and sport fisheries are
managed by a single entity so that they can provide the maximum
opportunity for subsistence, but also ensure that a commercial and
a sport fishery goes on.
Number 560
MARY PETE, Director, Division of Subsistence, Department of Fish
and Game, said she would be directing her comments to subsistence
as we know it in subsistence areas of Alaska. Fishing and hunting
are important for cultures of many families in communities of
Alaska, and this use exists along side other important uses of fish
and game, including commercial fishing, sport fishing, personal use
fishing, and general hunting. In subsistence areas, these uses are
often intertwined.
MS. PETE said under state law all Alaskans qualify for subsistence,
and under federal law rural residents qualify. And although all
Alaskans qualify, there are nonsubsistence areas which are
essentially identical to federal, rural and non-rural areas.
Directing the committee's attention to graphs and a handout
prepared as a result of research and working in nearly 200
communities throughout the state, MS. PETE pointed out that in
terms of Alaska's population in 1995, residents of subsistence
areas comprise about 20 percent of the state's population, and
residents of nonsubsistence areas comprise about 80 percent of the
state's population. In subsistence areas, depending on the region,
there are different levels of participation in harvesting and
using. In all areas of the state, the highest levels are with
fish. In Western Alaska, 100 percent of the households use fish.
In terms of the total participation, on average, nearly 90 percent
use game, and nearly 100 percent use fish by region.
Figure 3 in the handout shows that the composition of the harvest
by residents of subsistence areas is primarily fish: about 60
percent is fish; 20 percent is land mammals; 14 percent is marine
mammals; and two percent is birds, shellfish and clams each. So
federal management of subsistence fishing would affect many people.
Figure 4 in the handout shows that overall, in terms of total fish
and game output in the state of Alaska, on average, subsistence
comprises two percent by weight, sport use comprises one percent,
and commercial comprises 97 percent. Although the output for
subsistence is relatively small, it provides a major part of the
food supply of subsistence areas, about 44 million pounds annually.
That compares with nonsubsistence that produce nearly 10 million
pounds of wild foods per year.
Figure 5 of the handout shows the pounds per person per year of
wild food harvests in different regions in Alaska. It shows a jump
from 40 pounds per person to 153 pounds per person between the
highest nonsubsistence production areas and rural southcentral.
In terms of the pounds per capita per person in subsistence, what
people are really providing for their families is protein. On
average, most all of the protein they feed families with is from
wild foods. In terms of caloric output, it is 35 percent of what's
needed by the subsistence communities.
Figure 6, relating to replacement values of subsistence production,
shows a $220 million per year of replacement value of subsistence
foods. In many areas of the state, fish and game uses are highly
integrated; in other words, income from commercial fishing is
needed to support subsistence production.
MS. PETE said in terms of the subsistence priority, the greatest
effect of the priority has been to legally recognize customary and
traditional harvest practices and uses in rural areas. While
impacts on nonsubsistence residents have been relatively small, the
impacts in rural areas have been great. She thinks that with
increasing federal presence in management of hunting and fishing,
the impacts will become greater to nonsubsistence users.
Number 460
CHAIRMAN HALFORD asked Ms. Pete what she thought the trend would be
10 years from now in terms of subsistence use as a percentage of
total harvest.
MS. PETE responded that in terms of what are currently subsistence
areas, they've been fairly consistent in communities where they
have done resurveys as wide as 20 years apart. The proportion of
fish or game may vary, but the per capita production is relatively
constant, so in terms of total output, she doesn't see many
changes.
CHAIRMAN HALFORD explained that he is trying to understand the size
of the federal threat as it relates to the size of the management
mandate, which is to manage subsistence harvest. He asked if
anybody is, right now, losing subsistence harvest because of
nonrural harvest.
MS. PETE responded the feds have as much said that the priority is
by stocks and by drainage, and in order to provide the priority to
upstream communities, they would look to restrictions or impacts
downstream.
CHAIRMAN HALFORD asked if there is any area in the state where we
have a record that the subsistence harvest has somehow been
diminished by a nonrural harvest.
COMMISSIONER RUE responded that the federal government has not yet
stepped into fisheries so the state has tried to maintain
commercial, sport, and subsistence fisheries of people who are
depending on state and federal lands. A future problem is looming
should the federal government implement their regulations for
fisheries, so there could be situations where there would be a
restriction of harvest to meet either an over allocation for a
federal subsistence fishery or a guarantee.
CHAIRMAN HALFORD questioned if there was any area of the state
where it was perceived that that over harvest is going to come from
the higher population areas and affect the lower population areas,
or is it going to come from other rural areas. He asked where is
the population threatening subsistence harvest in the real areas of
need.
COMMISSIONER RUE said he thinks the folks who are dependent on
federal lands for subsistence feel pretty good about federal
management, and the folks who are dependent on state land and state
waters for subsistence are not as sure that their subsistence
rights are going to be maintained over time with federal
management.
ROBERT BOSWORTH, Deputy Commissioner, Department of Fish and Game,
added it is the job of the Boards of Fisheries and Game to take
proposals on an annual cycle from people who perceive in their
areas that there is a problem that needs to be addressed by the
board. The board has been taking subsistence proposals routinely
for 20 years and addressing areas where people tell the board,
often time with collaborating evidence from the department or other
sources, that there's a problem that needs to be fixed. By and
large, the laws and board system have worked enough that those
problems have been addressed. There have been Tier II hunts
established in areas where there were insufficient resources to
meet the demand, and those Tier II hunts, by definition, favor
dependent users, and, in the past, favored users who lived in
rural areas adjacent to the resources. Without a rural preference,
all Alaskans are eligible for subsistence, which creates a greater
demand for the existing supply of the resource and leads to an
additional Tier II hunt specifically to protect subsistence uses,
and provide for those most dependent at the expense of other uses.
He noted the Nelchina Caribou Herd used to be a drawing permit hunt
and now is a Tier II hunt in which only those with a history of use
and evidence of dependence would qualify. He added that the Tier
II hunts are not popular in this state.
Number 380
CHAIRMAN HALFORD said what he was asking is if the system is
working in terms of providing the resource to the people who need
it most.
COMMISSIONER RUE said there hasn't been a Tier II fishery yet so
they've been able to provide for subsistence under state
regulations, except where they've had a resource shortage.
However, there have been subsistence hunts where some of the
residents of the area have had their harvest reduced compared to
what it was under a rural priority, so there has been some loss.
DEPUTY COMMISSIONER BOSWORTH directed attention to a handout
prepared by the department relating to essential elements of a
subsistence bill. He said state Boards of Fisheries and Game need
straightforward practical statutory direction and legal tools to
protect subsistence use of fish and game while providing maximum
opportunity for other uses. He then described what the department
believes to be the essential elements of a generic subsistence bill
and outlined the way that the bipartisan task force addressed these
issues.
The four essential elements for a subsistence bill which focus on
the who, where, how and what of subsistence are:
1. Who pertains to eligibility. There is a need to define a
mechanism for determining who can participate in subsistence
hunting and fishing.
2. Where pertains to location. There is a need to identify the
areas of the state where hunting and fishing may occur under
subsistence regulations.
3. How pertains to pertains to process. There is a need to
identify the mechanism for developing subsistence regulations
that implement the subsistence priority. The mechanism
directs the actions of the board and the public advisory
process on subsistence.
4. What pertains to definitions. There is a need for clarity in
identifying precisely what it is that is being afforded a
priority in law and when.
DEPUTY COMMISSIONER BOSWORTH said one further aspect of a generic
subsistence bill that is advisable is to use the existing statute
as much as possible. The existing state statute is based on work
that has been accomplished since 1978 by three Legislatures and a
great many hours of Board of Fisheries and Board of Games
deliberations. It has been refined in the course of nearly two
decades of testing by the boards, the Departments of Fish and Game
and Public Safety, and the courts.
DEPUTY COMMISSIONER BOSWORTH said the approach taken by the
bipartisan task force, in addition to protecting subsistence and
providing for other uses, also seeks to regain state management on
all lands and waters and recognizes the substantial dependence of
rural residents on subsistence hunting and fishing. The task force
proposal protects subsistence use while integrating subsistence
with others uses through actions of Alaska citizens working
together as members of the fish and game boards. The proposed
statute provides policy direction to the boards and provides
clarity in process and in definition of terms. It moves much
responsibility for decision making on day-to-day hunting and
fishing issues to the boards and to the citizen advisory bodies.
In his closing remarks, DEPUTY COMMISSIONER BOSWORTH said the
federal subsistence program has been in place for managing
subsistence hunting in fresh water fishing since about 1991. The
Federal Subsistence Board has responsibility for developing the
federal subsistence program and passing subsistence regulations.
It has no mandate to consider other uses except to restrict access
to federal lands in order to provide for subsistence uses, and it
would do so outside the federal areas if it believes that is
needed. The federal board has a close interaction with the federal
regional councils whose recommendations are very seldom not
adopted. This has resulted in federal regulations that are
inconsistent in many cases with state regulations, and this, along
with a patchwork of land jurisdiction in the state, has led to some
of the kinds of problems Commissioner Rue described earlier.
Number 251
SENATOR TAYLOR said the subsistence board in his district decided
that it would be appropriate to allow the hunting of does on Prince
of Wales Island, while at the same time, the state Department of
Fish and Game was recommending a harvest limitation on the hunting
of deer. Under the federal law, the harvesting of doe went
forward, and he asked, in a case like this, how would that law be
somehow different by adopting a state law as opposed to the federal
law. He questioned if there wouldn't be exactly the same panels as
currently are provided for in federal law, made up by exactly the
same people.
DEPUTY COMMISSIONER BOSWORTH clarified that the proposal came from
the regional council and the board did not propose that action. He
said the federal standard for subsistence right now under ANILCA is
different than the state standard would be under the task force
proposal and under the Stevens' amendment. The concept of
reasonable opportunity and the definition of "reasonable
opportunity" was not used by the regional council in this case nor
would it have been used by the Federal Subsistence Board in the way
that the state's board, using information from the Department of
Fish and Game and under the context of the Stevens' amendments,
would have applied it.
SENATOR TAYLOR said he is trying to understand what the practical
difference will be between the "federal takeover" and the way
subsistence is currently being managed or under the new law. He
questioned if ANILCA can't be changed, and ANILCA establishes each
of these very well defined terms, what authority do we have left
within which to maneuver.
DEPUTY COMMISSIONER BOSWORTH responded that he thinks there have
been changes with ANILCA that bear on his question. With the
Stevens' amendments, there are definitions that provide for a
process that the state would follow once in compliance, and it
would be a different standard than was used by the federal board.
He acknowledged that the composition of the regional council would
be the same, however, there is a difference in the degree of
deference that would be given to the council under the task force
plan and the reasons that the board might use to accept or not to
accept the recommendations of the council.
COMMISSIONER RUE added that the Board of Fisheries, which is a
citizens' board, would be judging that advice, as well as
listening to the department's biological recommendations, as
opposed to a federal board which is made up of federal bureaucrats.
Number 135
CHAIRMAN HALFORD said one of the things he continuously hears is
that this applies in times of shortage, and he asked what does "in
times of shortage" mean.
DEPUTY COMMISSIONER BOSWORTH answered that the priority under the
present law applies at all times. The first thing the board must
do is provide a reasonable opportunity for subsistence use.
CHAIRMAN HALFORD asked if the priority applies at all times under
federal law, under existing state law, and under the new law.
DEPUTY COMMISSIONER BOSWORTH responded that the answer to his
question is yes, there's a priority that applies at all times, but
it has no effect on other uses, except in times of shortage. There
is no reason to restrict other uses unless there is a shortage.
CHAIRMAN HALFORD referenced the Bobby case and the specific
statements that came out of that case, and he asked if there can be
restrictions on subsistence harvest such as seasons, bag limits,
methods and means before the total elimination of all other
competing harvests on the same specific resource.
DEPUTY COMMISSIONER BOSWORTH replied that under state law, the
answer is absolutely yes. There are numerous examples of
situations where there are restrictions on other uses, as well as
restrictions on subsistence that do not require other uses to be
eliminated first. He added that the key in state law is that
reasonable opportunity must be provided. In cases where there is
more than a reasonable opportunity provided for subsistence,
subsistence uses will be restricted right along with other uses.
It is only when reasonable opportunity is threatened that other
uses alone are the only ones to become restricted.
COMMISSIONER RUE said if you look at the record where they had the
same regulations for everyone versus some kind of limits on folks,
during the time there was a rural priority, a large number of the
hunts around the state had the same regulations for everyone, so
you didn't have to restrict one user to provide for subsistence in
many cases. It was only when there wasn't enough for everyone that
you might have to go to a drawing permit.
CHAIRMAN HALFORD said he was just going to the worst version, which
is the opinion of the judge in the Bobby case, that seemed to go
far beyond what anybody, including its advocates, ever expected the
priority to create originally.
DEPUTY COMMISSIONER BOSWORTH pointed out that in Lime Village, with
regard to moose, which is the topic of the Bobby case, there are
Tier II hunts. There is a definite season, a definite number of
permits that are available, and a definite number of the animals
that can be taken consistent with sustained yields. He said it is
not a free-for-all, even though there may be language that suggests
that would be the outcome.
CHAIRMAN HALFORD inquired what happens to the federal promise in
1980 that they would fund this whole thing. They talked about $5
million coming to the state for the management of a subsistence
priority if the state did comply. The state did comply, although
marginally back and forth through that whole period.
DEPUTY COMMISSIONER BOSWORTH answered that the most the state ever
got was $950,000 split equally between the Division of Subsistence
and the Division of Boards. He also clarified that they are
currently getting nothing.
Number 073
SENATOR TAYLOR asked the projected cost of enforcement of this
proposed law.
MS. PETE informed him that the subsistence division fiscal note was
a little over $100,000, and DEPUTY COMMISSIONER BOSWORTH added that
the department would provide the fiscal note with that information.
SENATOR HOFFMAN asked Commissioner Rue the amount of the proposed
federal budget for implementation of subsistence; if he thinks once
the federal government comes in for management of subsistence they
are here to stay; and if he believes that once they are here they
will continue to manage our resources for subsistence as a priority
first.
COMMISSIONER RUE responded that the initial budget is about $17
million, with approximately 71 positions, which leads him to
believe they are going to be looking over our shoulder in every
fishery in the state. He thinks once they are here, they will
stay, and that management of subsistence will continue as the
number one priority.
TAPE 98-44, SIDE A
Number 005
There being no further questions, CHAIRMAN HALFORD thanked
Commissioner Rue, Deputy Commissioner Bosworth and Ms. Pete for
appearing before the committee. He then announced the committee
would hear next from former Commissioner Carl Rosier and former
Director of Wildlife Dave Kellyhouse.
Number 045
CARL ROSIER, former commissioner of the Department of Fish and
Game, expressed heartfelt thanks on behalf of the Territorial
Sportsmen to the legislators that have stood by their oath of
office and not bought into the concept that we must change the
common use provisions of our State Constitution, comply with
ANILCA, and forever sleep with the federal government in managing
our fish and wildlife resources. He said, as a professional fish
and wildlife manager in our state for over 40 years, he can't
imagine a worse scenario than that particular concept.
MR. ROSIER said some of the questions that were raised around the
table were excellent questions that were encountered during his
stint in office, like the money question in terms of almost a
million dollars at the peak. He said it was interesting because
what they saw occurring under those circumstances was that they
basically trained the federal people, and as they got smarter and
learned a little bit more about how things worked, they became very
independent. The feds moved away from the state program, the
influence of the state agency, the money went down, and, as a
result, ultimately it went down to zero. He questioned what
happens to that trained federal bureaucracy that is out there at
the present time, and if they are going to be the subsistence
management staff paid for by the state, or paid for by the federal
government on contract to the state. He said the federal
government is also cutting budgets, and he is skeptical of much of
that $17 million coming to Alaska on this particular problem.
MR. ROSIER said it is frustrating to hear that the important parts
of ANILCA can't be changed and that the state has to mirror the
ANILCA image if we are going to have the feds concurrence to give
us some form of management. He said there will be major declines
in the state's resources as a result of having multiple people
making management decisions on these resources.
MR. ROSIER stated the management programs of the state have been
successful and they have been successful because the people that
wrote Title 16 originally gave great authority to the people in the
field. These were people that had authority to write regulations
on the spot as they saw fit and as needed by the resource at that
particular time, and that was reason for the successful rebuilding
of many of our stocks in Alaska.
MR. ROSIER said in looking at the feds and how they operate, they
are consistently slow in terms of making decisions. They operate
from plans, and if the plan doesn't cover it, it's a crisis. They
don't react to the emergency type of situations that are
encountered in fisheries management. He said you've got a federal
law, you've got a federal agency that is the oversight entity, and
current regulations that outline a lot of responsibilities for the
Secretary of Interior. He said it isn't going to be the state
people that are in fact reporting that, its going to be the federal
people that are involved where the management decisions are in fact
going to be made.
MR. ROSIER feels that the feds are going to be muddling around on
a day-to-day basis in the management of the resources in this
state. He noted that at one point following passage of the marine
mammals bill, the state was interested in getting back the
management of walrus, but the feds hung so many strings on it that
the department just finally said to forget it because there was no
way that the state could manage in that particular manner.
Number 190
CHAIRMAN HALFORD asked if it was a conscious decision that state
management wasn't worth the federal mandate with marine mammals.
DAVE KELLYHOUSE, former Director of Wildlife, Department of Fish
and Game, replied that as he recalls what it came down to was that
the federal government offered the state the opportunity to take
back the management of walrus but they imposed a total harvest
limit of 3,035. The state's marine mammal biologists concluded
that if the state took management of walrus under the conditions
set out by the feds, it was destined to fail, because at that
point, the walrus population was going up quite rapidly and
depleting mollusk food supplies. The biologists felt the harvest
had to be increased beyond the federal cap.
MR. KELLYHOUSE noted he went through the package of legislation
before the committee, and from a practical standpoint, he can see
a lot of problems with it. First of all, the very standard of
management under the federal system that the state has to comply
with to get management restored is the standard of customary and
traditional. When that was tested in the Alaska versus Bobby case,
Judge Holland came back with a foreboding ruling which basically
said that any management authority had to be extremely cautious in
restricting customary and traditional practices; that it wasn't
based on need, it was just based on customary and traditional.
This translated into extremely long seasons and ridiculous bag
limits. He said should that management system, with a standard of
customary and traditional be adopted into state law in lieu of our
sustained yield and common use mandates, it doesn't take a rocket
scientist to see what's going to happen. At some point in the
future with finite resource capabilities, a rural population that
continues to grow with the only basis for qualification to be where
a person lives, and few or no constraints on taking because there
is no needs test, the result is inevitable and it will have a
negative effect on the people that live in Juneau, Ketchikan,
Fairbanks and Anchorage. He is concerned that the sustained yield
mandate, that the conservation of the resource base upon which all
uses depend, remains intact and protected.
MR. KELLYHOUSE said he is also convinced, having served as director
and working with the Board of Game for four years, that the concept
of sharing between user groups is also integral to good game
conservation.
MR. KELLYHOUSE pointed out to the rural legislators, that Title
VIII of ANILCA only gives preference for subsistence uses over
consumptive uses. Very carefully they voided giving any preference
for subsistence uses over consumptive uses or nonconsumptive uses.
Another concern about federal management is the regional
subsistence councils. As he understands the draft statutory
language that the Governor has proposed, there will be a minimum of
six councils which together cover all lands and waters in the
state. He noted the state already has a system of 80 local fish
and game advisory committees that provide advice and
recommendations to the Boards of Fisheries and Games. These
committees can submit regulation proposals directly to the boards
for their consideration. Under the new system, it would have to go
through the regional councils for review and could not go directly
to the Boards of Fisheries and Game until it had been reviewed by
the regional councils. He said there is nothing in the legislation
that says the regional councils must review a proposal and, if they
choose not to review one, it is conceivable that it wouldn't be
considered at all. He also has concern with the composition of the
regional councils.
In conclusion, MR. KELLYHOUSE referenced Alaska's Constitution and
the statement that all persons are equal and entitled to equal
rights, opportunities, and protection under the law. He said there
is a reason that was put in the constitution, and there has to be
equality and cooperation in the management of wildlife resources or
the whole system breaks down.
Number 317
MR. ROSIER also voiced his concern with the composition of the
regional councils. If there is one group that is specifically
assigned the responsibility for subsistence and then there is
another system that is responsible for recreational, commercial,
etc., management begins going in separate directions. Even if
there is a preference or priority for the subsistence operation,
people in one group are going to want to know what's going on in
the other groups. In his opinion, there will be a duplication
involved in that kind of system, and it is a system that will
disenfranchise a lot of the population in the user groups other
than the subsistence user and the commercial person.
Number 351
CHAIRMAN HALFORD asked what do we have if a constitutional
amendment is passed, if the legislation proposed by the
Administration is passed, and if the Stevens' amendments take
effect.
MR. ROSIER responded that it will be a mess that probably will cost
the state its resource in the long term. He said we are going from
what he considers to be a well thought out, well organized
management program for the resources of this state that has been
very successful in maintaining and rebuilding the those resources
to something that we don't know the answer to.
Number 390
CHAIRMAN HALFORD asked Mr. Rosier, in the time frame that he served
as deputy commissioner and then commissioner, did he see any cases
where there was ever a significant loss or any loss at all to
subsistence users under the state system.
MR. ROSIER answered at that particular point in time, he was
primarily associated with fish, and in the late fifties and early
sixties when there were extremely poor runs, there was never a time
that subsistence was, in fact, not accommodated by the salmon runs.
They had major closures in commercial and they had closures on
recreational fisheries, but there was never a time that personal
use and subsistence was closed. There was always enough fish for
subsistence. He pointed out that today there are runs of 150
million fish versus 30 million fish statewide back in those days.
MR. KELLYHOUSE, speaking to the wildlife side, said it was more a
case of difficulty in harvesting where a person would have to spend
more time and didn't really like non-local competition. He said he
hasn't seen the state system really fail in providing a subsistence
preference or ability and, although the current system is
cumbersome, at least you have to demonstrate a need and a
dependency to qualify for a Tier II permit.
MR. KELLYHOUSE pointed out that Deputy Commissioner Bosworth said
we don't have to worry in the future because now the federal law
has a "reasonable opportunity." However, the definition of
"reasonable opportunity" has customary and traditional in it, so
his fear is that with the no season, no bag limit, no restriction
until all other uses are eliminated, is a problem as long as that
customary and traditional standard is embodied within the
definition of "reasonable opportunity."
CHAIRMAN HALFORD commented that the question that always comes to
mind is, does "customary and traditional" include the customary and
traditional harvest outside of any season or bag limit.
MR. ROSIER said one of the issues that has been associated with
subsistence has been the involvement of local people in the
management of those resources. Under the federal law, it is quite
possible for the federal government to, in fact, let contracts to
people outside of the agency to involve in data collection. Some
federal entities have indicated to him that they could have let
contracts for actual management in some cases, however, they didn't
do that, at least during his stint in the department, but that
provision is there in federal law.
Number 455
SENATOR KELLY said Mr. Rosier indicated that if the task force
proposal is adopted, things will be in a real mess, but he
questioned if it would not be equally as bad a mess if nothing was
done and we allow the federal management.
MR. ROSIER replied it was his view that the only real solution to
this is the changes to ANILCA. What he is saying is that you're
going to have the feds either way you go and, at least for the time
being, depending on what happens, you may at least continue to
control management on state and private lands on this. He believes
that ultimately this mess is going to have to be sorted out,
probably in the Federal Supreme Court. He emphasized that as an
interim step, the state should not give up its prerogatives of
management on state and private lands because once that is done, it
is gone for good.
Number 477
SENATOR ADAMS said Mr. Rosier had said the solution to this dilemma
was changes to ANILCA, but he doesn't think that is going to
happen. He asked what was his preference would be between having
federal oversight or having dual management with federal management
within our state system. He also questioned where the equality
was when the people of Alaska voted regarding Article 8, Section
15, relating to limited entry permits.
MR. ROSIER responded that he doesn't think the problem can be
solved in one fell swoop. He said there are good resources
statewide at the present time and, as far as he knows, nobody is
being short changed on subsistence harvest. He reiterated that, at
this point, to give up the state's prerogatives as far as state and
private lands doesn't make sense because once the state is under
the ANILCA umbrella, it is there to stay. He questioned why there
has to be a change in the constitution in order to keep the federal
government from allocating resources in Alaska. He said he doesn't
think any other state in the Union has to deal with that kind of a
scenario, especially when we've got a lot of resource.
SENATOR HOFFMAN said it has been testified that we haven't had
shortages or that people have had to have subsistence, but the
great concern of people in rural Alaska is that the state of Alaska
continues to change and the population of the state today isn't
going to be the same as it will be 20 years from now. As a state,
we have been able to manage our resources and there has been the
abundance so we haven't had to kick in the subsistence priority,
but if is turned over the feds we'll see more and more people being
denied access to resources because the subsistence provisions are
going to kick in. He said he agreed that we shouldn't give up
state management, and we should consider a constitutional amendment
as a mandatory option for rural residents.
MR. KELLYHOUSE stated that he thinks the biggest misrepresentation
is that if we adopt a rural constitutional amendment, that we will
have state management. He stressed that we will not, we will have
federal management. He added that right now the federal
government's authority is constrained to federal public lands and
they've tried to reach out into some navigable waters. He
emphasized that if we come into compliance with the federal law, we
will have federal management on all lands and waters. If we do not
amend the constitution to put in a rural priority at this time, we
will defend state management on state and private lands.
Number 556
SENATOR LINCOLN said she thinks since 1990 and in a ten-year
period, the population in Alaska will have grown in excess of
100,000 people, and her concern with statements that subsistence
needs are being met and they haven't ever been denied is that no
one talks about time of plenty anymore. She doesn't think that
anyone can say with all assurance that subsistence needs will
always be met, as we see it now, because of the population growth
and possible decline of the resources in the state. She believes
a constitutional amendment and coming into compliance is the
future. She asked Mr. Rosier if looking out into the future of the
next two generations, can he in all honesty say that if the federal
government comes in and takes over, that all of the subsistence
needs will be met.
MR. ROSIER answered that there are no guarantees in fish and
wildlife populations. He agreed that the population is going to
increase in the state, but he questioned if someone who comes to a
rural area of this state from another state should have subsistence
rights. He thinks that individual has to be treated differently
than the person who is born and raised in this state and has lived
a subsistence lifestyle.
TAPE 98-44, SIDE B
Number 575
SENATOR TAYLOR asked if there was any ability for the state of
Alaska to provide for its own unique management style should that
style be different from what others may interpret ANILCA to require
in the future.
MR. KELLYHOUSE replied that if he understands correctly, his answer
would be no. His understanding is that the federal government is
becoming more and more protective of nonconsumptive uses on federal
lands and less and less tolerant of consumptive uses. He can see
the federal government going along that same course and becoming
more and more anti use; he doesn't see that with the state of
Alaska.
Number 551
SENATOR LEMAN inquired if it was either Mr. Rosier's or Mr.
Kellyhouse's opinion that the general applicability is, as was
interpreted by Attorney General Botelho and Mr. Cole, that any law
would have to apply to all lands and not just the federal lands.
MR. KELLYHOUSE responded that was his understanding. He said, if
he were a rural person, he would really be concerned if the state
and private lands and corporate lands in his rural area were to
fall under federal judicial review and the standard of customary
and traditional instead of sustained yield and common use.
Number 520
SENATOR WARD said the concern of a lot of people in his district
who are commercial fishermen is that the people who eat fish will
have a preference and, to the commercial fishermen's detriment,
they will have to take less of a catch in order that the
subsistence quota be filled for people that want to have personal
consumption. He asked for Mr. Rosier comments, as a former
commissioner, on this issue.
MR. ROSIER responded that there is little question in his mind that
there will be some reallocation of harvest, but he pointed out that
the commercial fishery probably takes something in the neighborhood
of 90 percent of the harvest statewide. With runs that have
increased from 30 million to 150 million statewide, he thinks there
are enough fish to go around. It may cause some reallocation of
resources, but it is hard to project that at the present time. He
thinks that the limited entry system has worked fairly well , and,
in his view, it was a better system than the wide open fishery. He
reminded him that the limited entry system came into effect at a
time when the state's resources were at a much lower level and the
system was designed around that type of run. However, one thing he
thinks that was left out when the limited entry system came into
being was the economics of the fisheries, and even with the limited
entry system that is in place today, the value of that catch in the
last few years has been going down dramatically.
SENATOR TAYLOR asked Mr. Rosier if the False Pass fishery is not
shut down under state management, does he anticipate that it will
go through the court process and end up with a federal judge
shutting it down.
MR. ROSIER agreed that would probably happen.
Number 456
SENATOR LINCOLN asked Mr. Rosier his objection to allowing the
public to vote on a constitutional amendment.
MR. ROSIER replied, from his perspective, the most significant
objection would be to what he considers to be the less than
truthful information that has been in the news in regards to the
rural priority and the lack of options for the public to look at.
The image a lot of the public has of subsistence is the image that
was there 30 or 40 years ago, and there has been change in
subsistence since that time. He related that he is not opposed to
a well-informed public voting, but there has been so much
misinformation on this issue that he is not sure the public can be
recovered in terms of their knowledge levels on voting on the
issue.
MR. KELLYHOUSE agreed that the public is confused on this issue.
He said he would be afraid to see the rights that are guaranteed to
all Alaskans in the constitution put up to a public vote because
those people that have a very special interest and have large cash
reserves that they've dedicated to winning would make it a one-
sided vote.
Number 400
CHAIRMAN HALFORD thanked Mr. Rosier and Mr. Kellyhouse for
appearing before the committee. He then announced the committee
would take an approximate 15-minute break.
[THE COMMITTEE RECESSED AT 6:50 P.M. AND CAME BACK TO ORDER AT 7:35
P.M.]
TAPE 98-45, SIDE A
Number 001
CHAIRMAN HALFORD called the Senate Resources Committee meeting back
to order and announced the committee would next hear from Julie
Kitka.
JULIE KITKA, President, Alaska Federation of Natives, expressed her
appreciation for the opportunity to testify on behalf of the Alaska
Federation of Natives. She said she would first address the
process issue, and she requested that the committee consider
extending the hearing to include testimony over the teleconference
from individuals from throughout the state and the rural
communities, as well as individuals who were still arriving in
town. She said these people have a vital interest at stake in the
decisions the committee would be making.
MS. KITKA then read the following testimony into the record:
"The state of Alaska now stands at the crossroads of history. The
conflict between state and federal subsistence laws has divided
Alaskans for more than eight years; and these divisions will
inevitably worsen if the Legislature fails to resolve the impasse
now. The way in which subsistence is dealt with in 1998 will have
a greater impact on the future of Alaska, in my opinion, than any
other issue in state politics.
"Because so much of this debate has focused on Title VIII of
ANILCA, let's keep in mind why that legislation was enacted in the
first place. In 1971, Congress had passed the Alaska Native Claims
Settlement Act, the primary purpose of which was to clarify land
ownership. But subsistence had also pervaded the ANCSA process.
Congressional findings in the final Senate bill emphasized
protection of "...Native subsistence hunting, fishing, trapping and
gathering rights..." If enacted, that bill would have required the
Secretary of Interior to designate public lands around Native
villages as subsistence use areas and, under certain circumstances,
to close them to non-subsistence use areas.
"Why did the ANCSA conference committee drop the subsistence
provisions from the final Act? Basically, its our view because the
Congress was unwilling to delay the land settlement and
construction of the pipeline in order to work out such a complex
resource issue. Accordingly, Section 4(B) of ANCSA extinguished
Natives' aboriginal hunting and fishing rights, as well as our
aboriginal title to the land. But the conference report
articulated the United States Government's concern for Native
subsistence in the absence of the aboriginal rights. And it
mandated responsibility: 'The conference committee expects both the
Secretary and the state to take any action necessary to protect the
subsistence needs of the Natives.'
"But congressional expectation of state cooperation went
unfulfilled during the 1970's. The pipeline boom produced an
enormous non-Native migration into Alaska and a 36 percent
population increase in nine years, creating fierce competition
among user groups for limited fish and game resources. How did the
state government react to that?
1. The 1972 Marine Mammal Protection Act protected Native
hunting, a policy that works effectively to the present day.
The state did nothing about marine mammals in the 1970's,
except to oppose that federal action.
2. In 1976, the Northwest Arctic Caribou Herd crashed. The
Governor declared a disaster area, and food was flown in to
keep people alive. But when the Board of Game tried to
provide for a very limited harvest by local residents, a group
of Fairbanks hunters sued, claiming that their rights have
been violated. And they won in state court.
3. In 1978, the state arrested three agreed Athabaskan elders for
operating subsistence fishwheels during an opening for sport
dipnetting.
4. Also in 1978, the state enacted a statutory preference for
subsistence over competing uses but failed to distinguish
among competing users, which was always the real question.
"The 1970's, a decade of neglect and obstructionism, led directly
to enactment of Title VIII of ANILCA. By 1980, Congress
reluctantly concluded that it had no choice but to protect
subsistence by federal law, pursuant to its plenary authority to
regulate Indian affairs. But by then, Congress made every attempt
to accommodate the state's needs. ANILCA's subsistence preference
was based on the differing socio-economic circumstances of rural
and urban Alaska, not on race or ethnicity. The state objected to
a Native preference because it wanted a standard that it could
enforce under its constitution. All parties assumed that "rural"
would work, and the Native community accepted that compromise in
order to get a preference that the state could implement.
"Moreover, Title VIII offered the state the option of continuing to
regulate subsistence on federal public lands and waters if the
Legislature would enact a state law giving the same rural
preference statewide. This was not an example of "federal
compulsion," as some have argued. On the contrary, the United
States could have proceeded to enforce the rural preference solely
within its own domain, creating a permanent system of dual
management. Instead, the federal government made a good-faith
offer to create cooperative, unitary management of highly mobile
species on a checkerboard of state, Native, private and federal
lands. This was unprecedented in the general history of federal
land law. (Ms. Kitka added that if the committee was interested,
she could outline the series of committee reports that led up to
ANILCA and the specific cites report after report that the Congress
had and their interest needs of the Native people and how the key
policy decisions got decide in regard to ANILCA.)
"It is our view rural residents did their part to make the ANILCA
system work, but the state of Alaska did not. Its regulatory
bodies frustrated implementation of the preference and refused to
regulate consistently with customary and traditional subsistence
practices. It never fully funded or empowered regional advisory
councils. More than once, rural residents found it necessary to go
to court to enforce the law on a state that was determined to
sidestep it.
"But the behavior of the state boards was very different from what
the people of Alaska thought. In the 1982 general election, a
ballot initiative to remove the rural preference from state law was
soundly defeated - 58.4 percent against and 41.6 percent for. That
result became the real reason why legislative majorities have
refused ever to trust the voters with this issue again. They know
perfectly well what the people will do, if they ever get the
chance. If legislative majorities during this period had any
expectation that the electorate would vote it down, they would have
put a constitutional amendment on the ballot years ago. Having
failed with the voters, the 1982 initiative's sponsors then turned
to the State Judiciary; and in 1989, the Alaska Supreme Court threw
the rural preference out of state law. Since then, for eight and
a half years, legislative majorities have refused to allow their
own voters to consider a constitutional amendment.
"This sad chronology lies at the heart of the distrust that so many
rural people feel for the state of Alaska and has been a prime
cause of the growth of the tribal movement among Natives as a
protection against a permanently hostile state government. Nothing
has done more damage to state authority and to the social fabric of
Alaska than the agony of the conflict over subsistence. And the
ultimate irony, in our view, is that it was all self-inflicted.
The cause wasn't the federal government; it wasn't the liberals;
and it wasn't the Natives. The state government has no one to
blame for this but itself.
"Faced with this historical crisis, we would do well to cut through
a few myths that have accumulated over the years. The first is the
assumption that what this is really about is "who manages." That's
not true. The core question has always been about whether the
rural subsistence preference itself is a proper policy for Alaska,
regardless of the uniform worn by the implementing manager. But
anti-subsistence forces have avoided that debate - because it is so
hard to argue against letting people eat in times of shortage. So,
the principle of states' rights against the federal government has
become the evasion of choice - as if all this were somehow a clash
between Alaska and the United States, instead of between two
Alaskas.
"Remember, state's rights is the bedrock of American federalism,
and we ignore that principle at our peril. But it is also true
that, throughout the Nation's history, states' rights have been
used as means to advance purposes that are truly destructive.
There was a time when states' rights was a defense for racial
segregation.
"Further, I submit to you that, if federal law were opposed to a
rural preference, and state law required it, instead of the other
way around, anti-subsistence interests would turn their backs on
the state of Alaska in a heartbeat. They would mouth the rhetoric
of states' rights to the extent that they can get something out of
it - in this case, someone else's food. But a principle is
something you defend because it is right, not because you get paid
for it. The American federal system deserves better than to be
trotted out as a defense of every local exploitation, and it should
not be used in modern Alaska to distract us from the real policy
question.
"Another myth is that ANILCA's rural preference is in force at all
times, rather than only in times of shortage. That is not true.
The preference over other uses and users that is granted to rural
residents who have established customary and traditional uses of
specific fish stocks and game populations takes effect only in a
Tier I or Tier II shortage. Title VIII also mandates that the
boards may not manipulate such things as seasons, bag limits,
methods and means so as to disrupt customary and traditional
subsistence patterns, even in times of plenty. This is not unlike
commercial and sport fishing regulations, in which a system of
seasons, gear, bag limits, etc., must be in place, whether there is
a shortage or not. Both the preference in times of shortage and
the general customary and traditional protections at all times are
provisions of a federal statute whose purpose is to ensure that
regulatory mechanisms do not harm subsistence in order to satisfy
other demands.
"A third myth that needs to be debunked is that this is all about
"equality" versus "discrimination." In our view, here's an honest
answer to that: Does Title VIII of ANILCA make a discrimination
between classes of citizens in Alaska? Here's an honest answer:
Of course it does; that is why it is in the federal statute. And
in that, ANILCA is no different than any other law ever passed.
"All laws distinguish between classes of citizens. Show me any act
or appropriation by the United States Congress, the Alaska
Legislature, the Municipality of Anchorage, or the British House of
Commons and I will show you a measure that hands to one group of
citizens some benefit that it withholds from the others. Medicare
for older persons? Medicaid for poor people? The original
issuance of limited entry permits? Permanent fund dividends? The
old longevity bonus program? Veterans' benefits? The entire FY
1999 budget just passed by the Legislature? Even voters' rights?
Does any of these policies treat every Alaskan the same? No. That
is impossible. The great question in democracies has never been
whether laws treat all people identically. It has always been
whether the distinctions that any law obviously makes are
reasonable, whether they advance a valid policy goal - in short,
whether the people believe them to be fair.
"As you know, a clear majority of Alaskans believes that a state
law containing a rural subsistence preference is a fair and
justifiable social policy. They see it as morally right because
the whole basis of life in Alaska's villages is now threatened, and
because it is utterly perverse to wipe out human communities for no
reason other than a false dream of equality. They see it as
historically smart because, if the economies and cultures of Bush
villages are dismantled by distant policy decisions, every Alaskan
will suffer the consequences; and our children, who will pay that
price more than we can imagine, will never forgive us for what our
generation did to this beautiful place at the end of the 20th
Century.
"To date, the best that the 20th Alaska Legislature has been able
to do is House Bill 406. That legislation is diametrically opposed
to Title VIII of ANILCA. In order for the state to regain
management, it requires massive amendments to the federal law in
order to replace the rural preference with an individualized,
needs-based system.
"Our written testimony outlines our concerns with House Bill 406,
and we're hoping that the Governor will veto that and get that off
the table. We adamantly oppose an individualized needs-based
system.
"The subsistence position of the Alaska Federation of Natives, most
recently confirmed in February, has been clear and consistent for
eight years. We seek a return to a reliable rural preference in
both state and federal laws, accompanied by four much-needed
improvements of the pre-McDowell system.
"We therefore urge this Legislature to do its part by enacting a
statute that complies with Title VIII as it was written in 1980,
and to add an "intent" sentence to the constitutional amendment
telling the public and the state courts that the purpose of the
amendment is to allow the state to have a law with a rural
preference - or to allow the state to comply with Title VIII - or
to reinstate the 1986 state law. That last option would still
leave us with the problem of reconciling state and federal
definitions of "rural" - a task in which we would gladly cooperate.
Another way of doing the same thing is to reenact the 1986 law now
and accompany it with a constitutional amendment.
"The four systemic improvements needed by rural Alaskans are the
following:
1. Mandatory federal-state-tribal co-management arrangements - to
give the people most affected a real role in the subsistence
regulatory system;
2. Better protections of "formerly rural" Native groups and
communities that have been surrounded by non-Native settlement
entry and taken out of the preference through no fault of
their own;
3. Reform and restructuring of the state board system to ensure
that we are not simply returning to a political environment
permanently rigged against subsistence and Alaska Natives; and
4. The ability of any subsistence user to employ a subsistence
defense in court.
"If these improvements are combined with reinstatement of the state
law that worked perfectly well before McDowell, the concerns
articulated by the Native summit and the AFN convention will have
been satisfied.
"I am certain, Mr. Chairman, that someone from the other side of
the issue will try to exploit the differences between the task
force's package and the AFN position. We can expect an exercise in
doublethink, claiming, for example, that the AFN position should be
ignored because it is somehow unreasonable and that the Governor's
proposal should be ignored because it is not supported by all the
Natives.
"Such arguments conveniently ignore the fact that both proposals
require a constitutional amendment for a rural preference and a
state law complying with ANILCA. The only differences between them
are: 1) Natives want additional improvements in ANILCA; 2) Natives
do not support the ANILCA amendments of last September; and 3)
Natives want a constitutional amendment which is mandatory and
ensures that the statute cannot be overturned by other provisions
of the constitution. And if you'd like a good example on how we
feel that you can tighten up the constitutional amendment, I urge
you to look at last session's Senate Joint Resolution 2 and five
criteria that were outlined in the constitutional amendment. Those
five criteria, which we think would greatly improve the
constitutional amendment approach, is customary and traditional
uses; cultural tradition; direct dependence; local residence; or
availability of alternative resources. In addition, at the summit,
two other constitutional concerns that were raised was: recognize
the religious and spiritual aspects of subsistence and additional
practices of subsistence.
"Basically, the real reason why we are testifying is we hope that
you will not dodge this conflict. That you will spend the time and
the energy to accomplish a resolution to this issue in this special
session, and let the voters have an opportunity to vote in November
on a constitutional amendment, which our people, as well as other
Alaskans can fully support. I urge you to not be afraid of the
time it takes to work out what needs to be done to get the
constitutional amendment on the ballot. I'm very cautiously
optimistic that there is the political will in this Legislature
during the special session to do it, and I urge you to spend the
time and do it, do it right, and lets get this issue out to the
voters and hear what they have to say, and get this conflict behind
us.
"And with that, I'd be glad to answer any questions. I have, in my
testimony, submitted the resolution that came out of our Native
Subsistence Summit for your consideration, the AFN position on
subsistence adopted by our board of February 11 urging a
constitutional amendment, and Senate Joint Resolution No. 2, the
sample constitutional amendment, which we think can be a good
starting point to resolve this issue at this time."
Number 300
CHAIRMAN HALFORD said Ms. Kitka stated that Natives want a
constitutional amendment, which is mandatory and insures that the
statute cannot be overturned by other provisions of the
constitution, and he asked what she meant by "overturned by other
provisions of the constitution."
MS. KITKA responded that AFN has three serious concerns with the
constitutional amendment language that has been introduced to date.
Their first concern is that it may not override the equal
protection guarantees of Article I. Their second concern is that
the constitutional amendment is based on a place of residence
rather than rural residence or the five criteria that was contained
in SJR 2 and HJR 3. Their third concern is that it is permissive
rather than mandatory. On the permissive versus mandatory, they'd
like a resolution that resolves this issue for the long term and
just doesn't kick it from one legislative session to the other,
depending on the whims of politics. She asked that Norman Cohen
address the equal protection issue.
Number 318
NORMAN COHEN, Counsel for the Alaska Federation of Natives, said
the concern is to make sure that the statute is able to withstand
further constitutional challenge. There is concurring opinion in
the McDowell case that raises other constitutional problems. The
object is not to say that equal protection does not apply to the
subsistence rules, but to make sure that this particular scheme
that is set up in the current statutes or future subsistence
statutes are able to be upheld. The basic idea is to try to make
sure that the constitutional amendment states that and to allow for
a statute that is consistent with ANILCA so that the Court will
interpret it as valid. He said it is not the intent to say the
equal protection doesn't apply; nobody is trying to eliminate the
equal protection clause from the implementation of subsistence.
The issue is that the Supreme Court be given a direction that it is
going to implement the law and to find a way to be able to do that.
The suggestion on how to do that is to use more criteria for what
the Legislature could make distinctions on, as well as an intent
statement to tell the Supreme Court what it is that the people are
voting on.
MS. KITKA explained the reason why AFN is suggesting five criteria
rather than just the one that is the amendment is because this
constitutional amendment is giving flexibility to the Legislature
to enact laws. She said it doesn't make sense to only give the
Legislature flexibility in one specific area when several of these
will actually give the Legislature flexibility now, as well as over
time, as we deal with new situations in the state.
CHAIRMAN HALFORD noted the seventh principle of AFN's guiding
principles is recognition that subsistence is a basic human right,
and he said he assumes that is still a basic guiding principle of
the AFN position.
MS. KITKA responded that basically, the ability of the Native
people in the state of Alaska to continue their customs and
traditions, just like indigenous people all over the world, is a
basic human right. Subsistence is an integral part of their
culture and tradition.
SENATOR LEMAN noted that in her written testimony Ms. Kitka
expressed opposition to House Bill 406, and he said it seems like
some of the reasons for her criticism are incorporated in SJR 2
because it appears by listing the five criteria areas, it may get
to an individualized type system.
MR. COHEN replied in terms of initial eligibility for subsistence,
the position is clear: opposed to individual criteria. However,
in certain Tier II situations, it may necessitate eligibility on
an individual basis. When all other uses are removed and when all
subsistence users from the area cannot participate, at that point,
it may be required to go into individual criteria, but only at that
very unusual situation.
Number 406
SENATOR LEMAN said Ms. Kitka's testimony made reference to anti-
subsistence interests who would turn their backs on the state of
Alaska in a heartbeat, and he questioned who these anti-subsistence
interests are because they haven't made themselves known to him in
the time he has been in the Legislature.
MS. KITKA replied she thought it would probably be fair to
characterize some of the people that have litigated this issue as
not being supportive of subsistence or the Title VII ANILCA
priority.
SENATOR LEMAN reiterated that he doesn't know anyone who is opposed
to subsistence harvesting.
MR. COHEN interjected a good example would be a piece of
legislation that basically cut out three-quarters or four-fifths of
the land mass of rural Alaska from participating in subsistence.
There have been bills like that around that people have supported,
and it is that kind of thing that leads people to believe that
they're anti-subsistence forces.
Number 432
SENATOR TAYLOR asked if AFN has prepared any amendments on the
Governor's proposal or the constitutional amendment for the
committee's consideration.
MS. KITKA responded that the five criteria contained in SJR 2 or
some variation with that criteria could be an amendment.
MR. COHEN added that in the Ostrosky case, which related to limited
entry, it was very important that the constitutional amendment was
very clear as to what it intended. He suggested that if there is
not going to be a statute that goes along to the voters with this
constitutional amendment, it is at least more important that there
be an intent statement as to what's intended to be accomplished
here, and they do have some language in that regard.
SENATOR TAYLOR noted that Senate President Mike Miller had written
a letter to Representative Al Kookesh, one of AFN's co-chairman,
and asked if he would contact legislative drafting and have a bill
drafted so that the Legislature could have an AFN plan to compare
with the Governor's plan and to hold a hearing on it. He said, to
this date, there has not been a response to this letter, and he
can't understand why because he thought AFN had specific concerns
they wanted addressed.
MS. KITKA said she had not seen that letter. However, when AFN had
their subsistence summit, they invited the Legislature to hold
hearings during the summit to hear input and the Legislature
declined to do that.
Number 485
SENATOR WARD said he and his relatives live in the largest Native
village in Alaska, Anchorage, and he asked Ms. Kitka where do they
get the protection to where they have the same right to go
subsistence hunting and fishing as anybody else in Alaska.
MS. KITKA answered that AFN thinks there is an amendment that can
be made to the Governor's bill that deals with that issue of
communities that are surrounded by urban growth, as well as other
concerns they've outlined as improvements to the legislation. She
added that there a lot of good things in the Governor's bill and in
the constitutional amendment, but they just think there are some
improvements that could tighten that up.
SENATOR WARD pointed out that right now, everybody in his Senate
district, whether Native or non-Native, does not qualify for a
subsistence preference. He said he finds it hard to say that it is
anywhere fair that he and the people he represents should be
second-class citizens.
MS. KITKA responded that some of that is a policy choice that the
Congress made. When AFN was working with the Congress at the time
of ANILCA, they wanted a Native subsistence, and the state was the
one that said that there wasn't the ability in our constitution to
do it so lets do rural, and that was the compromise that came out
of ANILCA. She said her people would prefer to have a Native
priority, but they don't see the likelihood of Congress taking that
up.
SENATOR WARD asked if AFN has ever given consideration to making
subsistence the absolute highest priority for any citizens in the
state of Alaska that want it, regardless of race, residence, etc.
MS. KITKA replied that there was a constitutional amendment that
had subsistence as the highest and best use that came out in one of
the previous special sessions, but it did not generate any support
in the Legislature.
Number 537
ROSITA WORL, a member of the Board of Directors of Sealaska
Corporation and chair of the Alaska Federation of Natives
Subsistence Committee, stated that AFN has taken its position from
Alaska Native people throughout the state, and she would be
addressing subsistence from a cultural and historical perspective
from the Native view.
MS. WORL directed attention to a map and five geographic regions
representing the Yupik, Inupiat, Athabaskan, Aleut, and the
Southeast Natives. The Alaska Native people lived, hunted, and
fished off of those lands, sustaining themselves from the
resources, and when the Europeans arrived, they welcomed them and
they were happy to be engaged in commerce with them. That went on
for a number of years, but when Alaska was sold to the United
States, that is when the Alaska Natives protested. They met in
council and took the position that they are the real owners of
Alaska, and, if the United States wanted to buy Alaska, then they
should come to the real owners. They hired a lawyer and sent that
individual to Washington, D.C. to present their claims about what
they saw for the future and to try to protect their lands, their
resources, and their rights.
MS. WORL said the Alaska Native people placed their faith in those
Western institutions and the laws of the United States, and that
is what they have done with the Alaska Native Claims Settlement Act
and ANILCA. They placed their faith and hope in those pieces of
legislation. The Native people wanted to protect Alaska
subsistence rights, however, they were told at the time that there
was no way that they are going to achieve an Alaska Native
subsistence priority. At that time, they began to compromise and
that compromise was rural. Even though it cut out probably 80
percent of Alaska Natives from rural subsistence, AFN still went on
record to try to protect the lifestyle, the culture, the economy of
rural Alaskans.
MS. WORL the rural subsistence economy is a good economy, it is a
good cultural lifestyle, and at this particular point in time, it
is the only thing they have going out there. If they did not have
subsistence economies and subsistence cultures, the state of Alaska
would have to step forward and probably pour some welfare money
into rural Alaska. She said that is not what her people want;
they want the right to be able to maintain their lifestyles, their
culture, and their economy.
TAPE 98-45, SIDE B
Number 010
MS. WORL said Alaska Natives are not asking for welfare. They are
asking the legislators to do the right thing for Alaskans, to do
the right thing for Alaska Natives by helping them in protecting
their way of life, their economies, and their culture. She urged
letting Alaskans deal with this issue by allowing them to vote on
it.
SENATOR WARD commented that it was his goal to broaden this
legislation, because right now, people who do not live in a
particular zip code are not treated equally. He believes that
anybody who wants to live off the land should have that right.
MS. WORL agreed with Senator Ward, and said they would very much
support an expanded subsistence hunt and fish if that could be
accomplished. She noted that the Department of Fish and Game
testified that subsistence takes less than two percent of all of
the fisheries and all of the wildlife.
Number 551
SENATOR LEMAN asked Ms. Worl if she was promoting something like
SJR 2 with the different criteria listed, or at least have this
concept of not only location but to broaden it to also include the
concept of dependence, whether it is identified as customary and
traditional use, or cultural tradition, etc.
MS. WORL acknowledged that is the position of both the Alaska
Federation of Natives and Sealaska Corporation.
SENATOR LEMAN said he has always thought that the concept of
dependence ought to be a part of this, as well as location. He
said he thought this exercise has been constructive, and he
expressed his appreciation to Ms. Worl for her testimony.
MR. COHEN related that there is a nutritional dependency in the
Stevens' amendments that is required in order to be a subsistence
eligible community, so there is a dependence element to it right
now if the task force proposal went through.
MS. KITKA noted that when they were revisiting the legislative
history of ANILCA and how this came about, it became very clear to
them that what the Congress did in allowing the opportunity for the
state to manage, if they had a law of general applicability, was
very unprecedented. It is very unusual for the Congress to allow
a state to manage federal public lands. She said it would be very
sad if this Legislature, by inaction, without putting a
constitutional amendment to the people, gave up on that
unprecedented opportunity and allowed the federal takeover to
occur. AFN believes there is a very short window of opportunity
and that the Alaskan people want to vote.
SENATOR GREEN asked if was AFN's opinion that SJR 2 meets all the
criteria for getting back into compliance.
MR. COHEN answered that they believe it is better to be safe than
sorry. If a constitutional amendment is adopted by the voters, and
then a portion of the subsistence that is on the books is thrown
out because there wasn't enough in the amendment, then everybody
has gone through an incredible agony for no purpose. The reason to
have all the criteria in the legislation is to take a look at all
of the things that are in the statutes and all of the reasons why
the Legislature tells the boards to make distinctions so that the
statute is upheld by the Supreme Court.
SENATOR TAYLOR made reference to the AFN's seventh guiding
principle, which is subsistence is a basic human right, and he said
he has not met anyone in this Legislature that has not told him
they believe that. He then asked Ms. Kitka how do you allocate a
basic human right between Senator Ward living in Anchorage, who has
the basic human right to subsistence, and Senator Adams living in
Kotzebue, who also has a basic human right to subsistence.
MS. KITKA replied that in discussing a basic human right at their
subsistence summit, they were talking about the right of indigenous
people in this world to go forward with their cultures and
traditions and develop themselves as a people at the speed and to
the extent that they want to do that. What they are saying with
"it is a basic human right," is that people are going to continue
to do that regardless of the legal structure, and they are urging
the Legislature to make what goes on legal and to give itself the
flexibility in the constitution to pass laws so that the state can
have the management authority. She also said it is important to
recognize that there is a special trust responsibility between
Alaska Natives and the federal government that goes all the way
back to the U.S. Constitution, and she doesn't see people having
problems with the nearly half a billion dollars in federal health
care money that comes into this state that supplements and keeps
their people alive. She said there is continuing federal
relationship between Alaska Natives and the federal government, and
subsistence is no different.
SENATOR TAYLOR thanked Ms. Kitka for clarifying that "basic human
right," as discussed at the subsistence summit, applies to
indigenous peoples and not to every person living in Alaska.
MS. WORL said she wanted to make it clear that the Alaska
Federation of Natives supports rural subsistence economies for
Native and non-Native people, and they are saying that the right to
maintain a subsistence lifestyle is a human right. She added that
you can't just take that principle in insolation without looking at
all of the other principles.
SENATOR LINCOLN said at the beginning of her testimony Ms. Kitka
had urged that the committee allow public participation in the
meeting via teleconference because there were many people who
wanted to testify but were unable to come to Juneau, and she asked
Ms. Kitka if there were people that were anticipating that they
would be able to participate via teleconference in the process.
MS. KITKA responded that she thinks people are absolutely shocked
that this would be the only hearing and the only opportunity. The
people she represents throughout the state are expecting some open
process where they can express their views on some specific
proposal.
SENATOR WARD pointed out that Nondalton has a hired a teacher from
Arkansas, so this lady would have more of a basic human right for
subsistence than he, as an Athabascan Indian, would because he
happens to live in the wrong zip code. He asked Ms. Kitka if that
was the position of AFN.
MS. KITKA replied AFN's position is that they would prefer a Native
priority, however, what we're dealing with is rural priority and
that's a congressional decision. She said AFN would like to be at
the table to help the state regain its management ability to come
into compliance with that federal law if the state and the state
Legislature is interested in doing that.
Number 377
CHAIRMAN HALFORD, speaking to Senator Lincoln's question relating
to hearings on subsistence, related that Senator Kelly requested a
research report on the number of hearings that have been held on
subsistence. That report shows that since the McDowell case there
have been 103 hearings, with testimony from 239 public officials
and 1,128 individuals. Just this year there have been numerous
hearings in large communities and small communities all across the
state. He said it was this committee's intent to try to hear from
groups and people representing groups so that the process can go
forward.
SENATOR ADAMS said there has been debate about urban subsistence
users versus rural subsistence users, and he pointed out that urban
subsistence users are eligible to get fish and game either by a
proxy harvest or they can participate in the educational
opportunity. People in urban areas can also participate in sport,
recreational, commercial and personal use, and there are times in
urban areas where an individual with a personal use permit can get
more fish than he could as a subsistence user. He asked Mr. Cohen
if he would agree that there is no evidence that urban residents
are lacking necessary fish and resources at this particular point.
MR. COHEN agreed with Senator Adams' assessment.
Number 330
CHAIRMAN HALFORD thanked Ms. Kitka, Ms. Worl, and Mr. Cohen for
appearing before the committee and then invited Tom Tilden to the
table to make his presentation.
TOM TILDEN of Dillingham representing the Bristol Bay Native
Association as its president, said he was the former mayor of
Dillingham, as well as a former council member. He pointed out
that Bristol Bay has one of the world's largest salmon runs, with
people coming from everywhere to fish those salmon. This has
impacted their salmon tremendously and they are seeing a
restriction on the fishery.
MR. TILDEN recalled growing up in a village where in 1963 they ran
out of food. He said if he could take the committee members back
to that time, then they would be able to see the significance and
the importance of subsistence to himself and his people. He said
when the killed the moose, ducks and geese out of season they
subsisted.
MR. TILDEN also recalled 1997 when the Bristol Bay run failed and
they saw the failure of all of the salmon in Southwest Alaska. He
said they have been paying taxes to the state coffers for years,
but when they came to the state and asked for help, that help was
very slow in coming. He said many of their people would be sick
and dying now if it wasn't for subsistence pulling them through.
MR. TILDEN said Alaska is a great state to himself and to all the
people that live in his area, but he also pointed out the
discrimination against the Alaska Native people that was part of
its history.
He doesn't think his people are asking for too much when they ask
for subsistence. He remembers when ANCSA passed in 1971 and he
thought the Alaska Natives had reason to celebrate because they
finally had some land and money, but now that he looks back after
all those years, he had nothing to celebrate because it took years
for that land to get conveyed to the people, and there was a
structure put in place to take care of that money. Ten years later
ANILCA passed and they were told they would have subsistence on
federal land, but they still don't have subsistence. He predicted
that subsistence will happen, maybe not today, maybe not tomorrow,
but it will happen.
Concluding his testimony, MR. TILDEN urged that when the committee
members get the opportunity to vote on subsistence, to vote on it
because it is the right thing to do, because subsistence is right,
and because the voters of the state are going to go to the polls
with that in mind.
CHAIRMAN HALFORD thanked Mr. Tilden for his testimony and then
invited Loretta Bullard, Robert Keith and Caleb Pungowiyi,
representing Kawerak, Inc., to the table to testify.
LORETTA BULLARD, President of Kawerak, Inc., a regional nonprofit
providing services throughout the Bering Straits Region, said her
board has gone on record in support of and encouraging the Alaska
Legislature to place a constitutional amendment on the ballot which
will protect rural Alaskans' priority use of subsistence resources
during times of shortage. Alaska state law says that subsistence
is the highest priority for use of natural resources, but state
court decisions have decided that everyone in Alaska is a
subsistence user. In reality, there is no protection for
subsistence users under state law.
MS. BULLARD said the Nome subdistrict in northern Norton Sound is
a good example of an area that has been heavily impacted by
subsistence closures. Their commercial fisheries have been closed
for 10 years, and their subsistence fisheries have been severely
restricted or curtailed and closed for the last five to six years.
For the past 35 years, her family has had a camp on the Pilgrim
River, and for the last 20 years, they've had subsistence
restrictions on their take of subsistence on the rivers in the
Seward Peninsula.
MS. BULLARD said Alaska Native cultures are based on hunting and
fishing activities, and these activities have sustained them as
distinct people for thousands of years. If their ability to live
off the land is not protected, their entire way of life will be
regulated out of existence.
MS. BULLARD reiterated Kawerak, Inc.'s support for a
constitutional amendment for subsistence. They would like to see
a constitutional amendment introduced which contains language that
a rural preference shall be provided and that would strengthen
rural and Native subsistence protections. She said they also
recognize that there is a need to reform the state fish and game
board selection process and the oversight and management processes.
MS. BULLARD stated that if the federal government steps in to
manage fish, it will because the Alaska Legislature has refused to
address this issue for the past eight years. The subsistence issue
has turned into a political football, and it has been an enormous
energy, time, and resource drain to the state. She encouraged the
Legislature to bring this issue to closure whereby the subsistence
needs of rural Alaskans are met now and in the future.
Number 037
ROBERT KEITH, Chairman of the Kawerak, Inc. Board of Directors and
President of Elim Native Corporation, said, in essence, he wears
three hats: according to the U.S. Constitution he is a citizen; he
is also a citizen of a tribe, the Native village of Elim, which has
had a constitution since 1938; and since 1959, a citizen of the
state of Alaska.
TAPE 98-46, SIDE A
Number 001
MR. KEITH observed that the logistics of getting any kind of
changes in ANILCA at this point in time, based on the time lines,
would be nearly impossible.
MR. KEITH said Mr. Rosier spoke to an abundance of fish, but since
the mid 50's, there has been a decline of chum salmon, and they are
starting to see declines in coho in his village and in surrounding
villages. He noted that during Mr. Rosier's time as commissioner,
Elim, Kawerak and the Nome Eskimo community filed a lawsuit
because of their serious declines in chum salmon. Not long after
that, there was a collapse on the Yukon and Kuskokwim Rivers, and
there have been persistent problems regarding the return of fish.
MR. KEITH said he would like to see the people in the villages have
as much input into whatever management regime comes about. Based
on some of the scenarios that have been presented, he thinks it is
going to be somewhat of a nightmare to have dual management. He
pointed out that in the Seward Peninsula area, there is very little
federal land, so it doesn't really matter whether the feds take
over because the state is still going to be managing the majority
of the Seward Peninsula. In the Shishmaref area, there is one
river where they will have dual management. He said he has
suggested to the federal people that they need stronger co-
management principles built into their advisory scheme just in case
they do take over because that will provide some opportunity for
the state to have input.
MR. KEITH said he thought Mr. Cole's painting of a worst possible
scenario is probably somewhat valid because the Department of
Interior has some underlying principles of wanting to have as much
control as possible. However, control usually requires funds to
implement federal bureaucratic policies, and he doesn't see the
stance of the current congressional delegation, or other
congressional people, to be pouring more money into Alaska for the
feds to take over.
Number 112
CALEB PUNGOWIYI, Director of Natural Resources for Kawerak, Inc.,
said he is originally from Savoonga and currently living in Nome.
MR. PUNGOWIYI said it took many years for the Board of Game, the
Board of Fish, as well as the Department of Fish and Game, to
implement some of the requirements of ANILCA. In 1997, the salmon
in Norton Sound were given customary and traditional determination,
which is 17 years since the enactment of ANILCA. There is also
some fallacy in terms of how use is implemented under state law.
In his region, they have to go before the Board of Game or the
Board of Fish and present documentation and backup to prove that
there is customary and traditional use. Once that is accepted by
the boards, regulations are adopted to implement the subsistence
priority. However, when it becomes a time of shortage, anybody
in Alaska can come in and apply for a subsistence priority without
having to prove by documentation a customary and traditional use,
which is not equal when they are required to prove something, but
others are not.
Speaking to the Marine Mammals Protection Act, MR. PUNGOWIYI said
it is a protection act, not a management act, which prohibits the
taking of all marine mammals in the jurisdiction of the United
States, but it does provide an exemption to only Alaska Natives.
In 1976, the federal government agreed that the state of Alaska had
the necessary tools to manage walrus and gave their management to
the state. The Board of Game and the Department of Fish and Game
decided that the people of Togiak could not take walrus, and they,
in turn, sued the state of Alaska. The state then turned the
management back to the federal government. He said, in some ways,
his people are comfortable with federal management because of the
relationship they have established with the federal government.
MR. PUNGOWIYI said earlier in the meeting concern was raised that
there might be too many Native people serving on regional councils,
and he questioned why it would be so fearful that they would have
some involvement in the decision-making process. He noted his
people have been taking marine mammals for 26 years for
subsistence, and the system has worked well because they realize
the importance of conservation. He said the real issue that needs
to be addressed is that, if there are issues of conservation
concerns, their advisory committees, the regional councils, and the
Board of Game and Board of Fish can all work together to come up
with something that will benefit all Alaskans.
Number 227
BERT GREIST of Selawik, a professional hunter and trapper by trade,
related that he administered the land claims act for all the
village corporations and the regional corporations in the Kotzebue
area pursuant to ANCSA. He has worked on ANILCA lands, on ANCSA
lands, on state lands, virtually everything that has to do with
land and water issues in his area. He was an eight-year member of
the Kotzebue Fish and Game Advisory Committee, and a 10-year member
of the Regional Subsistence Advisory Council under ANILCA.
Right now under ANILCA, his area has guiding, sport hunting, and
sport fishing. He said the management system under ANILCA does not
give them a rural priority, per se; it kicks in only when there is
a resource shortage. He said it is not like his people have more
rights than other Alaskans.
Mr. Greist voiced his support for the testimony presented by the
Alaska Federation of Natives and Kawerak, Inc., and for a
constitutional amendment with a rural priority.
Number 292
JOHN BORBRIDGE, presented and submitted the following testimony for
the record on behalf of the Alaska Federation of Natives:
"As the committees of the Alaska State Senate and House held
hearings on subsistence and discussed the details of provisions and
language set forth in various proposed bills, certain basic
principles that undergrid the subsistence position of Alaska Native
subsistence users were raised. One principle that I will discuss
today is what I call the "Duality of Alaska Native Status." A
failure to understand the legal and policy reasons for this
"duality" can lead, unfortunately, to an unnecessary and
unwarranted fear and resentment by non-Natives. Alaska Natives,
like non-Native Alaskans, are fellow citizens of the state of
Alaska and the United States. Where we Alaska Natives differ from
non-Native Alaskans is that we enjoy a unique and special trust
relationship with the federal government. It is this trust
relationship that underlies the opportunities that we now have
under Title VIII of ANILCA to enjoy and to protect our subsistence
lifestyle.
"It is beyond argument that the United States Congress has the
power to set up a resource management regimen for the Alaska
Natives and confirm their right to subsist on the public lands of
Alaska owned by the people of the United States. The Indians,
Eskimos, and Aleuts and non-Natives are simultaneously fellow
Alaskans and fellow U.S. citizens and a people who, as Alaska
Natives and Native Americans/American Indians, enjoy a special and
unique relationship with the federal government. This relationship
has been little understood, sometimes ignored, and attacked as
"racist" by those who lack a complete understanding of the
provisions of the U.S. Constitution which give Indians a unique
status.
"The federal government owes the Native Americans, of whom the
Alaska Natives are a part, the obligation of its trusteeship, not
because of our poverty or the government's wrongdoing in the past,
but because within the federal system, the government's
relationship with the Native Americans is of the highest legal
standing, established through solemn treaties and a series of
judicial decisions and legislative actions. This responsibility
originated largely from the following three sources:
1. The treaties negotiated with Indian tribes in which the United
States acquired vast areas of land in exchange for its solemn
commitment to protect the members of the tribes and their
property from encroachment by U.S. citizens.
2. Statutory enactment, dating from the Continental Congress to
the present, regulating transactions between U.S. citizens and
members of the Indian tribes.
3. Innumerable transactions in which, in the latter half of the
19th Century, the United States imposed a complex and vast
array of regulatory authority over Indians and their property
coincident with its assumption of control over the people and
property of the Indians tribes. The assumption of this
authority over Indian people was accompanied by a
responsibility to the Indian people.
"Despite the foregoing, litigants have erroneously argued that
federal laws singling out Indians as a class violate the equal
protection standard of the Fifth Amendment. Others have
erroneously contended that state actions recognizing the distinct
status of Indians or particular tribes under federal laws and
treaties violate the Equal Protection Clause of the Fourteenth
Amendment.
"The power of Congress to enact legislation singling out Indian
lands or Indian rights for special treatment was upheld in Morton
v. Mancari (1974), in which the U.S. Supreme Court held,
unanimously, that, "the plenary power of Congress to deal with the
special problems of the Indian is drawn both explicitly and
implicitly from the constitution itself." Additionally, the Court
said that, "As long as the special treatment can be tied rationally
to the fulfillment of Congress' unique obligation toward the
Indians, such legislative judgements will not be disturbed." That
was largely upheld, in slightly different words, in United States
v. Antelope (1977).
"In all cases where either Congress, the Courts, or the Indian
Claims Commission ultimately settles any Indian claims based on
aboriginal title, the aboriginal rights asserted are extinguished
as an integral part of the overall settlement with the sovereign
government. Congress followed this pattern when ANCSA was enacted,
and Sections 4(b) and (c) ANCSA accomplished at the extinguishment
of all aboriginal rights asserted by the Alaska Native. However,
Congress also followed the usual pattern by creating new rights and
new land titles for the aboriginal rights, which were canceled as
part of the general settlement. For example, it extinguished the
aboriginal land title, but, in return, confirmed to the Natives fee
simple title to 40 million acres of Alaska land; and while with one
hand it extinguished all aboriginal use rights, including the
aboriginal right to hunt and fish, with the other hand, it took
steps to confirm the existing subsistence rights of the Alaska
Natives by directing the Secretary of the Interior to take 'any
action necessary to protect the subsistence needs of the Natives.'
"The legislative history of ANCSA further reveals that it was
anticipated that the state of Alaska could, and would, assist the
Secretary in evolving policies which would likewise protect the
subsistence activities of Natives on the lands granted to the state
under the Alaska Statehood Act.
"At the direction of Senate Interior and Insular Affairs Committee
Chairman Henry Jackson, the Federal Field Committee for Development
Planning in Alaska compiled a massive document, "Alaska Natives and
the Land,"(1968) which offered the conclusion that: 'There is no
dispute that the right of Alaska Natives to go upon federal lands
for the purpose of taking fish and game should continue.'
"When evaluating the many settlement proposals advanced during the
years 1967 to 1971, Congress looked long and hard at the
subsistence question. Senate Bill 35, the final bill considered by
the Senate in 1971, contained subsistence provisions. The Senate
committee report concluded that the Natives did not need to own the
land they used to harvest subsistence resources, and likewise
determined that one of the reasons these lands should remain in
federal ownership was to ensure the protection of Native
subsistence rights. Clearly, the Senate believed that it would not
be difficult to protect the existing subsistence rights of the
Alaska Natives, and it was clearly stated in its report.
"There were important differences, however, between the Senate's
proposals and the approach taken by the House of Representatives.
The House committee felt the subsistence question did not need to
be resolved in the Settlement Act. Instead, it anticipated that
subsistence would be achieved by and through other means. The
House committee report concluded: 'There will be little incentive
the Natives to select lands for subsistence use because during the
foreseeable future the natives will be able to continue their
present subsistence uses regardless of whether the lands are in
federal or state ownership.'
"These differences were ultimately resolved in the conference
between the two bodies when, in haste to produce a settlement
before the end of a session of Congress, the Senate yielded to the
House position that no legislation was needed because the Secretary
of the Interior had authority through existing administrative
powers to protect the rights of the Natives.
"Since the Alaska Natives use subsistence resources to supply both
physical and cultural needs, Congress clearly has the authority to
set up a subsistence system giving preference to the Natives which
satisfies the U.S. Constitution and is 'tied nationally to the
fulfillment of Congress's unique obligation toward the Indian.'
Particularly, there can be no doubt, when this authority is
combined with the plenary power Congress also has under the
property clause to regulate the use of the renewable resources of
the public lands in Alaska.
"From the outset, Alaska Natives insisted on the inclusion of three
primary objectives in an Alaska Native Claims Settlement Act:
land, subsistence, and compensation. The Natives of Alaska never
agreed to give up their subsistence lifestyle in return for
settlement of their land claims. The title to lands due the Alaska
Natives under the terms of ANCSA is being processed. The ANCSA
compensation has been paid. Subsistence is the unfinished chapter.
We are seeking the fulfillment of the promise set forth in the
ANCSA Conference Committee Report and reaffirmed in Title VIII of
ANILCA.
"Mr. Chairman, I would like to touch on some points, but I will
omit, for the purposes of time, the citations, but I would ask your
permission to provide a copy of this later with a complete
citation.
Point 1. Subsistence could be limited to Alaska Natives
exclusively. However, the Natives agreed in their lobbying to
settle for the language of rural Alaskans.
Point 2. The federal government could assume exclusive
jurisdiction over regulation of subsistence uses on public lands.
This ties in with Kleppe case.
Point 3. The Act established a legislative preference for
subsistence use. The subsistence title established a legislative
preference for subsistence use in the state. This section requires
both the state and the federal government to accord non-wasteful
subsistence uses by rural residents a preference over the taking of
such resources for other purposes on the public lands under certain
circumstances.
Point 4. The preferential right to subsistence use is limited to
rural Alaska residents. The definition of "subsistence uses" is
intended to include all Alaska residents who utilize renewable
resources for direct personal or family consumption.
Point 5. The term "local rural residents" refers to traditional
use, not residents in the area. The term "local" is intended to
include those rural residents that have traditionally and
customarily hunted in the area, and it is not limited to the
residents of the area.
Point 6. The statute guarantees the right to use the resources
wherever they are located. The committee intends that access to
fish and wildlife populations shall be provided to rural residents
engaged in subsistence uses regardless of where such population may
be located in the future, except that the section does not
authorize subsistence uses of wildlife in national parks and
monuments which were permanently closed to such uses on January 1,
1978.
Point 7. The federal government made a considered choice to permit
state, rather than federal regulation.
Point 8. It should be stressed that section 704 (confirming the
role of the state to regulate subsistence uses) represents an
unprecedented statutory expression by Congress regarding a state's
authority to regulate the taking of fish and wildlife on public
lands.
Point 9. There were advantages to state regulation. The committee
believes that state regulation has a number of advantages. One of
the most important of these is that it allows for a decentralized
administrative structure which can respond more effectively than
could a federal structure to the differing forms that subsistence
uses take in different parts of Alaska.
Point 10. There is no state role in subsistence use of plants.
Point 11. The Secretary of the Interior is required to play an
active role. Ultimate responsibility for administering entry and
use of the public lands necessarily rests with the federal
government; therefore, the committee, which expects the Secretary
to respond more vigorously to the 1971 admonition of the Alaska
Native Claims Settlement Act Conference Committee than has been the
case to date, has gone further in stressing throughout the bill the
federal duty of protecting the viability of subsistence resources
and continuing the opportunity for subsistence uses on public lands
by local residents, including such uses within conservation system
units, which were allowed as of the date of enactment.
Point 12. The technology used for subsistence may change. This
recognizes that we are in 1998, and we are still talking about
protection of, continuation of the subsistence lifestyle, and that
a part of that necessarily recognizes that there will be certain
improvements in technology, and that the Natives are not to be
frozen in time to the way things were done at an earlier time.
They are seeking to protect and to perpetuate the lifestyle that
has always been theirs.
Point 13. The pace of change from subsistence economy to cash
economy was to be determined by the Native Alaskans. This
legislation recognizes the long-standing and historic use of the
Alaska Native people of large areas of land around their historic
villages for hunting, trapping, fishing, berry gathering, and other
subsistence uses and purposes. This Act is not, however,
predicated on the philosophy that the historic way of life of the
Native people of Alaska can, or will, or should be perpetuated into
the future for all time by the actions taken by this Congress;
western "civilization" came to Alaska and to virtually all of the
Native people many years ago. But what this Congress is stressing
and what Title VIII in large part is, is a tool by which the Native
people will have the right and the opportunity to determine what
that pace of change will be."
CHAIRMAN HALFORD thanked Mr. Borbridge for his presentation and
then invited Gabe Sam and Mike Walleri, representing the Tanana
Chiefs Conference, to the table to testify.
Number 542
GABE SAM, Director of Wildlife, Tanana Chiefs Conference (TCC),
said he has testified many times that under ANILCA subsistence
would be for a rural preference. Senator Taylor asked him if he
could find that preference in ANILCA, and, to his surprise, he was
unable to find it, however, he believes it was the intent of
ANILCA.
MR. SAM said TCC is still in support of the proclamation that was
passed last year on its guiding principles. One of the principles
is to not amend ANILCA, only if it was to make it stronger.
He noted a poll conducted by Dittman found that 87 percent of the
people of Alaska want to vote on subsistence. That figure has now
gone up to 92 percent. TCC supports the right of the people to
vote because they believe that the people of the state of Alaska
are educated enough to understand the issue, and that they will
vote to keep Alaska as unique as it is. What makes Alaska unique
is the Native people that live in it.
TAPE 98-46, SIDE B
MR. SAM said when growing up, he learned from his elders his
people's way of life, their traditions, their beliefs. People
that live in the villages truly live a subsistence lifestyle, which
is very different than the lifestyle of people who live in urban
Alaska. People in the villages don't consider hunting and fishing
as sports activities; they hunt and fish to put food on the table
for their families.
MR. SAM said the number of hunters in Alaska is growing every year.
For example, on the Koyukuk River, it was growing at the rate of
100 hunters per year. Alaska is growing, but the resource is not
growing, and he does not believe it can sustain much more hunter
pressure than it already has.
In closing, MR. SAM stated TCC has some concerns with the proposed
legislation before the committee.
SENATOR WARD asked if TCC supports the Governor's bill.
MIKE WALLERI, Legal Counsel, Tanana Chiefs Conference, replied that
TCC has historically taken the position, beginning prior to ANILCA,
that it favored a Native preference, and it has continued to
express support for the passage of laws which would implement the
promises of the Alaska Native Land Claims to protect Native
subsistence. Recognizing the various compromises that they've had
to address, TCC has historically interfaced with the state and the
federal government to explore various options.
MR. WALLERI said there are a lot of ways to address the need to
protect Native subsistence rights and the Governor's proposal is
one such way of addressing those needs. However, TCC has three
concerns with the proposal: (1) they think that the constitutional
amendment should be "shall;" (2) they believe that it should
provide for a rural preference; and (3) they share some of the
concerns that AFN outlined in terms of whether or not it will
specifically address the concerns of an equal protection override.
An additional concern is that the 1997 amendments to ANILCA also
provide that there be a statutory provision adopted by the
Legislature in order to bring the state into compliance, and TCC
thinks the body should seriously consider that need.
MR. WALLERI stated that, fundamentally, TCC's position is that
despite the fact that they've long held a position of supporting
Native preference, they do believe that the people of the state of
Alaska should have the right to vote on this and the Legislature
should allow that vote.
MR. WALLERI noted a lot of concern had been expressed about human
rights. He said there is nothing in the U.S. Constitution or the
Alaska Constitution which says that subsistence is a basic
fundamental human right. That language primarily comes from the
United Nation's covenant on political, social and economic rights,
and it has a long history which talks about the cultural basis of
the right of subsistence, that it is culturally defined, and that
is what people are talking about when they are talking about basic
human rights. He said for most of the people in the state,
including himself, our traditions and cultures do not define the
hunting and fishing in the way that Alaska Natives practice
subsistence. It is unique, it is treasured, and it has a
substantial sacred capacity to it.
CHAIRMAN HALFORD asked if subsistence is a fundamental human right
for Alaska Natives, is it a fundamental human right for urban
Alaska Natives.
MR. WALLERI answered that the position of Tanana Chiefs has always
been to protect Native subsistence rights. It wasn't TCC that
proposed the rural solution. It was something that they basically
sought to protect. He said we are talking about a people who have
a culture, a lifestyle, a tie to this land which has gone on long
before any of us got here, and, as Senator Ward and Senator Leman
have pointed out, those things are something that we need to
protect in order to preserve our identity as Alaska and Alaska
people.
SENATOR TAYLOR said to summarize it, TCC doesn't support certain
provisions within the bill, they would like to have those
provisions amended, but they do want people to be able to vote on
something that they don't support.
MR. WALLERI responded that life is compromise.
SENATOR TAYLOR said he believes that, as drafted, the amendment
currently before the committee will fail when brought up against
the equal protection clause of the 14th Amendment of the U.S.
Constitution. Last October he asked that question of Charlie Cole,
Julian Mason and the rest of the group that put together the
proposed language. They promised to get back to him, but they have
never bothered to respond. He said he agrees with TCC that if this
amendment is going to be submitted to the voters, it has to be
submitted with significant additional modifiers within it; however,
even then it may fail.
MR. WALLERI responded that he thought Senator Taylor misunderstood
his position. He said what we are talking about is the Alaska
Constitutional provision, and, as Mr. Cohen outlined, we need a
legislative record that basically tells the courts what the
Legislature is trying to do, which can be done in a number of
different ways.
Number 408
SENATOR TAYLOR commented that he doesn't know that the language can
be drafted sufficiently tight so as to accomplish the type of
Native rural preference that they want. He pointed out that
earlier in the hearing he had asked Charlie Cole why the Governor's
Task Force had failed to insert "Native preference only."
MR. WALLERI said he thought it was a political decision made
because there was a strong feeling within the state that has been
articulated over and over again that the Native preference is a
racial preference. However, as Mr. Borbridge explained, the
Indian people have a unique status under the U.S. Constitution; it
is not a racial status, it is a political status.
SENATOR TAYLOR asked Mr. Walleri if he thought it was possible to
redraft the language so that it doesn't violate the equal
protection clause.
MR. WALLERI replied that it is possible, and probably the way to do
that is to simply say something along the lines of "the state
constitution would recognize Native fishing rights that may be
created by Congress." He said that would solve the problem, and
then it would be up to Congress as to whether or not it would
recognize Native hunting and fishing rights. He added that there
is a lot of case law which would basically support that position.
In that regard, there is no question that TCC would support that
and find it much more desirable than what was presently before the
committee.
CHAIRMAN HALFORD thanked Mr. Sam and Mr. Walleri for appearing on
behalf of the Tanana Chiefs Conference, and he then invited Bob
Penney to the table to make his presentation.
Number 282
BOB PENNEY, Co-chairman, Alaskans Together, said four former
governors want to do the same thing their organization wants to do,
which is vote on a constitutional amendment that would keep the
management of fish and game in Alaska by Alaskans, and they
encourage the Legislature to allow that vote. He noted they have
been running such ads in the newspapers and on TV and radio across
the whole state.
Responding to a question from Chairman Halford, MR. PENNEY
explained that Alaskans Together is a group of about 28 people from
across the state formed last year that is comprised of a cross-
section of Native and urban people.
MR. PENNEY said he doesn't think people realize the far-reaching
effect a federal takeover will have. Economically, it will affect
every single business in the state in a negative manner. He said
Alaska will be back like it was before statehood. He questioned
why Alaska got statehood if it wasn't to control its destiny.
MR. PENNEY said what bothers him the most is this aversion to
having a rural preference, because since before statehood, since
statehood, and since statutes in 1978, today the state of Alaska,
by law and by regulation, manages for preference for subsistence
fishing in rural Alaska.
CHAIRMAN HALFORD interjected that it is a subsistence priority, but
it is not a rural priority; it is a court ruling that came down by
the Supreme Court.
MR. PENNEY said it is still living off the land, so he doesn't
understand what the difference is, because, in all practically, a
state statute and state regulations are going to be turned into a
constitutional amendment that is basically going to do the same
thing, which is to provide a rural priority. He said he would like
to have someone clarify to him how it is going to any different
than it is today.
MR. PENNEY said the reason he has been working so hard on this
issue is because he wants the opportunity for his children and his
grandchildren to enjoy the same kind of life and lifestyle as he
has within the state of Alaska.
MR. PENNEY urged that a constitutional amendment be passed by the
Legislature so that the people can vote on the issue and to keep
the feds out of the state's management of fish and game.
SENATOR LINCOLN noted that Mr. Rosier and Mr. Kellyhouse testified
that the people of Alaska really don't understand the issue enough
to vote on it, and she asked Mr. Penney if he thought the people of
Alaska really don't understand the issue and are not educated
enough to vote on it.
MR. PENNEY replied that he thinks the people want to see the issue
go away. He said before his group started their ads or did
anything it was clear nobody that he knows wanted to see the feds
come back. He believes the people want to vote on a constitutional
amendment that will keep the feds out.
SENATOR LINCOLN also asked if Alaskans Together believes that there
also needs to be a statutory fix, as well as a constitutional
amendment, in order to be in compliance.
MR. PENNEY acknowledged that it correct. He added that he has been
told by both Senator Stevens and Attorney General Botelho that it
will take both the constitutional amendment and a statutory fix.
Personally, he doesn't see why the Legislature can't just do the
constitutional amendment now, see how it flies, and then deal with
a statutory change at a later date.
Number 051
SENATOR WILKEN commented that he took great exception to a recent
misplaced, ill-advised ad placed in newspapers by Alaskans Together
and that he had expressed his displeasure in a letter to that
group. He noted that he would be meeting with Mr. Penney the
following day to discuss the composition of his group, as well as
the financial backing.
SENATOR WARD asked Mr. Penney if he could provide that information
to the committee right now.
MR. PENNEY responded that he didn't have the financial information
with him, but he would be providing that information, as well as
the membership of the organization, in writing, the following day.
TAPE 98-47, SIDE A
Number 020
SENATOR WARD pointed out that the Legislature now has an
opportunity to change it to where everybody will share in a
subsistence lifestyle equally in this state, and he asked Mr.
Penney if he was opposed to that option.
MR. PENNEY replied that he wasn't prepared to address that because
he doesn't know what the impact would be on the resource.
SENATOR WARD commented that he would imagine it would have an
impact upon those who catch fish for the purpose of selling them.
Number 120
CHAIRMAN HALFORD thanked Mr. Penney for appearing before the
committee and then invited Theo Matthews to make his presentation.
THEO MATTHEWS, President, United Fishermen of Alaska (UFA) and
chair of its subsistence committee, said during the 1990 special
session on subsistence, UFA testified in opposition to a
constitutional amendment at that time, stating that it was part of
the problem, that it would not solve the problem without a package
solution. UFA has always been active and tried to be an honest and
fair partner in this debate since the eighties. They've maintained
contacts with Native groups, recreational hunting groups, and sport
fishing groups. They've never had a hidden agenda; they often
argued that the real issue is how do Alaskans learn to live into
the future with this policy that essentially was adopted by the
federal government that the state has, in large part, adopted in
its own state statutes. Throughout UFA's participation in this
issue, they have stressed that, given there is a state policy that
the Legislature adopted or that the Congress adopted in ANILCA,
someone really needs to look at this and see how to make it work to
the benefit of all Alaskans. He said UFA seems to be the only
group that feels prepared to stress the nature of this preference.
It is not simply the right to subsist and feed the family, it has
evolved into a legal preference.
MR. MATTHEWS said even for those residents of this state who
receive this preference, there is a burden with it. The ideal
world is for good management by this state to allow for
differential bag limits, perhaps larger bag limits, perhaps larger
seasons, but not to require the priority that counts to kick in,
the one that requires the automatic elimination of all other uses
to maintain existing subsistence uses. What is often overlooked
and what UFA feels is the heart of matter is that those uses that
are eliminated are your own, even if you have the preference. For
example, if an individual has created a lodge on a river in Bristol
Bay or on the Kuskokwim or Yukon, he can't bring in his clients
anymore if his subsistence preference kicks in for him. When that
subsistence priority over other uses kicks in, a large part of that
individual's social and economic lifestyle is in peril. UFA has
always recognized that this burden is there under state or federal
law.
UFA has consistently refused to accept just a constitutional
amendment, because it is their opinion that the federal government
does not have the incentive to do the good management job that the
Department of Fish and Game does.
UFA testified before the Governor's Subsistence Task Force on
September 12,1997, and their comments are just as valid today as
they were then. UFA's position is that equality is being
represented. He said we have a state subsistence law that is
identical to the federal ANILCA. The major exception is that the
state's law says all Alaskans will have this preference to
accommodate our constitution in essentially rural areas outside of
non-subsistence areas. The federal law mandates that only rural
residents will be afforded that preference. However, he said the
state has the same law that requires the same criteria as federal
law. The Legislature wrote a good law, a law that the boards could
understand how to enforce, and it gave them some good definitions.
On one hand, there is a federal law that is terribly written and
has no definitions or guidance, but it has a rural preference. So
in terms of equality and what really happens in terms of
management, the fact is a rural preference will give more
management options because there will be fewer people to
accommodate with the preference. All other aspects of the state
law are identical to what's required by ANILCA.
MR. MATTHEWS said UFA suggests using the current 1992 statute as
the basis for any provisions because it has worked and it has
guidance to various people. They also suggest keeping the non-
subsistence area concept because it is not necessary to delete that
concept to accommodate a rural preference. They think it gives
more guidance and makes it clearer where the Legislature intends
this preference to be. It is also suggested to add the word
"rural" or some synonym or some definition of "rural" to the
existing state statutes. It is further suggested to insert the
important definitions that they think are vital in ANILCA securely
into the law such as "customary and traditional," "customary
trade," "reasonable opportunity," "stock," etc. UFA also
recommends not attempting to define the words "sustained yields"
because the Board of Fish and Board of Game need the flexibility to
deal with stock sizes on a stock-by-stock basis.
MR. MATTHEWS said, in commenting to the Governor's Task Force on
regional councils, UFA felt that it went way beyond the
requirements of ANILCA in terms of what kind of deference was
required.
In his final comments on the constitutional amendment, MR. MATTHEWS
said UFA agrees, in a sense, with the comments of the AFN lawyer
and the Tanana Chief's lawyer. The current language, which talks
about place of residence, is not specific enough to tell the
public, in terms of policy, what it really means. UFA has always
felt that the best thing was to use the definition of "rural" that
the Legislature has already adopted.
Number 355
SENATOR TAYLOR said the package before the committee becomes kind
of a take it or leave it deal. He questioned if somebody has a
commitment that the Secretary of the Interior has bought off on
this thing in the way it is worded.
MR. MATTHEWS responded that the Legislature has already defined
most of these things, they are just not in the statute. His
suggestion was to put the definitions into the statute, not
necessarily to change past definitions. He said if it is a take it
or leave it situation, UFA would support the task force package
because it accomplishes all the major goals they have set. It
primarily requires the ANILCA definitions so the courts can't run
amuck.
SENATOR TAYLOR asked if UFA understands that the False Pass fishery
will go down if this legislation passes.
MR. MATTHEWS stated he didn't agree with that conclusion. That
fishery in question at False Pass does not spawn on federal lands
in any event, so the feds won't have anything to say about it.
SENATOR ADAMS inquired as to the total number of commercial
fishermen in the state and how many of them are represented by UFA.
MR. MATTHEWS related, in terms of salmon fishermen, there are
13,000 permits and, of those, approximately 74 percent are state
residents. There are 20 groups from Ketchikan through Area M that
are current board members of UFA. He represents the United Cook
Inlet Drift Association, and there approximately 600 permits in the
Inlet with about 300 of them as members. There are also several
groups of halibut fishermen, long line fishermen, and crab
fishermen in UFA. He added that UFA knows that this is a complex
issue and that they do not speak for every fishermen in the state
of Alaska, commercial or otherwise. They've always tried to look
at it as an issue that has to be resolved in the interest of all
users, recognizing this priority for the legal problem that it is.
Number 430
DICK BISHOP, Vice President, Alaska Outdoor Council, said he was
sorry to hear the proclamation in earlier testimony that
subsistence is a basic human right that doesn't apply to all of us.
He said with regard to Mr. Cole's analysis of federal authority, he
gave a very good advocacy statement, but he suggested getting a
second opinion, particularly on the questions relating to the
property clause of the federal law, because it seems apparent to
him that fish and game are not federal property.
MR. BISHOP said the comment made that the state of Alaska advocated
a rural priority in ANILCA is absolutely not true. He was there
when the deal was made on that, and the deal with made as an
ultimatum from the Alaska Federation of Natives by their general
counsel. Also, the statement was made that ANILCA was an
unprecedented comprise in allowing state management of federal
lands, but that is not what ANILCA does. It has nothing to do with
the management of federal lands; that authority is retained by the
federal government and it will be there regardless of what becomes
of the subsistence priority. They have the authority to manage
those federal lands and the federal properties, if, in fact,
Congress has given them that authority. He added that is
questionable because even Judge Holland, with regard to fish and
game, couldn't find that Congress had given the federal government
that authority.
MR. BISHOP said the Legislature is being challenged again to adopt
a law that will guarantee the perpetuation of a culture. He
cautioned not to accept that responsibility for guaranteeing the
survival of a culture because there isn't any law that can be
passed that can do that. He said that's very much dependent on the
values of the people that live that culture, and, if those values
change, that culture will not survive and the Legislature will be
the scapegoat.
MR. BISHOP referenced various distinguished people who have
participated in the hearing and have in various ways over the years
and in various capacities, official or otherwise, advocated,
implemented, and defended the principles of fairness and equal
protection under the Constitution of the State of Alaska and of the
United States for all Alaskans. The paradox he sees is that among
these champions of equal protection, some of them are demanding
that Alaskan civil rights, the equal standing before the law
regarding the opportunity to fish, hunt and trap, be cast aside in
favor of a zip code priority that the Alaska Supreme Court has
condemned as being an extremely crude tool that unfairly restricts
non-rural people's opportunities.
MR. BISHOP said this debate is simply about a couple of things.
One is a political strategy to accomplish a couple of objectives:
rescue the Governor's campaign promise to get a rural priority; and
to save Senator Stevens any further political embarrassment on the
issue. The second is money. The Alaskans Together Campaign is
spawned in the Anchorage Chamber of Commerce with the apparent idea
of insuring continued lucrative commerce with rural consumers and
regional Native corporations. He concluded there is nothing wrong
with that as long as the price is not the equal access protection
of the majority of Alaskans. He said there simply is no longer any
question that cash from diverse sources drives rural, as well as
urban economies, nor is there any question that the matter of rural
urban commerce has occupied the Anchorage Chamber of Commerce for
many months.
MR. BISHOP said the Legislature is being asked to let the people
vote on a constitutional amendment providing for a subsistence
priority. He said it should come as no surprise that although many
people apparently are saying they would like to vote on the matter,
very few know what that vote entails. They are being told that a
vote on a constitutional amendment will keep the feds out, but it
is perfectly obvious that's not true. Assuming that a rural
residency amendment passed and the state conformed to federal law,
the state would be bound to (1) a zip code priority as approved by
federal judges; (2) a priority for subsistence on renewable
resources, not just fish and game; (3) a rural/tribal biased
regional subsistence council system; (4) regulations that reflect
customary and traditional uses, slightly modified by reasonable
opportunity, which has been interpreted in federal court as
whatever was done in the past even if that means no closed season
and no bag limit if that would constrain customary and traditional
uses; (5) sale of commercial harvest limited by the state boards as
approved by federal judges; (6) federal court enforcement; (7) the
end of Alaska's constitutional protection of equal rights and
common use regarding fish and game uses; and (7) no legal basis for
future arguments about state versus federal laws regarding equal
protection, common use, or the state's rights to manage fish and
game.
MR. BISHOP stated that with the ANILCA amendments obtained by
Senator Stevens, the federal power grab is more intrusive than
under the original ANILCA because the Secretary's authority is
expanded and the Katie John decision is taken as undisputed in the
findings of those amendments, and the state, having embraced
ANILCA, can no longer challenge the unwarranted federal usurpation
of the state's rights.
MR. BISHOP further stated it is the Alaska Outdoor Council's view
that the right thing for the Legislature to do is to clearly
provide for the accommodation of subsistence uses for food within
the bounds of the existing constitution and to challenge
Washington, D.C. collectively to honor the terms of Alaska's
Constitution, which years ago they approved, instead of playing
favorites among Alaskans and patronizing the claims for special
privileges in law that are sought by some. He said the Legislature
has no obligation to put a lousy law on the ballot.
TAPE 98-47, SIDE B
Number 592
SENATOR LINCOLN said Mr. Bishop had stated that it was not the
legislators' responsibility, as lawmakers, for the perpetuation of
a culture. She said that bothers her a bit because she thinks, as
lawmakers, we should not also be a party to the demise of a
culture. It has been testified over and over how critical
subsistence is to the culture, to the lifestyle, and that this
legislation is critical to that culture. She said she does view
that as part of her responsibility for Alaskans.
MR. BISHOP clarified that what he was addressing was a considerable
doubt that any government body can pass a law that will guarantee
or ensure the perpetuation or survival of a culture. He said he
thinks it is equally incumbent upon any government body to insure
that the laws that they create or enforce are not detrimental to
cultures. In other words, there should not be cultural
discrimination through statutes, that the laws passed should make
sure that there is every opportunity for all cultures to survive
and prosper in a very tolerant atmosphere. But he thinks to take
on the additional responsibility of saying that you will guarantee
their survival is hopelessly unrealistic because the survival of
any culture depends solely upon the values which the people of that
culture place upon it. He added that it is his personal opinion
that there are numerous factors in Alaska today that have a much
greater effect on the survival of Alaska Native cultures than
whether there is a subsistence priority law.
Number 549
SENATOR ADAMS asked Mr. Bishop the Outdoor Council's solution to
the potential problem of dual management in Alaska without a vote
of a constitutional amendment.
MR. BISHOP responded the solution the Outdoor Council has favored
and advocated in the past is that first of all they don't think
there needs to be a priority in order to provide for subsistence
uses. It has been done in the past through conventional
regulations of various kinds. But if the political will is that
there be a priority, then he thinks it should be done consistent
with the Alaska State Constitution and the decision of the Supreme
Court that elaborated on that. He said there is absolutely no
question, having gone through this drill on Governor Hickel's
Subsistence Advisory Council, that it can be done within the bounds
of the existing constitution and that subsistence uses can be
adequately provided for without a constitutional amendment.
SENATOR ADAMS noted the Legislative Council has filed a lawsuit in
hopes that there won't be dual management, and he asked Mr. Bishop
if his group would gamble on that particular lawsuit.
MR. BISHOP answered that the Outdoor Council has filed as an
intervener in that lawsuit, and the principle reason being is
because they feel one of the major factors driving this lack of
resolution is the lack of clarity about the interpretation of
federal law. He thinks it is absolutely essential that there be
a serious effort made to determine what the reality of federal law
is in relation to the state's authorities and responsibilities.
Unless and until that is cleared up, there is always going to be
uncertainty, but that does not necessarily deny, though, reaching
a political compromise if that compromise was fair and just to all
Alaskans.
Number 520
SENATOR HOFFMAN said he didn't think anybody was saying that the
reason that we're voting for a rural priority is to perpetuate any
culture, and he thinks that if anybody uses that as an excuse for
not voting for this they are highly mistaken. He said what we are
saying is that there is a lifestyle that is unique to Alaska, and
as several people testified, they came to Alaska and moved out to
rural Alaska and lived a subsistence lifestyle. In order for that
to happen, we have had to address the rural preference in order to
give them, in times of shortage, the means to survive. He also
pointed out that when there are over 90 percent of the people
saying that they want to vote on something, then he thinks they've
done their research and are highly educated on the issue because it
has been around for so many years.
MR. BISHOP disagreed, saying that his comment that the subsistence
priority is available in times of shortage is one of the most
persistent myths about the mandate of the federal law that exists
today. He said it reflects the pervasiveness of the errors that
have been perpetuated on the Alaskan people via the legislators or
otherwise. He said most of the Alaskan people don't have a clue
about the what the baggage is that comes with the federal rural
priority and the state obligating itself to administer that law.
Number 480
CHAIRMAN HALFORD thanked Mr. Bishop for appearing before the
committee and then invited Peter Page to the table to make his
presentation.
PETER PAGE, representing the Stikine Sportsmen's Association, noted
the majority of its members live in the Wrangell area, and he
thinks it is important to express their views on the issues before
the Legislature, in part, because Wrangell, by definition, is rural
and the members of the organization who live there would receive
the benefits of a rural preference to the extent that benefits
attach to it. Their position is that they believe that the
subsistence gathering of resources is and always should be a part
of the Alaskan lifestyle and they would deny it to no one. They
feel that the rural preference does not work fairly, is flawed in
its application, and should not be the criteria and before the
people of Alaska.
MR. PAGE stated the Association objects to the constitutional
amendment before the Legislature because it has the effect of under
cutting the equal protection provisions that are found in four
different places in the Alaska Constitution. He said we should
remember that the constitutional provisions that are in the
constitution were crafted during a period of time when equal
protection was for many Americans, including Alaska Native
Americans, nothing more than a prayer of hope on their list. Since
then, it has become a cornerstone of our constitutional provision
that governs all of us. He thinks it is something that should not
be lightly tampered with, and to suggest that we can vote on it and
come up with a change is true, but as earlier stated, the
Association would be most reluctant to submit to a vote of the
populace on a change that might deprive us of the other fundamental
rights. He observed that, in his view, the provisions for equal
protection, equal rights and responsibilities, are as sacred now as
the day they were ratified and they should not be tampered with.
MR. PAGE said the Wrangell members of the Association recognize the
dangers if the preference should kick in, to their very tenuous
economy where all commercial fishing, all commercial processing,
all commercial entertainment of visitors who want to come there to
fish and hunt would die, and with it, probably the economy of the
City of Wrangell.
MR. PAGE stated the members of the Association believe that the
Legislature can provide adequately for the subsistence rights of
all Alaskans by adjustments of seasons, bag limits, and regional
regulation and that it should do that. Then the Legislature should
turn its efforts towards persuading Congress that ANILCA, as
drafted, is flawed and should be changed.
CHAIRMAN HALFORD thanked Mr. Page for his presentation and then
invited Tom Scarborough to the table to testify.
Number 407
TOM SCARBOROUGH of Fairbanks said as an individual who has been
deeply in the subsistence debate for the past 20 years, it is
inevitable that this day would come again. Those being
discriminated against will be unhappy just as those having their
rights deprived will also be unhappy. The beneficiaries of the
discrimination will also be unhappy because they believe they are
not getting enough, so we are dealing with a lose/lose proposition.
MR. SCARBOROUGH said the U.S. Constitution and its management
system was put together on a basis of equality, which has permitted
this nation to become the most powerful country in the world. This
understanding of equality has permeated all aspects of our society,
except for one facet, and that is how we have dealt with Native
Americans. When the Native issue was attempted to be settled in
Alaska with ANCSA, the Native people of Alaska were to be equal
with everyone else. On top of that, ANCSA extinguished all
aboriginal hunting and fishing rights. Special privileges from the
federal government were put in place by ANILCA for rural residents,
which, he said, was not Indian law. The state of Alaska proceeded
on that same course, using equality, in the state constitution, and
then passed a subsistence law in 1986.
MR. SCARBOROUGH said the request to institutionalize the
discrimination option is before the Legislature once again. He
said he agreed with Senator Taylor that the 14th Amendment of the
U.S. Constitution absolutely prohibits a state from passing a law
or putting something in their constitution which discriminates or
violates the rights of other U.S. citizens. He suggested the only
solution is to take this question to the U.S. Supreme Court and
determine where the sovereign powers start and stop. He said the
Legislature, collectively, has already put this question before the
Court, and he urged continuation of that effort, as well as
requesting an injunction to put any further action on hold until a
decision is made by the Supreme Court.
MR. SCARBOROUGH referenced Section 810 of Title VIII, and he said
this section provides that the federal government would have to
determine if any action taken by the state, whether it is paving a
highway, building a road, etc., is going to affect somebody's
subsistence rights. He said this is economic control and this is
what the issue is really all about. What the Legislature is toying
with is turning the total economic future of Alaska over to a
minority of 15 percent, where the urban residents will have no say
in what the outcome is.
Number 288
SENATOR TAYLOR asked Mr. Scarborough if he had any idea why the
Governor wouldn't support the Legislature in it lawsuit, because he
has told the people he really wants to keep the federal government
out of Alaska and he is fighting to prevent a federal takeover of
the state's fish and game management.
MR. SCARBOROUGH replied that he thought it was to his benefit to
maintain the controversy, it may help him get elected.
Number 274
CHAIRMAN HALFORD thanked Mr. Scarborough for appearing before the
committee and then invited Bill Hagar to the table to make his
presentation to the committee.
BILL HAGAR, a 40-year resident of Fairbanks, commented he is very
proud of this state, the Legislature, and the departments, and he
believes everyone has, for quite some time, gone the extra mile to
conform and contribute to the demands of the subsistence issue.
However, he believes that equal protection is at risk, not the
subsistence issue.
MR. HAGAR directed attention to a research document prepared by
himself and four other individuals on the Supreme Court's handling
of the subsistence issue. He said they did the document out of
defense and discovery, and they feel the Administration has not
disclosed and refuses to disclose all of the information available
to the public to consider any kind of vote on any position that is
presently before it. They have discovered there is a national
constitution and a state constitution, and these are the people's
constitutions. The main thing they have discovered is that
administrations, congressional people, and legislative and
administrative people being at a state or a federal level, must act
within constraints of the constitution. He said they do recognize
the existence of opposing pressures and opinions, and have equal
respect for both. He said they feel we all may be searching for a
compromise in lieu of an impasse, and he suggested it is time for
a third party.
MR. HAGAR said he would advocate for the Legislature to take action
on the constitutional amendment by voting it down, calling a time
out, and putting our trust in the highest authority we can seek out
in the land, which he has identified as the Supreme Court as
perhaps an arbitrator or a final solution to this dilemma.
CHAIRMAN HALFORD thanked Mr. Hagar for his testimony and then
invited Lynn Levengood to the table to address the committee.
Number 134
LYNN LEVENGOOD, a Fairbanks resident serving on the executive board
of the Alaska Wildlife Conservation Association, stated he believes
that there is no acceptable substitute for equality, and he firmly
believes that the equal protection clauses of the U.S. Constitution
and Alaska's Constitution are at risk if the proposed
constitutional amendment is pursued.
He said he listened to most of the previous testimony and that he
respectfully disagrees with many of the answers provided by former
Attorney General Cole and the current Attorney General. However,
he thinks there are some common threads in which there is some
unanimity of opinion. First of all this should not be a political
issue, but, unfortunately it has been politicized by the current
Administration, and the reason for this dilemma today is because
the Babbitt suit was dropped for political reasons, causing the
current stalemate.
MR. LEVENGOOD observed that all of the individual rights found in
the federal constitution, as well as equal treatment, equal
protection under the law, and the common use and ownership of all
wildlife resources is guaranteed to each individual Alaskan, past,
present and in the future. The legislative body of Alaska has the
trust responsibility of protecting that right for future Alaskans,
and one of the trust responsibilities is that of impartiality. So
to try to discriminate among Alaskans for the allocations when
there is no shortage, is a violation if its trust responsibilities.
MR. LEVENGOOD said it has been testified that Alaskans just want to
vote on the issue, but just wanting to vote is not enough because
we are a country of individual guaranteed rights; there are certain
rights, individual rights that are not subject to majority rule.
Alaskans have been told they are going to vote to keep out the
federal government, but under the legislation before the
Legislature, the federal government is not going to be kept out.
Alaskans are not being told that the vote they are going to be
given is a vote to take away the rights of other Alaskans.
TAPE 98-48, SIDE A
Number 001
MR. LEVENGOOD believes that Alaskans are united in that they want
final resolution, and that final resolution is required and will be
required before all Alaska's people can be united under law as one
people. He urged that no solution be attempted if it violates any
of these principles.
Addressing the Stevens' amendments to ANILCA, MR. LEVENGOOD said
they would give up our sovereign ability to challenge this package
of legislation, which he believes would be a grave mistake. The
legislation before the committee does not provide finality, and he
suggested to get finality is to seek final resolution on the merits
with the U.S. Supreme Court. He agrees with previous speakers that
the constitutional amendment and the statutory legislation should
be voted down by the Legislature, and then to ask that the
Administration join the Legislature in seeking an injunction to
provide a time out to allow for judicial finality. Considering the
state sovereignty issues are at issue and the difference of opinion
between the legal conflict of laws issue, he believes a federal
court would provide such a moratorium to allow legal finality.
When such a time out is provided, Alaska should then assert its
10th and 11th amendment rights in a direct action lawsuit taking
the issue directly to the U.S. Supreme Court. With such a suit,
the Supreme Court is obligated to take the case and finality would
occur within one Supreme Court cycle.
In closing remarks, MR. LEVENGOOD said he believes a preference can
be crafted broadly defining "subsistence" as "the reliance on
Alaska's wildlife resources for basic sustenance." If subsistence
is defined that way and provides a preference in times of shortage,
then Alaska state law would protect rural residents who relied upon
wildlife resources for their basic sustenance, as well as other
residents who relied upon wildlife resources for their sustenance.
State law would protect the class of people that federal law
protects, and the state would be in compliance with ANILCA without
changing the state constitution.
CHAIRMAN HALFORD thanked Mr. Levengood for his testimony and then
invited Mary Bishop to the table to make her presentation to the
committee.
MARY BISHOP of Fairbanks, representing the Golden North Archery
Association and the Interior Alaska Air Boat Association, stated
she thinks the basic assumptions made by Mr. Cole and Mr. Penney
are wrong. The first assumption was that the most important thing
is to get back fish and game management, and the second is that we
cannot change ANILCA. She agrees it is important to get back fish
and game management, but it is not the most important thing. The
most important thing is a resolution of this issue that won't tear
apart the people of Alaska. A zip code priority tears apart the
people of this state.
The second assumption is that ANILCA cannot be changed, but Senator
Stevens changed it almost overnight with his amendments. Senator
Murkowski has said the Legislature has the opportunity to provide
him with recommendations on amendments to ANILCA, and his intention
is to conduct hearings on those recommendations and to legislate
any additional changes to ANILCA.
Also, Mr. Penney and others have indicated that if the state were
to comply with federal law, the results would be innocuous. She
referenced the Bobby case as an example of complying with federal
law, which she said is the kind of innocuous thing we are working
toward if we accept a rural priority with customary and traditional
use as the basic formula that has to be met.
MS. BISHOP stated that if the Governor and the state's
congressional delegation really want state management, then they
should agree to make efforts to substantially amend ANILCA so that
we have a result that won't tear apart the people of this state.
Number 415
There being no further witnesses to appear before the committee,
Chairman Halford closed the public hearing portion of the meeting.
CHAIRMAN HALFORD stated SJR 101 - CONST AM:SUBSIST. PREF.BASED ON
RESIDENCE was before the committee for its consideration.
SENATOR LINCOLN offered and moved adoption of Amendment No. 1. She
explained the amendment deletes the language in Section 19 and
replaces it with language from SJR 2, which contains the five
criteria for subsistence eligibility.
In discussion on the amendment, SENATOR TAYLOR expressed his fear
that in expanding the list, it also expands the opportunities for
challenge to this list on the equal protection clause of both the
U.S. Constitution and the Alaska Constitution because they probably
all lack sufficient definition.
SENATOR TORGERSON objected to the adoption of Amendment No. 1. A
roll call vote was taken with the following result: Senator
Lincoln voted "Yea" and Senators Green, Leman, Sharp, Taylor,
Torgerson and Halford voted "Nay." CHAIRMAN HALFORD stated
Amendment No. l failed on a 1-6 vote.
SENATOR LINCOLN offered and moved adoption of Amendment No. 2,
which on line 7 deletes the word "may" and inserts "shall" in its
place.
SENATOR GREEN objected to the adoption of Amendment No. 2. A roll
call vote was taken with the following result: Senator Lincoln
voted "Yea" and Senators Leman, Sharp, Taylor, Torgerson, Green and
Halford voted "Nay." CHAIRMAN HALFORD stated Amendment No. 2
failed on a 1-6 vote.
SENATOR LINCOLN offered and moved adoption of Amendment No. 3,
which on line 9 deletes "place of residence" and inserts "rural
preference" in its place. She explained this change will make it
clear to the general public what they are voting on, especially
since it is in conjunction with a statutory change that speaks to
the preference being a rural preference.
SENATOR TORGERSON objected to the adoption of Amendment No. 3. A
roll call vote was taken with the following result: Senator
Lincoln voted "Yea" and Senators Sharp, Taylor, Torgerson, Green,
Leman and Halford voted "Nay." CHAIRMAN HALFORD stated Amendment
No. 2 failed on a 1-6 vote.
There being no further amendments, CHAIRMAN HALFORD requested a
motion on SJR 101.
SENATOR TORGERSON moved SJR 101 pass out of committee with
individual recommendations. SENATOR LEMAN objected for the purpose
of stating that he believes there are some amendments that can be
made to the resolution to narrow the scope and that he would like
to offer them to the body when the legislation is on the Senate
floor. He then removed his objection. There being no further
objection, CHAIRMAN HALFORD stated SJR 101 moved from committee
with individual recommendations.
CHAIRMAN HALFORD brought SB 1002 - EXTEND CURRENT SUBSISTENCE LAW
before the committee. He explained the legislation was introduced
by the Senate Rules Committee at the request of the Senate
President, and it simply extended the sunset date on the 1992 law
for one year. He directed attention to a Resources CS which
repeals that sunset provision so that 1992 law would go on. He
said when it was passed originally, it was thought it needed
another review, but just continuously extending the sunset date one
year at a time doesn't seem to make a lot of sense.
SENATOR GREEN moved the adoption of CSSB 1002(RES). SENATOR
LINCOLN objected, stating she wasn't sure what was being repealed.
CHAIRMAN HALFORD explained the section in the session law contains
a repealer which was being amended from 1998 to 1999, and instead
of extending that by one year, the committee substitute is
repealing the repealer, which, in effect, makes it permanent law,
but it is not changing the existing law. He stated he would make
sure that a side-by-side analysis of the session law and the
committee substitute is included in the members' packets when the
legislation goes to the Senate floor.
A roll call vote was taken on Senator Green's motion to adopt the
Resources CS with the following result: Senators Taylor,
Torgerson, Sharp, Leman, Green and Halford voted "Yea" and Senator
Lincoln voted "Nay." CHAIRMAN HALFORD stated the motion to adopt
CSSB 1002(RES) carried on a 6-1 vote.
SENATOR LEMAN moved CSSB 1002(RES) be passed out of committee with
individual recommendations. SENATOR LINCOLN objected. The roll
was taken with the following result: Senators Torgerson, Taylor,
Sharp, Leman, Green and Halford voted "Yea" and Senator Lincoln
voted "Nay." CHAIRMAN HALFORD stated the motion to move CSSB
1002(RES) carried on a 6-1 vote.
There being no further business to come before the committee, the
meeting adjourned at 1:10 a.m., Wednesday, May 27.
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