Legislature(2003 - 2004)
03/01/2004 03:30 PM Senate RES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 318-CONSUMPTIVE USE OF FISH AND GAME
CHAIR SCOTT OGAN announced SB 318 to be up for consideration.
MR. BRIAN HOVE, staff to Senator Ralph Seekins, sponsor of SB
318, said:
Article VIII, Section 3, of the Alaska Constitution
provides that, 'Whenever occurring in their natural
states, fish, wildlife and waters are reserved for the
people for common use.'
Article VIII, Section 4, of the Alaska Constitution
provides that, 'Fish, forests, wildlife, grasslands
and all other replenishable resources belonging to the
state shall be utilized, developed and maintained on
the sustained yield principle, subject to preferences
among beneficial uses.'
The qualifying phrase 'subject to preferences among
beneficial uses' signals recognition by the
constitutional delegates that not all the demands made
upon resources can be satisfied and that prudent
resource management based on modern conservation
principles necessarily involves prioritizing competing
uses.
Alaska's natural resources are public trust assets.
They are held by the state in trust for the benefit of
all its people. In Alaska, the Legislature serves as
the trustee of these assets. As such, it has delegated
some of its trust powers and duties to the Board of
Fish, the Board of Game and the Department of Fish and
Game.
Senate Bill 318 gives direction from the trustees (the
Legislature) to the boards and the department that,
when making decisions regarding the management and/or
allocation of these commonly owned resources, they
should recognize that the consumptive use of wild fish
and game resources by Alaskans to feed themselves and
their families is a very important and fundamental
individual right.
SENATOR THOMAS WAGONER asked how consumptive use is different
than personal use.
MR. HOVE replied that consumptive use means that an individual
needs that use for sustenance.
SENATOR RALPH SEEKINS shouldered the question saying personal
use could be for any of a number of different reasons, but he
intends to focus on use of the resource for sustenance. Feeding
a family should have priority over feeding dogs, for instance.
If there was a competing use between that caribou
being used to entertain a tour bus or to feed
Alaskans, that feeding Alaskans should be first. We
should manage our resources for that level, because of
the collective ownership and, I think, because of the
way the framers said sustained yield, which means to
me, harvest....
CHAIR OGAN commented that a preference for the use of fish and
game is already in statute with the highest preference for
subsistence.
SENATOR KIM ELTON said he was having difficulty with the
definition of consumptive use. Senator Seekins said that the use
of caribou for food for a family should have a higher preference
than a bus-full of tourists viewing them. But, the argument can
be made that a bus-full of tourists viewing caribou feeds the
tourism employee several times over and where would the non-
consumptive uses of wild fish and game resources be then.
SENATOR SEEKINS agreed with him and explained that the more
caribou there are, the more there are to be viewed and hunted,
but he was trying to get to the point of competing uses between
tourism and feeding families. In allocating the resources, it's
important to recognize the right of individual Alaskans for
their sustenance.
SENATOR ELTON followed up with a "fact situation."
The Board of Game allocates resources and also looks
at different management types in different regions of
the state. Would this put the hunting of brown bears
in Pack Creek, for example, south of Juneau - would
that elevate that specific subset of brown bears above
the wildlife viewing opportunities that accrue both to
tourists and to people that live in the region? How
would this change in language... affect the policies
that are presently brought to bear by the [indisc.]
watchful wildlife areas versus harvest areas?
SENATOR SEEKINS said he didn't know anybody who eats brown bear
for sustenance, but in terms of management:
I don't think anybody would suggest in their right
mind you go into the McNeil River bear viewing area
and kill those brown bears to eat and say that that
was a reasonable requirement under the way we're
looking at this. Again, we go back to if people need
the food or dogs need the food, people come first.
SENATOR ELTON politely warned Mr. Regelin that he would be asked
that same question when he gets to the stand.
CHAIR OGAN said it seemed to him that SB 318 states a policy
that consumptive use of wild fish and game by individual Alaskan
residents is one of the high preferences; but by law,
subsistence is the highest preference and he asked Mr. Regelin
if the rest of the uses were implied after that.
MR. WAYNE REGELIN, Deputy Commissioner, Alaska Department of
Fish and Game, answered that the subsistence law says
subsistence has the highest priority - then residents and then
non-residents. AS 16.05.255 is the intensive management law that
allows the Board of Game, if it determines consumptive use is an
important use of a resource, to say that consumptive use is the
highest priority for that wildlife population. He stated:
The Administration and the Department of Fish and Game
strongly support the long-term continuation of hunting
and fishing in Alaska and elsewhere in the United
States. We have a lot of people over in the department
who promote hunting and recreational fishing on a
daily basis. A few years ago, many state legislatures
considered legislation or constitutional amendments
that affirmed that hunting and fishing was an
important and legitimate use of their fish and
wildlife resources. These state legislatures did it in
response to attacks on hunting and fishing and
trapping by various anti-hunting groups.
At that time, the Alaska Legislature considered a
constitutional amendment.... Representative Dyson
introduced that legislation and it didn't make it on
to the ballot as a constitutional amendment. Very few
states, when it was all said and done, did that. Those
that did - I think three or four - were very careful
in how they worded their law, because hunting is a
regulated activity that requires a license in every
state.... Our attorneys have some concerns that if we
say it's a fundamental right, it could have
ramifications on the state's ability to regulate
hunting and fishing activities and even to require a
hunting and fishing license. They also say it could
affect trespass laws. That's because if an activity is
a fundamental right, a state agency must attain a
higher standard in order to regulate that activity. It
doesn't mean they can't regulate it; it changes the
standards. And that makes our lawyers nervous.
Also, if we made this a fundamental right, there is a
great concern that it could have a dramatic impact on
the Board of Fish to make allocation decisions between
commercial fishing and other uses. This language, some
think, would give sport fishing a priority over
commercial fishing. I don't think that's probably the
intent, but there's the concern. Now, I want to say
right up front I'm not a lawyer and proud of it and no
lawyers are here today. There's two experts on this
area of law that work for the Department of Law and
one of them is at the Board of Game meeting in
Fairbanks and the other one isn't available today. I
think he's ill.... They are more than willing to work
with us and the sponsor on this bill....
I would close by saying the administration has
concerns about making hunting and fishing a
fundamental right and thinks the current statutes
already make consumptive use of wildlife and fish a
high priority. But that said, if you would like us to
work with the sponsor and the Department of Law to
prepare language for the committee to consider, we'd
be happy to do that.
SENATOR ELTON asked if he could infer that an Alaskan sport
fisher could have more entry to King salmon, for example, than a
sport fisher from Oregon who flies up to a lodge.
MR. REGELIN replied, "Yes, I believe it would."
SENATOR ELTON said it used to be that two out of every three
sport caught Kings in Southeast Alaska were caught by non
residents and it's pretty much the same now. He asked what a
determination that Alaska sport fishers had a more fundamental
right to access King salmon would do to the economy of the
guided commercial fish fleet in Southeast.
MR. REGELIN replied:
I don't think any of us can answer that question and I
don't think a lawyer would be able to either. I think
that what it would do is open up a lot of things to
challenge that have been basically the way we have
done things for the last 45 - 50 years that we've been
a state - where hunting and fishing is a privilege
that can be regulated and then the Legislature has
authorized the Board of Game and the Board of Fish to
make allocations and you've given a lot of direction
in how to do that. But, it would change that. Now,
whether or not it would say that non-residents
couldn't fish any more, I don't think it would say
that, but it could say that a resident could sue and
say I have a fundamental right to catch more, so they
don't catch any. I'm not sure.... It just opens up a
whole lot of questions that would be very difficult
and time consuming for courts to answer, if people
took it to court.
SENATOR SEEKINS asked if hunting is a privilege or a right.
MR. REGELIN replied:
I don't think there's a definite answer to that. It's
probably in people's opinion. In this state, I think
everybody looks at it as a right, but it's a heavily
regulated right. Many other states say it's a
privilege. You have to have a license to do it. It's
one of those word games.
CHAIR OGAN said that the state issues a license under certain
criteria for driving and that is a privilege. He agreed with the
sentiment that it's a right, but it's regulated as a privilege.
SENATOR SEEKINS opined that even rights can be licensed to a
degree.
It's a fundamental right to vote. That doesn't mean
that I can vote every Tuesday or that I can vote twice
or three times. Fundamental rights are still
restricted within a certain degree. And, I think in
this case, the intent, at least, is that a restriction
on hunting and fishing to be able to feed your family
would be when it's a biological necessity for the
health of the resource to do that. I think that's
basically what our set of licenses does.... Correct me
if I'm wrong, Mr. Regelin, but aren't those management
tools to manage for the health of the resource as much
as they are to try to restrict the taking?
MR. REGELIN replied:
Yes, they are management tools to regulate the harvest
to the appropriate levels and hopefully those wouldn't
change. I think there's a possibility that challenges
in court could change the fundamental way we have to
regulate fish and game populations.... We already have
a priority for subsistence use. It's very clear that
that's our number one priority and we have just
consumptive use as a very high priority. I'm not quite
sure what's broken.
SENATOR SEEKINS asked what he meant by a higher standard.
MR. REGELIN said he would defer that answer to the Department of
Law, because that is where he got the phrase.
SENATOR SEEKINS asked what the standard is now that they are
worried about.
MR. REGELIN replied that the current standard is what has been
adopted over the past 45 years of state history in regulating
fish and game.
CHAIR OGAN attempted to shed some light saying that making
consumption a fundamental right is almost a constitutional
issue. Someone could say they have a fundamental right to hunt
without needing a license.
SENATOR SEEKINS said it seems fundamental that the people who
own the resource should be able to use it to feed their families
against other competing uses. He wouldn't mind having a higher
standard if Alaskan families could harvest their commonly owned
resource for sustenance.
CHAIR OGAN agreed with his sentiment, but felt that unintended
consequences were likely to happen.
SENATOR SEEKINS said SB 318 is not crafted to give someone the
right to trespass.
It's [SB 318] direction to those people to whom we
have transferred part of our trust responsibility...
to consider the management of and the allocation of
those resources that they recognized that Alaskans
have a fundamental right to feed families before dogs.
SENATOR GEORGIANNA LINCOLN raised her hand for a question.
CHAIR OGAN noticed, said he would hold the bill, and then
recognized her.
SENATOR LINCOLN appreciated the time to comment and said that a
sport hunter or fisher could say they are taking the food home
to feed their family and that she had asked for a legal opinion
on what a fundamental individual right means in that regard.
[END OF SIDE A]
4:26 p.m.
TAPE 04-18, SIDE B
SENATOR LINCOLN asked Senator Seekins if he had a problem with
the current preference for subsistence users.
SENATOR SEEKINS replied that he feels that is a rightful
priority.
SENATOR LINCOLN asked if he thought SB 318 would have an impact
on subsistence in any way.
SENATOR SEEKINS replied, "No, I don't."
SENATOR LINCOLN asked Mr. Regelin if he thought SB 318 would
impact the priority users.
MR. REGELIN replied:
I don't think so, but I'm not sure. The part I worry
most about is the fishing part and the battles we have
over allocation between sport fishing and commercial
fishing.... More so than on the subsistence area.
SENATOR ELTON said:
If this bill comes back up, we do need to have
attorneys that are wise in the sport fish, commercial
fish and game statutes. When they do come back, Mr.
Regelin, [there] are two things that I think they need
to answer. One of them you just addressed, but the way
I read this, if we take the suggestion by the sponsor
and add 'for their sustenance', it seems to create
even more of an issue between the sport fish and the
commercial fish industry and I'd be interested in the
lawyer's interpretation.... I would also like the
lawyers to address the issue of whether the addition
of those words would have an impact on the guided game
industry and whether or not it would lower the
priority they may have to access some of our game
resources....
CHAIR OGAN said that the preferential uses in the constitution
would have to be discussed.
SENATOR WAGONER said he thought SB 318 might be opening a
Pandora's box and wanted to hear what the attorneys say about a
conflict being created between statutes and the constitution.
CHAIR OGAN said that SB 318 would be held for further work.
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