Legislature(2003 - 2004)

03/24/2004 03:30 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ 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. He                                                               
said there was a proposed CS.                                                                                                   
                                                                                                                                
SENATOR RALPH  SEEKINS moved  to adopt CSSB  318, version  Q, for                                                               
discussion. There were no objections and it was so ordered.                                                                     
                                                                                                                                
CHAIR OGAN  said that  he would take  public testimony  today and                                                               
planned to move it out on Friday.                                                                                               
                                                                                                                                
MR. MIKE TINKER, Fairbanks Advisory Board member, said:                                                                         
                                                                                                                                
     Ever since the concept  of prioritizing uses for Alaska                                                                    
     have come out  of the original subsistence  bill of the                                                                    
     state in 1978,  the Boards of Fish and Game  have had a                                                                    
     terrible  time figuring  out how  the priorities  are -                                                                    
     how  to  word  the  various definitions  of  the  terms                                                                    
     within  them. And,  although this  seems very  obvious,                                                                    
     the  way  it's  written  - that  sustenance  should  be                                                                    
     important and  Alaskans should use their  fish and game                                                                    
     resources for food  - it gets complicated  at the board                                                                    
     level when  the PhDs and sociologists  and professional                                                                    
     folks at the  subsistence division try to  work out the                                                                    
     details. I  think it's  extremely good  for you  on the                                                                    
     legislative  side to  put  these  things into  statute,                                                                    
     especially  the  definitions,  and let  the  regulatory                                                                    
     folks on  the boards  have more  guidance to  deal with                                                                    
     them.... I  think this is  a wonderful direction  to go                                                                    
     and I hope you will move it along.                                                                                         
                                                                                                                                
CHAIR OGAN asked him if he supported the CS.                                                                                    
                                                                                                                                
MR. TINKER said he did.                                                                                                         
                                                                                                                                
MR.  WAYNE REGELIN,  Deputy  Commissioner,  Alaska Department  of                                                               
Fish and Game  (ADF&G), said he didn't intend  to testify because                                                               
the committee really needed to talk to the Department of Law.                                                                   
                                                                                                                                
CHAIR  OGAN said  that he  had  talked to  the Legislative  Legal                                                               
Services  Division about  changing the  language from  individual                                                               
right to use  preference. He had some concerns  that the original                                                               
bill talked  about it being  a fundamental right, which  could be                                                               
misconstrued  by some  people  and found  in  court that  hunting                                                               
seasons couldn't be closed, for instance.                                                                                       
                                                                                                                                
SENATOR RALPH  SEEKINS read from page  11 - 12 of  the McDowell 1                                                               
case in  1989 regarding fundamental  rights and  justification of                                                               
law:                                                                                                                            
                                                                                                                                
     The  only  justification  for   a  law  regulating  and                                                                    
     restricting  the common  right of  individuals to  take                                                                    
     wild game and fish is  the necessity for protecting the                                                                    
     same  from  extinction  and,   thus,  to  preserve  and                                                                    
     perpetuate to  the individual members of  the community                                                                    
     the inalienable  rights, which they have  had from time                                                                    
     immemorial.                                                                                                                
                                                                                                                                
He then explained:                                                                                                              
                                                                                                                                
     When the state  holding the title to game  and fish, so                                                                    
     to speak, in  trust for every individual  member of the                                                                    
     community,  'May pass  laws to  regulate the  rights of                                                                    
     each individual in  the manner of taking  and using the                                                                    
     common property.  Yet, as we have  already stated, this                                                                    
     must  be  done under  the  constitution  upon the  same                                                                    
     terms to all people, etc.'                                                                                                 
                                                                                                                                
     So, it  is the established  law of the State  of Alaska                                                                    
     that even on an inalienable  right, the State of Alaska                                                                    
     has the right  to pass laws to regulate  the taking for                                                                    
     perpetuation  of the  species which  is in  compliance,                                                                    
     then,  with the  sustained  yield  principle under  the                                                                    
     state constitution  - and used the  word 'inalienable,'                                                                    
     which, I think, is stronger than 'fundamental.'                                                                            
                                                                                                                                
MR. REGELIN  maintained that it  has the potential to  change the                                                               
way fisheries are allocated. He  thought it was the Legislature's                                                               
right to  provide direction  to the  boards if  it wants  to, but                                                               
lawyers could explain how the bill would change that.                                                                           
                                                                                                                                
MR. LEN LIVENGOOD,  Atty., said the word  "fundamental" goes back                                                               
to  how   the  sustained  yield   principle  was  put   into  the                                                               
constitution. It  was expected that  the Legislature  would enact                                                               
definitions  and  protections for  the  consumptive  uses as  the                                                               
highest and best use.                                                                                                           
                                                                                                                                
     This legislation  has been  needed since  statehood and                                                                    
     will   make  it   clear  that   consumptive  uses   are                                                                    
     considered fundamental  rights for Alaska  residents to                                                                    
     provide sustenance  for themselves. It will  change the                                                                    
     way  the  Boards of  Fish  and  Game enact  regulations                                                                    
     because consumptive  uses will  have a  higher standard                                                                    
     than  other uses.  Other  than that,  I  think this  is                                                                    
     something that is consistent  with our constitution and                                                                    
     this is necessary.                                                                                                         
                                                                                                                                
     The question  about fundamental  right giving  a person                                                                    
     the right to  violate other laws - clearly  we have the                                                                    
     rights  to  keep  and  bear arms  and  there  are  laws                                                                    
     regarding  concealed  carry.  We have  the  fundamental                                                                    
     right of freedom in travel,  but that doesn't allow you                                                                    
     to  violate  speeding  regulations.  So,  the  law  and                                                                    
     constitutional   rights   are    dovetailed   and   are                                                                    
     intertwined.  Just because  something is  a fundamental                                                                    
     right  does  not  provide   an  unfettered  ability  to                                                                    
     violate the state's law and  regulations. I urge you to                                                                    
     pass this legislation.                                                                                                     
                                                                                                                                
SENATOR  WAGONER  said  he  didn't have  any  questions  for  Mr.                                                               
Livengood,  but he  wanted to  hear  from the  Department of  Law                                                               
before he passed this out.                                                                                                      
                                                                                                                                
CHAIR  OGAN said  he would  be happy  to bring  this up  again on                                                               
Friday.  There  being no  further  business  to come  before  the                                                               
committee, he adjourned the meeting at 5:35 p.m.                                                                                

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