Legislature(2003 - 2004)
03/24/2004 03:30 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
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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