Legislature(2003 - 2004)
03/29/2004 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
VICE CHAIR WAGONER announced SB 318 to be up for consideration.
He asked if Senator Seekins, sponsor, had any additional
comments. He indicated that he didn't.
MR. LANCE NELSON, Assistant Attorney General, raised three
issues for the committee to consider. The first is whether it is
the proper role of the Legislature to classify the status of
rights as fundamental; second, whether consumptive uses of fish
and wildlife for sustenance may properly be considered a
fundamental right; and finally, what will be the likely impact
from those uses being deemed a fundamental right.
First, on the legislative authority question. The
intention of the bill is to establish consumptive uses
of fish and game by Alaska residents for their
sustenance is a very important and fundamental right.
Most Alaskans would likely agree with that policy.
Hunting and fishing for food in Alaska is like
motherhood and apple pie to most of us. However, a
possible problem is that terms like 'important right'
and 'fundamental right' are legal terms of art that
may or may not have legal consequences. It appears
that a possible goal of the bill is to have these uses
be considered fundamental rights under the state
constitution.
If the goal of the bill is to establish constitutional
rights, it's not clear that the Legislature has the
ability to do that by statute without seeking an
amendment to the constitution, itself. The Legislature
implements the constitution and acts as authorized by
the constitution, but can't change the constitution by
statute. I don't know of any precedent for legislative
establishment of a right as being deemed
constitutionally fundamental. Further, the main impact
of effective establishment of a fundamental right
occurs in the judicial process. When the government
regulates a fundamental right as opposed to a lower
status right, it is held by the courts to a much
higher standard for justification of any restriction
on fundamental rights.
Historically, the courts have been the only branch of
government that have found rights to be
constitutionally fundamental and have applied
appropriate judicial standards. It's unclear what the
impact of a legislative declaration of a fundamental
right would be. One possible reason for that is that
court rulings interpreting the constitution are
governed by rules of stare decisis [stare decisis et
non quieta movere - To adhere to precedents and not to
unsettle things which are established], the rule
following precedent. Previous legal rulings are not
lightly overturned. The Legislature, on the other
hand, may amend or repeal statutes as it sees fit with
almost unlimited discretion. It would seem that if a
right is truly fundamental, its status should not be
easily reclassified. If a right is truly fundamental,
can it be repealed during the next legislative
session? There's no legal impediment to that kind of
reversal in the legislative rules. So, this raises the
question of whether the courts will be required to
adopt it and consider it a legislative declaration.
If the goal of the Legislature is not to establish a
constitutional right, but only a statutory one, then
that raises the issue of what the legal impact of SB
318 would be. The Legislature does have broad
authority to establish a clear preference among
consumptive uses and non-consumptive uses of fish and
wildlife. The Legislature has already gone a long way
to protect consumptive uses for food by creating and
directing a statutory preference for subsistence uses
of fish and wildlife. There are many other existing
statutes that would appear to be intentioned with the
bill in that they authorize the Boards of Fisheries
and Game and the Department of Fish and Game to manage
and regulate without necessarily paying special
deference to all of the uses identified in SB 318.
Without more direction, it would appear that this bill
may create controversy and unnecessarily encourage
litigation.
The next question is - are consumptive uses of fish
and game for sustenance really fundamental rights?
Consumptive use of fish and wildlife for food and
sustenance has, so far, not been considered
fundamental rights by our State Supreme Court. The
courts have generally ruled that with very limited
exceptions, only the rights enumerated in the
Constitution are fundamental rights. The right to hunt
and fish for food is not expressed in the
Constitution.
Recently, the Alaska Supreme Court catalogued its
decision on fundamental rights and explained the
standards for identifying such rights. That was in the
case of Sampson v. State. The court listed only four
fundamental rights not explicit in the Alaska
Constitution that had been identified to date, none of
which are related to the use of natural resources.
Those were:
1. The right to reproductive privacy
2. The right to control personal appearance
3. The right to privacy within the home
4. The right of self-representation in a post
conviction hearing.
All of these cases involve personal autonomy to
control our appearance or to direct the course of our
lives. They don't involve the use of natural
resources. The opinion clarifies that other
fundamental rights might be recognized stating we are
under a duty to develop additional constitutional
rights and privileges under the Alaska Constitution if
we find such fundamental rights and privileges to be
within the intention and spirit of Alaska's
constitutional language and to be necessary for the
kind of civilized life and ordered liberty which is at
the core of our constitutional heritage.
The consumptive use of fish and game, while extremely
important to Alaskans, may not meet this test. Hunting
and fishing for food is more important culturally and
in many other ways, as is the case with commercial
fishing, trapping and sportfishing. At its most basic
level, though, it is an economic endeavor.
The court has recognized that litigants raising
subsistence concerns are addressing economic concerns,
although not the type of economic concerns, which
would preclude a public interest litigant status.
Nevertheless, economic endeavors of this type are not
accorded fundamental right status by the courts.
Alaska's Supreme Court has to this date not recognized
any fundamental right to use Alaska's natural
resources. Instead, prudent authority is to the
contrary. That's in the Apokak case, for example,
where the court stated that the right to fish
commercially is not a fundamental right. In Hersh
Herbert v. State, the court said that the state's
power over natural resources is such that it could
entirely eliminate the role of hunting guides and no
problem of due process would arise. Assuming the power
to eliminate other uses as co-equal, this case implies
that uses of natural resources do not rise to the
level of fundamental rights.
In the McDowell Case, the appellants argued at great
length that the right to subsistence hunt and fish was
a fundamental right. Nevertheless, in the McDowell
opinion, the court carefully avoided using fundamental
rights language or the fundamental right strict
scrutiny standard. Instead, the court continued to
refer to the natural resource access right in question
as a highly important interest running to each person
within the state. A highly important interest is not
the same as a fundamental right. Moreover, the court
developed a new less than strict scrutiny, but
nevertheless, heightened standard to be applied in
such instances. That was the demanding scrutiny
standard. Under McDowell, while subsistence hunting
and fishing implicate highly important individual
interests, they do not rise to the level of
fundamental rights. Moreover, the interest identified
was an interest in equal access, not an absolutely and
forceful individual right to hunt or fish for food. It
can be argued that the court declined to classify
subsistence hunting and fishing as a fundamental
right.
While access to Alaska's natural resources was
undoubtedly of paramount concern to the framers of our
constitution and remains so, it is also equally clear
that the framers intended such activities as hunting
and fishing to be extensively regulated. For example,
Article 8, section 17, expressly refers to regulations
governing the use or disposal of natural resources.
Virtually every other section in Article 8 is
expressly or implicitly based on the underlying
premise that the Legislature will heavily regulate the
use and disposal of natural resources. A fundamental
right, such as the right to privacy, may be burdened
by the legislative fiat only to serve a compelling
state interest. Requiring a compelling state interest
for regulating hunting and fishing seasons, bag
limits, means and methods, and a myriad of other
activities that are routinely regulated by the Board
of Game or Board of Fisheries may not be within the
intent of Article VIII's provisions.
The next question is, assuming the Legislature may
establish constitutionally fundamental rights, what
would be the impact of a fundamental right to fish and
hunt for food. The current legal standards for hunting
and fishing regulations are pretty well settled. In
the case of non-uniform classifications, the state
must demonstrate an important state interest that
balances against a highly important interest running
to each person within the state and it needs to
further the state's purpose as it's carefully designed
for the least possible infringement on Article VIII's
open access values. And for other fish and game
regulations, the state need only show any legitimate
interest and a close and substantial relationship
between its interest and the chosen means of advancing
that interest. Rather than these relatively clear-cut
standards, fishing and hunting for food are classified
as a fundamental right and the standards for a valid
restriction will likely get much more difficult to
achieve as I've already noted.
The courts would impose strict scrutiny of any
regulation of fundamental rights. That's the same
standard applied to justify unequal treatment based on
race and gender. When the state imposes restrictions
on fundamental rights, it would be required to
demonstrate number 1, a compelling governmental
interest, not just a legitimate or important interest;
and two, the absence of a less restricted means to
advance that interest. Since we have never had a court
require a compelling state interest for fish and game
regulations, we're not sure what we would have to show
to meet that standard, but it may well be that only
serious conservation reasons, like sustained yield
concerns, would meet the test. Moreover, many of the
current regulations may not pass muster. To cite just
a few examples:
1. Fair chase hunting measures of any kind might be
vulnerable. These could be insufficient as a
compelling state governmental interest.
2. Same-day air-borne hunting bans could be
questionable where other less restricted means
might address any conservation concerns.
3. Any kind of methods and means restrictions, such
as hunting from or with airplanes, helicopters,
boats, snow machines or other vehicles may be
difficult to justify.
4. Any kind of gear restriction, type of weapon or
fishing gear could be suspect.
Any kind of bag or season limits based on needs needs to
meet historical allocations. Other non-preferred users
could be deficient since those uses would not be
fundamental rights. So, as hunting and fishing for food
by residents expanded, commercial fishing, commercial
trapping, sport fishing, charter fishing by non-
residents would automatically give way regardless of the
perceived relative values of the uses. There are
probably undoubtedly many other regulatory restrictions
that would be vulnerable to a fundamental rights strict
scrutiny standard.
Those are the end of my comments, Mr. Chairman, thank
you.
SENATOR SEEKINS asked Mr. Nelson if he thought SB 318 looked
like a bill that would amend the constitution.
MR. NELSON replied no and explained that the concern arose
because the kind of language that is used in the bill is the
kind that is usually ascribed to constitutional rights.
SENATOR SEEKINS read from the McDowell opinion:
The only justification for a law regulating and
restricting the common right of individuals to take
wild game and fish is the necessity of protecting the
same from extinction and, thus, to preserve and
perpetuate to the individual members of the community
the inalienable right ...which they have had from time
immemorial. [END OF TAPE 04-32, SIDE A]
TAPE 04-32, SIDE B
SENATOR SEEKINS continued:
While 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 the people - no special privileges or
immunities can be conferred. Doesn't inalienable right
rise above a fundamental right?
MR. NELSON replied:
That's an interesting question. The quote from the
McDowell case is from a long quote from the Supreme
Court of Arkansas dealing with an issue that arose in
that state. The Supreme Court of Alaska has never
interpreted the term 'inalienable right' as to what
they mean. It's not a term they used to define
constitutional rights....
The other point I would make is that I believe that
part of the decision is probably not strictly part of
the holding of the court. But I want to emphasize a
later part of that quote as to the point I think it
was making....
SENATOR SEEKINS interrupted saying that he understood where
McDowell was going on the basis of that right. He asked:
Have you seen anything from the state Supreme Court
ever to indicate that the state may not pass laws to
regulate the rights of each individual in the manner
of taking, etc.? Voting is a fundamental right, is it
not? But yet we have rules and regulations under which
it must be practiced.
He feared that when somehow the state would not be able to set
rules and pass laws to regulate the rights of people, that is
overstating the question.
MR. NELSON responded that regulating a fundamental right is much
more difficult in that the interest the state would have to
demonstrate would have to be compelling, a very high test. For
example, if it wanted to discriminate between men and women or
people of different races, it would have to demonstrate a
compelling state interest to do that.
So far, we've never been under that test in a court
case. We've only been under the lower standards and
generally manage to regulate within those standards,
but it would be very hard to predict our success or
chances for success under a strict scrutiny test.
SENATOR SEEKINS said he understood the bill to mean this is a
right when the state considers the management and allocation of
those resources and asked, "We don't do that now?"
MR. NELSON replied:
I think generally it's a practice of both the
Legislature and both of the boards - that's usually
the objective of their regulations - is to provide
access to fish and game and they will always consider
the ability of individuals to participate. The more
difficult question becomes as a legal term of art when
that is applied in a judicial proceeding, what are the
consequences of that and how does that translate back
to standards the boards have to meet to be able to
adopt a valid regulation. While I think the needs of
people to take fish and game for food are always
considered and always, I think, generally considered
paramount, I think if the courts accept the
declaration of the Legislature and adopt that as a
fundamental right, I think it's going to make
management decisions much more difficult and the
flexibility is going to be gone in a lot of ways.
SENATOR SEEKINS reiterated, "We're treating it as if it were a
fundamental right as a matter of policy; we're not establishing
another fundamental right."
MS. KATHY HANSEN, Executive Director, Southeast Alaska
Fishermen's Alliance (SEAFA), opposed SB 318 and supported Mr.
Nelson's comments. She felt this issue needs to be left to the
boards, which would deal with it in a public and fair process.
SENATOR SEEKINS moved to pass SB 318 from committee with
individual recommendations and attached fiscal notes.
SENATOR ELTON objected. He found the department's testimony
compelling, as well as the testimony from the Department of Law.
It suggested that the Legislature was trying to establish
something in law that should be done constitutionally. Public
testimony has opposed adopting the legislation and the motion to
move SB 318 out is premature.
SENATOR FRED DYSON said he was sympathetic to the intent of the
bill, but was still uneasy and felt the committee should address
the issue of whether it would make management of the resources
difficult and he wanted Alaska Department of Fish and Game
(ADF&G) staff to comment on that.
SENATOR SEEKINS said he believed that individual family use
should be a very high standard. It should be difficult for the
Board of Fisheries to allocate around that. He reiterated that
he wasn't trying to amend the constitution, but establish this
fundamental right as a policy of the state with the emphasis on
policy. He would have to be convinced that it would prohibit the
department from making wise decisions. When uses compete against
each other, it shouldn't be at the expense of those people who
depend on the resource for sustenance. He withdrew his motion
for further discussion of Mr. Nelson's comments on its amending
the constitution.
SENATOR DYSON called a point of order. "I think that's unfair.
That's not what he said and it's not what he said when you
questioned him on it."
SENATOR SEEKINS conceded his point but reiterated again:
My intent here is to protect the individual Alaskan
family for their food, for their nutrition, and if
that's not what we're trying to do, show me how to do
that.
VICE CHAIR WAGONER said he was trying to fit consumptive use
into subsistence and personal use formulas and he didn't see
much difference between consumptive use and personal use; in
fact, he felt they are one in the same.
SENATOR SEEKINS furthered his argument saying that personal use
has nothing to emphasize it as a priority over all other uses.
SENATOR STEVENS said the only real meaning the paragraph has is
the definition of sustenance.
It says that sustenance is a very important
fundamental right when considering the management and
allocation. It doesn't say how they'll allocate. It
also says nothing in this policy exempts them from
compliance with state law.... It's just a litigator's
dream, but in every title there is litigator's
dreams....
SENATOR DYSON said the fishery he participated in for 25 years
[Bristol Bay] was worried that by the time an upriver fisherman
got his fish [for sustenance], the run would be done and
commercial fishermen wouldn't get their shot. Folks in the Cook
Inlet fishery worry about that, too. He wanted the department to
comment on those issues.
SENATOR ELTON suggested that this bill created a new playground
for attorneys. He strongly urged holding the bill until the
committee could get specific answers from the department, the
question being:
If sustenance is a fundamental right and the purpose
is to provide protein to Alaskan families that need
the protein, how does that affect a sport fish lodge
in Elfin Cove or a guided sport fish business on the
Kenai River? Will the protein consumer trump the
visiting tourist who may want to catch a King salmon
out of Elfin Cove or the Kenai River?
Those were issues for the department at one time and they could
continue to be issues.
SENATOR SEEKINS reasoned that there is a priority now.
In areas where ungulate populations have declined,
such as unit 13 - there is no non-resident hunting in
that district now, because the first priority is to
residents in game and if that begins to be threatened,
non-resident hunting goes away....
What we're saying is that the Board of Fish needs to
have that guidance from the state in that requirement
as a policy of the state saying you must plan in your
management and allocation for Alaska people to be able
to feed themselves and their families as part of that
process. Senator Dyson's comment is not what I'm
anticipating we'd have to be doing - that we'd have to
wait as we do in some subsistence fisheries to make
sure that all of the needs have been met before anyone
else can harvest, but simply that it be in the
planning process and the management process - that we
allocate for human consumptive use and that's what my
intent is.
SENATOR ELTON responded:
The instances in which the sponsor is speaking take
effect when there is a limited resource and then you
establish a priority of take. What this bill purports
to do is to extend a preference not based on the
amount of animals or fish that may be extant in a
certain unit. What this purports to do is prioritize
based on the way somebody is going to consume it. I
don't have a problem with the department making
allocation decisions to different groups based on the
number of fish or the number of animals, but this goes
beyond that. This gives an allocation priority for
somebody who is going to use the protein to feed their
Alaska family and that priority would be there whether
or not the population of fish or game is threatened or
not threatened.
He suggested that in saying 97 percent of the biomass is taken
by commercial fishermen, the committee needs to look at
individual species. In his area, a great deal of the King salmon
are allocated not to the commercial fish industry, but to the
sport fish industry. But further, two out of three King salmon
caught in the sport fish industry in Southeast Alaska are caught
by out-of-state fishermen.
VICE CHAIR WAGONER said the same thing happens in Cook Inlet. He
announced that Senator Seekins withdrew his motion and he was
going to turn this issue over to Chair Ogan when he came back.
There being no further business to come before the committee, he
adjourned the meeting at 4:53 p.m.
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