Legislature(2003 - 2004)

04/07/2004 04:05 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 called the Senate  Resources Standing Committee                                                             
meeting  to  order at  4:05  p.m.  Present were  Senators  Thomas                                                               
Wagoner, Fred  Dyson, Ralph  Seekins, Kim  Elton and  Chair Scott                                                               
Ogan. Senator Georgianna Lincoln arrived  at 4:05 and Senator Ben                                                               
Stevens  arrived at  6:00. The  first order  of business  to come                                                               
before the committee was CSSB 318(RES), version Q.                                                                              
                                                                                                                                
CHAIR OGAN moved Amendment 1.                                                                                                   
                                                      23-LS1675\Q.1                                                             
                                                         Utermohle                                                              
                      A M E N D M E N T  1                                                                                  
                                                                                                                                
OFFERED IN THE SENATE                                                                                                           
     TO:  CSSB 318(   ), Draft Version "Q"                                                                                      
Page 1, line 1:                                                                                                                 
     Delete "the right of Alaska residents in"                                                                                
     Insert "a preference for"                                                                                                
                                                                                                                                
Page 1, line 7:                                                                                                                 
     Delete "important and fundamental right"                                                                                   
     Insert "high preference"                                                                                                   
                                                                                                                                
SENATOR KIM ELTON objected.                                                                                                     
                                                                                                                                
CHAIR OGAN explained  that he made the  amendment consistent with                                                               
constitutional language in  Article 8, Section 4,  which says the                                                               
state  shall manage  on a  sustained yield  principle subject  to                                                               
preferences  amongst beneficial  uses.  He used  the word  "high"                                                               
preference,  not "the  highest",  because he  wanted  to imply  a                                                               
preference and because  subsistence is already in  statute as the                                                               
highest  preference.  He asked  Mr.  Utermohle  to comment  about                                                               
keeping existing language that makes  sustenance a very important                                                               
and fundamental right in the statute.                                                                                           
                                                                                                                                
MR. GEORGE  UTERMOHLE, Legislative  Legal Services,  replied that                                                               
version Q of SB 318 proposes  that the state keeps mindful of the                                                               
important fundamental  right accruing to the  residents of Alaska                                                               
in their consumptive use of fish and game for sustenance.                                                                       
                                                                                                                                
     There are  significant issues  associated with  the use                                                                    
     of the  term 'fundamental right'. In  state and federal                                                                    
     constitutional   law,  when   we've   talked  about   a                                                                    
     fundamental  right, we're  talking about  a very  basic                                                                    
     principle    incorporated    into   the    Constitution                                                                    
     guaranteeing the  people of the  United States  and the                                                                    
     state   certain   liberties.   Concomitant   with   the                                                                    
     constitutional  protection  given to  those  liberties,                                                                    
     those  liberties can  only  be  abridged or  interfered                                                                    
     with by the  state [if it can] show  a compelling state                                                                    
     interest.  If the  state can  manage  to overcome  that                                                                    
     hurdle, then the  state has to show that  the method it                                                                    
     is  using   to  abridge  that  liberty   is  the  least                                                                    
     restrictive of the available  options for achieving the                                                                    
     state's goal.                                                                                                              
                                                                                                                                
     The  ambiguity that  rises in  this legislation  is the                                                                    
     fact that  there is no such  right currently recognized                                                                    
     in  the  Alaska  Constitution   or  the  United  States                                                                    
     Constitution for  the consumptive use of  wild fish and                                                                    
     game.  The text  of the  Constitution does  not provide                                                                    
     any   discussion  of   such  a   right.  That   doesn't                                                                    
     necessarily  preclude the  existence  of  such a  right                                                                    
     being  found in  the Constitution,  because the  courts                                                                    
     earn their  duty by  keeping in  mind those  visions of                                                                    
     the  Constitution and  to  find additional  fundamental                                                                    
     rights where it's  an inherent part of  the language of                                                                    
     the Constitution  and is important for  maintaining the                                                                    
     constitutional system we've established.                                                                                   
                                                                                                                                
     Thus  far, the  state has  found a  number of  implicit                                                                    
     fundamental  rights   -  the  right  to   control  your                                                                    
     personal   appearance,   the  right   to   reproductive                                                                    
     freedom, the  right to privacy  in the home.  Those are                                                                    
     the  kinds of  implicit  fundamental  rights that  have                                                                    
     been  found  to  exist  in the  Constitution.  At  this                                                                    
     point,  we   have  no  court   cases  dealing   with  a                                                                    
     fundamental right  such as this.  So, we don't  know if                                                                    
     such a  fundamental right  would be  found to  exist in                                                                    
     the Alaska Constitution.                                                                                                   
                                                                                                                                
     We have  language in court cases  suggesting that there                                                                    
     is  no  fundamental  right   to  engage  in  commercial                                                                    
     fishing  in the  state. We  have cases  at the  federal                                                                    
     level, under  the federal constitution, a  finding that                                                                    
     there   is   no   fundamental  right   to   engage   in                                                                    
     recreational hunting.                                                                                                      
                                                                                                                                
CHAIR OGAN said Article 8,  Section 15, says, "No exclusive right                                                               
or  special  privilege  of  fishery  shall  be  created  and  the                                                               
exception  is  for limited  entry  [indisc.]."  Statue may  imply                                                               
there is a fundamental right,  but the Constitution, which trumps                                                               
the statute, doesn't  give one as far as fisheries  go. Section 4                                                               
gives the Legislature authority to create a preference.                                                                         
                                                                                                                                
     I brought up a couple  of different things, but there's                                                                    
     already a  ban on exclusive rights  in the constitution                                                                    
     to a fishery. There isn't  one for game, which implies,                                                                    
     if  the  bill is  left  as  it  is,  we would  have  an                                                                    
     ambiguity there.                                                                                                           
                                                                                                                                
MR. UTERMOHLE replied that the  "no exclusive right of fisheries"                                                               
clause  would  not  necessarily   preclude  the  existence  of  a                                                               
preference or  a fundamental right to  use of fish and  game, but                                                               
it  is particularly  intended to  prevent granting  of rights  to                                                               
individuals for exclusive use of a particular resource.                                                                         
                                                                                                                                
The  right discussed  in  the legislation  can  be a  fundamental                                                               
right for consumptive  use of fish and game to  the people of the                                                               
state, as  a whole, as  opposed to the  kinds of rights  that are                                                               
prohibited under  the "no exclusive  right of  fisheries" clause.                                                               
It  suggests that  it is  founded upon  the preexistence  of this                                                               
fundamental right  to the  consumptive use of  fish and  game. If                                                               
this right  does exist,  then this legislation  may be  okay, but                                                               
until such time  as the right is found to  exist, it's debatable.                                                               
This language would  give rise to a certain  amount of litigation                                                               
-  either to  determine whether  it should  exist or  whether the                                                               
Legislature should  determine it is  a right and  then attempting                                                               
to have that right enforced by the courts in litigation.                                                                        
                                                                                                                                
CHAIR OGAN asked who he thought might have a dog in that fight.                                                                 
                                                                                                                                
MR.  UTERMOHLE replied  that the  legislation  has a  presumptive                                                               
preference for  consumptive use for sustenance.  A question would                                                               
arise for commercial  fisheries that don't use  their harvest for                                                               
sustenance, but  rather for commercial purposes.  A personal use,                                                               
subsistence  or  sports  fisherman   would  have  conflicts  with                                                               
commercial fishermen  who would attempt  to use this  language to                                                               
leverage their position before the Board of Fisheries.                                                                          
                                                                                                                                
CHAIR  OGAN asked  if  this would  preclude  the department  from                                                               
declaring a  tier 2 situation  for moose  in a certain  area that                                                               
would close hunting to non-residents, but not to residents.                                                                     
                                                                                                                                
MR. UTERMOHLE replied that would be the case.                                                                                   
                                                                                                                                
SENATOR  ELTON said  the problem  is they  don't know  what is  a                                                               
fundamental right and  he suspected that high  preference was not                                                               
defined in statute.                                                                                                             
                                                                                                                                
MR.  UTERMOHLE couldn't  recall any  definition, but  subsistence                                                               
has preference over other uses in state statute.                                                                                
                                                                                                                                
SENATOR ELTON said  that currently two out of  three sport caught                                                               
King salmon in  Southeast Alaska are caught  by non-residents. If                                                               
the statute  is changed  to give Alaskans  who define  catching a                                                               
King salmon as  a consumptive activity, that means  the ratio for                                                               
sport-caught Kings might  go to zero for non-residents  and up to                                                               
three  for   Alaskans.  And  for  perspective,   under  the  high                                                               
preference standard, he asked if he  could assume that one out of                                                               
three sport-caught  Kings would go  to non-residents and  two out                                                               
of three would go to Alaskans.                                                                                                  
                                                                                                                                
MR. UTERMOHLE answered:                                                                                                         
                                                                                                                                
     Assuming  that this  legislation  is correct  - that  a                                                                    
     fundamental right does exist, then  it may very well be                                                                    
     that the taking  of the Chinook salmon  in Southeast by                                                                    
     non-residents  would be  entirely precluded  until such                                                                    
     time  as the  taking  by residents  for consumption  is                                                                    
     completely   satisfied.   But  then,   examining   your                                                                    
     scenario in terms of the  language you have before you,                                                                    
     the bill, itself, merely establishes  a policy that the                                                                    
     managers  are   to  take   existence  of   that  either                                                                    
     fundamental right or in  accordance with the amendment,                                                                    
     the  high  preference,  into  consideration  when  they                                                                    
     allocate  and manage  those resources.  As a  matter of                                                                    
     policy, then,  that would  not necessarily  preclude an                                                                    
     allocation to non-residents.                                                                                               
                                                                                                                                
The  legislation   just  requires   that  the  state   take  into                                                               
consideration the use  of those resources for  consumptive use by                                                               
residents  and not  necessarily create  a preemptive  presumption                                                               
that the residents must take those fish.                                                                                        
                                                                                                                                
SENATOR ELTON  said if the language  remains "fundamental right",                                                               
that's a  really, really,  really scary  proposition for  all the                                                               
sport  charter boats  and lodges  in Southeast  Alaska. If  "high                                                               
preference"  is  inserted,  it's  only  a  really,  really  scary                                                               
scenario that would  have to be litigated to figure  out what the                                                               
manager's responsibility  was and the allocation  of fish between                                                               
Alaskans who  eat the fish  and non-residents who catch  the fish                                                               
and ship it and supposedly eat the fish.                                                                                        
                                                                                                                                
CHAIR OGAN thought that was a fair analysis.                                                                                    
                                                                                                                                
SENATOR THOMAS WAGONER asked if  the personal use and subsistence                                                               
fisheries are basically consumptive uses of our fish.                                                                           
                                                                                                                                
MR. UTERMOHLE replied that is his understanding.                                                                                
                                                                                                                                
CHAIR OGAN said  it gives him heartburn to  see non-residents who                                                               
come up and fish and ship  caseload after caseload of canned fish                                                               
back. "Once it  gets Outside, it's legal to sell  - and our game.                                                               
You can take a moose head down to the Lower 48 and sell it."                                                                    
                                                                                                                                
SENATOR   SEEKINS   asked   what  the   difference   is   between                                                               
"fundamental" and "inalienable" in terms of describing rights.                                                                  
                                                                                                                                
MR. UTERMOHLE replied  an inalienable right is one  that can't be                                                               
taken away.  He assumed that  fundamental rights  are essentially                                                               
inalienable.                                                                                                                    
                                                                                                                                
SENATOR SEEKINS  read an excerpt from  Justice Matthews' decision                                                               
on the McDowell 1 case.                                                                                                         
                                                                                                                                
     The  only  justification  for   a  law  regulating  and                                                                    
     restricting a 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  since  time                                                                    
     immemorial. While  the state  holding the title  to the                                                                    
     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 and the same terms to all people, etc.                                                                        
                                                                                                                                
SENATOR SEEKINS said he understands  that the court can't just go                                                               
out and define  a fundamental right. A case has  to be brought to                                                               
it.                                                                                                                             
                                                                                                                                
MR. UTERMOHLE  replied that  is correct.  The court  is not  in a                                                               
position to legislate  an issue. "Until they  have an appropriate                                                               
case, they  are not going to  be inclined to find  existence of a                                                               
fundamental right."                                                                                                             
                                                                                                                                
SENATOR SEEKINS  said in this  case, the State Supreme  Court has                                                               
found that  there is an  inalienable right for the  individual to                                                               
take fish and game for their individual use.                                                                                    
                                                                                                                                
MR.  UTERMOHLE responded  that there  seems to  be an  element of                                                               
that in what they said.                                                                                                         
                                                                                                                                
SENATOR SEEKINS said the needs  of Alaskans have to be considered                                                               
in   the  planning,   management  and   allocation  process.   He                                                               
determined that those  needs were for sustenance.  He thought the                                                               
McDowell  case  strongly implied  sustenance.  He  asked how  the                                                               
state could  conform its  policy to the  findings of  the Supreme                                                               
Court in McDowell  - by establishing a  preference or recognizing                                                               
the right.                                                                                                                      
                                                                                                                                
MR.  UTERMOHLE  replied  that the  context  of  this  legislation                                                               
establishes a policy  of the state to recognize  the existence of                                                               
its  peoples' right  to  access  fish and  game  for purposes  of                                                               
consumption.                                                                                                                    
                                                                                                                                
SENATOR SEEKINS said that is what he was trying to do.                                                                          
                                                                                                                                
     I  was trying,  quite frankly,  to avoid  setting up  a                                                                    
     ladder of preference.... I guess  I just wanted to know                                                                    
     if  my assumption  was correct  -  that inalienable  is                                                                    
     almost substitutable for  fundamental - especially when                                                                    
     the  court has  said  you can  regulate an  inalienable                                                                    
     right as long as you're  doing it equitably.... Is that                                                                    
     how you read it, Mr. Utermohle?                                                                                            
                                                                                                                                
MR. UTERMOHLE replied yes.                                                                                                      
                                                                                                                                
     The  focus of  the McDowell  case was  equal access  to                                                                    
     resources   of   the   state.  Not   guaranteeing   any                                                                    
     individual  of the  state a  particular  resource or  a                                                                    
     particular  part of  any resource,  but  just that  the                                                                    
     citizens  of  the  state   have  equal  opportunity  to                                                                    
     participate in the groups that take the resources.                                                                         
                                                                                                                                
CHAIR OGAN said the McDowell case was about users, not uses.                                                                    
                                                                                                                                
MR.   UTERMOHLE  agreed   that  it   was  about   eligibility  to                                                               
participate in the subsistence user group.                                                                                      
                                                                                                                                
CHAIR OGAN asked if users don't have inalienable rights.                                                                        
                                                                                                                                
MR. UTERMOHLE replied  that citizens of the state  have rights of                                                               
many kinds.                                                                                                                     
                                                                                                                                
SENATOR  SEEKINS said  he  was trying  to get  at  the import  of                                                               
fundamental right versus preference.                                                                                            
                                                                                                                                
CHAIR OGAN  asked if every word  of every opinion that  a justice                                                               
writes on a case becomes case law.                                                                                              
                                                                                                                                
MR. UTERMOHLE  replied that the decision  of a case sets  out the                                                               
common  law  of the  state.  One  would  hope that  the  decision                                                               
explains how the court got there.                                                                                               
                                                                                                                                
CHAIR OGAN asked if anyone  else had any comments about Amendment                                                               
1.                                                                                                                              
                                                                                                                                
SENATOR ELTON  said he  wanted to hear  from the  department that                                                               
administers the law.                                                                                                            
                                                                                                                                
SENATOR SEEKINS reminded the committee  that the issue is about a                                                               
function  of  the  Board  of   Fisheries,  not  the  department's                                                               
management process.                                                                                                             
                                                                                                                                
CHAIR  OGAN  reflected  that the  Legislature  sets  policy,  the                                                               
department  manages it  and the  board allocates  it and  invited                                                               
Wayne Regelin to testify.                                                                                                       
                                                                                                                                
MR.  WAYNE REGELIN,  Deputy  Commissioner,  Alaska Department  of                                                               
Fish and  Game (ADF&G), said  he would  talk about the  game side                                                               
first.                                                                                                                          
                                                                                                                                
     The way  this is structured,  it would affect  both the                                                                    
     Board of  Fisheries and  the Board of  Game. We  have a                                                                    
     statute  already, AS  16.05.258, which  we always  call                                                                    
     the subsistence  statute and that directs  the Board of                                                                    
     Game to  provide the  highest priority  for subsistence                                                                    
     use.  In addition,  another  statute, AS  16.05.255(d),                                                                    
     requires  that  the  taking of  moose,  deer,  elk  and                                                                    
     caribou   by   residents   for   personal   or   family                                                                    
     consumption has  preference over non-residents.  So, we                                                                    
     probably  wouldn't change  anything the  Board of  Game                                                                    
     does  right now,  but  it's much  more  complex on  the                                                                    
     fishery   side,  because   of   the  large   commercial                                                                    
     fisheries that we have in the areas of Alaska.                                                                             
                                                                                                                                
     We  also have  personal  use fisheries  where we  don't                                                                    
     have personal  use hunts and  we have  recreational and                                                                    
     subsistence  fisheries.  The same  subsistence  statute                                                                    
     directs the  Board of Fisheries  to provide  a priority                                                                    
     for subsistence  use of fish,  but they don't  have any                                                                    
     other  statutes that  establish priorities  amongst the                                                                    
     other  user groups.  But, they  do have  a statute,  AS                                                                    
     16.05.251, that gives the  Board of Fisheries authority                                                                    
     to allocate  the fishery  resources among  the personal                                                                    
     use, sport, guided sport and commercial fisheries.                                                                         
                                                                                                                                
     This statute establishes seven  criteria that the board                                                                    
     may use;  it doesn't say  in statute that they  have to                                                                    
     use  all seven,  but the  third one  of those  criteria                                                                    
     speaks directly to  this issue. It says  that the board                                                                    
     should   consider  the   importance  of   each  fishery                                                                    
     providing residents the opportunity  to obtain fish for                                                                    
     personal  and family  consumption.  So,  they say  they                                                                    
     must consider that and then  the Board of Fisheries has                                                                    
     adopted  in regulation  these seven  criteria. It  must                                                                    
     consider them under regulation.  They must consider all                                                                    
     seven of them.                                                                                                             
                                                                                                                                
CHAIR OGAN said the amendment states a policy of considering                                                                    
Alaska residents first when it comes to fish and game.                                                                          
                                                                                                                                
MR. REGELIN replied:                                                                                                            
                                                                                                                                
     We  understand it's  totally up  to the  Legislature to                                                                    
     provide direction  to the  Board of  Fish and  Board of                                                                    
     Game, if  it wants  to. You  can say  if you  want that                                                                    
     higher  priority  or  whatever  you  want,  but  I  was                                                                    
     thinking, if  you were  going to do  this, to  put that                                                                    
     amendment   into  AS   16.05.251  where   it's  already                                                                    
     there....                                                                                                                  
                                                                                                                                
     Right  now we  have a  system  that has  been in  place                                                                    
     quite  a while.  Overall, we  think it's  working quite                                                                    
     well and we don't see any  need to change it. There may                                                                    
     be specific cases of specific  fisheries that you would                                                                    
     like  some changes...there  are  ways for  you and  the                                                                    
     board  to consider  those -  or  the Legislature  could                                                                    
     take specific  action on specific fisheries.  But, when                                                                    
     you do  it as a  general thing, it raises  concerns for                                                                    
     us in  the department -  how that could change  some of                                                                    
     the  very  fundamental things  and  the  way the  whole                                                                    
     fisheries are managed....                                                                                                  
                                                                                                                                
     A lot of our concerns from  the legal points of view go                                                                    
     away if  you adopt  this amendment.  It takes  away the                                                                    
     words "fundamental right", because  we continue to have                                                                    
     real concerns  over that -  not only the  Department of                                                                    
     Law [indisc.].  Also, an  attorney, Paul  Linzinie, has                                                                    
     given advice that  this could cause a  lot of mischief,                                                                    
     unintended consequences  and jeopardize our  ability to                                                                    
     regulate.                                                                                                                  
                                                                                                                                
     Paul  Linzinie is  an eminent  attorney who  has worked                                                                    
     for  many years  for the  International Association  of                                                                    
     Fish and Wildlife Agencies. He  hasn't looked at SB 318                                                                    
     as written,  but he  did about four  or five  years ago                                                                    
     when this issue came up.  He advised all of the states,                                                                    
     including Alaska,  to be very  cautious in  using those                                                                    
     words  and so,  to date,  no  state has  done that.  We                                                                    
     can't give you case law  or predictions on the risk....                                                                    
     In reality, we can't do  that, because there is no case                                                                    
     law. No  state has been  willing to assume the  risk to                                                                    
     make this a fundamental right....                                                                                          
                                                                                                                                
CHAIR OGAN  asked if he  thought Amendment  1 made the  bill less                                                               
troublesome.                                                                                                                    
                                                                                                                                
MR. REGELIN  replied yes, very  much so,  but it still  has major                                                               
allocation implications that he hadn't time to think through.                                                                   
                                                                                                                                
SENATOR SEEKINS  asked if he  was saying  that the Board  of Fish                                                               
must consider the seven criteria or that they may.                                                                              
                                                                                                                                
MR. REGELIN said  he was talking about two  different things. The                                                               
statute,  AS 16.05.251,  lays out  seven criteria  the board  may                                                               
use.  The board,  on its  own,  has adopted  regulations in  5AAC                                                               
39.02.05 that say it will consider these seven criteria.                                                                        
                                                                                                                                
SENATOR SEEKINS asked  if there is a  tension between consumptive                                                               
and non-consumptive uses for game versus fish.                                                                                  
                                                                                                                                
MR. REGELIN replied that there  are occasional tensions in two or                                                               
three places around the state,  mostly over bear viewing. He said                                                               
the same  statute, AS 16.05.258,  says that the  highest priority                                                               
for wildlife resources is consumptive use.                                                                                      
                                                                                                                                
SENATOR ELTON  asked if he  has a  grasp of what  high preference                                                               
is.                                                                                                                             
                                                                                                                                
MR.  REGELIN  replied  that  he  thought  it  means  higher  than                                                               
competing preferences if  there are four or  five different uses.                                                               
It doesn't mean highest, which leaves  a lot of discretion to the                                                               
Board of Fisheries.                                                                                                             
                                                                                                                                
SENATOR ELTON  speculated that using  "high preference"  might be                                                               
putting  the commissioner  in the  position of  issuing emergency                                                               
orders.  There  are  times  in  Southeast  Alaska,  during  which                                                               
management decisions  are made in-season  because it looks  as if                                                               
the rate of sport-caught Kings is  going to exceed the level that                                                               
has been set. An emergency  order would preclude non-residents at                                                               
lodges  or on  a charter  boat from  taking any  more fish  until                                                               
residential  preferences have  been met.  He could  see the  same                                                               
kind of thing happening on the Kenai River.                                                                                     
                                                                                                                                
MR. REGELIN answered  that he didn't want to  speculate about how                                                               
this would play out over time.                                                                                                  
                                                                                                                                
SENATOR   ELTON  asked   him  if   he  thought   inserting  "high                                                               
preference" could reduce the catch for non-residents.                                                                           
                                                                                                                                
MR. REGELIN replied that he thought that was the intent.                                                                        
                                                                                                                                
SENATOR ELTON  said, "That would have  fairly devastating impacts                                                               
on people who make their  livelihood with lodges or guiding sport                                                               
fishermen."                                                                                                                     
                                                                                                                                
TAPE 04-37, SIDE B                                                                                                            
                                                                                                                              
SENATOR LINCOLN  asked if  he could  still ask,  "What's broken?"                                                               
with Amendment 1.                                                                                                               
                                                                                                                                
MR. REGELIN replied that he stood by his statement:                                                                             
                                                                                                                                
     The  system that  we currently  have right  now doesn't                                                                    
     seem to  be broken.  It may not  be perfect  and people                                                                    
     can  disagree over  individual  decisions, but  overall                                                                    
     it's  very democratic.  People have  an opportunity  to                                                                    
     speak and comment and in  most places it's working very                                                                    
     well. I think  if you add the  words 'high preference',                                                                    
     it will have  an effect - exactly how  much it's almost                                                                    
     impossible  to predict,  because  I  still think  those                                                                    
     words  provide   an  opportunity   for  the   Board  of                                                                    
     Fisheries to make decisions, given  some leeway. But, I                                                                    
     think it  would overall be  litigated in the  long term                                                                    
     and  probably  have  some  direction  provided  by  the                                                                    
     courts.                                                                                                                    
                                                                                                                                
SENATOR  LINCOLN said  that earlier  the  difference between  the                                                               
board and his department as management  was noted and asked if he                                                               
had a  conversation with the chair  of the Board of  Fisheries or                                                               
the Board of Game on this legislation.                                                                                          
                                                                                                                                
MR. REGELIN replied that he hadn't.                                                                                             
                                                                                                                                
     The call on allocations is by  the board. When we go to                                                                    
     Board  of Fisheries  meetings, we  will talk  about the                                                                    
     biology  and  the total  number  of  fish that  can  be                                                                    
     harvested and  then the board  will decide how  many go                                                                    
     to different user groups -  for different kinds of gear                                                                    
     groups  -  for  personal  use -  for  subsistence  use.                                                                    
     Overall,  as   the  fisheries  have   increased,  where                                                                    
     there's personal use fisheries,  the amount allowed for                                                                    
     personal use has  increased - often times more  so at a                                                                    
     higher rate than it has for the commercial users.                                                                          
                                                                                                                                
CHAIR OGAN said  discussion was straying away  from the amendment                                                               
and that a lot of people want to testify.                                                                                       
                                                                                                                                
SENATOR SEEKINS said  he couldn't find any  preference in section                                                               
258  for consumptive  use,  although he  found  a preference  for                                                               
subsistence use.  He didn't disagree  with the amendment,  but he                                                               
thought that  consumptive use  is an  inalienable right  and that                                                               
the Supreme Court supported it.                                                                                                 
                                                                                                                                
CHAIR OGAN called for the question on Amendment 1.                                                                              
                                                                                                                                
SENATOR ELTON objected to briefly  discuss how difficult it is to                                                               
vote  on  speculative testimony.  A  lot  of questions  can't  be                                                               
answered and  at a minimum  he thought  they needed to  hear from                                                               
the chair of the Board of Fisheries  or one of its members to get                                                               
feedback from  the people who  are doing the allocation.  He also                                                               
pointed out  that it's easy to  talk about the role  of the board                                                               
in the  allocative process, but  if statutory language  passed at                                                               
either the fundamental or high  preference level, it would effect                                                               
the behavior  of the commissioner  who commonly  issues emergency                                                               
orders.                                                                                                                         
                                                                                                                                
CHAIR OGAN said  he appreciated his concerns,  but maintained his                                                               
motion.  Senators  Fred  Dyson, Ralph  Seekins,  Thomas  Wagoner,                                                               
Chair  Scott Ogan  voted yea;  Senator  Georgianna Lincoln  voted                                                               
nay; and Amendment 1 was adopted.                                                                                               
                                                                                                                                
MR.  DON  JOHNSTON, Alaska  resident,  said  if the  subject  was                                                               
subsistence, he wondered why the  term "consumptive use" was used                                                               
and not defined. It seemed  like this legislation is assuming the                                                               
system is currently broken and the  Board of Fish isn't doing its                                                               
job. If  Senator Seekins wants a  person to be able  to catch the                                                               
fish and take  it home and eat  it and not do  anything else with                                                               
it, he should spell it out  and, "not just write down eight lines                                                               
and say, 'Okay let the lawsuits begin."                                                                                         
                                                                                                                                
SENATOR SEEKINS responded that he  inserted the term "consumptive                                                               
use" before "sustenance" which is defined.                                                                                      
                                                                                                                                
MR. DAVID BACHRACH, Homer, said  he wanted to see things "fleshed                                                               
out a  little more" so  he knows what  is being talked  about. He                                                               
wanted to know  if game was even a concern  in this amendment and                                                               
if  management included  predator  control so  there is  adequate                                                               
moose and caribou for consumptive use.                                                                                          
                                                                                                                                
     I  feel  Alaska's  wildlife  is  a  public  trust  that                                                                    
     belongs to  all Alaskans  and that the  public interest                                                                    
     includes  a  variety  of  uses  of  wildlife  including                                                                    
     hunting,  fishing, trapping,  viewing and  photography.                                                                    
     As Alaskans, we  should be looking to where  we want to                                                                    
     go  instead of  reacting to  where we  are and  develop                                                                    
     methods   of  dual   management  to   accommodate  both                                                                    
     consumptive   and  non-consumptive   use  of   wildlife                                                                    
     resources.                                                                                                                 
                                                                                                                                
MR. PAUL JOSLIN, Alaska Wildlife Alliance, said:                                                                                
                                                                                                                                
     The   Alaska  Constitution   does  not   grant  special                                                                    
     individual  rights or  a high  preference  or a  holier                                                                    
     than  thou   standing  to  hunters   over  non-hunters.                                                                    
     Therefore, this bill shouldn't, either.                                                                                    
                                                                                                                                
     Addressing  just the  wildlife  side of  it, because  I                                                                    
     understand  it  is  fisheries,  as  well,  I  see  this                                                                    
     legislation  as a  form  of  prejudicial bigotry  aimed                                                                    
     against  the  75  percent  of  Alaskans  who  are  non-                                                                    
     hunters. Too much power already  is concentrated in the                                                                    
     hands of hunters. All  wildlife regulatory decisions on                                                                    
     state  land are  made by  the Board  of Game,  which is                                                                    
     composed solely  of people  with a  hunting background.                                                                    
     Non-hunters  need  not  apply.  When it  comes  to  the                                                                    
     management  or our  wildlife,  hunters and  non-hunters                                                                    
     should  be  working  together  as  equals.  The  Alaska                                                                    
     Constitution states  that wildlife is intended  for the                                                                    
     common use  of all Alaskans.... I  would recommend that                                                                    
     the  Senate  Resources  Committee   reject  SB  318  as                                                                    
     discriminatory and  prejudicial and  consider, instead,                                                                    
     SB  343,  the  bill  that   would  create  a  Board  of                                                                    
     Wildlife....                                                                                                               
                                                                                                                                
MR.  KEN DUCKETT,  Executive  Director,  United Southeast  Alaska                                                               
Gillnetters  Association (USAGA),  said the  concept of  how much                                                               
potential  change is  possible with  this legislation  is a  real                                                               
concern   to  his   organization.  Sixty-five   percent  of   his                                                               
commercial fishermen are Alaskan residents  and most of them live                                                               
in the coastal communities where  the economy has been struggling                                                               
to   stay   viable.   Shifting   the   priority   has   boundless                                                               
implications. He has  heard a lot of  discussion about allocation                                                               
between   gear  groups,   but   hasn't   heard  anyone   complain                                                               
extensively  about  not  being  able to  get  enough  fish  under                                                               
current personal use regulations. He  doubted that the system was                                                               
broken and  felt on the  contrary, that it has  been successfully                                                               
developed over a long period of time.                                                                                           
                                                                                                                                
SENATOR  LINCOLN said  he  represented a  fairly  large group  of                                                               
fishermen  and asked  what  his concern  is  about the  following                                                               
sentence:                                                                                                                       
                                                                                                                                
     It  is the  policy of  the state  that the  consumptive                                                                    
     uses  of  wild  fish   and  game  resources  by  Alaska                                                                    
     residents  for   their  sustenance   is  a   very  high                                                                    
     preference   when   considering  the   management   and                                                                    
     allocation of those resources.                                                                                             
                                                                                                                                
MR. DUCKETT replied:                                                                                                            
                                                                                                                                
     If I understood what that  language would change in the                                                                    
     current system, I think maybe  I could tell you what my                                                                    
     concerns were.                                                                                                             
                                                                                                                                
MR. BRUCE  KNOWLES, Wasilla,  said he is  on the  Mat-Su Advisory                                                               
Committee  that has  sent  a  letter in  support  of  SB 318.  He                                                               
personally supports  the bill  because the  people in  the Mat-Su                                                               
Borough have  got the short  end of the stick.  Their subsistence                                                               
fishery has been taken away;  their personal use fishery has been                                                               
closed for six years and the Coho  run has been cut back to two a                                                               
day. "Up here  there has been a distinct loss  of opportunity and                                                               
I think this bill will give it back to us."                                                                                     
                                                                                                                                
MR. CURT HIERSCHLIB, Cordova  District Fishermen United, strongly                                                               
opposed SB 318.                                                                                                                 
                                                                                                                                
     The  goals of  the bill  are still  unclear even  after                                                                    
     listening  to  this  for  over an  hour.  Many  of  the                                                                    
     definitions  within remain  unclear. As  near as  I can                                                                    
     tell,  it's potentially  devastating to  the commercial                                                                    
     fishing industry,  which is in turn  devastating to our                                                                    
     coastal  communities. Our  coastal  communities are  on                                                                    
     the  ropes as  evidenced  by the  fact  that the  state                                                                    
     formed the revitalization task force last year.                                                                            
                                                                                                                                
     If the  goal of this bill  is to insure access  to fish                                                                    
     and game  for all  Alaskans, then  the best  thing that                                                                    
     comes to mind  is sound management and I  think we have                                                                    
     the  best in  the world  here.  I think  the system  is                                                                    
     working. It's not broken; so don't fix it....                                                                              
                                                                                                                                
MR. SCOTT MCCALLISTER  said he has fished all the  seine areas in                                                               
the state  except Cook  Inlet and Prince  William Sound  where he                                                               
fished other  types of  gear. He  has also  fished the  Kenai and                                                               
Chitna Rivers  and understands the  rural versus  urban conflicts                                                               
with salmon allocations, in particular.  He knows what sustenance                                                               
means to  him - putting shoes  on his family's feet,  food on the                                                               
table and a roof over their heads.                                                                                              
                                                                                                                                
     So far, I'm  not seeing what this bill  does to enhance                                                                    
     or detract  from the current  system that  has provided                                                                    
     myself the  resource, and  my peers,  to make  a living                                                                    
     and sustain our families  in the coastal communities of                                                                    
     Alaska. The system is working very well....                                                                                
                                                                                                                                
SENATOR ELTON asked  if this statute is changed to  provide for a                                                               
high preference, did  he see that rolling down  to the commercial                                                               
fishing industry.                                                                                                               
                                                                                                                                
MR. MCCALLISTER replied that he does see that happening.                                                                        
                                                                                                                                
     I don't see  that it technically sets  a precedent that                                                                    
     would  accomplish the  agenda of  someone 100  miles up                                                                    
     the Copper River or somebody  such as Bruce Knowles who                                                                    
     is in the urban area of  Anchorage and is the last user                                                                    
     in  a  long   line  of  users.  What  it   will  do  is                                                                    
     tremendously  complicate everybody's  interpretation of                                                                    
     what the charge of the Board of Fish is....                                                                                
                                                                                                                                
SENATOR LINCOLN asked how he interpreted high preference.                                                                       
                                                                                                                                
MR. MCCALLISTER replied:                                                                                                        
                                                                                                                                
     I personally  would interpret  it that, if  I was  in a                                                                    
     position  of sustaining  my family  under  the bill  as                                                                    
     it's  written,  I have  a  high  preference. I  have  a                                                                    
     preference of standing equal to  anybody else. If I was                                                                    
     getting  rich in  the  business...yes,  there would  be                                                                    
     sustenance preferences  beyond mine.  But right  now, I                                                                    
     see  myself  having  absolutely  equal  standing  in  a                                                                    
     sustenance  preference with  every  other  user in  the                                                                    
     state. I think  it's that way now with  [how] the Board                                                                    
     of Fish  currently conducts the business  of allocating                                                                    
     and managing the fish and game in the state.                                                                               
                                                                                                                                
MR.  BOB  THORSTENSON,  President,  United  Fishermen  of  Alaska                                                               
(UFA),  vigorously opposed  SB  318  and noted  a  UFA letter  of                                                               
opposition that  defined sustenance as,  "that which is  used for                                                               
personal  and family  consumption as  food or  nourishment or  to                                                               
sustain life."                                                                                                                  
                                                                                                                                
MR. THORSTENSON said:                                                                                                           
                                                                                                                                
     Most of my  constituents, by and large -  the ones that                                                                    
     are actually making it and  haven't gone bankrupt yet -                                                                    
     are attempting to sustain life  by providing basic food                                                                    
     and shelter needs and health care for their families.                                                                      
                                                                                                                                
     I   have   a   quick   question,   Mr.   Chairman,   my                                                                    
     interpretation  of the  amendment  is  it would  strike                                                                    
     'very  important and  fundamental right'.  Does it  not                                                                    
     strike the  'very'? Is this  a very high  preference or                                                                    
     just a high preference?                                                                                                    
                                                                                                                                
SENATOR LINCOLN replied that "very" remains in the amendment.                                                                   
                                                                                                                                
MR. THORSTENSON  commented that that  would be very,  very scary.                                                               
He thought  it could have  incredible unintended  consequences in                                                               
the  lodge  and  charter  industry  in  Southeast  Alaska.  Other                                                               
consequences  that   haven't  been   addressed  yet   are  spring                                                               
steelhead, which is catch and  release or trophy fishing in small                                                               
areas of  the state. Introducing  the consumptive use  into those                                                               
systems  would  cause  some  serious   problems.  He  noted  that                                                               
steelhead  fishing   is  not   impacted  by   commercial  fishing                                                               
activity.                                                                                                                       
                                                                                                                                
SENATOR  LINCOLN asked  if he  vigorously opposed  SB 318  in any                                                               
form.                                                                                                                           
                                                                                                                                
MR. THORSTENSON replied:                                                                                                        
                                                                                                                                
     Absolutely!  Right now,  the way  the  system has  been                                                                    
     working,  there  has  already  been  approximately  600                                                                    
     percent  increase in  the past  decade on  personal use                                                                    
     harvest  in the  largest  and major  rivers in  Central                                                                    
     Alaska and we  feel that the current  system has worked                                                                    
     very  well.  There  are  balances  to  be  made....  In                                                                    
     certain  parts of  the  state you  have  a much  larger                                                                    
     population. You  have a much  larger need  to establish                                                                    
     different  types of  fishing  -  sport fishing,  guided                                                                    
     fishing.   Commercial  fishing   obviously  becomes   a                                                                    
     smaller part of the overall economy in some places....                                                                     
                                                                                                                                
TAPE 04-38, SIDE A                                                                                                            
5:40 p.m.                                                                                                                       
                                                                                                                                
CHAIR OGAN said  he didn't share Mr.  Thorstenson's paranoia that                                                               
there is  enough latitude in  the language  to give the  Board of                                                               
Fish a lot of discretion.                                                                                                       
                                                                                                                                
SENATOR ELTON  called a  point of  personal privilege  saying, "I                                                               
think  characterizing  the  previous  testimony  as  paranoid  is                                                               
inappropriate."                                                                                                                 
                                                                                                                                
CHAIR OGAN said he didn't want to get into a debate about it.                                                                   
                                                                                                                                
SENATOR ELTON asked if Mr. Mecum, ADF&G, could testify.                                                                         
                                                                                                                                
CHAIR OGAN  said he  would do that  after getting  testimony from                                                               
Mr. Andy Craig.                                                                                                                 
                                                                                                                                
SENATOR  LINCOLN said  she  had  no objection  to  that, but  she                                                               
wanted  to hear  from the  Fish  Czar, Alan  Austerman, and  Mary                                                               
Pete, Division of Subsistence.                                                                                                  
                                                                                                                                
MR. ANDY CRAIG opposed SB 318.                                                                                                  
                                                                                                                                
     It's  a  question of  what  particularly  is this  bill                                                                    
     trying to fix. It seems like  it's kind of doing an end                                                                    
     run around the subsistence  preference that has already                                                                    
     been established....                                                                                                       
                                                                                                                                
MR.  DOUG  MECUM,  Director, Division  of  Commercial  Fisheries,                                                               
Alaska  Department of  Fish and  Game (ADF&G),  testified if  the                                                               
intent of the  bill is to provide a higher  priority for personal                                                               
consumption in allocation decisions, he  wasn't sure why the term                                                               
"management" was  used, because it implicates  the department and                                                               
the commissioner  in the allocation  of resources. "I  think that                                                               
is a concern."                                                                                                                  
                                                                                                                                
CHAIR OGAN  said he interpreted  that to mean that  management is                                                               
already defined in  the constitution in Article 8,  Section 4, as                                                               
managed  on  a  sustained  yield  basis  subject  to  preferences                                                               
amongst  beneficial uses.  "This language  simply clarifies  that                                                               
constitutional mandate you  already have.... I think  it's a good                                                               
thing personally.... It's an Alaskans first bill."                                                                              
                                                                                                                                
SENATOR SEEKINS concurred with his position.                                                                                    
                                                                                                                                
SENATOR ELTON went a step further in characterizing the bill.                                                                   
                                                                                                                                
     It sets one  class of Alaskans higher  than another and                                                                    
     we  have heard  testimony  previously  about what  they                                                                    
     think sustenance is - shoes  on feet, food on the table                                                                    
     - roof over  the head. But when you look  at the way it                                                                    
     is  defined, sustenance  means that  which is  used for                                                                    
     personal  and family  consumption.  That precludes,  it                                                                    
     seems to me, the definition  of sustenance as roof over                                                                    
     head, shoes on  feet and so this is  not simply putting                                                                    
     Alaska  residents first.  This is  putting some  Alaska                                                                    
     residents ahead of other Alaska residents.                                                                                 
                                                                                                                                
CHAIR OGAN disagreed.                                                                                                           
                                                                                                                                
SENATOR ELTON reasoned then that  "consumption" should be deleted                                                               
on line 10.                                                                                                                     
                                                                                                                                
SENATOR LINCOLN commented  that Mr. Mecum was  concerned that the                                                               
term "management" referred to the department.                                                                                   
                                                                                                                                
MR. MECUM pointed out:                                                                                                          
                                                                                                                                
     The  current statutory  framework that  the legislature                                                                    
     has  adopted for  the Board  of Fisheries  - speaks  to                                                                    
     providing    a   preference    for   personal    family                                                                    
     consumption.  It  may  not be  strong  enough  in  some                                                                    
     people's view....  I've been working with  the Board of                                                                    
     Fisheries for the  past 15 years and in  each and every                                                                    
     instance  that   I'm  aware  of  that   the  board  has                                                                    
     addressed personal  use fisheries, in  particular, they                                                                    
     have  provided  for  liberal  opportunities  for  those                                                                    
     fisheries.                                                                                                                 
                                                                                                                                
To  back up  his  point,  he referred  the  committee members  to                                                               
department statistics in their packets.                                                                                         
                                                                                                                                
SENATOR LINCOLN  asked him to interpret  statistics regarding the                                                               
Chitna dip  net and  the Copper River  sockeye fisheries  and how                                                               
this piece of legislation might impact them.                                                                                    
                                                                                                                                
MR.  MECUM replied  that it's  really difficult  to predict  what                                                               
might happen  and the  courts would  end up  sorting it  out over                                                               
time. He intended  the information to show the  committee how the                                                               
board has taken  the need for Alaskans to harvest  fish for their                                                               
personal   consumption  very   seriously  and   provided  liberal                                                               
opportunities for that to happen.                                                                                               
                                                                                                                                
SENATOR  LINCOLN asked  the Department  of Law  if deleting  "the                                                               
right  of  Alaska   residents  in"  and  replacing   it  with  "a                                                               
preference for"  and deleting  "important and  fundamental right"                                                               
and  replacing  it  with  "high  preference"  was  clear  to  the                                                               
Department of Law.                                                                                                              
                                                                                                                                
MR. LANCE  NELSON, Department of  Law (DOL), responded  that some                                                               
of  their  concerns  were addressed  with  deleting  "fundamental                                                               
right", but current language saying  "very high preference" makes                                                               
the meaning  ambiguous. He thought  it might encourage  the board                                                               
to prefer those uses as a matter  of law over those that are non-                                                               
preferred. He  couldn't speculate on the  consequences that would                                                               
have on management.                                                                                                             
                                                                                                                                
SENATOR ELTON  asked what  Mr. Nelson, as  a leading  attorney in                                                               
this area, what  he thought "sustenance" meant on lines  9 and 10                                                               
and if  he believed the  accommodations made  to the family  of a                                                               
commercial fisherman  - whether  its buying  clothes or  shoes or                                                               
repairing a roof - is covered under its definition in this bill.                                                                
                                                                                                                                
MR. NELSON  replied that  it's probably  unlikely that  the court                                                               
would  decide  that uses  of  fish  by commercial  fishermen  are                                                               
covered by this bill.                                                                                                           
                                                                                                                                
CHAIR  OGAN  added,  "Unless  they are  an  Alaska  resident  and                                                               
feeding their family."                                                                                                          
                                                                                                                                
MR. NELSON replied  that he is only talking about  harvest in the                                                               
commercial fisheries.                                                                                                           
                                                                                                                                
SENATOR SEEKINS  wanted to make it  clear for the record  that he                                                               
is not  trying to take food  off of children's tables  or clothes                                                               
off their backs. He just wants  to make sure that people who have                                                               
to feed their families also have high priority.                                                                                 
                                                                                                                                
SENATOR LINCOLN  noted the last  four words, were "or  to sustain                                                               
life" and asked what that meant.                                                                                                
                                                                                                                                
MR. NELSON  replied that  he wasn't  the one  to answer  that and                                                               
couldn't speculate.                                                                                                             
                                                                                                                                
SENATOR  LINCOLN   said  she  just   wanted  to  know   what  the                                                               
department's interpretation  was of that language.  She requested                                                               
Alan Austerman to come forward.                                                                                                 
                                                                                                                                
MR. AUSTERMAN, Office  of the Governor, said he did  not have any                                                               
ready comments.                                                                                                                 
                                                                                                                                
SENATOR LINCOLN  asked if he was  intending to look at  this bill                                                               
and come back to the committee with recommendations.                                                                            
                                                                                                                                
MR. AUSTERMAN replied that he had  no intention of coming back to                                                               
testify. He assumed  that ADF&G and DOL would  testify after they                                                               
had digested it.                                                                                                                
                                                                                                                                
SENATOR LINCOLN  requested Mary  Pete to  step forward  and asked                                                               
her if she thought this legislation  would have any impact on her                                                               
division.                                                                                                                       
                                                                                                                                
MS.  MARY  PETE,  Director,  Division  of  Subsistence,  replied:                                                               
"Subsistence has the  highest priority and this  really says high                                                               
preference. I don't see any impact on subsistence."                                                                             
                                                                                                                                
6:07 - 6:08 - at ease                                                                                                           
                                                                                                                                
SENATOR FRED  DYSON moved  to pass  CSSB 318(RES)  from committee                                                               
with attached fiscal notes and individual recommendations.                                                                      
                                                                                                                                
SENATORS ELTON and LINCOLN objected.                                                                                            
                                                                                                                                
SENATOR  LINCOLN noted  that of  the nine  people representing  a                                                               
broad base  of groups  that testified  at today's  meeting, eight                                                               
opposed it and  one supported it. Department of Law  also said it                                                               
was ambiguous; also  neither the DOL nor ADF&G  had adequate time                                                               
to review the CS.                                                                                                               
                                                                                                                                
CHAIR OGAN asked for the  roll. Senators Ben Stevens, Fred Dyson,                                                               
Ralph Seekins,  Thomas Wagoner  and Chair  Scott Ogan  voted yea;                                                               
Senators  Lincoln and  Elton vote  nay; and  CSSB 318(RES)  moved                                                               
from committee.                                                                                                                 

Document Name Date/Time Subjects