Legislature(1997 - 1998)
04/09/1998 01:50 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
APRIL 9, 1998
1:50 P.M.
TAPE HFC 98 - 100, Side 1.
TAPE HFC 98 - 100, Side 2.
TAPE HFC 98 - 101, Side 1.
CALL TO ORDER
Co-Chair Hanley called the House Finance Committee meeting
to order at 1:50 P.M.
PRESENT
Co-Chair Hanley Representative Kelly
Co-Chair Therriault Representative Kohring
Representative J. Davies Representative Martin
Representative G. Davis Representative Moses
Representative Foster Representative Mulder
Representative Grussendorf
ALSO PRESENT
Ron Somerville, House & Senate Majority Consultant; Ted
Popely, House & Senate Majority Attorney; Mary Pete,
Director, Division of Subsistence, Department of Fish and
Game; Crystal Smith, Assistant District Attorney,
Department of Law.
SUMMARY
HB 325 An Act making appropriations for the operating and
loan program expenses of state government, for
certain programs, and to capitalize funds; making
appropriations under art. IX, sec. 17(c),
Constitution of the State of Alaska, from the
constitutional budget reserve fund; and providing
for an effective date.
HB 325 was HELD in Committee for further
consideration. All Subcommittee reports were
adopted.
HB 406 An Act relating to subsistence uses of fish and
game.
CS HB 406 (FIN) was reported out of Committee with a
"do not pass" recommendation. The fiscal notes will be
addressed at another meeting.
HOUSE BILL NO. 325
"An Act making appropriations for the operating and
loan program expenses of state government, for certain
programs, and to capitalize funds; making
appropriations under art. IX, sec. 17(c), Constitution
of the State of Alaska, from the constitutional budget
reserve fund; and providing for an effective date."
Representative Mulder MOVED to adopt all subcommittee
reports. There being NO OBJECTION, they were adopted.
HB 325 was HELD in Committee for further consideration.
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and
game."
Co-Chair Therriault stated that the Committee would be
working from the House Judiciary version of the proposed
legislation. He referenced Section 2(b)(3) and asked if
requirements for adopting those regulations would be
needed.
RON SOMERVILLE, HOUSE AND SENATE MAJORITY CONSULTANT,
replied that it would not be necessary to have a further
allocation.
Co-Chair Therriault spoke to the membership of the advisory
board noting concern that the majority of the board
represented urban Alaska. Mr. Somerville recommended that
further clarification be made regarding who would make
those appointments and the number of members on the board.
He pointed out that clarification had been included in
previous versions, however, it had been removed from the
House Judiciary version.
Representative J. Davies questioned if the current version
of the bill was consistent with Alaska National Interest
Lands Conservation Act (ANILCA). Mr. Somerville replied
that ANILCA would need to be changed if the version before
the Committee was presented to Congress as the ultimate
solution. Representative J. Davies asked if those changes
were feasible.
TED POPELY, HOUSE AND SENATE MAJORITY ATTORNEY, advised
that he did not have enough information to date regarding
that concern.
Representative J. Davies inquired if the House Judiciary
version of the legislation would require a constitutional
amendment. Mr. Somerville and Mr. Popely noted that a case
could be made for no constitutional amendment, but only the
courts could answer that question.
Representative J. Davies referenced Page 5, Line 3, and
asked if there would be objection to modifying that
language, deleting "a" and inserting "the". Mr. Somerville
replied that such a change would create a substantial
difference. Mr. Popely agreed, pointing out that use of
"a" afforded more flexibility when making the
determination. Representative J. Davies suggested that it
provided too much flexibility.
Representative Grussendorf advised that the proposed
legislation does not meet the ANILCA test. He questioned
the changes which the State would need from ANILCA to make
this work. Mr. Popely responded, there are a number of
concerns to consider in establishing the definition of what
constitutes public lands. With respect to the proposed
statute, these are the areas of concern:
? The dependency criteria which are related to the
preference scheme and do not exist in Title VIII.
? The authority of the State to establish non-
subsistence areas.
? Eliminating the reference to the term rural.
? Amending the entire rural preference scheme.
? In Section 804, the local residency requirement
needs to be changed.
? Definitions need to match each other. There are
several definitions in State law which are not
contained in federal law.
? The local and regional advisory committees would
have to be amended to mirror State law.
Co-Chair Therriault interjected that consideration must
also be given to the eliminating "rural" since that would
not allow a person living in an urban area to petition for
inclusion. "Rural" should be replaced with some mechanism
which could allow rural preference while at the same time,
would allow someone to make application. Mr. Popely noted
that the application of "rural" indicates simply a place of
residence.
Representative Kelly asked if HB 406 was closer to moving
the State to a workable solution. Mr. Somerville responded
that the proposed legislation was quite different from what
is currently in State statute. The proposed legislation
would craft priorities, while allowing the board to be able
to establish a "presumption" regarding the areas
experiencing the shortage. Mr. Somerville noted that the
bill would provide more of a preference than existing State
law.
Representative Kelly suggested that the provision would
protect Native Alaskans authority to fish and hunt more so
than contained in ANILCA. Mr. Somerville remarked that the
design of the proposed legislation would give Native
Alaskans and their extended families justification for
their hunting and fishing rights. That would be more
advantageous than the current language under ANILCA.
Representative Kelly understood that Bethel, under ANILCA,
would possibly no longer be considered a subsistence area.
Mr. Somerville replied that there are a number of
communities which are starting to reach the upper limits of
the 7500 resident established cut off. He agreed that
Bethel could be eliminated. The federal government
established 7500 as the high plateau in which communities
larger than that could essentially be considered urban.
Representative Kelly questioned why Native groups would be
in support of ANILCA, with the possibility that their area
could be labeled "urban" cutting them off. Representative
Grussendorf advised that federal guidelines use other
criteria to establish what is rural and what is urban
outside of the population number.
Representative Grussendorf addressed the recommended
changes suggested by Mr. Popely. He questioned the amount
of time it would take to accomplish those goals. Mr.
Popely advised that these changes would have to be to
federal statute, requiring congressional action. The
current provisions of ANICLA are under moratorium, due to
expire December, 1998. He admitted that the time frame was
limited to whenever Congress could enact changes to the
legislation.
Representative Grussendorf referenced Page 9, Line 24-27,
which identifies non-subsistence hunting and fishing areas
asking how it would be implemented. Mr. Popely replied
that the intent would relate back to determinations made by
the Board regarding what non-subsistence areas are. In
application of that criteria, the intent was to reassess
those communities and make a determination that there are
more non-subsistence areas than are currently included in
law.
Co-Chair Therriault asked if there was a compelling reason
to include "substantially" instead of "may". Mr.
Somerville commented that would be a legislative policy
decision. Representative J. Davies asked if the Judiciary
version implied that existing areas do not meet the
necessary criteria. Mr. Somerville responded that was not
the implication and that the Board will review the
criteria.
CRYSTAL SMITH, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF
LAW, noted that she was present in the absence of Steven
White, the attorney who has responsibility for the
subsistence issue. She said he is very sick, and offered
to give him the Committee's questions and would then
provide a response. Representative Grussendorf asked for
further information regarding why the legislation does not
meet the standard for the Alaska State Constitution.
MARY PETE, DIRECTOR, DIVISION OF SUBSISTENCE, DEPARTMENT OF
FISH AND GAME, stated that the bill in its present form was
not consistent with ANILCA. She advised that Senator
Stevens is not happy with the proposed legislation.
Disqualifying large groups of people is significant. The
bill in its present form, mandates significant increases in
non-subsistence portions of the State, which could mean
that 10% of the current qualifying population would be
disqualified. She stressed that this would encompass a
tremendous amount of people and would create a significant
change to ANILCA.
Ms. Pete added, in current process, the State must
implement the subsistence law. That law is clear. The
only portion of the proposed process which parallels the
current process is the Tier II step. Representative J.
Davies asked if the proposed legislation would require a
constitutional amendment. Ms. Pete noted that Mr. White,
Assistant Attorney General, had advised that it would.
Co-Chair Therriault spoke to the Department of Fish and
Game's fiscal note. He inquired if the proposed amount was
derived from the bill's current wording and what that
increase would identify. Ms. Pete responded that the
fiscal impact resulted from the new definition of a
subsistence "area".
(Tape Change HFC 98- 100, Side 2).
Ms. Pete added that the fiscal note indicates the
communities which will have to be excluded. The bottom of
the note lists the current non-subsistence communities; the
top of the note lists the communities which would be
presumed excluded if that definition was used. The current
version of the bill mandates that a person wanting to hunt
or fish has to qualify by stock and population. If that
person wants to fish more than one fish stock, they would
be required to apply for each fish stock separately. In
village households, the majority hunts and fish using
either subsistence fishing regulations or current hunting
regulations. She added that the fiscal note prepared by
the Department covers costs for the minimum amount of
estimated applications.
Co-Chair Therriault referenced the definition of "shall" on
Page 5. He advised that it would be a "leap" to assume
that the communities listed would be "absolutely" moved
into a non-subsistence category. Ms. Pete agreed. She
pointed out that in helping the board go through and make a
non-rural determination, the data-based characteristic that
was used to determine subsistence areas was listed on Line
22, #9, the harvest levels. She stressed that this was the
"heart" of the database used at the Department of Fish and
Game, and that most of the other characteristics are
difficult to measure and quantify.
Co-Chair Therriault WITHDREW Amendment 1. [Copy on File].
He pointed out the similarity between Amendment #1 and
Amendment #5 as prepared by Representative Kelly. [Copy on
File].
Co-Chair Therriault MOVED to adopt Amendment #2. [Copy on
File]. Representative J. Davies OBJECTED for the purpose
of discussion.
Co-Chair Therriault explained that it was the Legislature's
intent that fish and game resources be managed so that
Alaska continues to have abundance in order that all uses
be satisfied. The language of the amendment would
guarantee that.
Mr. Somerville explained that Amendment #2 contains three
identical parts which would be inserted as an instruction
by the Legislature to the Department to get fish and
hunting levels back up to provide for presumptive uses.
Representative Grussendorf noted that there should be a
fiscal note attached to the proposed amendment. Co-Chair
Therriault asked if the amendment would be a directive
requiring the Department to do something more than they
currently perform. Mr. Somerville suggested that it would
be a directive from the Legislature, although, there would
be no penalty from the board if the requirements were not
satisfied. Representative Grussendorf reiterated that
there will be money attached to the directive. Mr.
Somerville replied that was not the intent.
Representative J. Davies WITHDREW the OBJECTION to adopt
Amendment #2. There being NO OBJECTION, it was adopted.
Co-Chair Therriault MOVED to adopt Amendment #3. [Copy on
File]. He explained that the amendment attempts to add
further definition by referencing a constitutional
provision. It would change the language to be consistent
with Article VIII, Section #4. There being NO OBJECTION,
it was adopted.
Co-Chair Therriault MOVED to adopt conceptual Amendment #4.
[Copy on File]. He explained that the amendment would
clarify the number of representatives on the Board
specifying that no fewer than four members come from the
impacted area. Ms. Pete noted that the language was closer
close to that proposed by the task force.
Representative J. Davies suggested that language be drafted
into two sentences; the first would indicate that it be
composed of two well-informed people and the second that it
would consist of nine members appointed by the Governor.
Co-Chair Therriault agreed to accept that as a "friendly"
amendment to Amendment #4.
Representative Foster asked why the amendment recommended
only "4" of the members reside in the affected area. He
MOVED that "4" be changed to "5". There being NO OBJECTION
it was changed. There being NO OBJECTION to the amended
Amendment #4, it was adopted.
Representative Kelly MOVED to adopt Amendment #5.
Representative J. Davies OBJECTED. Representative J.
Davies MOVED to delete the first third of the amendment,
Page 1, Line 5. Representative Mulder OBJECTED. He
thought that without that portion, the meaning would be
changed because the first finding addresses the management
of the land, a primary consideration of ANILCA's land
management and is consistent with subsistence use. Co-
Chair Therriault believed that could occur with multiple
use statutes.
Representative Kelly replied that there are land use plans
and a number of permits which address multi-use. Mr.
Somerville addressed the issue of multiple use versus
single use. Representative Kelly recommended that the
language remain in the amendment. Representative
Grussendorf stressed that the State can not manage federal
lands. Representative J. Davies believed that the
amendment would move the bill further from being consistent
with ANILCA.
Representative Kelly advised that without that language the
authority would be expanded. Representative Grussendorf
worried that the title was so broad that a lot more could
be inserted into it. Mr. Popely explained that it would be
in compliance with ANILCA. He referenced the section which
requires that the State enact laws which comply with ANILCA
in order to resume management. Technically, that section
does not require that there be a word for word match
between ANILCA and State law but rather that Sections 802,
803 and 805 be in compliance.
Representative Grussendorf reminded members that
"subsistence" also includes harvesting of berries, willow
roots and anything else that people use off the land.
Representative Kelly reiterated that if that language is
removed, the legislative language will not match ANILCA,
and at the same time would not be out of compliance with
ANILCA. If it is left in, legislative language will enact
into State law a new provision which would define the use
of the land, tying subsistence and the land together in a
new way. He urged that the Committee adopt the amendment.
Mr. Popely agreed that this was a proper characterization
of that language.
Representative Grussendorf questioned why the State should
put itself at risk when addressing federal and state lands.
A roll call vote was taken on the motion to delete the
first section of the amendment.
IN FAVOR: Moses, J. Davies, G. Davis, Grussendorf,
Foster
OPPOSED: Martin, Mulder, Kelly, Hanley, Therriault
Representative Moses was not present for the vote.
The MOTION FAILED (5-5).
(Tape Change HFC 98- 101, Side 1).
A roll call vote was taken on the motion to adopt Amendment
IN FAVOR: Moses, Mulder, G. Davis, Kelly, Martin,
Therriault, Hanley
OPPOSED: J. Davies, Grussendorf, Foster
Representative Kohring was not present for the vote.
The MOTION PASSED (7-3).
Co-Chair Therriault MOVED to adopt Amendment #6. [Copy on
File]. He explained that it would restrict the legislation
to the issue of subsistence. There being NO OBJECTION, it
was adopted.
Representative Mulder MOVED to report CS HB 406 (FIN) out
of Committee with individual recommendations and with the
accompanying fiscal notes. Co-Chair Therriault asked to
leave off the fiscal notes until the Committee has received
the new ones. Representative Mulder revised his motion to
only move the bill.
Representative Grussendorf OBJECTED to moving the bill from
Committee. He stated that the legislation counters
constitutional principles which could cause problems for
the State. He indicated that he would remove his
OBJECTION, although, stressed that the legislation falls
short of meeting the constitutional test.
Representative Foster OBJECTED to moving the bill from
Committee, pointing out that all the village people are
very sincere in their objection to this piece of
legislation, whereas, rural preference continues to be
guaranteed under the federal protection.
A roll call vote was taken on the motion to move the bill.
IN FAVOR: Mulder, G. Davis, Kelly, Martin, Hanley,
Therriault
OPPOSED: J. Davies, Grussendorf, Foster, Kohring,
Moses
The MOTION PASSED (6-5).
CS HB 406 (FIN) was reported out of Committee with "do not
pass" recommendation. Co-Chair Therriault stated that the
bill would be noticed at the next scheduled meeting in order
that the fiscal notes could be addressed.
ADJOURNMENT
The meeting adjourned at 3:40 P.M.
H.F.C. 10 4/09/98
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