Legislature(1999 - 2000)
03/15/1999 05:15 PM House FSH
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* first hearing in first committee of referral
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HOUSE SPECIAL COMMITTEE ON FISHERIES
March 15, 1999
5:15 p.m.
COMMITTEE CALENDAR
PRESENTATION: IMPLICATIONS OF FEDERAL MANAGEMENT OF SUBSISTENCE
FISHERIES
TAPE(S)
99-4, SIDE(S) A & B
99-5, SIDE A
CALL TO ORDER
Representative Hudson, Chairman, convened the House Special
Committee on Fisheries meeting at 5:15 p.m.
PRESENT
Committee members present at the call to order were
Representatives Whitaker, Harris, Morgan, Kapsner, Smalley.
Representative Dyson was absent. Other legislators present were
Senator Taylor, Representatives Green, Austerman and Ogan.
SUMMARY OF INFORMATION
TOM BOYD provided the committee with an overview of the federal
program. The Office of Subsistence Management is lead agency
coordinator for five different agencies: U.S. Fish and Wildlife
Service, Bureau of Indian Affairs, Bureau of Land Management, the
National Park Service and the U.S. Forest Service. His office
oversees operation of the program and provides support to the ten
regional councils and the Federal Subsistence Board.
MR. BOYD stated that the Federal Government is honestly reluctant
to be on the threshold of implementing federal management on
October 1, 1999. There have been four congressional moratoria
that have kept the Federal Government from taking over, but the
final regulations were published on January 8, 1999, and will be
implemented on October 1, 1999. He considers it a phase-in
approach to give the state legislature the opportunity to act and
prevent the takeover.
MR. BOYD said they have not yet received money to implement the
federal program, but Congress authorized $11 million in the 1999
appropriations. $1 million will be appropriated on June 1, 1999,
and the remainder will be available at the end of September. He
believes he can clearly state that "this is it". Secretary [of
the Interior] Babbitt and Glickman will recommend a presidential
veto if there is any attempt on the part of Congress to forestall
a takeover or to significantly alter ANILCA.
MR. BOYD said pursuant to the federal regulations, their
jurisdiction extends to all areas on the map that are in red
(refers to USFWS map), including conveyed but not yet selected
lands. The regulations acknowledges the Secretaries' authority
extends beyond federal public lands; allows the Federal
Subsistence Board (FSB) to delegate in-season decisions to
federal managers in the field; uses the State's subsistence
regulations as a starting point much like they did with game.
REPRESENTATIVE AUSTERMAN asked if they could define navigable
waters in terms of how far does federal jurisdiction extend? For
instance, if there is a shortage of fish up river on the Yukon,
how far can the federal government go to find a solution?
MR. BOYD responded that he can only answer tell the Committee
what their jurisdiction is pursuant to the final regulations
which is within the boundaries and adjacent to public lands. The
Secretaries can extend their jurisdiction in order to provide for
subsistence users.
REPRESENTATIVE KAPSNER stated that her constituency is very much
in favor of a federal takeover, mostly because the current
federal administration is so favorable. What happens if the
composition of the FSB changes?
JIM CAPLAN and MR. BOYD responded that the program has been in
place since 1990 and has gone through two administrations both
Democrat and Republican. There has not been a significant shift
under either. Different administrations may have a different
emphasis, but they all have to follow the law, and ANILCA is
quite clear.
REPRESENTATIVE OGAN stated that the 1953 Submerged Lands Act
deeded under a fee-simple title ownership all submerged lands,
all waters and all resources within. The question [the
legislature] has asked the court is whether Title VIII of ANILCA
undid the Submerged Lands Act. It might help to have you explain
what is the difference between reserved water rights versus
navigable waters.
MR. CAPLAN responded that he would feel more comfortable having a
panel of attorneys to answer that question. In one sense, it is
not about submerged waters, it is about the management of fish
for subsistence purposes. That is where the regulations and the
Federal Subsistence Board and the Secretaries are focused. It is
about bring wild foods to rural residents. Is there federal
jurisdiction in marine waters? Of course. The Marine Mammal
Protection Act and the Halibut Treaty are both areas where the
federal government makes regulations and regulates use. This is
a similar area. He suggested that requesting legal analysis
would be appropriate.
REPRESENTATIVE OGAN stated that this is about fundamental rights
of the state, which should be on equal footing with all the other
states including the submerged lands. This is about one
sovereign state undermining another. It's not about management
of fish or subsistence.
MR. CAPLAN replied that he wasn't there to pass judgment on what
this committee's interests are, but he does know what the
Secretary's interests are. It is true that there may be legal
issues that the state or the legislature could pursue. He
believes that the legislature has done it once and could do it
again. But "our" interest is much more specific to the delivery
of fish to folks who want to eat them.
MR. BOYD added that regarding to the question of the Submerged
Lands Act being in conflict with Title VIII of ANILCA, this
action stems from a Ninth Circuit Court of Appeals decision where
they looked at the definition of public lands. It is defined as
lands waters and interests therein. The court determined that
there was an interest in those waters, not ownership, not title
ownership, by virtue of the reserved water rights doctrine. If
ones goes back to 1990, "we" took the position that our
jurisdiction did not extend to navigable waters. The court kind
of turned "us" around on that, essentially. So the focus is not
so much the Submerged Lands Act as the definition of public lands
in ANILCA, and the court interpreted public lands broadly and
focused on the language "interest therein."
REPRESENTATIVE OGAN stated that the Secretary of the Interior has
a trust relationship with Alaska Natives. Why is the Secretary
ignoring Natives with a spiritual or cultural need for
subsistence that live in urban areas? Isn't that arbitrary
discrimination?
MR. CAPLAN responded that Title VIII serves rural Alaska. There
are lots of different provisions of law. This is one case where
a distinction is drawn between urban and rural. It doesn't limit
other things the Secretary is required to do on behalf of Alaska
Natives.
REPRESENTATIVE GREEN stated that the federal managers are using
the state's format for the subsistence program. If the state
program is good enough to be mimicked, why, then, does the
Secretary not accept that program and allow the state to manage?
MR. BOYD said his sense is that perhaps the Secretary felt that
the proposal is in violation of a key element of ANILCA to
provide a priority for rural residents. It may in some cases,
but in some cases it may not.
REPRESENTATIVE GREEN asked: You have been administrating the big
game for several years. How much is expended on federal lands?
MR. BOYD pointed out they have a budget about $7.5 million
between five agencies.
SENATOR TAYLOR asked what was the purpose of a federal
reservation of water for the Tongass? In litigation in Colorado
on 500 streams, the Forest Service had to provide one purpose for
each stream. What is the purpose on the Tongass? Water to
transport logs, help trees grow?
MR. CAPLAN stated the original proclamation was not that specific
but certainly it is intended to maintain favorable flows of water
and high quality of water for fisheries and other things.
Generally, when there are many purposes we do not just pick one.
This is another instance when it would be well to have attorney's
present to answer these questions. Certainly, the original
framers had something in mind because they took the boundaries of
the Tongass out to 60 miles around Prince of Wales Island and out
to 15 miles around Yakutat. I would just have to conclude that
they had more in mind than just providing waters for trees.
SENATOR TAYLOR said obviously, you don't know, but I appreciate
your comments. Is it your agency, state or federal, in
implementation of this law, ANILCA - what part can you disregard?
Do you have discretion to ignore parts of it? If you use this
definition, which isn't sustained yield, if you choose to manage
for sustained yield you would be in violation of the law.
MR. BOYD explained that they strive to obey the statute. They
manage for maintenance of healthy fish and wildlife populations.
In practice, it is fairly similar to sustained yield.
SENATOR TAYLOR said whether the state manages or the federal
government manages, no one can change one dot of this. We have
to make certain that no Native in Anchorage gets a chance at
subsistence. We have to do that like you do.
MR. BOYD said I don't think I read it the same way you do. The
priority is for rural Alaska residents. It doesn't say others
can't participate. As long as we are providing a priority for
rural residents, other urban and even non-residents of the state
can participate as long as there are enough of the resources to
be allocated to those different users. To say that no one else
can participate, that's the point I where I would disagree with
you.
SENATOR TAYLOR said if we had amended the constitution and rolled
over to everything you people in the federal government have
asked for, Mr. Rue would have no more to vary from or change
these rules than you do.
MR. BOYD indicated he thinks Section 805 of ANILCA allows the
state to pass and implement laws of general applicability to
Sections 802, 803, and 804. I think you're speaking to 802 that
deals with the policy. It is the policy of the federal
government that if the federal government is managing, the
Secretaries have the responsibility to use the particular
standard you spoke to. The State could, under its laws, if they
provided a rural priority could implement the essence of Title
VIII of ANILCA. The Secretaries have a responsibility outlined
in sections 803, 804, 805, but section 805 allows room under the
banner of general applicability for the state to implement its
laws including sustained yield.
REPRESENTATIVE SMALLEY asked: The state has a priority to meet
escapement goals; do you plan to use escapement goals set by the
state? And how much cooperation do you anticipate between the
state fish and game and federal agencies?
MR. BOYD said as far as your first question, I don't know. As
far as cooperation with state agencies, hopefully it will be good
cooperation with the department and the Board of Fish[eries]. To
date, we've had good cooperation and that's helped minimize
conflict. There is a subsistence priority in statute and I think
in have worked well so far I think in rural Alaska we serve same
user. And, I think we have similar mandates in regard to
conserving the resource. Obviously, we won't see every issue the
same way, but to date we've been able to work very well.
CHAIRMAN HUDSON said: Moving into this federal management, tell
us where this is going and what your concerns are, and what types
of questions should we be asking.
COMMISSIONER RUE stated I don't think you'll see a huge
difference on Oct. 1, 1999; it will take a while for the federal
system to engage and start diverging from the state system.
We're not going over the cliff on October 1. You will begin to
see a change over time. The state will still be managing for
subsistence on state lands and for commercial and sport on all
lands. There really are more questions than answers. Are we
going to be in court over every creek to determine whether its
been reserved. It's hard to tell what success is under the
federal system. We've suggested the Federal Board tell us how
many fish is reasonable number for a federal-qualified area.
That's not something they do now. So we're not sure when we'll
be successful, when we've done enough. Customary trade will be
defined by region, so there will be different definitions.
"Customary and traditional use finding" is something our state
boards already do and the federal board will do also. Mary Pete
put together a flow chart showing an existing example under Game
and an example for salmon on the Copper River.
MARY PETE, Director, Division of Subsistence, Alaska Department
of Fish and Game, explained the flow chart outlining the
difference between state and federal subsistence implementation
of subsistence regulations. While the federal agencies adopted
the same Customary and Traditional use designation, they have
made a determination of the number of salmon reasonably necessary
for users. The state first determines whether there is a surplus
for all users then there is regulations for all users. Since the
federal board does not make a determination of the number
necessary for federal users it's difficult to see how our current
uses would have to be adjusted. The Copper River salmon stocks
are fully utilized that increase use would have to come out of
somewhere. There is a personal-use fishery that are mostly
Fairbanks and Anchorage residents. and certainly the commercial
fishery might have to give up some time. The state attempts to
accommodate all sorts of uses on the Copper River; we may have to
realize restrictions on our fisheries because these are fully
utilized stocks. The sheep example is a good one because it
shows how the state had to close or restrict the sport hunt to
accommodate the Federal Subsistence hunt. In the federal
program, their only mandate is to provide for subsistence uses.
CHAIRMAN HUDSON pointed out we also provide a subsistence
priority but not just to rural residents, in some cases we could
have the federal managers providing for the priority. If you
don't know exactly what areas they are responsible for and what
we are responsible for, it's complex enough to manage for maximum
use of all these different people, which is a constitutional
requirement,
SENATOR TAYLOR said looking through the federal regulations, they
have different amounts of salmon that can be taken from the
Copper River. Do you have a listing or the number of people,
individuals, households, and communities? How many qualify for
this type of permit?
MS. PETE indicated she didn't know and would have to get back to
the committee with this information.
REPRESENTATIVE OGAN asked whether this would undermine limited
entry?
COMMISSIONER RUE replied that there are different definitions of
customary trade. One of the things that [U.S. Senator] Stevens'
amendment to ANILCA would do was to make the two definitions
consistent. The difference in definitions could cause limited
entry system to not work on the Yukon River where folks make a
few thousand dollars and that can be consistent with customary
trade. We don't really know what the federal definition will be
since they are planning to do it on a regional basis.
REPRESENTATIVE OGAN read the definition from the Federal
Register.
REPRESENTATIVE GREEN described a hypothetical situation. If we
assume that we have a river that flows through blue and red
(i.e., state and federal lands) areas and there's a difference of
opinion of what needs to happen. With federal control on the
upper end and state interests on the lower, where would we go to
resolve this?
MS. SWIDERSKI responded that we could only speculate and have to
wait and see what the difference is and work from there.
MR. MECUM added that the conservation burden will likely fall on
the state. From the perspective of a commercial fisheries
manager, I'm going to have to close down fisheries in order to
achieve sustained yield or Fish Board allocations.
CHAIRMAN HUDSON invited Mr. Boyd and Mr. Caplan up to the witness
chairs to ask a few additional questions. What authority do
field managers have? For instance, the state field mangers have
broad authority to open and close fisheries on a real-time basis.
How will the Federal managers handle that?
MR. BOYD responded that they had not made a determination of who
will get that authority as they are still putting together the
organizational structure.
CHAIRMAN HUDSON asked about our obligation under the Yukon River
Salmon Treaty. Do the provisions of the treaty supersede the
subsistence priority?
MS. PETE responded that our obligation to meet the treaty is
higher than our own state subsistence priority. And, Mr. Boyd
stated he was unsure about how the treaty obligation fit in with
the federal subsistence program.
CHAIRMAN HUDSON stated that it is important for the public to
know where federal public lands and waters are so they know who
has jurisdiction and what regulations apply.
MR. BOYD responded that he hoped he hadn't sounded overly
optimistic about the difficulties of dual management. He is
trying to make this work so he has to approach it from that
perspective, but realistically, as the Chair has stated, it is
very complicated; it is almost untenable. I hope we can resolve
most of the conflicts and to the extent we can we will work to
define where federal jurisdiction is in a more user- friendly
manner than the federal register notice.
CHAIRMAN HUDSON asked if there was a conflict among user groups
which court would handle it?
MS. SWIDERSKI replied that it would be in federal court even if
the conflict takes place on state waters. If the federal
government is a party to the case, it will be heard in federal
court.
SENATOR TAYLOR asked if the federal government planned to
contract out their enforcement program.
MR. CAPLAN responded that the federal agencies often have
cooperative agreements with state and local law enforcement
agencies but that they are not at the point yet with the
subsistence program.
REPRESENTATIVE OGAN requested that the Department of Interior
allow the State of Alaska to have its day in court on this issue,
and that this will not be settled until we have our day.
REPRESENTATIVE SMALLEY stated that it sounds as if the state may
be in court a lot if there is a federal takeover. He asked the
Department of Fish and Game whether their budget reflects this
increase cost.
COMMISSIONER RUE replied that the Department's budget does not
include funding for that type of activity.
REPRESENTATIVE GREEN presented another hypothetical situation.
He asked if two people: one a federally qualified subsistence
user and the other a state subsistence user were both fishing, is
it conceivable that the federally qualified individual could
actually end up with far more fish than the other.
MS. PETE responded that yes that is possible. Mr. Boyd preferred
not to respond to a hypothetical situation.
CHAIRMAN HUDSON thanked the hearing participants. He also
pointed out that there are some very serious problems with multi-
agency management, particularly with salmon. Management
decisions must be made in a timely manner otherwise entire
livelihoods could be lost.
COMMITTEE ACTION
The committee took no action.
ADJOURNMENT
The House Special Committee on Fisheries meeting was adjourned at
7:03 p.m.
NOTE:
The meeting was recorded and handwritten log notes were taken. A
copy of the tape(s) and log notes may be obtained by contacting
the House Records Office at 130 Seward Street, Suite 211, Juneau,
Alaska 99801-1182, (907) 465-2214, and after adjournment of the
second session of the Twenty-first Alaska State Legislature, in
the Legislative Reference Library.
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