Legislature(1999 - 2000)
09/26/1999 07:45 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| * | HJR202 | ||
HOUSE JUDICIARY STANDING COMMITTEE
September 26, 1999
7:45 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
All members present
OTHER HOUSE MEMBERS PRESENT
Representative Grussendorf
Representative Whitaker
Representative Halcro
Representative Harris
Representative Phillips
Representative Kapsner
Representative Austerman
Representative Morgan
Representative Joule
Representative Hudson
Representative Berkowitz
Representative Cissna
Representative Williams
Representative Dyson
Representative Davies
Representative Therriault
Representative Bunde
Representative Mulder
OTHER SENATE MEMBERS PRESENT
Senator Halford
Senator Torgerson
COMMITTEE CALENDAR
* HOUSE JOINT RESOLUTION 202
Proposing amendments to the Constitution of the State of Alaska
relating to use of renewable resources for subsistence by
residents.
- MOVED CSHJR 202(JUD) OUT OF COMMITTEE
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 202
SHORT TITLE: CONST.AM: SUBSISTENCE
SPONSOR(S): RULES BY REQUEST
Jrn-Date Jrn-Page Action
9/25/99 1827 (H) READ THE FIRST TIME - REFERRAL(S)
9/25/99 1827 (H) JUD, FIN
9/26/99 Text (H) FIN AT HOUSE FINANCE 519
PENDING REFERRAL
9/26/99 Text (H) JUD AT CAPITOL ROOM 120
WITNESS REGISTER
GEORGE UTERMOHLE, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Reviewed the changes in proposed CS for
HJR 202, Version G.
BRUCE BOTELHO, Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Telephone: (907) 465-2133
POSITION STATEMENT: Discussed his concerns with proposed CS for
HJR 202, Version G.
JULIE KITKA, President
Alaska Federation of Natives
1594 C Street, Suite 300
Anchorage, Alaska 99501
Telephone: (907) 274-3611
POSITION STATEMENT: Discussed problems with proposed CS for
HJR 202, Version G.
NORMAN COHEN, Legal Counsel
for the Alaska Federation of Natives (AFN)
204 North Franklin Street, Number 1
Juneau, Alaska 99801
Telephone: (907) 586-2360
POSITION STATEMENT: Answered questions on behalf of AFN relating
to proposed CS for HJR 202, Version G.
DICK BISHOP, Vice President
Alaska Outdoor Council
1555 Gus's Grind
Fairbanks, Alaska 99709
POSITION STATEMENT: Testified that proposed CS for HJR 202,
Version G, inadequately addresses needs of
all Alaskans, but made suggestions.
DAVID KELLEYHOUSE, Member
Board of Directors
Alaska Outdoor Council
P.O. Box 81452
Fairbanks, Alaska 99708
POSITION STATEMENT: Provided potential amendments to Section 1 of
proposed CS for HJR 202, Version G.
STEPHEN WHITE, Assistant Attorney General
Natural Resources Section
Civil Division (Juneau)
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Answered questions relating to proposed CS for
HJR 202, Version G.
ACTION NARRATIVE
TAPE 99-72, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 7:45 p.m. Members present at the call to order
were Representatives Kott, Green, Rokeberg, James, Murkowski, Croft
and Kerttula. Other House members present were Representatives
Grussendorf, Whitaker, Halcro, Harris, Phillips, Kapsner,
Austerman, Morgan, Joule, Hudson, Berkowitz, Cissna, Williams,
Dyson, Davies, Therriault, Bunde, and Mulder. Senate members
present were Senators Halford and Torgerson.
HJR 202 - CONST.AM: SUBSISTENCE
CHAIRMAN KOTT announced that the only order of business before the
committee is House Joint Resolution No. 202, Proposing amendments
to the Constitution of the State of Alaska relating to use of
renewable resources for subsistence by residents.
Number 0120
REPRESENTATIVE ROKEBERG made a motion to adopt the proposed
committee substitute (CS) for HJR 202, version 1-LS1137\G,
Utermohle, 9/26/99, as a work draft.
REPRESENTATIVE CROFT objected, specifically to subsection (c), page
2, lines 16 to 21, and to the fact that the committee and the
public have not had time to review Version G for compliance issues.
He wished to reserve consideration for these issues and simply
discuss the original version of HJR 202.
CHAIRMAN KOTT explained that to meet the deadline of Thursday at
midnight, he had prepared Version G as quickly as possible to
disseminate to all members. He added that the initial portion of
Section 1 is basically the resolution that was referred to this
committee, and it was the previous CS that this committee heard in
the House Resources Committee. This is not a totally new idea, he
said, although Section 2 is new.
REPRESENTATIVE ROKEBERG noted that Section 1 is, verbatim, what was
before them for four days, and the other sections have all been
seen before in the past 18 months on numerous occasions.
Number 0458
REPRESENTATIVE KERTTULA asked Chairman Kott from whom he got
Section 2.
CHAIRMAN KOTT answered that he had worked with a number of people.
As Representative Croft maintained his objection, he requested a
roll call vote. Representatives James, Murkowski, Green, Rokeberg
and Kott voted to adopt the proposed CS as a work draft.
Representatives Croft and Kerttula voted against it. Therefore, by
a vote of 5-2, Version G was before the committee.
The committee took an at-ease from 7:50 - 8:07 p.m.
Number 0620
GEORGE UTERMOHLE, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, came forward to testify. He
explained that Section 1 of the resolution provides for an
amendment to Article VIII, Section 4, the sustained yield section
of the state constitution, adding a new subsection (b). This
subsection provides that the legislature may grant a preference to
and among residents for a reasonable opportunity to take an
indigenous subsistence resource, and it sets out four bases on
which the legislature may do that. It goes on to say, "The
preference may be granted only when the harvestable surplus of the
resource, consistent with the sustained yield principle and sound
resource management practices, is not sufficient to allow a
reasonable opportunity for all beneficial uses."
MR. UTERMOHLE informed members that Section 2 of the resolution,
which adds Sections 30 and 31 to Article XV of the constitution,
provides an effective date and a repeal date under which the
amendment added by Section 1 of the resolution would be repealed.
The first provision of Section 30, which is added to the
transitional provisions of the constitution, provides that the
amendment would take effect immediately upon certification of
election results by the Lieutenant Governor. Subsections (b) and
(c) of this provision provide two instances where the
constitutional amendment to Section 4 [of Article VIII] would be
repealed: first, when a federal court decides that the rural
subsistence priority under ANILCA violates the U.S. Constitution,
and second, when the governor determines that state management of
fish and wildlife on state land, including navigable waters, has
been preempted by the federal government under terms of ANILCA.
Also, Section 31 is added to the transitional provisions of the
constitution; it would provide that the legislature may bring an
action in the name of, and on behalf of, the state in an
appropriate federal court to challenge the constitutionality of the
rural subsistence preference under federal law.
Number 0849
MR. UTERMOHLE noted that Section 3 of HJR 202 sets out the purpose
of the amendment: to provide a preference for subsistence uses of
fish, wildlife and other renewable resources; to ensure state
management of fish and wildlife throughout the state; and to bring
the state into compliance with Title VIII of ANILCA. Finally,
Section 4 provides that this constitutional amendment shall be
placed before the voters at the next general election.
REPRESENTATIVE CROFT referred to page 1, subsection (b), which
would be added to Section 4 of Article VIII of the constitution.
He asked whether it allows the legislature to write a statute that
would be in compliance with ANILCA.
MR. UTERMOHLE answered that he doesn't believe it would allow the
state to come into compliance, despite the provision in Section 3
of Version G that states the intent to do so. The terms are vague
and subject to some interpretation and construction by the courts.
He doesn't believe that this "purpose" section can be used to make
those words say much more than what they actually do. In response
to Representative Croft's restatement of his earlier question, Mr.
Utermohle explained that there is significant tension between the
two parts of the amendment. Section 3 is not part of the
constitution but is a guidance for construction; he doesn't believe
it is sufficient to override the plain meaning of the words in the
constitutional amendment.
CHAIRMAN KOTT indicated he would allow other legislators who are
present at the hearing to ask questions.
REPRESENTATIVE ROKEBERG referred to Bess v. Ulmer and asked Mr.
Utermohle if the addition of Section 2 would be classified as a
revision, notwithstanding the fact that it is on the same topic.
Number 1056
MR. UTERMOHLE responded that in prior statements regarding a number
of subsistence amendments that provide an allocation of preference
to engage in subsistence activities among Alaskans, he had advised
various committees that they raised the issue of the Bess v. Ulmer
decision: the amendment might pose a risk of being determined to
be a revision rather than an amendment to the constitution, because
the amendments implicate so many other provisions of the
constitution. A provision providing for a rural subsistence
preference addresses the following clauses: common use, uniform
application and no exclusive right of fishery. Furthermore,
litigation and decisions by the court have said such provisions
implicate the equal protection and due process provisions. To
Representative Rokeberg's specific point, the addition of language
here authorizing the legislature to sue on behalf of the state
implicates even additional provisions of the constitution by
implicating the power of the governor to enforce the laws of the
state, and it also has the effect of shifting powers among the
branches of government. Each instance makes the case stronger -
that this might be a revision - than it would be in the absence of
that language.
REPRESENTATIVE ROKEBERG followed up that Section 1 has the inherent
problems that the committee has discussed numerous times, but the
addition of Section 2 just adds "fuel to the fire." He referred to
proposed Section 31 of Article XV and asked whether the state, even
by its own constitution, can give itself standing in federal court.
Number 1165
MR. UTERMOHLE answered no, there is no way that the state can alter
federal law by altering its own constitution.
REPRESENTATIVE ROKEBERG asked what the objective of Section 31 is.
MR. UTERMOHLE answered that in many instances it has been argued
that the legislature does not have the authority to represent the
interests of the state. In the recent case brought by the
Legislative Council against Secretary of Interior Babbitt, the
District of Columbia Circuit Court of Appeals dismissed the case;
one reason was that the court determined, under the Constitution of
the State of Alaska, that the legislature did not have the
authority to represent the state. The legislature had authority to
bring suit on behalf of its own interests but not on behalf of the
state as a whole. This particular language would at least address
that particular issue, Mr. Utermohle concluded.
Number 1224
REPRESENTATIVE DYSON referred to page 2, Section 3 of Version G.
He asked whether that wording carries the implication that the
legislature, in putting this forward, agrees with ANILCA as it now
stands, thereby precluding efforts to challenge ANILCA in court or
to negotiate some technical definitions in ANILCA.
MR. UTERMOHLE answered that what the language does is say that the
legislature, by passing this legislation, is attempting to come
into compliance with ANILCA. However, as to whether or not that
would moot a challenge by the legislature on behalf of the state to
challenge the constitutionality of ANILCA, he doesn't believe so.
Specifically by the terms of Section 2, it is clear that the
amendment [to Section 4 of Article VIII of the constitution] which
the legislature is adopting is to be repealed in the event that
certain provisions of ANILCA are challenged. It is also clear at
this time that the legislature is anticipating that challenges
would be made to provisions in ANILCA. Mr. Utermohle said he
doesn't see how that constitutional significance given to
challenges to ANILCA would have the effect of mooting the supreme
court challenge to ANILCA by the legislature.
REPRESENTATIVE DYSON asked: If a future Congress sees the need for
definitions of some terminology in ANILCA, could it be argued that
Alaska had passed a constitutional amendment based on ANILCA as it
was in place at that time, if there had been a subsequent change?
And if the change were through congressional action or negotiated
change, rather than the court, would the legislature be
"prejudicing" itself there?
MR. UTERMOHLE replied that he doesn't see how the state would be
held to be prejudicing itself, nor does he see how it would be
consenting to future changes that the state wasn't aware of at the
present time.
Number 1370
REPRESENTATIVE PHILLIPS referred to page 1, line 12, Version G.
She asked whether changing "proximity to the resource" to "place of
residence" would allow the legislature to write a statute that
could bring the state into compliance with ANILCA.
MR. UTERMOHLE said it would be a substantial step in the right
direction.
REPRESENTATIVE CROFT drew attention to page 2, line 16, proposed
Section 30(c) of Article XV, where it has the governor determining
whether state management has been preempted by the federal
government under ANILCA. He expressed concern that if the state
were out of compliance for a brief period, this would operate to
drop the constitutional amendment providing authority to do it. He
also asked whether Mr. Utermohle knows of other provisions in state
or federal constitutions where the governor or the president can
make a determination that changes the constitution.
MR. UTERMOHLE first answered that he is not aware of a similar
provision in the constitution in any state. He then said he
believes there is protection if the state temporarily comes out of
compliance with ANILCA, because this relates to state management of
fish and wildlife on state land, including navigable waters to
which the state holds title, whereas under ANILCA it applies to
only federal public lands. To the extent that federal public lands
reach into the navigable waters by virtue of a federal property
right - the Federal Right in Reserved Waters - it is questionable
whether that is indeed a preemption on state property or state
land, and therefore it is questionable whether that would
constitute a basis for determining preemption.
REPRESENTATIVE CROFT asked: If a future governor just decided that
state management was preempted by the federal government, would a
court be able to say the governor was wrong? And would that
determination just rule?
MR. UTERMOHLE answered that it is hard to speak to hypothetical
situations, but he does not see this provision encroaching upon the
power of the judiciary to make the determinations and to interpret
the constitution. There would still be some role left for the
court to play in this determination.
REPRESENTATIVE CROFT suggested a governor could make that
determination and the court could say it is wrong.
MR. UTERMOHLE replied that he could see that as a possible
scenario.
Number 1588
CHAIRMAN KOTT asked: If the committee eliminates the "governor
determines" language, would that leave it subject to someone's
litigating for declaratory judgment, which would then effectively
leave the courts to do it?
MR. UTERMOHLE answered that by removing reference to the governor,
the committee leaves it open-ended as to who makes that
determination if the state has been preempted. It would become
unenforceable because it would not be clear who has the power to
make this determination.
Number 1624
REPRESENTATIVE MURKOWSKI asked: Can the committee leave "proximity
to the resource" in and include "place of residence"? Or are those
phrases redundant or not compatible?
MR. UTERMOHLE replied that he sees them as somewhat redundant and
overlapping. However, adding "place of residence" to this list of
criteria along with "proximity to the resource" would do no harm to
the amendment, and perhaps it would clarify that certain options
are available to the legislature, without having to construe "place
of residence" broadly.
Number 1712
REPRESENTATIVE KERTTULA suggested the committee doesn't need to get
rid of "proximity" because that is done under Tier II, and that is
established. She asked whether the committee needs to do "step
one" or is still in the "McDowell problem."
MR. UTERMOHLE answered yes.
Number 1731
REPRESENTATIVE GREEN asked for a thumbnail sketch on Section 2 of
Version G, as to why it might cause a problem with Bess v. Ulmer.
MR. UTERMOHLE answered that under criteria set out in Bess v.
Ulmer, a revision is to be found based on quantitative and
qualitative factors. The more provisions of the constitution that
are affected by a particular amendment, the greater the chance that
the amendment will be found to be a revision. And the more
substantive the effect of the change is to the constitution to the
powers of the various branches of government, the more shifting
between powers of the branches of government, the greater the
chance it would be a substantive change, and thus more likely that
it would be found to be a revision.
REPRESENTATIVE GREEN asked whether, even though the committee is
really talking about an effective date or an amendment repeal, that
could stretch to the criteria of Bess v. Ulmer.
MR. UTERMOHLE said there is a significant issue contained in
proposed Section 30 [of Article XV], in that the power to amend or
repeal the provisions of the constitution has been shifted to the
governor and away from the people.
REPRESENTATIVE ROKEBERG asked if the committee could add a
severability clause in this amendment that would give direction to
the supreme court.
MR. UTERMOHLE answered that if the committee were to include a
severability clause in the amendment, it might be helpful, although
the court has not had a problem to date redacting provisions of the
constitution or proposed amendments which it deems somehow
inappropriate to be put before the people.
REPRESENTATIVE ROKEBERG asked if Mr. Utermohle was suggesting that
the supreme court is going to be rewriting the constitution.
MR. UTERMOHLE specified that he was referring to the fact that the
court has, particularly in the Bess v. Ulmer case, removed a
provision of a proposed constitutional amendment, such that that
particular provision was not submitted to the people for their vote
in regard to the marriage provision. In response to a comment by
Representative Rokeberg, he noted that the power to propose
constitutional amendments is given to the legislature and not to
the courts.
REPRESENTATIVE ROKEBERG asked if the committee could or should put
in a provision that would delete the amendment if the state were
decertified, thereby not running afoul of Bess v. Ulmer.
MR. UTERMOHLE indicated the legislature could provide for a
constitutional amendment that would not take effect if the
Secretary of Interior did not provide compliance certification
before October 1, 1999, and which would not raise greater Bess v.
Ulmer problems in the amendment. In response to remarks by
Representative Rokeberg, he emphasized that this amendment would
not take effect if the Secretary of Interior did not certify the
state. There is a certain difficulty in accepting that, he said,
because that provision would only go into effect if it were put to
the people, passed and adopted by the people, in which case the
people would be voting "yes" to nullify the constitutional
amendment. The same effect could be achieved by voting "no" on the
constitutional amendment.
Number 2015
REPRESENTATIVE DAVIES pointed out that a step in the process was
left out: if the constitutional amendment is passed, the state
legislature still has to enact a statute that would instruct the
Boards of Game and Fisheries to do something. The boards wouldn't
automatically act just because the amendment passed, especially if
it were permissive.
Number 2034
REPRESENTATIVE MURKOWSKI asked why the committee was using the term
"indigenous" and whether it would raise possible complications down
the road.
MR. UTERMOHLE answered that the intent he had heard in the House
Resources Committee [HJR 201] was to provide that only native
resources and resources indigenous to the state - as opposed to
resources that were introduced, such as elk and possibly bison -
would be subject to a subsistence preference. He agreed that there
are certainly problems down the road. For example, he wondered how
musk oxen would be treated because they were exterminated in 1850
but reintroduced in 1930. A greater issue is whether that would
allow the state to come into compliance with ANILCA and whether
ANILCA distinguishes between indigenous and nonindigenous resources
for subsistence uses. When asked about the latter, he indicated he
didn't know the answer.
MR. UTERMOHLE, responding to a comment from Representative Hudson
regarding the governor's ability to verify that the state has come
into compliance, said his best guess at this point is that this
language would not allow them to come into compliance with ANILCA.
He explained that there are two requirements in ANILCA that the
state needs to satisfy under existing law to comply with ANILCA.
One is to provide for a preference based on place of residence in
the state, which is currently a rural residence preference. The
second is to allocate access to the resource, in Tier II
situations, to state residents, based on their proximity to the
resource or local residence. Both have been determined to be
prohibited to the state and the equal access provisions of the
constitution, and those two provisions are the ones which the
legislature has to provide for in the constitutional amendment.
REPRESENTATIVE HUDSON asked if that is how the line of questioning
came about, as far as having both "place of residence" and
"proximity to the resource" in there.
MR. UTERMOHLE answered that currently, as it is written, "proximity
to the resource" does not reach what the legislature needs to do in
order to provide the "rural resident" preference or a preference
based on residence.
Number 2202
REPRESENTATIVE MURKOWSKI asked if Section 31 would hurt the
certification process because it is not one of the criteria that
must be included in the state constitution.
MR. UTERMOHLE responded that the certification process on a
constitutional amendment such as this is not specifically going to
point to what the legislature needs to do to satisfy ANILCA. It
would leave a considerable amount of discretion on the part of the
Secretary of Interior to determine whether or not the state comes
into substantial compliance with ANILCA and thus could be
certified. There is no provision in ANILCA that requires the state
to surrender its ability to go into court to challenge provisions
of ANILCA. He couldn't say whether or not the Secretary of
Interior would determine that this would be such a matter as to
keep the state from compliance with ANILCA.
CHAIRMAN KOTT asked whether the state is trying to second-guess
what the Secretary of Interior might do or think, based on what is
included in this amendment.
MR. UTERMOHLE affirmed that.
CHAIRMAN KOTT referred to Bess v. Ulmer. He asked whether the
court could look at this particular amendment and find perhaps that
it is a one-time, one-issue piece of legislation that is tied to a
greater piece and, therefore, could suggest that it is no big deal
in the greater scheme as the state tries to get to the heart of
subsistence. He also wondered if the court would overlook it if it
is a qualitative issue.
TAPE 99-72, SIDE B
Number 0001
MR. UTERMOHLE replied that the court could well find that it does
not rise to the level of constituting a revision and thus would
find that this amendment would be within the power of the
legislature to propose.
CHAIRMAN KOTT asked Attorney General Botelho for his comments on
the proposed CS [Version G of HJR 202].
Number 0101
BRUCE BOTELHO, Attorney General, Department of Law, came forward,
telling members that this draft causes him to suggest that there
are two objectives. First, the committee is seeking to pass an
amendment to enable the legislature to provide for the definitions,
preference and priority found in sections 803, 804 and 805 of
ANILCA, so that the state can regain management. This draft causes
him to point out something that disturbs him: the legislators are
in the shoes of the framers of the constitution because what they
do will be part of the basic law of the state. A constitutional
amendment is not just some other piece of legislation. He suggests
that the language chosen have meaning, and in that context, he is
concerned about the freewheeling use of words, which makes it very
difficult to identify what is meant here. He pointed out that he
wasn't commenting about the merits of any version in terms of
content. Rather, he was looking at whether the content is clearly,
succinctly put, so that Alaskans can understand it, quite apart
from courts and lawmakers. That leads him to focus on several
things, he said.
ATTORNEY GENERAL BOTELHO referred to page 1, lines 11, 15 and 16,
"reasonable opportunity." He pointed out that the Secretary of
Interior has already communicated to the legislature that the use
of "reasonable opportunity" is inconsistent and in conflict with
ANILCA. Furthermore, a committee member has raised concerns about
the use of "indigenous subsistence resource," and he noted that
ANILCA uses a different term, "wild renewable resources." He
cautioned that if the goal is both clarity and compliance, it
probably makes sense not to inject words that appear to be
contradictory to ANILCA.
ATTORNEY GENERAL BOTELHO noted that he had testified earlier in the
week that "proximity to the resource" satisfies Tier II, the local
preference in ANILCA, so its wording is not inconsistent; however,
it isn't sufficient to bring the state into compliance. There
needs to be a concept which encompasses rural, and it might be
"place of residence." "Rural" and "proximity" will satisfy the
requirements of ANILCA; "place of residence" may satisfy both the
rural preference and Tier II; and "place of residence" and
"proximity" will satisfy Tier I and Tier II. Referring to his own
use of the word "may," he noted that the state is looking to the
Secretary of Interior, who may have some suggestions to help
resolve this, as one looks at Section 3, Purpose.
ATTORNEY GENERAL BOTELHO identified a major concern on page 1,
lines 13-16. It baffles him, he said. Although he suspects it is
trying to get at "only in times of shortage," he isn't sure that is
what the sentence expresses. Suggesting that perhaps Commissioner
Rue could speak to that, he said at this point the state doesn't
try to determine reasonable opportunity for commercial, sport or
personal use. It gets back to his original thesis: the words must
make sense, and he isn't sure he has heard an explanation.
ATTORNEY GENERAL BOTELHO told members that although "sound resource
management practices" is perhaps a good statement in theory, he
isn't sure what it means either. It may be defined in statute, but
Article VIII of the constitution is a basic statement about what
resource management practices will be exercised in Alaska. In
fact, that is a large part of what Section 4 of that article
currently is set out to achieve: to look at sustained yield and
look at the state's developing its resources to the maximum extent
consistent with the public interest.
ATTORNEY GENERAL BOTELHO told members that, like Mr. Utermohle, he
would express several concerns about Section 2 of Version G.
Although he thinks there is a Bess v. Ulmer issue, neither he nor
probably any other lawyer can say precisely whether this has
exceeded the threshold in terms of being a revision as opposed to
an amendment. There are some fundamental shifts here, he noted.
Section 30(c) is a fundamental shift of power, in essence, from the
legislature, although one might identify it with a very narrow
"trigger." The power to repeal this, in a discretionary way, is in
the power of amendment, he pointed out. However, this draft
basically empowers the governor to amend by repeal. He asked: Why
is it different from subsections (a) and (b), particularly
subsection (b), the repealer. He answered that there is an
objectively measurable basis over which no reasonable person could
dispute the finality; subsection (c) is purely discretionary.
ATTORNEY GENERAL BOTELHO noted that there is also a shift of power
in Section 31 of Article XV, from the governor to the legislature,
again on a very narrow circumstance, which may mitigate against the
Bess v. Ulmer analysis. However, it shifts from the executive to
the legislative branch the power to file in the name of the state.
Each of these standing alone may not reach the threshold, but
perhaps in concert with Section 1, in particular, he believes this
is a highly litigable issue.
ATTORNEY GENERAL BOTELHO told members that quite apart from the
Bess v. Ulmer concern is that raised by Representative Croft in
terms of the discretion that might be exercised to trigger this.
There are many circumstances where the federal government might
conclude that the state is out of compliance, such that it might
exercise its preemptive role. That could occur if the state did
not provide the participation that is provided in ANILCA. It has
happened, in fact, when the state's definition of "rural" was
different from the [federal government's]. The usual form of
correction is simply to correct the statute, he pointed out, not to
repeal the constitution. He would be concerned because it is not
clear to him whether this is primarily looking at an
extraterritoriality issue, which seems to be implied at line 18,
page 2, but which is certainly not expressed. He noted that the
federal government has made clear in Katie John that it will
regulate on navigable waters.
ATTORNEY GENERAL BOTELHO clarified his point: he believes there
are circumstances where the state could lose management, which
could easily be corrected by statutory "fixes" without the extreme
remedy of having a governor - who may not agree with ANILCA or this
constitutional amendment - simply being able to repeal it.
ATTORNEY GENERAL BOTELHO next referred to Section 3, Purpose. In
terms of strengthening the likelihood that a constitutional
amendment would pass muster, particularly looking at Section 1, he
suggested that there should be some reference indicating that the
legislature is also attempting to solve the McDowell decision and
the Kenaitze decision. That reference should illustrate that the
legislature is attempting to reach both the Tier I and Tier II
issues. He believed that to be less of a concern if "proximity"
remains because then that message would be understood. However, if
"place of residence" stood alone, that would need to be clarified.
The state may come into compliance with ANILCA, though that may be
questioned if the state isn't dealing with Tier II because that is
a provision of ANILCA. The state does need to satisfy both supreme
court decisions, not simply the McDowell decision.
Number 0992
REPRESENTATIVE GREEN referred to the language, "reasonable
opportunity," on page 1, subsection (b), and asked Attorney General
Botelho if the problem is the issue or the way it is worded.
ATTORNEY GENERAL BOTELHO answered, probably both. He referred to
the Solicitor's opinion dated September 23, 1999. Although the
Solicitor's opinion refers to an earlier amendment, it is directed
at "reasonable opportunity." He read the following portion of the
Solicitor's opinion:
The amendment also adopts the "reasonable opportunity"
approach to providing the subsistence priority which was
previously contained in amendments to ANILCA enacted by
Congress in 1997, but which expired in 1998 without ever
taking effect because the state legislature did not
approve a constitutional amendment as the Act containing
the amendments required. By focusing on criteria like
these, which are not in the federal law, the proposal
risks creating new conflicts with ANILCA.
ATTORNEY GENERAL BOTELHO noted that his first concern is that this
has been highlighted by the Solicitor as problematic. Second, the
committee is now adding a requirement in which the Board of
Fisheries and the Board of Game are required to make determinations
between commercial, sport, and personal use. He pointed out that
"reasonable opportunity" has been directed exclusively at
subsistence and has never been applied in the context of
commercial, sport or personal use. He was also not clear as to
whether the intent "is to say if 'reasonable opportunity' isn't
available in one or more of these other categories, then the
preference kicks in at which point only 'reasonable opportunity' is
triggered." The concept to be achieved is not clear; and
furthermore, "reasonable opportunity" becomes a problem for the
Secretary of Interior. Attorney General Botelho suspected
"reasonable opportunity" may mean something different in line 11
than it might in lines 15-16.
REPRESENTATIVE GREEN recalled that Attorney General Botelho said
that "sound resource management" on line 15 is covered in other
parts and thus would not be necessary here. Early there was
testimony that perhaps, that language did not hurt and may be
helpful. Representative Green asked if there is any problem
leaving the language "sound resource management" in line 15, even
though it is covered in another part of the constitution.
ATTORNEY GENERAL BOTELHO responded that he couldn't say that it
brings harm, except to his sense of propriety about the
constitution itself and wanting to ensure that these words have
meaning. These are words in the constitution that are ultimately
carried out by statute. However, if the words are not necessary,
he regarded them as superfluous. Good drafting would suggest that
the committee look to economy in the use of words. He further
indicated the need to be careful about what is intended and what
the meanings are. He pointed out that Alaska's constitution now is
43 years old and other generations are going to try to imbue it
with meaning, but first of all, they are going to be trying to
figure out what it is that this legislature meant. Therefore, the
legislature needs to have a firm understanding, otherwise the
language shouldn't be there. He believed that there needs to be
some overriding approach to drafting a constitutional amendment
because it is a valued document and is the basis of the government
here. He indicated that the committee knows what it wishes to
convey by the words used; what is the meaning that the legislature
intends when the constitutional amendment is placed before the
people.
Number 1291
REPRESENTATIVE JAMES expressed her frustration in trying to do
something that is fair and equitable statewide to accomplish the
goals of the intent of ANILCA. She agreed with Attorney General
Botelho's testimony regarding Section 31. Aside from that,
Representative James asked where the Katie John lawsuit stands at
this time.
ATTORNEY GENERAL BOTELHO informed the committee that Katie John was
appealed by the State of Alaska to the Ninth Circuit, the Ninth
Circuit ruled in favor of Ms. John. "At that point, the federal
government -- to the effect that there were certain reserved water
rights, interests that allowed federal management into the waters
of the state, though not specifically where, the State of Alaska
sought certiorari with the U.S. Supreme Court and that petition was
denied." Therefore, the state has a final decision with the Katie
John case in terms of the principle of the law. However, the state
doesn't have any definition about which waterways or portions of
waterways are covered. The court also said that it viewed the idea
that this would have to be litigated on a case by case basis,
waterway by waterway, with some trepidation. He interpreted the
plea of the court to be that this issue begs for a legislative
solution, not a judicial solution.
REPRESENTATIVE JAMES recognized that the language "reasonable
opportunity" is not written in ANILCA. If reasonable opportunity
is not enough, then there isn't a way to guarantee the take.
Representative James indicated that "reasonable opportunity" seems
to be all that can be given. She inquired as to what would be a
higher standard than "reasonable opportunity."
ATTORNEY GENERAL BOTELHO answered that the subsistence
determinations today are made on "reasonable opportunity." It is
not embodied in the constitution. He pointed out that one of the
problems with "reasonable opportunity" is its application with
regard to uses other than subsistence, because that is not the
basis upon which allocations are made. It introduces a concept
that is inconsistent with sound management practices. He also
expressed concern, as highlighted by the Solicitor, that by
embodying the "reasonable opportunity" language into the
constitution, it creates the appearance of a conflict with ANILCA.
He said, "Given the fact that 'reasonable opportunity' -- where we
tried to reconcile the state approach and the federal approach
achieved through amendments to ANILCA, that have since been
removed, means that we have an inconsistency." Placing the
language in the constitution at this stage may, coupled with other
things in the constitution, not pass muster with the Secretary of
Interior. The issue could well be resolved at the statutory level,
which Attorney General Botelho indicated would be the appropriate
place to do so. To the extent there is a determination that the
statutory level is defective, it can then be corrected by the
legislature without the threat of losing management, which would be
the case if the "reasonable opportunity" language was embodied in
the constitution.
REPRESENTATIVE JAMES commented that she was trying to develop a
constitutional amendment which is open enough to allow for the
implementation of the intent of ANILCA, but isn't so specific that
the state is left with something that it can't live with. She
identified the constitutional amendment as the first obstacle
which, if passed, would provide the state with 14 months to draft
statute. Perhaps, then some changes to ANILCA could occur. She
posed a scenario in which a constitutional amendment is placed
before the voters and then the federal government says it doesn't
work. In such a case, Alaska would have already put into place a
constitutional amendment to provide this on all lands in Alaska,
not just federal lands. Representative James asked if Attorney
General Botelho could suggest how the legislature can meet the
needs of the federal government in a reasonable way without using
the exact words of ANILCA.
ATTORNEY GENERAL BOTELHO agreed that there are several hurdles; the
first being, the constitutional amendment. If the constitutional
amendment is enacted by the people and the legislature, the state
has forestalled further federal management or expansion into the
waters of Alaska. However, such would not remove the federal
oversight that already exists with regard to game in Alaska. He
explained that the objective is not only to have enabling
constitutional language, but to also have statutes which would
actually provide for the definition, preference and participation
of Title VIII. Therefore, the state government is going to be
faced with promulgating statutes that will be subject to the test
of the Secretary of Interior. He suspected that the Department of
the Interior will provide feedback, as it has done thus far with
proposed constitutional amendments, regarding whether statutes
being contemplated pass muster or not.
ATTORNEY GENERAL BOTELHO pointed out that most versions to date
have incorporated a discretionary preference with the legislature.
In that respect, the proposed constitutional amendments would do no
harm to Alaska even if rejected. He urged the committee to look at
simplicity and focus on the minimum required to bring Alaska into
compliance with ANILCA.
REPRESENTATIVE JAMES commented that she believed the current
subsistence law seems to be working, except that it doesn't qualify
with the word "rural." Why would the legislature go through this
process if the state isn't going to get management back?
ATTORNEY GENERAL BOTELHO replied that there has been a lot of
testimony from Alaskans who are concerned about federal management
extending into the waters of Alaska and having potential impacts on
commercial and sport fishing around the state. That is a major
reason why the legislature is going through this. He indicated
that this process is a statement about who Alaska is as a state and
how Alaska values the role of subsistence in Alaska overall as well
as the role of subsistence in rural Alaska among Alaska Natives.
He understood that there is a lot of mistrust and miscommunication
since the legislature doesn't know what the Secretary of Interior
is going to do. Attorney General Botelho said he is confident that
if the legislature does the reasonable and rational thing that the
Secretary of Interior will reciprocate.
Number 1934
REPRESENTATIVE MURKOWSKI asked for clarification on the language
"place of residence" and "proximity to the resource" in subsection
(b).
ATTORNEY GENERAL BOTELHO answered that if the committee substitutes
"place of residence" for "proximity," it is important that the
court understands that the term is being used to satisfy both Tier
I and Tier II. He indicated that such could be achieved by
including reflections in the purpose section which relate that the
language is intended to deal specifically with the McDowell and the
Kenaitze decisions. Including such reflective language might
strengthen the court's and the Secretary of Interior's willingness
to accept language such as that found in the first sentence.
REPRESENTATIVE PHILLIPS acknowledged Attorney General Botelho's
concern with regard to having too many words that too many lawyers
can fight over. However, she expressed the need to have enough
words to protect Alaska. There are certain things between the
federal government and Alaska that have not been the same because
at the time the law was passed these things may not have been an
issue. She referred to language on lines 15-16 and mentioned the
debate between the legal interpretation of "times of shortage."
She recalled Attorney General Botelho's comments that there are
attorneys who could misconstrue "times of shortage." Therefore,
the committee tried to include clarifying language. She said that
she preferred "times of shortage."
ATTORNEY GENERAL BOTELHO asked if that ["not sufficient to allow"]
was intended to be a substitute for "times of shortage."
REPRESENTATIVE PHILLIPS answered, in her opinion, that is the
intention. Others indicated agreed.
ATTORNEY GENERAL BOTELHO specified that he wasn't endorsing "in
times of shortage," but it is easier to understand than the current
language. He commented that he did endorse language that people
can read.
REPRESENTATIVE PHILLIPS pointed out that the committee, in her
understanding, included both "sustained yield" and "sound
management practices" because the federal government does not and
will not manage for sustained yield. Although that is not one of
the federal government's concerns, sustained yield of the species
is a major concern for Alaska and a critical aspect of maintaining
the species. In order to have sustained yield, there have to be
sound management practices which include seasons and bag limits.
The federal government doesn't care about those areas. Therefore,
she believed that those words are necessary in order to clarify
that Alaska is referring to seasons and bag limits that will
protect sustained yield.
REPRESENTATIVE PHILLIPS turned to the "reasonable opportunity"
language. She informed the committee that several years ago the
state was negotiating the language of a proposal and approached the
Secretary of Interior about "reasonable opportunity." The state
asked if that could be changed in ANILCA. At that time, the
Secretary of Interior agreed to pursue an ANILCA amendment
regarding "reasonable opportunity."
ATTORNEY GENERAL BOTELHO agreed that the Secretary of the Interior
was willing to deal with "reasonable opportunity" then, but he
pointed out that issue was dealt with concurrently at a statutory
level. The matter was never contemplated to be incorporated into
the state constitution. "Although most versions of constitutional
amendments that have not placed the subsistence preference in
Section 4 have made reference to the sustained yield principle, ...
it seems somewhat redundant here since that's exactly where you put
it in the constitution." While the federal government does not
make use of the terms "sustained yield," it certainly does
repeatedly express views that, he believed are synonymous with
those terms. He agreed with Representative Phillips that sustained
yield is the highest use for the state's renewable natural
resources. However, he didn't want to "gainsay" its placement here
other than to suggest that since it is already in the sustained
yield section that it does not need to be reflected here.
Number 2203
REPRESENTATIVE HALCRO asked Attorney General Botelho if he agreed
that the best course of action would be to accept a permissive
amendment that would allow the legislature, through the committee
process and dialogue with Alaskans, to construct statutes to carry
this out.
ATTORNEY GENERAL BOTELHO agreed emphatically. He indicated that
the Governor's constitutional amendment was one that was most to
the point, the most simple, and the most concise. The Governor's
amendment would allow the dialogue referred to by Representative
Halcro as well as allowing the state to move forward in a
discretionary manner.
REPRESENTATIVE HALCRO referred to page 2, Section 2, subsection (c)
and asked what is to determine when and if the governor determines
the state has been preempted by the federal government.
ATTORNEY GENERAL BOTELHO answered it appears that the discretion is
unfettered. However, the Governor is expected to act reasonably
and responsibly. Attorney General Botelho said, "It's just not
clear to him that this language provides for the kind of judicial
review -- that this would be identified as a political question
that is assigned to the executive branch, and therefore not
reviewable by the courts." He pointed out that not all decisions
of the legislature or the executive branches are subject to court
oversight. He suspected that in this clause it would be read,
because it is in the constitution, as a decision not reviewable by
the courts.
TAPE 99-73, SIDE A
Number 0001
REPRESENTATIVE ROKEBERG asked whether he had heard correctly that
even if the legislature passed the amendment and the statutory
language were certified by Secretary of Interior Babbitt, the state
would not regain management of game.
ATTORNEY GENERAL BOTELHO replied that if one examines the language
of the so-called Stevens amendment, it would, right now, prohibit
implementation or enforcement of any final rule, regulation or
policy pursuant to Title VIII of ANILCA, to manage and to assert
jurisdiction, authority or control over land, water and wildlife in
Alaska for subsistence uses, except for the listed exceptions. The
rules referred to here deal with expanded management on navigable
waters and extra-territorial lands within the state. His
understanding of the Secretary's view is that [the federal
government] would continue to enforce that which they enforce
today. This Act would preclude them from expanding that
jurisdiction if, by midnight Thursday, the Secretary certifies that
the legislature has previously acted, and that the state next will
enact laws consistent with such an amendment; those are the steps
necessary to have the Secretary effectively give up his current
authority regarding federal lands - public lands - of the state.
Number 0183
REPRESENTATIVE ROKEBERG asked: If we followed through with the
statutory changes, would we look forward to getting the return of
game management?
ATTORNEY GENERAL BOTELHO said that is correct.
REPRESENTATIVE ROKEBERG directed attention to the phrase "all
beneficial uses" on page 1, line 16, of Version G. He asked if it
wouldn't be more appropriate to say "the customary and traditional
level of subsistence use," for example, as he believes the "trip
wire" in the state's current subsistence law is whether the
customary and traditional level can be satisfied.
ATTORNEY GENERAL BOTELHO said that is true, although it isn't a
trip wire for commercial, sport or personal use, if he understands
the question correctly. [Representative Rokeberg handed him some
written language; no copy was provided to other members at the
time. Although the Attorney General offered to look at it during
a break later, it was not specifically addressed by him again.]
Number 0412
REPRESENTATIVE WILLIAMS referred to Representative Halcro's
previous question, saying subsection (c) on page 2 of Version G is
very clear. He asked what the state did when it dropped the
Babbitt case, and what it could do to try to take care of all the
court cases relating to this issue.
ATTORNEY GENERAL BOTELHO explained that State v. Babbitt was
consolidated with Katie John. There were really two issues.
First, Katie John had to do with the geographic reach of ANILCA;
contrary to the state's position, the court concluded it extended
into the navigable waters of the state. Second, the Babbitt
portion had to do with whether the Secretary of Interior and the
Secretary of Agriculture could adopt regulations implementing Title
VIII of ANILCA; the state brought that action, lost at the district
court level - very understandably so, added Attorney General
Botelho - and that was what, at the beginning of the Knowles
Administration, was dropped on appeal. Attorney General Botelho
pointed out that that judgment was both legal and political, legal
from the standpoint that there was little if any likelihood that
the state would prevail on the theory that somehow the Secretary
couldn't adopt regulations to manage federal lands, and political
from the standpoint that it was seen as an affront to a portion of
the state's citizenry. That, in essence, was the Babbitt decision,
again, part of a bigger package.
Number 0639
REPRESENTATIVE WILLIAMS, to clarify his question about what the
state could do, suggested that many lawsuits will be filed if a
constitutional amendment passes. He asked whether there is a way
to address those issues ahead of time, by having the state
intervene in any way.
ATTORNEY GENERAL BOTELHO discussed possible scenarios. First,
there might be a challenge directly to Title VIII of ANILCA itself,
which could happen today. There is surely an aggrieved hunter in
Anchorage, Palmer or Fairbanks, he said, who has traditionally
hunted in some part of rural Alaska and who would feel aggrieved
that he or she cannot hunt today in those areas for subsistence
purposes; that person satisfies the "standing" requirement in a
federal case, in a federal court, to challenge ANILCA, although why
that hasn't happened he himself doesn't know.
ATTORNEY GENERAL BOTELHO mentioned that two cases have dealt with
"standing" issues involving the legislature. It is clear that the
legislature itself will not get to federal court on its own, in
terms of standing, under current Alaska law; whether a
constitutional amendment conferring standing would help cure that
infirmity is uncertain to him, Attorney General Botelho noted,
although his sense is that it probably would. Another point of
challenge is the constitutional amendment itself; if someone claims
it is a revision, not an amendment, the state will defend the
legislature's action in placing it on the ballot. Furthermore, if
someone later files a lawsuit claiming that the statutes enacted
under it were unconstitutional for federal reasons - for example,
that the state's granting of a rural-over-urban preference violated
federal equal protection law - the state would be a party and would
defend that in court. He sees those as three likely scenarios in
court, he concluded.
Number 0864
REPRESENTATIVE JAMES referred to Representative Williams'
questions, the Submerged Land Act and the state's right to manage
its submerged lands and navigable waters. She suggested this is a
states rights issue, in which the Governor has a right to go
directly to the U.S. Supreme Court for a decision; she believes
that is appropriate. She asked whether that is precluded because
of dismissal of the Babbitt case with prejudice.
ATTORNEY GENERAL BOTELHO clarified that the Babbitt case was not a
challenge to the constitutionality of ANILCA but a simple challenge
to the power of the Secretary to enact regulations. First, it has
a very limited effect. Second, regarding whether the Governor can
go directly to the U.S. Supreme Court, that is not a particularly
likely avenue.
ATTORNEY GENERAL BOTELHO explained that the U.S. Supreme Court does
have original jurisdiction on cases and controversies. Since 1961,
there have been approximately 100 to 115 applications for the court
to take original jurisdiction. There is a much higher "batting
average" - as high as 40 percent of the cases - for the court to
take those cases, as opposed to the normal petition for certiorari.
However, of those granted since 1961, almost all involved boundary
disputes, either between states or between a state and the federal
government; Alaska has had two such cases. He himself is aware of
only one case that didn't fall in that kind of category, which was
a challenge to the Civil Rights Act of 1964 by North or South
Carolina. He then advised members to stay tuned on another,
unspecified, matter relating to movement in that direction.
ATTORNEY GENERAL BOTELHO agreed that it is a matter of states
rights. The Katie John case has been matched by a decision of the
Alaska Supreme Court in the Totemoff case, which concluded that the
state had the power to regulate and that this was not a matter for
federal jurisdiction. There was a Ninth Circuit decision where the
petition for certiorari was denied, and an Alaska Supreme Court
reached a contrary conclusion; both are entitled to equal weight.
Number 1090
REPRESENTATIVE JAMES asked: If it were the thing to do, to take a
case to the U.S. Supreme Court on the dispute with the federal
government regarding submerged lands and navigable waters, would
that case not be ripe until such time as the federal government
began managing in Alaskan waters?
ATTORNEY GENERAL BOTELHO agreed it would create issues of ripeness.
He believes the most likely outcome, were such a challenge mounted,
would be for the court to refer it back to a district court for
findings; the state would be looking at protracted litigation. He
expressed his judgment that the state doesn't have to engage in
that at all, then explained, "If we pass a simple constitutional
amendment, we're not faced with that issue, and we're not faced
with the possibility that we'll lose, because we have lost up to
now in the federal courts on that very issue." He acknowledged
that the issue is difficult, but restated that the solution is
simple.
Number 1190
REPRESENTATIVE WILLIAMS referred to the Alaska Outdoor Council and
the push to go to court. He asked what the state can do to satisfy
that, suggesting the state would be fighting this issue all the
time.
ATTORNEY GENERAL BOTELHO replied:
The one thing I cannot predict - as much as I know lots
of people would like to get finality to the question of
whether ANILCA is constitutional or not - it's quite
possible that one would never get that answer; it would
never get to that question. We have some indications,
and we've had the problems with standing, and certainly
the legislature has encountered that twice now in
litigation over some aspect of subsistence. We've had
the problem that until the feds have taken over with its
regs, that it's not ripe.
But we also have a district court decision from the D.C.
District Court - later, a portion, in essence, vacated by
the D.C. Circuit - that says, ... "The standing is fine
here; I'm going to reach the merits here, or I'm going to
reach the statute of limitations argument, if not the
merits." It's too late. Someone who is going to
challenge, on its face, Title VIII and its
constitutionality, on the basis that it has a rural
preference, had six years under the federal statute of
limitations to do so - 1986. It's too late.
Now, what happened at the court of appeals was to say,
"Judge Robinson (ph), you shouldn't have reached that
question because the people you had in front of your
court had no right to be there." And in federal court,
standing is a jurisdictional issue. If you don't have
standing, you, court, don't have the discretion to go to
the next issue. The party is out; it's over. I don't
know that that judge is right on this statute of
limitations issue. But there have been two other
McDowell cases that have been tried and haven't gotten
anywhere in the Ninth Circuit. I assume that was part of
the reason of the recommendation that we go to the only
other circuit available to you, which was the D.C.
Circuit. And that hasn't been all that much more
helpful. ...
I can't suggest that litigation is going to give the kind
of finality - in the sense of the answer: Is it
constitutional or not? It may be that that window has
been closed for a long time. That's what the judge has
said, and he's gotten his wrist slapped for having gone
that far, and for answering a question that he shouldn't
have gotten to. But I think that's some indication. I
don't think there's anything that the state does that's
going to improve that. If the statute of limitations
issue is rightly decided - was rightly decided - there's
nothing this state - whether it's the legislature,
through a constitutional amendment, or the Governor, with
the existing power - could do to change that. But this
Governor's made clear he's not going to challenge, in any
case, the constitutionality of Title VIII.
Number 1402
REPRESENTATIVE WILLIAMS indicated opponents of a constitutional
amendment, who believe Title VIII of ANILCA is unconstitutional,
only want to listen to the U.S. Supreme Court on the issue. He
said he certainly doesn't want to turn over management to the
federal government if there is a way to negotiate. He wondered
whether there is a chance to go to court to have this finalized, as
he suggested the sovereignty issue was finalized.
ATTORNEY GENERAL BOTELHO added, "Venetie." He pointed out that one
power residing with the Governor is the ability to bring suits in
the state's name. However, Governor Knowles has profound views on
this subject: He will not be associated with any challenge that
would disturb the rural priority, which he believes to be morally
right. Although others feel strongly that it should be litigated,
this issue came up during the last election, and Alaskans had a
chance to choose between gubernatorial candidates who expressed
their views. Governor Knowles will not use his office to, in any
way, reduce the impact of Title VIII, and he certainly will not
subject it, in his name, to challenge. It isn't a negotiable item.
Number 1550
CHAIRMAN KOTT asked if there is any way the legislature could
acquire standing to challenge Title VIII of ANILCA.
ATTORNEY GENERAL BOTELHO pointed out that Section 2 on page 2,
lines 22 to 26 [Version G] attempts to do so. It would certainly
confer authority for state law purposes. However, as to whether it
would get the legislature further in the federal court, he urged
legislators to confer with federal practitioners.
Number 1639
REPRESENTATIVE GREEN asked about the time frame before the state
would be out of compliance, if something were passed similar to the
permissive language in the Governor's version [of HJR 201].
ATTORNEY GENERAL BOTELHO responded that his best judgment would be
through the next regular legislative session. If a constitutional
amendment were voted down by the people, however, federal
management would not only continue at its current level but would
expand into "the waters."
Number 1667
REPRESENTATIVE THERRIAULT asked if he had heard correctly that the
Attorney General believes there would be an opportunity for the
Secretary to respond with reasonableness in kind, should the
legislature take reasonable steps.
ATTORNEY GENERAL BOTELHO said yes; in particular, he would expect
the Secretary of Interior to exercise his certification authority
with reason, within the time permitted.
REPRESENTATIVE THERRIAULT asked whether that also means possible
amendments to ANILCA that the Secretary would deem reasonable.
ATTORNEY GENERAL BOTELHO answered that from what he has heard on
the radio, he understands that the Secretary has declared that, in
his view, there will be no further amendments to ANILCA while he is
Secretary.
Number 1916
REPRESENTATIVE THERRIAULT expressed his belief that the
constitution basically grants protections to minority groups, and
in Alaska, rural hunters and fishermen are a minority group. In
addition, however, urban hunters, when looking at the entire state
population, are a minority group. He suggested that to pass the
permissive language [of the Governor's version of HJR 201] and let
the legislature vote would significantly erode that constitutional
protection granted to that minority group. He requested
confirmation.
ATTORNEY GENERAL BOTELHO replied that he isn't sure the
constitution specifically talks about protections for specific
minority groups, and he doesn't see any language that makes
reference to minority rights. More generally, at least as a lawyer
would look at differentiating classes of groups of people, there is
a balancing that involves the nature of the right, looking at the
purpose and at whether, as a "rough cut," it is rationally
supported; that is both with respect to state law and federal law.
Certainly, he added, in an equal protection analysis it is a bit
more refined than he had described it. The question is whether
what Congress has done, in making the distinction between urban and
rural, has a rational basis in terms of public law; he himself
would submit that it does.
ATTORNEY GENERAL BOTELHO encouraged members to look at the
purposes, particularly in section 801 of ANILCA, which tries to
roughly cut and satisfy an objective that represents concerns about
culture, reliance on the resource, and the availability or lack of
it of other resources, again, making clear that it is not to the
exclusion of all others. He pointed out that the state has set up
classes of people in a wide range of governmental activities or
services; it has done so, within the state constitution, regarding
natural resources. For example, a legislature, along with the
support of the people, created a limited entry; clearly, some
classes of people were given access and others weren't, which today
is largely dictated by financial resources to be able to purchase
a permit. Attorney General Botelho added:
We do make rational decisions that distinguish between
Alaskans, and we do not see that as fundamentally
offensive. I would say that, with respect to specific
ones, and perhaps in this context, there are many who
feel that it is repugnant. But for the most part, most
of the services that we provide have criteria for their
provision. We are willing to distinguish between old and
young, in terms of rights, between people who have levels
of education and those who don't. We have made
distinctions on the basis of geography, with respect to
how much we fund activities, or the status of a local
government. ... [There's] just a whole series of things
that we have justified to distinguish between people.
ATTORNEY GENERAL BOTELHO indicated the most required by the law is
at least a rational basis and, depending on how important that
right is, a compelling interest for differentiating. He concluded
by saying he isn't offended at all, and he doesn't think the
constitution would be "offended" by provisions that would allow for
a rural preference.
Number 1913
REPRESENTATIVE THERRIAULT asked if adding "local residency" would
just allow the legislature, through statute, to determine that
rural residency is a type of local residency.
ATTORNEY GENERAL BOTELHO answered that "local residence" has a
specific meaning in Title VIII of ANILCA, which is Tier II and is
really achieved by the word "proximity" in this. "Local residency"
is much narrower in meaning than "place of residence."
REPRESENTATIVE THERRIAULT apologized, saying the earlier discussion
regarded "place of residence," which, for one who lived in rural
Alaska, could be that specific place of residence.
ATTORNEY GENERAL BOTELHO agreed that "place of residence" could
allow one to define what is or isn't rural.
Number 1964
CHAIRMAN KOTT referred to testimony in other hearings that
subsistence is a fundamental right. He requested Attorney General
Botelho's reaction to that statement.
ATTORNEY GENERAL BOTELHO specified that he doesn't believe, in a
legal sense, that it is a fundamental right.
CHAIRMAN KOTT called an at-ease at 10:07 p.m. He called the
meeting back to order at 10:45 p.m.
Number 2033
JULIE KITKA, President, Alaska Federation of Natives (AFN), came
forward, accompanied by AFN's legal counsel, Norman Cohen and Rick
Agnew (ph). Saying Attorney General Botelho's analysis of Version
G had been helpful, Ms. Kitka expressed great disappointment with
the proposed CS. The Department of the Interior would not make the
certifications required by federal law for an amendment that
doesn't make a subsistence priority for rural residents, for all
renewable resources, she said. This proposed language is limited
to indigenous resources and doesn't clearly state that rural
residents qualify. Furthermore, the Secretary of Interior has
indicated a priority based on proximity to the resource doesn't
meet the requirements of ANILCA.
MS. KITKA emphasized the need for a straightforward amendment to
the constitution that allows the legislature to give a subsistence
priority to rural residents, without putting conditions on the
priority. The AFN believes the proposed language won't do the job
because it has too many conditions relating to surplus, reasonable
opportunity, indigenous subsistence resources, and so forth. She
urged the committee to put aside this approach. Additionally,
other segments of Version G, relating to litigation and the
shifting of power away from the Governor to the legislature, are,
in the AFN's view, going backwards as far as finding a resolution
to put before the voters. Ms. Kitka expressed shock and surprise
that Section 2 would be included in a constitutional amendment,
even if the legislature believes it to be a good policy choice.
She concluded by saying Version G won't accomplish what the special
session set out to do: retain state management and obtain
certification from the Secretary of Interior.
TAPE 99-73, SIDE B
Number 0011
REPRESENTATIVE JAMES referred to Version G, page 1, lines 10 to 13,
which read:
(b) The legislature may provide a preference to and among
residents for a reasonable opportunity to take an
indigenous subsistence resource on the basis of customary
and traditional use, direct dependence, proximity to the
resource, or the availability of alternative resources.
She read a possible alternative to Ms. Kitka, as follows, asking
whether Ms. Kitka would object to anything in this language:
The legislature may provide a preference to and among
residents for a reasonable opportunity to take a
subsistence resource on the basis of customary and
traditional use, direct dependence, place of residence,
proximity to the resource, or the availability of
alternative resources.
MS. KITKA deferred to Norm Cohen.
Number 0071
NORMAN COHEN, Legal Counsel for the Alaska Federation of Natives
(AFN), said the only point he would raise is the question of
reasonable opportunity. He paraphrased from his recollection of
the memorandum from the Regional Solicitor, U.S. Department of the
Interior [dated September 23, 1999, written in response to proposed
CS for HJR 201, Version D]. On page 2, halfway through item 4,
that memorandum read as follows:
The amendment also adopts the "reasonable opportunity"
approach to providing the subsistence priority which was
previously contained in amendments to ANILCA enacted by
Congress in 1997, but which expired in 1998 without ever
taking effect because the state legislature did not
approve a constitutional amendment as the Act containing
the amendments required. By focusing on criteria like
these which are not in the federal law, the proposal
risks creating new conflicts with ANILCA.
[Note: Mr. Cohen erroneously told members the Regional Solicitor
had stated in the memorandum that "including 'reasonable
opportunity' in this constitutional amendment they found to be
inconsistent with what their charge is and what the Congress had
requested that they certify, and they could not certify it with
those two words there." Representative Murkowski later pointed
out, at Number 0324, that the memorandum does not say that. It
says "the proposal risks creating new conflicts with ANILCA."]
MR. COHEN suggested that with "reasonable opportunity" removed,
Representative James's wording is close to what the AFN has been
proposing.
Number 0124
REPRESENTATIVE JAMES expressed her understanding that "reasonable
opportunity" is in state regulations currently, and is in this
proposed language because some people want it there. Whether or
not in ANILCA, it is assumed to be there, she said, because all one
can offer is a reasonable opportunity.
MR. COHEN replied that the problem with "reasonable opportunity" is
how it would be defined by statute, or how it had been defined
previously by courts. When the state included it in statute, which
he believes was at the 1992 special session, the state was already
out of compliance with ANILCA; thus, there has never been a
question as to whether the state complies by including "reasonable
opportunity." The test or standard is whether the regulations
provide for the customary and traditional uses of a specific
resource, established by the people in question; that is what the
boards are supposed to do, Mr. Cohen said, in terms of crafting
regulations. The question is whether they mirror the customary and
traditional uses established over time. "Reasonable opportunity"
can place a lot of different standards; undefined, its meaning is
unclear. He suggested it would be better to have that discussion
at the statutory level, after a constitutional amendment is agreed
upon.
Number 0324
REPRESENTATIVE MURKOWSKI pointed out that her own reading of
paragraph 4 of the September 23, 1999, memorandum from the Regional
Solicitor differs from Mr. Cohen's. [See earlier discussion at
Number 0071.]
[Ms. Kitka offered, for copying, a second opinion from the Regional
Solicitor, dated September 24, 1999; however, it only referenced
the Governor's original version of HJR 201, deeming it to be fully
consistent with Title VIII of ANILCA.]
Number 0461
CHAIRMAN KOTT concurred with Representative Murkowski's assessment
of the September 23, 1999, memorandum.
REPRESENTATIVE PHILLIPS pointed out that one agreement reached two
years ago with the Secretary was that he would carry forward, at
that time, the amendment to ANILCA [mentioned in the memorandum].
Number 0509
REPRESENTATIVE HALCRO brought up concerns he has heard that the AFN
has not compromised, which he asked Ms. Kitka to address.
MS. KITKA explained that although Congress didn't specifically deal
with subsistence in the Alaska Native Claims Settlement Act
(ANCSA), a section in the conference committee report stated
clearly that Congress expected the Secretary of Interior and the
state to deal with the legitimate subsistence needs of the people.
In addition, several other issues weren't dealt with in ANCSA.
From 1971 until 1980, there were unrealistic expectations by
members of Congress that the Secretary of Interior and the state
would protect the interests. However, it became crystal clear by
the time ANILCA was being worked on in Congress that there were a
lot of problems in the state, and there weren't protections in
place. Therefore, Title VIII of ANILCA became part of that
process, as far as the continuation of the commitment in ANCSA.
MS. KITKA stated that obviously the Native people would have liked
to have seen all Alaska Natives protected under a Native priority.
Regarding the legislative history of ANILCA, she indicated the AFN
has looked at legislative histories, including every conference
report, committee hearing and issue. Many compromises were made
during that whole ANILCA debate, on many issues besides just
whether it would be a Native priority or a rural priority.
Clearly, at the time there wasn't enough support in Congress to put
in a Native priority. Ms. Kitka indicated there had been a request
by then-Governor Hammond which noted that the state constitution
precludes having a Native priority. It can be demonstrated,
therefore, that compromises were made by the Native community even
before ANCSA, Ms. Kitka said. Furthermore, the AFN and the Native
community have worked with every governor in the nearly ten years
since the Alaska Supreme Court decision in McDowell, in every
legislative session, with the express purpose of trying to help the
state resolve this issue and regain management. To her, it
indicates the great willingness of the Native community - and AFN,
in particular - to try to help the state. However, they are
exasperated and disappointed that the issue hasn't been resolved,
despite these many years.
MS. KITKA stated, "Our people are ready for the federal government
to come in and fully implement the federal law." She indicated the
patience of AFN members has evaporated, especially looking at the
102 villages in economic distress because of a salmon shortage, and
the fact that they do not have the federal priority for subsistence
fish at this point in time. People are losing optimism that the
state is capable of resolving this, and are looking more hopefully
to the federal government. "At least they'll implement the law,"
she added. "At least the priority will be implemented. At least
there'll be agencies that you can work with to try to make this be
smooth and workable." She expressed hope that this legislature can
rise to the challenge. However, she believes Version G will cause
divisiveness, and the many undefined terms will encourage
litigation and fighting between Alaskans. She said it is a
lawyer's field day to have this kind of thing at a constitutional
level. Although numerous issues need to be resolved, they don't
have to be loaded up in a constitutional amendment.
Number 0909
CHAIRMAN KOTT asked why, during the negotiations in the late 1970s
and 1980s, no provision addressed subsistence for all users. He
indicated he had heard a news clip from President Clinton that
suggested he would protect subsistence for all the users.
MR. COHEN explained that the Marine Mammal Protection Act (1972)
and the Endangered Species Act (1973) provided exceptions to "no
hunting" for Alaska Natives living along the coast of the Bering
Sea, the North Pacific, and so forth. As time went on, there was
a movement away from that. Legislative discussions in the
mid-1970s were over creation of subsistence areas in rural Alaska.
Increased pressure being felt by villagers, because of fly-in
hunters, for example, triggered a lot of the activity. Bills in
the Alaska State Legislature by Senator Sackett and Representative
Huntington were based on hunting pressure near the Koyukuk and
Holitna Rivers, as well as the driving out of local people from
getting a chance to harvest. Mr. Cohen indicated the Alaska
Department of Fish and Game (ADF&G) had tried to allocate the small
number of caribou that remained to just the people living in the
region, but there was no statutory authority to do so.
Furthermore, lawsuits tried to stop that kind of allocation. When
Congress asked where the problem was, the problem was pressure felt
in rural Alaska because of people coming in to hunt from outside of
the area, whether from urban areas or other states. People were
looking for some way to address that.
Number 1095
REPRESENTATIVE THERRIAULT suggested that the language "proximity to
the resource" addresses that. He doesn't support wording that
allows somebody from Tok, for example, a preference to fly into the
Yukon Flats to take the resource in a time of shortage, he added.
MR. COHEN explained that there are two parts to the eligibility
test for subsistence: whether the person is a rural resident, and
whether the person lives within a customary and traditional use
area, which is, for the most part, determined by the Board of Game
or the Board of Fisheries. If someone from Tok goes to the Yukon
Flats regularly and has created a customary and traditional use
there, for example, that person would qualify. If not, even though
that person is a rural resident, he or she couldn't participate in
subsistence uses in the Yukon Flats. However, a person could hunt
or fish there under general regulations, such as those for sport
hunting or fishing, or for personal use fishing. Therefore, a
local "proximity" aspect exists in the current system, which
relates to initial eligibility, not just Tier II.
Number 1268
CHAIRMAN KOTT asked: If a particular resource in Yukon Flats were
depleted, residents of that village couldn't go to another area
under subsistence?
MR. COHEN said that is correct; they could go only under general
hunting rules.
REPRESENTATIVE WILLIAMS asked if that is how it is written in
ANILCA today.
MR. COHEN specified that it is the statutory system put in place
beginning in the late 1970s, and it is how the law has been
interpreted and implemented since 1978. The ANILCA scheme is done
exactly the same way now, with the federal program for game.
Number 1362
DICK BISHOP, Vice President, Alaska Outdoor Council (AOC), came
forward, noting that the AOC has about 10,000 members, including 45
member clubs. He advised the committee that despite appreciation
for the work done, particularly on this draft, the AOC doesn't
believe Version G meets minimum needs to protect all Alaskans'
interests. Those needs include civil rights and opportunities to
use fish and wildlife resources, as well as other natural, wild
renewable resources. He indicated that he and David Kelleyhouse
would suggest improvements to Version G, despite the belief that it
doesn't meet the needs of all Alaskans.
MR. BISHOP emphasized the inappropriateness of a discriminatory
priority, such as zip code, for use of fish and game in Alaska. In
Version G, "proximity," if used by itself, quickly would lead to a
succession of regulatory proposals that would be nothing more than
"local rural resident proposals," he said. It is important that
any treatment be subject to regulation, and the "sustained yield"
language in Version G is important in that regard. Furthermore,
the AOC has recommended repeatedly that this priority be limited to
fish and wildlife. Mr. Bishop asked if the state really wants a
subsistence priority on all state timber, berries, waters, or other
areas that might be roped in under the very broad and loose
language of ANILCA. He noted that there he finds something to
agree with Attorney General Botelho on: Loose language is very
dangerous.
MR. BISHOP told members the AOC believes it is essential that
"reasonable opportunity" be included, and that the priority only
operate when there is an actual biological shortage, "not a paper
shortage, interpreted as being whenever there are regulations, as
ANILCA now demands." Also important is that there be no commercial
sale of resources taken under subsistence uses, and that it be
required to be a nonwasteful taking, which is not mentioned in this
case. Furthermore, the AOC doesn't believe it should be tied to an
open-ended term such as "customary and traditional," which invites
innovation and the beginnings of new traditions, as well as the
expansion of old traditions; as the Bobby case indicated, that term
is whatever has been done in the collective past, if one adheres to
the federal law.
MR. BISHOP continued, saying the AOC also feels strongly that a
constitutional amendment relating to the uses of fish and game must
be linked to passage of ANILCA amendments that retain or restore
state authority on state and private lands, state navigable waters
and federal public lands. He read from Title VIII of ANILCA,
section 801(2): "the situation in Alaska is unique in that, in
most cases, no practical alternative means are available to replace
the food supplies and other items gathered from fish and wildlife
which supply rural residents dependent on subsistence uses". He
said the way the law is interpreted, and the way it has been
handled, doesn't do that.
Number 1620
MR. BISHOP returned to Version G, commenting that Section 3 on page
2 amounts to the tail wagging the dog. He suggested that if the
legislature wishes to include that - in the effort to comport with
ANILCA, which he believes is not the correct undertaking - then the
terms of adhering to the federal law should be made clear to
Alaskans. He proposed that it ought to read as follows: "The
[purpose] of the amendments proposed by this resolution is to
provide for a preference for subsistence use of fish, wildlife,
berries, timber, waters and other renewable natural resources; to
ensure state management of fish and wildlife under federal law and
federal court oversight throughout the state."
MR. BISHOP next commented on Section 30(c), beginning on page 2,
line 3. He suggested that if the legislature wished to make clear
some standard by which the Governor could determine that the
federal government has impinged on state authority, the section
could be modified to say something like "when the federal
government enacts regulations for the taking of fish and game on
state lands and waters."
MR. BISHOP commented on the issue of compromise. First remarking
on his own 25 years' experience with this issue, he told members he
would paraphrase the AFN's statement to the legislature. In 1990,
he believes, there was a special session to deal with the issue of
conforming to ANILCA. And after much discussion, a constitutional
amendment was proposed, and testimony was being taken in the House
Resources Committee under Representative Davidson from Kodiak. Mr.
Bishop recalled:
Ms. Kitka said at that time that the Alaska Federation of
Natives would accept no law that did not guarantee the
survival of their communities and their cultures. And I
thought that was a far-reaching demand, and I suggested,
in my testimony, that the legislature should not accept
that challenge because they were bound to fail; there was
no law that they could pass that would fulfill that
guarantee.
MR. BISHOP indicated he had been associated with Governor Hickel's
advisory committee. They had gone through long discussions and
seemed to have reached agreement in 1992, he recounted. Governor
Hickel had submitted legislation that dealt only with state law; it
was a genuine attempt involving a number of different people, from
all elements of the public, to improve the accommodation of
subsistence uses in the state. However, the legislation was
effectively dismembered through the efforts of the proponents of
the rural priority in the federal law. Mr. Bishop concluded, "I
guess to be generous, it's been a mixed bag with regard to the
issue of compromise." He then asked Mr. Kelleyhouse to review
language that they had worked on for the principal part of the
amendment.
Number 1816
DAVID KELLEYHOUSE, Member, Board of Directors, Alaska Outdoor
Council, came forward, distributing copies of a proposed amendment
to Section 1. As originally typewritten, it read:
(b) The legislature may, consistent with the sustained
yield principle and sound resource management practices,
provide a preference to and among residents for a
reasonable opportunity to take an indigenous subsistence
fish or wildlife resource on the basis of [CUSTOMARY AND
TRADITIONAL USE,] direct dependence, proximity to the
resource [OR] and the availability of alternative food
resources in areas where the residents are
characteristically dependent upon that resource for
personal and family nutrition. The preference may be
granted only when the harvestable surplus of the resource
[, CONSISTENT WITH THE SUSTAINED YIELD PRINCIPLE AND
SOUND RESOURCE MANAGEMENT PRACTICES,] is not sufficient
to provide a reasonable opportunity for other beneficial
uses.
On the distributed copies were handwritten changes to the last
sentence: inserted after "preference" was the phrase "for
nonwasteful, noncommercial subsistence taking"; "allow" was changed
to "provide"; "a reasonable opportunity" was placed in brackets;
and "all beneficial uses" was changed to "other beneficial uses".
MR. KELLEYHOUSE explained the proposed changes. First, moving the
phrase "consistent with the sustained yield principle and sound
resource management practices" to the first sentence would make it
extremely clear that subsistence uses have to be consistent with
sustained yield and sound management practices. Second, if it is
the legislature's wish to restrict it to fish or wildlife
resources, he believes that should be specified. Third, the AOC
recommends deleting "customary and traditional"; in view of the
Bobby case, those words are open-ended and can be construed to be
racial in nature. Furthermore, the AOC believes that the basis of
direct dependence, proximity to a resource and the availability of
food resources would accomplish the goal; they specifically
recommended using "and" rather than "or".
MR. KELLEYHOUSE mentioned the addition of "food", to read
"alternative food resources". He next discussed the proposed
phrase, "in areas where the residents are characteristically
dependent upon that resource for personal and family nutrition".
He said currently there are nonsubsistence areas, including the
Kenai Peninsula, the area south of Fairbanks, and most of the
Matanuska-Susitna Borough, where subsistence uses are not
characteristic of those areas, but where there are is a tremendous
amount of hunting opportunity. Without language that protects
those nonsubsistence areas, there may be a risk of a subsistence
priority in Anchorage's and Fairbanks' backyards.
MR. KELLEYHOUSE next mentioned inserting, in the last sentence,
"for nonwasteful, noncommercial subsistence taking" following
"preference". Finally, in grappling with "shortage," he said
George Utermohle had drafted language in the other body, which was
added, handwritten, at the bottom of the AOC's proposed amendments,
as follows:
a historically unusual shortage of a fish stock or
wildlife population occurs, until the stock or population
of the resource has increased to a level that is
consistent with the normal range of historic stock or
population levels of the resource in the area and with
the habitat limitations for the resource in the area.
MR. KELLEYHOUSE pointed out that in the last sentence of subsection
(b), after the phrase "may be granted only when", the above
language would replace the entire remainder of the sentence. He
concluded by suggesting that if the legislature wants to retain the
current language, then as pointed out by Attorney General Botelho,
they may want to delete the second reference to "reasonable
opportunity," because it would require the Board of Game and the
Board of Fisheries to make determinations never before required of
them. It would then say, "is not sufficient to provide for other
beneficial uses."
Number 2042
CHAIRMAN KOTT asked whether Mr. Kelleyhouse believes that the AOC's
proposed language meets the intent of Title VIII of ANILCA.
MR. KELLEYHOUSE replied that he believes the intent of Title VIII
is to meet the needs of people who are dependent on wild food
resources. He then answered:
I believe that it would meet the intent. ... I'm not an
attorney, but knowing the politics of this game for the
last 20-25 years, I'd bet the Secretary won't accept it.
And we've said all along that if we're going to try to
forge an Alaskan solution that's consistent with our
constitution, and with its sustained yield mandates and
such, it's going to require some give on the federal
side. If your intent is to comply with ANILCA, well,
you'd have to take the Governor's version [of HJR 201],
probably, and just take all that that would entail. And
if you want to try to forge an Alaskan solution, well,
we're willing to help you, to the extent that we can.
Number 2093
REPRESENTATIVE AUSTERMAN inquired about Mr. Kelleyhouse's assertion
that "customary and tradition" may have a racial tone.
MR. KELLEYHOUSE replied that the way the words have been used for
the last ten years, there is no doubt that they have been applied
primarily for Alaska Native customs and traditions. He believes
that is the public perception as well, and that it is the practical
way in which they have been used. He believes Alaska's
constitution should remain colorblind, to the extent possible.
Number 2133
REPRESENTATIVE HALCRO referred to Mr. Bishop's opening remarks
about the legislature's responsibility to protect civil rights and
opportunities. He also referred to Attorney General Botelho's
discussion of how society is replete with levels of discrimination,
such as income levels or minimum age requirements.
TAPE 99-74, SIDE A
Number 0001
[Tape began midspeech.]
REPRESENTATIVE HALCRO said "...to a year to get federal welfare
would you say that's a violation of your civil rights if you want
that benefit and make more than $30,000 a year?" He stated that he
was trying to clarify Mr. Bishop's frame of mind and understand his
arguments.
Number 0038
MR. BISHOP answered that most of those rules are not
discrimination, they are qualifications. He explained that no one
is arbitrarily excluded from the possibility of arriving at the
condition where he/she is qualified. When he was ten years old, he
knew he couldn't have a driver's license, but he had a reasonable
expectation of being able to qualify for one when he turned 16.
Most of those kinds of things provide opportunities rather than
restrict the opportunities of people, which is distinctly different
from the kind of restriction here. He reminded the committee of
the Alaska Supreme Court's comment that the rural priority exceeded
the general standards used in reviewing territorial discrimination.
The court also said that most territorial discrimination issues
should be reviewed in the light of equal protection, and
furthermore the argument that "if someone wants to qualify, he
should just move" goes to far. People should not be asked to move
in order to qualify for this use which they [Alaska Supreme Court]
had previously stated is an extremely important use that runs to
each and every Alaskan.
REPRESENTATIVE HALCRO asked Mr. Bishop if he agreed with the
statement that federal management would be bad for Alaska's
fisheries.
MR. BISHOP replied with an enthusiastic yes. If the state conforms
to the federal law, then the same conditions will apply to
management of Alaska's fisheries when the state manages Alaska's
fisheries that would apply when the federal government manages
Alaska's fisheries. Therefore, if the committee wishes to retain
Section 3, it should be very clear that if it returns "supposedly"
state management that it is state management under the federal law
and under federal court oversight because the very same rules will
apply in each case.
REPRESENTATIVE HALCRO noted that changes to ANILCA are practically
impossible before October 1, 1999. He asked Mr. Bishop if it is in
Alaska's best interest to maintain control of the fisheries going
forward so that the state will have various options in the future.
MR. BISHOP agreed, but unfortunately that would not be the case if
the state conformed to the federal law. He referred to a map of
Alaska which illustrated the federal waters in red and the state
waters in blue. If the state conforms to the federal law, the
entire map would be colored red because all of those waters, not
just those on the federal conservation system units, will come
under the mandate of the federal law. He pointed out that the
driving force of the federal law, Title VIII of ANILCA with regard
to fish and game management, is a subsistence priority.
Number 0413
MR. KELLEYHOUSE recalled the time before he was Director of the
Division of Wildlife Conservation under the former administration.
During that time, when the state was in compliance with ANILCA, the
courts had authority over all lands: state, private and federal.
As soon as the state was not in compliance with ANILCA, the federal
courts no longer had authority over state lands or over the state's
regulatory program. If the state goes into compliance over the
fisheries issue, the effect will be extending the force of that
federal law onto another 147 million acres of state and private
lands.
REPRESENTATIVE ROKEBERG commented that he didn't understand exactly
why that was the case. He asked Mr. Kelleyhouse who would enforce
those laws, if the state fish and game is there continuing to
enforce the state's statutory regime which has been certified by
the Secretary of Interior.
Number 0505
MR. KELLEYHOUSE answered that the federal courts will be enforcing
that. As in the Bobby case in Lime Village, anyone who does not
feel that the customary and traditional use opportunities are being
met can go to federal court and challenge the state regulations.
In the Bobby case, Judge Holland ruled that state regulations
should be changed to provide a longer moose and caribou season as
well as a larger harvest quota. When the state is not in
compliance with ANILCA, it doesn't have to have laws of general
applicability; ANILCA requires that the state have laws of general
applicability. "That's the kicker right there." Therefore, it is
not merely federal lands and waters, it is all state lands and
waters because of the language that requires the laws of general
applicability. He stated, "That then substitutes the federal
standard of managing for customary and traditional uses and healthy
populations of fish and game, undefined; that takes over in place
of 'sustained yield' and 'reasonable opportunity.'" Basically, the
state would be operating under a federal standard if the state is
in compliance. When in compliance, the regulatory program is
subject to federal court oversight of everything. "That's why it
is a misnomer saying that we're going to save state management;
we're not."
Number 0630
REPRESENTATIVE WILLIAMS commented that last session the legislature
had amendments to ANILCA that addressed many of the concerns
mentioned earlier. This is the first time he has heard mention of
an "Alaskan solution." During the last special session, the
legislature was very close to an "Alaskan solution." However, Mr.
Bishop didn't support that solution then. Therefore, the
amendments to ANILCA, which he thought would take care of a lot of
the concerns, went away.
MR. BISHOP responded that it was a mixed bag with regard to the
amendments that had been promulgated between Senator Stevens and
the Secretary of Interior. Some of the amendments made matters
worse because they conceded federal authority in places where they
should not have, for example, with respect to navigable waters.
That remains a bone of contention in legal terms.
REPRESENTATIVE KERTTULA asked if one could file in state court, if
the state had its statutes in place.
MR. KELLEYHOUSE answered that is correct.
Number 0726
REPRESENTATIVE KERTTULA asked if the harvestable surplus in an area
isn't sufficient to provide [for subsistence uses or other uses],
could a person from Anchorage or Juneau still travel to that area
and still hunt and fish.
MR. KELLEYHOUSE understood the language to mean that a person could
travel to hunt or fish in an area as long as there was a
harvestable surplus sufficient to provide for subsistence uses and
other uses. When there isn't a surplus, except that needed to meet
subsistence needs, the preference would kick in and throw the
safety net under subsistence users.
REPRESENTATIVE KERTTULA asked if Mr. Kelleyhouse's interpretation
meant that a person would have to be from that area to be able to
subsistence hunt or fish at that point.
MR. KELLEYHOUSE replied that is correct.
REPRESENTATIVE KERTTULA asked where that would normally happen;
would it happen in an urban area?
MR. KELLEYHOUSE specified that such a situation would happen in
areas that are characteristically dependent upon subsistence
resources. It is getting into the labeling of "urban" and "rural."
He recalled former Attorney General Charlie Cole's characterization
of such a situation as a "rough cut" of "urban" and "rural" that
violates people's civil rights. He indicated that it is acceptable
to base the preference on need and circumstance. For example, Mr.
Bishop cannot qualify for a subsistence preference because he lives
in Fairbanks, but Mr. Kelleyhouse can because he lives in Tok.
REPRESENTATIVE MURKOWSKI inquired as to why there hasn't been a
suit brought by hunters to challenge ANILCA.
MR. BISHOP indicated that the main reason is money. There has been
a lawsuit filed by the Safari Club International over the
administration of the federal law by the federal subsistence board.
There is some possibility that some people who have been seriously
harmed might consider adding on to that suit. He has no idea if
that is a viable option at this stage, but it is a possibility. It
may be better to wait until the federal government has actually
enacted its regulations, because it will certainly increase the
probability that people will be harmed. Some may be harmed
sufficiently to take on that challenge. Mr. Bishop stated that
there is no question that people have already been harmed. He
pointed to the classic case of the virtual exclusion of sheep
hunters in Northwestern Alaska and Northeastern Alaska that Mr.
Holt had mentioned. About half of the roughly 450 regulations
passed by the federal subsistence board have established the
customary and traditional restrictions on the uses by people other
than rural priority people.
MR. BISHOP said incidently, the federal system doesn't work quite
as cleanly as Mr. Cohen mentioned. For example, the village of
Chickaloon had a subsistence use priority for Ruffed Grouse on the
Kenai Peninsula before Ruffed Grouse lived there. The Ruffed
Grouse was introduced two to three years after the regulations
provided for the preference. It is not exactly a smooth operation.
Number 1110
CHAIRMAN KOTT closed all further public testimony.
REPRESENTATIVE MURKOWSKI said having listened to the presentations
tonight, at least three of the four seemed to agree that if the
committee inserts "place of residence" in Section 4(b) it gets the
amendment closer to being in compliance with ANILCA.
Unfortunately, the whole certification process is anybody's guess.
Precertification would be nice. Although there seems to be
precertification on the Governor's version of the resolution, many
people feel strongly that there are other ways to word it and still
get it right. She suggested that the committee is closer to
getting it right if some changes can be worked into Section 4.
Number 1220
REPRESENTATIVE MURKOWSKI offered Amendment 1, which reads:
Page 1, line 12 after "proximity to the resource,",
Insert "place of residence,"
CHAIRMAN KOTT objected in order for the members to receive copies.
He then withdrew his objection. There being no other objection,
Amendment 1 was adopted.
The committee stood at ease from 12:00 a.m. - 1:28 a.m.
Number 1379
REPRESENTATIVE ROKEBERG made a motion to adopt a conceptual labeled
Amendment 2, which read:
Delete page 2, lines 7-21
Insert:
Subsection (b) of Section 4 of Article VIII, regarding a
subsistence priority, is repealed when the governor certifies
that;
1. any federal agency has implemented regulations
on the management of fish and or wildlife on State
land, including navigable waters to which the State
holds title, under Title VIII, Alaska National
Interest Lands Conservation Act (P.L. 96-487); or
2. a state or federal court has issued a final
nonappealable judgment or order deciding that any
provision of Title VIII, Alaska National Interest
Lands Conservation Act (P.L. 96-487), as amended,
violates the constitution of the United States.
Any person may bring an action in superior court to enforce
this subsection.
REPRESENTATIVE CROFT objected. He said:
I think we still have the governor certifying problem
with all of the separation of powers difficulties that it
entails, all of the practical difficulties. In addition,
we remain with the difficulty of the statutory blip, a
noncompliance, dropping out a constitutional amendment
when any federal agency has implemented regulations on,
we could all be trying to change the statutes. Without
this, we could all work on the statutes, and if we
reached an impasse and decided that we no longer wanted
to comply, it would be as easy as changing the statutes.
This makes it that much more difficult to get out of one
of those situations, should we choose to get out of those
situations, because the constitutional amendment itself
would be repealed. So, we're tying our own hands, and
we're doing it in a way that's unpredictable, that
violates separation of powers and that may be forced upon
us by a superior court action. So we may have the
governor dropping out a constitutional amendment, we may
have the court forcing us to drop it, when if we don't do
this, it's all in our hands. We can, with the
constitutional amendment standing, decide to keep
statutes that comply with ANILCA and therefore comply, or
choose not to and don't. And why we would want to either
tie our own hands or have the governor tie our hands or
have a superior court tie our hands, I fail to see. If
we, at a later time, decided that because a final,
nonappealable judgment had been made, we didn't want to
comply anymore, or because a federal agency had
implemented regulations, or hadn't, we can make those
determinations; we can change the statute that kept us in
compliance and write a cursory letter to the Secretary of
Interior saying you may well notice that after this
statute we just passed is over we're out of compliance go
ahead, but this [amendment] forces our hands, and it
forces our hands in unpredictable ways that are not in
the state's best interests. Let's leave it with the
legislature rather than the governor's certification or
a superior court judgment.
Number 1605
REPRESENTATIVE GREEN asked Representative Croft if he wanted to
change "governor" to "legislature," or drop the whole thing.
REPRESENTATIVE CROFT answered that this amendment makes the current
situation worse. He rejected Amendment 2 and moved to delete the
entire Section 2. Representative Croft maintains that without
Section 2 the legislature has the maximum flexibility.
Representative Croft stated:
Nothing is going to be dropped out on us. The amendment
may still be there, but we've changed our statutory
structure and are no longer in compliance. And we don't
have to do it just for these list of things that we now
know might be offensive to us. There might be others,
related or unrelated to subsistence, that cause the
legislature to decide that it doesn't want to be in
compliance anymore. It's not just the list we at 2 in
the morning can figure out, it can be anything and we
have the authority to do that.
REPRESENTATIVE GREEN commented that there are many other statutes
which utilize "the lieutenant governor certifies" and "the governor
certifies"; why is that now a separation of powers?
REPRESENTATIVE CROFT indicated that almost every time the language
used is "the lieutenant governor certifies an election." He said
that is the language he is accustomed to seeing. He explained that
a constitutional amendment becomes effective by being placed on the
ballot and after the election the lieutenant governor certifies the
election results. These are repealers, which he indicated would
change the state's constitution, five, ten or twenty years down the
line, based on the governor certifying certain actions or the
superior court suing them. The principle is that the legislature
is completely free to come out of compliance whenever it wants to
do it.
Number 1710
REPRESENTATIVE KERTTULA commented that the legislature will be
completely circumvented; it won't even be involved.
REPRESENTATIVE GREEN clarified that he was thinking of separation
of powers as a violation which wouldn't be the case here because it
would establish it in law. Although it may not be a good idea, he
didn't view it as a separation of powers. Some powers are merely
being abrogated.
REPRESENTATIVE KERTTULA said that is still a separation of powers
problem. It still creates a constitutional crisis problem. She
asked why the legislature would want to give up the right to the
governor. She noted that, most likely, the problems with this
amendment will hit a future legislature.
REPRESENTATIVE ROKEBERG said he could appreciate the issue
regarding the regulations possibly being interpreted broadly
However, if there is a final, nonappealable judgment order
regarding the courts violating the Constitution of the United
States, that would seem to be straightforward. It seems rather
appropriate to invest in the governor the administrative duty to
see that this is taken off the books. Perhaps, it is a dream that
it would ever reach the supreme court, but it may provide some
solace to those who think that it is going to make a difference
whether there is an adjudication of this issue or not. He
indicated that the real answer is the change of ANILCA statutorily
by the Congress.
Number 1837
REPRESENTATIVE CROFT reiterated that the general principle is that
the legislature has the complete authority to come out of
compliance whenever it wants. He believed that Amendment 2 ties
the legislature's hands. He could foresee a time when the
legislature could have discussions about compliance while the state
was still in control of both fish and game. He clarified that in
this scenario the state could have implemented, but not yet
enforced regulations, and a governor could certify. Perhaps, there
could be a situation where the legislature still wanted to
continue. According to Amendment 2, the legislature would lose its
constitutional amendment. He then referred to the language in
number 2 of Amendment 2 which reads "deciding that any provision of
Title VIII." The provision could be a very innocuous provision;
it does not specify the rural preference. Therefore, the
legislature could be in a situation where there was a more minor
provision declared by a final, nonappealable judgment to violate
the constitution. The equal protection clause isn't specified. A
minor provision that violates a technical part of the constitution
could occur, and the constitutional amendment would just drop out
of the constitution. "The committee has given to the court and the
governor every word in here. ... We are giving, if we don't do this
and if we do remove Section 2, the complete authority to comply or
not and the most options available for those provisions."
Representative Croft maintained his objection to Amendment 2.
A roll call vote was taken, but subsequently voided due to
confusion on the motion before the committee.
Another roll call vote was taken. Representatives Rokeberg, James
and Kott voted in favor of the adoption of Amendment 2.
Representatives Croft, Kerttula, Green and Murkowski voted against
the adoption of Amendment 2. Therefore, Amendment 2 failed to pass
with a vote of 3-4.
Number 2012
REPRESENTATIVE CROFT made a motion to adopt conceptual Amendment 3,
which read:
Page 2
Delete lines 1-26.
CHAIRMAN KOTT objected.
REPRESENTATIVE CROFT commented that Section 2 has many of the
difficulties described in relation to Amendment 2. He said, "Where
we are free to come in or out of compliance on a vote of 21 without
these repealers, we tie our own hands and make it impossible should
we or a future legislature decide we wanted to stay in compliance
even if some of these provisions take place." He explained that
subsection (a) is the effective date and subsection (b) is the
repealer which is similar to Amendment 2. Subsection (c) includes
all the dangers that have been discussed such as the governor's
determination that may or may not comport with the facts. Even if
the governor's determination does comport with the facts, it may be
something that this or a future legislature wants to deal with.
The flexibility to do so would be lost when the section drops out.
He noted, "It would also delete Section 31 on lines 22-26 that
talks about litigation on behalf of the state."
REPRESENTATIVE CROFT returned to subsection (c) which raises
serious separation of powers arguments. He noted that the
legislature has tried before to do things, particularly in
regulations, that have violated the separation of powers. The
court has said, according to the constitutional structure division
of three branches of government, that [regulations] are the
responsibility of the executive branch. It may be unwise to have
the governor dropping out of constitutional amendment, but it may
also violate that [the separation of powers]. The language in
Section 31 and subsection (c) raise much greater Bess v. Ulmer
problems as testimony from both Attorney General Botelho and George
Utermohle highlighted. For a time, "we had ... an amendment that
was focused upon the natural resource provisions of the
constitution, and therefore arguably was limited both in scope and
on qualitative." Now the amendment is speaking about things
including the governor's authority, the basic structure of the
government, who proposes constitutional amendments and how
constitutional amendments are repealed. He noted that some could
argue that how the constitution is amended and how those amendments
are repealed is the most fundamental aspect of a constitution.
"That argument could carry a lot of weight and if so, we are
repealing a fundamental portion of our constitution.... That could
look much more like a revision to a court than a simple amendment
directed to natural resource provisions." He identified litigation
on behalf of the state as another separation of powers argument.
The committee is saying one branch of government usually does this,
but under this language now another branch would, which in itself
speaks to fundamental aspects of the state constitution. This
provision is poor policy and limits the flexibility of future
legislatures. Furthermore, this language greatly increases the
chance that this constitutional amendment will be called a
revision, and therefore require a constitutional convention rather
than a simple amendment.
Number 2195
CHAIRMAN KOTT explained that his objection was to the removal of
lines 1-6. He informed the committee that discussions with the
attorney general have indicated that it is common practice to
include those lines in a constitutional amendment. Chairman Kott
asked Representative Croft to amend his motion.
REPRESENTATIVE CROFT amended his motion to delete only lines 7-26
on page 2.
REPRESENTATIVE GREEN suggested a friendly amendment to delete the
"(a)" on line three.
REPRESENTATIVE CROFT agreed and suggested the deletion of "and
Repeal" on line 3. Therefore, Amendment 3 would read as follows:
Page 2, line 3,
Delete "and Repeal" and "(a)"
Page 2
Delete lines 7-26
REPRESENTATIVE ROKEBERG objected.
A roll call vote was taken. Representatives Kerttula, Green,
Murkowski, Croft and Kott voted in favor of the adoption of
Amendment 3. Representatives Rokeberg and James voted against the
adoption of Amendment 3. Therefore, Amendment 3 was adopted with
a vote of 5-2.
TAPE 99-74, SIDE B
Number 0035
REPRESENTATIVE GREEN moved that the committee adopt Amendment 4
which read:
Page 1, Delete lines 10-16
Insert
1 "(b) The Legislature may, consistent with the sustained yield
principle and sound
2 resource management practices, provide a preference to and
among residents for a
3 reasonable opportunity to take an indigenous subsistence fish
or wildlife resource on the
4 basis of customary and traditional use, direct dependence, the
availability of alternative
5 resources, the place of residence and proximity to the
resource. The preference may be
6 granted only when the harvestable surplus of the resource is
not sufficient to provide for
7 the customary and traditional level of subsistence use."
CHAIRMAN KOTT objected for purposes of an amendment to Amendment 4.
REPRESENTATIVE GREEN moved to amend Amendment 4 as follows:
Delete text, after "granted only"
Insert:
"in times of shortage as defined by statute."
REPRESENTATIVE ROKEBERG objected to the amendment to Amendment 4.
He suggested the insertion of the language "as defined by the
Legislature" in order to ensure that the legislature defines what
time of shortage is.
REPRESENTATIVE PHILLIPS interjected that the legislature can define
anything, unless it exists in Alaska statute.
REPRESENTATIVE ROKEBERG noted that Representative Green's amendment
to Amendment 4 only refers to "statute" which could include federal
statute.
REPRESENTATIVE PHILLIPS suggested referring to "Alaska statute."
REPRESENTATIVE ROKEBERG was agreeable to that.
REPRESENTATIVE DAVIES pointed out that all others in the
constitution use the language, "by law."
REPRESENTATIVE KERTTULA objected. She believed the problem is that
the language is restrictive such that a subsistence preference only
exists in a time of shortage, which is Tier II. Under ANILCA, the
preference can't be only during times of shortage.
Number 0319
STEPHEN WHITE, Assistant Attorney General, Natural Resources
Section, Civil Division (Juneau), Department of Law, understood
that the committee wanted times of shortage to establish the
priority of subsistence over other uses. The proposed language
says that there can be no other preference for rural or any other
way to distinguish among users, until there is a time of shortage.
He explained that ANILCA establishes rural users as the subsistence
users regardless of the resource abundance. For that reason, the
proposed language wouldn't comply with ANILCA.
REPRESENTATIVE CROFT said that time of shortage is important in
ANILCA because it marks the time when there may be any practical
consequences on the other users. In a time of shortage, the other
beneficial uses shall be reduced to protect subsistence. He
suggested adopting the amendment and working with the preference
and the shortage language.
Number 0589
REPRESENTATIVE GREEN withdrew his amendment to Amendment 4. He
moved the committee adopt the following amendment to Amendment 4:
In the last sentence of Amendment 4,
Delete text after "granted"
Insert:
"when no practical alternative means are
available to replace the food supplies and
other items gathered from the fish and
wildlife which supply residents dependent on
subsistence uses."
REPRESENTATIVE KERTTULA objected.
Number 0650
REPRESENTATIVE GREEN moved that Amendment 4 be amended as follows:
In the last sentence of Amendment 4,
Delete "The preference may be granted only"
The last sentence of Amendment 4 would read as follows:
"When the harvestable surplus of the resource
is not sufficient to provide for all
beneficial uses, other beneficial uses shall
be limited to protect subsistence uses."
MR. WHITE explained that the above language would put the time of
shortage in terms of uses not users. The language would accomplish
what the state statute does.
REPRESENTATIVE PHILLIPS asked if it would be problematic to limit
it to subsistence uses versus subsistence users.
REPRESENTATIVE CROFT said that legally, the use of "subsistence
uses" is appropriate.
CHAIRMAN KOTT asked if there was objection to Representative
Green's amendment to Amendment 4. There being none, the amendment
to Amendment 4 was adopted.
Number 0858
REPRESENTATIVE MURKOWSKI proposed the removal of the word
"indigenous" and replacing it with language compatible with that in
ANILCA. She offered the following alternative language: "wild
renewable," "replenishable resources," or "renewable resources."
She felt that more questions are raised with the language
"indigenous." Therefore, Representative Murkowski moved an
amendment to Amendment 4:
Line 3 of Amendment 4; page 1, line 2(conforming title)
Delete "indigenous subsistence fish or
wildlife"
Insert "wild renewable"
Page 2, line 4
Delete "indigenous subsistence"
Insert " wild renewable"
REPRESENTATIVE KERTTULA requested that Mr. White comment because
Representative Murkowski's amendment to Amendment 4 may require
inclusion of the language "for subsistence uses" in order to comply
with ANILCA.
Number 1168
MR. WHITE agreed that the language "for subsistence uses" should be
inserted in order to be clear what resource or use is being
addressed. He suggested that "for subsistence uses" be inserted
after "resource" on line 4 of Amendment 4.
MR. WHITE interjected a suggestion that the language "and proximity
to the resource" be changed to "or proximity to the resource."
Therefore, it would allow a combination of the list not all of the
list.
CHAIRMAN KOTT inquired as to whether there is any importance to the
word "indigenous" as it is included in the original draft.
Number 1309
MR. BISHOP said that he believed the importance of "indigenous" was
to relate a priority for subsistence use to those species native to
Alaska as opposed to species that were introduced.
REPRESENTATIVE CROFT asked if the distinction is "indigenous" to
the state or the particular area.
MR. BISHOP understood the intent to refer to those species
indigenous to the state.
REPRESENTATIVE CROFT asked then if would matter if a species was
indigenous in one area, but the species is now in another area.
MR. BISHOP responded that he believed that to be the intent. For
example, moose are now residents of the Yakutat Forelands.
Although moose have not always been there, moose would fall under
an indigenous Alaskan species. He noted that another term could be
"wildlife native to Alaska" or "native Alaska wildlife."
REPRESENTATIVE CROFT inquired as to whether it meant the species
had ever been here. Would extinction end the categorization of
indigenous for that species?
MR. BISHOP noted that question is being argued, at the moment, over
bison. The U.S. Fish and Wildlife Service says bison would be
considered an exotic rather than an indigenous species, because of
the period of time during which they have been absent; although
contemporary bison supposedly were at one time indigenous residents
of the Yukon Flats area and adjacent parts of Canada, they died
out. He indicated his belief that non-indigenous species would be
those introduced through recent efforts of man.
Number 1497
REPRESENTATIVE CROFT asked: What if a species pushes out, or
largely pushes out, another, replacing it as a food source?
MR. BISHOP said to his understanding, the intent is that it would
not apply to restrict the use in that case. For example, caribou
and moose are both native to Alaska; if caribou became scarce but
moose became abundant, and people's patterns of use shifted, both
would be considered indigenous species under this construction. In
his own mind, it clearly refers to the general case: what has
been, in reasonably recent times, native to Alaska and not
introduced, or reintroduced, by man.
Number 1566
REPRESENTATIVE PHILLIPS remarked that because the word is new and
undefined, it brings up more problems than it helps. She agreed
with Mr. Bishop; although there are lots of moose around Nome now,
there were none when she was growing up there, and therefore nobody
could establish a pattern of dependency for subsistence on moose.
In addition, a big issue on the Seward Peninsula is reindeer, which
were brought into Alaska. In talking about indigenous species, she
believes it would be necessary to add qualifiers, talking about
deer on Afognak Island and elk in Southeast Alaska, for example.
She suggested it might be better to put it in statute later, after
it can be defined, rather than in the constitutional amendment.
Number 1615
REPRESENTATIVE BERKOWITZ advised members that he had prosecuted the
Totemoff case, which related to hunting deer, not a long-standing
species there, in the Prince William Sound area. There was
protracted litigation over that same subject, in that case.
Indicating he also had enforced an "indigenous" statute in
Antarctica, he cautioned that enforcing "indigenous" is highly
problematic because the result is extended arguments about what it
means. He suggested it is clearer to say "wild" or "fish and game"
resources.
MR. BISHOP proposed that the same meaning could be conveyed by
"native Alaskan species" or "naturally occurring species." He
noted that deer are native to Alaska, although not native to [the
Prince William Sound area]. The same is true of some moose
populations, although elk have been introduced. He agreed with the
intent, with naturally occurring species, to narrow them to those
that have a logical basis and long-term use, to support the idea of
customary and traditional use.
Number 1711
REPRESENTATIVE CROFT suggested the concept of whether a species is
indigenous may be appropriate within the definition of "customary
and traditional use," as one factor used for determination.
However, he worries about putting it, or similar terms, in the
constitution.
CHAIRMAN KOTT asked whether there were further comments about the
amendment to Amendment 4 [called "4B" on the tape]. There being
none, the amendment to Amendment 4 was adopted.
REPRESENTATIVE CROFT pointed out that the title still says "and
relating to litigation on behalf of the state."
CHAIRMAN KOTT stated that the title will be a conforming amendment
throughout the legislation.
Number 1777
REPRESENTATIVE KERTTULA moved that the committee adopt Amendment 5:
Line 2 of Amendment 4,
Delete "for a reasonable opportunity"
REPRESENTATIVE ROKEBERG objected.
REPRESENTATIVE KERTTULA pointed out that the Solicitor's letter
regarding the risk in the use of such language seems to be a direct
warning. She believed that in reality the language, "for a
reasonable opportunity," is what happens, and furthermore it is
currently in the state's statutes.
REPRESENTATIVE CROFT commented that the language should be
eliminated. When such language is placed in the state
constitution, then a court will tell the state what a reasonable
opportunity is. When the language is taken out and the state
defines it as part of the state's law, in compliance, it is under
the state's control. Without the language, the state is free to
define it in statute.
REPRESENTATIVE ROKEBERG maintained his objection and recalled that
this language was part of U.S. Senator Steven's amendments to
ANILCA, although it was removed.
Upon a roll call vote, Representatives Croft and Kerttula voted in
favor of the adoption of Amendment 5 and Representatives Green,
Rokeberg, James, Murkowski, and Kott voted against the adoption of
Amendment 5. Therefore, Amendment 5 failed to be adopted with a
vote of 2-5.
Number 1984
REPRESENTATIVE CROFT moved that the committee adopt the following
amendment, Amendment 6:
Line 5 of Amendment 4,
Delete "and"
Insert "or"
REPRESENTATIVE CROFT believed that "or" was intended in that one
would want to use different qualifiers at different times. He
said, "It would be safer to say that they did not have to be in
every portion, Tier I or II, all the time, every time."
REPRESENTATIVE GREEN objected. He said that "and" is used because
with "or" it could be any one of the factors listed. He foresaw
times when such would create problems versus requiring all the
factors. Representative Green was concerned that one may have
proximity to a resource and be granted a preference to that
resource. That person could actually affect the distribution of
the wild resource as well as other uses of that land. If the
intent is to create a priority for subsistence uses, then the
standard should be high and all of the factors considered.
[Manual tape change, approximately two minutes of blank tape.]
TAPE 99-75, SIDE A
REPRESENTATIVE JAMES read the following from Title VIII, Section
804:
...such priority shall be implemented through appropriate
limitations based on the application of the following
criteria:
(1)customary and direct dependence upon the
populations as the mainstay of livelihood;
(2)local residency; and
(3)the availability of alternative resources.
REPRESENTATIVE CROFT agreed that the construction of the language
read by Representative James from Title VIII could allow a mix of
the factors. Representative Croft said if that is the case, he
would withdraw Amendment 6. [Amendment 6 was not withdrawn.]
CHAIRMAN KOTT commented that he wasn't sure that is the
understanding.
REPRESENTATIVE GREEN concurred that is the understanding.
REPRESENTATIVE ROKEBERG asked if the intent is to fulfill all the
criteria.
REPRESENTATIVE GREEN replied yes.
Number 0103
REPRESENTATIVE ROKEBERG said that he believed the intent was to
make the place of residency and the proximity to the resource a
disjunctive phenomenon using "or." On the other hand, the other
three criteria were intended to be conjunctive, and therefore
required as required under ANILCA. "The question becomes: As a
matter of policy, does the legislature want to make those three
criteria -- or four of the five mandated or allow for selection by
the legislature ... and don't forget the regulation writing
bureaucracy who's going to utilize that to whatever they want."
REPRESENTATIVE GREEN responded that if the intent is to not require
both place of residence and proximity, then he suggested the
following:
Line 5 of Amendment 4, after "resources,"
Insert "and either"
Delete "and"
Insert "or"
REPRESENTATIVE KERTTULA reminded Representative Green that "place
of residence" must be included, but "proximity" is not necessary.
Therefore, the last change made by Representative Green can't work.
Insertion of "or" is appropriate.
REPRESENTATIVE ROKEBERG interjected that with "or" the criteria
could be mixed and matched.
REPRESENTATIVE KERTTULA pointed out that "or" also allows for all
of the criteria to be fulfilled.
REPRESENTATIVE PHILLIPS clarified that would be the case with the
statute.
REPRESENTATIVE KERTTULA specified that with "and" all the criteria
must be fulfilled which becomes problematic with ANILCA.
REPRESENTATIVE ROKEBERG inquired as to what is currently done with
regard to the customary and traditional use, direct dependence, and
availability of alternative resources criteria. Are all three
mandated under Alaska Statute? Are all three qualifiers for
subsistence Tier I?
MR. WHITE stated that all three appear in Alaska Statute. Although
there is no Tier I now, if there were it would be place of
residence that would allow a rural priority. In Tier II, proximity
to the resource, direct dependence, and availability of alternative
resources would be the criteria. The customary and traditional use
is utilized to define the stocks and populations that are subject
to subsistence harvest. The words are used for different purposes
in the statute; therefore, "or" would be better and allow
flexibility to use as one sees fit in the statute.
REPRESENTATIVE JAMES commented that there should be more changes in
the language in order to clearly say what is desired. She believed
what she read previously from Title VIII provides more flexibility.
REPRESENTATIVE PHILLIPS highlighted that the use of "or" would
provide flexibility and allow separate statutes to be written for
Tier I and Tier II.
REPRESENTATIVE GREEN maintained his objection.
Upon a roll call vote, Representatives Rokeberg, James, Murkowski,
Croft, and Kerttula voted in favor of the adoption of Amendment 6
and Representative Green voted against the adoption of Amendment 6.
Representative Kott did not vote. Therefore, Amendment 6 was
adopted with a vote of 5-1.
CHAIRMAN KOTT clarified that now Amendment 4 as amended is before
the committee.
Number 0687
REPRESENTATIVE CROFT clarified that Amendment 4 as amended would
read as follows:
Page 1, Delete lines 10-16
Insert
1 (b) The Legislature may, consistent with the
sustained yield principle and sound
2 resource management practices, provide a
preference to and among residents for a
3 reasonable opportunity to take a wild
renewable resource for subsistence uses on the
4 basis of customary and traditional use,
direct dependence, the availability of
alternative
5 resources, the place of residence or
proximity to the resource.
6 When the harvestable surplus of the resource
is not sufficient to provide for all
7 beneficial uses, other beneficial uses shall
be limited to protect subsistence uses uses.
There being no objection, Amendment 4 as amended was adopted.
Number 0787
REPRESENTATIVE ROKEBERG moved to report CSHJR 202, Version
LS1137\G, Utermohle, 9/26/99, out of committee with individual
recommendations and the accompanying fiscal notes. There being no
objection, it was so ordered and CSHJR 202(JUD) was reported out of
committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:45 a.m.
| Document Name | Date/Time | Subjects |
|---|