Legislature(1997 - 1998)
03/18/1998 01:15 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 18, 1998
1:15 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 5
Proposing an amendment to the Constitution of the State of Alaska
relating to freedom of conscience.
- MOVED CSHJR 5(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 5
SHORT TITLE: CONST AM: FREEDOM OF CONSCIENCE
SPONSOR(S): REPRESENTATIVES(S) MARTIN, Kohring
Jrn-Date Jrn-Page Action
1/13/97 22 (H) PREFILE RELEASED 1/3/97
1/13/97 22 (H) READ THE FIRST TIME - REFERRAL(S)
1/13/97 23 (H) STATE AFFAIRS, JUDICIARY, FINANCE
2/25/97 (H) STA AT 8:00 AM CAPITOL 102
2/25/97 (H) MINUTE(STA)
2/27/97 (H) STA AT 8:00 AM CAPITOL 102
2/27/97 (H) MINUTE(STA)
1/20/98 (H) STA AT 8:00 AM CAPITOL 102
1/20/98 (H) MINUTE(STA)
1/27/98 (H) STA AT 8:00 AM CAPITOL 102
1/27/98 (H) MINUTE(STA)
1/29/98 (H) MINUTE(STA)
1/30/98 2176 (H) STA RPT 5DP 1DNP
1/30/98 2177 (H) DP: JAMES, IVAN, DYSON, VEZEY,
HODGINS
1/30/98 2177 (H) DNP: ELTON
1/30/98 2177 (H) FISCAL NOTE (GOV)
2/11/98 (H) JUD AT 1:00 PM CAPITOL 120
2/11/98 (H) MINUTE(JUD)
2/27/98 (H) JUD AT 1:00 PM CAPITOL 120
2/27/98 (H) MINUTE(JUD)
BILL: HB 406
SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
2/12/98 2312 (H) READ THE FIRST TIME - REFERRAL(S)
2/12/98 2312 (H) RESOURCES, JUDICIARY, FINANCE
2/17/98 (H) RES AT 1:00 PM CAPITOL 124
2/17/98 (H) MINUTE(RES)
2/21/98 (H) RES AT 1:00 PM CAPITOL 124
2/21/98 (H) MINUTE(RES)
2/24/98 (H) RES AT 1:00 PM CAPITOL 124
2/24/98 (H) MINUTE(RES)
2/27/98 (H) JUD AT 1:00 PM CAPITOL 120
2/27/98 (H) MINUTE(JUD)
2/28/98 (H) RES AT 9:00 AM CAPITOL 124
2/28/98 (H) MINUTE(RES)
3/03/98 (H) RES AT 1:00 PM CAPITOL 124
3/03/98 (H) MINUTE(RES)
3/04/98 (H) JUD AT 1:00 PM CAPITOL 120
3/04/98 (H) MINUTE(JUD)
3/05/98 (H) RES AT 1:00 PM CAPITOL 124
3/05/98 (H) MINUTE(RES)
3/06/98 (H) JUD AT 1:00 PM CAPITOL 120
3/06/98 (H) MINUTE(JUD)
3/06/98 2538 (H) RES RPT CS(RES)NT 3DP 1DNP 1NR 3AM
3/06/98 2539 (H) DP: DYSON, GREEN, OGAN; DNP: JOULE;
3/06/98 2539 (H) NR: BARNES; AM: MASEK, WILLIAMS,
HUDSON
3/06/98 2539 (H) 2 ZERO FISCAL NOTES (F&G, LAW)
3/09/98 (H) JUD AT 1:00 PM CAPITOL 120
3/09/98 (H) MINUTE(JUD)
3/11/98 (H) JUD AT 1:00 PM CAPITOL 120
3/11/98 (H) MINUTE(JUD)
3/18/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
FORMER ATTORNEY GENERAL CHARLES E. COLE
Member, Governor's Task Force on Subsistence
406 Cushman Street, Suite 2
Fairbanks, Alaska 99701
Telephone: (907) 452-1124
POSITION STATEMENT: Testified on HB 406.
BYRON MALLOTT, Executive Director
Alaska Permanent Fund Corporation;
Member, Governor's Task Force on Subsistence
P.O. Box 25500
Juneau, Alaska 99802-5500
Telephone: (907) 465-2047
POSITION STATEMENT: Testified on HB 406.
BOB PENNEY, Co-Chairman
Alaskans Together
3620 Penland Parkway
Fairbanks, Alaska 99508
Telephone: (907) 276-2222
POSITION STATEMENT: Testified on HB 406.
JIM JANSEN, President
Lynden Companies;
Member, Alaskans Together
(Address not provided)
Telephone: (907) 245-1544
POSITION STATEMENT: Testified on HB 406.
CARL BRADY, Member
Alaskans Together
(Address not provided)
Telephone: (907) 276-5617
POSITION STATEMENT: Testified on HB 406.
CARL MARRS, President/Chief Executive Officer
Cook Inlet Region;
Member, Alaskans Together
2525 "C" Street
Anchorage, Alaska 99503
Telephone: (907) 274-8638
POSITION STATEMENT: Testified on HB 406.
THEO MATTHEWS, President
United Fishermen of Alaska;
Member, Alaskans Together
Box 69
Kasilof, Alaska 99610
Telephone: (907) 283-9540
POSITION STATEMENT: Testified on HB 406.
SIDNEY HUNGINGTON
Member, Alaskans Together
Box 49
Galena, Alaska 99741
Telephone: (907) 656-1212
POSITION STATEMENT: Testified on HB 406.
GARY BOOTH, Member
Alaskans Together
(Address not provided
Telephone: (Not provided)
POSITION STATEMENT: Testified on HB 406
MARY NORDALE
100 Cushman, Suite 311
Fairbanks, Alaska 99701
Telephone: (907) 452-1989
POSITION STATEMENT: Testified on HB 406.
ACTION NARRATIVE
TAPE 98-39, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:15 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter, Rokeberg, James, Croft
and Berkowitz.
HJR 5 - CONST AM: FREEDOM OF CONSCIENCE
CHAIRMAN GREEN announced the first order of business would be HJR
5, Proposing an amendment to the Constitution of the State of
Alaska relating to freedom of conscience. He said the bill had
previously been addressed several times in the committee.
Number 0069
REPRESENTATIVE JEANNETTE JAMES made a motion to move HJR 5 out of
committee with individual recommendations.
REPRESENTATIVE NORMAN ROKEBERG objected. He asked if the committee
had previously voted on moving the bill.
CHAIRMAN JAMES indicated the committee had, but it failed to move.
REPRESENTATIVE ROKEBERG asked if the committee had to rescind their
previous action.
CHAIRMAN GREEN indicated they didn't, they just had to bring it
back up.
REPRESENTATIVE ROKEBERG withdrew his objection.
Number 0115
CHAIRMAN GREEN asked if there was a further objection. There being
none, CSHJR 5(JUD) moved out of the House Judiciary Standing
Committee.
HB 406 - SUBSISTENCE USES OF FISH AND GAME
Number 124
CHAIRMAN GREEN announced the committee would hear HB 406, "An Act
relating to subsistence uses of fish and game."
[NOTE: THIS PORTION OF THE MEETING WAS TRANSCRIBED VERBATIM]
CHAIRMAN JOE GREEN: This is sometimes referred to as the
subsistence bill. We have had some hearings on it already. We
have a couple of others that I think are going to be very germane
to the subject, and obviously as the audience would indicate,
you're all here and eager in anticipation. The first person we
have to give us a presentation is Former Attorney General Charlie
Cole. General Cole, would you please come forward and give us your
input on this issue? For the record, we have a full house.
Number 0223
FORMER ATTORNEY GENERAL CHARLES E. COLE, MEMBER, GOVERNOR'S TASK
FORCE ON SUBSISTENCE: With the permission of the chairman, I'd
like Byron Mallott to join me.
CHAIRMAN GREEN: Certainly, certainly
ATTORNEY GENERAL COLE: He's promised to hold my hand so...
CHAIRMAN GREEN: I would ask if you are going to talk back and
forth that, for the record, if each of you would identify yourself
so that when the minutes are taken they'll know who is saying what.
Representative Cole, excuse me, Attorney General Cole.
ATTORNEY GENERAL COLE: Thank you, good afternoon Mr. Chairman,
ladies and gentlemen of the committee. It's a pleasure to be back
testifying again. Thank you for affording me the opportunity to
appear here together with Byron Mallott. Together we served on the
subsistence task force and collectively drafted a proposed
constitutional amendment and proposed legislation. And with your
permission, today I would like to take a moment and express some
background to the problem as we saw it when the task force began
its deliberations. I have ... prepared and brought here today and
placed on the wall a map. It's (indisc.) to depict the lay of the
land. The lands marked in yellow with black cross-hatching are
lands owned by the state of Alaska. The other lands in various
colors are lands owned by the United States of America. In
general, the United States and Alaska owns approximately 245
million acres. The state of Alaska owns approximately 103 million
acres. Native corporations own approximately 44 million acres.
Now I think the starting point, with respect to this map and the
discussion today, lies with the powers of the United States to deal
with the lands which it owns in Alaska. The United States Supreme
Court has said in several cases, but most recently in Kleppe versus
the United States, which I'm sure most of you have read, if not all
of you, is that the powers of the United States under the property
clause to deal with these lands are virtually unlimited. The
court, speaking through Justice Marshall, said almost those precise
words in the Kleppe case. Somewhat left open in that case was the
extraterritoriality powers of the United States over lands not
owned by it. But it is clear, through a long series of decisions
of the United States Supreme Court that the United States has, as
I say, virtually unlimited powers over those lands - number 1, and
it owns those lands and can legislate with respect to those lands
in two capacities. One, as a landowner of those lands. It owns
those lands and it has what ... we would customarily assume to be
the powers of any land owner over those lands. As the court has
said, it may restrict the people who enter upon those lands and it
may qualify their rights to enter upon those lands and to occupy
them. And it also has the power over those lands as a sovereign,
you know exercising police powers over those lands, so it has very
broad powers over those lands. Secondly, the state of Alaska, of
course, by the same general token, has powers over the lands it
owns. And the state, acting through the legislature, and agencies
of the state, has exercised those powers to regulate the taking of
fish and game on those lands owned by the state. In addition,
there is two things which I think should be mentioned with respect
to the various powers of the sovereigns dealing with the land shown
on that board. And one of them is, as the supreme court of the
state of Alaska has said, the state of Alaska has the power to
manage fish and game on federal lands except where the exercise of
the state's power over those lands conflicts with federal action.
And the Alaska Supreme Court said that in the Totemoff case decided
in 1995. And so although the state does have powers over fish and
game and over the federal lands, it may not exercise those powers
in conflict with the exercise of federal power over its land.
That's number one. Number two, to keep in mind with respect to
these powers is the fact that although one court of appeals is said
-- left open in the Kleppe case was the extraterritoriality powers
of the United States. It's clear that the United States has the
power to exercise it's powers, under the property clause, over
lands not owned by it - lands and waters not owned by it to the
extent that the exercise of those powers are necessary to
effectuate policies underlying federal actions. The case is
Minnesota versus Block in the Eighth Circuit. So where does that
get us today? Well, where are we? Well, we know that the United
States, acting under the powers - the property clause and
purportedly acting under the powers of the commerce clause, and
maybe the powers that regulate Indian Affairs, I think those powers
are a little thin to the extent they purport to support ANILCA
[Alaska National Interest Lands Conservation Act], but Congress has
said, "Look on these lands rural residents shall have the power in
the taking of fish and game for subsistence purposes, a priority
for that purpose." And the federal government has also said,
"Well, I'll make you a deal, if you want to grant a general power
to, by general legislation, to grant ... a priority to rural
residents for the taking of fish and game for subsistence purposes,
we'll let you do it. You could do it. The only thing you have to
do to manage fish and game on federal lands is to grant this
priority to rural residents." And that's we are today. Well it
worked, as you know, pretty well for awhile and then the Alaska
Supreme Court said, "Oh, by the way, you can't grant that special
right, if you will, to rural residents under the Alaska
Constitution." And so it struck down Alaska's management of fish
and game on federal land. The whole problem and somewhat is
complicated by the decision of the Court of Appeals for the Ninth
Circuit in the Katie John case. And it held in that case that
whereby previously the state had had the power and the acknowledged
power to manage fisheries. The Court of Appeals said in that case,
"Well, in order to really effectuate the rural priority or the
management of fish we have to figure out, I know if you will, a
power of the United States to manage fish in navigable waters."
And so the court came up with the bright idea - the learned court
I might say, I want to give the court its do, that the federal
government has reserved water rights in its lands where those
navigable waters are, you might say, contiguous or run through
federal lands. And that was sort of a shock, if you will. It was
a shock to me and I'm sure to many others, is that suddenly with
that case we have the power being granted to the United States to
essentially manage fishing in all navigable waters in the state.
Now you say, "Wait a minute, Mr. Cole, don't get ahead of
yourself." The Court of Appeals said, "Well we only have that
power in the United States to the extent that these waters are
adjacent or contiguous to federal lands." Well, if you look at
that map, you will see the vast reaches of that power to regulate
fisheries in navigable waters within the boundaries of the state of
Alaska. The United States, by virtue of that decision, can
regulate fishing in vast areas of the state as shown there. But
you see the exercise of that power does not simply stop in those
colored areas - areas colored other than yellow, because clearly
you know the federal government will say, "Well for us to
effectively regulate subsistence fishing in these areas colored
other than yellow, we must regulate fishing along the entire stream
of the Yukon River and the various other main water arteries
throughout the state." I mean obviously you know they will say
that at the first profibrial (ph) rattle out of the can. You know
too that exercising the powers granted the United States under the
Block case, I mean they're going to say why these caribou herds
cross from the pink lands over there to the yellow, back and forth.
And we can't allow the state of Alaska to be managing the caribou
herds over there in those yellow lands, because when we come back
the herds will be decimated when they come back over those colored
areas - areas colored other than yellow, and there won't be
anything left and that will impact adversely upon the subsistence
rights management. And they will say the same thing with fishing.
They say, "Well we can't allow all this fishing to be taken down at
the mouth of the Yukon. How can we guarantee a priority to fishing
up in the Porcupine area while you've intercepted all of the salmon
down at the mouth of the Yukon?" So that's where we are today.
And the issue is, as I say, for this legislature, for the people of
this state is to say, "Do we want to accept the federal
government's offer to regain management of fish and game in Alaska,
or don't we?" Because in essence we have to accept, in my view,
the offer of the United States under ANILCA and essentially ... if
we want that, but there is no pressure on this legislature - legal
pressure for the state to accept that offer. It may do it and it
may not. That's a decision left to the people of the state of
Alaska. Now what did we do in the task force when we faced these
issues? Well, at least I - I'm not speaking for the legislature -
one, I thought it was vital, vital that the state regain management
of fish and game. I mean I thought that was the central
proposition that we had to get it back. I mean that was the
statehood battle to get it back. And now we're in danger of not
only losing it on the federal lands, but if my view is correct and
I think it is, we're in danger of losing it throughout all lands in
the state of Alaska. Number two is on the task force I was
concerned that if we ever lost it, we may never get it back.
You'll recall, within the Stevens' amendments, there is statutory
right to regain management. That's in the Stevens' amendments.
It's not clear otherwise that ... if we let this opportunity pass
by today that we can say, "Well, we will change our mind next year
and get it back," because I'm not certain that we can get it back
next year if we should change our mind. This may be a fleeting
opportunity and perhaps in our lifetimes, certain maybe mine -
maybe not Mr. Berkowitz's, we may never have another opportunity to
get it back. This may be it. So the decision which you people
face ... has consequences. Another view I had when I was on the
task force is you know I had the sense that may ... historically
have had the sense that really Blackstone was probably right. You
know possession is nine points of the law in a broad sense. And
what does that mean in this context? Well I'll tell you what it
means in this context. If we get management back ... then we can
have the opportunity to make changes in the future to ANILCA that
we think we would like to see. We can expand the scope of our
management powers maybe slowly, maybe in perceptively, but we can
work to that end. But we are in control with respect to the
management at that time. And what's the converse of that? Well
the converse of that is if we don't get it back now, then the
federal government is in control. And the federal government will
then seek to expand it's powers. You know, creeping powers, we
know that. It's all been subject to creeping and federal powers.
And they will continue to expand those powers. They will solidify
their hold on those powers and, as I say, we may lose essentially
these rights forever. So what did we do in the task force ... what
we did we said our fundamental approach was that it will be very
hard, if not impossible, to make major, major changes in the rural
priority under ANILCA. We didn't think, I didn't think that it
would be possible for us to repeal or amend the basic rural
priority. So I said - others on the task force said, "Well look,
there is some really fundamental flaws in ANILCA that we think that
we can change, legislatively - like deference to state court
actions." We lost that issue in the Court of Appeals. We thought
we wanted to get that back because we thought it was important.
And we wanted clarify the definitions of rural, and we wanted to
clarify the non-definitions, if you will, of customary and
traditional. So ... we came up with proposed amendments for those
purposes. And we recognized that it would be necessary to amend
the constitution in order to effect legislation complying with
ANILCA, so we proposed a constitutional amendment. We left out of
that constitutional amendment the word rural. We gave the power to
the legislature to say you can grant a priority for the taking of
fish and game for subsistence purposes and uses based on place of
residence. But we didn't enshrine rural into the constitution, we
left it out. And that is what we propose to the legislature. We
recognize that our work product was not perfect, that there would
be other views, but we thought it was a workable proposition. And
Senator Stevens, you might say, was successful in putting those
amendments into ANILCA. And it's very important, in my view, that
if we do not regain management pursuant to the Stevens' amendments
that we will lose those highly beneficial amendments to ANILCA. I
mean they're conditioned ... on acceptance by the state of Alaska
to regain management. But I don't think people generally recognize
I mean how important that deference is to state administrative
actions is. It's a highly important and beneficial provision, and
so are others. Now what's the downside that you people face? Well
look, I mean we know that there is - not easy to amend the Alaska
Constitution, to strip away these principles of equality which are
contained there. I felt, myself, that restraint and there is
something sort of inside that says ... this sort of rubs me the
wrong way. But on the other hand, myself, I said, "I think that
the prize is worth the candle." I think we have to get management
back and I think the price is not too great. The amendment to the
constitution is not taking away the rights of free speech, or the
right to free assembly, or the right to freedom of religion, free
speech, or against unreasonable searches and seizures. As I've
said before, if we sought to take away those rights I would be
among the first to the barricade, but this is not, at least in my
view, but I know it is in some, a major change to the constitution.
After all, the legislature has vast powers, it has powers over the
exchequer, it has powers over state lands and this is not a major
leap giving the legislature more power. So with ... those thoughts
in mind, I decided to support the task force proposal and I urge
you ladies to do the same. I think that overall, it's in the long
range best interest of the state and I think it's vital that we
regain management. Thank you.
Number 0519
CHAIRMAN GREEN: I have a couple of questions and there may be some
others. I don't want to short anybody who is going to be
testifying, but one of the things you have referred to repeatedly
is the vastness of this and the vast management of capability of
the federal government. There are some people in the state that
think that's only half right. Anyway, I do have...
ATTORNEY GENERAL COLE: Well, what's the other half?
CHAIRMAN GREEN: They think it might be half-assed.
ATTORNEY GENERAL COLE: I see.
CHAIRMAN GREEN: Anyway, what I...
ATTORNEY GENERAL COLE: You mean the federal management?
CHAIRMAN GREEN: Yes. The question I do have is that some people
have indicated that we made a contract at statehood with the
federal government and that now, unilaterally with ANILCA and
subsequently with other demands that may be coming from people
within the current Administration that they are unilaterally
changing that contract. And the question that has come up is that
if we were to do this, if we were to modify our constitution and
quid pro quo something, how much assurance do we have as a state
that they wouldn't renege again or continue to demand other things
until we finally get it their way?
Number 1585
ATTORNEY GENERAL COLE: Look, we know the word of the United States
is no good. We've had a judicial declaration of that not so long
ago. That, again, was worth the price we now have that's sort of
indelibly in the federal books that the statehood compact was not
really a compact at all. All of us who were here and voted for
statehood thought a compact made a contract. We're wrong,
disillusioned. I've always thought that if the United States, the
day after statehood was proclaimed, it said, "By the way we're
setting aside all these lands, we're taking them all back." I mean
this ... state would have been in an uproar. But ... the federal
government in its customary actions has managed to do over a period
of time, which it could not have done ... immediately. So we know
it's no good. But here is the thing, I know that's a risk but I
have the sense that that risk is not great. I have the sense that
it's ... not great. And furthermore, ... the constitutional
amendment simply gives the legislature the power and if it comes
when a point when the United States wants to change the rules
again, simply say, "Well, I mean we will repeal our legislation,
you manage your lands, we'll manage ours," and life will go on. I
mean we're not bound to act pursuant to ANILCA's dictates, if you
will, and perpetuity. We can back out of that deal any time we
want, and if the existing legislation is successful then this
legislature can simply repeal the ANILCA legislation and we will be
back to square one.
REPRESENTATIVE SCOTT OGAN: Mr. Chairman.
CHAIRMAN GREEN: Yes, Representative Ogan.
REPRESENTATIVE OGAN: I think maybe Representative Bunde had a
question first, but if I could get on the list I'd appreciate it.
Number 1685
REPRESENTATIVE CON BUNDE: It was on your point I guess.
CHAIRMAN GREEN: Oh, alright. I don't have any of those --
Representative Bunde.
REPRESENTATIVE BUNDE: Thank you, Mr. Cole. I think you used the
term "capitulate" which causes a lot of us subtle heartburn, and
the creeping powers. And just related to Representative Green's
concerns that, you know, trust me I'm here from the federal
government, I'm here to help -- that there is a concern that our
only card in this game is the constitutional amendment. And I
think the practical realities are once we play that card, it's
going to be very difficult. You've said we could repeal it with
(indisc.), but the chances of repealing a constitutional amendment
are probably just as challenging as getting on to even more so.
And if I understood you correctly - you say that's all a
possibility. We just sort of have to trust and go along. Is
that...
ATTORNEY GENERAL COLE: Well, here's the thing. What's the
downside of not regaining federal management now? I mean if we
don't regain federal management now, all the parade of horribles
will come to pass. Now do we want to accept that parade of
horribles and say, "Look, you take it over. You know you wind up
managing exclusively fish and game in Alaska. We no longer have
maybe the chance ever win in our lifetimes to get it back. It's
gone." I mean that's the option. I mean that's a very
possibility. And so recognizing that, do we want to ... accept -
in my view, you might say in some respects the lesser of evils and
regain management and keep our fingers crossed, because if they
change the rules in the future we're no at worse off than if we did
nothing.
CHAIRMAN GREEN: Follow up Representative Bunde.
Number 1776
REPRESENTATIVE BUNDE: Continue ... and regaining management to me
says that we also deal with allocation. And it's been my concern
that allocation issues would indeed be fought in federal court. So
even though we thought we were managing, the ultimate management
would still be in federal court, and you mentioned the fish up
river and the commercial fishermen in the ocean. In you're
opinion, would that not be fought out in federal court?
ATTORNEY GENERAL COLE: No. That's - would be within the powers of
the Board of Fish. And the actions ... of the state boards would
be given deference under the Stevens' amendments and the task force
proposal as administrative agencies of the state, when the issue
was presented to the federal court. But here's one thing I think
is important and should not be overlooked. It's one thing ... for
the state to be totally out of compliance with the fundamental
rural priority, which came under the McDowell decision. It's
another thing to say, "Well, we don't have the various -- we
haven't given the various rights to individual rural residents and
they don't have their priority." Those are things that would be
corrected by administrative action. But as I have said before, and
I want to make the point clear here, never will we be able to avoid
the so called federal court oversight. I mean these are lands
owned by the United States. Management - ANILCA is a statute of
the United States and the federal courts are always going to have
the power to interpret and apply federal statutes. But I mean
after all, the United States owns these lands, I mean it has the
right to regulate rights in those lands and we aren't ever going to
succeed in depriving the Congress of the United States of those
rights and we just have to face it. But I don't think that the
risk, because there is going to be decisions in the federal courts
- statute is such that it ought to restrain us from regaining
management. We have to regain management. We have no choice but
to regain management.
REPRESENTATIVE BUNDE: Just so that I understand very clearly, you
feel that allocation issues, that are decided by the board, while
they would be fought out in federal court, the board would have
greater standing than whoever was brining the complaint?
ATTORNEY GENERAL COLE: Yes, because that is very thing, and I say,
it's highly important, it's contained in the Stevens' amendment.
The state of Alaska, in litigation, sought to have the federal
courts give deference to actions of the state boards of fish and
game. The Ninth Circuit said, "No, we will only give that
deference to federal agencies, we will not give that deference to
state agencies." But the Stevens' amendments provide, task force
and Stevens' amendments, provide that the federal courts must give
deference to actions of the state agencies. And that means ... in
a sense of vernacular that the state agencies will have the leg up.
Now does that mean they can do anything they want? Of course not.
They have to do ... "the right thing." They have to make reason
decision. But if they make those reason decision, and have a
substantial basis for their decision, the federal courts are going
to approve them. There is no doubt in my mind about that.
CHAIRMAN GREEN: Representative James.
Number 1937
REPRESENTATIVE JAMES: Thank you. Well Charlie, it's good to see
you here today. We've talked a lot, haven't' we?
ATTORNEY GENERAL COLE: Thank you for your letter, I haven't
responded to it but....
REPRESENTATIVE JAMES: Well, I didn't expect you to. I just have
a few questions here. First of all, who owns the animals and the
fish in the state of Alaska?
ATTORNEY GENERAL COLE: Well let me tell you. I'm not sure that
anybody knows that, but I know, regardless of who owns them, when
they're roaming free - I'm not sure anybody owns them when they're
running free or if the fish is in the stream, or the animals are
... galloping across the tundra because nobody is ... have dominion
over them. I've never really gone to the law review articles and
... tried to put my finger on that. But the fact of the matter is,
in response to your question, when those animals are on federal
lands, the federal government has that great concept of who owns
them because they can say, "You can't shoot that animal, you can't
take possession of that animal, you can't even come on lands if we
don't want you to." They run the show and they have total and
complete power to do that.
REPRESENTATIVE JAMES: The next issue is totally different.
CHAIRMAN GREEN: Representative James.
REPRESENTATIVE JAMES: Yes, if I might. I've got ... two more.
CHAIRMAN GREEN: Well there is several people. Take your best shot
first and we'll move around and come back to you.
REPRESENTATIVE JAMES: Go ahead.
ATTORNEY GENERAL COLE: Don't strike, in my heart, the first shot.
CHAIRMAN GREEN: Representative Berkowitz.
REPRESENTATIVE BERKOWITZ: I thought Representative Ogan was....
CHAIRMAN GREEN: Representative Ogan, I had him after you but....
Number 2016
REPRESENTATIVE OGAN: Thank you Representative Berkowitz. I'd like
to make a couple of real brief statements about some of the things
you said on the record and ask you a question. We'd regain state
management but, in fact, we have to adopt the federal law, ANILCA,
into our statutes and our constitution -- and adopt a federal form
of management and if we're out of compliance, the highly beneficial
I believe you used the ANILCA amendments that Senator Stevens made
(indisc.). One of them is in accordance with Title VIII of this
Act, the Secretary of Interior is required to manage fish and game
for subsistence uses on all public lands in Alaska because of the
failure of the state (indisc.) provide a rural preference. So it
actually expanded the authority -- does not take effect until we
adopt the constitution or rural priority in our constitution,
contrary to what Senator Stevens said on the floor. But I'll try
to keep this brief. You're right, the word was no good on the
statehood compact. I guess the main question I have is two things.
The Alaska Supreme Court said that the rural priority, and the one
basic fundamental right that you left out was equal protection.
They said it was an equal protection case and easy one at that. Is
that a correct quote of the Alaska Supreme Court? And ... we also
have the authority, under Article VIII, Section 4, of the
constitution, the ... sustained yield we give preferences amongst
beneficial uses, and the beneficial use of fish and game can be
subsistence. And so we can give a preference, in times of
shortage, sustained yield, for subsistence. And given that, we
already have the authority to provide that discrimination and
provide for that need. Is that not correct?
ATTORNEY GENERAL COLE: Well that may be so, but we do not have the
authority to grant a priority to rural residents...
REPRESENTATIVE OGAN: Because of equal protection.
ATTORNEY GENERAL COLE: No, because ... of the not equal protection
clause, but because the common use provisions of the constitution.
That's where the Alaska Supreme Court hung its decision.
REPRESENTATIVE OGAN: One follow-up.
CHAIRMAN GREEN: Representative Ogan, I've given you some deference
now. If it's discussion and you want some clarification -
testimony, that's one thing. I don't want to get into a debate.
REPRESENTATIVE OGAN: I'd like some clarification.
CHAIRMAN GREEN: Alright.
Number 2116
REPRESENTATIVE OGAN: If I'm not mistaken, the supreme court did
say that it was an ... a rural priority case - the McDowell case
was an equal protection case, and an easy one at that. Is that
correct? Is the supreme court...
ATTORNEY GENERAL COLE: They mentioned that but the proposed
amendment would, you might say, trump the equal protection clause
in this area.
CHAIRMAN GREEN: Representative Berkowitz.
Number 2140
REPRESENTATIVE BERKOWTIZ: General Cole.
ATTORNEY GENERAL COLE: Yes sir.
REPRESENTATIVE BERKOWITZ: You've read HB 406?
ATTORNEY GENERAL COLE: Yes.
REPRESENTATIVE BERKOWITZ: Do you think it would prevent federal
takeover?
ATTORNEY GENERAL COLE: It would not prevent federal takeover.
CHAIRMAN GREEN: Representative Porter.
Number 2146
REPRESENTATIVE BRIAN PORTER: Thank you, Mr. Chairman. Attorney
General Cole.
ATTORNEY GENERAL COLE: Yes sir.
REPRESENTATIVE PORTER: One of the perhaps only consistent thing
that I have been able to find in talking to people around the state
is an agreement that in a time of shortage, most everyone would say
a person who has customarily lived by that fish or game and depends
on it for sustenance should have a priority in the time of a
shortage. That may sound like a needs-based criteria, but maybe
it's half a needs-based criteria, if you will, but did the task
force dismiss that out of hand or was there discussion about it?
Or what was...
ATTORNEY GENERAL COLE: We looked at that, discussed it at length.
The problem is ... we're faced with ANILCA. We're faced with rural
residents priority. I at least, and I don't speak for -- maybe Mr.
Mallott wants to comment, but I didn't think we could make a major
change in that area. Now ... if you read the media now, I mean I
hear what Senator Stevens said yesterday, I've heard what Senator
Murkowski has said, and if they're sending a signal to the
legislature that they can change ANILCA and the fundamental precept
of preference to rural residents, well then ... you should perhaps
take what I've said here today and ... give it the deep six ... and
say, "Well we're going enact our own legislation. We're going to
take the implication of what Senator Stevens, Senator Murkowski has
said that they can change ANILCA and the rural residents, and
Secretary Babbit will seek not to have it vetoed and it be fact
accompli." That's a horse of a different color and he ... people
were here - in Washington, D.C., I should say, over the weekend and
you have the sense of ... what you were told. I don't have that.
So all I am saying is that were in the task force - we thought that
... we couldn't change that. And it's true, as the Alaska Supreme
Court said, rural residents is over inclusive. By that is there
are people who live in rural areas who really don't live a
subsistence life style, and it's under inclusive because there are
people who live in other than rural areas who essentially do lead
a subsistence life style. So the Alaska Supreme Court says, "It's
a bad fit," in the sense that we ... have constitutional restraints
on us to require a better fit. Now the United States does not have
those constitutional restraints. So we looked at that carefully on
the task force. Would you agree with that Mr. Mallott?
Number 2286
BYRON MALLOTT, EXECUTIVE DIRECTOR, ALASKA PERMANENT FUND
CORPORATION; MEMBER, GOVERNOR'S TASK FORCE ON SUBSISTENCE: Mr.
Chairman, my name is Byron Mallott, and I'd like to make two quick
comments with respect to the discussion that's taken place thus
far. First, in direct response to the question. During the task
force deliberations, we were very circumspect and circumscribed in
what we did. We determined that our role was to get ... state
management back as has been emphasized by Mr. Cole. And so that
was a critical priority and so we did not move far (indisc.). We
did look because Senator Murkowski, during the course of our
deliberations, and I think in conjunction with Congressman Young,
put at least the framework of a needs-based proposal on the table
during that period. And we spent some time with it, but again, in
keeping with that fundamental notion that we wanted to limit our
task to doing two things, and they were clearly articulated at the
outset -- is to get state management back - to bring the state into
compliance with ANILCA, and to recognize the importance of the
subsistence priority to Alaskans and to get that back. My other
comment, Mr. Chair, and it's in response to the questions that have
been asked. And I want to say this very carefully, but I think
it's important and I'm speaking not for myself. I will say this
for myself, I'm proud to be a citizen of the United States. I'm
proud that Alaska is among the 50 states of this union. I do not
shrink from that in any way, shape or form. I recognize the
obligation we have in order to ... maintain our rights as a state
within that federal framework, but I welcome the challenge when I
consider what the alternatives might be. Secondly, I want to say
that the same view that some share about the state/federal
relationship exists with respect to the rural/state relationship -
that there are folks out there right know, and I just came from the
first meeting of the Rural Governments Commission, and I've spent
considerable time on this subject of subsistence with rural folks.
Particularly Native folks see a bill before the legislature to
reduce rural educational funding and move it to urban areas, when
there is bill before the legislature to impose a tax only in rural
areas, when rural people see legislation to impose mandatory
governments in those areas even though most involved probably
recognize that some of that legislation ... will not get passed.
The very fact that they are there is very chilling to the ...
relationship. And so you see rural people saying, "We kind of like
the idea of the federal government being out there to protect our
interest if it comes to that." Having said that, there is also a
very strong desire, it is almost universal. The theme of the next
AFN [Alaska Federation of Natives] Convention to be held in October
in Anchorage is celebrating the involvement and the pride of the
Alaskan Native people in defending their country - celebrating the
Alaska National Guard, the history of the Alaska Territorial Guard,
the involvement of the Alaskan Natives in the military of this
country. So there is a strong desire, at the same time, to be part
of making Alaska work and, of course, being part of a country. And
I say that because what we're doing here is not being done in a
vacuum, that if ... AFN has not been at the table, AITC [Alaska
Inter-Tribal Council] has not been here, RurAL CAP [Rural Alaska
Community Action Program] at least institutionally. And at some
point, I assume they will make their views known. If they do not
feel that those views have been made appropriately known here, they
will take them to Washington and ... they will make common cause of
the Secretary of the Interior, or with others. And that does not
advance the...
TAPE 98-39, SIDE B
Number 0001
MR. MALLOTT: ...the process as you're committee moves it forward
and as the legislature continues to move it forward (indisc.)
inclusive of all of the interests and the institutions, and
ultimately the individuals that will be impacted by your decisions.
And I know that that is you're desire, Mr. Chair, I just wanted to
emphasize it. Thank you.
CHAIRMAN GREEN: Thank you, Representative James.
REPRESENTATIVE JAMES: Just one more question. This is for
Charlie, and I have been reading ANILCA a lot these days and I've
listened to Senator Stevens in his ... talk on this. And ... he
pounds the table and said, "The federal government has a right to
do this for the Native people." I agree with that 100 percent.
Then he turns around and like giving an excuse as to why this isn't
a racial issue, which I don't consider Native and non-Native as a
racial issue - it's aboriginal and non-aboriginal, which is totally
different than other races. And then says that 50 percent of the
people included in this are non-Native. So why wouldn't ANILCA, if
they want to do what it is that they're wanting to do, why don't
they just go through ANILCA and take out non-Native every time and
just have it be a rural/Native preference? That would achieve the
goal that was intended in the first place and we wouldn't be having
a problem today because Article XII of our constitution would allow
us to implement that.
Number 0062
ATTORNEY GENERAL COLE: Is that a question?
REPRESENTATIVE JAMES: Yes please.
ATTORNEY GENERAL COLE: I don't know. I mean Senator Stevens is
there in Washington, D.C., Senator Murkowski is there in
Washington, D.C., Representative Young is in there, but I've never
heard them give that sense that they would. But my sense is, and
I want to say this again because I think it's vital to the
deliberations of this group and the entire legislature, I don't
think that certainly between now and December 1, or January 1, it
is going to be possible to significantly amend the rural priority
in ANILCA, and I think we have to face it. And I think ... this
[HB] 406 and 375, or whatever these bills are, I mean I think
they're not going to get there. I mean we have to say if we're
going to regain federal management, we have to comply with the
requirements of ANILCA to get it back. And I think the decision of
this group, and the entire legislature is are we prepared to do it,
or we aren't. And if we are prepared to do it, we ought to bite
the bullet and get it back and go from there. And if we're not
prepared to do it, I'd think all these efforts to ... screwing
around the shirts, if you will, of ANILCA is just being divisive
for the reasons that Mr. Mallott said. I think it takes an
incredible amount of time of this legislature and the people of
this state. Nothing will ... get the job done unless the recognize
and accept the rural priority requirements of ANILCA and face it.
Now that's what I said in my letter. I mean either ought to just
say let's make the leap and do it, or we should wash our hands and
say let the federal government take over -- except Senator Stevens
and Senator Murkowski say that they can change ANILCA as the
fundamental rural priority, maybe you want to take them up on that.
CHAIRMAN GREEN: Thank you, Representative Rokeberg.
Number 0145
REPRESENTATIVE ROKEBERG: Thank you, Mr. Chairman, I would like to
kind of shift the focus a little bit and be a little more specific.
And basically, I sort of direct it to both - to the witnesses, but
most particularly Mr. Cole, as it relates to the deliberations of
the task force and looking at the history of ANILCA. And it's my
understanding, Mr. Chairman, that the current state statutory
language on subsistence - the task force language, obviously, and
then the existing House Bill 206, as well as ANILCA with the
Stevens' changes, I'll assume that all species are of equal value
when they're defining customary and traditional use and
implementing the statute to the way it works. Now that's -- there
is a - the theory that it does that, I'd like you're opinion on
that, number one. Then there is a theory also that ... Congress
especially declined to define customary and traditional,
historically, because it would force a movement away from a case-
by-case approach in looking at the scientific game management of a
particular species. And I think, Mr. Chairman, that's one of my
major concerns because the task force recommended to ANILCA that
they amend and provide the definition of customary and traditional,
which has been ... a thorny issue for years. But I guess one of my
major concerns is it does not provide for any discrete or any
management of a discrete specie vis- -vis other specie in terms of
specificity. And I really am concerned about that right now
because I will be talking to this committee about what I would
characterize as the -- and it means all things to all people. It
means what I call the ... sport fish trout clauser amendment,
because I don't think we have a differentiation in our definition
running through all of these particular pieces of legislation that
allows for that clearly enough to be able to do that. So if you
could answer on some of those.
REPRESENTATIVE BERKOWITZ: Could he repeat that question?
Number 0242
ATTORNEY GENERAL COLE: Let me see if I could give you a non-answer
if you don't mind. I think that's something that we left to the
Boards of Fish and the Board of Game. My sense is, although I
don't recall this discussion vividly, but I mean that's the sort of
thing that we just thought we could not well legislate on. Did you
have that same recollection Mr. Mallott?
REPRESENTATIVE ROKEBERG: Mr. Chairman, if I could interject,
that's what Congress said before and that's why they deferred - did
not want to define customary and traditional. So, but then the
task force went (indisc.) further by doing that.
ATTORNEY GENERAL COLE: We went a little ways because we thought
that there was not a solid definition in there and there were other
areas where there were not good definitions of rural itself. So we
tried to, you might say, beef up ANILCA just a little bit. And
Senator Stevens went and passed those ... amendments for that
reason.
REPRESENTATIVE ROKEBERG: Mr. Chairman, to avoid the Attorney
General from asking or answering with non-question or non-answer,
let me ask you this, did the task force consider the problems
revolving around the definitions as it related to the scientific
management of discrete species?
ATTORNEY GENERAL COLE: I didn't.
REPRESENTATIVE ROKEBERG: Thank you Mr. Chair.
ATTORNEY GENERAL COLE: Mr. Mallott would you...
MR. MALLOTT: Mr. Chairman, if I might just comment. This is Byron
Mallott. I think being non-biologist, or at least non-
professionals in this area, we hung our hats on the notion of
sustained yield more than any other as we look at the policy
implications of ... the management and recognition of ... this
discrete species. And as I indicated before, we were very
reluctant to move very far beyond the existing management system,
and the desire was to get management back. I just want to quick
comment, and I think it's important to the question that we also
believed I think intuitively, and I believe it very strongly, and
have testified to this in an earlier hearing, is that if we can get
the management system back working on the ground as creaky and as
difficult and as tough as that may be, we will at least then be
dealing with discrete questions like this as opposed to folks being
in their corners throwing rocks at one another and not having any
forum at the management level with which to deal with these issues.
Number 0353
CHAIRMAN GREEN: Have either of you, to your knowledge, seen where
there is any significant disagreement with the fact that that
determination of sustainable yield would be determined by the Fish
and Game Department, at least on the areas that the state has the
authority? And the follow up question that that's my assumption
and that we're really, when we're talking about a preference for
subsistence - talking about that, that sliver of the yield that is
just above that as far as the priority that would be granted for
subsistence use or lifestyle.
ATTORNEY GENERAL COLE: I'm not sure I understand the sliver just
above it, but the fundamental proposition was that sustained yield
remains inviolate, and that's a provision that's in the proposed
constitutional amendment. So that remains inviolate.
CHAIRMAN GREEN: And ... the question was do you know of any other
movement, or thought, or plan that would not have that determined,
whatever that may be for the specific location and the specific
species? That would be determined by fish and game. What is the
sustained yield? And that we're really talking about that that's
above that as far as what would be utilized then for the
subsistence preference.
ATTORNEY GENERAL COLE: Yes.
CHAIRMAN GREEN: Okay. And on that issue, we have several other
people again.
Number 0416
REPRESENTATIVE ROKEBERG: Mr. Chairman, Mr. Cole, on (indisc.) as
attorney general in looking at the constitution, we have a mandate
to look at sustained yield. But is there no allowance, under our
sustained yield definition, to look at what I would call highest
and best use of a specie. For example, you can pause a lot of
cases whereas the picture type of use of a specie would be
different from sustained yield, maximum numerousity (ph) of
harvestable fish and game. Example of this would be the catch and
release upper Cook Inlet sport trap use, vis- -vis has the highest
and best use, vis- -vis as subsistence take for that particular
specie. I mean do you think that we would be - are we
constitutionally allowed to manage for highest and best use versus
vis- -vis sustained yield?
ATTORNEY GENERAL COLE: Like I say, we have a constitutional
mandate to protect sustained yield. I think what is done beyond
sustained yield is up to the boards of fish and game, but the
fundamental principle is sustained yield must be preserved and then
... on top ... once you comply with sustained yield constitutional
requirements then, under this proposal, we would essentially the
first crack at the resource would be to the rural resident and then
on from there.
Number 0483
CHAIRMAN GREEN: And I think ... where we maybe coming in trouble
if you're talking about rainbow trout, not all those species in all
the state would be considered a subsistence area, so that there
would be places where the highest and best use may not be a
subsistence area because it's not going to be a subsistence area.
So I think that might help you in some of the concerns that you've
expressed -- not every (indisc.) for every species.
REPRESENTATIVE ROKEBERG: Thank you for making me feel better Mr.
Chairman. On that point, Representative Porter.
REPRESENTATIVE PORTER: Yes, please, maybe if I could ask it
another way. Prior McDonald, Kenaitze, all that - it's my
understanding that we managed subsistence by identifying stocks and
types of animals that were traditionally used for subsistence. And
rainbows probably weren't in there except maybe some area that I'm
not familiar with. Would you not think that the Kenai kings and
the rainbows at Alexander Creek could continue to be managed the
way they are now, under the task force proposal or any similar
proposal that would provide a subsistence preference?
CHAIRMAN GREEN: Isolated areas.
Number 0540
MR. MALLOTT: I would like to comment to this extent. I think that
there was a recognition that there would be uses ... that in
discrete times of circumstances, and for discrete species, could
have a higher and better use even than subsistence. And we, for
example, recognized catch and release, we recognize the importance
of ... other uses in the task force bill by mandating that on the
regional boards there be ... folks from other areas, particularly
recognizing sport uses, and there were even discussions or
observations, I would say and I think that I may have made one of
them, was that if we ever got to the point, for example, where a
stock were managed for trophy purposes on a catch and release or on
some other highest and best use basis in addition to sustained
yield, and that that were challenged from a subsistence perspective
- subsistence interests would essentially be slicing their own
throats because there are some places you just can't go in terms of
committing an ultimate public policy out there. And I think that
there was at least a general recognition of trying to put into
place the ability for those kinds of things to be discussed and
dealt with at ... the regional board level. There was faint
recognition with respect to catch and release. And, again, I would
say that ... those, from our perspective were the kinds of issues
that needed to be dealt with at the management and the discrete
stock level as opposed to in a piece of legislation.
REPRESENTATIVE BUNDE: Yes, Mr. Chairman, as the chair of HESS
[Health, Education and Social Services], maybe I'm a little
hypersensitive, but I would respectively disagree with earlier
conversation or earlier testimony from Mr. Mallott. And I
sincerely hope that our discussions here will be predicated only on
the subsistence issue and concerns about federal takeover of fish
and game, and not on whether the state of Alaska has a right to
expect rural residents to provide financial support for rural
schools.
CHAIRMAN GREEN: We appreciate your comment Representative Bunde.
Representative Croft.
Number 0670
REPRESENTATIVE CROFT: Thank you Mr. Chairman. I raised my hand to
speak after Representative Ogan asked - made his statement and it's
vagaries of the way this goes around that it isn't very timely.
But if I could just respond to that and then ask a question because
I looked up, as he was asking it, the wording he was talking about
that the equal protection language, and it was from Justice Moore's
concurring opinion -- he was the sole member of the court to have
that opinion. Three thought it was an equal access case, as the
testifiers here said. Moore apparently, not on the court anymore,
thought it was an equal protection case. And Justice Rabenowitz
... who is also not on the court anymore, thought it didn't violate
either equal protection or equal access. I think it's important to
clarify that. Representative Ogan, before he left and is back now,
stated that it was an equal protection -- that was not the majority
decision. And in particular, when Representative Ogan was here
before us testifying, he claimed that the Governor dropped an equal
protection case, and he and I have had a number of discussions
about the fact that the Governor did not. I copied the page of
what was dropped in the Babbit suit, and have asked him a number of
times to apologize for misrepresenting the Governor. I hope he'll
take the opportunity to do that here today. I wanted to ask,
following up on Representative James' point, could Congress, if it
got frustrated enough with us, simply enact the Native preference
that she was talking about on federal land? Is there any legal bar
to them doing that?
Number 0745
ATTORNEY GENERAL COLE: Mr. Croft, thank you. I can't say, but I
suspect not. I have the sense that given the broad powers of the
United States, under the property clause, and under the clause
dealing with the right to deal with the Indian tribes, they
probably have that power. I've never researched that point, but
that's sort of my visceral feeling that I think they probably
could.
CHAIRMAN GREEN: Representative Berkowitz.
Number 0767
REPRESENTATIVE BERKOWITZ: Follow-up on that point, and also
consistent with federal powers, they could declare large tracks of
their country Indian country couldn't they?
ATTORNEY GENERAL COLE: Well I had the thought, given Mr. Croft's
- Representative Croft's question, they could just take vast areas
of Alaska I would imagine and legislatively provide that they are
reservation lands. And then we could deal with that Indian country
issue again.
CHAIRMAN GREEN: With that shuddering thought, unless there are
some very specific brief questions we have several other people who
have signed up to testify and we're going to lose part of our
quorum or we'll lose part of our committee, I think we'll maintain
a quorum but....
REPRESENTATIVE OGAN: Mr. Chairman, very briefly.
CHAIRMAN GREEN: Representative Ogan very briefly.
Number 0806
REPRESENTATIVE OGAN: Thank you Mr. Chairman. Mr. Cole, in
Powereds (ph) Lessie (ph) versus Haugen (ph), which is a U.S.
Supreme Court -- it said that the shore navigable waters and
(indisc.) under them were not granted by the Constitution of the
United States, but reserved tot he states respectively. Secondly,
the new states have the same rights, sovereignty, jurisdiction
(indisc.) as original states under the equal footing doctrine. And
that's -- the public trust lands are outside the scope of the
property clause power. And we -- so the states do have the right
to manage ... and you did state that the animals don't belong to
anybody because it's a public trust asset. And they don't belong
to anybody until they're I think, if I recall some of the court
language, skillfully captured then it becomes property. And so,
you're right the federal government does have a right under the
property clause to tell us ... whether or not we can make access to
that land, but they don't own the animals and they can't say that
we can't hunt them because of a certain specific, in my opinion at
least, because of where you live or any other.... There is a
difference there isn't there?
CHAIRMAN GREEN: Doesn't Kleppe address that?
ATTORNEY GENERAL COLE: Well yes, a Kleppe addresses that, number
one. But the court of appeals has said in the Katie John case,
"Look, under the reserved water rights doctrine, the United States
has the right to regulate fishing in navigable waters within the
state of Alaska." Until that case came along, everybody assumed
that the federal government did not have any rights to regulate the
taking, if you will, of fish and navigable waters. But suddenly
out of deep left center field, the court of appeals said, "Look,
the reserved water rights gives the United States that power."
Once they get that power up there in that pink area, then they can
I think clearly and easily extend the exercise of that power all
the way down to the mouth of the Yukon, and that's what's terribly
troubling - that's what's terribly troubling to me. And I think it
should be terribly troubling to everybody who has touch with the
fishing industry in this state because I tell you under that
doctrine, it will not be long until the federal government will be
regulating all fishing in the state of Alaska in all these waters -
navigable waters noncontiguous to federal land. That's a horrible
thought.
REPRESENTATIVE JAMES: Just quickly.
CHAIRMAN GREEN: Very quickly because we have...
REPRESENTATIVE OGAN: I agree by the way and that's why we need to
litigate.
Number 0933
REPRESENTATIVE JAMES: Thank you Mr. Chairman. Just briefly
because -- and I understand that fear. I have that same fear that
you do. My biggest fear is that we do a constitutional amendment
that gets us in compliance and they do it anyway. You know that's
my problem.
ATTORNEY GENERAL COLE: How could they do it anyway? I mean we are
then have rights and powers under the federal statute ourselves.
We have rights under ANILCA, we have right to manage fish and game,
we have the right to manage fishing in navigable waters. We sweep
away that lousy Katie John decision if we regain management, then
we're in control, then we're making the rules, and Congress is not
making the rules. I mean that's my point. I mean we've got to get
it back. We have to swallow. I mean it's not always easy to
swallow, but we've got to regain that power and then we can go from
there.
CHAIRMAN GREEN: I want to thank both of you for taking time out of
your day to come in and talk to us about this because it is a very
contentious issue and I really appreciate your taking the questions
as well.
ATTORNEY GENERAL COLE: Thank you, I wish you well.
CHAIRMAN GREEN: Thank you, we're going to need it. Is Bob Penney
on-line?
Number 0988
BOB PENNEY, CO-CHAIRMAN, ALASKANS TOGETHER: Yes sir, I am, Mr.
Chairman.
CHAIRMAN GREEN: Bob, would you identify yourself for the record
and give us your input?
MR. PENNEY: Well sir, I'm here -- I'm not there because I'm here
on a bread and butter item. My name is Bob Penney and I'm co-
chairman of Alaskans Together, and we have a formal group of our
people there to testify, Mr. Chairman. Have they all testified
yet?
CHAIRMAN GREEN: They have not yet, we're just getting into the
Alaskans first.
MR. PENNEY: Mr. Chairman, I very much respect like to be able to
come back after them, but I'd very much like to touch base on the
question that somebody asked Charlie (indisc.) about ... changing
the statehood. That did not take place and I'll explain that, if
I may, when I come back on. Thank you very much.
CHAIRMAN GREEN: Sure, do I understand you want to go after the
last person that's here with the group.
MR. PENNEY: Yes sir, and there is a lot of people there taking a
lot of time out of their day - have come a long ways to try and
give testimony on something that's dear to their heart, and I think
you should take the time hear them. And if I may, I would like to
come back to address that because I think I have a direct answer to
that point - statehood pack was not reached.
CHAIRMAN GREEN: Okay, thank you Mr. Penney, and there will be some
people here that will be able to sit and listen to it all. Some
will have to leave because of other commitments. But that then
leads us to Jim Jansen. And I understand that you are going to
introduce your group as they testify.
Number 1050
JIM JANSEN, PRESIDENT, LYNDEN COMPANIES; MEMBER, ALASKANS TOGETHER:
I can do that.
CHAIRMAN GREEN: Alright, thank you Jim. Would you identify
yourself for the record, and have a seat. Excuse me, one other
thing before you get started. Would you prefer questions, if there
are any, asked of each speaker or summarized at the end?
MR. JANSEN: I think we're indifferent, your call.
CHAIRMAN GREEN: Okay, alright, good. Thank you, go ahead please.
MR. JANSEN: Thank you Mr. Chairman and members of the committee.
My name is Jim Jansen, I'm the president of the Lynden Companies
and I'm pinch-hitting today for Bob Penney, who sent his regrets
that he couldn't be here today. And I didn't know you were on,
Bob, and so what I'm going suggest is rather than me providing both
the opening introduction to Alaskans Together, and the closing,
maybe I'll ask Bob to do the closing if we could do that.
MR. PENNEY: Whatever you say, sir.
MR. JANSEN: First, I want to say we're here as friends with a
common goal and that goal is quite simple. We want to keep the
feds from taking control of fish and game in Alaska. How we get
there, we don't necessarily care but we want to get there, and we
think there is some high-risk ways to approach that and there is
some low-risk ways. Frankly, speaking for me individual, I'm not
a real brave guy for the low-risk approach. Alaskans Together is
a quite a concoction of people from all over the state, probably
every profession. We have sports hunters and fishermen, most of us
are. A lot of businessmen, some Native leaders, professionals,
commercial fishermen, parents, concerned Alaskans, and mostly we're
conservative voters - we're conservative supporters, so we're your
friends.
REPRESENTATIVE BERKOWITZ: I take no offence.
CHAIRMAN GREEN: You meant the collective "we," yes, I understand.
REPRESENTATIVE JAMES: He agrees with me a lot.
REPRESENTATIVE BERKOWITZ: Thank you Jeannette.
CHAIRMAN GREEN: Go ahead, we get a little rowdy at times.
MR. JANSEN: Personally, I'm a avid hunter and fisherman. I'm a
businessman that depends on Alaska's resources for our business,
the oil industry, mining business, commercial fish, and we haul a
lot of fish. And we think this issue is a extremely important
issue to our business. If the feds get control of our resources,
we're in real trouble. We've got enough problems now with the
environmental movement. And if we lose this particular battle, I
think it's going to be devastating to most of businesses. I'm a
father, I got kids. I want them to live the same wonderful outdoor
life I've had with out hunting and fishing. I think it would be
totally different under federal control. Our role, as Alaskans
Together, is to raise money and provide distraught funding to
educate and inform the public. I'm distraughted how few people
really understand the risks and the problems with the subsistence
issue, and the risks of federal takeover, so we're going to put a
lot energy into informing the public. We're going to organize and
distribute information, we're going to run polls. We'll provide
that information to you. We're going to advertise aggressively,
we're going to do speaking engagements, we're going to work with
those in the legislature who really make this difficult decision,
and we're going to work with you toward a common solution. We
agree with Alaska's current governor and past four governors, the
task force compromise plan. And I don't use Governor's task force
plan. I you pull up our adds on the Internet, you're going to see
that there is no picture of the Governor or Lieutenant Governor.
And it's not a Governor's task force plan anymore. This is a plan
for Alaskans, state's right plan as far as I'm concerned. We agree
with the congressional delegation, and we believe we agree with 85
percent of Alaskans who want to keep the feds out. I'm going to
make my talk real short here because we have seven ... of our group
and kind of broke our talks down into seven specific areas. And
Carl Brady will lead off with needs versus area plan.
CHAIRMAN GREEN: Before you go, I have one question. I think I've
been able to glean from what you said that you are definitely in
favor of keeping the feds out as I think if 85 percent, I would
think it may even be higher than that. You have indicated that
what you have seen so far would lead you to believe that the task
force approach is probably the only thing that might be available
to prevent federal takeover as we've heard from General Cole and
Byron Mallott that they feel that. I don't want to put words in
your mouth, but what I'm coming to is if there were another way to
accomplish that, to keep the feds out, in fact maybe even go beyond
that, regain control of the lands and waters within the state,
would your group support that as well?
MR. JANSEN: Think we would if we believed...
CHAIRMAN GREEN: If you believed it sure.
MR. JANSEN: If it had a high probability of success. I think it's
our general belief that some of the alternatives that we've heard
have such a low possibility of success, and the stakes are so high,
and the risks are so great that I think we're going to urge you to
take the easy way. And being a businessman ... I face decisions
every day. I don't get the easy ones, I don't get the good
solution versus the back solution. I get the lesser of the bad
options and I'm afraid that's maybe what we have here. We're not
terribly excited, as a group, about the task force plan but it does
keep the feds out. And me for one, I'm not very brave. I'm not a
risk taker.
CHAIRMAN GREEN: Well I just want to add, and I hope I speak for
the committee, that ... your willingness, as a group, to go out to
the public and help educate them and keep this thing so that we do
come up with an Alaskan solution I think is admirable and I really
want to thank you and your group for that. Representative
Rokeberg.
Number 1379
REPRESENTATIVE ROKEBERG: Thank you Mr. Chairman. I was pleased to
hear Mr. Jansen's statement about working with us, and I just want
to make sure that's (indisc.) because frankly, before we came down
here and during the first part of the session I didn't think that
that was the case. I felt that your group was lobbying in support
of the task force proposal only. (Indisc.) has rejected any
further activity as far as trying to create another solution to
this very important difficult problem. And I think that's
something that everybody, and everybody that testifies from your
group, should be aware of. And I was just wondering if you thought
that if the legislature ... were to be able to come up with a
separate solution and allow that particular solution go on the
ballot of the primary election and say perhaps along with the task
force solution, what do you think your group would do? Would you
lobby for a particular proposal? Or would you be willing to be
open enough to look at all solutions?
MR. JANSEN: Well I'm one member of our board. That certainly
would take a lot of discussion of our group, but everything I hear
amongst our group is that we want to keep an open mind. We want a
solution, but we probably will be arguing with you if you put us
into a situation that takes a high level of risk because the stakes
are too high. Some risks in life we don't take like the lives of
our kids. I think we're going to be very cautious, we're going to
want to be very cautious about taking the risk that has a high
probability of failure.
CHAIRMAN GREEN: Follow-up?
REPRESENTATIVE ROKEBERG: You put us in a real high position of
risk.
CHAIRMAN GREEN: Well let's keep an open mind now and work as a
group. Thank you Jim. Do you want to introduce - I have a list
here of people who have signed up.
MR. JANSEN: If you'd handle that for me, I'd...
CHAIRMAN GREEN: The first one then on needs, as you indicated, is
Carl Brady.
CARL BRADY, MEMBER, ALASKANS TOGETHER: Mr. Chairman, members of
this committee, my name is Carl Brady, I'm a businessman in
Anchorage and also a member of the committee that we're talking to.
And I became involved in this, as so many others did, as a ...
concerned citizen because I saw a great big warning sign. And I
misunderstood so much about what we're talking about today and the
enormous job that you people have in front of you and (indisc.) to
accomplish. And through a great deal of work and education and
expense, I think I've come to understand the issues, at least
understand them much better than the majority of the people in
Alaska do. It is a very misunderstood issue, but I think it's
becoming a least misunderstood issue in getting towards a better
understood issue, and through some of the work that all of us going
to work together, I hope, cooperatively to find these solutions
that the public will understand and agree with ... solutions that
you folks are able to come up with. I do believe Secretary Babbit,
I do believe Senator Stevens. I do believe that there is a warning
sign out there that says that December 1st that the federal
government is going to act. I believe that because I believe they
want to. I was here when they were here before. And I think that
there is no perfect solution here, there is no perfect answer for
anyone in this room on this issue. But in our efforts to
understand what is before you and before the rest of us in the
state and the opportunities we have and ... the problems that we
may be faced, we've tried to together look at the situation on a
basis of how it's been presented to us. And please don't take
offence because it's not been intended for you to from us that
we're trying to get out in front of a working body that has good
intentions like we have. And I know it's a ... concern for
everybody that we understand and communicate up-front and fairly
with each other. In getting to understand, because there is a bill
- there a proposed bill - proposed legislation, and to understand
it we've taken different parts of this and several of us are going
to address those parts. And ask Jim Jansen said, that I was talk
about the needs-based. The bottom line on this, short of a third
pillar here of some other alternative because if we don't do
something and have a constitutional amendment, the way I understand
it the federal government is going to take over. I hope your suit
prevails, but that, in my mind, has got some problems with it. I
think it's a ways away and after all the appeals, it's ever further
away. In the meantime, if the federal government comes in they get
better intrenched and further intrenched, I think it creates a
further problem for us. I believe what Senator Stevens is saying.
After 17 years on this issue, he's worked it very, very hard and I
believe he understands it. But we looked at the bill and proposed
legislation, and other things that we've heard and we said, "Well,
let's take it piece by piece and let's talk about those issues
piece by piece." And I don't want to belabor this because most of
you are very familiar. It all goes back to is it in compliance
with ANILCA? And simply if it is not, I don't believe it's going
to prevail. I think we have to do something together that will
comply with ANILCA. And how we manage and tweak around after that
may be the luxury that give us - affords to get really where we
would like to be some day. But rural versus income, I mean in the
Bush -- and let's admit, how do define rural? Okay, maybe this
worked pretty good in the past, maybe it hasn't been perfect. But
you take a community like Dillingham that built a big school
project out there. Well there is a lot of work and a lot of jobs.
A year later, the poor fishing season, no construction and we've
got a different qualification for -- so how do you establish a
number, a level of income that says it's equitable if we're talking
about a subsistence cutoff at some level wherever - whoever you
are, how ever much you make in rural Alaska, you're going to have
economies. You've got a government community in Barrow and you've
got a different community somewhere else. And so it's going to be
very difficult and as people make money fall off the qualification
list, then the next year if they're back on, they got to re-qualify
somehow or another and who's going to -- and how are we going to
pay for and administer the whole rolling cycle of this thing going
up and down and coming and going as you may or may not qualify.
I'm not ... finding fault on trying to point out some of the
concerns and problems that I think that we face. I do have a
problem with ... the indication or implication that I've read that
it looks like - becomes a welfare state of fears. I don't think
that, but I don't believe -- I believe it's going to be an
administrative nightmare. I think it's a management nightmare and
I don't think it's realistic to say that in rural communities,
where subsistence style of life is the same for everyone and all
because there are families in communities that do have more income
than others, who share their subsistence with other within the
community, and share their boats or share their wealth to help buy
boats and traps and nets and fishing ... equipment. So having said
that, I want to point out that these are my views. These are
without council. It's my personal opinion this group -- to answer
Representative Rokeberg's initial question, I think a ... fair
concern is it's going to take this body to act - it's going to take
this body to act the way we would like to see it act and so we
don't want to be an adversary in any way, in any fashion. We are
doing polling, we have done some polling and we're going to share
that information with each and everyone of your own districts first
before it's made public. And I think that's the proper thing to
do. So with that I'd like to, unless there is any questions,
introduce Carl Marrs.
CHAIRMAN GREEN: We do have a couple Carl. Representative
Berkowitz.
REPRESENTATIVE BERKOWITZ: Thanks very much, and kind of nice to
finally meet you.
MR. BRADY: We met once after the election.
CHAIRMAN GREEN: Is that when you visited him prison?
Number 1959
REPRESENTATIVE BERKOWITZ: I have a question and I -- seems that
you're focusing on the needs-based. It seems to me that one of the
concerns that I have with the needs-base is that it would be
unconstitutional in that with the McDowell decision there was a
determination that rural created a closed class. Now it's easier
for me to become a rural resident than it would be for me to
qualify on a needs-based. And I wondering if perhaps you had given
that any thought.
MR. BRADY: I can't comment on the legal aspect of it, but from a
social and practical viewpoint, absolutely. Rural ... by
definition by many people in the Lower 48 is somewhere outside of
Kansas City where there is a lot of cows roaming around. Well,
somewhere (indisc.) far out of Anchorage is the Kenai Peninsula
with some cows roaming around too. That's a very difficult
question to define. ... But there are more rural outside of the
population that we're talking about that live and depend upon a
subsistence style of life, as well as a cultural one. We are -
have a interest in a previous operated fishing lodge outside of
Dillingham up in the Wood River Tikchik State Park. And we have
caretakers there and we pay them a reasonably good salary, I think.
But they have a subsistence style life and it's -- for my
experience with that, Representative Berkowitz, is there is some
real difficult work ahead on definitions and clarifications and,
yes, qualifications aren't going to be perfect each and every time,
but the alternative is much worse. In the event that we don't find
a third solution, which I would love to find out what that is, I'd
like to find five other solutions then we could all agree on one of
them, hopefully, but I believe that we're going to have a -- if we
don't act the way we've discussed this, that we're going to have
the federal government in there and I don't think any of us are
going to like that.
REPRESENTATIVE BERKOWITZ: You know it's ironic that you mentioned
cow country outside of Kansas City. That's where my grandmother's
family is from - also named Brady, and they have no idea what rural
really means up here.
MR. BRADY: Well ... they're not alone.
CHAIRMAN GREEN: Representative Bunde.
Number 2179
REPRESENTATIVE BUNDE: Thank you Mr. Brady and my thanks for you
getting here as well. You said something that resinated with me
very well because I have this fear of doing something ... that's
wrong - the mentality that sometimes (indisc.) Juneau. And you
said come December 1, the federal government will takeover because
they want to. And I know we have problems here in Glacier Bay
because they want to control it and use it as a scientific center
and remove human impact. My question for you is one that keeps
bothering me a great deal is even after constitutional amendment,
what assurance do we have that the federal government wouldn't want
to have even more until we have basically federal control?
MR. BRADY: I'll agree with you that we have very little assurance
that they wouldn't want to continue. I believe they will and,
unfortunately, I see the courts leaning in those directions. I
think though that we, as Charlie Cole said, we have ... enough meat
in ANILCA that I think that we've got enough protection. I can't
interpret the law from a -- only from a layman's point of view. We
agree that the pacts, the compacts, the treaties, the agreements
previously have not been honored. I believe there has been enough
debate in Congress on ANILCA that they really want to see this
thing go away after all of these years. And I think that I have to
put my faith in the fact that if we had a constitutional amendment,
and we complied to the letter of the law with ANILCA, and we acted
and managed -- and we're proactive, I think we've got a sense of
assurance that we'll be able to maintain our...
CHAIRMAN GREEN: Representative Rokeberg.
Number 2339
REPRESENTATIVE ROKEBERG: Mr. Chairman, I really welcome Carl down
here. It's good to see you, Carl. I've known Mr. Brady for 40
years I think (indisc.--mumbling).
MR. BRADY: And I ain't that old Norm.
REPRESENTATIVE ROKEBERG: I know that.
CHAIRMAN GREEN: He doesn't, doesn't he.
REPRESENTATIVE ROKEBERG: I was really pleased to hear your
statements, Carl, about willing to work with us because I want you
to know that's what a lot of us are trying to do right now. And I
do have a technical question. You indicated your relationship with
the Wood River area. Do you think that a trophy Wood River rainbow
should be subject to first priority subsistence use?
MR. BRADY: No sir.
REPRESENTATIVE ROKEBERG: Thank you.
CHAIRMAN GREEN: Representative James.
REPRESENTATIVE JAMES: Thank you ... Mr. Chairman, kind of playing
on Representative Bunde's question about the federal government -
what they want to do. And I've been observing the Interior
Department for a long time and I seen an encroachment on our
rights, not necessarily for the hunting and fishing, but to stop
hunting and fishing. I mean there is an environmental bent there
that wants to leave animals alone. What kind of guarantee that
once we get past this management of hunting and fishing that they
won't come in an do that sort of thing and even interfere with the
subsistence that we're protecting.
MR. BRADY: The simple answer is none, but from a layman's point of
view, again, I'm putting some faith in our legal system that is
stronger than my personal agreement with your statement.
TAPE 98-40, SIDE A
Number 0001
MR. BRADY CONTINUED: ... what we've done there and fight to
preserve. Alternatively, if the federal government does step in
here and take over, ... from where do we come then?
CHAIRMAN GREEN: Fortunately this is not going to be a campaign
time, but there are some suggestions but we won't get into that.
Representative Croft.
Number 0051
REPRESENTATIVE CROFT: Mr. Chairman, Mr. Brady, on your subject of
needs versus area, on a very theoretical level, does it make more
sense to tie this to welfare as the bill currently before us does?
Or tie it to a type of area that is generally rural, dependent on
fish and game however it's defined? I guess in its most basic
form, does it make more sense to say, "You're a welfare recipient,
therefore, I know you're dependent on fish and game resources, or
you live in an area that generally is and so I'm going to say
you're probably..." I mean what makes more sense? We do a lot of
talking about what the federal government is going to require us to
do or what we're trying to avoid. But just on what is more logical
and right, which scheme makes more sense to you?
MR. BRADY: Well certainly not the welfare scheme, by definition or
otherwise, Representative Croft. Needs basis is very difficult to
determine. It's impossible to find a single income level or cutoff
point that's the same for all residents in rural Alaska, however
you wanted to define rural Alaska. There just isn't a consistency
there. As I mentioned, many of the most successful financial
households share their subsistence because the have the wherewithal
and the facilities in which to participate in a subsistence style
of life. I have a comment I wrote here. I said an income based
subsistence program is insulting to rural families and communities
because it views a subsistence way of life as welfare subsidy
system granted by the state. A subsidy way of life is a proud and
cultural tradition or subsistence (indisc.) and cultural tradition.
I believe that it still is and I hope it continues to be so here in
this great state of Alaska where we're all so fortunate to live and
share these cultures that are still alive. I'm sorry that that
isn't -- but as good as a couple that Charlie Cole made.
REPRESENTATIVE CROFT: No, it was fine answer and it's just
presently when we stop talking about subsistence as something to
preserve and started talking about it as a situation you wanted to
avoid. I don't know the answer.
MR. BRADY: I don't want to take up any more time. It's a
difficult one to answer, but I think we can have some good thoughts
and some good input after we take care of the fight with the
federal government's desire and then start working on these issues
with some real tests.
CHAIRMAN GREEN: Thank you. Representative Ogan.
Number 0290
REPRESENTATIVE OGAN: Thank you, Mr. Chairman. I'll try to be very
brief. Are you aware that the bill is two-tiered? That there is
the first tier that we give the boards the authority to grant a
preference to - in the first level of shortage, if the board
perceives that there is a shortage based on sound science...
MR. BRADY: Yes sir.
REPRESENTATIVE OGAN: Gives them a preference to - for personal
sustenance - personal and family use for sustenance regardless of
income. And then only -- we also give them a further ability to
give discretion if like there is not enough to go around in these
regions we've identified, which are probably true subsistence areas
based on a rational criteria that there is not enough to go around
in those areas, so we allow them to give a further preference to
those based on income. So the guy that works for the state of
Alaska, for example, if you have decide who in an area -- there is
not enough to go around in the area, it would simply authorizes
them or gives them the authority, they may give this preference in
times of extreme shortage. It would seem logical to me, the people
who are living a true subsistence lifestyle are probably are not
going to have much income. It's not just welfare, it's -- there is
also language in that if they choose to live a subsistence life
style, less an X amount of dollars.
REPRESENTATIVE CROFT: Did you understand the question?
MR. BRADY: Yeah, sure I understand your question and your
comments, and I understand where you're coming from with that. My
concern is that - will it pass the test that we have to decide that
it complies with ANILCA?
REPRESENTATIVE OGAN: Well it certainly doesn't. It's going to
take ANILCA changes, and those are addressed in the bill as well.
We acknowledge that. Thank you sir.
CHAIRMAN GREEN: Representative Bunde.
Number 0447
REPRESENTATIVE BUNDE: Mr. Chairman, I'm going to need to excuse
myself. We have a joint Senate and House HESS meeting and I will
explain to them that you and Representative Porter are very
legitimately detained. But I did want to say something because I'm
frustrated I'm going to miss Mr. Huntington's testimony, and we
often talk about subsistence in more of theoretical, because while
I've traveled rural Alaska a little bit I've never really truly
lived it. But I think it's incumbent on all of us that before we
make this decision, get a copy of Sidney's book, Shadow on the
Koyukuk, and he talks about what it's really like to be a 13-year-
old kid and live in the middle Yukon under subsistence in the 30s
and the 40s. It's a really important reality check and it helps us
have a better grasp how to define subsistence.
CHAIRMAN GREEN: That does not qualify him as an agent for your
book.
REPRESENTATIVE BUNDE: I want 10 percent.
CHAIRMAN PORTER: Would you take copious notes?
CHAIRMAN GREEN: Alright, that then brings us to Carl Marrs to give
us a talk about creates two classes of people. Carl, would you
identify yourself, sir?
Number 0532
CARL MARRS, PRESIDENT/CHIEF EXECUTIVE OFFICER, COOK INLET REGION,
INCORPORATED (CIRI); MEMBER, ALASKANS TOGETHER: Thank you Mr.
Chairman. Carl Marrs with Cook Inlet Region, President/CEO. I'm
here on behalf of the Alaskans Together as a member of them. I
have some prepared remarks but I think I'll just hand them out in
the interest of saving time. I do want to say that I don't think
HB 406 meets the criteria needed to meet Title VIII. You know we
talk about your worry about the federal government not living up to
its word. Well ... I can tell you is Cook Inlet Region, as most of
the Native people of this state have been living with for years,
and I think most of the American Indians of this country have been
living with for ... 250 years. We've seen many, many treaties
among the federal government and the American Indians broken. I
think that we have situation going on today where we have some
Alaska Native groups that are happy to see the federal government
here. And, in my opinion, that's a state of euphoria that may last
for a period of time, but when the federal government decides it's
time to quit killing seals, they'll stop killing seals. It was
asked earlier - the question about what would happen ... if the
feds did take over ... or how could the state stop it if the state
passed a constitutional amendment. I believe that we have a much
greater chance working in unity of managing fish and game in this
state, and we have no control when the Department of Interior is
managing it on our behalf. All you got to ... remember is you have
animal rights groups in the Lower 48 that have grassroots efforts
that can gear up very quickly. And Congress doesn't care about
Alaska. They really don't care. They don't live here. They don't
have to deal with these issues. And if their constituencies in the
Lower 48 are showing pictures on T.V. of a bunch of dead seals
being gutted out because it's a way of a life style for rural
Alaskans, Native and non-Native, ... they'll shut it down. They
don't care about that. The other issue I think Representative
James brought up was, "Well why doesn't ... Congress just change -
take the non-Native out of ANILCA?" Well you've got to remember
those families out there in the traditional and customary uses of
fish and game -- non-Native families have lived out there for
hundreds of years. They're a part of that way of life. And I
think Congress intended to deal with it, it wasn't just a Native
issue you have to deal with at the time. I really think ...
Representative Rokeberg brings up the issue if the legislature
comes up with another solution, we'd like to see it. I think that
the Alaskans Together, if there is something short of a
constitutional amendment, we would love to see that. I've been at
this ten years. I remember sitting on the other side of the House
nine years ago, one vote short in the Senate on a constitutional
amendment on this issue. We've been on it a long time, we've been
over the same ground time, and time, and time again, and here we
are right up at the eleventh hour, and I think we need ... a
decision that's right for the state. Our belief is the ... issues
that have been addressed by the task force, and like the rest of
the group we do call it the subsistence task force, we didn't see
it as a Governor's task force just because of the make-up of it,
more than half of it was people that actually oppose the Governor.
So it is, in our opinion, the best alternative that we have in
front of us today. We haven't seen anything else come up that
meets the standards that we meet. And [HB] 406, in our opinion and
mine and opinion of CIRI, doesn't meet those criteria. So we would
hope, and as you have the commitment from the rest of Alaskans
Together, we will work with anything that has a good possibility of
standing up to both the federal law and the state constitution.
We, again, we believe that's a constitutional amendment. With
that, Mr. Chairman, I'll take any questions. I'll pass out the
testimony, which is different than what I was talking about.
CHAIRMAN GREEN: Alright. Thank you Carl. Are there any
questions? Yes, Representative Ogan.
Number 0866
REPRESENTATIVE OGAN: Mr. Chairman, thank you Mr. Chairman. Mr.
Marrs, it's good to have you here today, thank you for coming. I
just wanted to state, for the record, that the seals issue is
completely separate from what we're dealing ... with here because
seals are managed, already, by the feds under the Marine Mammals
Act. They....
MR. MARRS: Representative Ogan, I used that as an example of what
could happen in the Lower 48, I mean could I apply it caribou or
moose or geese or whatever that might be.
REPRESENTATIVE PORTER: Wolves.
CHAIRMAN GREEN: Wolves. Representative Croft.
Number 0915
REPRESENTATIVE CROFT: Mr. Marrs, why isn't it appropriate to tie
subsistence to being a welfare recipient? Why doesn't that make
sense?
MR. MARRS: Well I don't think ... the state has budget problems
today. I don't know how you would manage all the rural areas. I
don't think you have enough money in the permanent fund to figure
out who is going to qualify under a welfare system. The state is
pushing, today, very hard to change that whole area - is to get
people off of welfare to work. I mean that's one of the big pushes
that you've done as a legislature and as an Administration is to
try to get people off of welfare. Subsistence, in the sense of
that, helps in the sense because it does -- it's an economic
resource for those people in the rural areas. ... I think it's an
unmanageable thing. How do you put that many people out in the
Bush to try to get -- I don't think the Internal Revenue Service
could do it. That's my opinion of that.
CHAIRMAN GREEN: Representative Rokeberg.
Number 0962
REPRESENTATIVE ROKEBERG: Mr. Chairman, Mr. Marrs, couple of
questions. Number one, I'm very concerned about having really
started to look into this about the definition of customary and
traditional as recommended by the task force and as enacted in the
ANILCA changes of Senator Stevens. Do you have an opinion on those
and particularly about my concern for ... management of discrete
stockage?
MR. MARRS: You're worried about rainbow trout.
REPRESENTATIVE ROKEBERG: You're right.
MR. MARRS: Representative Rokeberg, let me answer it in this way.
I think that it's probably the best that we can do for right now.
There is refinements that will take place over time. You've got to
remember we operated under the subsistence law for a number of
years and it worked fine. There was not problems with it and in
the state Board of Fish and Game dealt with a lot of those issues.
And I think that, again, can happen. All of this will take some
refinement. It's not perfect, but it's better than having the
federal government run our lives.
REPRESENTATIVE ROKEBERG: Mr. Chairman, ... I think that the ANILCA
is defective the way it has been (indisc.). Do you think to fix
some of these things, no matter what they were, do you think that
ANILCA could be amended in 1998?
MR. MARRS: No, I don't think it can be.
REPRESENTATIVE ROKEBERG: Mr. Chairman, Mr. Marrs, you and I have
had personal conversations about one of the problems with a needs-
based type of a bill. Do you think if the rural communities of
this state were to sign a very simple form that indicated that they
- to the best of their knowledge and belief believed that they met
the criterion for subsistence in the state and federal law that
that would be an adequate method to administer that?
MR. MARRS: Who is going to enforce? I mean what do you do with
somebody that you think has filled out a form and falsely? I mean
how do you administer that?
MR. MARRS: Well I mean, Mr. Chairman, I suggest that the
enforcement is self enforcing and when people are caught in
noncompliance then they can be prosecuted for that breach of their
honesty, et cetera.
REPRESENTATIVE GREEN: I think we're kind of digesting and we're
asking Mr. Marrs something that would have to be done by [the
Department of] Fish and Game. Representative Porter.
Number 1109
REPRESENTATIVE PORTER: Thank you Mr. Chairman. I don't want to
belabor this point, but I didn't know there was going to be two
other questions about it. Carl, if the criterion were that there
- that to qualify in the time of a shortage for a subsistence
permit or to be able to hunt and fish for subsistence that there
had been a dependence, regardless of the person's income, but a
past dependence on that resource, customarily and traditionally.
Would that -- that's not needs-based but it's -- narrows the field.
MR. MARRS: I'd suggest that we're fairly close to that now. You
know in customary and traditional and I think that, again, ... all
of these issues will still have to be dealt with in statute and
with (indisc.) fish and game. I think the focus that we can't lose
sight of here is that we need this constitutional amendment or the
federal government will come take over fish and game on federal
lands in Alaska, and I don't think that we want that to happen.
It's not going to be a simple process for the Boards of Fish and
Game. It's not going to be a simple process for the Departments
... of Fish and Game to put out the regulations. There is going to
be a lot of argument over the regulations and how they're
implemented, but at least it's done here. It's not done at the
Department of Interior in Washington, D.C. And, again, in an
imperfect world, I think we've come to a point in that juncture
where it's necessary, unless somebody comes up with some magic
between now and December 1st if this issue is not dealt with by
both bodies of this legislature, that it's the only thing on the
table. But there are ... little sticky issues out there, but I
think with all of us working together on the issues, we could work
through those. We can't do it if it's (indisc.).
Number 1233
REPRESENTATIVE GREEN: We have several more people and I would ask
the committee to remember under what sort of oversight that each
one of testifying and hold our questions to that so that we can get
through them. Representative Rokeberg, you had to make an
announcement.
REPRESENTATIVE ROKEBERG: Mr. Chairman, I unfortunately I do have
leave to chair the Labor and Commerce Committee, so I will be
unable to be here for the next couple of hours. I just wanted the
people to know that. Thank you very much.
REPRESENTATIVE JAMES: And if I might, I have a bill up in Labor
and Commerce, so I've got to go too.
MR. MARRS: Well I thank you all for listening.
CHAIRMAN GREEN: We did have -- Representative Croft had a
question.
REPRESENTATIVE CROFT: That's alright. Thank you.
CHAIRMAN GREEN: Okay the next -- Representative Ogan.
REPRESENTATIVE OGAN: Mr. Marrs.
CHAIRMAN GREEN: Carl, we have one other question and then we get
to move on.
REPRESENTATIVE OGAN: Very briefly, Mr. Marrs. Are you aware that
the Secretary of the Interior, if I'm not mistaken, told AFN that
not to expect the takeover to be a permanent one?
MR. MARRS: Yes, I'm aware of it, but I got to tell you something
that -- it's my belief when the Department of Interior takes this
over, the secretary can say all he wants. He's only there
temporary. As these Administrations have changed over the years,
those people within the departments, with the parks of the U.S.
Fish and Wildlife, they want control. They don't -- there is no
doubt in my mind, they want control. They want to take it away
from us. They have the upper hand right now and they will take it
if they have the first opportunity and you'll never get it back.
CHAIRMAN GREEN: I want to reemphasize that the questions should be
directed to the people who are - have a certain thing they're
talking about. Theo Matthews will be talking about the federal
plan and its impact on commercial fishing. I would appreciate
questions dealing only with that subject. Theo.
Number 1316
THEO MATTHEWS, PRESIDENT, UNITED FISHERMEN OF ALASKA; MEMBER,
ALASKANS TOGETHER: Mr. Chairman, members of the committee, my name
is Theo Matthews. I reside in Kasilof, Alaska. I'm the current
president of United Fishermen of Alaska (UFA). I had the
opportunity to speak to you last week on House Bill 406. And UFA's
conclusion was and still is that that bill creates many, many new
problems. It does attempt to address the issue of whether we
should have a needs versus rural preference in one section, but
overall, it creates far more problems and it solves none in our
opinion. I have the honor of being on the Executive Committee of
Alaskans Together. As the others have assured you, I want to
assure you that our goal is to work together not just with the
legislature, but at fullest cooperation that we can develop with
the public to better educate them to the true problems and perhaps
in true solutions that aren't as painful as people feel. I've been
asked to address the issue of definitions, and as I mentioned you
last week, there is a historic moment before you. The federal
government has never been prepared to change a single word in
ANILCA. Never and we have tried since 1969 in the Kenaitze
decision, when they told us something on the Kenai had to be rural.
And as you said, Mr. Berkowitz, they don't understand what rural
is. So definitions inserted into ANILCA will limit the discretion
of the courts to tell us what they think a rural preference would
be. And we have identified some obvious and key ones. I mean you
have a federal law that demands a rural preference but doesn't tell
you what rural is. So the let the Ninth Circuit tell you what a
farm land is supposed to look like. You have a federal law that
demands customary trade, but it doesn't define customary trade.
And I have submitted current customary trade definitions as
testimony, they should be before you I hope. Just to give you an
example of how important it is to get these things defined in
ANILCA. A limit to discretion of the courts. The current state
definition is from the 1992 statutes, and I won't read it. It's
clear that it means the limited noncommercial exchange for minimal
amounts of cash. The state has a clear policy that this is a
minimal commercial activity. The current federal regulation takes
the exact opposite tax - basically says customary trade does not
include trade, it constitutes a significant commercial enterprise.
That means to me, and I don't need to be a lawyer, anything less
than a big time commercial enterprise is acceptable to the federal
government. This, over time, and we've already had decisions on
some roe on kelp cases, and there pending appeals in many other
cases. People can say, "Well it's only $10,000," and if the
federal court feels that is not a significant commercial
enterprise, it's going to take place under subsistence. ... I was
also a member of the Hickel ... Subsistence Advisory Council. This
was a very easy decision for us. No one thought subsistence should
be abused as commercial use. We crafted the current state
definition that made it clear that not only was it minimal, but the
respected boards could set whatever limit they thought appropriate
to the point where they could say, "No," even if it had been
customary and traditional. So as part of the package, what
Alaskans Together and what UFA have all said is we need a package.
We're not realistically going to eliminate a rural preference. We
need to define rural and we need definitions to limit the court's
discretion. And so Senator Stevens attempted to do that in his
public law 105-83 definition. It's not identical to the task force
proposed definition, it's not identical to the state's current
definition, but is a genuine attempt and it will vastly benefit
this state. Customary trade, if abused under either state or
federal law, will eliminate sport fishing, it will eliminate
tourism and it will eliminate commercial fishing at some point on
some stocks. So I just wanted to stress, and our group would like
to stress the historic opportunity we have to address the federal
government and try and insert our definitions of terms into the
federal law. Thank you Mr. Chairman. I had the opportunity to
speak last week, so I won't go anymore.
CHAIRMAN GREEN: We have a question from Representative Croft.
Number 1576
REPRESENTATIVE CROFT: Theo, ... it looks to me like the
definition, the new ANILCA definition is pretty close to the task
force one that uses limited noncommercial, it uses minimal
quantities, it has a similar exception for fur and fur bearers. I
mean they seem to modeling. And I guess I'm unclear, if we don't
act on this, if we don't do what contemplated in the ANILCA
changes, what do we go back to? Number two, the current federal
regulations?
MR. MATTHEWS: Mr. Chairman, Representative Croft, exactly. There
will be no definition and the federal agencies are free to make
their own definition and that's what you will have in front of you.
And it is a scary proposition for any other user of the resource.
REPRESENTATIVE PORTER: In existing case law.
REPRESENTATIVE CROFT: One other.
CHAIRMAN GREEN: Follow-up, Representative Croft.
REPRESENTATIVE CROFT: Not quite a follow-up, if I can do a
separate question.
CHAIRMAN GREEN: Okay, I'm sorry.
Number 1616
REPRESENTATIVE CROFT: But on the same subject, which your subject
is the impact of the federal plan on commercial fishing. Am I in
the right area? You were limiting to areas...
CHAIRMAN GREEN: Yes, absolutely.
REPRESENTATIVE CROFT: What would - what's the impact on commercial
fishing, and I guess in particular on the Kenai king run of this
... plan, [HB] 406?
MR. MATTHEWS: House Bill 406, we're going to switch from
definitions to that. Mr. Chairman, Mr. Croft, there is ... no
commercial fishery on the early Kenai River king run, just like
there is virtually no fishery on the early Susitna northern
district run. [House Bill] 406 will eliminate commercial and
recreational uses of those stocks because they are very small,
there are not enough stocks to provide sustenance for all Alaskan
residents. As I mentioned last week, when you get into the late
king run, there is a incidental harvest as we are targeting our
primary sockeye to the extent that there is a preference on that
run, which constitutes probably no more than 15,000 harvest.
Clearly you can't meet all sustenance requirements for that to the
extent that then you start eliminating other uses like sport.
There is going to be demands that even though we harvest incidental
amount of kings, our total harvest has to be shut down. Those
games are already played under current state law. If you give a
preference, it will be played by every lawyer in this state on
every stock in this state.
CHAIRMAN GREEN: Representative Ogan.
Number 1693
REPRESENTATIVE OGAN: Mr. Chairman, on that point. There was a
amendment that was proposed in the Resources Committee that didn't
get put in, if you recall Mr. Chairman. A gentleman from Kodiak,
I don't recall his name, and I meant to put it in and I think it
probably would have taken care of that problem where the preference
-- I think kind of - can't say the amendment verbatim, but it did
say something along the lines, subject ... to the availability of
other species. And that would probably cure that problem of ...
having a preference on an individual stock of king salmon that
would shut down all the rest of the fisheries. I mean is that not
correct if we didn't make it species specific, it would be a simple
language change in House Bill 406. I don't have the bill in front
of me, but I think it will address the problem that you're
concerned about - be a very simple amendment. And I would just
like to state, for the record, that I meant to get it in there and
in the final minutes of the last hearing in Resources, it didn't
get in there. I think that'll alleviate your concern on that.
CHAIRMAN GREEN: What you might do, Representative Ogan, is copy
that and send it to....
REPRESENTATIVE CROFT: Because I don't know how he can respond to
something that we don't have, that he doesn't remember.
MR. MATTHEWS: I can respond.
CHAIRMAN GREEN: Okay.
MR. MATTHEWS: Mr. Chairman, Mr. Ogan, as I noted last week, there
are two parts to House Bill 406. The part that tries to insert a
sustenance preference on all stocks in the state, even if modified
with the language you have there has nothing to do with the issue
of our dilemma with the federal government. It's a reallocation
issue. It's a major issue if perhaps this legislature wants to go
through that, in and of itself, so be it. But it distracts from
this issue of what are we going to do with the federal government.
Now even under the federal rural preference you have, Mr. Ogan, the
same concern that Representative Rokeberg brought up. It is a
stock specific thing. It doesn't really say, "Because you're
freezer is full of caribou, and red salmon, and king salmon, you
don't really need all these silvers." And all the law says, "Yup,
you get it on silvers too." But that's an issue I think, as Mr.
Cole said, that we could address with the feds over time. If we
allow them to take over, the certainty for Representative James is
we will not be managing our resources. Every environmental group,
or group that doesn't like hunting or fishing, will have access to
the federal managers. We're in trouble.
CHAIRMAN GREEN: I have just one brief one. Theo, if ... we were
to go to the specific critter - specific stock, and say that that,
for some reason, was a priority fish and you are also fishing for
others -- the way you fish, is that how you reduce the bycatch? So
that if two species are coming up, one of them is not under
subsistence ruling and the other one is, and they may be coming in
the same direction. Can you adjust your bycatch by the way you
fish those two species?
MR. MATTHEWS: You could, to some extent, in both the sport and
commercial fisheries. However, if you have stocks, like Kenai
River Russian and (Indisc.), and Russian River red sockeyes that
are coming up the same Kenai River at the same time, the Kenai
River sport angler could not differentiate.
CHAIRMAN GREEN: Between the reds, but could he -- the way he
fishes in a sport fishery, he would be differentiating aiding by
time of season, say from the kings?
MR. MATTHEWS: Exactly, that's why commercial fisheries in Cook
Inlet, for example, used to start in May and into December. We now
start July 1st and we're over August 5th. That's the
discrimination that the board has chosen.
CHAIRMAN GREEN: Representative Berkowitz.
Number 1886
REPRESENTATIVE BERKOWITZ: Just a comment and maybe Mr. Matthews
could explain if my perception is right. From what Mr. Green said,
it would seem to me we're inviting all the conflict that occurs
over intercept versus terminal fisheries with that, on top of the
federal question.
MR. MATTHEWS: Mr. Chairman, Mr. Berkowitz, I concur with that
analysis and that's why I tend to caution the attempt to get into
allocation issues. You will never resolve the main problem here.
CHAIRMAN GREEN: No, no, my question wasn't to propose, my question
was how do you do this? You have a bycatch limit now, and if
you're fishing for one type of species and you are catching
something else, how do you reduce the bycatch. I mean you have to
stop after a certain - you're only allowed a certain amount of
bycatch as I understand it.
MR. MATTHEWS: Mr. Chairman, that depends on the fishery. In the
federally managed cod fisheries, and others, yes, there is a fixed
bycatch quota established for certain fisheries. That varies in
the salmon fisheries from area to area. Some areas have a quota on
non-targeted stocks, some don't - so...
CHAIRMAN GREEN: The question then was will you vary your fishing
habit in order to try and reduce the bycatch?
MR. MATTHEWS: Certainly, that's the goal of all fishermen. We're
not here to get into unnecessary allocation battle.
CHAIRMAN GREEN: Okay, Representative Ogan.
REPRESENTATIVE OGAN: Mr. Chairman, with your permission, he did
talk about some allocation issues. Is it alright if I step in a
little further?
CHAIRMAN GREEN: Alright.
Number 1951
REPRESENTATIVE OGAN: It was brought up in an answer -- thank you
Mr. Chairman. Alright I'll be real brief. I've heard over and
over stated by commercial fishermen, especially on another bill
that was heard around the state this year, leave the allocation
authority with the Board of Fish. Don't do it legislatively. Do
you see anything in this bill that keeps the Board of Fish from
allocating?
MR. MATTHEWS: House Bill 406?
REPRESENTATIVE OGAN: Right.
MR. MATTHEW: Mr. Chairman, Mr. Ogan, absolutely. The consumptive
priority takes any and all flexibility away from this board, and if
you had given a commercial priority, it would do the same thing to
all other uses. So it does totally hamstring the boards.
CHAIRMAN GREEN: Okay, we've got to move on then that -- now we
have Sidney Huntington who will talk about federal oversight.
REPRESENTATIVE BERKOWITZ: We'll speak up.
CHAIRMAN GREEN: For you, sir, we will definitely speak up.
SIDNEY HUNTINGTON, ALASKANS TOGETHER: Now gentlemen, I'm kind of
glad that you let me up here to make a presentation. I went all
the way to Washington, D.C., to make a presentation and wasn't able
to do that. I came home without. And I've been in Alaska around
83 years and Mr. Rural.
CHAIRMAN GREEN: Where you before that?
MR. HUNTINGTON: I was (indisc.) somebody else.
CHAIRMAN GREEN: I'm sorry.
MR. HUNTINGTON: I just have to say that the controversy we're now
facing was designed by the federal bureaucrats and environmental
organizations to ultimately gain complete control of the land, fish
and wildlife in Alaska. These outside interests which to control
our resources without any consideration at all for the benefits of
Alaskans, let alone the Indians of Alaska, the federal government
uses excuses of no rural preference for subsistence, to take
control of game management on federal land in Alaska in 1990. And
December 1, 1998, is the deadline for taking control of fisheries
if there is no rural preference. If we didn't get a rural
preference then we say, "Okay, the feds will manage now the
subsistence on federal land." I say I live on state land. It won't
be long before they say, hey, just like they say in other places,
that species was born on federal land, so I have no right on state
land to harvest that resource. Tell me that my limited entry
permit won't be worth the paper it's written on for the salmon
going up and down the Yukon River. Well how can we live with
something like that when that's practically the only economy in
that area -- during the summer when they're fire fighting (indisc.)
or something like that which I don't do. And so I can't live with
something like that. Of course there is a resource that I've been
using has been 85 percent of my livelihood. I have raised 15 kids
on these wildlife resources of Alaska. And I did not draw not one
food stamp, my house was built with my hands and my own nails and
hammers and stuff - wasn't given to me. And all my kids have the
same thing because we set the example from the (indisc.). But we
use the wildlife resources and the stuff that we're born and raised
with from time way back. I have spent 20 years - almost 20 years
on the Alaska Board of Game - dealing with the federal government
even longer. The feds never kept a promise that they made to any
Indian organization, to the best of my knowledge, in all the stuff
that I've ever read, but they damn well, they made good on their
threats all the way through. And they are threatening now to take
over subsistence management of the wildlife resources of this state
unless we have a rural preference for subsistence. This rural
preference that everybody is so up in the air about, and so scared
of, -- you know at one time I thought they would call me an Indian
and they did. I'm half-breed and so they call me an Indian. Now
they changed my name "Rural," (indisc.). You live in (indisc.),
your a "Urban."
CHAIRMAN GREEN: I'm an urban, okay.
MR. HUNTINGTON: You're not a white man no more, you're an urban.
We live with this rural concept. When I first got on the board,
I'd say 14 or 15 members on that board at that time, we made
regulations and promulgated reservations for everybody in Alaska,
Fish Board and Game Board together. We always recognized that
little fellow out there in the Bush. When the regulations
pertaining to him, increased his bag limit, longer seasons for the
people living in those area. We took care of those rural people
that -- then the federal law came in of course, and they demand a
rural. Before the McDowell thing, the Board of Game developed a
rural preference. Then the legislature apparently accepted it.
And then along comes old McDowell and pulls the rug out from us and
then we've been in a turmoil ever since. There is nothing that I
could see wrong with a rural preference. It all depends on how you
want to look at it. Is it discriminating? Or what is the fact?
I, myself, have been harvesting wildlife resources all my life to
raise my family. I have not harvested a moose in 14 years and I
live right where they're all around me, because other people have.
And we made promulgated laws and regulations on the Board of Game
that said there would be no want and waste of the wildlife
resources. We're doing that so big old millionaires have pack that
moose meat out and give it to us rural people. That's how I got my
moose meat. So we can take care of ourselves, we can make ...
(indisc.). You know there is nothing wrong with people in Alaska.
On the Boards of Game, and stuff like that, promulgating and making
regulations for Alaskans. If we don't accept some kind of a deal
where we can manage our own wildlife resources, we're (indisc.)
make us stick our hands out to the people in the Lower 48 to manage
our resources, who don't live right here in Alaska, who care less
about the resources, only the multi factor that it's their land.
We'll have nothing to say. I think that the price we pay for not
accepting a rural preference is too much. I never liked the rural
preference, but what I have we got? ... What part of evil is the
best (indisc.) right now. One is worse than the other, but what's
what? I say to let the values of our wildlife (indisc.), go the
hell is what I call it. Let it go if we don't manage that
resource. From time on out, this wildlife resource that I'm
talking about - the people of Alaska and all over really don't know
the value of that resource. They really don't, they never stop and
think how valuable is that resource. I wouldn't be here on this
table talking to you right now if it wasn't for the wildlife
resources of this country. They kept us from starving to death,
historically. And I've been feeding me for years and my family and
(indisc.). Right now, not only for food is this wildlife so good.
Okay, the economic and social values that it has for the future is
unbelievable when you're looking at the dollars and cents that
these things bring in. The Native organizations and some Natives
themselves get into the guiding business and the (Indisc.)
Corporation the last few years have been bringing in thousands of
dollars from the values of this economy. Where will that go when
the feds take over? They promised you all kinds of things, but
they could say, "Oh no, you can't hunt there no more, that's on
federal land and you stepped over the line." And that thing has
been born on federal land and all this stuff. Believe me, you
can't beat those guys. What did they do to the (indisc.) in Texas
not too long ago. They stole a bunch of land from them and say
guns or not - didn't do no good. Right now, the [Alaska] Native
Land Claims Settlement Act - I think we still owe them a bunch of
ground. To accept their idea of managing our wildlife resources,
we're leaving ourselves open for them to steel more land from us
here in Alaska. What did they do when the Native land claims were
settled? "You sign here or else we'll take more land from you Mr.
(Indisc.)." They did the kind of things that we're going to have
over our heads. With the management of our wildlife resources by
Alaska, for Alaskans, by the state of Alaska, that's what we need
to have. But any price we pay or let go this management of the
resources is too high a price to let it go. And we can live
together, we've shown we could live together. The common sense
factor in a human being shows that we can live together (indisc.).
We've got to respect the values of what people do. I don't care
what you do or what anybody does, but we have to respect those
values. And to say that we're going to accept the rural concept
because of (indisc.) and species and something (indisc.). We
cannot promulgate regulations that says fix everybody. The people
here in Southeast live so differently than I do on the Yukon
compared to what they live on the North Slope. You have to do it
area by area, whatever it is. The Board of Game promulgates those
regulations. They're experts at it. They're scientific engineers.
I worked (indisc.), I got a lot of faith in them people. But when
you put a issue like this or give it to the Board of Game to solve
the subsistence issue, it couldn't be done. We said it couldn't be
done at that time. I said 20 years ago...
CHAIRMAN GREEN: I'm going to have to ask you sum up. We've got
some other people, so if you could kind of summarize your comments.
MR. HUNTINGTON: Well I'm done. I said 20 years ago that we'd be
swimming in a bucket of (indisc.) with the subsistence issue, when
the feds were taking over, unsolved and that's where we're at
today.
CHAIRMAN GREEN: Are there any questions of Mr. Huntington?
REPRESENTATIVE PORTER: Very clear.
CHAIRMAN GREEN: Now if you have a strong feeling, I wish you'd let
us know.
MR. HUNTINGTON: I can talk all day on this.
CHAIRMAN GREEN: We enjoyed it, thank you very much sir. We have
Richard Wien now to talk about the constitutional amendment with
the lawsuit clause. We don't have Mr. Wien.
GARY BOOTH, MEMBER, ALASKANS TOGETHER: Mr. Chairman, (indisc.).
This is Gary Booth.
CHAIRMAN GREEN: He doesn't look a whole lot like Mr. Wien, but I
do recognize him.
Number 0244
MR. BOOTH: Mr. Chairman, you recognize me, I'm sure. (Indisc.) a
little for Richard today and I'm sorry that he's not here today.
But Mr. Chairman, and members of the committee, I thanks for the
opportunity to say a few words today. I just got involved with
Alaskans Together a few days ago - about a week ago. And I can see
why I have, if I look at that map over there, and I see this we
thought out in the early 70s, and some of you young puppies here at
the table didn't see that or you didn't see it in the late 70s when
the antiquities took over a whole lot of those purple lands on
there. That's kind of scary to see another hundred and four
million acres that may come under the leadership of the federal
government. I support this group in you efforts to try and get the
resolution to this. We take it to the people for a vote...
TAPE 98-40, SIDE B
Number 0001
MR. BOOTH CONTINUED: ...and minerals and oil and gas. What you've
seen happen over the last 15 years is most of that effort has been
geared towards state lands and it's been geared toward Native lands
- that's the private lands of Alaska. And I think if you want to
see the continued development of that, if you want to try and find
a way to keep control of your own resources. This is not a Native
or a non-Native issue. It's, in my estimation, it's an access
issue and it's a control issue. And I believe that very strongly
now that the Alaskans Together want to work with you and the
legislature to try and get a resolve to this -- try and get it as
"a political" as we can to get it done. There is a time frame and
we all know that and I think if we can kind of put aside the little
fine details that can get resolved at a later time, but let's
address the issue that's in front of us. We've heard a lot of
really good small issues today, and there are big issues which are
small in the light of the time frame we've got to get to. What
Richard wanted to say was that -- what I was told to kind of pass
along was that the constitutional amendment - if included the
lawsuit clause, if that proceeded and the lawsuit was successful,
everything we're talking about is complete moot and we all know
that. And I think that's the primary issue the he wanted to kind
of make sure that on the record that kind of got put forth. Thanks
for the opportunity to say a few words and I hope that I have an
opportunity to come down and talk to you some more because I think
that it's an issue that really needs to get done.
Number 0071
CHAIRMAN GREEN: Did he go so far as to any prognostications that
-- essentially there is kind of a three legged stool in that
lawsuit of whether one or more of those or all three might have a
reasonable chance, because as you have told if we're successful in
all three of those issues then all of this effort is not, but that
- there is always a chance you might not get that.
MR. BOOTH: Mr. Chairman, I'm not the one to answer that so I
can't...
CHAIRMAN GREEN: Okay.
MR. BOOTH: But I can get the answer for you and I will.
CHAIRMAN GREEN: Well, it's not that important. I mean we'll have
other ... legal minds look at that issue but...
MR. BOOTH: Yes, you have one coming up behind me so.
CHAIRMAN GREEN: Alright. Okay, Representative Croft, did you have
a question?
Number 0097
REPRESENTATIVE CROFT: Just very briefly, we're in the same
situation, Mr. Booth, because it's a ... not a mandatory
constitutional amendment. It's an optional, so things change in
the legal framework. We can do whatever we want after that. Is
that...
MR. BOOTH: Well I think in the leg -- Representative Croft, I
think the legal framework and how the interpretation of that is,
I'll leave that to the lawyers to do it. I'm not the one that can
give an answer to that specifically.
CHAIRMAN GREEN: Gary, thank you very much. That gets us to Martin
Pihl who will talk about the resource development impacted with the
federal plan.
MR. JANSEN: Mr. Chairman.
CHAIRMAN GREEN: We got another change. Alright.
MR. JANSEN: Mr. Pihl had to catch an airplane, asked me to present
his written testimony in the interest of time.
CHAIRMAN GREEN: Great Jim, just...
MR. JANSEN: I wish that he....
CHAIRMAN GREEN: Do you have one to speak from? You want us to
make another copy?
Number 0135
MR. JANSEN: No, I'd just like to just say a couple of quick words.
I know you're behind schedule. Mr. Pihl spent his lifetime with
Ketchikan Pulp. Probably as an abused an industry as anywhere in
the state, and he would have been nearly as colorful as Mr.
Huntington about his views of the federal government taking over.
But the point he wanted to make for our group was that so often we
look at the subsistence issue and the risks of federal takeover as
being talking about our game - the importance of hunting, fishing,
but equally as important is what that would do businesses that rely
on resource development in this state. And I think you all
understand that so I'm not going to elaborate in the interest of
time. But that would have been his message.
CHAIRMAN GREEN: Did he by chance talk to you - this "A" here just
scares the thunder out of us - could shut areas off for oil of the
-- was his thought then that if the federal government took over
operations because of the sensitive nature of the environment, they
then would interpret something that would preclude any exploration
and development?
MR. JANSEN: Absolutely.
CHAIRMAN GREEN: Okay.
MR. JANSEN: Oil, mining, timber, absolutely.
UNIDENTIFIED SPEAKER: Access.
CHAIRMAN GREEN: Access, yes. Are there any questions? Thank you
very much. Mary Nordale, it's always a pleasure to have you
testify or just to chat with you so you're going to talk about some
legislative options.
Number 0190
MARY NORDALE: Thank you Mr. Chairman. I -- We're getting to the
point where we're saying the same things over and over again. I
would like to emphasize a couple of points that Charlie Cole made
and that Sidney Huntington made. And one is that the time has come
to comply with ANILCA. The Alaska Supreme Court said, "We cannot
grant any kind of a preference under the existing language of the
constitution." So in order to grant a rural preference for
subsistence, we must amend the constitution. ANILCA says there
must be a rural preference or the federal government will take over
management of fish and game on its lands. And I think that it's
quite clear from what both Charlie and Sidney Huntington have said
is that it doesn't mean just on federal lands, it means on state
land, and it also means land management. Beyond just fish and game
it means land management. So in effect, if we don't get that
constitutional amendment, we will have lost our own state
sovereignty. We will be a government in exile because sovereignty
is intimately bound up with the ability to manage our land
resources - land and water resources. Now in terms of what we can
do legislatively, I think it's quite clear that while the earlier
legislation that granted the rural subsistence priority, which the
Alaska Supreme Court threw out, wasn't perfect. It was capable of
being engineered, from time to time, to meet the perceived
inequities - the perceived difficulties and it left the discrete
management decisions with the Boards of Fish and Game. That is the
preferred system, it works and there should be no reason to change
that. But on the other hand, as we look down stream and we see, as
Sidney Huntington said, there are opportunities for creating and
economy out in the Bush areas, in the rural areas that is not shall
we say old style. We need to deal with that as well and we need to
open up the entire management of our fish and game to participation
by all participants in Alaska, urban, rural, whatever. We need to
bring everybody into it and we can do it, but we can do it under
the kind of system we had adopted 40 years ago and we have not yet
seen a better system. I would urge you most strenuously to start
with a constitutional amendment and then tweak our existing
statutes so that they meet what is required to retain our
sovereignty and our management of our resources.
CHAIRMAN GREEN: I would presume that ... all of the prior
testimony, as well as yours, in thinking that we're going to have
to have a constitutional change would also embody the thought that
if we do that on some sort of quid pro quo that we could then
extract something, as much as we could possibly get, from the
horrors of ANILCA, so that we could modify that to comply with us,
certainly well as we could modify our constitution to comply with
them.
Number 0404
MS. NORDALE: Hopes brings eternal in the human heart, Mr.
Chairman.
CHAIRMAN GREEN: Yes, bless your heart.
MS. NORDALE: And I ... think it's quite possible for our
delegation to be effective in making some necessary amendments to
ANILCA after we have indicated that we are willing to grant the
rural priority. Prior to that, I don't think we have any chance,
what so ever, of Congress addressing that issue. We assuredly will
not have that opportunity, or our delegation will not have that
opportunity before December 1, 1998, and that is the day of
reckoning. And that is the day that if we give up our right to
manage fish and game throughout the state, we will have given up
merely every fundamental right that is important and necessary to
the continuance of this state.
CHAIRMAN GREEN: I have just one other one and then apparently
Representative Berkowitz does too, but...
REPRESENTATIVE BERKOWITZ: Once today, Mr. Chair.
CHAIRMAN GREEN: That's right, just not too bad and not completely,
just part of it. That's kind of an in-house thing. If -- you
brought up a point that I hadn't thought about, I'm not sure that
the other members had, that, if I heard you correctly, that there
are perhaps in the Bush area some potential for not just sustenance
as consumption, but perhaps other things that could be -- my mind
flashed to pinks in a pouch or something like that. Is that what
you also had?
MS. NORDALE: Well I think Sidney mentioned guiding as being an
occupation that is an appropriate occupation in that area. I think
that that, obviously if you're going to grant a rural subsistence
priority that under the definitions, both existing and proposed,
constrain certain activities. But beyond that, there are
opportunities to develop guiding ... whether it's with camera, gun,
whatever, there are opportunities for lodges, there are
opportunities for all kinds of recreational tourist type activities
that naturally fall. But if we can't control that, those
opportunities are going to be as ephemeral as the clouds in the
sky, although they're pretty persistent right now.
CHAIRMAN GREEN: Representative Porter.
Number 0445
REPRESENTATIVE PORTER: Thank you. Mary, is it your view that we
would have to make a constitutional amendment that specifically
says, "rural preference?"
MS. NORDALE: No, and ... frankly, I think that rural, the word
"rural" in the constitutional amendment would be a mistake. I've
read the proposal of the task force, which takes about place of
residence, yes, and that gives a flexibility that is consistent
with the other language of the constitution, which basically set
out fundamental principles on which legislation could be based to
expand and define what "place of residence" means. And I think
that that is the way to go. If you get it rural, then what you've
got is a future of unending litigation over each tiny area, which
says, "Well we're rural," and somebody else says, "No you're not,"
and so it goes to the courts, and we do this thousands of times.
CHAIRMAN GREEN: Follow-up? Representative Porter.
REPRESENTATIVE PORTER: The -- prior to our problem with our
constitution and our supreme court's decisions, the statutory
framework basically had what it is that I think we're coming around
to...
TAPE 98-41, SIDE A
Number 0001
REPRESENTATIVE PORTER CONTINUED: ... basically fit with ANILCA's
intent.
MS. NORDALE: I think that the proposal by the task force, that
says, "place of residence," complies with ANILCA. Okay. It's
obviously is going to have to be defined in statute, and I think
that if we talk about place of residence as being adjacent to the
resource or ... near the resource - whatever, that too will comply
with ANILCA. But we have to be able to make a distinction, in
terms of priority, as to place of residence.
CHAIRMAN GREEN: Thank you, yes, Representative Croft.
REPRESENTATIVE CROFT: Question on that point. If we say "rural"
in the amendment, "may distinguish between rural and urban users,"
or something, then rural becomes something for the supreme court to
interpret. It becomes -- and then it could be conflicts between
what they think we mean by rural in our constitution and what
ANILCA means. But if we say "place of residence," and then we
define it in statute, we preserve the flexibility on a statutory
rather than on a judicial decision based...
MS. NORDALE: Right, right. And I -- well to my mind, my
recollections of the statehood battle, there is absolutely nothing
more essential than retaining that flexibility and that - to
respond to conditions as they change, as the state grows and
develops.
CHAIRMAN GREEN: Representative Berkowitz.
Number 163
REPRESENTATIVE BERKOWITZ: There is one of the great ironies of
people who are opposed to a constitutional amendment is they seem
to be saying on the one hand, "We're not going to cave in to the
federal requirements, but we want them to take over management of
all of our fish and game." And it strikes me as being
contradictory.
MS. NORDALE: Yeah, and I think that ... that sort of -- I don't
mean to demean what they're saying, but really ... you have a
tendency to say, "Well if you're not going to play way, I'm going
to take my ball and go home." And the -- and the way I say that is
really not correct and doesn't give the coloration to their
concerns, but I think that primarily, they have no understanding of
the fact that federal management of Alaska's fish and game
resources is disaster. It's disaster politically, it's disaster to
the state, and it's disaster to the resource. There is no
question, in my mind, that if we went into a federal management
scheme that was required to give a rural subsistence priority, that
that would be the only criterion on which the federal government
would base it's management. And what would happen to the kind of
management that the state has been working on for the last 50
years, and that is try to build the resource to try to get
sustained yield, to get all these other principles built in and to
protect the various species as they rise and fall, in terms of
their own populations. The feds aren't going to respond to that.
CHAIRMAN GREEN: Well I think you make an excellent point because
it appears that the current Administration looks almost with
destain at Alaska and, as they have in other areas in western
states. And we need to maintain as much control as we absolutely
can.
MS. NORDALE: I suggest to you, Mr. Chairman, that this is no
different from what it was 10, 20, 30, 40, 50, 60, 70, 80, a 100
years ago. It's the same thing. It's a - it's the Alaska chip and
if you're going to play that chip, why not.
CHAIRMAN GREEN: Sure, and it's very effective. Are there any
other questions? Yes, Representative...
Number 0345
REPRESENTATIVE CROFT: Thank you Mr. Chairman. Just on the last
point on the taking my ball and going home, it seems to be more
like saying, "If you won't play by my rules, I'm going to give you
all my toys and then go home."
MS. NORDALE: Well, you have a good point. I think you're
illustration is perhaps more to the point than mine.
REPRESENTATIVE PORTER: The problem is we're home.
CHAIRMAN GREEN: That's right.
MS. NORDALE: We are us.
CHAIRMAN GREEN: We are us, (indisc.). Alright, thank you very
much. And apparently, according to everybody's plan, Mr. Bob
Penney, who has graciously stood on -- I guess you're still there.
Are you Bob?
Number 0379
MR. PENNEY: You bet, I've heard every word Mr. Chairman.
CHAIRMAN GREEN: Alright. The ball is in your court now.
MR. PENNEY: Let me go as quickly as I possibly can sir.
CHAIRMAN GREEN: Alright.
MR. PENNEY: We said in our letter to you that we set the
legislative by ... July 1st, we hope you would make a decision on
this issue and the reason I personally picked that date is this,
that after that and into the primary, unless this issue is settled
and the feds are kept out, and that's our bottom line, I think
you're going to have the most divisive, political upheaval in the
primary this year over this issue that I've ever seen in almost 50
years of living in the state the territory. I think that's going
to happen. So we encourage all of you to please bring this issue
to a closure and what is the legal way to keep to feds out. If you
look at ... the calendar, Mr. Chairman, you see that about 100 days
from today. Now I ask each one of you, when you put your makeup on
in the morning, or you shave, whatever, would you please count how
many days left you've got to make a decision and keep the feds out.
I'm going to ask Jim Jensen - Jansen, if he will, to give you a
copy of the list of the board members that are on Alaskans
Together. I'd like to have you look at it and see the people that
are a part of our group and where they're from. They're from all
over the state. In all my years, Joe, I think it's the strongest
move that I've ever seen together on any issue I've ever seen. And
a lot of you know how many issues I've been involved in. Now the
average tenure of people in Alaska on that board is 41 years. Over
half of us were here and voted for statehood, and that's why we're
together today. We're scared of seeing those days come back and
that's driving every one of them. I'm going to go very quickly, if
I can Mr. Chairman, to the person that asked a question ... of
Charlie Cole as the statehood pact was broken, and that was not the
point, that's not the case. Those of you that were in the forum on
December 15th, will recall Senator Stevens had an aid bring him the
statehood pact. From that statehood pact, he read the fact that
all the critters and the fish, et cetera, that were on federal
lands were wards of the federal land. Now the statehood pact did
not give us control of fish and game, as Ted said that day. That
was given to us by the secretary after we proved that we could take
control them. So the feds said, "Tell you what state of Alaska,
while you're managing your critters and fish, why don't you take
over the management of all the fish and critters on our federal
lands too so you can do it together." And they did that. It
worked well until 1980, until somebody in Congress said, "Well you
know what, the people that live on those federal lands we're going
to give priority to harvest for subsistence to them." And they
made it a federal law. Now the state of Alaska legislature came
along and said, "Well you know what, we got to comply with that."
So they did. So from 1980 to 1989, we could play by giving
priority to those people that lived in rural for harvest during
times of shortage. The McDowell decision turned that over. It's
a very narrow point that the McDowell decision turned over, and
that's what we're talking about putting back into the law today.
It worked all those times, it works now and it's a very minor
thing. If you have time, I'll touch base on the fact that we've
always managed, before statehood, during statehood, today, by state
statute, since 1978 by state law, priority has always been given to
harvest in rural for subsistence. The ... Board of Fish does. You
and I don't have subsistence rights in urban. You only have it in
rural. It's always been there. All this is going to do is take
that state statute and covert it basically to a constitutional
amendment. And I think that, number one, is the most important
one. Next point, Chief Porter, did you see a letter I sent you on
March 13th in which we touched on needs and area? And I think I
covered it very clearly. I didn't tell you in that letter, but the
two page part that came on fish and wildlife came from a retired
person. I believe that person answered most all the questions you
had there. And I'd love it, Chief, if you'd take a chance at that,
I won't take up your time now, to come back and answer me and tell
me where I was not right on some of those points. Ladies and
gentlemen, ANILCA is a compromise. What you have before you in the
task force plan is a compromise. I don't like all of it, Theo
Matthews doesn't. I don't know anybody that does. It must be a
good law because nobody likes it. But what it is, is it's a heck
of lot better than what we have. Has anybody stopped to think
where we would be today if Ted hadn't taken the rope, tied it
around this lifesaver called ANILCA, hung it onto an appropriation
bill and threw it out in the Congress and got it passed. You
wouldn't have an issue today. You wouldn't have these hearings.
There wouldn't be nothing to talk about. You wouldn't have this
biggest divisive issue before you. Point out one thing, the feds
would have already taken over. All the horror stories we're
talking about would be going on today. Now what do think you'd do
to get rid of them. Those amendment proposal in ANILCA would be
torn up and thrown away. So we have an unusual situation today
that we have a law, which I submit to you Mr. Chairman, there is
always a compromise. We have a compromise the other side has
already agreed to. Now we don't have to like what they've done.
We don't have to totally concur with them, but at the same time,
they've said what they'll do. Now, in my opinion, you got a 100
days to tweak it. Tweak it whatever you can because Senator
Murkowski is (indisc.). Senator Stevens tells us he doesn't think
there is much in the way of change. But given change -- but please
give as much as you possibly can for this place. On the statehood
question, on the lawsuit, I sent a letter to the Speaker on
December 30, proposing a amendment that would take place (indisc.)
in the event that this whole thing was found unconstitutional, it
could be thrown out. I have that research by Senator Stevens'
office during the month of November. And the lady in his office
can answer your questions. She has researched it. It's legal
federal law, it's legal to every state law. You can add that
amendment to the constitutional amendment, proposed one, saying
that in the event the court revealed - this thing is thrown out of
court. And I support that 100 percent myself. I think that's a
heck of a way to go. I won't go thorough anymore because I know
it's been long. I thank you all for all the people that you
allowed us to come down and wished they could have started sooner,
because they could have been there because you've got a lot of
people who took time out of their lives for one reason. Not for
money, because they're interest in seeing (indisc.) solution. And
for myself and all the rest that's on the board, thank you for your
time.
CHAIRMAN GREEN: Thank you Bob, Representative Porter has a
question or a comment.
Number 0864
REPRESENTATIVE PORTER: Just a comment. Bob, I got an airplane
just before this fax came in, and I just got off an airplane this
morning, so I'll be reading it.
MR. PENNEY: Chief, I've known you for 35 years. I just asked you
look at it and read it and tell me if it doesn't answer all the
things you and I talked about.
REPRESENTATIVE PORTER: Will do.
MR. PENNEY: Thank you.
CHAIRMAN GREEN: Well Bob, I want to thank you for the committee
and I certainly want to thank you people that have stayed around
here now well beyond the time that we should have been through. I
know that you had to sacrifice to come down here in person to
testify, but I truly do appreciate it. I know how much that means
then to what you've been saying. If you're willing to take that
much time, you really do stand by what you're saying. And I
personally find this as really refreshing because I'm looking at
people who I know, individually, have differences of opinion on a
lot of issues, and yet you're willing to come down here, in mass,
as a group, together, and that's personally what I would like to
see us do from this committee as a group. And if we can get with
the administration for the Native community, solve this thing as
Alaskans and ... completely bipartisan that I think we can do it.
I really do, I think we can do it and I think we can get
cooperation too, but then maybe I'm a Pollyanna. But I do
appreciate your efforts. Thank you. Any other comments? [HB 406
was held over for further consideration].
ADJOURNMENT
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 4:04 p.m.
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