Legislature(1997 - 1998)
03/20/1998 01:05 PM House JUD
| Audio | Topic |
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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 20, 1998
1:05 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Norman Rokeberg
OTHER HOUSE MEMBERS PRESENT
Representative William K. (Bill) Williams
COMMITTEE CALENDAR
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
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)
3/06/98 2539 (H) REFERRED TO JUDICIARY
2/12/98 (H) JUD RPT CS(JUD) NT 1DP 1DNP 2NR 2AM
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
3/18/98 (H) MINUTE(JUD)
3/20/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ROD ARNO, President
Alaska Outdoor Council
P.O. Box 2790
Palmer, Alaska 99645
Telephone: (907) 376-2913
POSITION STATEMENT: Testified on HB 406.
DICK BISHOP, Member
Board of Directors
Alaska Outdoor Council
P.O. Box 73902
Fairbanks, Alaska 99707
Telephone: (907) 455-6191
POSITION STATEMENT: Testified on HB 406.
CARL ROSIER, President
Territorial Sportsmen Incorporated
P.O. Box 20761
Juneau, Alaska 99802
Telephone: (907) 789-2399
POSITION STATEMENT: Testified on HB 406.
ACTION NARRATIVE
TAPE 98-42, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:05 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter and James.
Representatives Croft and Berkowitz arrived at 1:07 p.m and 1:08
p.m., respectively.
HB 406 - SUBSISTENCE USES OF FISH AND GAME
CHAIRMAN GREEN said the committee would hear HB 406, "An Act
relating to subsistence uses of fish and game."
Number 0072
ROD ARNO, President, Alaska Outdoor Council (AOC), came before the
committee to testify. He said he appreciates the committee's
efforts in trying to stop a federal takeover of game management.
He stated, "It's a hoax for the public to pretend that Alaska will
secure any kind of permanent authority to manage fish and wildlife
on federal public lands in Alaska by amending the Alaska
constitution to permit discrimination among Alaska residents. An
amendment providing a rural preference to public assets to fish and
game resources will give Alaska limited authority to manage fish
and wildlife within federally-specified guidelines. But that
authority will at all times ... remain revocable by Congress and
subject to decisions of federal courts. Only a decision by the
U.S. Supreme Court will regain state subsistence management of fish
and game.
MR. ARNO stated: "Title VIII of Alaska National Interest Lands
Conservation Act (ANILCA) is a flawed law. First, it's not in the
best interest of conservation. The idea to move on to wildlife
habitat and get a priority to live off the land is contrary to
wildlife conservation. Biological risk data tabulated by the
Alaska Department of Fish and Game are these two volumes right
here. Let me just read you one example, and this example has to do
with Dall sheep in a number of game management [units]. This is
game management 24 and it says, 'confusion, biological risk, and
decreased subsistence opportunity.' It says the great difference
between state and federal bag limits begs explanation. The nine-
month season for a bag limit of three sheep in Gates of the Arctic
National Park is the most liberal of the North American continent.
This regulation infers that sheep are either hyper-abundant or in
need of population reduction. Neither is the case. Sheep
population throughout the Brooks Range have declined notably since
the '90s and are at modern historic lows. This federal subsistence
hunts carries a high probability of further reducing sheep
populations in the area.' This is just one of many examples of
conservation concerns."
Number 0340
MR. ARNO continued, "There's an increase in the request for
reconsideration on federal subsistence regulations put in by the
Department of Fish and Game. And each year that the federal
subsistence board has operated these reconsiderations have
increased. Under ANILCA as it is now, under ANILCA as it's been
amended by [Senator] Stevens, there's nothing that will
substantially change the way that the federal government is
managing the game side of fish and game.
"Second, Title VIII of ANILCA causes divisiveness and
discrimination among people who share similar interests. Title
VIII of ANILCA, in the findings, says that Native cultural
existence, non-Native social existence, needs to be preserved in
their relationship to harvest of wild game. Right now, in rural
areas of Alaska, over 54 percent are non-Native. In the urban area
just in Anchorage, 20 percent of the Native population in the
entire state lives in Anchorage. And if Congress has decided that
if you're a Native in a rural area, you have cultural existence,
and if you're non-Native the best you can have is social existence,
then what do the Natives that live in the urban area have as an
existence in regard to wildlife harvest? And, again, requests for
reconsideration of federal subsistence regulations shows clearly
the discrimination. Here's an example of one, this is up in ANWAR,
the refuge, Red Sheep/Cairn Creek drainages where they've excluded
non-local rural residents and the state has said, 'The state's
legitimate interest in continued opportunities for a diversity of
uses of resident wildlife is unnecessarily restricted by this
regulation. Finally, this regulation impairs ... the state's
ability to fulfill its obligations under the Public Trust
Doctrine.' And, again, these are all submitted by the Department
of Fish and Game."
Number 0497
MR. ARNO concluded, "Of all the House committees, the Judiciary
should understand best that substantial changes to Title VIII of
ANILCA must be negotiated to assure sound conservation of natural
resources and to put an end to the divisiveness among Alaska's
people."
MR. ARNO thanked the committee for allowing the concerns of the
AOC's members to be heard. The AOC hopes to have the opportunity
to help the legislature craft a workable solution to Alaska's
subsistence management issue.
Number 0528
CHAIRMAN GREEN referred to Mr. Arno's testimony regarding ANILCA,
and Senator Stevens' amendments. He asked if we get certain
changes to ANILCA, would it have a direct bearing on the AOC's
attitude.
MR. ARNO asked if he is referring to state lands.
CHAIRMAN GREEN replied state and/or federal lands.
MR. ARNO responded, "Absolutely." He said the AOC, from the
beginning, has been concerned with the flawed public law in Title
VIII of ANILCA. And no matter what changes the AOC makes to
conform to that law, if they can't make the substantial changes
that are necessary for the concerns they have, then that's the
impasse.
Number 0591
REPRESENTATIVE CON BUNDE referred to the appeals by the Alaska
Department of Fish and Game to the federal subsistence board, and
asked if he knows the number that have been granted or overturned.
MR. ARNO stated he does not have that number. The appeals he
referred to are the areas he hunts in and follows personally, and
none of those have been overturned.
REPRESENTATIVE BUNDE asked if the nine-month sheep season still
exists.
MR. ARNO replied, "Correct."
REPRESENTATIVE BUNDE stated he is concerned with divisiveness. He
said they can please one side or they can please the other, but he
has a difficult time seeing how they can please both. He asked how
fighting for the urban majority would reduce the divisiveness and
anxiety in rural Alaska.
MR. ARNO indicated he has been a guide-outfitter on public lands in
rural areas for 33, years and the only time he seen a conflict is
when he comes to town. The conflict doesn't seem to exist on the
land where the hunting activities are occurring. Mr. Arno stated,
"As far as what we could do to reach a consensus and assure rural
people, Natives particularly, that their interests and concerns
would be legitimized to where they wouldn't have to feel that, I
think by looking at a broader spectrum of time that we are
concerned with today - and not looking to population increases that
we're seeing in rural areas, and as those things became clearer to
people now in rural areas, the realization that all you have to do
is move onto that land base and you qualify - that they would feel
and see in time such increase in use that their opportunities would
diminish respectively to that."
MR. ARNO continued, "The way you do that, to not have that happen,
is to have bag limit seasons. You manage wildlife as the state did
prior to ANILCA, and you manage for abundance. And the only way
that I think we will get past the divisiveness is realizing that a
unified management under the state that is allowed to manage for
abundance, unlike the federal mandate is today, that we can then go
ahead and have that resource available on a regulated basis."
Number 0821
REPRESENTATIVE ETHAN BERKOWITZ referred to a question he had asked
Mr. Arno in a previous committee meeting regarding limited entry
permits and said in that context Mr. Arno indicated he thought
that kind of discrimination was acceptable because people have the
opportunity to buy a limited entry permit. Representative
Berkowitz stated he has raised the question of whether people have
the opportunity to move rural, and that Mr. Arno was going to
explore what the difference was and if the AOC had a position on
that distinction.
MR. ARNO stated conservation is the difference. It's not in the
best interest of conservation, which is the number one concern to
the AOC. And for people to be able to continually move onto
wilderness and wildlife habitat and then gain an opportunistic,
live-off-the-land privilege to that is not in the best interest of
conservation, unlike the limited entry that was in the best
interest of conservation.
REPRESENTATIVE BERKOWITZ said they were discussing that in the
context of equal protection and Mr. Arno found that limited entry
was acceptable within the context of equal protection because
someone had an opportunity to purchase a limited entry permit. He
stated he had suggested it and what he heard was that people had an
opportunity to move rural; therefore, it would somewhat be
analogous as far as equal protection is concerned.
MR. ARNO replied the difference is a priority based on your zip
code.
Number 0972
REPRESENTATIVE BERKOWITZ asked for clarification that Mr. Arno is
not basing an objection to a rural preference on an equal
protection argument merely on a conservation argument.
MR. ARNO answered in the negative, stating it's discriminatory
based solely on where you live. That is discrimination.
REPRESENTATIVE BERKOWITZ said he's not sure he understands the
distinction. He stated, "There's discrimination as far as me being
able to fish. I don't possess a limited entry permit. That's a
discrimination. Is that fair to say?"
MR. ARNO replied no.
REPRESENTATIVE BERKOWITZ stated if he can buy a permit it would not
be discriminatory. He then asked, "Can I not move rural?"
MR. ARNO responded that he could.
REPRESENTATIVE BERKOWITZ asked whether that same question of being
able to get around discrimination would not apply in this context.
MR. ARNO replied no.
REPRESENTATIVE BERKOWITZ asked if he would explain the distinction
again.
Number 1006
MR. ARNO replied, "Your ability to purchase something is not
discrimination. If you so choose to work hard enough to get the
money, borrow the money, you can buy it. You'll agree with that.
That is not discriminatory. You have the opportunity to purchase.
But to have a rural preference to the harvest of fish and game
resources that are a public asset on public lands, you need to
physically move and get a zip code in an area designated rural."
CHAIRMAN GREEN stated as he understands it, if you live anywhere in
the state you can buy a limited entry permit, but you can't live
anywhere in the state and get a priority under subsistence.
REPRESENTATIVE BERKOWITZ indicated a person can buy a house in
rural Alaska from anywhere in the state.
CHAIRMAN GREEN replied, "That's true." But he thinks what Mr. Arno
is saying is that by doing that, that person is set apart from
those who live within the city, as opposed to a person can live
anywhere and still buy a limited entry permit.
Number 1070
REPRESENTATIVE BRIAN PORTER asked what would be the best
relationship the legislature and federal government could end up
with in relation to state management versus some degree of federal
oversight.
MR. ARNO said with constructive changes to Title VIII of ANILCA and
working from that base, he feels they could easily, in statute,
come up with a program that would do exactly what the intent of
ANILCA was, which was to provide that resource to people who
depended on it and people who had traditionally used it. The thing
that prevents them from doing that is federal management, as they
have actively stepped in. The AOC feels that the judicial
enforcement has been overstepped with the administrative
enforcement, and by stopping this process they can go ahead and
manage the resource to accommodate rural subsistence users.
Number 1183
REPRESENTATIVE PORTER stated, "I would guess that if we are able to
put out anything, it will certainly have a caveat that whatever we
do is null and void, if this lawsuit should be one that would
answer all of those questions. Setting the lawsuit aside, from a
political solution would it be acceptable if that were the only
remaining alternative, from your point of view, to have basically
within ANILCA and our own statutes the agreement that the state
would manage fish and game within the state on federal land, and
that there would be a deference to our management? Not anything
further than that, recognizing that, and there isn't total
agreement on this, but I think more folks than not believe that the
property clause does leave some residual federal oversight that
we're never going to get rid of. Would what I've generally
described there be generally acceptable?"
MR. ARNO replied, "The history of trying to get changes to ANILCA,
you're well aware of what hoops that we've jumped through and where
we have been stopped repeatedly trying to go through the judicial
system on that. That the breach of faith is such a wide gap, and
particularly with the public law that Senator Stevens got in this
last November, that for us to go back and say, okay, we're going
to, in good faith, make an agreement that capitulate with the hopes
that you'll change in the future. I don't have that faith
personally and as I see here in the findings that Stevens got in,
the whole argument of ... the State v. Babbitt, that in the
findings, 801(b)(4) as Stevens has got, in accordance with Title
VIII of this Act, the Secretary of Interior is required to manage
fish and wildlife for subsistence uses on all public lands in
Alaska because of the state's failure to provide a law for rural
preference. This is the whole argument, and I believe that once
the state of Alaska had made a compromise that the voters agreed on
and accepted this that we would have less of a standing on the
judicial side because they go, look, you've already passed this
through. That's one piece. The second piece is, as we have seen
and was written by Judge Holland, there were a number of reasons
why the Alaska District Court did not pursue moving the "McDowell
3," the Olson, through the courts. And Judge Holland specifically
says the reason for that is because of the hope that this would be
taken care of through legislation. Once we ... capitulate and say,
okay, we'll do it your way, I think ... to get standing would be
much harder and that our argument would be weakened by the
amendments here."
REPRESENTATIVE PORTER commented he didn't think anything that would
come out of here would not have a proviso that the provision Mr.
Arno just read came out of ANILCA.
Number 1395
REPRESENTATIVE JEANETTE JAMES noted Mr. Arno has spent a lot of
time in the rural areas, so he understands what happens there. She
said the court and Senator Murkowski have indicated that we could
define that need without a constitutional amendment. She asked Mr.
Arno if there is a possibility of doing that without creating it as
a welfare system or a huge administrative chore, and if there is a
simple way the legislature could define that need in rural Alaska
and put it into the statutes without a constitutional amendment.
MR. ARNO replied, "Yes, absolutely." He stated he has worked with
a number of people in his capacity with the AOC that have spent
years working with management for the state, that have the
knowledge and expertise to go ahead.
REPRESENTATIVE JAMES asked Mr. Arno if he would agree that whatever
the legislature passes statutorily should provide a framework and
that the implementation should be determined by the Board of
Fisheries and Board of Game.
MR. ARNO replied in the affirmative, explaining that is something
the state is set up to handle quite well and could do a more than
adequate job, given that opportunity, without the constraints that
he has seen the Department of Fish and Game try to deal with
regarding what happened under the federal subsistence board regime.
REPRESENTATIVE JAMES asked Mr. Arno if he believes, with his
experience working with and observing the Alaska Department of Fish
and Game, that if the Department of Fish and Game were in charge of
this issue totally, that both non-Native and Native subsistence
users and nonsubsistence users would all be winners.
MR. ARNO responded, "Absolutely; yes, I would."
Number 1527
REPRESENTATIVE ERIC CROFT asked if HB 406 is not the solution to
subsistence, what the AOC would propose.
MR. ARNO responded the AOC has not drafted a complete solution of
their own to date; however, the solution would have to contain
numerous changes to the flawed law of ANILCA before they could
proceed. He said as they look back on the AOC's position on
Governor Hickel's subsistence group, they believe that may have
been the closest to a really workable solution that the AOC would
be able to come up with because of continued public pressure.
"That is a piece to look at that allowed for the intent, as I see
ANILCA, to be implemented," he added.
REPRESENTATIVE CROFT asked what the major components of AOC's
solution would be.
MR. ARNO informed the committee that everyone who lived in a town
with a population of less than 2,500 automatically qualified for
subsistence. He stated that there was a varying degree that as the
population of the town increased, more stringent requirements would
have to be met in order to qualify for that priority use.
Number 1630
REPRESENTATIVE CROFT asked if a person living in a town under 2,500
automatically qualified, whether that would be discrimination by
zip code.
MR. ARNO said the problem is a flaw in Title VIII of ANILCA. He
stated, "You're continually asking me what kind of a hoop could we
jump through to make small changes that would make a flawed law
work." He said the AOC does not have a scheme that would make a
flawed law work.
REPRESENTATIVE CROFT said he doesn't want the AOC to make a flawed
law work. He suggested setting aside the political realities and
instead discuss what the perfect management system would be for
Alaska. He is interested in what the AOC thinks is the appropriate
preference for subsistence uses.
MR. ARNO stated the best example, for conversation's sake and to
eliminate discrimination, is a system that has been put together
under democracy, that everyone is considered equal, that we manage
for conservation on a system that encompasses both federal and
state lands. He said the best system we will need for the next
millennium, to provide for conservation, is a unified system and
access determined on bag limits and seasons.
REPRESENTATIVE CROFT asked if local people would have a preference
over people outside the location.
MR. ARNO referred to the Hickel version, stating there was the same
standard of lifestyle that would allow people who resided in rural/
urban areas who lived a subsistence lifestyle to have a priority.
Number 1779
REPRESENTATIVE CROFT referred to Mr. Arno's earlier testimony,
stating as he understood it, Mr. Arno wanted to avoid federal court
oversight over subsistence on federal land. He said he has not
been able to find anything that indicates the federal government
has said they are going to give up federal court oversight over
federal lands.
MR. ARNO explained the AOC is opposed to administrative oversight,
which is what Judge Holland gave the Department of Interior with a
fill-the-gap authority. He stated, "When you look at the two cases
that went through the courts prior to his takeover, the judicial
oversight, if judicial oversight followed an ANILCA that was
liveable, there wouldn't be any problem. To have to ask the
federal government not to give judicial oversight isn't the
direction--we're forced into that position, but that isn't the
direction we need to go at all. What we need is a public law that
is reasonable to administer by the state, and if those concerns
then fell out, there wouldn't be the problem with the judicial
oversight."
Number 1852
REPRESENTATIVE BERKOWITZ referred to the Hickel plan Mr. Arno
discussed earlier with Representative Croft. He indicated he lives
in Anchorage and under the Hickel plan he wouldn't qualify for
subsistence, based on his lifestyle. He asked if he would qualify
if he moved to a community with less than 2,500 people.
MR. ARNO informed the committee Dick Bishop will be testifying and
since he was on that panel, it would be more appropriate to ask him
those types of questions.
REPRESENTATIVE BERKOWITZ asked Mr. Arno if it was fair to say he
does not like the consequences of federal management.
MR. ARNO answered in the affirmative.
REPRESENTATIVE BERKOWITZ then asked if he believes it's necessary
to enact a constitutional amendment to protect state management of
fish and game.
MR. ARNO replied a constitutional amendment will not assure state
management of fish and game.
REPRESENTATIVE BERKOWITZ said that was not what he asked. He said
the state has a number of options: they can do nothing; they can
attempt a statutory fix; or they can do a constitutional amendment.
But whatever they do has to in some way comply with the wishes of
the federal government as far as ANILCA is concerned. He asked if
the state had an appropriately worded constitutional amendment,
could we get through ANILCA and maintain state management?
MR. ARNO replied no.
REPRESENTATIVE BERKOWITZ asked Mr. Arno if he feels the state has
made some sort of deal with the federal government so that the
state is in charge of fish and game management.
MR. ARNO answered, "Sure."
Number 2015
REPRESENTATIVE BERKOWITZ said the reason he asked that is because
he's looking at the Alaska Native Claims Settlement Act (ANCSA)
conference report where it seems clear to him the federal
government indicated that they were going to protect Native
subsistence. He said if it's a deal that benefits us or if it's a
deal that we're required to carry out, it's still something we have
to do.
MR. ARNO stated, "If it means the concerns to conservation that
we're seeing by carrying that out, if it means discrimination and
you want to stick with that deal, that's fine." He said the AOC is
testifying that they would like to change the parameters that they
are having to make that deal under.
REPRESENTATIVE BERKOWITZ remarked, "I understand that you don't
like ANILCA, but ANILCA is the law of the land, but there's been
nothing to prevent you from coming forward with an alternative
solution, and I'd be happy to entertain it if you could produce
it."
Number 2034
REPRESENTATIVE BUNDE referred to the AOC's position on the sale of
subsistence-caught fish and game. He stated it's a difficult
concept for him to deal with. As he understands it, some court
decisions would allow the sale of $15,000-17,000 worth of seafood,
and he is concerned that it would, through other court settlements,
broaden out to game. He is very concerned about regressing to the
18th Century in market hunting again. He asked if his view is
incorrect and also asked what the AOC's view is on this.
MR. ARNO said the AOC is concerned that there is then the
definition; the state definition improved on that. That is not the
lifestyle that ANILCA is really asking us to ensure. Mr. Arno said
it was their concern in the Knowles task force on the proxy hunting
that that would essentially do that same thing if someone had the
advantage of hunting more, and they were so inclined, that it would
be closer to market hunting than what has been available under the
past laws.
REPRESENTATIVE BUNDE pointed out that people in the Anchorage area
shoot beluga whales on shares and they accept a contribution for
gas to run the boat and then share the meat. To him, that sounds
like selling. He asked if shooting a beluga whale and selling
$15,000 worth of meat would be specifically prohibited by the
Marine Mammals Protection Act.
MR. ARNO said he did not know.
REPRESENTATIVE BUNDE stated that he interprets subsistence as
meaning it's required or you die. With that in mind, he feels
subsistence does not exist in Alaska because the state would not
allow a person to starve to death if they were in need of food. He
stated he prefers to describe the activity of subsistence as
supplemental or personal use. He asked what the AOC's position is
on this.
MR. ARNO said, to date, the AOC is not opposed to subsistence.
They agree with RurAL CAP [Rural Alaska Community Action Program]
that it's a basic human right. The definition of subsistence is
one of where your population or your family's well-being or death
depended on the fluctuations in wildlife populations. He stated
that's not the case, that we have an artificial base, that nobody
is going to starve off of it, and it's only going to increase
population. "With that point to say that, yes, it's a basic human
right to harvest wild food stocks for consumption, the AOC would
agree. But there again on the definition of subsistence, if your
population isn't tied into a cycle of decline as the cycle of the
resource declines, then we have a false system, and I'm sure that
that's a lot of why we're in the quagmire on subsistence that we
are."
Number 2234
REPRESENTATIVE JAMES referred to Representative Berkowitz's
testimony regarding the conference report. She asked if he would
agree that the intent of ANILCA was to protect a Native subsistence
lifestyle.
MR. ARNO replied absolutely. He asked, "What do you think the
chances were that if 95 percent were non-Native, that the federal
land managers would have encouraged Congress to allow that group of
people to have the opportunity to hunt opportunistically on federal
public lands? It wouldn't have happened."
REPRESENTATIVE JAMES asked: If the ANILCA conference report would
have been worded 'rural Native' instead of 'rural Native and non-
Native' would we be having this problem today?
MR. ARNO said he cannot answer that one.
Number 2279
REPRESENTATIVE JAMES indicated the federal government can make
Indian law and they can give Indians other things than what others
receive. She noted that Indian is not a good term because much of
the Native population in our state are Eskimo or Aleut.
MR. ARNO replied to his knowledge, he would agree.
REPRESENTATIVE JAMES concluded by stating we probably wouldn't have
the lawsuit in the first place, so we wouldn't be having this
problem.
Number 2301
REPRESENTATIVE CROFT referred to Representative Bunde's earlier
testimony interpreting subsistence as meaning "it's required or you
die." He stated, in that context, no one in this state is in that
condition now; therefore, there's no subsistence in this state now.
MR. ARNO said in his personal opinion he would agree.
REPRESENTATIVE CROFT stated under that definition of subsistence,
no one qualifies. He then asked, "If there's no subsistence
defined as 'required or you die;' is there any aspect of the
broader idea of subsistence that's worth protecting?"
MR. ARNO replied in the affirmative. He indicated subsistence is
something we need to protect for all humans, on a limited basis for
those who aren't living in that habitat, so they have the
opportunity to make that connection. It's extremely important for
Native people to continue to have that opportunity and that
connection for environmental reasons, if nothing else.
CHAIRMAN GREEN thanked Mr. Arno for his testimony and called on the
next witness to testify.
Number 2419
DICK BISHOP, Member, Board of Directors, Alaska Outdoor Council,
came before the committee to testify. He commended the committee's
efforts to address this issue. He briefed the committee with his
background, explaining that 25 years ago he became very concerned
with the prospect of ANILCA being formulated and passed, and that
subsistence was in dire straits, with a distinct possibility of
being eliminated from substantial portions of Alaska.
TAPE 98-42, SIDE B
Number 0001
MR. BISHOP continued, "[Begins mid-speech]...extensive national
conservation system units in the state. And it was also very
clear, and I was involved, as a matter of fact, with that group
that they had absolutely no sympathy for the continuation of the
public's opportunity to hunt, fish, trap, and make other uses of
natural resources on the public lands, and that if there was any
way, they would ensure that those kinds of uses would be prohibited
in these substantial areas." He said the principal coalition of
organizations advocating that viewpoint, whose first demand on
Congress in the passage of ANILCA was that all the conservation
system unit lands be classified instantly as wilderness, was called
the Alaska Coalition and, to his embarrassment, he chaired the
first session of that coalition. He noted the coalition consisted
of approximately eight people in Fairbanks, with representatives
from the Wilderness Society, Sierra Club, Audubon Society, Alaska
Conservation Society, et cetera. Mr. Bishop said it was clear to
him that those organizations were determined, in the sense of
public uses of renewal natural resources, to constrain that to the
maximum extent possible.
Number 0073
MR. BISHOP said as a result, he became very in sense with the need
to protect these kinds of opportunities. It became apparent to him
that subsistence, the lifestyle of depending on natural resources
for one's livelihood, was in jeopardy. He noted it became very
apparent to him in an area he was very familiar with, which is the
north side of Denali National Park. He told the committee he was
a biologist in McGrath from 1969-71 and was well-acquainted with
what was going on in that area. He was concerned that those kinds
of uses would be eliminated by a proposal for the expansion of
Denali National Park. Therefore, he documented and produced a
review of the level and kinds of human uses of natural resources in
that area. Fortunately, a similar effort was made in other areas
and one of the results indicated there was some provision made for
subsistence. As it turned out, there was a great effort by the
Alaska Federation of Natives (AFN) to include some measure of
protection in ANILCA because they saw the very same risk at hand
and they felt it would affect their constituents.
MR. BISHOP informed the committee the reason there's a rural
priority, instead of what preceded it in state law of just an
Alaskan priority, was that the council and a representative for the
AFN, Don Mitchell, met with representatives from the state and
federal governments and said, "Look, we're either going to have
rural in this law or we're going to do our best to kill it." He
indicated that was a flat statement in a small meeting he attended
in Washington, D.C. Mr. Bishop noted the previous state law in
1978 did have a subsistence priority, but no rural provision.
Number 0194
MR. BISHOP stated that he continues to be a strong advocate of
subsistence lifestyles and cannot support the idea of a rural
subsistence priority because the federal law is not adequate in
regard to sound conservation and discrimination.
MR. BISHOP then addressed rural priority. He referred to the
McDowell case, noting the Alaska Supreme Court found that the rural
priority was unconstitutional under our existing constitution, and
that to require people to move to rural areas exceeded the
standards of territorial discrimination.
MR. BISHOP commented he was pleased to hear that people who
advocate the rural priority felt it was an important opportunity to
be able to harvest fish and game for food. He said the AOC agrees
strongly with that, and they have supported subsistence lifestyles
consistently. It's the matter and the manner of the priority that
has caused them grief. He said he has often heard that ANCSA
required a conference report and expressed the expectation that
both the state and federal governments had an obligation to
accommodate subsistence needs of Alaska Natives, in particular in
that context of ANCSA. He continued, "But it didn't say that it
had to be on the basis of a rural priority. It didn't say that it
had to be for Natives only. It didn't say it had to be
discriminatory. And it didn't say that it did not imply that it
need be a 'no-closed-season, no bag limit,' as it turned out to be
under ANILCA." Mr. Bishop stated there is a vast difference
between adequately accommodating a legitimate need and doing it at
the extreme expense of the rest of the population of the state.
Number 0320
MR. BISHOP stated that he wanted to comment on a couple of myths.
One is that the priority under the federal law only comes into play
during times of shortage. He said that simply is not true, and it
is one of the few points that the AFN and the AOC agree on with
regard to subsistence. To fortify that myth and to try to provide
a glimpse of how things might work in federal court, he referred to
the Bobby case, which was a case in federal court against the state
for not adequately providing for subsistence in the case of a man
who shot a moose near Lime Village in 1989. It was very shortly
before the Alaska Supreme Court threw out the rural priority in
state law. Mr. Bishop said the upshot of it was that the man had
taken the moose outside of the established state season. It was
taken to court by Alaska Legal Services, and they argued that it
was not consistent with the customary and traditional requirements
in the federal law to which the state was bound at that time,
because at that time the state still had the rural priority in law
and was in conformity with federal law. He stated that if one
looks at that case, one will get some idea of how it might work if
we get back in conformity with federal court law and have federal
oversight.
Number 0407
MR. BISHOP pointed out that Judge Holland looked at the case and
determined it was not wrong for the man to have done that according
to the law, that it was consistent with customary and traditional
use, and that customary and traditional use amounted to whatever
had been done in the collective past by the people in the area
using that resource. He said "in the collective past" includes a
long time. What that meant was that the federal law provides for
a no-closed-season, no-bag-limit scenario unless there are two
provisions, unless it's counterproductive to the continuation of
subsistence or to sound conservation. Mr. Bishop commented that
sounds pretty good but the difficulty is that it's very easy to
prove customary and traditional use because it's based principally
on oral history. To prove there is a conservation risk to a
population, the standard of proof is very different. A court
demands that a scientific study be done to establish the risk to
the population. He concluded that was how the federal law worked
then.
Number 0459
MR. BISHOP continued his testimony, noting that under Senator
Stevens' amendments, that would be modified somewhat because it has
some language about giving deference to the state agencies'
decisions and a deference similar to that given to federal
agencies. He told the committee he has a review of that language
and read the following: "The proposed amendment to ANILCA in
Section 807 provides no more than a thin sheet of protection from
the cold reality of federal court oversight of state fish and game
management and penetrating federal judicial scrutiny." He
indicated if there is federal court oversight, there's a potential
for decision like the Bobby case, and that means that the best-laid
plans of the state fish and game management for the conservation,
use, and allocation of fish or wildlife could very easily be
overturned.
Number 0528
MR. BISHOP expressed that there is a wide-spread assumption that
the federal government can do anything it wants on federal lands,
including manage fish and game. He stated that it is very clear to
him that unless Congress has specifically provided federal agencies
the authority to regulate those assets that are federal property
under the property clause, they do not automatically have the
authority to manage assets on federal lands. He stated that
reference is made regularly to the Kleppe case in New Mexico,
regarding whether the federal government did overrule management
actions of the state involved on the basis of the property clause.
The difference there was Congress had provided that specific
authority. He noted the circumstances are not the same here.
Congress in ANILCA did not give that authority, in this case, for
the management of fish and game to the federal government. In
looking at the committee reports, the history of ANILCA,
progressively the authority of the Secretary of the Interior to
manage fish and game was reduced and ultimately eliminated. What
was left was the authority to assure there was a subsistence
priority on federal lands. There was no authority provided to the
Secretary to manage fish and game. Mr. Bishop explained that issue
was a question in State v. Babbitt which needed to be addressed.
He stated it was an injustice to Alaskans collectively when the
Governor dismissed that case with prejudice. He said that is his
view, which he feels is consistent with the AOC's view of the
question of the authority of the federal government to manage
(indisc.) because it's federal land. That's just simply not the
case, regardless of the Babbitt case.
Number 0654
MR. BISHOP advised the committee that one of the contentions AOC
has made is the myth that by conforming to federal law, we will get
state management back. He said it's really an oxymoron. If we
conform to federal law, we get federal law. Mr. Bishop gave an
example of a federal requirement: The federal government requires
that, in making funds available for the building of highways, the
state must build to certain specifications. If the state does not
comply, they withhold the money. Hence, there is not the threat of
the federal government taking over the responsibility for building
highways if the state does not conform to that. In this case,
there is the threat of the federal government coming in to take
over fish and game management, whether or not they have the legal
right, if the state doesn't conform to federal law.
MR. BISHOP stated that in trying to put together a state law that
does the job, one of the critical issues is how does it relate to
the management of fisheries and how do we deal with the federal
court decision on Katie John. He has heard that Senator Stevens'
amendments addressed that, which will eliminate the concerns with
Katie John. He indicated there's nothing in Senator Stevens'
amendments that he can see that does that. He concluded, "As a
matter of fact, there's seeming acquiescence to the decisions by
the courts in Katie John, in Alaska v. Babbitt, in the findings
that are added in the amendments of Senator Stevens' to ANILCA. So
I don't think that problem has been solved at all, and that's of
great concern."
Number 0769
MR. BISHOP pointed out Attorney General Bruce Botelho said that we
need a rural priority because it's the right thing to do. He
informed the committee he sent them an opinion piece which was
published in the Anchorage newspaper, indicating he could not
believe Mr. Botelho, the principal law authority of the state
government, could be saying that it's the right thing to do, when
in 1989 the Alaska Supreme Court said it's the wrong thing to do.
Mr. Bishop said it's the wrong thing to do because it discriminates
incorrectly among people's interests and it is a very crude attempt
to meet the benefit provided under the constitution to all Alaskans
being able to take fish and game for food. He noted the court
cited that as one of the important elements of the law, which was
attempting to provide for the opportunity to take food.
Number 0852
MR. BISHOP said the other comment that Mr. Botelho made that he
found objectionable and unsubstantiated was there was a fundamental
difference in how rural and urban people gather food. He said that
simply is not the case. He noted he sent the committee information
which reflected that merchandisers recognize perfectly well that
what drives the rural economy is money. He indicated there are
literally dozens of catalogues that go to every rural box holder in
Alaska. He pointed out that he checked with one distributor based
in Anchorage and was told they mail over 44,000 "Bush shoppers"
every month to rural Alaska. He said people in rural Alaska are on
the cash economy. There's absolutely no question that the use of
fish and game for them is very important to their livelihood. He
said the AOC's view is there is not a fundamental difference in how
rural and urban people gather food.
Number 0950
MR. BISHOP referred to Representative Croft's earlier question
asking what the AOC would do. What the AOC did at that time was
agree to the idea that it would be acceptable to have a subsistence
priority in state law if it were based on how one lives, not where
one lives. In that proposed law was a set of criteria which would
apply to everyone in Alaska regardless of where they lived. He
indicated the same standards would apply, which consisted of a
level and variety of use and a degree of effort that would be
required to qualify. The difference in treatment of people had to
do with what was presumed about whether they qualified. People who
lived in areas considered rural were presumed to qualify, but it
was a rebuttable presumption. He said according to the proposed
state law, not everyone could continue to qualify just because of
where they live, so they began to look at how people live. For
example, if a person did not have a hunting license, it would not
be a very good indication that that person is really dependent on
those resources; therefore, they would no longer qualify. Mr.
Bishop reiterated that it's a rebuttable presumption.
Number 1061
MR. BISHOP pointed out that middle-size communities with a
population of 2,500 to 7,000 people would fill out an affidavit
indicating they qualify. Again, he said that is rebuttable. He
said people who live in Fairbanks or downtown Anchorage would have
to provide an affidavit certifying they did meet those
requirements. He noted the key to that kind of approach was that
the same standard applied to all Alaskans if they wished to qualify
for subsistence, which was based on how they live and not where
they live. Mr. Bishop stated it was the opinion of the former
Attorney General Charlie Cole and others that it did not require a
constitutional amendment. He indicated it was an acceptable
distinction under the constitution.
Number 1112
MR. BISHOP concluded his testimony, stating subsistence lifestyles
are extremely valuable. He noted the Alaska Supreme Court said
that it is a tremendous value, and given that fact and the interest
people have who wish to pursue those kinds of lifestyles, the AOC
maintains that it is not proper to restrict subsistence on the
basis of an arbitrary and discriminatory standard such as zip code
or any other closed-class-type criterion. In conclusion, he said
there has to be a sound management scheme to conserve the fish and
game resources of Alaska.
Number 1167
CHAIRMAN GREEN thanked Mr. Bishop for his testimony. He asked, "If
there were caveats to ANILCA that were tied to whatever was
required to the state to get the caveat, which probably would be
something like a constitutional amendment, that the issue in Katie
John would be removed from an ANILCA requirement, could you see
that there would be some merit, then, because it may be that the
state could end up actually overseeing all of Alaska, both land and
navigable waters, and we bypass a lot of stigma that's associated
with ANILCA now? Do you think a) that that would get us where we
want to go and b) do you think it's even possible?"
MR. BISHOP replied the agreement would be if the authority for
management of reserved waters which is a result of the Katie John,
were removed, that it would be reasonable to amend the constitution
or make a concession to the requirement of the federal law in order
to ...
CHAIRMAN GREEN interjected, "There would be two or three issues.
Those are the first that come to mind because of what you have said
in testimony that we would require, as part of the quid pro quo ...
that we would amend the constitution and agree, not necessarily to
operate the way the federal government says, but the way ... we
have seen fit to operate and enhance the stocks that that would be
worth a constitutional amendment then because we could operate the
state of Alaska like it should be operated."
Number 1308
MR. BISHOP replied that he thinks that would be part of the answer,
but he would be reluctant to say it would wash away all their
troubles. Even if that were done, they would still have a
provision for federal court oversight of the quality of the state
provision for a subsistence priority. He thinks they would still
have a big problem. He said, "We might even have a problem in
fisheries, and we certainly would have a problem in terrestrial
management. So I think we might have to go a little further than
that."
CHAIRMAN GREEN stated that if we look at harvests since the state
took over, the harvest numbers have dramatically increased. He
asked Mr. Bishop if he feels it's because we have better ways to
harvest or better management providing more "critters" to harvest.
MR. BISHOP asked if he was referring to anything in particular.
CHAIRMAN GREEN noted that generally harvest levels are up,
especially in fishing.
MR. BISHOP stated that is true of fisheries in particular. He told
the committee he read a historic review of harvests in Cook Inlet
which indicated there were instances where there was a tremendous
increase in the take, which he feels was due to better management
and better equipment. He stated that it is also clear with regard
to salmon runs in general that, under state management, the salmon
populations have recovered almost from the brink of depletion,
noting it was incredible how small the harvests of salmon were at
the time of statehood. Mr. Bishop said that has not been the case
with moose and caribou harvests in many parts of the state, which
have gone up dramatically. He noted there are many areas that have
had depressed populations, and there are others such as the Western
Arctic where they are very high. He indicated he does not think
anyone has a good idea of what the harvest levels are currently.
Number 1531
REPRESENTATIVE PORTER asked Mr. Bishop if he feels the state could
prevail in the lawsuit filed by legislative counsel that would, to
some degree, remove the requirement to have a subsistence
preference. He stated, as he understands Mr. Bishop's position,
that the ultimate goal that could be supported by the AOC would be
no subsistence preference.
MR. BISHOP stated that the AOC does not believe a subsistence
priority is necessary in law to properly accommodate people who
rely on the use of fish and game for their livelihood.
REPRESENTATIVE PORTER asked if he would agree the only way to
achieve that would be through the courts.
MR. BISHOP stated that is probably true, but he does not know what
the outcome would be.
REPRESENTATIVE PORTER stated, "There is no doubt in my mind if we
were able to reach consensus, meaning the legislature, on anything
that it would certainly have as a caveat that if the lawsuit
prevailed, that whatever was allowed by the lawsuit that was
qualified under the statues would drop off, become null and void."
He continued, "Short of the Hammond plan, the system that was in
effect prior to McDowell and all that that provided a -- basically
the kind of thing I think everybody is talking about that had the
additional caveat of proximity to the resources, one of the
qualifications which was struck by the Kenaitze case, would that
that would be a reasonable middle ground?"
MR. BISHOP asked, "That being a proximity clause?"
Number 1726
REPRESENTATIVE PORTER replied, "Be it the whole 'shebang' that we
had in existence previously. I mean, with our definition of
customary and traditional that seems to be a little bit better by
the Stevens' amendment in here. And our definition of trade and
barter, those kinds of things corrected. But I guess the only
concession to what we'd all like to see is that proximity to
resource is something that should be considered when establishing
subsistence preferences during shortages."
MR. BISHOP indicated after considerable argument, the council
concluded it was much more important, if there were to be a
priority extended to some Alaskans, that it be extended on the
basis of how they live, not where they live. Mr. Bishop clarified
that the criteria should reflect a commitment, either voluntary or
involuntary, to a subsistence lifestyle that demands the reliance
and extensive use of fish and game resources to persist in that
lifestyle. He said it was "based partly on the McDowell case,
partly on what our reading of the constitution was, partly on a
collective judgement of what it was that people seemed to be
wanting to get at." He indicated a priority based on how one lives
reflected better the need, if there's going to be a priority, than
anything else. He added that the Alaska Supreme Court also said a
priority that was based on individual criteria that related to a
person's lifestyle would be less invasive of the common use
provision of the Alaska constitution, as opposed to a geographic
distinction.
Number 1903
REPRESENTATIVE PORTER commented he does not disagree with anything
Mr. Bishop has said, but it is his opinion that if the legislature
does not come forth with something that meets the intent of a local
preference, they have failed. He asked Mr. Bishop what he feels
would be the least offensive provision that would meet that rural
preference.
MR. BISHOP stated from his perspective, the priority would have to
be related to a place that had few alternatives and where clearly
the majority of people relied on fish and game for food.
Number 2143
REPRESENTATIVE CROFT asked Mr. Bishop if, in his opinion, there
would be very few of those bona fide places left.
MR. BISHOP replied that's correct.
REPRESENTATIVE CROFT said even under what Representative Porter was
talking about, they wouldn't have many places to define. He
referred to Representative Porter's question about local
preference, stating that he wants to understand why local proximity
preference doesn't make some sense. Representative Croft gave an
example, "If we take your criteria and analyze everybody across the
state and find out who is truly dependent not for 100 percent, but
for a substantial amount of fish and game resources, and we find
somebody in Wrangell who relies on the fisheries there for their
subsistence, and there's somebody in Kotzebue who relies on the
game resources there for their resources, why does it make any
sense to have that Wrangell person have a subsistence right for the
Kotzebue herd and vice versa? Why wouldn't it make more sense to
say, on those criteria, you have only a right to the things that
you have customarily and traditionally used? And we're going to do
it by area rather than somebody having some - what strikes me as an
odd right - to fly 3,000 miles to subsist." He asked, in that
context, why doesn't locale make a lot of sense as a criteria?
MR. BISHOP replied that he believes in that sense, it does. If,
however, in that same context, the law operated as the federal law
presently does, which is that all other uses must be eliminated
before customary and traditional uses can be restricted beyond what
has been customary and traditional, then it doesn't make very much
sense. He explained what that means is until they've assured those
subsistence users in Wrangell that their customary and traditional
uses have been met, other people may not be allowed to either hunt
or fish. He said, on the one side, it has merit; however, there's
no sense in someone flying across the state to hunt for
subsistence, although there are people in the Bush who have
airplanes who will argue that they routinely use them as a tool in
their subsistence gathering.
Number 2378
REPRESENTATIVE PORTER stated that he was interested in Mr. Bishop's
testimony that the current subsistence preference by ANILCA is a
subsistence preference regardless of shortage. He indicated he
does not disagree with that but asked, "Would we not - do you think
from your experience - be on safe ground in trying to meet their
conditions by saying that it will only be in our law at a time of
shortage, given that there is an adequate abundance for people's
needs sans a shortage?"
MR. BISHOP said he did not understand the question.
REPRESENTATIVE PORTER stated that he thought Mr. Bishop was
concerned that ANILCA would provide a subsistence preference on
public lands regardless of shortage.
MR. BISHOP said, "I'd like to turn it around and put it this way,
that ANILCA demands a priority [ends mid-speech because of tape
change]."
TAPE 98-43, SIDE A
Number 0001
MR. BISHOP continued, "... not the level of need and not whether
there's a shortage or enough for somebody else besides subsistence
users to use." He said the standard is providing for customary and
traditional subsistence use. Under the federal law as presently
constituted, that has to be done regardless of a shortage or not.
REPRESENTATIVE PORTER said if we narrowed down what customary and
traditional meant in terms of volume, that it was just for personal
use for sustenance, we would be pretty close to personal use, and
subsistence use would be taking the same volume of fish and
wildlife so that a subsistence preference would be unnecessary
unless there was a shortage.
Number 0103
CHAIRMAN GREEN stated that unfortunately we've plowed up some
snakes when we've dealt with the Department of Fish and Game
because their definition of subsistence is not the same definition
or concept that he has. What they consider the cut-off for
subsistence is more what he would consider personal use. This is
a lower, closer-to-the-sustainable-yield area that gets into their
Tier II. He said we've got a nomenclature problem that we're going
to have to work out, which may be causing some of our problems.
REPRESENTATIVE BERKOWITZ said he wants to clear up a misconception
he feels Mr. Bishop and others have. He said McDowell was not a
equal protection case. It was ruled on an equal access basis,
which is a big distinction in the law. He referred to his earlier
question regarding limited entry, stating that he asked it in an
equal protection mode, not in an equal access mode, which he feels
should have been answered on an equal protection basis.
Representative Berkowitz said, "This is, in a way, a directive to
where I want to go here, which is your assumptions about the 2,500
- Hickel task force - where there's essentially, as I understood
it, your rough description, three tiers: presumed in if you're
under 2,500; arguably in if you're 2,500-7,000; and presumed out if
above 7,000." He asked if that was roughly correct.
Number 0253
MR. BISHOP replied that that's roughly correct, explaining that a
person is presumed in for both of the lower categories,
regrettably.
REPRESENTATIVE BERKOWITZ said in those cases distinctions are being
made, albeit about presumptions based on where a person lives.
MR. BISHOP replied that is correct.
REPRESENTATIVE BERKOWITZ stated, "It seems to me that you - having
accepted distinctions based on place of residence - would be
accepting of some sort of overarching, say, a constitutional
amendment that referenced place of residence and then have a
statutory scheme that incorporated the concerns that you just
articulated?"
MR. BISHOP indicated he understands the distinction between the
common use and equal protection in McDowell. However, in terms of
the approach Representative Berkowitz just mentioned, the critical
point was what the standard would be for some preference in the use
of fish and game in order for it to be fair to all Alaskans in
terms of their opportunity to qualify under the law. The same
standard for qualifying would apply regardless of where a person
lives. The presumption about people in outlying areas qualifying
was to make it easier to administer that in recognition that a
higher proportion of people, for example, in a rural area would be
likely to qualify than people in an urban area. And the people in
the in-between-population-level centers would be in between also in
terms of the relative proportions that are likely to qualify. Mr.
Bishop pointed out there is wording in the proposed law about it
being administratively efficient. He said that was the idea about
it, but the basic question of conforming to the opportunity to use
fish and game under the common use provision of the constitution
was addressed by stating the same standard based on how one lives
regardless of where one lives.
Number 0441
REPRESENTATIVE BERKOWITZ asked, given that there is some necessity
for a constitutional amendment recognizing place of residence,
whether Mr. Bishop would accept a constitutional amendment
articulating the possibility of place of residence followed by a
statutory scheme with the three tiers.
MR. BISHOP responded that he certainly would not. He said he's
been around this "game" for at least 20 years and he would have to
admit to a certain level of skepticism about follow-through on some
things. He said looking at what was supposed to follow through
under ANILCA and what actually did, there's not much ground for
optimism unless things are carefully spelled out. He stated, in
his opinion, that it is agreeing to a closed-class priority based
on residency with no assurance of how it would be administered.
Number 0614
REPRESENTATIVE BUNDE asked Mr. Bishop what his view and the AOC's
view are on the Public Trust Doctrine and how it applies to the
challenges the state is facing.
MR. BISHOP stated that there is a distinction between the public
trust and the Public Trust Doctrine. As he understands it, the
Public Trust Doctrine refers to things applied, and the public
trust refers to commonly-held resources that don't get damp. He
told the committee he feels the Public Trust Doctrine holds a great
deal of promise in terms of reinforcing the obligation of the state
to manage in the best interest of all Alaskans, for example, to
provide for things such as the common use and proper management of
those resources. He stated that there are numerous references in
decisions from the Alaska Supreme Court that strongly indicate that
the state of Alaska is the trustee holding in trust for the people
of the state renewable resources. It has some level of
responsibility to manage those responsibly and to provide the
opportunity to use them that are in the best interest of the
collective public. Mr. Bishop said he is not sure how that would
be done, but the principle is there in his reading of the Alaska
Supreme Court determinations.
Number 0782
REPRESENTATIVE BUNDE asked, "If we were to amend the constitution
established in trying subsistence as to an important right, do you
see a spinoff or impact on other resource development?"
MR. BISHOP replied that he thinks it is a distinct possibility. He
stated that if you consider for a moment some of the debates over
developmental projects without any particular provision in state
law, there is often a great public debate over the appropriateness
of those developments in relation to their potential impact on
subsistence. Regardless of any change in law, the potential is
already there. He also noted that in the federal law there is a
provision in ANILCA that no use of federal lands can be undertaken
unless due consideration is given to its potential impact on
subsistence. Mr. Bishop gave an example: If someone wanted to put
in a road on federal property, they would be required to look at
that proposal with respect to its potential impact on subsistence,
and if it poses a significant detriment to subsistence, it probably
won't get approved. He said the question he has not been able to
get answered is if the state conforms to the federal law, to what
extent is the state obligated to support the same kind of
consideration as far as least-adverse impact on subsistence of
other land or resource uses.
REPRESENTATIVE BUNDE asked Mr. Bishop if places such as Sitka,
Kodiak and Bethel, which have paved airports and jet service, would
meet his description of rural.
MR. BISHOP said he would not consider those places rural.
Number 0955
REPRESENTATIVE CROFT commented that in his reading of the Public
Trust Doctrine, it means we should trust the public to vote on this
matter. He said he disagrees with the legal conclusions regarding
what it restricts or does not restrict. He stated he has heard
that the AOC's position that this is federal management through the
guides of the state and that they are not getting state management
back through the task force. It seems to him there's a fundamental
distinction between management, the day-to-day operation, and what
guiding principles they are managing by. In his opinion, they
would get management back under an agreed-upon set of principles.
He referred to Mr. Bishop's example of highway specifications,
stating, "We have state management of the highways, but they are
done according to the basic minimum federal standards, and that
seems to me to be substantially different from having to call
[Washington] D.C. to get my pothole fixed." He said it isn't
federal management of the highways because there are some minimum
federal specifications that must be met. He asked if he is missing
something on that distinction or whether it is that unimportant.
Number 1039
MR. BISHOP indicated that's exactly the point he is making, that it
is not federal management in that case, that the federal highway
department cannot say that a highway must be built to their
specifications or else they will build it. What they say is either
build the highway to the federal specifications or else they won't
get the money or they might be fined, for example. They don't
usurp the role of the state; that is the difference. The other
difference is that they're not talking about a common property
resource which is clearly spelled out to be the property of all of
the people of the state. He added, "If you are forced to operate
by a set of rules implemented by another entity, that for which
the objectives are decided by that other entity and the state
doesn't set the management objectives and so on how to get there,
then I don't think you have state management."
Number 1110
REPRESENTATIVE CROFT asked, "Don't you have management? You just
may object to some of the guiding principles, the highway
specifications, but you still have management, so the task force
plan would give us state management even if you disagree with some
of the guiding principles they put on."
MR. BISHOP gave an example, "I worked in a factory once setting up
boxes to put cans in and I managed the production of those boxes
because I had to set them up in a particular way and put them on
the conveyor belt and make sure the cans got in them. But the
rate, the kind of box, what goes in it, and so on was set by
management policy, and that was set by the guy upstairs, not by the
grunt working on the assembly line." And his perception of the
situation is if the state conforms to the federal law to manage
fish and game, then the state is the grunt working on the assembly
line, and the policy and purpose of the management, and the
direction and the rate of recovery of the salmon population, or the
conservation of the Western Arctic caribou herd, or the recovery of
the Forty Mile caribou herd will be set by someone else. He
concluded by stating, "The state will have little to say about that
and the federal government will say provide a subsistence priority
to rural people, if that's the way it goes, and that's it."
CHAIRMAN GREEN thanked Mr. Bishop for his testimony and said as the
committee deliberates this issue, they would like to call upon his
expertise.
MR. BISHOP said he would be pleased to do whatever he can.
CHAIRMAN GREEN called on Carl Rosier to testify next.
Number 1218
CARL ROSIER, President, Territorial Sportsmen Incorporated (TSI),
indicated they are a Juneau-based outdoor recreational organization
which has been active in fish and wildlife conservation issues
since 1947. They have approximately 2,000 members who reside
mostly in the Juneau-Douglas area. He pointed out he has
personally been involved with the management of Alaska's fish and
game resources since 1955, and he was last employed as commissioner
of the Department of Fish and Game under Governor Hickel from 1991-
1995. He said he is pleased that the committee is continuing to
wrestle with the subsistence issue under HB 406. He expressed that
the bill was a good start, but they had some problems with some of
the implementations of the bill. There were some good concepts,
which he feels continue to contribute to the knowledge which he
believes can be built upon to put together a fair bill for all of
the residents of Alaska.
MR. ROSIER said the TSI was quite concerned for a number of reasons
over the Governor's proposal developed by the subsistence task
force. He indicated that proposal, while requiring an amendment to
the state constitution provide a rural preference, did not and does
not return management of fish and game to the state. It merely
provides the state the authority to implement a federal system
under the scrutiny of the federal agencies, and ultimately the
federal courts, in the case of disputes. He said there is as much
art as there is science in the decision process in many cases of
the day-to-day management of these resources. He pointed out he
can speak with some experience because he worked for the National
Marine Fisheries Service from 1980-1991. He said he was employed
under a grant program for fisheries development. There was no
question in his mind that the grant funds were to go to recipients
within the state of Alaska, and they had to be spent on fishery
development. The fishery development policy that decided how that
money was to be spent did not come from within the state, but the
policy direction came from the Washington, D.C., level. Mr. Rosier
said, "We did not have the authority to do this at the region level
on this. There was a national interest thing that was involved in
'developing the fisheries conservation zone' out there. And while
we can take into consideration state views and this type of thing,
ultimately that policy decision was in fact developed at the
Washington, D.C., level, and it was handed down to the state. If
you want the money, this is what you're going to operate under."
Number 1411
MR. ROSIER continued, "I see basically this situation here in
spades with the situation that we're in at the present time, kind
of damned if we do, and damned if we don't on the question of
federal management on this." He expressed that what he sees
occurring is the federal government has a federal bureaucracy
that's already in place. He believes the current cost for federal
management on subsistence is approximately $10-15 million. He said
the state is faced with the possibility of federal management in
fisheries as of December 1, and feels federal agency involvement
will continue to grow. He said there aren't too many federal
entities willing to keep their fingers out of the decision process.
He said, "They have the authority; you've got to remember that
you're operating under a federal law, and it's a situation, at
least in my mind, where you can't have that situation in management
of fish and wildlife. It just simply does not work. You stand up,
you make your decisions based on the best information at hand on
this, and you better be right 51 percent of the time in terms of
making your management decisions out there." He said that is
responsibility and that's what accepted by the people put into the
field. If they don't put that responsibility on them, ultimately
the resource will suffer because of the compromises that occur.
The legislature can deal with compromise, but when making those
resource decisions out there, one can't do that. He stated it's
got to be one way or the other. They won't get that under a dual
system where the federal government is involved.
Number 1521
MR. ROSIER referred to documents he provided the committee which
outline the TSI's position on the work of the subsistence task
force. He indicated a legal document was prepared to answer the
question of federal court deference if the Governor's task force
proposal was adopted and the state came into compliance with
provisions of ANILCA. He said, "Although highly touted as the
protector of the state in the event of controversy arising under
the federal law, our legal analysis of the deference provisions
indicates very shortly that the state's right to manage receives
very limited protection with a great discretion afforded the
federal judges." He told the committee members he will provide
copies of the legal documents to them.
MR. ROSIER advised the committee the TSI has been actively involved
in subsistence and they have adopted a number of issues that would
guide them in their efforts to find a solution for subsistence,
which he reviewed briefly with the committee. He said the first
issue we need to look at is the conservation of the resources.
That has to be assured in any system that is brought forth on this
issue. He said the basic human rights of all Alaskans to take fish
and game for food must be protected. He noted that previous
legislatures have done a pretty good job of doing this. Under the
current state law there is an emergency-taking provision, which
allows people to take food under this provision. There is also a
proxy-taking provision, which gives people access to resources if
they are incapacitated or over a certain age. He commented that
the legislature has been sensitive to the idea that fish and
wildlife resources are there to be taken by people on a needs
basis. Beyond that, there are regulatory programs that are
provided for in Title 16 that sets up the provisions under which
these can be taken. He stated provisions are also available for
ceremonial-taking purposes.
Number 1677
MR. ROSIER said the TSI feels that the constitutional guarantees of
equal legal standing and common use of the resources must be
protected. He stated, "Ultimately, we recognize that we may
reluctantly be faced with some form of limited constitutional
amendment to narrow our preference to true subsistence users in
times of shortage. If this should occur, we would ask that there
must be a clear linkage with ANILCA changes along the lines of
those Representative Masek has provided for in HJR 21." He said he
felt she did a good job on that bill and those are the types of
ANILCA amendments the TSI feels would be necessarily tied to any
constitutional amendment.
MR. ROSIER indicated full state fish and game management on all
lands and waters must be restored free of federal oversight. He
said, "I think the key thing here is the provisions that we've had
before us to date lumps the state and private lands into federal
lands." He said the bottom line is that state and private lands
should be excluded from federal court oversight. Without this
provision, the state has no leverage in any future negotiations
with the federal government. In his view, we're out of business if
we capitulate and put state and private lands in the "hopper" with
the federal public lands.
Number 1775
MR. ROSIER said the TSI supports the full retention of current fish
and game management authorities and responsibilities exclusively by
the state of Alaska. Currently, the state averages 150-200 million
salmon catch per year which is the highest in the history of the
salmon industry. He pointed out that game populations are
scientifically managed and are in pretty good shape with the normal
ups and downs that go along with terrestrial animals. He stated
that the record is pretty clear that state management has come a
long ways from the miserable inheritance that we got in 1959 from
the federal government. Mr. Rosier stated it is not a program that
can be taken lightly and it has been very successful in his
estimation.
Number 1841
MR. ROSIER gave his final analysis, stating that the TSI believes
strongly that the people and the resources of Alaska will be far
better off under an unencumbered state management program, and this
should be everyone's goal. TSI also believes that whatever the
final solution arrived at by the legislature, if a constitutional
amendment is involved, state residents must be afforded the
information to determine if they are in or out prior to being asked
to vote on this issue. Mr. Rosier thanked the committee for the
opportunity to testify and indicated TSI stands ready to work with
the committee on any legislation regarding subsistence.
Number 1869
REPRESENTATIVE PORTER asked if the current provision in HB 406 that
provides the highest and best use for consumption would be
problematical for sport fishing and hunting and guided sport
fishing, et cetera.
MR. ROSIER said he is not sure that is really the situation or why
that concept is out there. He stated, "You can't manage resources
on the smallest stock at the end of the bay here on this." He said
there is a mixture out there and that's where the art comes in
because in management that's where one finds out that he or she
does not have all of the information and relies on the person in
the field to make those critical decisions. He said he would have
some problems with that concept.
CHAIRMAN GREEN asked, "Would it be possible if, for example, in an
area that might be called a subsistence area because of low yield
(indisc.) specific species, but because you can't manage on
discrete stock, that you could still manage on the abundance of the
others, but still maintain a subsistence harvest only on one
stock?"
MR. ROSIER replied there are techniques for doing that, depending
on the fisheries at that time. He indicated it has been done in
the past under the Board of Fisheries regulations.
REPRESENTATIVE BERKOWITZ asked what the term "equal legal standing"
means.
MR. ROSIER explained, in his view, that equal legal standing means
if a person goes before a judge, they have just as much right as
the person standing next to them, no matter what the color of their
skin or their ethnic background is. He said he does not feel he
has equal standing under the federal law in this case. [HB 406 was
held over.]
ADJOURNMENT
Number 2014
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 3:15 p.m.
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