Legislature(1997 - 1998)
04/06/1998 01:10 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
April 6, 1998
1:10 p.m.
MEMBERS PRESENT
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Joe Green, Chairman
OTHER HOUSE MEMBERS PRESENT
Representative Reggie Joule
Representative Albert Kookesh
Representative William K. (Bill) Williams
COMMITTEE CALENDAR
HOUSE BILL NO. 451
"An Act relating to assistive technology devices and mobility aids
for physically disabled persons."
- MOVED CSHB 451(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
- MOVED CSHB 406(JUD) OUT OF COMMITTEE
* HOUSE JOINT RESOLUTION NO. 66
Proposing amendments to the Constitution of the State of Alaska
relating to subsistence uses of fish and wildlife by residents; and
providing for an effective date and repeal of the subsistence
amendment.
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 451
SHORT TITLE: ASSISTIVE TECHNOLOGY & MOBILITY AIDS
SPONSOR(S): REPRESENTATIVES(S) GREEN, Davies, Berkowitz
Jrn-Date Jrn-Page Action
2/18/98 2361 (H) READ THE FIRST TIME - REFERRAL(S)
2/18/98 2361 (H) L&C, JUDICIARY
3/06/98 2552 (H) FIRST COSPONSOR: DAVIES
3/11/98 (H) L&C AT 3:15 PM CAPITOL 17
3/11/98 (H) MINUTE(L&C)
3/27/98 (H) JUD AT 1:00 PM CAPITOL 120
3/27/98 (H) MINUTE(JUD)
4/03/98 (H) JUD AT 1:00 PM CAPITOL 120
4/03/98 (H) MINUTE(JUD)
4/03/98 (H) L&C AT 3:15 PM CAPITOL 17
4/03/98 (H) MINUTE(L&C)
4/06/98 (H) JUD AT 1:00 PM CAPITOL 120
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
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
3/20/98 (H) MINUTE(JUD)
3/23/98 (H) JUD AT 1:00 PM CAPITOL 120
3/23/98 (H) MINUTE(JUD) (MTG CANCELLED)
3/25/98 (H) JUD AT 1:00 PM CAPITOL 120
3/25/98 (H) MINUTE(JUD)
3/27/98 (H) JUD AT 1:00 PM CAPITOL 120
3/27/98 (H) MINUTE(JUD)
3/28/98 (H) JUD AT 1:00 PM CAPITOL 120
3/28/98 (H) MINUTE(JUD)
3/30/98 (H) JUD AT 1:00 PM CAPITOL 120
3/30/98 (H) MINUTE(JUD)
3/31/98 (H) JUD AT 1:00 PM CAPITOL 120
3/31/98 (H) MINUTE(JUD) (MTG CANCELLED)
4/01/98 (H) JUD AT 1:00 PM CAPITOL 120
4/01/98 (H) MINUTE(JUD)
4/02/98 (H) JUD AT 1:00 PM CAPITOL 120
4/02/98 (H) MINUTE(JUD) (MTG CANCELLED)
4/02/98 (H) FIN AT 1:30 PM HOUSE FINANCE 519
4/03/98 (H) JUD AT 1:00 PM CAPITOL 120
4/03/98 (H) MINUTE(JUD)
4/03/98 (H) FIN AT 1:30 PM HOUSE FINANCE 519
4/06/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JEFFREY LOGAN, Legislative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-6841
POSITION STATEMENT: Presented CSHB 451(L&C) on behalf of sponsor.
ROBERT BRIGGS, Staff Attorney
Disability Law Center of Alaska
230 South Franklin, Number 209
Juneau, Alaska 99801
Telephone: (907) 586-1627
POSITION STATEMENT: Testified on CSHB 451(L&C); proposed
amendment.
PATRICK REINHART, Executive Director
Statewide Independent Living Council
Department of Education
1016 West 6th Avenue, Suite 102
Anchorage, Alaska 99501
Telephone: (907) 272-8244
POSITION STATEMENT: Testified in support of CSHB 451(L&C).
THEODORE POPELY, Legislative Assistant
to House and Senate Majority
Alaska State Legislature
Capitol Building, Room 208
Juneau, Alaska 99801
Telephone: (907) 465-3720
POSITION STATEMENT: Answered questions on CSHB 406(JUD).
RON SOMERVILLE, Contractor
to House and Senate Majority
4506 Robbie Road
Juneau, Alaska 99801
Telephone: (907) 463-3830
POSITION STATEMENT: Answered questions on CSHB 406(JUD).
WILLIAM MILLER
P.O. Box 2262
Dot Lake, Alaska 99737
Telephone: (907) 883-5138
POSITION STATEMENT: Testified on CSHB 406(JUD).
MARY C. PETE, Director
Division of Subsistence
Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 465-4147
POSITION STATEMENT: Answered questions on CSHB 406(JUD).
ACTION NARRATIVE
TAPE 98-56, SIDE A
Number 0001
VICE CHAIRMAN CON BUNDE called the House Judiciary Standing
Committee meeting to order at 1:10 p.m. Members present at the
call to order were Representatives Bunde, Porter, Rokeberg, James,
Croft and Berkowitz. Representative Green was excused because of
illness; Vice Chairman Bunde announced that he and Representative
Berkowitz would chair the meeting in his absence.
HB 451 - ASSISTIVE TECHNOLOGY & MOBILITY AIDS
Number 0060
VICE CHAIRMAN BUNDE announced the first item of business would be
HB 451, "An Act relating to assistive technology devices and
mobility aids for physically disabled persons." Before the
committee was CSHB 451(L&C).
Number 0076
JEFFREY LOGAN, Legislative Assistant to Representative Joe Green,
Alaska State Legislature, presented CSHB 451(L&C) on behalf of
Representative Green, prime sponsor. He explained that it
establishes an express warranty for technology designed to assist
physically disabled persons. Assistive technology and mobility
aids for the physically disabled are not covered by "lemon laws"
and consumer protection statutes in Title 45. The automobile lemon
law in Chapter 45 makes no mention of wheelchairs. Similarly, the
Unfair Trade Practices and Consumer Protection Act found in Chapter
50 makes no mention of assistive technology for the physically
disabled.
MR. LOGAN informed members that eleven states have passed such
laws; two others, including Alaska, are considering doing so. He
directed members' attention to a sectional description in committee
packets.
Number 0176
VICE CHAIRMAN BUNDE asked whether opposition was heard in previous
committees.
MR. LOGAN replied that in the previous two hearings in the House
Labor and Commerce Standing Committee, there was no stated
opposition, and the only testimony was positive. A number of
people had testified, including representatives of the Statewide
Independent Living Council, Access Alaska, and the Department of
Health and Social Services. In addition, other individuals not
associated with a group had testified in favor of the bill.
Number 0235
VICE CHAIRMAN BUNDE asked whether they had heard from manufacturers
of equipment for the disabled.
MR. LOGAN said they had not.
Number 0270
REPRESENTATIVE ERIC CROFT asked what changes were made in the House
Labor and Commerce Standing Committee.
MR. LOGAN answered that the first change is on page 2, line 7.
That entire line was added to conform to changes on page 5,
beginning at line 27, and carrying on to page 6, through line 10.
Mr. Logan explained, "The Labor and Commerce Committee decided, as
a matter of commercial policy, as it were, that it would be good to
define more clearly what collateral costs were. In the original
version of the bill, that was a rather open definition. Chairman
Rokeberg in Labor and Commerce requested the language to tighten
that up. In doing so, we noted that the collateral costs referred
back to [AS] 45.45.620 in the bill, which was returns and refunds,
but not repairs. So, that's why the language on line 7 of page 2
was added, to make sure that the collateral costs incurred by the
consumer will be covered by the manufacturer for return of
assistive technology for refunds or repairs."
Number 0409
ROBERT BRIGGS, Staff Attorney, Disability Law Center of Alaska,
came forward to testify, specifying that he represents people with
disabilities on legal matters relating to their disabilities. He
told members that complaints arise from time to time when someone
has purchased an assistive technology device or a device for a
wheelchair, for example, that doesn't work. Frequently these
devices are quite expensive, and the persons involved don't have
the economic means to battle a manufacturer located out of state.
MR. BRIGGS said HB 451 addresses this problem in a way that he
believes is good. It creates a balance in the relative economic
positions of the purchaser and seller. It also provides certainty
in how those kinds of disputes can be resolved. In particular, it
defines how the expenses should be reimbursed when someone's
wheelchair or other assistive device does not work and needs to be
returned or repaired. "I think it is fair and balanced in its
approach, both from the standpoint of a manufacturer and also from
the standpoint of a purchaser," he added.
Number 0525
MR. BRIGGS asked that the committee consider tightening up the
definition of "dealer." He noted that this is a manufacturer's
warranty. On page 7, lines 11 through 15, there is a definition of
"manufacturer" that is fairly straightforward and clear, but it
specifically does not include a dealer. On page 6, lines 22
through 23, a dealer is somewhat broadly defined as someone in the
business of selling assistive technology devices or mobility aids.
Mr. Briggs suggested adding the phrase, "without assembly or
modification", to clarify that someone who changes or puts together
a device in a way that could render the device nonconforming would
fall within the manufacturer's warranty and therefore would have
the obligations under this bill.
Number 0585
VICE CHAIRMAN BUNDE asked whether wheelchairs, for example, arrive
at the dealer assembled.
MR. BRIGGS said no, they typically require assembly. Sometimes,
especially for electric wheelchairs, they require custom
modifications. He cited an example. Mr. Briggs then said as he
reads through the definitions of "manufacturer" and "dealer," he
would put the person who makes those modifications, and who selects
and installs the switches, in the category of a manufacturer.
MR. BRIGGS stated, "And certainly, if I were involved in a dispute
between a manufacturer and a dealer, I would expect the
manufacturer to say, 'If there's a problem with the switch, it's
the problem of the person who put that switch on, not mine.' And
under the bill, I think the original manufacturer of the chair
would fit within the definition; it's less clear whether someone
who makes a local modification would fit within that definition."
MR. BRIGGS urged members to clarify responsibility in the bill as
much as possible. He explained, "First of all, we don't want to
impose extra expense of manufacturers that is unnecessary if you
can make it clear. And the people involved don't have the expense
to get involved in great litigation. And so, the clearer you can
make the definition between 'manufacturer' and 'dealer,' the
better."
Number 0720
REPRESENTATIVE PORTER asked to hear the suggested wording again.
MR. BRIGGS said on page 6, line 23, following the words, "mobility
aids," he would add the phrase, "without assembly or modification".
Number 0750
VICE CHAIRMAN BUNDE suggested that virtually eliminates dealers,
because they all assemble.
MR. BRIGGS replied that for some wheelchairs that is true; for
other devices, he doesn't know.
Number 0814
REPRESENTATIVE ETHAN BERKOWITZ pointed out that "assemble" is
generic language. He has a friend who flies disabled people
around, and it is necessary to break down the wheelchairs to put
them in a small airplane, for example. Representative Berkowitz
referred to page 7, line 11, and suggested that under this
definition of "manufacturer," that friend would be assembling.
MR. BRIGGS proposed that it could be tightened up a bit by saying
something like, "who manufactures or assembles for first use".
Number 0824
REPRESENTATIVE NORMAN ROKEBERG asked whether it would help to add
"modifies" after "manufactures" on line 11, to make sure they pull
in the dealer who is modifying a device.
VICE CHAIRMAN BUNDE said, "Rather than change the definition of a
dealer ...."
REPRESENTATIVE ROKEBERG said they could do "dealer" also, but this
catches the modification aspect of it. The dealer would become a
manufacturer for purposes of this section, if the dealer actually
modified the device, for which he should be responsible for repairs
or if it was faulty.
Number 0895
REPRESENTATIVE ROKEBERG made a motion to add the word "modifies"
after "manufacturers" on page 7, line 11.
VICE CHAIRMAN BUNDE asked Mr. Logan whether he sees any problem
with that.
MR. LOGAN replied, "To the extent that it is the desire of the
sponsor to clarify responsibilities as to these types of costs and
who pays them, I think this gets to that end."
Number 0938
VICE CHAIRMAN BUNDE asked whether there was any objection to
Amendment 1. There being none, Amendment 1 was adopted.
VICE CHAIRMAN BUNDE asked the committee's wish regarding the
dealer.
REPRESENTATIVE ROKEBERG said he wouldn't object to the suggested
modification if it is okay with the sponsor.
VICE CHAIRMAN BUNDE clarified to Mr. Logan that they were
discussing a potential amendment, to expand the definition of
"dealer" to read, "means a person who is in the business of selling
assistive technology devices or mobility aids without assembly or
modification".
MR. LOGAN told members that to the extent that the intent is to
clarify who should be responsible for assuming some of these costs,
this again goes to that end; he believes it would be acceptable to
the sponsor.
VICE CHAIRMAN BUNDE asked Representative Berkowitz whether that
would remove his concern.
REPRESENTATIVE BERKOWITZ said that handles it with the dealer
question, but his problem was with "manufacturer." However, that
solution would also work for that.
Number 1038
REPRESENTATIVE BRIAN PORTER made a motion to adopt Amendment 2, to
add, "without assembly or modification" after "mobility aids" on
page 6, line 23.
VICE CHAIRMAN BUNDE asked whether there was any objection. There
being none, Amendment 2 was adopted.
Number 1055
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 3, on
page 7, line 11, so that following "person who" that line would
read: "is in the business of manufacturing, modifying or
assembling".
REPRESENTATIVE PORTER asked the purpose of that.
VICE CHAIRMAN BUNDE explained that it is so that somebody who must
disassemble and reassemble a wheelchair for a person being
transported is not in "the warranty business."
Number 1098
REPRESENTATIVE JEANNETTE JAMES said she would think that if the
disabled person had a perfectly good, working wheelchair that was
disassembled and then no longer worked, this doesn't relieve the
person who did that from liability.
REPRESENTATIVE BERKOWITZ replied that there would still be
liability, but it wouldn't be a warranty situation.
REPRESENTATIVE JAMES asked what the recourse of the disabled person
would be.
REPRESENTATIVE BERKOWITZ answered that it would be the same as for
anybody else who suffered a tort.
REPRESENTATIVE JAMES asked, "You would have to sue?"
REPRESENTATIVE BERKOWITZ replied, "Well, you could do that. ...If
I break something of yours, you could say I've broken it, and I'd
probably offer to pay for it. ... Even with the warranty, suit is
an option."
Number 1162
REPRESENTATIVE JAMES said this whole bill is to make it easier for
people who are disabled to get their just due, without having to go
to extensive lengths. She agreed that a pilot who did this, for
example, would certainly want to volunteer to pay for it. She said
she didn't know that they need to fix that in here, but it seems
that the person ought not to have to sue to get his payment. She
concluded, "And even in a warranty position, you may still have to
sue; but at least if the statute is very clear that it is
authorized and/or directed, that might tend to them to not to sue,
or not to have to sue."
REPRESENTATIVE PORTER said he understands what Representative James
is getting at, but the bill is getting at folks that sell to the
disabled person. And the person that the amendment is trying to
protect is not in that category; that person would have handled it
as a taxi driver, pilot or friend might do.
Number 1241
VICE CHAIRMAN BUNDE asked whether there was any objection to
Amendment 3. There being none, Amendment 3 was adopted.
Number 1275
PATRICK REINHART, Executive Director, Statewide Independent Living
Council, Department of Education, testified via teleconference from
Anchorage. He said the council supports the bill, and they had
asked that this type of legislation be introduced a couple of
months ago. They had brought the idea of this bill up primarily
because of the many consumers across the state who had told them
about purchasing certain pieces of assistive devices and being
"ripped off" one way or another, especially from out-of-state
dealers and manufacturers. Mr. Reinhart added that this really
hasn't been a problem with in-state dealers, which he suggested may
be why they haven't heard much from those dealers.
MR. REINHART told members, "I don't think that there's going to be
anybody who wouldn't be supportive of guaranteeing some warranty
for devices that cost the amount of money that some of these
devices do cost." He suggested this bill could save the state
money in a couple of different ways, primarily in that a lot of
equipment is purchased through third parties and state entities.
For example, Medicaid, the Division of Vocational Rehabilitation,
and the Division of Mental Health and Developmental Disabilities
purchase this equipment on behalf of consumers. When it is bought
by a third party, there really isn't someone to follow through when
a device isn't working right, or if someone is due a refund or
repair that is not being made. "So, I think this will certainly
add some incentive for state entities that are working to buy
consumer equipment, and helping the consumers follow through when
something isn't working the way it should," he concluded.
Number 1378
REPRESENTATIVE JAMES made a motion to move CSHB 451(L&C), as
amended, with individual recommendations and attached zero fiscal
note.
VICE CHAIRMAN BUNDE asked whether there was any objection. There
being none, CSHB 451(JUD) was moved from the House Judiciary
Standing Committee.
HB 406 - SUBSISTENCE USES OF FISH AND GAME
Number 1435
VICE CHAIRMAN BUNDE announced the next item of business would be HB
406, "An Act relating to subsistence uses of fish and game." On
teleconference were KOTZ Radio from Kotzebue, as well as the
Legislative Information Offices (LIOs) from Anchorage, Dillingham,
Fairbanks, Juneau, Kotzebue, Mat-Su and Nome. Vice Chairman Bunde
advised members there was a proposed committee substitute, Version
J (0-LS1573\J, Utermohle, 4/5/98).
Number 1447
REPRESENTATIVE JAMES made a motion to adopt Version J as a working
document.
REPRESENTATIVE CROFT and REPRESENTATIVE BERKOWITZ objected.
VICE CHAIRMAN BUNDE requested a roll call vote. Voting to adopt
Version J were Representatives James, Porter, Rokeberg and Bunde.
[Note: Representative Rokeberg's vote is indiscernible on tape;
however, the roll call sheet, verified by the secretary, shows that
he voted to adopt it.] Voting against it were Representatives
Berkowitz and Croft. Representative Green was excused. Therefore,
Version J was adopted as a work draft by a vote of 4-2.
Number 1543
VICE CHAIRMAN BUNDE provided information for listeners from a
summary that read:
1. Legislature adopts the policies contained in Title VIII
of ANILCA [Alaska National Interest Lands Conservation
Act] to conserve resources and provide a preference for
a subsistence way of life.
2. This preference is applied at all times of shortage to
people who customarily and traditionally depend on the
resource, regardless of where they live.
3. No constitutional amendment required.
4. Authorizes the appropriate board to identify subsistence
dependent areas based on individual stock or population
data.
5. Those dependent residents located within the subsistence
dependent area are presumed to qualify for the preference
and those located elsewhere are presumed not to qualify.
6. Any individual may rebut the above presumptions by
meeting specific criteria relating to reliance and
dependence on the resource.
7. Retains existing state definitions of "customary trade,"
"customary and traditional," "reasonable opportunity,"
"subsistence use" and adds definitions of "preference"
and "sustained yield."
8. Retains existing nonsubsistence areas established by the
Boards of fisheries and game. The respective boards may
act independently to establish nonsubsistence areas.
9. Establishes regional advisory committees with specific
guidelines for rejection of proposals.
10. Retains existing local advisory committees.
Number 1630
REPRESENTATIVE PORTER told members this draft is a collective work
of Chairman Green, Representative Ogan, and himself over the
weekend. It is an attempt to find a middle ground that would allow
them to proceed, with the goal of allowing the entire legislature
to respond to this issue.
REPRESENTATIVE PORTER explained, "The first section basically
states what we believe to be true, that in an attempt to find a
middle ground there is substantial argument that this bill meets
the tests that obviously have to be met before a bill can be
successful, and that is, to meet the general requirements - at
least by intent - of ANILCA and the federal legislation, while
meeting the requirements of our own state constitution, short of
amending that constitution."
REPRESENTATIVE PORTER said the operative section that balances that
is the establishment of a restriction on consumptive use takings in
subsistence areas that (indisc.--papers over microphone) shortage,
which seems to fit with the intent of ANILCA, and that the
presumption that those domiciled within the area of shortage are
eligible for that preference fits the challenge of ANILCA to
provide a preference to rural residents.
REPRESENTATIVE PORTER told members that to overcome the supreme
court decisions that disallow that from occurring under the state
constitution, they are not indicating individuals; rather, they are
innovating a selection of a preferential use, not a user, and that
use is subsistence. That will allow those people to have this
preference. Representative Porter stated, "Additionally, perhaps
a middle ground even more, so that it actually works, is the
allowance, then, for folks who might not reside specifically within
the boundary of that shortage, but who also have a dependence on
that resource, can establish that they do, and can, then, be
allowed to participate in that subsistence taking. That basically
is the essence of what it is we put forth."
Number 1780
REPRESENTATIVE BERKOWITZ asked the intent that day.
VICE CHAIRMAN BUNDE said they would hear the bill, and if finished
with it, move it.
Number 1801
REPRESENTATIVE BERKOWITZ expressed appreciation for all the work
that Representatives Porter, Green and Ogan did over the weekend,
and what they have done in moving this through the process. He
stated, "I think it's only fair, though, to acknowledge that there
are a lot of other people around the state who have considerable
expertise in this subject, whose opinions I personally would value
and would like to hear before I can make an informed decision about
this bill, whether it does what it sets out to do, whether it
complies with ANILCA, whether it does indeed forestall federal
takeover. So, it would be my hope that we have the opportunity to
give those folks the chance to look at this bill and testify to us
about what's contained in it, because for us to pass this out
without giving them that opportunity, I think, would be somewhat
derelict in our responsibility."
Number 1846
REPRESENTATIVE PORTER explained that although he doesn't disagree,
that this would be the committee to do just that, time doesn't
allow it. There has been a lot of testimony, and the committee has
a good feel for the general feelings of people in the state. The
specifics as to whether this bill meets the constitutional tests
that might be applied to it are speculative, at best.
Representative Porter recognized that there are areas that will be
debated through the process. He pointed out that HB 406 has a
House Finance Committee referral, there will be a vote on the House
floor, then the Senate will go through the same committee process
and a vote. He concluded, "And so, it certainly is not an
indication that this is the absolute final product. But it is an
iteration that has merit, in my mind, and needs to get moved
forward."
Number 1920
REPRESENTATIVE JAMES stated her belief that this is a much better
draft. However, she still has some concerns, and she is willing to
follow the bill and her concerns. In reading the bill, it appears
that a lot depends on the Department of Fish and Game's making
regulations. Although she tends to agree with that assessment,
usually when the legislature allows boards or agencies to make
regulations, the language is not so specific.
REPRESENTATIVE JAMES said, "My concern is: Have we been specific
enough when we needed to be and broad enough when we did need to be
to accomplish it?" She expressed concern over whether it should be
clear who these people are that qualify. She suggested the
presumption that they are qualified, if they happen to be in this
subsistence area, is very broad. Representative James agreed with
Representative Porter that they could get a decision both ways as
to whether this requires any constitutional amendment. "But I
think that moving it on is certainly the best option that I've
heard yet, and get it to be wrangled around by another group of
people, who can listen to the same testimony that we've had on this
bill and get it further refined," she concluded.
Number 2000
REPRESENTATIVE ROKEBERG said he would associate himself with
Representative James' remarks about following the bill and the
desire to move it. Noting that he still has unanswered questions,
he suggested the public needs to have this particular issue debated
further, and he expressed hope that it would be resolved before the
legislature adjourns in May.
REPRESENTATIVE ROKEBERG expressed concern about not changing
ANILCA, saying he thinks there is a responsibility on the part of
our congressional delegation and the federal administration to make
some modifications that would make this more acceptable to all
people in the state of Alaska. He suggested that issue needs
further debate. He then asked, "Mr. Popely, could you tell me: If
in the course of this legislation an income ceiling were imposed in
any way, say at $60,000-a-year-per-family income or something such
as that, would that necessitate a constitutional amendment?"
Number 2060
THEODORE POPELY, Legislative Assistant to House and Senate
Majority, Alaska State Legislature, answered that income ceilings
have been tried through these bills, and the possibility is there
that it would require a constitutional amendment because of the
tendency of that to create classes of people who cannot
participate, regardless of other factors. He said constitutional
areas under Article VIII and all these laws are fairly gray, and
that he could give a qualified "maybe."
Number 2090
REPRESENTATIVE CROFT asked whether they were going to hear from the
Administration, and whether the Administration had received copies
of this new proposal.
VICE CHAIRMAN BUNDE said it is available as public information, and
based on his six years here, he is confident they will hear from
the Administration.
REPRESENTATIVE CROFT asked whether they would hear that day from
witnesses other than the representatives from the majority.
VICE CHAIRMAN BUNDE indicated the committee would take testimony
from anyone who wished to testify.
Number 2120
REPRESENTATIVE CROFT said he thinks there are some interesting
ideas here, but he believes it would be a disservice to pass it out
that day, as it was only released at 9 a.m. He then referred to
page 2, lines 10 and 11, and asked the purpose of including the
definition of "rural" from Webster's New World Dictionary. He said
it seems sort of a circular definition.
MR. POPELY indicated the policy and findings section of the bill
corresponds somewhat to the policy considerations in Section 802 of
Title VIII of ANILCA. He said he believes the notion is to
demonstrate that there is some consistency and a parallel between
the intention of the state and that of Congress; he noted the use
of the term "rural" in the findings and in the policy section of
ANILCA.
MR. POPELY stated, "And I believe the drafters intended that the
definition of 'rural' did not raise any requirements of residence.
I think that's simply the reason that's put in there, is to imply
that the policies and principles of ANILCA that would afford a
preference to rural peoples don't necessarily mean that the
preference would apply to people who are designated as rural simply
because of where they live. ... This dictionary definition
apparently implies that 'rural' could come about through a variety
of means, including a country life, a country people, rustic -
which is an adjective describing a lifestyle - rather than
describing a place of residence."
Number 2215
REPRESENTATIVE CROFT suggested the "or" is what Mr. Popely is
concentrating on, and that it could be country people living in the
city.
MR. POPELY said he believes that is the intent.
VICE CHAIRMAN BUNDE acknowledged the presence of Representative
Joule.
Number 2235
REPRESENTATIVE CROFT referred to page 5 and said he had seen some
of the factors before; however, he is used to language introducing
them that says something to the effect of, "determine an area
substantially dependent on fish and game." Before, the goal they
were seeking was whether a community was based substantially on
fish and game resources; now, however, they are talking about
whether it has a cash-based economy. Representative Croft asked
whether that is the substitution and what the rationale is behind
the switch.
MR. POPELY replied that he is not sure if there has been a switch.
That section is a description of a nonsubsistence fishing or
hunting area, as opposed to a subsistence area. In trying to
describe whether it is a nonsubsistence area, apparently the
drafters are basing that on whether these factors, in totality,
rise to what constitutes a cash-based economy as opposed to a
subsistence-based economy.
REPRESENTATIVE CROFT suggested they are seen as opposite sides of
the same coin.
MR. POPELY said they are seen as mutually exclusive.
Number 2300
REPRESENTATIVE CROFT said he is familiar with the list of factors
on page 5, and somewhat familiar with those on page 4. He asked
whether those are individual criteria at the top of page 4.
MR. POPELY affirmed that.
REPRESENTATIVE CROFT referred to page 4, line 9, item (1), "past
use of the stock or population", and asked what that means. He
said he understands item (2), "lack of alternative resources". He
then read item (3), "the proportion of diet made up of subsistence
resources". He asked, "But not that particular stock? Or should
(3) read, 'the proportion of your diet made up by that specific
subsistence use'?"
MR. POPELY responded, "Probably not a bad amendment. I think that
probably was the intent of the drafters."
Number 2331
REPRESENTATIVE CROFT referred to item (4), "the variety of fish and
game species consumed". He asked, "Which way does that cut? That
is, if they consume a variety of other fish and game species
besides this one, I guess one way of looking at it is they're less
reliant on this; another is they're more a genuine subsistence
user. Which way is the board directed to look at that?"
MR. POPELY said that is an area Representative James had alluded to
earlier. There is apparently a great deal of latitude left to the
board to determine that. These are simply generalized categories
that the boards may use to determine whether a resident is a
qualified subsistence user. Mr. Popely said he couldn't say how
that would work; it would be up to people who are in place to make
the determination.
Number 2360
REPRESENTATIVE CROFT suggested the board could conclude that having
a variety of other fish and game would be either a negative mark or
a positive mark.
MR. POPELY responded, "But again, within the context of trying to
determine whether or not the individual has customarily and
directly relied on that particular stock or population."
REPRESENTATIVE CROFT said that was his struggle with these six
criteria. Some don't seem to have to do with whether someone has
been reliant on this particular stock but relate to the old test of
whether or not someone is a genuine subsistence user.
MR. POPELY replied, "For a hypothetical sake, I could imagine a
scenario under number (4) where the board looked at the variety of
fish and game species consumed - perhaps there are ten for an
individual - and using the combination of (3) and (4), the
proportion of the diet, and what species are involved, if there's
a very small or de minimus portion that one is arguing creates a
reliance for a given stock or population, perhaps the board would
want to take that into account, if the vast majority of the diet
came from dependence on a separate stock or a ... separate species
of fish or game."
Number 2416
REPRESENTATIVE BERKOWITZ asked, "Mr. Popely, Mr. Somerville, in
your professional opinions - not as advocates for the majority but
in your professional opinions - does this piece of proposed
legislation comply with ANILCA?"
MR. POPELY replied, "If you're going to ask the Secretary of
Interior to certify that this is in compliance with the sections
that require compliance in order to sign off on management, no.
But I think that question is loaded with a lot of context, and I
think the folks that drafted it would argue that the overarching
policy under which ANILCA was drafted could arguably be met with
this piece of legislation."
RON SOMERVILLE, Contractor to House and Senate Majority, Alaska
State Legislature, said some changes to ANILCA would probably have
to occur to really make this effective.
TAPE 98-56, Side B
Number 0006
REPRESENTATIVE BERKOWITZ mentioned the impending federal takeover.
He asked what changes to ANILCA are required by this bill.
MR. SOMERVILLE replied that ideally, the definition of "rural"
would have to be changed to comply with the basic intent of this
legislation. Definitions exist in Title VIII of ANILCA today, as
well as those included in Senator Stevens' amendments, and the
appropriation language would have to be modified to match the
language in here. The regional advisory committees would have to
be modified to some extent to comply with minor changes.
Furthermore, it is possible that the language in ANILCA would have
to be changed to comply with the six alternative criteria that
Representative Croft and Ted Popely had discussed.
Number 0050
REPRESENTATIVE BERKOWITZ said, "You've been pursuing this issue,
obviously, for some time. Do you have any indication whether
Senator Stevens is willing to pursue those change to ANILCA?"
MR. SOMERVILLE answered that he hadn't been privy to a lot of the
discussion between individuals in the majority and the Senator, so
he couldn't answer that at all.
MR. POPELY said, "Nor have I." He added that he'd never had
communication with the delegation's office directly on that topic.
Number 0070
REPRESENTATIVE PORTER referred to Representative Croft's questions
about the individual criteria. He stated his belief that those are
established this way in order to establish a subsistence person.
Then, at the time of a shortage, the look at whether that person
had a traditional and customary use of the stock or population
which was short would be another matter. The first question is
what a subsistence user is; the second question is, in a time of
shortage, whether that person relies on that particular short
stock.
REPRESENTATIVE PORTER stated, "The difference in the bill as to
ANILCA's requirement for regional committees, for example, doesn't
alter the idea that we have regional committees. What it alters,
very practically, is from ten to nine." He said it seems
impractical to have an automatic tie involved.
REPRESENTATIVE PORTER acknowledged that at some point, to the
extent that ANILCA amendments are required by this legislation "or
whatever it turns out to be," they will have to sit down with the
congressional delegation and discuss those. However, he is not
anxious to further confuse the matter by having premature
discussions with the delegation. The bill hasn't gone through the
process yet. Representative Porter suggested this will probably go
into a conference committee, if it gets that far, and then they
will have those discussions.
Number 0171
REPRESENTATIVE REGGIE JOULE addressed the process, pointing out
that his constituents have an extreme interest in this issue. He
indicated he had talked with the chairman about when his
constituents could expect to testify, and he'd been told they could
probably do so this coming Wednesday; Representative Joule had
informed them of that. Noting the likelihood that the bill would
move out of committee at the present hearing, he said it really
raises some concerns for him.
REPRESENTATIVE JOULE questioned how much time the House Finance
Committee could devote to this. He emphasized the magnitude and
importance of this issue, and he expressed hope that the people
whom he had assured would have a voice in this process - in this
committee, at a specific time - would be able to bank on that. He
acknowledged that time is of importance here. However, the
legislature, as a body, encourages the public to participate.
Representative Joule concluded by saying he understands that things
change rapidly, and he understands it better every day. He
restated the hope that his constituents would be able to testify.
Number 0386
REPRESENTATIVE JAMES stated, "Quite frankly, I think we're moving
in a direction that we need to go. But I think that what the
public needs to understand, and what the legislature needs to
understand, on the area of subsistence is that ... there is a fence
around where we can get from here, because of the attitudes of all
the various people and the various different -- as far afield as we
are. And I think the legislature, ... their chore at this point in
time is to find a piece of legislation that will define and protect
the subsistence lifestyle of a certain group of people that was
intended to be protected in ANILCA. And in order to be successful,
to ever get that piece of legislation passed, it has to not include
a constitutional amendment."
REPRESENTATIVE JAMES expressed her belief that if everyone
understands those are the parameters to having a successful
solution, and starts talking about doing it that way, it can be
done. But it will take the participation of everyone affected.
She concluded, "And I appreciate Representative Joule complaining
about the process. The process is not a good one. But as long as
we have this divide, the process will continue to go as it is, and
the people will continue to be distressed. I think what it takes,
it just takes some real yielding and some real cooperation to get
something ... that will really work before we're finished."
Number 0395
REPRESENTATIVE BERKOWITZ disagreed to some extent. He suggested
the constraint of saying the legislature can't arrive at a solution
that requires a constitutional amendment is an artificial barrier,
because a number of constitutional amendments have gone through not
only this committee but the legislature. "And to arbitrarily say
a constitutional amendment attached to the question of subsistence
is out of bounds is arbitrary and unfair to the process," he
concluded.
REPRESENTATIVE JAMES replied that this constitutional amendment is
not like the others. It is violating the common use clause, which
is like gold to the people in Alaska.
REPRESENTATIVE BERKOWITZ pointed out that there are constitutional
amendments that address the equal protection clause.
VICE CHAIRMAN BUNDE acknowledged the presence of Representative
Williams.
Number 0420
REPRESENTATIVE PORTER expressed appreciation for the difficulty of
Representative Joule's constituents in following this legislation.
He expressed hope that they can testify in the House Finance
Committee. He stated, "But this constitution that we like to
protect also cuts the amount of time we have to deal with these
issues, and until we get it at least to a point of having a
consideration in the other body, most of the discussions that we'll
be having could be for naught anyway. So, it's a fine balance
between being able to accomplish anything and keeping everybody on
board."
Number 0470
REPRESENTATIVE CROFT asked whether the term "rural" is used in the
bill except in the preface.
Number 0500
MR. POPELY replied, "No, not in the sense of identifying who is
afforded the preference, it's not."
REPRESENTATIVE CROFT asked, "So we use the terms 'nonsubsistence
and subsistence areas'?"
MR. POPELY affirmed that.
REPRESENTATIVE CROFT asked, "Have there been any legal opinions
from the attorney general, or have you generated any, on whether
the presumption - which I've seen that approach before - is
constitutional without an amendment?"
MR. POPELY replied, "Not to my knowledge."
Number 0530
REPRESENTATIVE CROFT referred to the individual criteria and said
he was following up on Representative Porter's point. He read from
page 4, beginning at line 5, which says, "To determine whether a
resident is a qualified subsistence user, the Board of Fisheries or
the Board of Game shall establish criteria for determining if a
resident has demonstrated a customary and traditional dependence on
the stock or population ...." Representative Croft said that seems
to meld those two concepts together. He asked, "Do we mean, 'We
know you're a subsistence user if you rely on this particular
stock'? 'We know you rely on this particular stock if you're a
subsistence user'?"
REPRESENTATIVE PORTER clarified that "resident" means an Alaskan
resident, not a local area resident.
REPRESENTATIVE CROFT said that is made very clear two lines above,
where it says, "without regard to the location of the resident's
domicile." However, it seems they are combining, or confusing, two
different concepts. Who is a qualified subsistence user, and who
is dependent on this particular fish and game stock? He asked how
he is to understand those two.
Number 0577
VICE CHAIRMAN BUNDE responded that as he understands it, they are
talking about allowing a particular stock. But deciding whether
someone is or is not a subsistence user has a lot of criteria. The
portion of the diet of subsistence resource doesn't, in his mind,
just refer to that stock. He added, "If we're talking about king
salmon, and you eat a lot of moose and caribou too, you don't get
disqualified because a major portion of your diet isn't king
salmon."
REPRESENTATIVE CROFT said that is the rub. It seems to put two
different analyses into one section. He said he doesn't see how
one can determine if someone is a qualified subsistence user by
determining if they are dependent on that particular stock, because
the variety of fish and game consumed, and the importance of
sharing, cut against reliance on that particular stock.
VICE CHAIRMAN BUNDE said, "Subsistence user of that stock, not
whether you're a subsistence user totally."
Number 0626
REPRESENTATIVE PORTER asked whether Representative Croft was
comparing item (1) on page 4, line 9, with the rest of them.
REPRESENTATIVE CROFT answered, "Well, I'm taking lines 5 through 8,
which says to determine whether you're a subsistence user, we
determine whether you're reliant on this stock. Some of the
factors relate to subsistence user - particularly 2 through 6,
well, maybe 3 through 6, but anyway - and some relates to reliance
on ... a particular stock. But ... it's not a good general-purpose
test of who is a qualified subsistence user or who is reliant on a
particular stock, because it tries to do both."
REPRESENTATIVE PORTER said the intent is to establish in this
section who is or is not a subsistence user; it is really not
trying to define it to a specific stock or population. The
combination of the two - the stock or population that has a
shortage and who is the subsistence person - is just recognition
that a subsistence person in Angoon, for example, is probably not
going to have a customary and traditional use on a stock in
Northwest Alaska. If there is a shortage in Northwest Alaska,
there is a likelihood that a person in Angoon would not qualify in
the time of a shortage to hunt or fish in Northwest Alaska, but the
point is that they don't want to.
Number 0704
REPRESENTATIVE CROFT asked Mr. Popely whether under ANILCA now, if
somebody lived in Angoon and had a customary and traditional use of
a fishery stock there, that person would have a subsistence right
to go to Kotzebue and hunt.
MR. POPELY replied that for the most part that is true, but there
have been federal subsistence regulations where the priority
attaches specifically to a local stock. He added, "And there are
some regulations that apply whether you are a subsistence user or
not. Period."
REPRESENTATIVE CROFT responded, "What's true? I understood in
ANILCA that you couldn't prove, as an Angoon resident, that your
residence, your community, had any customary and traditional use of
the hunting grounds around Kotzebue. So, I understood it that you
would not have the right under ANILCA now."
Number 0752
MR. SOMERVILLE answered that both are reflected in the federal
regulations, which he believes is what Mr. Popely is saying. He
explained that in some cases, it will say "all rural residents."
In other cases, it will say "only residents of Units 26 A, B and
C."
REPRESENTATIVE CROFT posed a situation where he has gone to Kodiak
and taken deer for ten years. He asked what rights would come to
him under this bill, if he proved he had a past use but wasn't a
general-purpose subsistence person. He asked what he would have
the right to do, and what he would not have the right to do.
MR. POPELY replied, "First of all, I think you'd further have to go
down the line and apply all of the criteria. Just one is not
necessarily going to include you into the qualified class of
subsistence user - past use."
REPRESENTATIVE CROFT responded, "Assume I'm not a qualified
subsistence user but I can prove that past use. I thought that's
the distinction Representative Porter and I were talking about,
whether you got into one category or the other. So, I have a past
use - a legitimate use - but I cannot show the other, (2) through
(6). What do I get or not get?"
Number 0820
REPRESENTATIVE PORTER explained that the intent is that a person
who has established that he or she is a subsistence user, by past
use and by the board's determination based on this criteria, will
have the same right to subsistence hunt and fish as a local
subsistence user in times of no shortage; it would be by those
methods and means available to the local subsistence user. If
there is no shortage, a person who is not qualified as a
subsistence user would have the right to take fish and game under
a sport or personal use license, or whatever happens to be open
short of subsistence, in a subsistence area; none of this
distinction would come into play, except for the distinction that
exists now between someone who qualifies for a subsistence permit
and someone who doesn't.
REPRESENTATIVE PORTER emphasized that the distinction only applies
when there is a shortage. When availability of a stock or
population diminishes, the first "ratchet down" is that there can
be distinctions between other consumptive uses, with a preference
given to subsistence users. The second "ratchet down" is that
there can even be a distinction between subsistence users in that
district, if the population is actually that short.
Number 0900
REPRESENTATIVE CROFT replied that he can't go on the intent. If,
for example, he couldn't prove that he is a general subsistence
user but could show a verified, genuine, nonwasteful past use, he
understood from that discussion that he wouldn't have any
particular rights, because he is not qualified as a subsistence
user.
VICE CHAIRMAN BUNDE indicated that would be his interpretation.
REPRESENTATIVE JAMES concurred.
Number 0940
REPRESENTATIVE CROFT asked whether someone who lives a subsistence
lifestyle in a nonsubsistence area, such as Dick Bishop, would have
rights under this bill identical to the rights of somebody who
lives a subsistence lifestyle out in the Bush.
MR. POPELY indicated qualification would be through these six
criteria for both persons. He said he believes the answer is a
qualified yes. He explained, "I'm not sure if the intent of the
drafters is to have that preference scheme apply specifically to
stocks and populations, or generally."
Number 0991
REPRESENTATIVE CROFT said he'd like to get that answer, too. He
suggested that Representative Kookesh, for example, wouldn't have
to prove anything; they would have to disprove it. But Dick Bishop
would have to prove it. So they're not in the same legal sphere.
MR. POPELY replied that ultimately they are, but presumptively they
are not. Presumptively, the one who lives in the nonsubsistence
area is not qualified, subject to rebuttal under the six criteria.
And the one who lives in the area found by the boards to be
dependent on the stock or population is presumed to qualify under
the preference scheme; however, that may also be rebutted.
Number 1030
REPRESENTATIVE CROFT asked, "If I qualify as a general subsistence
user, wherever I am, based on ... the evidence I bring about my
customary and traditional use of these particular stocks, or of
this one stock, say, does that give me the right to subsistence
hunt or fish in other stocks? Or does it just give me the right,
as some ANILCA regs have it - and I would argue the better view of
the ANILCA regs would have it - that I have the preference for this
particular stock? What does this bill do?"
MR. POPELY said his understanding is that this bill affords the
preference to that particular stock or population.
REPRESENTATIVE CROFT said, "And no other."
MR. POPELY said that is correct.
REPRESENTATIVE CROFT asked, "Where do you read that?"
MR. POPELY answered page 4, lines 7 and 8. He said in order to
qualify under the six criteria, they are establishing criteria for
determining if a resident has demonstrated a customary and
traditional dependence on the stock or population. Mr. Popely
stated, "I read 'dependence on the stock or population' to extend
to where the preference would extend."
Number 1095
REPRESENTATIVE CROFT referred to the "semi-shortage." He
paraphrased beginning on page 3, line 3, which says, "(2) is
sufficient to provide a reasonable opportunity for subsistence uses
by qualified subsistence users and for some, but not all, other
consumptive uses, the appropriate board (A) shall adopt regulations
that provide a reasonable opportunity for subsistence uses ...."
He asked whether that doesn't just say subsistence uses.
MR. POPELY replied, "Back on page 4, at the top, determining
whether a resident is a qualified subsistence user - which is what
you just referred to - then we go back into that language that I
just pointed to, that says, 'demonstrated a customary and direct
dependence on the stock or population.' I read that to extend the
preference to a reliance on that stock or population."
Number 1146
VICE CHAIRMAN BUNDE suggested that while they pondered that, the
committee would hear from a testifier who lives in Dot Lake.
Number 0176
WILLIAM MILLER testified via teleconference from the Tok LIO,
specifying that he lives in the Native village of Dot Lake. He
referred to Section 1, page 2, line 2, which says a subsistence
user is a person who has demonstrated a customary and traditional
dependence on a particular fish stock or game population in an area
outside of nonsubsistence areas in Alaska. Mr. Miller told members
this completely misses the point of subsistence, which is not upon
a particular game or fish stock but is opportunistic, using
whichever wild renewable resource is available. He suggested it
should be a dependence upon wild renewable resources.
MR. MILLER referred to Section 2, page 2, lines 17 and 18,
pertaining to AS 16.05.258. It says the boards shall identify the
fish stocks and game populations, or portions of stocks or
populations, that are customarily and traditionally taken or used
for subsistence. Mr. Miller stated, "Again, all natural resources
are used for subsistence."
MR. MILLER next referred to page 4, subsection (c), starting at
line 7, which says, "shall establish criteria for determining if a
resident has demonstrated a customary and traditional dependence on
the stock or population". He noted that factor (1) says, "past use
of the stock or population", whereas factor (3) says, "the
proportion of diet made up of subsistence resources". He asked
whether they are talking about individual stocks or renewable
resources, suggesting there is a contradiction; he again emphasized
the variety of fish and game species consumed.
MR. MILLER told members it goes to the importance of sharing. He
explained, "In the villages, we have a lot of elders. A lot of the
young people hunt for the elders, so they share quite a bit. They
may spend a large number of days - going on to section (6) -
hunting or fishing. Again, you may get a whole year's supply of
fish in one day, if the fish are running in the fish wheel. So,
you only need one day. Would that take away, then, from the
subsistence (indisc.), because you only hunted one day?"
Number 1325
MR. MILLER referred to page 5, lines 6 and 7, and said he has a big
problem with cash-based economy, economy or income being used in
any way. In many small villages, two or three high-paying jobs may
offset the income of the rest of the community, where everyone else
may be unemployed.
MR. MILLER referred next to lines 15 and 16, "the cost and
availability of goods and services to those domiciled in the area".
He said this has nothing whatsoever to do with the customary and
traditional use in the villages. Other goods may be available, but
they do not fulfill the need; there is a psychological and
physiological need for the resources in the remote areas,
especially in the Native villages. Mr. Miller added, "You do
address some of this in subparagraph (10), line 24, on page 5, 'the
cultural, social, and economic values associated with ... taking
and use of fish and game', but again, I have a problem. Are all of
these going to have to be met, or are all of these going to be
considered, or specific ones?"
MR. MILLER next referred to line 30, which says, "(13) the other
sources of direct and indirect economic support available to those
domiciled in the area or community". He said cash economy and
traditional cultural need don't work together, "no matter how you
look at it."
Number 1430
MR. MILLER asked how the local or regional advisory committees will
be set up. Will they be elected by the people in the area? Are
they going to be appointed by the Board of Fisheries and the Board
of Game, by the legislature, or by someone else? He said if they
are not going to be elected locally, then they are not going to be
representative of the people in the area; they are going to be
representative of the political outlook for whoever appoints them.
VICE CHAIRMAN BUNDE noted that the regional advisory committees
currently are elected, which he suggested would continue. He
thanked Mr. Miller for his testimony.
Number 1489
REPRESENTATIVE PORTER pointed out that the regional boards that are
new under this legislation, as well as under other iterations of
this legislation, are part of ANILCA; they would be appointed by
the governor, as is provided by ANILCA. For the general
qualifications for what is a subsistence area, as well as for what
is a subsistence person, this bill is trying as much as possible to
end up with a position that would basically reflect the decisions
made to date by the boards of fish and game in those
determinations.
REPRESENTATIVE PORTER said to the extent possible, by trying to
meet the needs of both Alaska's constitution and ANILCA, the
determinations on "where" and "who" should be consistent with what
exists today. "While we recognized that's not perfect, we're
obviously looking for a situation the result that the differences
that may exist today can be worked out here, as opposed to at the
federal level," he concluded.
Number 1554
REPRESENTATIVE ALBERT KOOKESH advised members that he had promised
constituents that when this bill came under consideration to be
moved, he would get them the bill and the time frame for comments.
He stated, "Well, I understand now that this bill may be moving out
of committee, so I want to make a couple comments, not so much on
the merits of the bill, because if it's middle ground and if it
makes sense, maybe I would have been able to support it. But
without having the benefit [of] analysis, I can't tell you whether
I can support it or not. I would like to just ask the question on
whether or not the constituency I represent would have time for
comment on this bill before you move it out, and if they are going
to have comment, when that would be. If they are not going to be
able to have comment, why not?"
VICE CHAIRMAN BUNDE suggested this bill has a long way to go
through the process, and there will be ample opportunity to comment
at many levels, including all levels in the Senate. Noting the
lengthy discussions in the current committee, he suggested that
those who want federal control will not change their testimony
based on this bill; those that want the Governor's proposal will
not change their testimony based on this bill; and those that don't
want any change will not change their testimony based on this bill.
He said that while he believes the process is important, he doesn't
believe anyone will be precluded from weighing in.
REPRESENTATIVE KOOKESH emphasized that he would like his
constituents to at least have the chance to testify.
Number 1703
REPRESENTATIVE ROKEBERG commented that this legislature invites
anybody to testify on any bill. If people are unable to testify in
person or via teleconference, their written comments are invited.
He suggested that is important to understand, because specific
ideas provided in writing can be integrated into the legislation.
He again encouraged written testimony and said they would certainly
welcome Representative Kookesh's constituents to be part of this
process.
VICE CHAIRMAN BUNDE added, "As I would my constituency."
Number 1794
REPRESENTATIVE JAMES noted that there are questions about the six
criteria, but said that is the only part of the bill she
understands. She said it is the most descriptive part of the bill.
Number 1830
REPRESENTATIVE BERKOWITZ referred to page 4, subsection (e),
relating to a presumption. He asked who has standing to present
evidence at a hearing. He further asked whether this permits some
sort of class action.
MR. POPELY answered that his interpretation of this section, if he
were a judge, would be that standing would be afforded to,
certainly, appropriate state officers to whose attention
misinformation was transmitted about an applicant for a subsistence
preference, and perhaps to the individuals themselves who are
challenging the classification scheme; and a class action could
indeed be certified under this sort of scenario. He said that is
his off-the-cuff answer.
Number 1887
REPRESENTATIVE BERKOWITZ asked whether someone who was challenging
someone else's classification could present evidence.
MR. POPELY said his understanding is that it would be brought to
the attention of the state officers, who would then bring the
challenge, although that is not contained in the bill.
Number 1914
REPRESENTATIVE BERKOWITZ asked whether there is a fiscal note
attached to this. He said he knows the answer but wants it on the
record.
MR. POPELY said he doesn't know.
Number 1933
REPRESENTATIVE BERKOWITZ indicated he wished to direct his next set
of questions to Mary Pete, Director, Division of Subsistence,
Department of Fish and Game, since they were endowing the
department with all this authority to enact regulations. He noted
that Ms. Pete was present.
VICE CHAIRMAN BUNDE suggested Ms. Pete would be available to take
Representative Berkowitz' questions in written form. He said Ms.
Pete was not a witness at that time, and if he himself chose to
call her, he would.
Number 1976
REPRESENTATIVE CROFT referred to page 7 and regional advisory
committees. Noting that Representative Porter had said the change
is basically from ten to nine, he asked whether that is from the
prior draft of HB 406.
MR. SOMERVILLE answered that HB 406 started with five and had
various options. The six in here are identical to what occurs in
ANILCA, which requires at least six Alaska subsistence resource
regions.
Number 2038
REPRESENTATIVE CROFT said he was under the impression that ANILCA
required them to have some subsistence experience. He asked
whether there is any requirement in here that they be subsistence
users or have any particular knowledge of subsistence activities.
MR. SOMERVILLE paraphrased from page 7, beginning at line 22, which
says: "The regional advisory committees shall be composed of
persons well informed on the fish or game resources of the region."
REPRESENTATIVE CROFT asked, "So, ... not particularly subsistence
anymore, but generally on fish and game resources."
MR. SOMERVILLE said that is his recollection.
Number 2080
REPRESENTATIVE CROFT asked how that expertise differs from the
general expertise of the fish or game board, and what they are
adding that is different to that discussion.
MR. SOMERVILLE said the emphasis here is that there would be people
who are "more familiar with the regional issues including
subsistence than the other nonsubsistence activities, that they
would be making recommendations to the board, thus reducing some of
the workload of the board and providing them with that additional
expertise." He suggested it is a step up from the local advisory
committees, as they are now called.
Number 2123
REPRESENTATIVE CROFT suggested those people could give advice on
anything relevant to the fish or game resources of the region, not
just subsistence. For example, they could give "commercial advice
or sport advice."
MR. SOMERVILLE affirmed that.
Number 2150
REPRESENTATIVE CROFT suggested the individual criteria are the
heart of this and the heart of his own lack of understanding. He
posed a hypothetical situation: "If I, as an Anchorage resident,
can meet the criteria and prove that I am a qualified subsistence
user - based on my travel to Representative Kookesh's area in
Angoon and the taking of that specific stock of salmon, but I take
so much on a regular basis that I can also meet the other criteria
- am I or am I not entitled - as a general, qualified subsistence
user, based on that taking - to go to Representative Joule's area
and take caribou?"
MR. SOMERVILLE replied that he thinks the answer is basically no.
The boards would have already made C and T [customary and
traditional] findings throughout the state. But when there is a
shortage in any specific area, and the boards delineate this
dependent area, it is basically focused on a particular stock or
population. Those who qualify for use of that stock or population
would have to justify it, based on this six criteria, including
dependence upon a wide variety of resources. A person's dependency
and ability to participate would depend upon having participated in
utilization of that particular stock or population.
VICE CHAIRMAN BUNDE suggested these are not new concepts, and that
further questions could be addressed in writing. He called upon
Mary Pete.
TAPE 98-57, SIDE A
Number 0006
REPRESENTATIVE BERKOWITZ asked, "Are the regulations clear enough?
And are the resources adequate ... for you to carry out the mandate
of this legislation?"
MARY C. PETE, Director, Division of Subsistence, Department of Fish
and Game, answered that at first glance, keeping in mind she'd
looked at this for an hour, she would say no. The bill seems to
conflate how Tier II is implemented and how it is determined who is
a qualified subsistence user; it is hard to pull those two apart in
the bill.
MS. PETE noted that in terms of a resident who qualifies, the
qualification is determined by an area determination. She
explained, "In other words, it says here, 'a resident who is
domiciled in an area that is determined by the appropriate board to
be customarily and traditionally dependent on the stock or
population.' And on the one hand, you have to be a resident of, or
domiciled in, that area to qualify. If you live outside that area,
you cannot qualify; but it seems to allow people, regardless of the
location of ... where they're domiciled, to qualify for specific
... fish stocks or populations." Ms. Pete said it is unclear at
that point. She concluded, "Regardless of that, operationalizing
these vague standards of dependency would, I think, take a huge,
huge time and effort to establish the bureaucracy to do that, just
... at first glance."
Number 0170
REPRESENTATIVE CROFT said that was his concern on those six
standards, not that he didn't understand them or that they were new
distinctions, but that he thinks this bill doesn't clearly describe
the distinction it is drawing.
REPRESENTATIVE CROFT next referred to page 5 at the top, the cash-
based economy idea. He said, "Ted Popely described it as being
mutually exclusive. And my concern is where on line 3, on page 5,
we say, 'a principal characteristic of the economy, culture,' and
again, I guess, on line 4, 'a principal'. It seems to me that ...
you can only have one 'the' principal characteristic, but a number
of 'a' principal characteristics. If 'a' principal characteristic
of the economy is cash-based, and that excludes it, what does that
do to our current definitions of subsistence and nonsubsistence
areas? In other words, what, under 'a' principal characteristic,
is a subsistence area in this state now?"
Number 0260
MS. PETE replied, "Well, this 'a' principal characteristic used to
... be the phrase that defined subsistence use areas. Turning it
sort of on its ear to be used with cash and nonsubsistence -- based
on the floor discussions for the 1992 law, there were concepts such
as '15 percent of the economy,' whatever that means; as little as
15 percent of an economy being subsistence-dependent may qualify an
area as ... customarily and traditionally dependent on fish and
game. ... If you look at 15 percent, 15 percent of what?"
MS. PETE suggested it would disqualify many, many rural communities
if they used cash as "a" principal characteristic, using that same
loose measure that was in the Senate floor debate, especially.
There is no pure subsistence-versus-cash sector anywhere in this
state, although there are mixed subsistence/cash economies that
certainly have varying dependence on cash. Ms. Pete explained that
people need some cash to engage in hunting and fishing of any sort,
subsistence or otherwise, just by the nature of hunting and fishing
in contemporary society. "So, I would think many, many places that
now qualify would fail to qualify based on this new definition,"
she concluded.
Number 0386
REPRESENTATIVE PORTER asked if this basic criteria is not basically
the criteria they are using now.
MS. PETE replied yes, but the previous definition, in the current
statute, didn't use "a" principal characteristic and didn't use
cash.
REPRESENTATIVE PORTER asked, "Would you see anything in here that
would cause you to do this differently than what you're doing now?"
MS. PETE answered that certainly, she would think the joint boards
would have to see the discussion in that section as guidance and
take these factors, as they always have. She referred to factor
(9), page 5, line 22, "the harvest levels of fish and game by those
domiciled in the area or community." She said that has been the
driving force and the most measurable factor, because there is no
cash involved, and no explicit direction to use cash. Now,
however, "cash-based economy" is in the guiding principles, before
the characteristics are listed in the bill.
Number 0473
REPRESENTATIVE PORTER noted that the bill may move from this
committee but would go to the House Finance Committee. He
requested of Ms. Pete, "And if between now and then there's
anything in here that ... you feel would cause you to go about this
determination differently, please tell them, and that it's not the
intent that that happen."
Number 0500
REPRESENTATIVE BILL WILLIAMS asked how many changes in ANILCA would
have to come about if this passed.
MS. PETE said she didn't know specifically. She suggested that is
a question most appropriate for the Department of Law.
VICE CHAIRMAN BUNDE stated, "I think we had that question earlier,
and the comment was that they could not specifically answer that at
this point, because when there is a final subsistence bill product
would be the time to negotiate changes with ANILCA."
REPRESENTATIVE PORTER said it is a recognized fact that there will
have to be amendments to ANILCA to accomplish this bill. "What
we're trying to aim at with the bill is that the amendments would
be technical, and not change the basic intent of ANILCA," he added.
"They might have to redefine 'rural,' they might have to do some
work in the area of the specifics ... that ANILCA has on the
regional boards, and a couple of other refinements. But the intent
is what we're striving for."
REPRESENTATIVE WILLIAMS asked whether they were going to move the
bill that day.
Number 0611
VICE CHAIRMAN BUNDE replied, "I think we've had about as much
testimony that will be fruitful, and I would now like to close
public testimony."
REPRESENTATIVE WILLIAMS mentioned the concept that resources issues
should be addressed in the House Resources Committee and legal
issues should be addressed here. He asked what makes this
different.
VICE CHAIRMAN BUNDE restated his previous comment.
REPRESENTATIVE BERKOWITZ objected.
VICE CHAIRMAN BUNDE asked whether he wanted to appeal the rule of
the chair.
REPRESENTATIVE BERKOWITZ said no, it would be like spitting in the
wind. He pointed out that someone from the Department of Law was
present, and he stated his belief that it is incumbent on the
committee to hear what they have to say about this bill.
VICE CHAIRMAN BUNDE said he would entertain a motion to move the
bill.
Number 0714
REPRESENTATIVE PORTER made a motion to move from committee HB 406,
Version J (0-LS1573\J, Utermohle, 4/5/98), as adopted, with
individual recommendations and fiscal notes as attached.
REPRESENTATIVE CROFT objected. He asked why the chairman had
allowed no time for amendment.
VICE CHAIRMAN BUNDE said he had chosen not to.
REPRESENTATIVE CROFT responded that he had a number of amendments
going to the points he had learned there that day. He said his
objection to moving the bill is that there are going to be ANILCA
changes required by this, and they could hear testimony in the
House Judiciary Committee about what those are. He added, "Not to
whether Ted Stevens likes them or not, but to what they have to be.
We haven't heard that."
REPRESENTATIVE CROFT continued, "We know there are significant
legal differences of opinion on whether this presumption requires
or does not require a constitutional amendment. We have not heard
any testimony on that. This is the first time we have heard a bill
that makes major substantial changes in the area of individual
criteria, in the area of presumption, and in the way it defines
areas. I just heard Representative Porter say he didn't intend any
changes to the way we describe and define subsistence areas and
nonsubsistence areas. But I know that the bill, as it stands, does
make substantial changes to that."
REPRESENTATIVE CROFT continued, "We are not doing our job as the
Judiciary Committee. ... It pains me to say it because this
committee has very consistently done its job. I'm proud to have
served on this committee. But we are not doing it here today. We
should not move this bill until those legitimate legal questions
have been answered, until the public has had more time to see this,
until I have had more time to see this, Mr. Chairman."
Number 0830
REPRESENTATIVE JAMES stated, "I just want to put on the record that
I am disappointed that we couldn't get a real final bill in this
committee. But I'm willing to move it on because I agree with the
chairman that we're never going to get there from here, and that
we're wasting time in this process. And so, I'm willing to vote to
move the bill on, even though I'm disappointed that we don't have
a better product."
Number 0850
REPRESENTATIVE BERKOWITZ stated, "I want to echo what
Representative Croft said. This is the most unprofessional action
I feel we've taken in this committee in the time I've served on
it." He said this piece of legislation is a recipe for federal
takeover. It does not address the problems of ANILCA, as the
majority's lawyers testified that day, and it is practically
unworkable, as the Department of Fish and Game testified.
Furthermore, no fiscal notes have been provided, which is the
height of folly considering the potential costs.
REPRESENTATIVE BERKOWITZ told members that it is unconscionable
that legitimate issues are not being explored: internal
contradictions within the bill, not even discussing the broad
policy ramifications of whether an amendment is required or not,
but whether this is even workable. He concluded, "And I, in the
strongest possible terms, say that this is a disservice to public
policy, and ... again, I reiterate that I think it is entirely
unprofessional what we're doing here."
Number 0920
REPRESENTATIVE ROKEBERG said he would echo what Representative
James had said. He disagreed with Representative Berkowitz'
comment that this is a disservice to public policy. He then
expressed hope that the bill would move forward and be amended to
become a vehicle that will meet the conditions of all people of the
state.
Number 0950
REPRESENTATIVE PORTER stated, "If timing were different, I would
love to be the committee that did the majority of the work on this.
The problem, of course, is that time doesn't allow it, and the
process doesn't allow us to have the final word in anything until
we're allowed to vote on it on the floor of the House, and
probably, in this one, in conference committee - after conference
committee. Consequently, while I appreciate all of the members'
comments, both the minority and the majority, in my humble opinion,
we're not going to get anything done in this area if we don't get
a bill moving that can reach that point of conference committee and
can thereby reach a point where our congressional delegation has
the ability to even discuss with us what they can and can't do."
Number 1003
REPRESENTATIVE WILLIAMS said he would like to be able to move
something that he could hang his hat on. He said if it is as bad
as some people say, he is sorry about that. He acknowledged that
it needs to get done, then asked Vice Chairman Bunde, "If this
doesn't come close to keeping the promise that was made in 1971,
how do we get around that promise that was made in '71? ... Or is
it a promise?"
VICE CHAIRMAN BUNDE replied that in his opinion, it meets the
promise; he then acknowledged that he is not a lawyer. He stated
that this issue has been before the legislature for as long as he
has been here, and he has been to one subsistence special session
already. He said, "I've been concerned, involved and thought about
subsistence for the last 20-some years. I think that there are
those in the state, and in the legislature, who relish and look
forward to federal control, and as such really don't care much what
we do here, probably would just as soon we not do anything. There
are others who have very strong views on this subject. I've heard
from the rural communities some that would support the Governor's
task force, others who've said, 'No, I'd rather live under federal
control.' I've heard people from other ends of the spectrum have
conversations. I don't think that further discussion will change
any of those opinions."
VICE CHAIRMAN BUNDE continued, "And so, I support moving this
instrument forward so that other committees can have a look at it,
another body can have a look at it, and I have every confidence we
will hear from people throughout the state about this iteration and
every other iteration that occurs before, hopefully, the issue will
be solved."
Number 1130
VICE CHAIRMAN BUNDE requested a roll call vote. Voting to move the
bill from committee were Representatives James, Porter, Rokeberg
and Bunde. Voting against it were Representatives Berkowitz and
Croft. Representative Green was excused. Therefore, CSHB 406(JUD)
moved from the House Judiciary Standing Committee by a vote of 4-2.
ADJOURNMENT
Number 1158
VICE CHAIRMAN BUNDE adjourned the House Judiciary Standing
Committee meeting at 3:00 p.m.
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