Legislature(1997 - 1998)
01/27/1998 01:15 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
January 27, 1998
1:15 p.m.
MEMBERS PRESENT
Representative Bill Hudson, Co-Chairman
Representative Scott Ogan, Co-Chairman
Representative Beverly Masek, Vice Chair
Representative Ramona Barnes
Representative Fred Dyson
Representative Joe Green
Representative William K. (Bill) Williams
Representative Irene Nicholia
Representative Reggie Joule
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
ANILCA BRIEFING: COMPARE CHANGES BETWEEN GOVERNOR'S SUBSISTENCE
TASK FORCE PROPOSAL AND GOVERNOR'S INTRODUCED
LEGISLATION
(* First public hearing)
PREVIOUS ACTION
No previous action to record
WITNESS REGISTER
CAROL DANIEL, Legal Consultant
Rural Alaska Community Action Program, Inc.
731 East 8th Avenue
Anchorage, Alaska 99501
Telephone: (907) 279-4442
POSITION STATEMENT: Presented information on the federal amendments
and the subsistence task force proposal, and
how they failed to address issues raised by the
Native community.
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: Presented information on the comparisons
between ANILCA today, Senator Stevens'
amendments, and the subsistence task force
proposal.
ACTION NARRATIVE
TAPE 98-1, SIDE A
Number 0001
CO-CHAIRMAN SCOTT OGAN called the House Resources Standing
Committee meeting to order at 1:15 p.m. Members present at the
call to order were Representatives Ogan, Hudson, Williams, and
Joule. Representatives Nicholia, Green, Dyson, Masek and Barnes
joined the meeting at 1:20 p.m., 1:22 p.m., 1:25 p.m., 1:30 p.m.
and 2:00 p.m., respectively.
ANILCA BRIEFING: COMPARE CHANGES BETWEEN GOVERNOR'S SUBSISTENCE
TASK FORCE PROPOSAL AND GOVERNOR'S INTRODUCED LEGISLATION
CO-CHAIRMAN OGAN called on Carol Daniel to present an overview on
the Alaska National Interest Lands Conservation Act (ANILCA). He
noted today's presentation stems from the last meeting where Wayne
Anthony Ross presented the ANILCA amendments.
Number 0220
CAROL DANIEL, Legal Consultant, Rural Alaska Community Action
Program, Inc. (RurAL CAP), explained that RurAL CAP attempts to
promote maximum participation by village people in overcoming all
types of poverty in rural Alaska. And, because of the importance
of subsistence in rural Alaska, RurAL CAP has been involved in
efforts to protect that way of life for Alaska's Native villages.
In fact, RurAL CAP was a cosponsor, along with the Alaska
Federation of Natives (AFN) and the Alaska Inter-Tribal Council
(AITC), of the Native subsistence summit held last fall in
Anchorage. It is her understanding that RurAL CAP fully supports
the resolution and guiding principles that resulted from the
summit. She also represents other Native organizations and tribal
entities on hunting, fishing and subsistence issues. However, she
is here today speaking as an attorney who has been involved in the
process for a long time, not on behalf of any of her clients.
Number 0359
MS. DANIEL explained she would confine her comments on the federal
amendments to the current federal level of protection for
subsistence in rural Alaska and how they, along with the
subsistence task force proposals contained in HB 320, fail to
address some of the critical issues raised by the Native community.
MS. DANIEL explained when oil was discovered in Alaska, the Alaska
Natives claimed aboriginal title to practically all of the lands
and waters in the state. Subsequently, Congress could not continue
to put off addressing the issue any longer resulting in the passage
of the Alaska Native Claims Settlement Act (ANCSA) in 1971. Even
though the act extinguished aboriginal hunting and fishing rights
in Alaska, Congress made it plain, in the conference report that
accompanied the bill, that it expected both the state of Alaska and
the Secretary of Interior to do whatever was needed to protect the
Native subsistence way of life. Unfortunately, neither the state
nor the Secretary moved to provide any protection. There were a
number of crises in the 1970s that presented pressures on
subsistence users in rural Alaska such as the crash of the
Northwest Arctic caribou herd in 1976. When the state tried to
deal with the crisis by giving what was left of the resource to the
local residents, the courts threw it out. Elders were arrested for
exercising what they had done all of their lives - trying to
provide for their families. It were these types of instances that
persuaded the Alaskan Natives to go back to Congress in 1978 to
seek statutory protection for their subsistence way of life. As a
result, Congress included ANILCA and described it as, "the
culmination of Congressional action initiated by Congress under
the Alaska Native Claims Settlement Act to protect and provide for
continued subsistence uses by Alaskan Natives." At the time,
ANILCA was not defined by tribal affiliation or race; it was
defined by rural residency and customary and traditional use of the
resources. Clearly, the prime motivation in 1980 for passing Title
VIII was to protect the economies and cultures of Alaska's Native
villages. Repeated state and federal litigation after ANILCA was
passed, before and after the McDowell decision, showed hostility
towards implementing a rural subsistence priority. The state's
regulatory bodies were dominated by sport and commercial interests
and, frequently, they refused to regulate in a way that was
consistent with the customary and traditional practices of people
who lived in rural Alaska.
MS. DANIEL further explained the federal amendments introduced by
U.S. Senator Ted Stevens included discussions between the
Governor's office, Senator Stevens' office and Secretary Babbitt,
not the Native community. The Native community had no direct input
in the discussions, despite the fact they made it clear at the
statewide subsistence summit they were willing to help craft a
resolution.
MS. DANIEL further explained Section 1 continues the moratorium to
implement the final federal regulations to extend federal
jurisdiction over certain navigable waters, as well as, retain and
reserve certain water rights - the Katie John decision. The
moratorium does not prevent the "department" from publishing and
putting out for public comment the proposed final regulations. The
final date for comments is April 20, 1998.
Number 0909
MS. DANIEL further explained Section 2 contains the actual
amendments to ANILCA.
MS. DANIEL further explained Section 3 is a savings clause. It
says ANILCA, as amended, would not impact the Indian country
question of tribal authority over lands or people. And, it would
not affect any assertion that ANILCA is or is not Indian law.
MS. DANIEL further explained Section 4 provides an effective date
only if the state adopts laws that comply with ANILCA and the
Secretary certifies that the laws are in compliance. If the
Secretary does not certify the amendments by December 1, 1998, they
will be repealed.
MS. DANIEL further stated the federal amendments maintain a rural
preference, but add a definition of the term "rural" to mean a
community or area that is substantially dependent on fish and
wildlife for nutritional and other subsistence uses. She noted
ANILCA at present does not contain a definition of rural. The
definition is arguably more restrictive than what was adopted after
the Kenaitze case decided by the Ninth Circuit Court of Appeals.
In addition, the new definition does not require a look at a more
objective population criteria; it looks strictly at a community's
dependence. Furthermore, it is unknown how the boards would
implement the definition. They would probably be given deference
in terms of defining substantial dependence on fish and wildlife to
areas and communities to which the standard is applied. "It is
clear, however, that the new definition will have the effect of
throwing some of the communities that are now considered rural
under the federal definition out of the rural classification under
this new definition." The new definition does not prevent the
boards from putting them back in, but it seems unlikely. She noted
the current communities affected by the new definition would be
Saxman, and a few places on the Kenai Peninsula. However, as the
population of Alaska grows and the demands for its resources
increase, more and more communities would fall out of a rural
definition, no matter how it would be defined. Therefore, there is
a need to provide protection for Native people who still want to
practice a subsistence way of life. And, the federal amendments do
not provide that kind of protection.
MS. DANIEL further explained the term "customary and traditional
uses" remain the same as in state law except, the federal
amendments include the protection of customary and traditional
patterns and practices: the taking or use of fish and game. This
is consistent with historical interpretation of the State
Department of Fish and Game and federal law.
MS. DANIEL further explained the federal amendments add the state's
reasonable opportunity standard to Section 804 - the section that
provides the priority for subsistence uses. Under the federal
amendments, subsistence priority is expressed in terms of providing
a reasonable opportunity consistent with customary and traditional
uses. Under federal law, at present, any regulations that are
adopted to provide for subsistence uses are required to have the
least adverse impact as possible on customary and traditional uses.
There is some fear that the federal amendments might weaken the
least-adverse impact provision.
MS. DANIEL further explained the federal amendments add a
definition of the term "customary trade." The definition limits
customary trade to the limited, non-commercial exchange for money
of fish and wildlife of their parts in minimal quantities. The
definition does not apply to fur trapping, for example. The state
boards would have the regulatory power to define what is meant by
the terms "limited," "non-commercial" and "minimal quantities."
And, given the changes to the federal courts oversight in Section
807, a boards decisions would be given more deference than in the
past to interpret statutory language. It is clear the federal
amendment is to further restrict the sale of subsistence products
for cash, a practice that has existed in Native communities for
centuries.
Number 1296
CO-CHAIRMAN OGAN noted for the record that Representatives Green,
Dyson and Masek were present.
Number 1310
MS. DANIEL further explained the federal amendments amend the
definition of the term "federal land." The current definition of
"federal land" in ANILCA means lands the title to which is in the
United States after ANILCA was passed. The federal amendments say
the definition of "federal land" would not included the title to
which is in the state or private ownership or Native corporations.
In other words, the definition of "public lands" in ANILCA is
federal lands; and "federal lands" are lands the title to which is
in the United States. Thus, any land the United States has title
to is federal land. The federal amendments do not include lands
the title to which is in the state, private parties or Native
corporations. It is unclear why the amendment is needed. If a
title is with the state or somebody else, it would not be defined
as federal land. There are some, however, who fear the Katie John
decision would be overturned so language was included to explain an
interpretation.
MS. DANIEL further explained, if the Secretary certifies that the
state is in compliance with ANILCA, the regional councils will be
set in place. The new councils will include at least six around
the state composed of ten members each. The members will be
appointed by the Governor. Four of the members will come from
names submitted by tribal councils in the regions. The remaining
six will come from recommendations made by local governments and
advisory committees. And, of the remaining six members, three will
have to be sport or commercial representatives from anywhere in the
state, not necessarily the local region.
Number 1517
CO-CHAIRMAN OGAN stated three of the six representatives would have
to be subsistence users.
MS. DANIEL replied, "Right." And, they would have to be from the
region.
CO-CHAIRMAN OGAN explained, in essence, there would be four tribal,
three subsistence, and three sport/commercial members.
MS. DANIEL replied, "Right."
Number 1533
MS. DANIEL further explained the federal amendments do not expand
the reasons the boards can use to reject a regional council's
recommendation. Currently, under federal law, a recommendation can
only be rejected if it is not supported by substantial evidence, it
violates recognized principles of fish and wildlife conservation,
or it is detrimental to the satisfaction of subsistence needs. In
contrast, HB 320, would add two additional reasons for rejecting a
recommendation - an unresolved statewide or interregional
subsistence management issue or a contradiction to a statewide fish
or wildlife management issue. The additional reasons are so broad
that they negate the state deference requirement to the regional
council recommendations. They also subject the state to rejection
by the Secretary for inconsistency.
Number 1608
MS. DANIEL further stated the federal amendments limit the
authority of the federal courts to oversee ANILCA by allowing
federal judges to reverse state board decisions, if they are
arbitrary, capricious, in-abuse-of discretion, or otherwise not in
accordance with law. The district courts have pretty much adopted
that type of standard, but the federal amendments foreclose using
the argument in future cases. The second change is the requirement
that the federal courts give the same deference or weight to state
fish and game board decisions - the same deference it would give to
federal agencies. The Ninth Circuit Court of Appeals holds the
state is due no deference in terms of interpreting federal law
because no such authority is delegated under ANILCA. Therefore, it
is not subject to the oversight of Congress. Section 814 combined
with the new intent of Congress could take away a due-deference
argument. The federal amendment would require deference involving
issues of the state's specialized knowledge such as, biological
data on fish and game. In addition, the Secretary would maintain
oversight and monitoring responsibilities. The federal amendments,
however, would make it more difficult for the Secretary to assume
responsibility for regulating hunting and fishing on federal lands
as in 1990, unless directed by the courts, causing a delay of
management.
Number 1820
MS. DANIEL further explained the federal amendments contain a
provision of co-management of the resources with local, Native,
regional or other entities. There is nothing that prohibits co-
mange now. In fact, the federal and state governments have entered
into cooperative projects dealing with harvest assessments, for
example, with local tribes and organizations. The federal
amendments fall short of addressing the co-management issue in a
way that would make subsistence work in rural Alaska.
Number 1838
MS. DANIEL further explained the federal amendments attempt to
rewrite Congressional intent of Title VIII by adding new findings
to the 1980 original version. The original findings stress the
goal of protecting Native and non-Native subsistence uses in rural
Alaska. The new findings add the additional goal of ensuring that
subsistence on federal and public lands would be managed by the
state of Alaska. The original purpose of ANILCA was to ensure that
Native subsistence uses would be protected as promised when ANCSA
was passed.
Number 1886
MS. DANIEL further stated, in conclusion, the federal amendments to
ANILCA were adopted without any hearing or input from the Native
community. The preference is extended only to rural residences.
There is no real protection for Natives who do not live in a rural
area. The federal amendments do not mandate co-management. The
state boards are given more deference on subsistence issues. And,
there is no recognition of the cultural and religious significance
of subsistence uses. The Alaskan Natives would like to see an end
to the endless debates, battles and court fights over subsistence.
However, any solution has to have the endorsement of the people who
live in the areas effected. Although the Native community has been
supportive of a constitutional amendment that allows the state to
regain full management authority, it has never supported a trade-
off of their rights under Title VIII of ANILCA as it stands today.
Number 1991
REPRESENTATIVE BILL WILLIAMS asked Ms. Daniel whether the
negotiated settlement, ANCSA, gives the state the right to
discriminate. In other words, does ANCSA have any bearing with the
subsistence issue.
Number 2044
MS. DANIEL replied, in her opinion, the federal government's trust-
responsibility to Native tribes and people survived ANCSA. The
continuing trust-responsibility in the conference report said the
state and the Secretary would take care of the subsistence needs of
the Natives. She noted ANILCA is really the culmination of what
was started in ANCSA. There is no question that Congress can
provide a rural or Native priority. A rural priority would be
measured on a rational-basis test. A relaxed test in her opinion.
In fact, ANILCA has been looked at in those terms in the McDowell
2 case and it was upheld.
Number 2145
REPRESENTATIVE WILLIAMS stated we are all created equal. He
wondered, therefore, in what sense does ANCSA take away from the
state of Alaska. "I look at this Alaska Native Claims Settlement
Act as a negotiated settlement and in that negotiation agreed to by
the state of Alaska, the federal government, and the Alaskan
Natives, that the subsistence lifestyle would be there all the
time." He wondered whether the state constitution could hold up
against what was negotiated in ANCSA.
Number 2191
MS. DANIEL replied, in my opinion, ANCSA is a Congressional act
that does not directly address subsistence, except through the
conference report. The conference report was based on a continuing
trust-responsibility towards the Natives to protect their
subsistence way of life. It has survived ANILCA and the state
constitution.
Number 2229
CO-CHAIRMAN OGAN referred to ANCSA and read the following language
from Section 2:
"with certainty, in conformity with the real economic and social
needs of Natives, without litigation, with maximum participation by
Natives in decisions affecting their rights and property, without
establishing any permanent racially defined institutions, rights,
privileges, or obligations, without creating a reservation system
or lengthy wardship or trusteeship".
CO-CHAIRMAN OGAN referred to ANCSA and read the following language
from Section 4(b):
"(b) All aboriginal titles, if any, and claims of aboriginal title
in Alaska based on use and occupancy, including submerged land
underneath all water areas, both inland and offshore, and including
any aboriginal hunting or fishing rights that may exist, are hereby
extinguished."
CO-CHAIRMAN OGAN explained in 1953 titles to submerged lands were
granted to the states from the federal government. Therefore, the
conference report appears to directly contradict the law passed.
Clearly, the law extinguishes aboriginal hunting and fishing
rights, as well as, claims to land based on occupancy and use.
Number 2311
MS. DANIEL replied the statute plainly extinguishes aboriginal
hunting and fishing rights. It did not extinguish, however, the
continuing trust-responsibility of Congress towards Alaskan Natives
as expressed in the conference report. She explained the bill went
to a conference committee because the Senate's version included the
language "subsistence" while the House's version did not. It was
resolved in conference when Congress said it expected the state of
Alaska and the Secretary to protect the subsistence needs of
Alaskan Natives. Congress fully expected both parties to live up
to their responsibilities which they have not. Consequently,
Congress revisited the issue and invoked its responsibility as a
result of plenary powers when it passed ANILCA. Clearly, Congress
has the authority to pass statutory protection for subsistence
hunting and fishing rights. Congress could have enacted a Native
preference but it chose a rural preference instead.
Number 2376
CO-CHAIRMAN OGAN stated Ms. Daniel asserted that ANILCA is Indian
legislation, when it is very nonracial in its context. It does not
talk about a Native priority; it talks about a rural priority.
Number 2400
CO-CHAIRMAN BILL HUDSON commented that ANILCA defines the term
"federal lands" and the Secretary manages all fish and wildlife on
"public lands." The term "public lands" is not defined. He asked
Ms. Daniel what she thought were public lands.
Number 2429
MS. DANIEL replied the definition of "public lands" varies from
statute to statute. In ANILCA the term "lands" is defined as
lands, waters and interests therein. The term "federal lands" is
defined as lands to which the United States has a title to after
the effective date of ANCSA. The term "public lands" is defined as
all federal lands and interests.
Number 2460
CO-CHAIRMAN HUDSON said the term "public lands" is commonly
referred to, but there really is not a thorough definition of
public lands. The courts decided in the Babbitt case that public
lands included navigable waters which is a fear....
TAPE 98-1, SIDE B
Number 0000
MS. DANIEL stated the term "lands" is defined as lands, waters and
interests therein. The Ninth Circuit Court of Appeals has held
that the language "lands, water, and interests therein" encompasses
the United States' interest in reserved waters. The federal
government is now defining which waters are public lands. Proposed
regulations indicate that public waters are those that run through
parks and refuges.
Number 0030
CO-CHAIRMAN HUDSON stated it is understandable to define public
waters within the confines of federal reserves. But, clearly the
definition of "federal lands" excludes private and state lands. It
sets up an opposition because public lands encompasses all lands
including navigable waters.
Number 0051
CO-CHAIRMAN OGAN stated he does not understand who owns submerged
lands. Congress gave the title to submerged lands to all of the
states. Congress did not intend to create a different species of
states when it created Alaska.
Number 0081
REPRESENTATIVE RAMONA BARNES asked Ms. Daniel to explain where the
United States has reserved water rights in law or regulation, and
what are the rights.
Number 0090
MS. DANIEL replied she is not that familiar with reserved water
rights law. The Ninth Circuit Court of Appeals has held that the
United States has reserved water rights in water that is needed to
fulfill the purposes of the refuges and national parks - the Katie
John case. The court has also interpreted, in looking at both
ANILCA and the reserved water rights doctrine, that the United
States has a sufficient interest to bring the waters within the
definition of public lands under ANILCA. The federal government is
currently in the process of designating public waters.
Number 0138
REPRESENTATIVE BARNES stated, just because the Ninth Circuit Court
of Appeals says something, it does not make it right. There has
not been an act of reserving water in the state of Alaska. It
takes a specific act and one does not exist.
Number 0153
MS. DANIEL replied she is not prepared to debate the issue today.
She reiterated the courts have held that the United States has
reserved water rights in Alaska which bring the waters within the
ambit of public lands under ANILCA.
Number 0178
REPRESENTATIVE BARNES stated she respectfully disagrees with Ms.
Daniel.
Number 0188
REPRESENTATIVE JOE GREEN stated in one case the federal government
said it would protect Native rights. Then it changed its mind and
said it would protect rural rights. He wondered whether they were
mutually exclusive, and how could an aboriginal right be protected,
given that he could argue his ancestors were hunters and fishers.
He also wondered how a rural preference could be protected when
villages were expanding in size. It seemed the state was being
"whipsawed" by a constantly moving target.
Number 0261
MS. DANIEL stated she is not speaking for what the policy choices
should be for the Native community. It is clear that ANCSA
extinguished aboriginal hunting and fishing rights. Therefore, the
discussion today is about the federal government's responsibility
to protect a subsistence way of life promised in the conference
report. Congress attempted to do that through ANILCA, but the
state insisted that the priority change from Native to rural. The
Native community fought vigorously against it, but lost. She
agreed that over time it would not protect the subsistence way of
life as the population of Alaska grows. Nonetheless, there needs
to be protection for the Natives so that they can continue to be
Natives and live their way of life, and a rural preference does not
do it.
Number 0317
CO-CHAIRMAN OGAN said a rural priority does not address Alaskan
Natives who live in areas that are classified as urban and are
dependent on a subsistence lifestyle. Urban Natives could argue in
court that the federal government is not looking out for their
trust-responsibility interests.
Number 0347
REPRESENTATIVE REGGIE JOULE asked Ms. Daniel to discuss how the
trust-responsibility issue came about.
Number 0358
MS. DANIEL replied it was based on a long-standing relationship
between the federal government and the aboriginal tribes and
peoples. It dated back to the beginning of the United States when
the tribes were considered dependent communities within a larger
community.
Number 0396
REPRESENTATIVE JOULE asked Ms. Daniel whether it would be safe to
say that it is based on a political relationship.
MS. DANIEL replied, "Right." It is based on a political
relationship.
Number 0411
REPRESENTATIVE JOULE asked Ms. Daniel whether there was anything to
prohibit pursuing an expanded rural or Alaskan Native preference in
regards to the trust-responsibility issue.
Number 0425
MS. DANIEL replied it could be protections that ensured the Native
subsistence way of life, as well as, other legitimate subsistence
users. In fact, similar language was used in the Migratory Bird
Treaty Act and other subsistence related legislation.
Number 0445
CO-CHAIRMAN OGAN wondered whether it would take a change to ANCSA
to amend extinguished aboriginal titles and hunting and fishing
rights. A settlement is a settlement, and it can not be changed
unless both parties agree to change it. In the case of ANCSA,
there was an exchange of 44 million acres of land, including
subsurface rights. Therefore, an agreement between the state, the
federal government, and the Natives would be needed to change it.
He asked Ms. Daniel whether his assessment was fair.
Number 0485
MS. DANIEL replied it would be an act of Congress and it has
plenary authority over Native affairs. It has acted to abrogate
and restore aboriginal rights in the past.
Number 0515
REPRESENTATIVE GREEN wondered whether the state could strike a
deal, like statehood, with the federal government until it said it
was over because of its plenary authority.
Number 0533
MS. DANIEL replied Congress has plenary authority over Indian
affairs.
REPRESENTATIVE GREEN wondered whether contracts were any good. "We
either do it their way or they do it their way."
MS. DANIEL stated, politically, it would be very difficult to
change what Representative Green is talking about.
REPRESENTATIVE GREEN noted to Ms. Daniel that she was now seeing
the difficulty "we" were having with entering into another
agreement with somebody that "we" can not trust.
Number 0551
REPRESENTATIVE BARNES wondered whether the state of Alaska would
get back its $500 million that it paid, if Congress exercised its
plenary powers to amend ANILCA.
MS. DANIEL replied, "I doubt it."
Number 0575
CO-CHAIRMAN HUDSON asked Ms. Daniel to explain what would be needed
in law in order to satisfy the religious and culture complaints she
mentioned earlier. He noted that a law dealing with the allocation
of resources should not refer to culture or religion. In the
interest of time, she could respond later.
Number 0624
CO-CHAIRMAN OGAN stated the Constitution of the State of Alaska
specifically prohibits making religious-based laws.
Number 0640
CO-CHAIRMAN OGAN called on Theodore Popely to compare the changes
between ANILCA today, Senator Stevens' amendments, and the proposal
by the subsistence task force.
Number 0686
THEODORE POPELY, Legislative Assistant to House and Senate
Majority, Alaska State Legislature, referred the committee members
to three handouts titled "A Cross Comparison of the Elements in
ANILCA Changed by Public Law 105-83 and the Subsistence Task Force
Proposal"; "A Cross Comparison of Existing Statutory Provision in
AS 16 with the Subsistence Task Force Proposal and HB 320 Submitted
by the Governor"; and "Cross Comparison Between Constitutional
Amendments Proposed by Task Force and Proposed in HJR 46."
MR. POPELY referred to the handout titled, "A Cross Comparison of
the Elements in ANILCA Changed by Public Law 105-83 and the
Subsistence Task Force Proposal," and explained the various
provisions.
MR. POPELY referred to Section 316(a), "Moratorium," and explained
the moratorium has been extended to December 1, 1998 under Stevens'
amendment.
MR. POPELY referred to Section 316(c), "Savings Clause," and
explained Stevens' amendment indicates that it does not affect
Native governmental authority over lands, assertions of Indian
country, assertions that ANILCA is Indian law, or the authority of
the Secretary under Sec. 1314(c) of ANILCA.
Number 0819
CO-CHAIRMAN OGAN asked Mr. Popely whether the language, "assertion
that ANILCA is Indian Law," says that ANILCA is not Indian Law.
MR. POPELY replied, "Correct."
CO-CHAIRMAN OGAN stated, therefore, under plenary authority over
Indian affairs, the federal government would not have authority.
MR. POPELY replied that is the intention of the bill, as he
understood it.
Number 0837
MR. POPELY referred to Section 316(d), "Effective Date," and
explained under Stevens' amendment the state must adopt laws
providing for the definition, preference, and participation
specified in Sections 803, 804, and 805 of ANILCA by December 1,
1998, or the amendments to ANILCA will be repealed. The language
sets the effective date as the date the laws are passed by the
state of Alaska.
Number 0880
CO-CHAIRMAN OGAN asked Mr. Popely whether the state has to pass a
constitutional amendment for the effective date to take effect.
MR. POPELY replied, "Correct."
CO-CHAIRMAN OGAN asked Mr. Popely about the savings clause in
ANILCA that says nothing shall be construed that Alaska has to
amend its constitution.
Number 0892
MR. POPELY replied there is a section in Title VIII that indicates
nothing in the title is to be construed as requiring an amendment
to the state constitution. This arguably conflicts with the fact
that the state is facing a proposal that requires a change to the
constitution.
Number 0916
REPRESENTATIVE JOULE stated, in reference to the issue of
constitutional amendments, between last session and this session
there have been around 35 proposals to change the state
constitution.
Number 0951
REPRESENTATIVE BARNES stated the issue is whether or not the state
is required under ANILCA to amend its constitution, not that there
have been 35 proposals. The language is clear, nothing in the act
should be construed as asking or forcing the constitution to be
amended.
Number 0974
REPRESENTATIVE GREEN stated the difference is the other 35
proposals are voluntary, while this one is forced.
Number 0980
MR. POPELY further explained under Stevens' amendment for the
effective date, the Secretary of Interior is charged with
certifying whether the state is in compliance with Sections 803,
804 and 805 prior to the effective date of the amendment. Under
the task force proposal, there is a presumption that the state will
immediately reassume management of its fish and game, when the
state laws and the constitutional amendment are enacted. There is
an added level of scrutiny under Stevens' amendment.
Number 1036
CO-CHAIRMAN OGAN asked Mr. Popely whether the authority of the
Secretary of Interior has been expanded.
Number 1049
MR. POPELY replied it is an additional provision that does not
exist in current law.
CO-CHAIRMAN OGAN asked Mr. Popely whether the authority of the
Secretary of Interior to take over management has ever been defined
before.
MR. POPELY replied it has been a topic of litigation between the
state and federal government that has not been fully resolved.
Number 1066
MR. POPELY referred to Section 102(2), "Definition of 'Federal
Land'," and explained it does not speak to amending the definition
of the term "federal public lands," the topic of litigation in the
Katie John case. He would not take either Stevens' amendment or
the subsistence task force proposal to affect the Katie John
decision made by the Ninth Circuit Court of Appeals.
Number 1114
MR. POPELY referred to Section 801(b), "Findings," and explained
Stevens' amendment adds a rural preference, the McDowell case, the
Babbitt case, and provides that the state of Alaska should have the
opportunity to manage its own resources. These provisions are not
found in the subsistence task for proposal.
Number 1161
MR. POPELY referred to Section 803(3), "Customary and Traditional
Uses," and read Stevens' amendment, "The noncommercial, long-term
and consistent taking of, use of, or reliance upon fish and
wildlife in a specific area and the patterns and practices of
taking or use of that fish and wildlife that have been established
over a reasonable period of time, taking into consideration the
availability of the fish or game." The language is the same under
the subsistence task force proposal.
Number 1195
MR. POPELY referred to Section 803(4), "Customary Trade," and
explained it is essentially the same definition.
MR. POPELY refereed to Section 803(5), "Rural Alaska Resident," and
read Stevens' amendment, "A 'rural community or area' means a
community or area substantially dependent on fish and wildlife for
nutritional and other subsistence uses."
MR. POPELY referred to Section 804(b), "Reasonable Opportunity,"
and explained Stevens' amendment adds an additional section so
that a subsistence priority involves a reasonable opportunity. It
does not guarantee that fish and wildlife will be taken.
Number 1296
MR. POPELY referred to Section 805, "Local and Regional
Participation," and explained Stevens' amendment includes a
provision whereby the Secretary shall not implement the federal
management structure unless a court of competent jurisdiction
determines the state is out of compliance. The subsistence task
force proposal adds a provision that the court should determine
that the state has "substantially failed" to implement the
provisions before the Secretary reassumes federal management. In
addition, Stevens' amendment adds a provision to authorize the
Secretary to bring judicial action to enforce the subsection. The
subsistence task force proposal adds the particular grounds for
which state boards can reject recommendations by the regional
councils. They are the following: the involvement of an
unresolved statewide or interregional subsistence management issue
or a recommendation that is contrary to an overriding statewide
fish or wildlife management interest. The specific selection
criteria for the regional councils are the same in both the
Stevens' amendment and the subsistence task force proposal. They
are ten members in total - four selected from nominees who live in
the region by the tribal councils, six by local governments of
which three are subsistence users and three are sport or commercial
users.
Number 1390
CO-CHAIRMAN OGAN asked Mr. Popely whether the subsistence task
force proposal added two additional provisions that are not in
Stevens' amendment.
MR. POPELY replied, "Correct." An argument has been raised that
the additional two items are subsumed within the other three
reasons causing discussion to remove them from Stevens' proposal.
Number 1440
CO-CHAIRMAN OGAN referred to the selection of members for the
regional advisory councils and asked Mr. Popely whether tribal
councils are recognized in statute.
MR. POPELY replied as far as he knows there is no similar
management structure in statute.
CO-CHAIRMAN OGAN referred to the membership of the regional
advisory council and wondered whether it would be fair to state
there would be two commercial fishing members and one sport fishing
member because commercial fishing has more political power than
sport guides, even though there might be more sport hunters.
CO-CHAIRMAN OGAN also asked Mr. Popely whether a quorum was six
members.
MR. POPELY replied, "Correct." The provision is such that the
councils will strive for consensus. There is a presumption that
majority will rule but a recommendation has to be unanimous.
CO-CHAIRMAN OGAN asked Mr. Popely whether the regional councils
would have "allocative" authority. He was concerned about regional
conflicts.
MR. POPELY replied under the subsistence task force proposal, a
regional council would not have "allocative" authority because of
the two additional provisions for boards to reject a
recommendation.
Number 1569
REPRESENTATIVE BARNES asked Mr. Popely how the responsibility could
be delegated down to a regional or tribal council without amending
the constitution. According to the constitution, the legislature
has the authority to manage all fish and wildlife in the state.
Number 1618
MR. POPELY replied it is a valid point. There is potential for a
problem because it raises the specter of an improper delegation of
authority.
Number 1659
REPRESENTATIVE BARNES stated is seems when power is given beyond
constitutional or statutory authority there is trouble.
Number 1689
REPRESENTATIVE WILLIAMS asked Mr. Popely how ANCSA and ANILCA
affect the delegation of powers.
Number 1737
MR. POPELY asked Representative Williams to clarify the question.
REPRESENTATIVE WILLIAMS said the state gave up power in the
conference report and agreed to ANCSA. And, the state and federal
government have not lived up to ANILCA. He asked Mr. Popely how
this affected the other side of the delegation of powers issue.
"Couldn't we just say we're living up to our word?"
MR. POPELY replied there is language from the conference committee
that refers to the protection of Native interests. And, Ms. Daniel
referred to Native preference language in ANILCA that was rejected.
There are other ways to protect the trust-relationship and the
conference committee intent language. Title VIII of ANILCA is
simply one approach.
Number 1916
CO-CHAIRMAN OGAN referred to the appointment of the members of the
regional advisory councils by the Governor and asked Mr. Popely
whether he was aware of a governor appointing members to a board in
any other state.
Number 1962
MR. POPELY replied, "No." That is not to say it does not exist.
He was not familiar with each management structure nationwide.
Number 1976
CO-CHAIRMAN OGAN asked Mr. Popely whether he was familiar with the
recent United States Supreme Court decision on the Brady Bill that
says the federal government may not force a state to enforce a
regulatory program. "I just think it's an amazing revelation that
we have the federal government in federal law, if we adopt this,
we're going to delegate our authority to the federal government and
let them tell us that the Governor shall appoint who to what
boards."
Number 2035
REPRESENTATIVE FRED DYSON stated it seemed that Representative
William and he both grew up in an tradition where a deal was to
keep one's word. It seems the concept runs contrary to the idea
that one legislature could not preclude a future legislature from
changing the deal. In addition, the language in ANILCA does not
seem to preclude a future court from ruling that there is a
constitutional problem. He asked Mr. Popely to explain the basis
of constitutional law in both situations mentioned.
Number 2148
MR. POPELY replied, unfortunately, Alaska continues to struggle
with the federal government over the supremacy clause. The
supremacy clause, in fact, does enable the federal government to
preempt state government on many different grounds. And,
Congressional statutes can be amended just like state statutes.
Currently, the state is experiencing the proverbial "Mexican
standoff" because nobody wants to change their law first for fear
of the possibility of the other side changing its bargain. "For
instance, if we put the amendment that's on the ballot now, that's
proposed to be on the ballot, that's contained in here, and it
passes. And we have an effective package deal on the state
statutes and the ANILCA changes, there's nothing that would
prohibit the next Congress or even this Congress or this
legislature from then changing some of those state statutes or
federal statutes. And we're still left with the same
constitutional amendment that would provide priority based on
residence." Therefore, it is difficult to say what is going to be
binding on the next set of governmental officials who may have a
different agenda. Some of the best minds in the state have
struggled with the question.
Number 2336
REPRESENTATIVE IRENE NICHOLIA referred to amending the state
constitution and wonder whether it would be, in fact, voluntary.
There is a bill that could be voted on by the legislature that
would give the public the opportunity to vote on the amendments.
It is really not entirely up to the legislature to decide what will
happen. It is up to the public as a whole. Legislators are just
here to put a bill forward to give the process to the public.
Number 2403
CO-CHAIRMAN OGAN replied it is clear the legislature can only
propose a constitutional amendment. A constitutional amendment can
not be done by a public pole or a simple majority vote. It is a
legislative authority. The Governor can not propose a
constitutional amendment. It can only be done by a two-thirds vote
of the legislature.
Number 2442
REPRESENTATIVE NICHOLIA stated Co-Chairman Ogan misinterpreted her
comments. "I said, earlier it was said that we were forced to
adopt an amendment to the state constitution. But, in fact it is
voluntary. We can do it or we can't do it. It depends on the
legislature."
Number 2470
CO-CHAIRMAN OGAN stated, "We are clearly being coerced into it."
TAPE 98-2, SIDE A
Number 0000
MR. POPELY referred to Section 807, "Judicial Enforcement," and
explained under Stevens' amendment state agencies may be declared
invalid by the court only if they are arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law. In
addition, the court shall give the decision of the state agency the
same deference it would give the same decision of a comparable
federal agency. The language is in response to federal courts
regarding no deference to state agencies. The subsistence task
force proposal would add the same language as Stevens' amendment
plus an additional phrase of, "or otherwise not in accordance with
law."
Number 0101
MR. POPELY referred to Section 814, "Regulations," and explained
under Stevens' amendment, during any time that the state complies
with Section 805(d), the Secretary shall not make or enforce
regulations. It is a further attempt to eliminate the Secretary
from interfering with state management at times when the state has
complied with the mandates of Title VIII. The subsistence task
force proposal would add the same language.
Number 0133
MR. POPELY referred to Section 815, "Limitations, Savings Clauses,"
and explained under the Stevens' amendment, nothing would prohibit
the Secretary or the state from entering into a co-management
agreement with Native organizations or other local or regional
entities to manage fish and wildlife on public lands in Alaska for
subsistence uses.
Number 0221
CO-CHAIRMAN OGAN announced it was his intention to formulate a bill
in draft to bring before the committee members in the next few
weeks. He did not intend to have any more hearings on the
Governor's proposal. He intends to obtain input from each of the
committee members in the process of producing a final draft in the
approach of a statutory change. He also intends to consider the
input from the public obtained around the state in both rural and
urban areas.
CO-CHAIRMAN OGAN stated, "It's my intention to move forward with a
positive Alaska-first solution. I think the state constitution and
the state supreme court interpretation of equal protection, common
use, and public trust doctrine, will dictate the outer parameters
of the solution."
CO-CHAIRMAN OGAN further stated, upon completion of the one-on-one
deliberations with the committee members, a consideration will be
brought forth, if there is consensus. At which point, the public
will be involved. For the record, "There has not been any
subcommittee meetings of this committee or any other committees to
discuss statutory changes." He asked that the committee members
refrain from speculating on the final outcome with the press before
it is brought forth to the public. The House Resources Standing
Committee is the forum that is needed to do this. A task force or
public opinion polls are not where public policy is set. The
legislature, clearly, has the authority.
Number 0446
REPRESENTATIVE NICHOLIA asked Co-Chairman Ogan, since this was
going to be the last hearing on the Governor's bill, why the
Administration had not been invited to give its view on the
proposal.
Number 0466
CO-CHAIRMAN OGAN replied the Administration has been able to do
that at the public hearings. And, it is the prerogative of the
chairman.
ADJOURNMENT
Number 0474
CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee
meeting at 2:58 p.m.
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